ACTION REQUEST: FOLLOW-UP TO DEMARCHE ON JUAN

C O N F I D E N T I A L BRASILIA 000999 SIPDIS STATE FOR L JOHNSON AND L/LEI, WHA/BSC, WHA/CHRIS MCMULLEN, DEPARTMENT OF JUSTICE FOR SWARTZ AND OIA, DRUG ENFORCEMENT ADMINISTRATION FOR OGC JOHN WALLACE, DEA REGION DIRECTOR US EMBASSY LA PAZ PATRICK STANKEMP E.O. 12958: DECL: 07/23/2018 TAGS: KJUS KCRM CJAN PREL CVIS SNAR SUBJECT: ACTION REQUEST: FOLLOW-UP TO DEMARCHE ON JUAN CARLOS RAMIREZ ABADIA ("CHUPETA") REF: STATE 76939 Classified By: Deputy Chief of Mission Lisa Kubiske for reason 1.5 (d) ¶1. (C) Summary and action request: On July 21, 2008, Ambassador Sobel brought up the extradition concerns in reftel demarche to Minister of Justice Tarso Genro, objecting to Brazilian imposition of conditions on extraditions that fall outside the bilateral extradition treaty. Minister Genro immediately brought up the Juan Carlos Ramirez Abadia ("Chupeta") case and indicated that he was ready to both expel and extradite him without the assurances. Senior MOJ officials have since informed Minister Genro and us that he misspoke in making these statements because he lacks the power to extradite Abadia absent the assurances demanded by the Brazilian Supreme Court (STF). The President, has the power to expel Abadia without regards to court-imposed conditions. Contacts at the Ministry of Justice offered two possible courses of action that would allow us to retrieve Abadia in the near-term without having to provide assurances on sentencing (para 8). Post requests immediate guidance on the options (or others that Washington may suggest). End summary and action request. -------------- Justice Minister Agrees to Extradite -------------- ¶3. (C) During a July 21 meeting with Minister of Justice Tarso Genro, Ambassador Sobel raised the issue of reftel demarche. Minister Genro interrupted and confided that he and President Lula had talked about the case. Both agreed that it was in the interests of both countries that Abadia be sent to the United States. Ambassador Sobel clarified that the only preconditions be what is in the extradition treaty. Genro stated that "in this situation Abadia would be expelled and he would be turned over to the United States and there would be no problem (see also para 5)." Genro added that it was in the spirit of cooperation with the United States and because he could get a more severe penalty that Brazil was ready to extradite him. -------------- Follow-up -------------- ¶4. (C) On July 22, POL, LEGATT and DEA called on Ministry of Justice contacts to hammer out the details of how Abadia would be handed to U.S. Custody. The Chief of the Extradition, Expulsions and Deportations divisions, Roberto Rubem Ribeiro, a close contact of the Embassy, informed us that Minister Genro lacks the authority to overrule the Supreme Court's order that the United States provide assurances that Abadia will not serve more than 30 years in the United States and that, therefore, Minister Genro made that commitment without being fully aware of what he was promising and what was legally within his power to approve. (Note: Brazilian law allows for sentences of more than 30 years; what it does not allow is for an individual to actually serve more than that. Technically, he could be sentenced in the United States to more than 30 years, in which case his sentence would have to be commuted down to 30 years. End note.) ¶5. (C) Consequently, on July 23, LEGATT sought out the Ministry of Justice's advisor for international affairs, Ambassador Portella, who was at the July 21 meeting accompanying Genro, seeking to enforce compliance of Genro's commitment to the Ambassador. Portella, in confidence, told LEGATT that, while Portella agreed with LEGATT on what Genro said during the meeting, he had subsequently spoken to Minister Genro after the meeting with Ambassador Sobel and Genro admitted to Portella that he misspoke during the meeting when he indicated that Abadia could be extradited absent the assurances. Ambassador Portella then noted that the only option available to extradite Abadia without providing the assurances is to expel him under Brazilian law. Ambassador Portella recommended that we contact Genro's Legal Advisor, Rafael Thomaz Favetti, who was not present at the 21 July meeting due to scheduling conflicts. Favetti agreed to meet us in the highest confidence today in the Embassy. ¶6. (C) During our July 23 meeting with Favetti, Favetti confirmed what Ribeiro and Ambassador Portella had told the Embassy. Favetti stated that Minister Genro was incorrect when he used the term "extradite" during the meeting with Ambassador Sobel. But, Favetti indicated, it is within the power of President Lula to expel/expel someone without any regard to extradition process or any demand for assurances. Favetti noted, however, that there is opposition within the Ministry of Justice to exercise the option of expelling him, but that this was a manageable problem and indicated that he expected to be able to overcome this opposition. ¶7. (C) Both Favetti, and separately Ambassador Portella, warned us that this action could further deteriorate the already fragile relations between the executive and judiciary branches, as the Brazilian Supreme Court could accuse the Ministry of Justice and the President of making an end-run around their extradition order by expelling Abadia. If the STF protested the Ministry of Justice expulsion after the fact, it could potentially impact U.S. interests in the future. Favetti -- who as a Supreme Court body on loan to the Ministry of Justice is in a good position to assess this -- told us he thought this could be smoothed over and it should not cause long-term problems for anyone. -------------- Available Options -------------- ¶8. (C) Favetti suggested two possible courses of action that would allow us to retrieve Abadia in the near-term without having to provide assurances on sentencing. We look to Washington for guidance within the next 24 hours: -- The Ministry of Justice agrees to expel him and the U.S. agrees to simultaneously withdraw the extradition request. Under this option, once in the U.S., Abadia would face no limits on charges or sentencing. We can plan and arrange the transfer ahead of time and we would only submit the withdrawal of the extradition after we were certain that Brazil has signed the expulsion order. -- The second option is that Brazilians would give us the same extradition authorization they have always been willing to give (i.e. the ones Washington rejects) plus the expulsion order. We could then choose either one. If we chose the extradition, we would have to provide the assurances. -------------- Comment and Action Request -------------- ¶9. (C) Favetti has already begun the process of expelling Abadia. Post urgently seeks Washington guidance within the next 24 hours. We note that Favetti will be out of town starting Friday of this week and thus we may lose a key ally and opportunity if we cannot indicate our preferred option in time for him to act. SOBEL