WASHINGTON, D.C., Nov. 09 /CSRwire/ – Amazon indigenous groups and farmer communities in Ecuador have requested that the U.S. Department of Justice open a criminal investigation of Chevron and the Gibson Dunn law firm after uncovering a witness bribery scheme designed by the company to fabricate evidence to evade payment of a $9.5 billion environmental liability, according to a letter sent to several top DOJ officials and made public today.
The referral letter – sent to the Chief of the Department of Justice (DOJ) fraud section and the U.S. attorneys in three major cities — describes how in 2012 Chevron gave an illegal benefits package totaling at least $2 million to a former Ecuadorian judge, Alberto Guerra. Guerra, who admitted to Chevron prior to accepting the payments that he had engaged in numerous corrupt acts in Ecuador, later testified under oath that he lied repeatedly before a U.S. federal court as part of the company’s strategy to evade paying the Ecuador environmental liability, which was confirmed by the country’s highest court in 2013.
A copy of the DOJ letter can be read in full here.
Guerra’s lies before the U.S. federal court, in Chevron’s controversial non-jury civil “racketeering” or RICO case, led to a contested finding in 2014 by U.S. trial judge Lewis A. Kaplan that the Ecuador judgment was obtained by fraud. That decision was contradicted by eight appellate judges in Ecuador who unanimously affirmed Chevron’s liability, including the entirety of country’s Supreme Court.
Canada’s Supreme Court also rejected Kaplan’s findings when Chevron tried to use it to block efforts by Ecuadorian indigenous peoples to seize company assets in that country. In all, the Ecuadorians have won three unanimous appellate decisions in Canada against Chevron, all of which have ignored Kaplan’s findings.
“Undisputed facts indicate that Chevron used Guerra’s false testimony to commit extensive fraud on the indigenous people of Ecuador that appears to have been planned at the highest levels of the company,” said Patricio Salazar, the lead Ecuadorian lawyer for the affected communities. “The United States Department of Justice must use its full investigative power to gather all relevant facts related to Guerra’s false testimony and if appropriate, hold those responsible fully accountable.”
(For background on Chevron’s RICO fraud and the erroneous findings in the decision, see this 33-page report.)
Among those cited in the letter as orchestrating the Chevron fraud are CEO John Watson, who is retiring in January; Chevron General Counsel R. Hewitt Pate; and Chevron outside counsel Randy Mastro, Reed Brodsky, Andres Rivero, and Avi Weitzman, all of the Gibson Dunn law firm. Gibson Dunn has deployed hundreds of lawyers to fight the indigenous groups and has reaped an estimated $1 billon in fees from Chevron for doing so — thought to be the largest fee in history paid by a corporation for litigation defense.
In the summer of 2013, Chevron lawyers from the Gibson Dunn firm coached Guerra for 53 days before he testified falsely that the Ecuador trial judgment against Chevron was “ghostwritten” by lawyers for the plaintiffs. The story later was proven false by a forensic examination performed by one of the world’s leading computer experts, J. Christopher Racich.
The DOJ letter also recounts how Chevron provided Guerra and his extended family with free health care, a housing allowance, and the payment of fees to secure family members asylum so they could legalize their immigration status in the United States. Chevron also paid Guerra’s personal income taxes as part of the deal.
Chevron lawyers led by Mastro of the Gibson Dunn law firm flew to Chicago to craft the first version of Guerra’s false testimony in 2012 at the same time they were negotiating the benefits package with him, which provided a salary at least 24 times higher than what Guerra had been earning in Ecuador, according to the letter. Guerra insisted on meeting in Chicago because one of his children lived there, said Salazar.
Chevron’s liability in Ecuador stems from judicial findings that the oil abandoned 1,000 open-air toxic waste pits gouged out of the jungle floor and systematically discharged billions of gallons of toxic oil waste into rivers and streams relied on by the local population for their drinking water and for fishing. Cancer rates in the area have exploded and at least hundreds, possibly thousands, of indigenous persons and farmers are believed to have died as a result, according to data in independent health studies.
Chevron operated in Ecuador under the Texaco brand from 1964 to 1992 and reaped an estimated $25 billion in profits over the life of its operating contract. It was the exclusive operator of six major fields covering parts of a 1,500 sq. mile swath of rainforest that once was home to five thriving indigenous nationalities, all of whom are now plaintiffs in the lawsuit.
