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Case 2:17-cv-01105-JMA-ARL Document 22-3 Filed 05/29/18 Page 1 of 24 PageID #: 434
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BELEN OFFICE – AV. URUGUAY
145 – CERCADO DE LIMA
Secretary CAMPOS LOPEZ
Roxana (FAU2015998 1216)
Date: 02/26/2018 04:00:24 p.m. Reason
JUDICIAL
RESOLUTION Judicial Rul. NATIONAL CRIMINAL
[seal:] Validity unknown CHAMBER / LIMA DIGITAL SIGNATURE
1st. NATIONAL PREPARATORY INV. COURT
BELEN OFFICE – AV.
FILE : 00016-2017-93-5001-JR-PE-01
URUGUAY 145 – CERCADO DE JUDGE : CONCEPCIÓN CARHUANCHO RICHARD
LIMA AUGUSTO
Judge CONCEPCION
CARHUANCHO Richard Augusto SPECIALIST : CAMPOS LOPEZ ROXANA
(FAU2015998 1216) PUBLIC PROSECUTOR'S OFFICE : SUPRAPROVINCIAL
Date: 02/26/2018 03:56:45 p.m. CORPORATE PUBLIC PROSECUTOR'S OFFICE
Reason JUDICIAL RESOLUTION
Judicial Rul. SPECIALIZED IN OFFICIAL CORRUPTION OFFENSES
NATIONAL CRIMINAL PERSON CHARGED : GRAÑA ACUÑA, HERNANDO ALEJANDRO
CHAMBER / LIMA DIGITAL
SIGNATURE
CONSTANCIO
OFFENSE : ASSET LAUNDERING
PROCEEDINGS THAT DECLARE UNFOUNDED THE MOTION FOR

THE SUSPENSION OF THE ACCUSED BEING REMANDED IN
CUSTODY
JUDICIAL RESOLUTION NUMBER TWO
Lima, February the twenty-third,

two thousand eighteen.
Being the motion for the suspension of the accused being remanded in custody
proposed by the Procedural Representation of the accused Hernando Alejandro
Constancio Graña Acuña.
AND CONSIDERING:
ONE: MOTION FOR THE SUSPENSION OF THE ACCUSED BEING

REMANDED IN CUSTODY
The Procedural Representation of the Accused Hernando Alejandro Constancio

Graña Acuña filed a motion for the suspension of the accused being remanded in
custody, so that it be replaced by a simple order to attend the proceedings,
questioning the first requirement (the appearance of a prima facie case), and the
third requirement (procedural risk) of the initial order to have the accused
remanded in custody, based on the following:
1.1. With regard to the first procedural requirement (appearance of a prima facie
case) it invoked a series of pieces of evidence aimed at undermining it, thus we
have:
1.1.1. The Legal Report prepared by Dr. Enrique Navarro dated January 30,
2018, in which he clarifies some concepts, such as for instance:
- The leadership of the Consortium or Company manifested through the

management, organization or financing activities of the Project activities,
in the case of IRSAS [sic: IIRSAs], it was incumbent upon the Leader of
the Consortium (Odebrecht with a 70% shareholding).
1
Evidence for this can be found in the CONIRSA Shareholders Agreement

of 2005 and Meeting Number 8 of CONIRSA of August 2006, where
Odebrecht is recognized as the Project leader and [it is recognized that it]
is paid a fee (calculated as a percentage of the cost of the work). The
duties entrusted are: i) the preparation and approval of the definitive
Engineering against the awarding authority; ii) the scheduling and
execution of its works; iii) obtaining the bridge loan, the management of
suppliers and subcontractors, the administration and hiring of staff [sic].
- The additional risks are risks not initially contemplated in the project that
cannot be quantified, and therefore making provisions for them is not
possible.
- The concepts of leadership, leadership fee, greater risks or additional risks

are completely usual concepts in the construction industry and are
common practice in construction projects.
1.1.2. The Minutes of the Meeting of the Board of Directors of CONIRSA No. 8
dated August 25, 2006 where the Leader Fee was established (compensation of
the Leader of the Consortium for the management and administration), this
concept also appears at the General Shareholders' Meeting of CONIRSA SA
dated February 15, 2011, at the General Shareholders' Meeting of CONIRSA on
June 1, 2011 and at the General Shareholders' Meeting of Concesionarias
Interoceánica Sur Tramo 2 SA of June 1, 2011.
1.1.3. The Model Consortium Contract of the International Chamber of

