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In a decision that could carry U.S. foreign policy implications, the 11th U.S. Circuit Court of Appeals has ruled that a foreign government can be sued in the United States for allegedly reneging on a reward offer for information leading to a criminal’s capture. The three-judge panel’s unanimous decision stems from a dispute over a $5 million reward offered by Peru for the arrest of Vladimiro Lenin Montesinos Torres, the former head of Peru’s intelligence service, who is accused in that country of arms trafficking, drug dealing, bribery and murder. Plaintiff Jose Guevara, who provided shelter and protection to Montesinos, said that his uniquely valuable knowledge led to the fugitive’s capture. But Peru never paid the $5 million. The 11th Circuit reversed a decision by U.S. District Judge Marcia G. Cooke of Miami, who threw out the suit. Guevara v. Republic of Peru, No. 05-16235. In the 1990s, Montesinos served as an adviser to then-President Alberto Fujimori and headed Peru’s National Intelligence System. Despite decades of allegations against him, Montesinos was never prosecuted. When more than 700 videotapes showing him committing a variety of misdeeds surfaced, however, Montesinos disappeared and Peru offered its reward. In June 2001, Guevara was arrested in Miami after meeting with a representative of Montesinos. Faced with either prosecution or a hefty reward, he gave up Montesinos’ location to the FBI and arranged to have him walk into the hands of Venezuelan authorities. Guevara never collected a dime despite repeated promises and declarations from the Peruvian government. In 2003, Guevara sued Peru, its ministry of the interior and two men who headed that office in Miami-Dade County Circuit Court. He alleged breach of contract, fraudulent inducement and fraudulent misrepresentation. The case was removed to Miami federal court. The defendants claimed sovereign immunity, citing the Foreign Sovereign Immunities Act (FISA). The U.S. law prevents American courts from hearing cases against international governments for their actions, except in disputes in which the government engages in commerce or trade like individuals or corporations. In October 2005, Cooke found that the so-called “commercial activity” exception protected all of the defendants. Guevara appealed in November 2005. The Peruvian government contended that the reward offer was not commercial because it was for the sovereign purpose of capturing a criminal. Guevara countered that the government did what any person or company can do-offer money for information. That constitutes commercial activity, he claimed. The 11th Circuit agreed. “All that Guevara is seeking is what Peru promised in the reward offer, which is that it would pay $5 million to anyone who furnished information of the nature and quality that enabled Peru to capture Montesinos,” the panel said. Citing a 1997 11th Circuit decision, in which a contract between the Honduran government and a contractor to assist in upgrading the country’s air fleet was deemed not exempt from FISA, the court said the Peruvian offer for the capture of Montesinos also was commercial. “The underlying activity at issue-the exchange of money for information-is ‘commercial in nature and of the type negotiable among private parties,’ ” the court said. The court said its required conclusion mirrors good public policy because similar reward offers by the U.S. government have led to the capture of an infamous American spy for the KGB, suspected terrorists involved in the Sept. 11 terror attacks and Saddam Hussein’s two sons.

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