Exactly three years ago Alejandro Toledo He became a fugitive from justice. In February 2017, Judge Richard Concepción Carhuancho issued 18 months of preventive detention and issued an international arrest warrant against him, as part of the process for alleged bribes received from the construction company Odebrecht in which he is immersed. But the former president, by then, already had several days outside the country.
A month earlier he had traveled to the United States, via Panama, to settle a few kilometers from the city where he grew up, studied and fell in love fifty years ago: San Francisco. Precisely, in a residence in the neighboring city of Menlo Park, California, where today his wife pays $ 6,500 of monthly rent, according to the US attorney. Toledo, however, can no longer live there.
Since July 16, 2019 – almost seven months ago – the former president he is being held in the United States by extradition mandate. First, in the Santa Rita prison, in the city of Dublin, Alameda County, and then in the Maguire correctional facility, in Redwood City, San Mateo.
Now, after the end of the year parties and a series of postponements ordered by US justice, Toledo must return to court. It has two consecutive hearings scheduled for this Wednesday, February 5 and Thursday, February 6, with judges and for different topics. Both, confirmed until the close of this note, are crucial for your future.
In the first, his defense must prove that imprisonment, despite the change of jail, still affects his mental health and that this must be considered a “special” circumstance to face the process in freedom. In the second, he will seek to force the prosecution to deliver 16 pages of documentary information about his case. What are the strategies of your lawyers in both ways and what could happen in each of them?
–Fighting for a shackle–
At Wednesday’s hearing, scheduled for 12:30 p.m. (Peruvian time), Toledo will once again seek to be assigned a bond. Previously, their lawyers have proposed that he be allowed to face his process with house arrest and an electronic remote monitoring shackle. “Both radio frequency and GPS monitoring provide real-time notifications about possible escape attempts,” their lawyers said in October.
This proposal was made after the first attempt to obtain bail was rejected by Judge Thomas Hixson, who is in charge of deciding extradition, due to the high risk of escape. Following the defense’s appeal, the decision on bail passed to second instance judge Vince Chhabria.
Chhabria, in fact, was the one who caused the transfer from Toledo to Maguire. “Most people agree that being in solitary confinement is very close to torture. Why, then, shouldn’t this be a special circumstance that justifies his release? ”He asked about the isolation regime that Toledo had in Santa Rita.
Since in that prison there was no intermediate regime between solitary confinement and the status of common inmates – too dangerous, because of the criminal activity of Latino gangs in California within the prison -, Chhabria ruled on October 10 last year that Toledo was to be transferred or ordered his release. That same day, federal prosecutor Elise LaPunzina said they would seek a jail in San Mateo County to transfer the former president. And so it happened.
In Maguire Toledo he has a prison regime that keeps him away from gangs – like Our Family, La ‘Eme’ or Mara Salvatrucha, who also inhabit that prison -, but that is much more flexible in terms of its relationship with the outside and its entertainment options. In his new jail, for example, the former president can receive visits and make calls (in fact, he made more than 100 in his first 10 days there, according to the prosecution), and has access to an entertainment room.
“Toledo is entitled to three or more hours outside his cell a day, which is equal to or more recreation time than the general population of Maguire,” LaPunzina said in an official letter he sent to the Court to stop Toledo’s release, as Chhabria had arranged. In Santa Rita, the former president could not receive visitors or make calls, and he was allowed only one hour of yard a day. His cell was less than 10 m2.
Santa Rita had a death rate in prison of 13.6 per 1,000 inmates. This made it one of the prisons with the highest internal mortality rate in the United States. On the other hand, the two prisons in San Mateo – one of which is Maguire – has a ratio of only 5 deaths per 1,000 inmates. This figure is below the average for Los Angeles and San Francisco prisons, according to figures from the KTVU network.
Because of this important change, Chhabria – who had advanced that he would have to evaluate the new prison conditions – He said in November that he “was inclined” to keep Toledo confined. However, he asked for more time to decide and ordered that the probation hearing be held this Wednesday. After several postponements, both parties expect the judge to finally make a decision, which would be final.
The objective of the probation hearing is that the prosecution and defense of Toledo present all the evidence, testimonies and psychological skills necessary to determine if the stay in Maguire continues to affect – or not – the mental health of the former president, and how much. Most likely, he is also present to testify about the psychological problems caused by the confinement. Chhabria has already ordered that his medical record be handed over to the prosecution.
In a document sent to the Court of the Northern District of California today, both parties have confirmed the witnesses they will carry. The defense will present Dr. Craig Haney, to talk about the mental health impacts of Toledo, and Martin Carnoy, Stanford professor, his longtime friend and one of the guarantors of his bond. The prosecution, meanwhile, will take three Maguire employees, including the nurse, to testify about the former president’s privileges.