Commerce with a Certified Translation, because it had provided for the figure of
the Leader of the Consortium, the role of the Leader and the compensation on
account of the Leadership, so it was not an anomalous concept.
1.1.4. The CONIRSA Shareholders' Agreement signed by the intervening parties

on October 24, 2005, in which it was established that Odebrecht would receive
compensation on account of the Leadership on which they would agree within 15
days, which was established at the Meeting of the Board of Directors dated
August 25, 2006 (Leadership Fee of 1.5% of the total invoicing).
1.1.5. The Letter of Understanding dated February 9, 2006 between Odebrecht

and Graña y Montero, in which Odebrecht undertook to vote in favor of Graña y
Montero running the operation once the construction was completed (2011), but,
as it happened (due to a breach on the part of Odebrecht), Graña y Montero
decided to leave the Consortium.
2
1.1.6. The Share Transfer Contract dated December 1, 2011, because it accredits
that CONIRSA's minority shareholders transferred their shares to ODEBRECHT,
which resulted in the departure of Graña y Montero from the IRSAS [sic: IIRSAs].
1.1.7. The Memorandum of Understanding signed between Constructora

Norberto Odebrecht SA and Graña y Montero SAA dated June 23, 2011, where
the amount assumed by Graña y Montero for its departure from the IRSAS [sic:
IIRSAs] is determined, the recognition of the compensation on account of the
leadership that amounted to 91 million soles, which is consistent with the 1.5%
1.1.8. Analysis and Comments of the Accounting, Tax and Legal Treatment of
the Distribution of the Profits of Concesionarias [sic: Concesionaria]
Interoceánica Sur Tramo 2 Concesionaria Interoceánica Sur Tramo 2,
Concesionaria Interoceánica Tramo 3 and CONIRSA, prepared by the legal
experts Juan Carlos Cordero Carrasco and Aurelio Pedro Bermúdez, that was
carried out on the basis of the Accounting Report 02-2017 (which served as the
basis to corroborate what was declared by Barata), in which they pointed out that
the distribution of dividends does not qualify as a cost and/or an expense;
therefore, the issuance of a proof of payment is not appropriate, but rather it has
been treated through the differentiated dividend distribution system, considering it
as a liability is therefore an error.
1.1.9. Resolution 8 dated January 19, 2018, issued by the First Criminal Appeals
Chamber, because it established various aspects, including:
a) With regard to the appearance of a prima facie case, it indicated that: i) the
principle of the rule of law is violated when an offense of collusion is
alleged due to an alleged integration or chain of title, ii) the manner and
circumstances in which the acts of corroboration were carried out, because
the Defense of the accused did not have the possibility of contradicting
this evidence, in a confidential process which is hardly in accordance with
the standards of due process and the right of defense; iii) with regard to the
additional risks, it indicated that no deviation was found.
b) With regard to the procedural risk, it pointed out that: i) it cannot be

restricted to the economic capacity and the migratory movement, which
would be foolhardy, stigmatizing and discriminatory, ii) with respect to his
involvement with a criminal organization, there is no imputation in that
regard; iii) presenting evidence cannot be considered as an act of
obstruction.
3
1.1.10. Video of the Appeal Hearing, where the Senior Prosecutor asserted the
legality of the concept of additional risks (by saying that there is no circumstantial
evidence of criminality in the figure of the leader fee).
1.1.11. Legal Opinion of Professor José María Asencio Mellado, in which he

pointed out the homogeneity of the legal situations of the accused, the
unconstitutionality of substantiating the procedural risk on the economic capacity
and on the migratory movement.
1.2. With regard to the third procedural requirement (initial procedural risk), it
invoked a series of pieces of evidence aimed at undermining it, thus we have:
1.2.1. The National Identity Documents of the accused Hernando Alejandro

Constancio Graña Acuña and of his relatives (son, wife and mother-in-law).
1.2.2. Proof of the BCP transfer in favor of his ex-wife (it depends on the
accused),
1.2.3. Proof of the Social Security Office of his mother-in-law (she lives in a
property of the accused).
1.2.4. The cancellation of an airline reservation on a trip he had in November

