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Team Donziger Back to Their Old Playbook

Date: Sep 27, 2016

“If you repeat a lie a thousand times, it becomes the truth.” – Steven Donziger

That is the motto that Steven Donziger, the American lawyer who orchestrated a fraud and extortion scheme against Chevron, once confided to a member of his legal team.

Donziger and his team were found by a U.S. federal court in 2014 to have violated federal racketeering laws, committing fraud, bribery, extortion, witness tampering and obstruction of justice in their quest to obtain a judgment against Chevron in Ecuador.  That decision was unanimously affirmed by a U.S. appeals court in August.

In an attempt to distract from the definitive evidence of fraud and corruption against them, Donziger and his team, including Amazon Watch, are resorting to a tactic from their old playbook: lying.

This time, they have set their sights on a former Ecuadorian judge who took bribes from Donziger and his team in exchange for favorable decisions.

In 2013, Alberto Guerra, a former Ecuadorian judge, came forward as a whistleblower.  He testified under oath during the 2013 RICO trial against Donziger that he was paid thousands of dollars by Donziger and his team and a subsequent judge, Nicolas Zambrano, for illegally ghostwriting court orders in the plaintiffs’ favor.  He also testified under oath that he facilitated a bribe scheme between Donziger and Zambrano in which Donziger promised a $500,000 bribe so that his team could ghostwrite the judgment against Chevron.  Guerra also testified in 2015 as part of Chevron’s international arbitration claim against the government of Ecuador for their role in the fraudulent lawsuit.

Since then, Donziger and his associates have claimed that Guerra “recanted” his previous testimony during the RICO trial.

There’s only one problem with that claim – like so many of Donziger’s statements, it simply isn’t true.

As Paul Barrett of Bloomberg wrote:

“If Guerra were the only witness testifying to corrupt activity by the plaintiffs, his account might not be worth much. But his recollections—including his account of trying to get the two sides in the controversy to bid against each other for his services—are consistent with testimony from other witnesses in a case polluted by fraud and phony scientific evidence. That’s why the judge in New York concluded that Guerra’s testimony had value, if limited value, in backing up other evidence of wrongdoing.

And that’s why it’s important not to accept the current claims that Guerra “recanted” during the arbitration proceedings. He didn’t.”

Why are Donziger and his team working so hard to discredit Guerra?  Because they are unable to refute Guerra’s testimony, which is supported by corroborating evidence.

Here are some highlights of Guerra’s testimony:

