Manrique v. O'Keefe
| Decision Date | 22 April 2022 |
| Docket Number | 21-cv-08395-LB |
| Parties | ALEJANDRO TOLEDO MANRIQUE, Petitioner, v. DONALD O'KEEFE, Respondent. |
| Court | U.S. District Court — Northern District of California |
ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS Re ECF No. 1
The Republic of Peru seeks the extradition of the country's former president, the petitioner Dr. Alejandro Toledo Manrique, so that he can be prosecuted for his alleged role in a bribery scheme.[1]After receiving Peru's request under the Peru-U.S. extradition treaty in May 2018, the United States filed a complaint in this district for the petitioner's arrest in July 2019.[2] The petitioner was allowed to remain free on bail while he contested his extradition and remains released on bail today.[3] Nonetheless, the extradition court certified the petitioner's extradition.[4]
The petitioner now challenges his extradition through a petition for a writ of habeas corpus. The petitioner contends that the Peru-U.S. extradition treaty does not apply to him because Peru has (1) not “charged” him for purposes of the treaty, and (2) has not produced “charging documents” as required by the treaty.[5] The petitioner also contests the extradition court's evidentiary rulings and claims that there is no probable cause to believe that he committed the alleged crimes.[6]
The court denies the petition. The term “charged” encompasses those who, like the petitioner, are sought for prosecution. The term “charging documents” refers to a category of documents and does not refer to any specific document that Peru has not submitted. Furthermore, the petitioner's admitted acceptance of bribe money along with testimony from two witnesses implicating him in the bribery scheme provides a reasonable basis to conclude that he committed the alleged crimes and supports the extradition court's probable-cause determination.
The petitioner is accused of accepting approximately $35 million in bribes related to the construction of a highway between Brazil and Peru.[7] Peruvian prosecutors charged the petitioner with collusion and money laundering and obtained a warrant for his arrest.[8] In May 2018, Peru requested the petitioner's extradition pursuant to the Peru-U.S Extradition Treaty and submitted a supplemental extradition request in June 2019.[9] Extradition Treaty Between the United States of America and the Republic of Peru, Peru-U.S., July 26, 2001 T.I.A.S. No. 03-825, S. Treaty Doc. No. 107-6, 2001 WL 1875758 (the Treaty).
In July 2019, the United States filed a complaint seeking the petitioner's arrest.[10] In September 2020, the extradition court denied the petitioner's motion to deny extradition, which was based on his contentions that (1) he had not been “charged” for purposes of the Treaty, (2) Peru had not complied with the Treaty's “charging document” requirement, and (3) the now-dropped influence-peddling charge failed to comply with the Treaty's dual-criminality requirement.[11] In September 2021, the extradition court found that there was probable cause to believe the petitioner committed collusion and money laundering and certified that he was extraditable to Peru on those charges.[12]The petitioner challenged the extradition certification through the petition here and remains released on bail.[13] The parties consented to magistrate-judge jurisdiction under 28 U.S.C. § 636.[14]
Peruvian authorities allege that the petitioner solicited a bribe from Constructora Norberto Odebrecht S.A., a subsidiary of Odebrecht SA. (Odebrecht), and in exchange helped direct construction contracts to Odebrecht.[15] Odebrecht is a large conglomerate that pleaded guilty in 2016 to bribery and bid-rigging under the Foreign Corrupt Practices Act (FCPA) by engaging in bribery and bid-rigging. Press Release, U.S. Dep't of Just., Odebrecht and Braskem Plead Guilty and Agree to Pay at Least $3.5 Billion in Global Penalties to Resolve Largest Foreign Bribery Case in History (Dec. 21, 2016), https://www.justice.gov/opa/pr/odebrecht-and-braskem-plead-guilty-and-agree-pay-least-35-billion-global-penalties-resolve.