2017.
1.2.5. The letter of resignation of the accused to companies related to Graña y

Montero.
1.2.5. Official letter of the Multi-Party Committee of the Congress, by which he

was summoned to Congress.
1.2.6. Proof of appearance before the Public Prosecutor's Office.
1.2.7. Emails and agendas, to prove that their migratory movement was linked to
work trips
1.2.8. Personal details of the accused: age, state of health, lack of a criminal
record, the time spent in prison.
1.2.7. With regard to the status of the proceedings, the Public Prosecutor's Office
did not conduct any investigation
TWO: ISSUES UNDER ANALYSIS:
The Court has identified several issues that shall be the subject of analysis in
order to issue a ruling on the merits of the specific case brought up, which is
detailed below:
4
2.1. The requirements to order the suspension of someone accused being

remanded in custody, in accordance with the procedural regulations and the
prevailing binding court precedents.
2.2. Establishing whether the evidence presented by the Procedural

Representation of the accused Hernando Alejandro Constancio Graña Acuña
undermined the initial appearance of a prima facie case.
2.3. Determining whether the evidence presented by the Procedural

Representation of the accused Hernando Alejandro Constancio Graña Acuña
undermined the initial procedural risk.
THREE: ANALYSIS OF THE FIRST ISSUE (REQUIREMENTS FOR

THE SUSPENSION OF THE ACCUSED BEING REMANDED IN
CUSTODY):
With regard to the first issue brought up, it should be stated that the suspension of
the accused being remanded in custody is appropriate when new evidence has
undermined the initial grounds that served to substantiate the issuance of the order
to have the accused remanded in custody, thus:
3.1. Article 283 of the Code of Criminal Procedure provides that the suspension
of the measure (in reference to being remanded in custody) shall be appropriate
when new evidence shows that the grounds that substantiated it being
imposed and it is necessary to replace it with a measure ordering him to attend
the proceedings.
3.2. In the same sense, consolidated binding court precedents in that regard, as it
would be established in subparagraph 2.9 of the 391-2011-Piura appeal for
annulment, have pointed out that:
3.2.1. The suspension of the accused being remanded in custody demands

submitting being remanded in custody to a new evaluation, but based on the
presence of new evidence that must be provided by the requesting party,
evidence that should have a bearing on the modification of the pre-existing
situation thus, allowing its application.
3.2.2. In such a way that if new evidence is not brought up or the one that was
brought up did not have sufficient force to that end, being remanded in
custody cannot be suspended.
FOUR: ANALYSIS OF THE SECOND ISSUE (THE NEW EVIDENCE DID

NOT UNDERMINE THE APPEARANCE OF A PRIMA FACIE CASE):
As for the evidence presented by the Procedural Representation of the accused

Hernando Alejandro Constancio Graña Acuña, it would not have had the
procedural effect of undermining the appearance of a prima facie case that still
weighs against it, for the following reasons:
5
4.1. ABOUT THE CHARGES THAT HAVE BEEN BROUGHT AGAINST

THE ACCUSED:
The Public Prosecutor's Office charged the accused Hernando Alejandro
Constancio Graña Acuña with the offense of money laundering, focusing on the
fact that at the third moment of the intervention, [he] is the justification
mechanism for the transfer of money from the accounts of the partner companies
to Odebrecht (abnormal assignment of profits), which would have taken place as
follows:
“The profits obtained by the partner companies are the result of the
offense of collusion, as they were obtained not as a result of a process that
respected the principles of transparency, legality, free competition, but
rather it was the result of an illicit agreement and the payment of undue
commissions. In this sense, the assignment of profits meant the disposal of
those assets, under the appearance of legality, that is, the so-called
additional risks and/or greater risks, in reality constituted acts of
conversion.”
4.2. ABOUT THE INITIAL APPEARANCE OF A PRIMA FACIE CASE:

