SAN FRANCISCO (CN) – A federal judge in San Francisco said Wednesday he is inclined to keep an ex-Peruvian president in jail pending resolution of his extradition case after the man was removed from solitary confinement, but may want to hear more testimony on the issue.
U.S. District Judge Vince Chhabria ordered federal prosecutors last month to release former Peru President Alejandro Toledo Manrique from jail unless they could find a way to get him out of solitary confinement. A jail psychiatrist stated in a declaration that solitary confinement was causing the 73-year-old's mental health to deteriorate.
Wanted in Peru for allegedly taking $20 million in bribes from a Brazilian construction company, Toledo claims the charges are false, politically motivated and based on coerced witness statements. Toledo led Peru's government from 2001 to 2006.
Federal prosecutors say Toledo should remain in jail because he presents a flight risk.
On Oct. 11, Toledo was moved from a solitary cell in Alameda County's Santa Rita Jail to the Maguire Jail in San Mateo County, where he gets more time out of his cell and has limited interactions with one other inmate, according to court filings.
Despite the change, Toledo's defense lawyer argues the new conditions are "strikingly similar" to solitary confinement.
"Dr. Toledo spends approximately 23 hours a day in a cell smaller than the average parking space," Toledo's public defender, Graham Archer, wrote in a court brief last month.
At a hearing Wednesday, Chhabria refused to consider Archer's second-hand account of his client's time at Maguire Jail.
Chhabria said "the only competent evidence" he has to assess the jail conditions suggests that Toledo is no longer in solitary confinement.
In a declaration filed Oct. 21, a sheriff's deputy at Maguire Jail stated that Toledo gets three to four hours outside his cell each day, access to outdoor space and an indoor space with a couch and television. According to the deputy, Toledo gets a similar amount of recreation time as inmates in the general population, and Toledo has made more than 100 phone calls since arriving at Maguire Jail.
Archer strongly disagreed, noting that his client only gets to interact with one other inmate, "a convicted rapist," once or twice a week. More than 100 attempts to make phone calls does not mean Toledo had more than 100 phone conversations, Archer added. Further, the public defender insisted, the restrictive conditions continue to have a harmful effect on his client's physical and mental well-being.
"He's completely lost his appetite," Archer said. "He has numbness and dryness of the mouth. He can't sleep."
Archer said he would be "extremely surprised" if any expert thought Toledo's current situation is practically different from solitary confinement.
The public defender asked to put Toledo on the stand to testify about the conditions at Maguire Jail. If Toledo takes the stand, federal prosecutor Elise LaPunzina said the government should be allowed to present its own witnesses to testify.
"I'm not sure an evidentiary hearing will necessarily change anything," Chhabria said. "Of course the government would be entitled to call its own witnesses."
Archer also asked to present evidence on Toledo's health, which he said continues to decline due to past and present confinement conditions. Chhabria agreed with federal prosecutors that if the issue of Toledo's health is raised, the government should be permitted to have its own medical expert examine Toledo.
Additionally, the government has asked Chhabria to consider sealed documents that allegedly show Toledo's wife, Eliane Karp-Toledo, has $1 million in assets in various bank accounts. That evidence was submitted to U.S. Magistrate Judge Thomas Hixson, who is considering the government's motion to reconsider his decision to appoint a free federal public defender to represent Toledo.
Chhabria said he will need more time to consider whether an evidentiary hearing on Toledo's confinement conditions is necessary.
The judge said he would stay his prior order releasing Toledo until he makes a decision.
"At a minimum, my order is stayed pending further consideration," Chhabria said.
Toledo was arrested on July 16 by U.S. marshals after the Peruvian government requested his extradition. Chhabria was assigned the case after an appeal was filed challenging Magistrate Judge Hixson's Sept. 12 decision to keep Toledo in jail despite concerns about solitary confinement.
Eight people from three states posted $1 million bond to help secure Toledo's release. The government now contends that bond package was inadequate, given new evidence that allegedly shows Toledo's wife has $1 million in assets.
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