Even though the environmental damages claims were filed in the United States in 1993, Chevron insisted the trial be held in Ecuador and accepted jurisdiction there as a way to avoid a jury of impartial fact finders in its home country. After the case was shifted to Ecuador by a U.S. judge, Chevron challenged jurisdiction anyway and began to sell off its assets in the country. Company officials, led by General Counsel Charles James, threatened the indigenous groups with “a lifetime of litigation” if they persisted.
The DOJ letter – signed by Steven R. Donziger, the American lawyer for the Ecuadorians and the primary target of a Chevron retaliation campaign — also was sent to the U.S. Attorneys in offices located in areas with a strong connection to the Chevron scheme. Donziger said the Guerra fraud appears to have been planned in company headquarters near San Francisco after previous company attempts to prove due process violations in the case based on an expert report and other issues were rejected by Ecuador’s courts.
“It is our belief that Chevron’s exorbitant witness payments to Guerra had the ultimate aim of deceiving courts around the world to block enforcement of the Ecuador judgment, thereby consigning thousands of vulnerable indigenous people to a lifetime of suffering and likely death,” said Donziger, who is part of the international legal team representing the villagers. “In our view, Chevron’s approach to this entire litigation is based on intimidation and deceit and its goal is to obtain impunity for environmental crimes. The cost to the people of Ecuador from Chevron’s unethical and even illegal strategy is enormous.”
Even though Chevron has used at least 2,000 lawyers as part of its retaliation campaign against Donziger and the affected communities, the company’s Guerra “fraud” narrative has completely fallen apart in recent months.
Several media outlets (see here and here) reported that Guerra admitted under oath in a related international arbitration proceeding that he lied repeatedly before the U.S. federal court about key facts that formed the basis of the court’s findings. Guerra’s claim that the lawyers for the indigenous groups “ghostwrote” the judgment against Chevron was debunked by a forensic examination of the Ecuadorian trial judge’s office computers by Racich, as explained here.
The Racich report found the Ecuador trial judge created and saved a Word document that became the judgment more than 400 times on his computer in the weeks prior to its issuance, and that it was not provided by lawyers for the indigenous groups on a flash drive as Guerra had testified.
Two Chevron lawyers in the Ecuador matter, Andres Rivero and Yohi Ackerman, admitted in 2012 that they gave Guerra $18,000 in cash out of a suitcase in Ecuador to enlist his initial cooperation. Ackerman later gave Guerra another $10,000 in cash for a handful of documents while Rivero promised he could receive at least $1 million more from Chevron if he “flipped” the trial judge who wrote the decision against the company – essentially another bribe attempt by Chevron using Guerra as the intermediary, said Donziger.
Chevron admitted during pre-trial discovery in the U.S. case that it paid for Guerra to fly from Ecuador to Chicago to negotiate his personal services contract that would guarantee the ongoing payments for his testimony. Upon arrival in Chicago, the former judge made several crass comments that suggested he was motivated to lie by greed – comments such as “money talks but gold screams” and “couldn’t you add a few zeroes” after the Chevron lawyers made an offer. The comments were recorded by Chevron’s investigators and released as part of the court process.
The Chevron payments to Guerra appear to be ongoing, said Donziger.
Chevron declined to contest the facts of its pollution in Ecuador during the retaliatory U.S. “racketeering” case where it made the false bribery allegation, essentially admitting its guilt in the underlying case, said Donziger. Chevron also dropped all damages claims on the eve of the RICO trial to avoid a jury of impartial fact finders.
(For background on Kaplan’s flawed RICO ruling, see here and this new report – “Chevron’s RICO Fraud”. The report documents the many ways in which the company fabricated and distorted evidence to try to taint the Ecuador judgment.)
Two respected legal commentators – Aaron Page of Forum Nobis and Michelle Harrison of EarthRights International — recently published articles (here and here) concluding that the Chevron witness payments to Guerra not only were wrong, but “criminal” and “illegal”. Those articles follow the recent publication of a comprehensive report documenting how Chevron fabricated and distorted evidence before U.S. courts to evade paying the environmental judgment.
Seventeen human rights and environmental groups and 19 international law scholars recently filed separate briefs attacking the company for using false evidence and violating international law. (Background on those briefs is here and here.)
Two federal judges from the United States have sanctioned the Gibson Dunn team for harassing U.S.-based lawyers for the Ecuadorians, while a California state court fined Chevron for filing a frivolous lawsuit against an American lawyer who formerly represented the Ecuadorian villagers. Separately, in echoes of Chevron’s strategy in the Ecuador case, the High Court of London recently sanctioned a lawyer at Gibson Dunn for fabricating evidence to frame a political opponent of the leader of the African nation of Djibouti, one of the firm’s major clients.
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