By Nick Divito, Courthouse News Service
30 October 2013
New York, NY – An Ecuadorean judge whose testimony threatens a $19 billion judgment against Chevron must not be credited because he was paid off, the oil giant's opponents told a federal judge Wednesday.
Alberto Guerra is a star witness for Chevron in its bid to delegitimize the judgment ordered against it by a Lago Agrio court in 2011. That decision, signed by Judge Nicolas Zambrano, leaves Chevron on the hook for oil pollution that has devastated a rainforest community in Ecuador.
Though Chevron never actually drilled in Ecuador, it inherited the lawsuit with its 2001 acquisition of Texaco.
In addition to shifting blame for the disaster to the state-owned Petroecuador, Chevron has said Texaco's 1995 settlement with Ecuador absolved it of any liability.
It says the Lago Agrio court only found against it because Steven Donziger and other American attorneys for the Ecuadoreans took advantage of the Amazonian nation's corrupt judicial system by fudging scientific data and paying bribes.
These claims have taken shape in Chevron's federal RICO suit against Donziger and others before U.S. District Judge Lewis Kaplan in Manhattan.
Guerra, who was the first of many judges in Lago Agrio to hear the environmental action brought by residents of the Amazonian village, testified last week that Zambrano essentially rubber-stamped a ruling written by the villagers' attorneys and edited by Guerra in exchange for payment.
Guerra also testified that he was paid $1,000 a month by Zambrano to ghostwrite orders for him, including the recusal order that put Zambrano back on the bench. Taking and giving bribes was common for Guerra both as a practicing attorney and a judge, he said.
Attorneys for Donziger and the other defendants have leapt upon Zambrano's admitted lapses in judicial ethics to have his testimony thrown out.
Chevron has maintained that it did not pay for Guerra's testimony, but that it is "compensating Guerra for the expense he continues to incur in order to testify – the expense of a forced relocation from his homeland where he and his family are no longer safe."
Guerra has put that figure at $48,000, covering Chevron's access to evidence from his personal computer, cellphones, phone records, bank records and credit card statements.
In his written statement, the former judge said that he and his family feared for their lives when they left Ecuador for the United States in January 2013, and that the Republic of Ecuador has retaliated against him with a "fabricated criminal complaint" for the crime of "incitement of separatism" for his role in the trial.
The defense has done little to assuage the concerns of Donziger and his cohorts.
"Even if Guerra were an upstanding citizen, his testimony would be so tainted by Chevron's payments and benefits that it would need to be thrown out," they wrote in a motion to strike. "For two days last week, the federal courthouse was blighted as Chevron used it as a stage for this man's objectively corrupt testimony, in which he admitted to offering and accepting between 20 and 40 bribes throughout his career as a lawyer and judge – once accepting as little as $200 to 'fix' a case. Now, Guerra wants this court to believe that hundreds of thousands of dollars Chevron has paid or promised to pay him are something other than yet another bribe. The Court should not allow this farcical witness to further taint these proceedings."
Chevron has paid Guerra a "salary" of $10,000 per month – "20 more times than he was earning in Ecuador," the representatives said.
Guerra also has Chevron to thank for a monthly $2,000 "housing allowance," a car, and insurance coverage for that car as well as the health of the former judge and his family, according to the motion. Chevron also allegedly paid Guerra $12,000 to buy "household items upon his move to the U.S," and it covered his moving expenses, which included five airline tickets and a temporary hotel upon his arrival.
Chevron has paid Guerra $50,000 for "evidence," and it has covered his legal fees, including those handling immigration issues for his family members, the motion states.
"Guerra's relocation on Chevron's dime also reunited him with his daughter and a second son, who live in the U.S. and who Guerra had not seen in several years," representatives for Donziger and the others wrote.
They say the arrangement violates federal laws and ethical rules, including the federal Anti-Gratuity statute that prohibits payments or "anything of value" to witnesses "for or because of" their testimony.