The initial grounds were focused on the accused Hernando Alejandro Constancio
Graña Acuña, in his capacity as representative of G&M SA, allegedly having
placed part of the ill-gotten gains in favor of the company Odebrecht, to hide the
proportional economic cost of the illegal commission that Odebrecht would have
paid to Alejandro Toledo Manrique, in order to be awarded Sections II and II [sic]
of the Consortia, thus we have:
4.2.1. With regard to the preceding offense of asset laundering, three issues were
identified: i) the preceding offense would be the offense of collusion (or in any
case the offense of simple collusion [colusión simple, a public official colluding
with private parties in a procurement procedure to the detriment of the state]), ii)
the offense of collusion was committed [by] Camet Piccone, Castillo Dibós and
Graña Miró Quesada, iii) the offense of collusion would be the activity from
which the ill-gotten gains would originate.
4.2.2. With regard to the acts of conversion of the offense of asset laundering,
focused on the placement of part of the ill-gotten gains in favor of the Odebrecht
company, we have:
4.2.2.1. Minutes of the General Shareholders' Meetings, where three legal persons,
that is, JJC Contratistas Generales SA, Graña y Montero and Ingenieros Civiles y
Contratistas SA, assigned part of their profits to related companies of Odebrecht.
6
4.2.2.2. Expert report in which it was concluded that the companies assigned part
of their profits to compensate for the illegal commission that Odebrecht would
have given to Alejandro Toledo Manrique.
4.2.2.3. Statements by the Auditors Horna Montoya and Aparicio Ponce, who
pointed out that this concept does not exist (Horna), or that in any case it must be
investigated (Aparicio).
4.3. ABOUT THE NEW EVIDENCE:
As for the evidence presented by the Procedural Representation of the accused

Hernando Alejandro Constancio Graña Acuña, it can be ascertained that it would
not have had the procedural effect of undermining the appearance of a prima facie
case, as explained below:
4.3.1. Requirement of new evidence:
A first filter, to move on to the merits of the case, is that the evidence presented
by the petitioner with regard to his procedural request of suspension of the
accused being remanded in custody, is new and relevant:
4.3.1.1. The novelty of a piece of evidence refers to the fact that it has not been
taken into account to issue the order to have the accused remanded in custody,
given that the suspension of the accused being remanded in custody requires the
presence of new circumstances that modify the initial situation (rebus sic
stantibus clause), pieces of evidence that had already been the object of a ruling
concerning the accused being remanded in custody cannot be reviewed, because it
would mean a reassessment of what has already been resolved (a question
prohibited in proceedings concerning the suspension of the accused being
remanded in custody).
4.3.1.2. In the same way, it is required that the new evidence is relevant, which
means that it must have a bearing on the initial grounds, precisely because it
seeks to undermine the preexisting situation 1, established at the moment of
ordering having the accused remanded in custody, from which it follows that
evidence that does not have a bearing on it should be rejected.
4.3.2. Rejection in limine of a piece of evidence:
Now, in the specific case it can be ascertained that out of the eleven pieces of
evidence presented by the Procedural Representation of the accused, the Criminal
Procedural Legal Opinion signed by the Spanish professor Doctor José María
Asencio Mellado dated December 22, 2017 must be rejected outright (folios
1024/1103), due to not qualifying as a new piece of evidence, for the reasons
explained below:
1
This filter of relevance of the new piece of evidence, in the sense that it should have a bearing on the
modification of the situation, has been dealt with in subparagraph 2.9 of the appeal for annulment No. 391-
2011 Piura.
7
4.3.2.1. The Criminal Procedural Legal Opinion signed by Doctor José María
Asencio Mellado concluded that:
i) there is no fumus boni iuris that meets the requirements of the

imputation, provided they are substantiated on objective facts, and
concerning the declarations of the co-defendants, that they are
corroborated externally and based on acts that respect the right of
presumption of innocence in their execution;
ii) the periculum in mora rests on generic and abstract presumptions,

denied or discredited by certain and consistent contraindications;
iii) the principles of exceptionality and necessity lead to the necessary

suspension of the accused being remanded in custody.
4.3.2.2. However, the case is that the aforementioned Criminal Procedural Legal
Opinion, which is a true legal component on being remanded in custody, would
not qualify as a new piece of evidence, because it was prepared based on what has
already been resolved by the First National Preparatory Investigation Court.
4.3.2.3. In good conscience, said Criminal Procedural Legal Opinion would have
only been limited to analyzing the legal situation of the accused, at the time when
he was issued the order to have him remanded in custody, proposing a re-
evaluation of what had already resolved concerning being remanded in custody, a
matter that is prohibited in a proceeding concerning the suspension of the accused
being remanded in custody (where the concurrence of new circumstances is
required to reevaluate the legal situation of the accused).
4.3.3. Analysis on the new pieces of evidence:
With regard to the new pieces of evidence presented by the applicant, it happens
to be the case that they had a bearing on three central issues, namely:
i) The existence and legality of the concept of Leader of the

