Brazil: “Off the Books, But Not Illegal,” Says Defense of Mensalão Defendants

Mensalão trial Monday, August 13, was the eighth day of the Penal Code 470 trial at the Brazilian Supreme Court. Known as the “big monthly allowance” (“mensalão”) case, in which former high ranking government authorities and elected officials have “privileged criminal venue” (“foro privilegiado”), that is, they can be tried only before the Supreme Court.

Among the original defendants are public office holders and members of Congress, along with “civilians” in advertising agencies and financial institutions, who are charged with conspiracy, active and/or passive corruption, money laundering, malfeasance, illegal remittances of money abroad and embezzlement.

In the United States, the trial would be known as “original jurisdiction,” in that the eleven members of the Brazilian Supreme Court are trying a penal case. Original jurisdiction cases before the US Supreme Court are rare.

In Brazil they are not because all elected officials and high-level appointees have foro privilegiado. In the mensalão case, among the defendants, are three former ministers of state (cabinet-level positions) in the first Luiz Inácio Lula da Silva administration (2003-2006) and eleven former federal deputies (only one of them is still in Congress).

The case became public in 2005 and a motion to try it by the chief federal prosecutor was filed at the Supreme Court in 2007.  It is the fact that the mensalão case was accepted by the Brazilian Supreme Court and is being tried there that is highly unusual given that at the moment there are 250 members of Congress and an unknown number of authorities at the municipal, state and federal levels with criminal cases pending before the Supreme Court.

In this unusual case, there are now 36 defendants accused of participating in a vote-buying scheme in which members of Congress were given more or less regular payments (allowances) to support the government.

The prosecution claims most of the money used to pay the allowances was illegally siphoned off advertising budgets in state-run (that is, public) banks and institutions.

On Monday, August 13, defense lawyers used their time (an hour) to continue the strategy of admitting that their clients received money, but denying there was anything illegal. The money, according to the defense narrative, was legal although off-the-books.  And it was used not to buy votes but to pay campaign debts.

The defense objective is twofold: first, deny the use of any public money. Second, admit to a lesser crime of using off-the-books money for campaign purposes; that is, rather than a penal crime there is an electoral crime. In the case of the mensalão, which took place before 2005, electoral crime statutes of limitations ran out in 2010.

On Monday the first defense lawyer to speak represented former deputy, Bispo Carlos Rodrigues (then in the PL-Rio de Janeiro) who is accused by the office of government attorneys (“Ministério Público Federal -MPF”) of passive corruption and money laundering in that he received money from a criminal organization to vote with the government.

The defense confirmed that he received money but that the funds were legal and used to pay campaign debts. One defense argument is that Rodrigues… party, the PL, as a member of the government alliance in Congress and the party of vice president Jose Alencar, did not need to be bribed to vote with the government.

Lawyers for three other accused in the case, Romeu Ferreira Queiroz (then in the PTB-Minas Gerais), Emerson Palmieri, then treasurer of the PTB, and José Borba (PMDB-Paraná,) followed similar lines of defense.

However, the defense of former deputy Roberto Jefferson, the whistleblower who made the mensalão public in June 2005 after being accused of running a corruption ring at the Post Office, moved in a very different direction. His lawyer, Luiz Francisco Corrêa Barbosa, admitted that Jefferson received money in the name of his political party, the PTB.

But, according to the defense, the funds were a payment for a political alliance with the PT in the 2004 general elections, not to buy votes. Correa Barbosa claimed that at the time of the deal Jefferson was not aware of the illegal origin of the money. Jefferson’s lawyer also demanded that former president Lula be included in the case.

Jefferson, 59, underwent surgery last week to remove a tumor in his pancreas.

In Other News

In 2010, in a first trial run, some 1.1 million voters used the new biometric identification technology. This year the testing will be expanded.

Technicians from the Federal Election Court (“Tribunal Superior Eleitoral – TSE”) have recommended testing biometric voting machines (“urnas biomêtricas”) in 117 cities in various states as part of preparations for their use in this October…s midterm (“eleições municipais”) elections.

Then, on October 7 and October 28, when the first round of voting and runoff elections take place this year, some 7.7 million voters in 299 municipalities in 24 states will use the new machines. Voters in five state capitals will use voting machines with digital identification technology.

In Maceió, Alagoas, and Aracaju, Sergipe, 100% of voters will use the new technology. Some voters in Curitiba, state of Paraná, Goiânia, state of Goiás, and Porto Velho, state of Rondônia, will use them as well.

Voters in Manaus, state of Amazonas, and Rio Branco, state of Roraima, will use the old electronic voting machines. There will not be any elections in Brasilia this year.

Voters in the cities participating in the trial run have been convoked to register their fingerprints and photographs, as well as update their voter registration information.

Workers at polling stations are being trained to work with the new machines that scan thumb and index finger fingerprints. They will be ready to make up to 12 attempts to get the machines to recognize a thumb or fingerprint (the rules are that they can make up to three attempts on each thumb and index finger on each hand). If that does not work, the voter will have to identify himself with a document with a photo.

If and when the biometric identification systems work they will eliminate the need for voters to sign presence lists.

ABr

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