(CN) – In a case that “read[s] like the latest spy thriller,” the 11th Circuit ruled that a Venezuelan man cannot collect a $5 million reward for his role in the capture of Vladimiro Lenin Montesinos Torres, Peru’s murderous former spy chief.
Montesinos was the head of Peru’s National Intelligence Agency in the 1990s but fled the county after videotape evidence implicated him in crimes ranging from arms trafficking, drug dealing, money laundering, extortion, bribery and murder. Peru offered a $5 million reward for Montesinos’ capture.
Jose Guevara, a former officer in the Venezuelan intelligence agency, harbored the fugitive in Caracas, helping Montesinos recover from plastic surgery and acting as his intermediary with the Pacific Industrial Bank in Miami, where Montesinos had a bank account.
When the bank officer assigned to the account, Luis Percovich, refused to transfer Montesinos’ money to another bank, the former spy chief sent Guevara to the states to threaten Percovich, who called the FBI.
Agents arrested Guevara in Miami and told him that he would not be charged if he gave up Montesinos. Guevara agreed, and the fugitive was captured in Venezuela a short time later.
After his release, Guevara attempted to claim the $5 million reward, but Peru refused to pay.
Guevara sued the country in federal court and Peru moved to dismiss the case, arguing that the Foreign Sovereign Immunities Act (FSIA) provided immunity.
The district court ruled for Peru, but the 11th Circuit remanded, finding that Peru’s reward offer fell within the FSIA’s commercial activity exception.
The circuit did not consider whether Peru had immunity under the Act, however.
Peru argued on remand that the district court should dismiss the case because it had not waived its sovereign immunity, but the court refused, concluding that the 11th Circuit had already “decided the sovereign immunity issue adversely to Peru.”
The Atlanta-based appellate panel disagreed, finding that the lower court had ignored the issue of immunity and assumed “that the offer of a reward constituted a commercial activity.”
“Guevara I . . . resolved the issue Guevara had raised – whether Peru’s offer of a reward was a commercial activity – and resolved it against Peru. In doing so, the court left open, albeit implicitly, the question of whether the district court had subject matter jurisdiction to entertain Guevara’s case,” wrote Judge Gerald Tjoflat.
“We therefore conclude that those issues – with the exception of whether the offer of a reward constituted ‘a commercial activity’ – remain for decision here.”
In making that decision, the panel agreed with Peru that the district court lacked subject matter jurisdiction, finding that none of Guevara’s arguments qualified as exceptions to immunity under the FSIA.
The panel reversed the lower court’s judgment and remanded the case for dismissal.