Consortium (Leadership Fee).
ii) The reimbursement of the payment of bribes was not disguised

with the concept of payment of additional risks.
8
iii) The conduct attributed to the accused Hernando Alejandro

Constancio Graña Acuña would not have criminal relevance.
In that order of ideas, we have that:
4.3.3.1. About the existence and legality of the Leader of the Consortium
concept:
The Procedural Representation of the accused presented as new pieces of

evidence the Legal Report prepared by Dr. Enrique Navarro Sologuren, the Model
Consortium Contract and the Appeal Hearing Video, in order to prove unfounded
that the leadership fee is an anomalous concept (with circumstantial evidence of
criminality), however, it does not undermine the initial grounds, because of the
following:
4.3.3.1.1. Presentation of the evidence:
4.3.3.1.1.1. The Legal Report prepared by Dr. Enrique Navarro Sologuren dated
January 31, 2018, in which it was indicated that:
a) It is possible to establish a leadership fee pursuant to the contractual

freedom; another issue is assuming greater risks for the execution of
additional works (it refers to the execution of additional or complementary
works, after the completion of the main works).
b) The times are different, the first one (leadership fee) from the beginning
of the works until the Peruvian partners selling their shareholding, first a
decrease and then the total sale (see General Shareholders' Meeting dated
June 16 of 2011), the second one, the execution of additional and
complementary works which is 2011 onwards, once the main works are
substantially completed (see JGA Minutes dated February 15, 2011, where
the agreement determines that from this General Shareholders' Meeting
the company Odebrecht Perú Ingeniería y Construcción SAC assumes the
risks for the execution of the additional and complementary works, and
additionally those works that are entrusted to it).
c) The concepts of leadership, leadership fee and risks inherent to the

execution of additional works, are concepts that are quite usual in the
construction industry; they are common practice in construction projects,
given the nature of the business (a risky business with a high level of
coordination).
9
4.3.3.1.1.2. The Model Consortium Contract of the International Chamber of

Commerce (folios 915/964) deals with the figure of the Leader of the Consortium,
in which various topics were developed, including:
a) The concept of Leader, a role to be played by a member of the Consortium

that has been designated to play that role.
b) The authorization, according to which the Leader of the Consortium shall

be authorized to carry out the actions and activities that are detailed in the
Contract or in subsequent decisions of the Steering Committee.
c) The duties of the Leader of the Consortium, which are exclusively of

an administrative and coordination nature, include: i) providing technical,
commercial and organizational coordination of the members of
Consortium in the bidding phase and during the performance of the
Contract, ii) acting as the spokesperson in negotiations with the Agent's
Employer, authorities or third parties that are of common interest,
including preparing the necessary correspondence; iii) presenting the bid
on behalf of the Consortium and coordinating the necessary procedures,
especially with the possible registration of the Consortium, keeping the
necessary books, preparing and filing tax returns on behalf of the
Consortium, convening, chairing and keeping minutes and records of the
meetings of the Consortium's executive bodies; iv) putting forward
proposals with regard to the joint insurance coverage of all the members of
the Consortium; v) coordinating the establishment of a joint works area; vi)
coordinating the preparation of progress reports and other documentation
that needs to be presented to the employer; vii) maintaining an integrated
information and digital documentation system and organizing the
exchange of such documentation between the Members of the Consortium
and the Agent's Employer; and, viii) collecting data for invoicing the
employer and collecting the relevant payments; ix) complying with any of
the duties entrusted to the Consortium under this Contract or by an
agreement or decision of the Steering Committee or the Members of the
Consortium.
d) The remuneration of the Leader of the Consortium shall be established

