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DE RUEHBR #0999/01 2052132
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O 232132Z JUL 08
FM AMEMBASSY BRASILIA
TO RUEHC/SECSTATE WASHDC IMMEDIATE 2161
RUEAWJA/DEPT OF JUSTICE WASHDC IMMEDIATE
INFO RHMCSUU/FBI WASHINGTON DC IMMEDIATE
RUEAWJA/DEPT OF JUSTICE WASHDC IMMEDIATE
RUEABND/DEA HQS WASHDC IMMEDIATE
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