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No extradition stay for Peru ex-president during appeal

Wednesday's ruling means Toledo will be extradited to Peru — rendering his habeas appeal moot.

SAN FRANCISCO (CN) — A Ninth Circuit panel on Wednesday denied former Peru President Alejandro Toledo Manrique's bid to duck extradition from the U.S. to face bribery charges in his home country.

Toledo, who led Peru’s government from 2001 to 2006, stands accused of helping Brazilian construction company Odebrecht win a lucrative contract for a major highway project in exchange for $35 million in bribes.

In September 2021, U.S. Magistrate Judge Thomas Hixson greenlit Toledo’s extradition after more than two years, saying the former Peruvian president must return to his home country to face trial. If convicted, Toledo faces up to 30 years in prison on charges of bribery and money laundering.

Hixson found inconsistencies in two key witnesses’ stories about Toledo don’t outweigh evidence that bribe money flowed to accounts controlled by Toledo’s formerly close friend and mother-in-law.

Josef Maiman, an Israeli businessman and former close friend of Toledo, testified the former president directed him to launder $35 million in bribe money. Another witness, former Odebrecht executive Jorge Barata, said he personally delivered cash to Toledo and that when his company fell behind on payments, Toledo pressured him to keep the money flowing.

Peruvian prosecutors mapped out a complicated web of financial transactions in which more than $31 million was transferred from Odebrecht to accounts controlled by Maiman. More than $17 million was later sent to a company allegedly controlled by Toledo’s mother-in-law, Eva Fernenbug, who was named CEO of the company Ecoteva. Prosecutors say Fernenbug used those funds to buy two properties — a $3.45 million house and $842,000 office — as investments on Toledo’s behalf.

Hixson noted the case against Toledo is far from “airtight," and concluded that a trial, rather than an extradition hearing, is the proper venue to weigh that evidence and the credibility of the witnesses.

Toledo, who turned 75 in March, has been detained in the San Francisco Bay Area — first in a jail cell, then on house arrest due to the Covid-19 pandemic — since his July 2019 arrest by U.S. marshals at the request of the Peruvian government.

In the opinion for the Ninth Circuit panel, U.S. Circuit Judge Michelle Friedland wrote Toledo is unlikely to succeed with any of his three arguments in challenging the extradition.

“Toledo moves to stay his extradition pending resolution of this habeas appeal. Because he has not shown a sufficient likelihood of success on his habeas petition, we deny his stay request,” Friedland, a Barack Obama appointee, wrote for the panel. 

Friedland acknowledged Toledo’s appeal will be moot once he's extradited, and his advanced age means he runs the risk of contracting a fatal illness in Peru. But she wrote "the public interest will be served by the United States complying with a valid extradition application because proper compliance promotes relations between the two countries." 

Toledo argued Peru's treaty with the U.S. mandates "a copy of the charging document” in addition to an arrest warrant, but the judges said nothing shows that the submitted acusación fiscal from Peru does not qualify as a charging document. That also ruled out Toledo’s argument that Peru did not submit a “copy of the charging document” because only an orden de enjuiciamiento qualifies, since the acusación fiscal contains over 1,000 pages identifying the crimes Toledo is accused of and supporting evidence.

Finally, Friedland said Toledo cannot overcome the existence of probable cause. The extradition court found that the testimonies of Barata and Maiman provided probable cause for the money laundering and collusion charges. 

“Toledo, moreover, admitted that $21 million in bribe money was transferred into accounts under his former chief-of- security’s control, $17.5 million ended up in his mother-in- law’s company, and $500,000 was deposited in a bank account in his name or used to purchase real estate titled to him," Friedland wrote for the panel. "As to any inconsistencies that Toledo pointed out, we have rejected the argument that ‘inconsistencies preclude a finding of probable cause’ because ‘weighing the evidence is not a function we perform when we review the magistrate’s probable cause determination.'"

U.S. Circuit Judge Ryan Nelson, a Donald Trump appointee, and U.S. District Judge Kathleen Cardone, a George W. Bush appointee sitting by designation from the Western District of Texas, joined Friedland's opinion. 

Toledo’s public defender and a spokesperson for the U.S. State Department, which is tasked with carrying out Peru’s extradition request, did not respond to requests for comment on the ruling by press time.

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Categories / Appeals, Criminal, International

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