A Miami judge will decide next week whether former Panama President Ricardo Martinelli should be extradited on surveillance and embezzlement charges.
The Panamanian government requested Martinelli’s extradition after his June arrest in Coral Gables on charges of using public funds to buy sophisticated wiretapping equipment. He is accused of illegally monitoring political opponents, journalists and business competitors during his presidency, which lasted from 2009 to 2014.
U.S. Magistrate Judge Edwin Torres heard arguments Wednesday on whether Martinelli should be allowed to stay in Florida. The defense requested a few days to translate a witness affidavit filed in Spanish, pushing Torres’ decision to Aug. 31.
The U.S. Department of State supports extradition, but Martinelli argues Panama’s request is “defective.” Panama does not have evidence of embezzlement, he claims, and surveillance crimes were not added to the extradition treaty between the countries until 2014, after the alleged wiretapping.
“The treaty language is clear,” said Martinelli’s lead attorney Marcos Jimenez at Wednesday’s hearing. “The treaty says it’s not supposed to be applied retroactively.”
Jimenez, a former U.S. attorney who is now a solo practitioner, said there is no case in which a court certified extradition when the alleged offense was committed before it was extraditable.
“This is a political hack job … There’s a reason why there’s not a case like this, because this is a clear case,” Jimenez said.
Martinelli’s lawyers also argued Panama’s request violates the former president’s due process rights by relying on “false statements under oath” from Panama’s prosecuting magistrate, Harry Diaz, about the alleged surveillance systems. Martinelli argues Diaz conflated two sets of equipment, one purchased from Israel-based MLM Protection Limited for $13.5 million and the other an $8 million “Pegasus” system from another Israeli company, NSO Group Technologies Limited.
Martinelli claims nothing links the Pegasus equipment to public funds and the MLM purchase is irrelevant to the case.
The U.S. government responded that the extradition treaty only prevents retroactivity when it comes to crimes committed before the agreement came into effect in 1905. Assistant U.S. Attorney Adam Fels of Miami argued that even if the judge finds the language ambiguous, the treaty should be liberally constructed in favor of extradition. Fels also said the retroactivity argument was based on the wrong premise.
“You don’t look at the date the crime was committed,” he said. “You look at the date of the extradition request.”
The surveillance and embezzlement charges are supported by enough evidence to establish probable cause, which is a relatively low bar in this extradition proceeding, the government argued.
For instance, under Panama law, an embezzlement charge doesn’t require proof that public funds were used, and the U.S. courts have to defer to Panama on matters of its own law, according to a filing submitted by acting U.S. Attorney Benjamin Greenberg of the Miami office.
Martinelli’s “continued focus on distinguishing the two different surveillance systems is similarly a red herring,” the government wrote. “Both surveillance systems were property of the Panamanian government, and the misuse and conversion of either system — for which there is ample support in the record — is sufficient to establish probable cause of the embezzlement offenses.”
Dozens of onlookers, some sporting Panama-themed gear, filled the courtroom Wednesday at the James Lawrence King Federal Justice Building. Martinelli sat at the defense table furiously scribbling notes to Jimenez and his other attorneys, John Byrne, Jordi Martinez-Cid and Jeremy Kahn of Leon Cosgrove in Coral Gables.
Fels was joined at the hearing by Washington-based Justice Department attorneys Christopher Smith and Rebecca Haciski.