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Article United States: Federal Appellate Court Denies Stay of Extradition of Former Peruvian President Charged with Money Laundering Crimes

On April 5, 2023, the United States Court of Appeals for the Ninth Circuit issued an order denying a motion to stay the extradition of former Peruvian President Alejandro Toledo Manrique (Toledo) pending appellate review of the denial of Toledo’s petition for habeas corpus. (Manrique v. Kolc, No. 22-15705 (9th Cir. 2023) (Decision as amended Apr. 18, 2023).)

Background

Toledo was charged in Peru with money laundering and collusion for allegedly accepting millions of dollars in bribes during his presidency. (Decision at 6.) At the time he was charged, Toledo was a lawful permanent resident of the United States. The United States has an active extradition treaty with Peru. In 2018, the Peruvian government requested that the United States extradite Toledo to Peru. In accordance with U.S. extradition policy, Toledo was arrested, placed in custody and detained, and eventually released on bail. The extradition was eventually certified to the State Department by a federal magistrate judge in the Northern District of California. The extradition procedure in the United States requires the secretary of state to make the final decision on extradition, per Santos v. Thomas, 830 F.3d 987, 993 (9th Cir. 2016) (en banc).

Before the extradition review by the State Department, Toledo filed a petition for a writ of habeas corpus, the only available challenge to an extradition order (Vo v. Benov, 447 F.3d 1235, 1240 (9th Cir. 2006)), on the grounds that the extradition treaty did not apply to him and that the magistrate judge had erred with respect to the finding of probable cause. The habeas petition was denied at the district court level and then appealed to the appellate court. (Decision at 6–7.) During the briefing stage of that appeal, the State Department approved extradition and asked the extradition court to revoke Toledo’s bail and remand him into federal custody. Toledo sought a stay of the extradition at the district court, which the court denied, though it granted a temporary stay of the extradition so that Toledo could seek a stay before the Ninth Circuit. (Decision at 7.)

Requirements for a Stay Pending Appeal of a Habeas Corpus Petition

When ruling on an application for a stay, the court relies on a four-factor test from Hilton v. Braunskill, 481 U.S. 770, 776 (1987):

(1) whether the stay applicant has made a strong showing that he is likely to succeed on the merits; (2) whether the applicant will be irreparably injured absent a stay; (3) whether issuance of the stay will substantially injure the other parties interested in the proceeding; and (4) where the public interest lies.


These four factors are weighed with guidance from Nken v. Holder, 556 U.S. 418, 433 (2009), which explains that a stay is issued at the court’s discretion on the basis of the circumstances of each case.

Even when the degree of irreparable harm is high, the movant must show “serious legal questions” (i.e., more than a “merely plausible claim”) as to the merits of the underlying proceeding. (Decision at 8–9.)

In a habeas petition challenging extradition (the underlying proceeding in this matter), a court reviews only whether the magistrate had jurisdiction, whether the offense charged was in the treaty, and whether there are reasonable grounds to believe the accused is guilty as charged. (Decision at 9.)

Likelihood of Success on the Merits

Most of the court’s analysis focused on the second factor — likelihood of success on the merits of the appeal of the habeas petition challenging extradition.

Toledo argued that he was not charged with an offense under the treaty because the treaty requires formal charges, the charging document was insufficient, and no probable cause existed. (Decision at 9.)

Under the treaty, those who are charged by the requesting state with an extraditable offense are subject to extradition. (Extradition Treaty art. I.) During criminal proceedings in Peru, a prosecutor decides whether to issue an Acusación Fiscal, “a document produced at the end of an investigation that lays out the crimes allegedly committed and supporting evidence.” (Decision at 6.) Issuance of an Acusación Fiscal triggers the end of an investigatory phase and the beginning of an examining phase in which a judge holds a hearing and determines whether formal charges are warranted. (Decision at 9–10.) In this instance, the Acusación Fiscal had been issued against Toldeo, but the matter had not proceeded further. Toledo argued that the Acusación Fiscal is not considered a “charge” under the treaty because it is not a formal charge. The court disagreed; in addition to the ordinary meaning of the word “charge,” the court also looked at the report to the treaty (S. Exec. Rep. 107-12), which explained that “charged” also applied to those sought for prosecution. (Decision at 12–13.)

The court similarly addressed Toledo’s claim that the charging document was insufficient by relying on the same executive report. (Decision at 13–14.) With respect to Toledo’s challenge to probable cause, the court determined that there was enough competent evidence to support the conclusion that there is probable cause to believe Toldeo is guilty of the charges for money laundering and collusion. (Decision at 14–15.)

Accordingly, the court determined that Toledo had not shown a likelihood of success on his argument that he was not charged with an offense under the treaty.

Additional Factors

With respect to the first factor — irreparable injury — the court found Toledo had clearly demonstrated such injury should the stay be denied. There is no extraterritorial jurisdiction in habeas matters, so without a stay the appeal would be moot (Artukovic v. Rison, 784 F.2d 1354, 1356 (9th Cir. 1986)), and Toledo’s life would be at risk due to prison conditions in Peru and his own health issue. (Decision at 8.)

With respect to the third and fourth factors — substantial injury to other parties and the public interest — the court discussed that these factors are merged when the government is the opposing party, as it is in the underlying habeas petition. The public interest is served when the U.S. complies with a valid extradition request because it “promotes relations between the two countries, and enhances efforts to establish an international rule of law and order.” (Decision at 15–16, quoting Arkutovic at 1356.)

Conclusion

The court declined to issue a stay. While Toldeo had demonstrated irreparable harm, he failed to demonstrate likelihood of success on the merits of the habeas corpus petition or that a stay would serve the public interest.

After the April 5 order, Toledo moved for reconsideration of the denial and for a hearing en banc. On April 18, the appellate court amended its April 5 order to explain that Toledo’s requests for reconsideration and for an en banc hearing had both been denied. (Decision at 5.)

Toledo has since been extradited to Peru. As a result, any ongoing appeals are now considered moot and habeas corpus can no longer be granted by a United States court. (Order in 22-15705).

Louis Myers, Law Library of Congress
April 28, 2023

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Chicago citation style:

Myers, Louis. United States: Federal Appellate Court Denies Stay of Extradition of Former Peruvian President Charged with Money Laundering Crimes. 2023. Web Page. https://www.loc.gov/item/global-legal-monitor/2023-04-28/united-states-federal-appellate-court-denies-stay-of-extradition-of-former-peruvian-president-charged-with-money-laundering-crimes/.

APA citation style:

Myers, L. (2023) United States: Federal Appellate Court Denies Stay of Extradition of Former Peruvian President Charged with Money Laundering Crimes. [Web Page] Retrieved from the Library of Congress, https://www.loc.gov/item/global-legal-monitor/2023-04-28/united-states-federal-appellate-court-denies-stay-of-extradition-of-former-peruvian-president-charged-with-money-laundering-crimes/.

MLA citation style:

Myers, Louis. United States: Federal Appellate Court Denies Stay of Extradition of Former Peruvian President Charged with Money Laundering Crimes. 2023. Web Page. Retrieved from the Library of Congress, <www.loc.gov/item/global-legal-monitor/2023-04-28/united-states-federal-appellate-court-denies-stay-of-extradition-of-former-peruvian-president-charged-with-money-laundering-crimes/>.