Chevron and its lawyers at Gibson Dunn & Crutcher also allegedly gave Guerra $18,000 for a laptop that it also replaced, some USB drives, and day planners; $20,000 "for a few discs, a couple of mobile phones, and some paper records; and $10,000 for later stumbling on a single document."
"To suggest that such thinly-veiled inducement of favorable testimony is magically rendered harmless by a clause in the Chevron/Guerra contract stating that '[n]o payment is contingent on the content of Guerra's statements or testimony' makes a mockery of our justice system," the motion to strike states.
Chevron has chalked its payments to Guerra as necessary for him to avoid persecution in Ecuador, but Donziger's team has little patience for that line.
"There is no basis upon which to credit Guerra's claimed fear that he and his family would be in any sort of physical danger in Ecuador," they said.
"Generalized Ecuadorian crime statistics cannot possibly satisfy this burden – if they did, no fact witness should be sent back to Detroit, either – nor can rhetoric, however fiery, from certain quarters labeling Guerra a scoundrel."
In reality, Guerra fears prosecution for the "many serious crimes he has admittedly perpetrated in Ecuador in addition to what he claims to have done in connection with the Lago Agrio litigation – namely, the offering and acceptance of up to 40 bribes throughout his career as a lawyer and a judge," the motion states.
"That Chevron and its counsel have crossed the line here cannot seriously be debated."
Erwin Chemerinsky, a noted legal scholar and dean of the University of California, Irvine School of Law, signed a declaration in support of this analysis for Donziger.
"If a party or its counsel were permitted to pay a testifying witness for physical evidence, beyond the reasonable value of that evidence, and to pay the witness a salary in exchange for an agreement to testify, there would be little left of the rule against compensating fact witnesses," Chemerinsky wrote. "That is precisely what has occurred here."
Chris Gowen, a spokesman for Donziger and a professor of Legal Ethics at American University's Washington College of Law, said the payments to Guerra constitute "outright bribes that violate both criminal laws and the ethical rules governing the legal profession."
"I know that if I ever put a witness like Mr. Guerra on the stand, the state bar would have every right to revoke my license to practice law," Gowen said.
Han Shan, a spokesman for the Ecuadorean judgment holders, called Guerra's testimony "obsequious storytelling" that seeks to act as a "magic bullet to evade accountability for the destruction and suffering it has caused in Ecuador."
"It won't work; the District Court in New York cannot act as an appellate court to the Ecuadorian judiciary, and deny the communities of the Amazon the court victory they fought for and won," Shan said,
Morgan Crinklaw, a spokesman for Chevron, said Guerra's testimony "is itself merely corroboration of other evidence Chevron has already introduced."
Attorneys representing the villagers and Donziger said that "Chevron has adduced no evidence to corroborate the core aspects of Guerra's testimony," adding that such "corroboration" is "smoke and mirrors."
"Chevron has larded up Guerra's testimony with marginal assertions that he can corroborate (albeit with incompetent or dubious evidence) in the apparent hope that this will cause the court to excuse the total lack of corroboration for the assertions that matter most." (Emphasis and parentheses in original.)
Crinklaw said Guerra's testimony "confirms" that Donziger and his "collaborators" "paid bribes to ghostwrite the judgment against Chevron," and that the motion is another attempt to "prevent this evidence from coming to light."
"This latest attempt, like the others, will fail," Crinklaw said. "Chevron will continue to expose the truth about the fraud, bribes and extortion orchestrated by Mr. Donziger and his allies."
In its motion, attorneys for the villagers and Donziger described Guerra as someone who "has been desperate for money, and will stoop to extraordinary lows to get it – including fabricating a story for Chevron, weaving big lies with small truths in an effort to create the illusion of a verified account."
They say his testimony should be stricken because it "does not serve, but instead hinders, the truth-seeking function of this court."
The motion to strike represents an alternative that Donziger's team wants Judge Kaplan to consider in lieu of terminating prior sanctions.