based on the Value of the Works adding the applicable value-added tax,
the agreed global compensation shall be included in the Contract within
the calculation of the contractual price for the agent's employer, and the
payment terms of the compensation of the Leader of the Consortium shall
be specified in Section I Special Conditions.
10
4.3.3.1.1.3. Video of the Appeal Hearing attached to folio 1022 overleaf, in which
the Senior Prosecutor asserted that there was no circumstantial evidence of
criminality in the figure of the Leader fee.
4.3.3.1.2. About the initial grounds:
The initial grounds were focused on the accused Hernando Alejandro Constancio
Graña Acuña, in his capacity as representative of G&M SA, allegedly having
placed part of the ill-gotten gains in favor of the company Odebrecht, to hide the
proportional economic cost of the bribe.
It should be specified that the specific participation of the defendant would have
occurred only in connection with the assignment of profits on the part of G&M
SA (in which said defendant intervened as attorney in fact) in favor of
ODEBRECHT, through the concept of additional risks (to cover the payment of a
bribe), at the General Shareholders' Meeting of CONIRSA SA dated June 1, 2011
(folios 108/110).
4.3.3.1.3. Contrast between the new pieces of evidence with the initial grounds:
Contrasting the Legal Report by Navarro Sologuren, the Consortium Model

Contract and the Video of the Appeal Hearing with the initial grounds, it can be
ascertained that the existence and legality of the concept of Leader of the
Consortium (in a generic and abstract sense) does not deny at all the likely
occurrence of the payment of the bribe (via the assignment of profits under the
concept of additional risks in CONIRSA), let me explain:
a) At the outset it is important to distinguish two key concepts: the concept

of Leader of the Consortium and the concept of risks for the execution of
additional and complementary works, so we have that:
o The concept of Leader of the Consortium — Leadership fee —

has been developed in the Model Consortium Contract, with regard
to its definition, duties and remuneration, highlighting that it is a
legal figure used in the commercial sphere, specifically within the
framework of a Consortium Contract and in which the Leader of
the Consortium shall perform exclusively administrative and
coordination duties, for which reason their remuneration shall be
established according to the Value of the Works, being the
assumption of risks alien to it, with which its existence and legality
is affirmed.
11
o The concept of risks inherent to the execution of the Additional

and Ancillary Works is associated with the risks derived from the
works that are executed after the completion of the main works,
which had been invoked at the General Shareholders' Meeting of
CONIRSA on February 15, 2011, stating that said risks shall be
fully assumed by the Odebrecht shareholder (see folio 1647 of
separate proceedings 16-2017-74).
b) The case of the additional risks, invoked at the General Shareholders'

Meetings dated June 1, 2011 of CONIRSA, is different (folios 108/110),
Section 2 Concessionaire (folios 112/114) and Section 3 Concessionaire
(folios 119/121), which would have been created to justify the
assignment of profits on the part of the consortium companies in
favor of ODEBRECHT, because:
o Said concept is not included in the Rules for the Preparation and
Presentation of the International Accounting Financial Statements
and in the Conceptual Framework, which means that there is no
such legal concept.
o Faced with this scenario, the defendant's Procedural

Representation invoked two different legal concepts to explain and
justify the assignment of profits, namely the concept of Leader
Fee (according to the official discourse raised by the Procedural
Representation of the accused), and the concept of risks inherent
to the execution of the Additional and Ancillary Works only with
regard to the assignment of profits of CONIRSA (as it can be seen
in the General Shareholders' Meeting of CONIRSA dated February
15, 2011 attached to folio 1647 of separate proceedings 16-2017-
74, the General Shareholders' Meeting of CONIRSA SA dated
June 1, 2011 attached to folios 108/110, and the Legal Report by
Navarro Sologuren attached to folios 901/902), a situation that
reveals the procedural conduct of the accused, a deviation from the
truth of the facts that are being investigated.
o This being so, and analyzing the pieces of evidence invoked, it is

concluded that:
 The additional risks would have no connection with the

concept of Leader Fee because there is no evidence to
support it (with the exception of the only speech made by
the Procedural Representation of the accused).
12
 In any case, the only link that the additional risks would
have concern the risks inherent to the execution of the
Additional and Ancillary Works (as is clear from the Legal
Report itself by Navarro Sologuren presented by the
accused).
 However, it should be emphasized that said reference of the

additional risks to the risks inherent to the execution of
the Additional Works and Accessories would have been
fictitious, just to justify the assignment of profits in the
percentages indicated in the General Shareholders'
Meetings of CONIRSA dated February 15, 2011 and June 1,
2011, due to the fact that the risks inherent to the execution
of the Additional and Ancillary Works being executed and
the risks that are contracted in the future were not specified,
and neither were the amounts established, with the
supporting documentation (to a great extent it is
unthinkable that the consortium company G&M SA had
assigned part of its profits to ODEBRECHT for risks in the
execution of additional Works that had not yet been
executed, let alone quantified).
c) Now, in relation to the reasoning proposed by the Procedural

