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Justice or Extortion?

After 1,083 days behind bars, a 73-year-old man held on contempt charges is finally freed

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NOGALES, SONORA--Benéfico--"beneficial"--is the word Manuel Osete, 73, uses to describe the 1,083 days he spent in an Arizona jail. It is not the first word that might occur to a man never charged with a crime, nor for a man whose siblings have been coerced into surrendering property bequeathed to them decades ago.

But Osete, who was released from the Santa Cruz County Jail earlier this month after a stay that cost Arizona taxpayers in excess of $75,000, chooses the word carefully (See "Debtor's Prison," March 24).

Benéfico does not carry with it a message of appreciation or goodwill, and much less, forgiveness. Rather, it describes the sober awakening and resignation of a man who believes three years of his life have been stolen from him. They weren't stolen from him for a crime, he believes. There was never a crime at issue--at issue was a foolish decision he made not to appear at a court proceeding.

"What I've lived through," Osete said, "is legally sanctioned, judicial extortion."

Imprisonment is beneficial to a man who, before Christmas 2002, had never given a second thought to those incarcerated in Nogales, Ariz., or this, its sister city. Osete learned, he said, "that much in the justice system is not black and white." More important, he says, he learned that a court can be used as an instrument of vengeance.

Osete, a Nogales businessman, was arrested at the Nogales, Ariz., port of entry and held on charges of civil contempt--disobeying a court order to pay alimony and his share of a divorce settlement totaling $833,000.

Contending that he had no way to defend himself against divorce proceedings in Arizona, Osete, a Mexican national, had ignored the Superior Court trial that took place in Santa Cruz and Pima counties.

During that trial, Osete's estranged wife, Sylvia, testified that her husband earned in excess of $500,000 annually and could easily afford $10,000 per month in alimony. Sylvia had already received about $1 million from her husband's assets in the United States, records show.

A review of evidence shows almost no proof of such wealth, but the courts--depending largely on Sylvia's testimony--agreed virtually to the letter of her demands.

The impasse began. Osete would come up with $833,000 or remain behind bars.

Unlike criminal contempt--in which a crime must be proved beyond a reasonable doubt, and any punishment carries a finite sentence--civil contempt is open-ended. It does not require a crime, but rather, it seeks to coerce a response. In legal parlance, prisoners "hold the key" to their own release.

Osete, facing civil contempt, maintained for 1,000 days that he didn't have the money. He was, he insisted, being held in a debtor's prison.

That standoff was the scenario until earlier this summer, when Osete's new attorneys, Laura Belau and Edwin Aguilar Karp, Huerlin & Weiss, P.C., approached Pima County Superior Court Judge Richard Nichols with an offer.

Osete, his four living siblings and the estate of a deceased brother, all in Mexico, would sell a property with an estimated value of $1.2 million in this city if the judge would "purge the contempt"--that is, let Osete go. The judge agreed; family members gave up their shares in the property.

"It was the only way we were ever going to see Manuel out from behind bars," said Raul, a brother in this city who runs a private cemetery. "We decided, 'Enough is enough.' If we had left it entirely to Manuel, he'd still be there. We agreed it was time to buy his freedom."

The formula to provide Manuel with what was supposedly the key to his jail cell brought a crash-course on Mexican title law into Nichols' courtroom last month.

Tiberio Sulock, Sylvia's lawyer, and Juan Anastasio Gonzalez, representing Manuel, detailed how funds would be paid to Mexican tax authorities; how a lawyer and public fiduciary known as a notario público would record the transaction at the Registro Publico de la Propiedad; and how the title would be immediately registered in Sylvia's name. Nichols ordered that Osete's siblings pay $28,000 of $35,000 owed in back taxes before the deed could be recorded. Sylvia would respond for the other $7,000.

Curiously, on several occasions during the November proceedings, Nichols referred to the "urgency" to get the Osete case resolved. What had proceeded at a lethargic pace suddenly had a stopwatch attached to it.

One possible reason for the sudden hustle: The Arizona Supreme Court in October enacted new rules that require hearings every 35 days for those held in civil contempt on marital issues. Furthermore, the rules require that judges show "the contemnor has the present ability to comply with the purge and the factual basis for that finding." They also order judges to presume that those held more than six months in civil contempt do not have the means to pay or cannot be coerced.

The judge would never have been able to meet those standards, said Osete. "Regardless of what the court had determined were 'findings of fact,' the fact was that I didn't--and don't--have the money."

Stelissa Scott, Sylvia's lawyer, declined to comment.

The new "urgency" produced results. Tax liens and the title transfer were completed and, on Dec. 6, Nichols signed the papers for Osete's release. Since there was no service between Tucson and the Santa Cruz County jail that day, Aguilar, the attorney, drove the release order directly to Nogales. "It was my 40th birthday," Aguilar said. "I felt as if this was my present."

The system that had confined Osete for so many nights would not let him go without one more. Osete had entered Arizona on a six-month visitor's visa when he was detained, meaning he has overstayed his "welcome" in the United States by about 2 1/2 years.

He would spend one more night in jail, but not for civil contempt. Now, he was a "hold" of the federal government for questions about his immigration status.

The next day, an agent of the United States Customs and Border Protection Service dropped Osete at the border.

Former Prisoner Number 44845 of Santa Cruz County was free to apply for a new visa as soon his documents were returned to him, probably in two to three weeks, he was told by Officer Mark Estrada.

Only those charged with crimes have trouble reapplying for a visa, and since Osete hadn't committed one, there should be no problem, he said.

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