{"id":71,"date":"2008-12-19T17:22:24","date_gmt":"2008-12-19T22:22:24","guid":{"rendered":"http:\/\/diplomaticlaw.com\/blog\/?p=71"},"modified":"2008-12-20T10:41:04","modified_gmt":"2008-12-20T15:41:04","slug":"us-district-court-buying-information-on-a-fugitive-spy-chief-is-not-a-sovereign-act-entitled-to-immunity","status":"publish","type":"post","link":"https:\/\/diplomaticlaw.com\/blog\/?p=71","title":{"rendered":"U.S District Court: Buying information on a Fugitive Spy Chief is Not a Sovereign Act Entitled to Immunity"},"content":{"rendered":"
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By Haggai Carmon<\/span><\/p>\n

Turning in a fugitive for a promised cash reward is\u00a0commercial activity\u00a0that is excluded as a defense of sovereign immunity, according to the ruling of the United States Court of Appeals for the 11th Circuit.\u00a0 The court indicated that since Peruvian officials ”ventured into the marketplace to buy information” they engaged in commercial not sovereign activity. The appeals court affirmed the earlier finding of federal District Court in Florida.\u00a0Upon remand, a\u00a0U.S. District Judge Marcia Cooke ordered on December 15, 2008 the Peruvian government to pay Jose Guevara $8.2 million for turning in Vladimiro Montesinos in 2001.\u00a0<\/span>The District Court\u2019s summary judgment that the government of Peru owed Guevara the reward money remained intact, and Peru\u2019s counterclaims against the plaintiff were dismissed.<\/span><\/p>\n

Vladimiro Montesinos was a fearful intelligence chief of Peruvian President Alberto Fujimori. Montesinos was notorious for his violent propensities and the hard-line tactics he used against any opposition to president Fujimori. Following Fujimori’s resignation, Montesinos faced criminal charges for ordering death squads to murder opposition members, drug trafficking, money laundering and arms dealing. He escaped Peru and in 2001, the interim Peruvian president Valentin Corazao, promised a $5 million reward for information leading for the arrest of Montesinos.<\/span><\/p>\n

Jose Guevara was an aide to Montesinos and went on his behalf to a Florida bank in 2001 to withdraw $700,000 in cash and a $3 million wire transfer. FBI agents arrested him. Under an agreement with the US government, after Guevara disclosed information regarding the location of Montesinos, he was released, the criminal charges against him were dropped and he was cleared to claim the $5 million reward. Although Montesinos was arrested <\/span>in June 2001, in Caracas, Venezuela and extradited to Peru,<\/span><\/span> the reward Guevara claimed, was refused. Guevara sued Peru in the federal court in Florida. The Peruvian government moved to dismiss on grounds of sovereign immunity. When the claim of immunity was denied and the case remanded to the federal district court, a U.S Judge ordered the Peruvian government pay Guevara the $5 million reward, plus $3.2 million in interest. The court also <\/span>rejected Peru\u2019s request that the Court reconsider its decision finding that Guevara had proven his entitlement to collect the reward for Montesinos\u2019 capture. <\/span><\/p>\n

A decade ago, an Israeli company sued the U.S government and U.S Custom Service in an Israeli Court. They alleged that U.S Customs incorporated two dummy corporations in the U.S who\u00a0placed a bogus order with the Israeli company to purchase\u00a0fighter jets navigation parts. The Israeli company believed it was doing a bona fide commercial transaction and shipped the parts to New York, where Customs agents seized them as stolen and contraband. The Israeli company complained in a Tel Aviv District Court that the U.S used its sovereign power to avoid payment for the parts. The Tel Aviv District Court disagreed. The Court identified the law enforcement purpose behind the operation and dismissed the Complaint. On appeal to the Israeli Supreme Court, the Israeli company attacked the finding of the District Court, but Chief Justice Barak agreed with the U.S that it was performing a police action and the appeal was withdrawn and denied. I represented the United States government in both courts.<\/span><\/p>\n

Back to Guevara case in the U.S; it is unclear whether the Peruvian government claimed immunity because the promise of reward was part of a law enforcement effort to bring a fugitive to justice. However, since the 11th<\/sup> Circuit has already defined the promise of a reward as \u201ccommercial\u201d it is unclear whether Peru will choose to appeal the judgment to the same appeals court. Nonetheless, unless Peru pays the judgment voluntarily, Jose Guevara might face significant difficulties in collecting the judgment. Under <\/span>Article 1610 (a)(1) of <\/span>the Foreign Sovereign Immunity Act<\/span> the property in the United States of a foreign state used for a commercial activity in the United States, is not immune from attachment if the property is or was used \u201cfor the commercial activity upon which the claim is based.\u201d<\/em> Since the subject matter of the dispute with Peru was not over any assets located in the U.S. plaintiff could end up with a judgment he cannot enforce in the U.S and would have to seek Peruvian assets elsewhere.<\/span><\/span><\/p>\n

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To my knowledge, that particular limitation on attachment is unique to the United States. That leaves many American plaintiffs against foreign States in lawsuits for many causes of action, such as for\u00a0tort damages or back rent without the possibility of attaching the foreign State\u2019s assets located in the U.S. even if they won a judgement.\u00a0That very problem was faced by a New York\u00a0real estate company\u00a0that won a substantial judgment against Congo (formerly Zaire) for failing to pay office rent, since there was no U.S based \u201cproperty used for the commercial activity upon which the claim is based.\u201d <\/em>I was retained by the\u00a0real estate company\u00a0and discovered Congo\u2019s assets in Israel and had a court attach them. Congo is now appealing the attachment in Israel\u2019s Supreme Court (after substantially losing its claim of immunity in all lower courts.)<\/span><\/span><\/p>\n

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By Haggai Carmon Turning in a fugitive for a promised cash reward is\u00a0commercial activity\u00a0that is excluded as a defense of sovereign immunity, according to the ruling of the United States Court of Appeals for the 11th Circuit.\u00a0 The court indicated that since Peruvian officials ”ventured into the marketplace to buy information” they engaged in commercial […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[1],"tags":[],"class_list":["post-71","post","type-post","status-publish","format-standard","hentry","category-uncategorized"],"_links":{"self":[{"href":"https:\/\/diplomaticlaw.com\/blog\/index.php?rest_route=\/wp\/v2\/posts\/71","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/diplomaticlaw.com\/blog\/index.php?rest_route=\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/diplomaticlaw.com\/blog\/index.php?rest_route=\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/diplomaticlaw.com\/blog\/index.php?rest_route=\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/diplomaticlaw.com\/blog\/index.php?rest_route=%2Fwp%2Fv2%2Fcomments&post=71"}],"version-history":[{"count":5,"href":"https:\/\/diplomaticlaw.com\/blog\/index.php?rest_route=\/wp\/v2\/posts\/71\/revisions"}],"predecessor-version":[{"id":75,"href":"https:\/\/diplomaticlaw.com\/blog\/index.php?rest_route=\/wp\/v2\/posts\/71\/revisions\/75"}],"wp:attachment":[{"href":"https:\/\/diplomaticlaw.com\/blog\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=71"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/diplomaticlaw.com\/blog\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=71"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/diplomaticlaw.com\/blog\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=71"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}