SAN FRANCISCO (CN) — A former Peruvian president cannot overcome extradition to his home country based on claims that the Peruvian government failed to formally charge him with bribery and other crimes as required by its treaty with the United States, a federal judge ruled Friday.
“The court rejects Toledo’s argument that only formal charges can satisfy the ‘charged’ requirement in the treaty,” U.S. Magistrate Judge Thomas Hixson wrote in a 9-page ruling after hearing arguments on the dispute Friday.
Wanted in Peru for allegedly taking $35 million in bribes from a Brazilian construction company, Alejandro Toledo Manrique claims the charges are false, politically motivated and based on coerced witness statements. Toledo led Peru’s government from 2001 to 2006.
The 74-year-old was arrested in July 2019 and released from jail on home confinement in March due to the risk of severe illness or death from the Covid-19 virus.
In July, Toledo filed a motion to deny extradition based on the failure to file formal charges. He also argued that one of the charges being investigated — influence-peddling — is not a crime for which he could be extradited because there is no parallel law in the U.S.
Although U.S. law prohibits bribery, one can be found guilty of influence-peddling in Peru for merely accepting something of value, rather than exchanging it for government favors as required under U.S. law, Toledo argued.
In an apparent response to the former president’s legal arguments, Peruvian prosecutors on Aug. 11 announced they were ending their investigation and formally charged Toledo with collusion and money laundering, but not influence peddling. He faces a potential 20 years and six months in prison.
On Friday, Toledo’s public defender Graham Archer argued during a virtual court hearing that the Aug. 11 decision was a tacit acknowledgment by Peruvian prosecutors that they were investigating his client since February 2017 when extradition was first sought. Peruvian prosecutors never filed formal charges as required by a 2001 extradition treaty between the U.S. and Peru, Archer insisted.
“For the past three years, the investigation into Dr. Toledo has been just that,” Archer said. “It has been only an investigation.”
Judge Hixson was not convinced. He noted that written decisions by Peruvian prosecutors contained in the extradition request listed Toledo’s name and alleged crimes.
“It seems like those are charging documents,” Hixson said.
Archer implored the judge to analyze the dispute through the lens of Peruvian law. He submitted declarations by two Peruvian legal experts explaining that criminal cases in Peru are split into three phases: investigation, examination and trial. Both legal experts testified that the case against Toledo was still in the investigatory phase prior to the government’s Aug. 11 charging decision.
However, the judge said he was reluctant to start delving into the complexities of another country’s criminal procedures and second-guessing the position of Peruvian prosecutors and judges. The Supreme Court of Justice of Peru previously approved the extradition request.
“The Supreme Court of Peru, when they authorized this, they seem to think Toledo has been charged,” Hixson said. “Am I really supposed to tell the supreme interpreters in Peru that you’re wrong?”
Archer replied that Hixson need not second-guess the Peruvian government’s decisions, but he should follow the plain language of the U.S.-Peru extradition treaty, which requires a person be charged with a crime before one can be extradited.
“If the Peruvian government does properly get a charging document, they’re welcome to refile for extradition,” Archer said.
Arguing against Toledo’s motion, U.S. Justice Department lawyer Rebecca Haciski urged the court to consider the views of the Peruvian and U.S. governments, both of which believe a proper charging document was filed to support the extradition request.
“Supreme Court case law says this court should give those views great weight,” Haciski said.
Less than two hours after the hearing ended, Hixson issued the ruling denying Toledo’s motion.
The next phase of the extradition battle involves whether the Peruvian government has probable cause to charge Toledo with the alleged crimes. The former president plans to argue the charges are the result of politically motivated prosecutorial misconduct. He intends to show that prosecutors “were caught on multiple recordings coaching a cooperating witness to change statements,” according to court filings.
Toledo is expected to file his probable cause challenge by Jan. 7, 2021.
A hearing on the probable cause dispute is scheduled for March 11, 2021, in San Francisco.