  • Guerra ghostwrote orders in Zambrano’s civil cases.
    • Guerra testified that he wrote over 100 orders for Zambrano, which were on Guerra’s home computer. (Track 2 Hearing Transcript, Day 4, Tr. 739:1-13).
  • Zambrano paid Guerra to ghostwrite orders for him in his civil cases.
    • “I’m stating that that was the content of the agreement, and I am indicating that the commitment on my part was to write the rulings for him and to receive from him $1,000 a month on a permanent basis.” (Track 2 Hearing Transcript, Day 3, Tr. 629:10-13).
    • Guerra’s bank records corroborate deposits from Zambrano directly into Guerra’s bank account at Banco Pichincha. (Track 2 Hearing Transcript, Day 3, Tr. 635:25-636:7; Track 2 Hearing Transcript, Day 4, Tr. 878:22-879:20; 887:20-888:18).
    • Guerra testified that Zambrano usually paid him in cash. (Track 2 Hearing Transcript, Day 3, Tr. 632:7-10; Track 2 Hearing Transcript, Day 4, Tr. 878:16-21; 887:5-12)
  • Guerra and Zambrano shipped ghostwriting material via TAME airlines.
    • Guerra’s TAME shipping records show that he and Zambrano sometimes shipped documents and ghostwritten orders to each other. (Track 2 Hearing Transcript, Day 3, Tr. 647:10-17)
    • Guerra confirmed that the packages were labeled “documents” because this was in furtherance of a secret, fraudulent scheme. “You will understand that I was not able to go to the TAME office and provide a detailed account saying, okay, I’m sending ruling for the case 2020 of A versus B. The only thing I sad was documents are being sent.” (Track 2 Hearing Transcript, Day 3, Tr. 668:25-669:4).
  • Guerra’s hearing testimony regarding the 9 orders in the Chevron case that Guerra ghostwrote for Zambrano makes it clear that Guerra wrote those orders. (Track 2 Hearing Transcript, Day 4, Tr. 863-877)
    • Guerra would work on an order on a particular day, but he would date the draft a few days later for the benefit of Zambrano so that he would not make a mistake in dating the document once issued. (Track 2 Hearing Transcript, Day 4, Tr. 868:14-869:6).
    • He explained that he also left blanks in the draft orders for Zambrano to fill out and made notes in the text to make sure that Zambrano would not forget to fill out these blanks. (Track 2 Hearing Transcript, Day 4, Tr. 871:8-872:21).
    • Guerra also issued rulings at least in part to move the case along in favor of the Plaintiffs. (Track 2 Hearing Transcript, Day 4, Tr. 876:1-6).
    • “What I can assure you is that all of these documents [nine orders], without any exceptions, including the ones that I worked on Lago Agrio were used by Zambrano for the Chevron case.” (Track 2 Hearing Transcript, Day 3, Tr. 665:15-18).
    • “Q. . . . do you reaffirm and confirm that you, Alberto Guerra, wrote all Orders that were found on your computer that you voluntarily provided to Chevron? A. Yes, sir.” (Track 2 Hearing Transcript, Day 4, Tr. 877:10-14).
  • The TAME shipping records show that Guerra made a number of shipments to Zambrano—during his tenure on the Chevron case—through an intermediary, Narcisa Leon or Fernando Alban.
    • “I sent these rulings to Zambrano through third parties because that is what he requested me.” (Track 2 Hearing Transcript, Day 3, Tr. 657:13-14; Track 2 Hearing Transcript, Day 4, Tr. 886:7-9).
    • Guerra explained that they worked this way because Zambrano was “very careful, very possessive of these things.” (Track 2 Hearing Transcript, Day 4, Tr. 881:8-16).
    • Guerra also testified that the first shipment during Zambrano’s first tenure definitely included the Chevron order that he drafted two days prior to that day. (Track 2 Hearing Transcript, Day 4, Tr. 882:3-883:13).
  • The Lago Agrio Plaintiffs paid Guerra to ghostwrite orders in the Chevron case.
    • Guerra testified that the Plaintiffs paid him $1000 a month to secretly ghostwrite orders to move the case along in the Plaintiffs’ favor. “My agreement with them [the Plaintiffs] was to receive $1,000 a month while I assisted in the preparation of the rulings.” (Track 2 Hearing Transcript, Day 3, Tr. 675:17-19; see generally id. at 675-678 regarding Plaintiffs’ payments to Mr. Guerra).
  • On behalf of Zambrano, Guerra met with the Plaintiffs’ legal team at the restaurant Honey & Honey to solicit a bribe in exchange for letting them write the Judgment.
    • Guerra described his meeting with Fajardo and Donziger on behalf of Zambrano, at the Honey & Honey restaurant in Quito and testified that he offered to let them write the Judgment in exchange for at least $500,000. (Track 2 Hearing Transcript, Day 3, Tr. 600:7-601:8).
  • Guerra edited a draft judgment prepared by the Lago Agrio Plaintiffs.
    • Guerra testified that Pablo Fajardo gave Zambrano a draft of the Lago Agrio Judgment, which Zambrano in turn asked Guerra to review and edit. (Track 2 Hearing Transcript, Day 3, Tr. 601:9-17).
    • “Q. Am I correct, sir, that it is your testimony that Judge Zambrano allowed the Lago Agrio Plaintiffs to draft the Lago Agrio Judgment? A. You are entirely correct.” (Track 2 Hearing Transcript, Day 3, Tr. 625:1-4).
    • Guerra testified that he edited a draft of the Judgment in Zambrano’s apartment in Lago Agrio, over a weekend in late January / early February 2011 on a computer provided by Fajardo. (Track 2 Hearing Transcript, Day 4, Tr. 786:15-18)
  • Guerra requested and received a memory aid from Pablo Fajardo.
    • Guerra also testified that he asked Fajardo for help on certain issues related to the Lago Agrio proceedings and that Fajardo provided him with a Memory Aid. (Track 2 Hearing Transcript, Day 3, Tr. 751:24-752:9, 754:6-12; Track 2 Hearing Transcript, Day 4, Tr. 777:19-778:14).
    • Fajardo provided him with a document to help him edit the Judgment but that turned out to be unhelpful. (Track 2 Hearing Transcript, Day 4, Tr. 779:1-8).

In the end, the evidence is unassailable, which explains Donziger and his team’s desperate attempts to discredit it.  Guerra’s testimony is one piece of a mountain of evidence depicting fraudulent and corrupt conduct at the hands of Donziger and his team.  As the Second Circuit explained:  “The record in the present case reveals a parade of corrupt actions by the LAPs’ legal team, including coercion, fraud, and bribery, culminating in the promise to Judge Zambrano of $500,000 from a judgment in favor of the LAPs.”