Sovereign immunity

• Pages: 58-62

58 Volume 21, April–June 2015 international law update

© 2015 International Law Group, LLC. All rights reserved. ISSN 1089-5450, ISSN 1943-1287 (on-line) | www.internationallawupdate.com

government thereby ‘fullled the commitment it

made in Diplomatic Note No. 1206.’ Id. at 93. …”

“In United States v. Lopez-Imitalo, 305 F. App’x

818 (2d Cir. 2009), we considered a challenge to

a 40 year prison term imposed on a 58-year-old

defendant (see the defendant’s brief on appeal,

2007 WL 6370252), who had been extradited to

the United States from Colombia pursuant to an

agreement in which, as in the agreement in Baez, the

United States promised it would not seek a sentence

of life imprisonment. We rejected the defendant’s

‘argument that the Government breached the

agreement by seeking a sentence of 60 years, which

he assert[ed wa]s the functional equivalent of life

imprisonment’; and we stated that there was no

violation of the extradition agreement ‘[e]ven if the

district court’s sentence of 40 years were deemed to

be a sentence of `life imprisonment.’ 305 F. App’x

at 819. We stated that ‘[o]ur decision in . . . Baez .

. . compels the conclusion that the rule of specialty

[sic] was not violated. . . .’ Id.”

“Had the respective governments intended

the Diplomatic Note to be an assurance that the

U.S. government would not request a determinate

sentence exceeding [the defendant’s] expected

lifespan, they could have drafted the note to say

that. Id.” [Slip op. 5-6]

citation: U.S. v. Suarez, 791 F.3d 363 (2nd Cir.

2015).

SOVEREIGN IMMUNITY

Eleventh Circuit affirms dismissal

of complaint filed by Venezuelan

entrepreneur for alleged expropriations

that occurred in Venezuela; Act of State

Doctrine, in conjunction with the FSIA,

precludes U.S. courts from reviewing

Plaintiff’s expropriation claims

Nelson J. Mezerhane, a successful Venezuelan

entrepreneur who ran a number of businesses in that

country, led a seventeen-count complaint against

República Bolivariana de Venezuela (“Venezuela”),

Superintendencia de las Instituciones Del Sector

Bancario (“SUDEBAN”), and Fondo de Protección

Social De Los Depósitos Bancarios (“FOGADE”),

as well as a number of additional Venezuelan

agencies and instrumentalities (“defendants”),

alleging that the defendants engaged in a pattern

of persecution against him that included numerous

violations of human rights law, expropriation of his

property in violation of international law, and other

tortious acts.

Mezerhane alleged that during Hugo Chavez’s

term as president of Venezuela, the government

targeted him to gain control over his media

companies. When he refused, President Chavez

retaliated against him, rst by attacking him in

public speeches, and later by expropriating his

and his family’s assets through illegitimate judicial

proceedings, which caused Mezerhane to suer

damages in excess of $1 billion.

In 2005, Mezerhane learned that the Venezuelan

government accused him of playing a role in the

murder of a Venezuelan prosecutor. He voluntarily

surrendered to Venezuelan authorities, was arrested

and incarcerated for 37 days. Upon being released

on bail in December 2005, Mezerhane led an

action with the Inter-American Commission on

Human Rights for false imprisonment and human

rights abuses.

Mezerhane claimed that he was de facto stateless

because, as he stated, he was stripped of “all indicia

of citizenship,” including the rights to travel in and

outside of Venezuela, “to live in a non-incarcerated

state in Venezuela,” to “earn a livelihood,” and to

acquire, sell, and convey property, seeking asylum

in the United States.

In his complaint, Mezerhane describes

Venezuela as a “foreign state” for purposes of the

Foreign Sovereign Immunities Act (FSIA), and

SUDEBAN and FOGADE as “agenc[ies] or

instrumentalit[ies] of a foreign state” under 28

U.S.C. § 1603(b). He asserts that the district court

has personal jurisdiction over SUDEBAN and

FOGADE based on their commercial activities in

the United States.

Venezuela and SUDEBAN jointly moved to

dismiss Mezerhane’s Complaint, claiming sovereign

immunity under the FSIA, 28 U.S.C. §§ 1602-11,

while FOGADE led a separate motion to dismiss

on the same ground.