Toledo’s mental health issue has been the spearhead of his defense to obtain bail. Since October his lawyers concentrated there, more than the danger of escape, his strategy to get him out of prison. And the element that initially tipped the balance in its favor was the letter addressed to the judge by the psychiatrist of Santa Rita, Dave Schatz.
“I have seen a marked demoralization, along with a significant increase in their anxiety and depression […]. Mr. Toledo shows a growing psychomotor delay, which means a significant slowdown in his movements, makes much less eye contact than when I started treating him [y] repeat what he says much more often, “the letter detailed. At the September hearings, which El Comercio attended, Toledo was already shaking from the left arm and lower lip.
Although Judge Chhabria has already shown that he is not worried about continuing to postpone the decision, since he considers that the conditions in Maguire are much better, everything indicates that Toledo’s lawyers would insist on Wednesday that he set the bond as soon as possible. Prosecutor LaPunzina, on the other hand, will seek to keep him behind bars.
–Looking for signs of “duress” –
While seeking his bail, Toledo’s lawyers –that the United States government has provided for free for several months– They must also face the extradition process itself. There, prosecutor LaPunzina seeks to demonstrate that the crimes for which he is accused in Peru (money laundering, influence trafficking and collusion) exist in the US legal system, that there is probable cause to prove them and that the documents presented are true .
Thursday 6 will finally begin that slow road. At the hearing scheduled for 1:00 pm (Peruvian time), Judge Hixson must evaluate the first round of this battle: if the prosecution must deliver 16 pages of documentary information requested by the former president’s lawyers. The defense strategy to overthrow the extradition request seems to be basically heading there: questioning the documents that support it.
At the end of December, Toledo’s lawyers they asked Judge Hixson to force the defense to deliver a significant amount of information about the case. Their objective, they said in the letter sent to the Court, was to find in these documents indications “related to the coercion of the two main witnesses”: former Odebrecht superintendent Jorge Barata and Israeli businessman Josef Maiman.
“The case of Peru against Dr. Toledo rests almost entirely on these two witnesses [Barata y Maiman], and Dr. Toledo believes in good faith that the statements of both have been coerced, ”said the document signed by lawyers Steven Kalar and Graham Archer. Therefore, among the information requested are copies of the interrogations made of both by the special team of prosecutors of the Lava Jato case in Peru.
Two weeks ago, Maiman gave an advance statement to the Peruvian authorities for the Toledo trial. There, he confirmed that he received US $ 34 million in coimas for the former president of the Brazilian construction companies Odebrecht and Camargo Correa, of which he gave him US $ 21 million. “When I start receiving [los fondos], I begin to transfer them to the Costa Rican accounts that they told me, ”he said. The money would have ended up in the Ecoteva company, with which Toledo bought a house, an office and paid two mortgages.
But even so, his defense in the United States has aimed the bullets to find “coercion” in the testimonies of Maiman and Barata. For this, he has also requested copies of the collaboration agreements of both, although they are secret in Peru, unless a national judge decides otherwise, according to the criminal Carlos Caro.
Toledo’s lawyers have also requested other documents linked only indirectly to the case, such as “material related to Toledo that has been obtained by the prosecution of the Eastern District of New York” in the general investigation into the Odebrecht / Braskem case and “ any information obtained by the investigation in the District of Maryland “, where the former president had a house with which he would have carried out money laundering operations.
LaPunzina, as expected, has rejected the order and qualified it as a “fishing expedition”, expression that implies a blind search for information in Anglo-Saxon law. “The prosecution has previously delivered to Toledo the copy of the request for extradition of Peru along with its evidence […]. Toledo has no right to anything else, and his request to force [a la entrega de documentos] must be denied ”, the prosecutor argued in January.
In line with the confidentiality of collaboration agreements, in addition, LaPunzina argued that it is not legally possible to request documents from outside the United States government. “The authority of the Court does not apply to force the delivery of materials in the possession of foreign governments,” he said.
But Toledo’s defense counterattacked five days ago. His main argument was that it is a “joint investigation” between the governments of the United States and Peru against Toledo. ”Because the prosecution [estadounidense] is working together with Peru in the investigation, materials in possession of Peru must be treated as if they were “in possession, custody or control” of the United States“, said the lawyers.
Beyond what Judge Hixson decides on this request for information, this is only the beginning of a long road, at the end of which Toledo will have to pave. The only recourse you can present to stop it is a habeas corpus claiming process issues. But if the ruling indicates that you must return to be tried in Peru, the decision of the Court will be final.
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