The bribery scheme at issue here involved contracts for the construction of the Peru-Brazil Southern Interoceanic Highway project.[16] The petitioner admits that Odebrecht paid at least $34 million in bribes related to the highway project and that he received some of the illicit funds.[17]Nonetheless, the petitioner contends that Josef Maiman (Maiman) - a now-deceased Israeli businessman who eventually entered into a cooperation agreement with Peruvian authorities - concocted the bribery scheme without the petitioner's knowledge and then escaped prosecution by providing false evidence against him.[18]
The prosecutors in Peru contend that the petitioner's chief of security, Avraham “Avi” Dan On (Avi), approached Jorge Henrique Simoes Barata (Barata) - Odebrecht's superintendent of operations - to arrange the bribery scheme in 2004.[19] The prosecutors claim that, during a November 2004 meeting in Rio de Janeiro, the petitioner told Barata that “he wanted Odebrecht to win the Highway contracts, and would ensure that the schedule for the tenders was not delayed and that the terms of the tenders would be modified to make it difficult or impossible for other companies to participate in them.”[20] According to the prosecutors, the bribe amount was eventually reduced to $20 million when the petitioner failed to modify the bidding or discourage the participation of other companies.[21] Testimony from Barata and Maiman supports the Peruvian government's theory.
Maiman and the petitioner became friends while both were attending college in the United States and, as of 2017, had known each other for fifty years.[22] Both studied economics and stayed in touch while the petitioner worked in the Peruvian government.[23] In 2017, Maiman testified that, “[t]oward the end of 2004, Alejandro Toledo . . . mentioned he was going to establish a foundation and asked [me] to help him with the reception of donations.”[24] Maiman “suspected that the donations might be intended to cover up less-than-transparent activities.”[25]
Maiman further testified that, “[i]n Rio de Janeiro, in November 2004, there was a presidential summit that was held at the Marriott Hotel” involving the petitioner, Maiman, Barata, and Maiman's associates, Gideon Weinstein and Sabih Saylan.[26] According to Maiman, during a “series of meetings” in Rio de Janeiro, Barata, Maiman, and Marcelo Odebrecht discussed “opportunities for cooperation on the implementation of different works.”[27] Maiman testified that when Barata told him that there would be donations to the petitioner's foundation, Maiman confirmed that the petitioner had already mentioned possible donations.[28]
Maiman also testified that in 2006, the petitioner told Maiman that donations would be coming in and instructed Maiman to tell “the Brazilians” where the money should be deposited.[29] The funds were deposited, and the petitioner reportedly told Maiman to wait for instructions from Avi regarding where the money should then be moved.[30] Maiman said that he participated in the scheme to develop a closer relationship with Odebrecht and advance his own business interests, and denied (at least in his 2017 testimony) that he profited “in any way” from receiving money on the petitioner's behalf.[31]
As the petitioner points out, Maiman's testimony has not always been consistent regarding the development of the bribery scheme. In 2020 testimony, Maiman stated that he did not participate in negotiations regarding the $34.3 million bribe amount.[32] When asked who was involved with a memorandum of understanding for the payment of $34.3 million, Maiman stated that [33]Moreover, Maiman's claim that he did not profit from the scheme eventually proved false.[34] But despite the inconsistencies in Maiman's testimony, the other key witness, Barata, corroborated Maiman's incriminating claims and the prosecutors' theory.
In a deposition on April 24, 2019, Barata testified that “the first conversation was with Avi Dan On, ” who said, [35]Barata stated that those negotiating the bribe had the authorization of the petitioner and that they “sealed a deal” in a hotel room in Rio de Janeiro.[36] The petitioner allegedly used his influence over the Private Investment Promotion Agency (Proinversion), a Peruvian state agency, to carry out his end of the bargain by expediting the bidding process.[37] Barata claims that he witnessed the petitioner call officials at the Ministry of Economy and Finance to move the process along.[38]
Barata later clarified that he only assumed the petitioner knew about the bribery scheme (because he was at the 2004 meeting in Rio de Janeiro) and stated that the petitioner “did not interact in a direct way” during the meeting.[39] While the petitioner relied on this testimony to contest probable cause in the extradition court, that court did not find that these comments exonerated the petitioner or undermined the incriminating aspects of Barata's testimony.[40] For instance, Barata testified that the petitioner requested money from him after the negotiation phase on several occasions.[41] Furthermore, Barata's testimony supports Peru's theory that the bribe amount was reduced when the petitioner failed to amend the bidding conditions to favor Odebrecht. Barata has stated that the...
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