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Alfonso Portillo v. Preet Bharara

May 10, 2012

ALFONSO PORTILLO, PETITIONER,
v.
PREET BHARARA, U.S. ATTORNEY FOR THE SOUTHERN DISTRICT OF NEW YORK, RESPONDENT.



The opinion of the court was delivered by: Robert P. Patterson, Jr., U.S.D.J.,

OPINION & ORDER

On May 20, 2011, Petitioner Alfonso Portillo, the former President of Guatemala ("Portillo" or "Petitioner"), filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241. Therein, Portillo asserts that he is in the constructive custody of the United States and that the United States Attorney for the Southern District of New York, Preet Bharara ("Bharara" or "Respondent") is detaining him without cause in Guatemala. Petitioner requests that this Court:

(1) order Bharara to show cause as to why he is continuing to detain Petitioner in his constructive custody by means of an arrest warrant issued from this district which has been made part of an extradition request by the United States to Guatemala (Pet. for Writ of Habeas Corpus under 28 U.S.C. § 2241 ("Pet.") at 1); (2) order Bharara to inform the Guatemalan government of alleged relevant misrepresentations by Bharara in the pending extradition request (id. at 10); and (3) allow Petitioner to conduct limited jurisdictional discovery and hold a hearing on these issues (id.). On July 26, 2011, the Government filed a memorandum of law in response to Petitioner's motion, and on August 23, 2011, Petitioner filed a memorandum of law in reply. On September 14, 2011, the Court held oral argument on this matter.

This case requires the Court to decide whether a non-citizen, detained in a foreign country, by a foreign government, pursuant to an extradition request by the United States, is entitled to habeas corpus relief. For the following reasons, Portillo's petition is denied for lack of jurisdiction.

I. BACKGROUND

Portillo is a Guatemalan citizen, born in Guatemala on September 24, 1951. (Diplomatic Note from Stephen G. McFarland, U.S. Ambassador to Guatemala, Embassy of the United States of America, to the Ministry of Foreign Affairs of the Republic of Guatemala dated Feb. 25, 2010 ("Diplomatic Note")*fn1 at 4.) He served as the President of Guatemala from January 14, 2000 through January 14, 2004. (Id. at 2.) During that time, he exercised direct oversight over Guatemala's two national banks, one of which is Credito Hipotecario Nacional ("CHN"). (Id.) On February 2, 2000, Portillo appointed a new President to CHN. (Id.)

Between February 18, 2004 and October 7, 2008, Portillo was a resident of Mexico. (Expert Legal Opinion of M. Cherif Bassiouni dated July 27, 2010 relating to the Extradition Request of the United States to the Republic of Guatemala for the Extradition of Former President Alfonso Portillo ("Bassiouni Op.")*fn2 at 1.) On October 7, 2008, Portillo was extradited from Mexico to Guatemala pursuant to a criminal charge of peculado (embezzlement) pending in Guatemala. (Id.)

A. Extradition Request by the United States

On December 1, 2009, a Grand Jury sitting in the Southern District of New York indicted Portillo on a sealed one-count indictment ("Indictment"), charging that between the dates of January 14, 2000 and January 14, 2004, Portillo willfully and knowingly conspired with others to embezzle millions of dollars of public funds and then laundered those funds through banks in the United States and Europe in violation of 18 U.S.C. § 1956(a)(2)(B)(i). (Indict. ¶¶ 16-17, No. 09 Cr. 1142, ECF No. 2.) Specifically, the Indictment charges Portillo with embezzling money from the government of Guatemala, and making fraudulent transactions through CHN and other Guatemalan banks with the help of the President of CHN and other co-conspirators. The co-conspirators allegedly laundered these funds through various international bank accounts, including accounts in the United States. (Id. ¶¶ 3-4.)

On January 25, 2010, Magistrate Judge Ronald L. Ellis ordered the Indictment unsealed. (See Order dated Jan. 25, 2010, No. 09 Cr. 1142, ECF No. 3.) Concurrently, the U.S. Government requested that the Guatemalan authorities arrest Petitioner so that he could be extradited to the Southern District of New York. (See Letter from Preet Bharara, United States Attorney, to the Hon. Robert P. Patterson dated Jan. 25, 2010 ("Bharara Letter")*fn3 .) On January 26, 2010, Portillo was arrested in Guatemala by Guatemalan authorities on a provisional extradition arrest warrant. (Pet. at 3.)

On February 25, 2010, the United States Ambassador to Guatemala, Stephen G. McFarland ("McFarland" or "U.S. Ambassador") submitted a formal request for Portillo's extradition to the Guatemalan government. (Diplomatic Note at 1, 5; see Pet. at 3-4.) The extradition request specified that Portillo had been charged with one count of conspiracy to commit money laundering in violation of 18 U.S.C. § 1956, and represented that money laundering was an extraditable offense pursuant to the applicable treaties. (Diplomatic Note at 1, 4.)

Portillo challenged his extradition in the Guatemalan courts. On March 17, 2010, the Guatemalan trial court entered an order allowing the Guatemalan government to extradite Portillo to the United States. (Bassiouni Op. at 2; Gov't's Mem. in Resp. to Pet'r's Mot. for Miscellaneous Relief Under 28 U.S.C. § 2241 ("Gov't's Mem.") at 2.) The Guatemalan appellate court and Supreme Court affirmed the validity of the extradition, (Gov't's Mem. at 2), and on August 26, 2011, the Guatemalan Constitutionality Court upheld the Supreme Court's determination that extradition was proper (Op. of the Constitutionality Ct., Republic of Guatemala, Central America dated Aug. 26, 2011, Record No. 1566-2011*fn4 at 24; Tr. of Sept. 14, 2011 Oral Arg. ("Tr.") at 46). On November 15, 2011, Guatemalan President Alvaro Colom approved Portillo's extradition. See Guatemala to extradite ex-leader Alfonso Portillo to US, BBC News (Nov. 15, 2011), http://www.bbc.co.uk/ news/world-latin-america-15750420; see also Press Release, U.S. Extradition Request for Former President Alfonso Portillo (Taken Question), U.S. Dept. of State (Nov. 17, 2011), http://www.state.gov/r/pa/prs/ps/2011/11/177323.htm. Portillo has yet to be extradited from Guatemala.

B. Criminal Charges in Guatemala

On May 9, 2011, a split three-judge panel acquitted Portillo in his domestic embezzlement trial in the Guatemalan court. (Pet. at 4; Gov't's Mem. at 3 n.1.) The Guatemalan government immediately filed an appeal of the panel's decision. (Gov't's Mem. at 3 n.1.) Petitioner claims that, despite his acquittal, he is currently being detained "as a prisoner at Base Militar Mariscal Zavala, Zona 17, Guatemala City, Guatemala,"*fn5 (Pet. at 2), and that he "remains in Respondent's constructive custody not because of the Guatemalan government's pending appeal of his acquittal of the domestic embezzlement charges, but solely on the basis of the U.S. extradition request issued on February 25, 2010." (Pet. at 4.) For purposes of this opinion, the Court will accept Petitioner's position as accurate.

II. LEGAL STANDARD

Title 28 U.S.C. ยง 2241 provides, in relevant part, that [t]he writ of habeas corpus shall not extend to a prisoner unless -- (1) He is in custody under or by color of the authority of the United States or is committed for trial before some court thereof; or . . . (3) He is in custody in ...


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