Representation of the accused, in the sense that as the figure of the Leader
of the Consortium legally exists, then, the payment of a bribe would not
have been camouflaged by the concept of additional risks, it cannot be
accepted by this Court, because it has defects as far as the selection of the
premise and the validity of the inference, thus we have that:
o A premise would have been selected that would not be applicable

to the case at hand, because the central argument of the case at
hand revolves around the misuse of the concept of "additional
risks" as legal dressing to cover the reimbursement of a bribe;
however, instead of citing a concept linked to it (additional risks),
he invoked a different concept referred to the Leader of the
Consortium ( Leadership Fee, which is limited to its activities of
an administrative and coordinating nature, and without
understanding the assumption of risks in the execution of
additional works).
13
o In the same way, an error in the proposed syllogism was identified,

when saying that "as the figure of the Leadership fee legally exists,
then the bribe was not camouflaged by the concept of additional
risks," from the premise indicated (referring to a generic and
abstract concept) the conclusion pointed out (linked to a specific
topic) cannot follow, especially if they deal with different issues.
4.3.3.2. About the legal dressing of the repayment of bribes:
The Petitioner's Procedural Representation presented a series of pieces of

evidence, aimed at establishing that, through the figure of the Leadership Fee, the
reimbursement of the bribe was not legally disguised, however, they would not
have enough weight to undermine the initial grounds, due to the following:
4.3.3.2.1. Presentation of the new pieces of evidence:

The Procedural Representation of the accused presented six pieces of evidence,
among them, the Minutes of the Meeting of the Board of CONIRSA No. 8 dated
August 25, 2006 (folios 1637/1640 of separate proceedings 16-2017-74), of the
Shareholders' Agreement of CONIRSA dated October 24, 2005 (folios 965/988),
the Letter of Understanding dated February 9, 2006 (attached to folio 989), the
Share Transfer Agreement dated December 1, 2011 (folios 990/993), the
Memorandum of Understanding dated June 23, 2011 (attached to folios 994/999)
and the Analysis and Commentary of the Accounting, Tax and Legal Treatment
prepared by Juan Carlos Cordero Carrasco (folios 1000/1012), all of which
together have had as their objective to prove that:
a) The assignment of profits of the consortium companies in favor of

ODEBRECHT in CONIRSA would not have been simulated (payment of
the bribe), but genuine; to that end it invoked the legal figure of the Leader
Fee (which would have been agreed in 2005).
b) The payment of compensation for the Leadership would have materialized

within the framework of the departure of the company Graña y Montero
SA from the Consortium, through which Graña y Montero sold its shares
to the company ODEBRECHT.
c) The participation on account of the leadership would be carried out at the

end of the Works, at each balance sheet date.
14
4.3.3.2.2. Contrast of the new pieces of evidence with the initial grounds:
However, the six pieces of evidence noted above are insufficient to undermine the
initial grounds (use of the concept of additional risks to cover a bribe in
CONIRSA), because of the following:
a) The additional risks are not about the Leadership Fee:

The Procedural Representation of the accused seeks to justify the
assignment of profits by CONIRSA dated June 1, 2011 through the
concept of Leadership Fee, to that end it presented a series of pieces of
evidence aimed at establishing that said concept was not created [sic] at
the time of the assignment of the profits (year 2011), but before (2005),
and that it would have been paid at the time when G&M SA left the
Consortium (2011); however, this argument must dismissed, considering
that the concept of additional risks is not linked to the Leadership Fee, but
rather to the concept of risks inherent to the execution of the Additional
and Ancillary Works, as already explained extensively in the preceding
paragraph, which is why all the pieces of evidence that are presented about
the Leadership Fee become irrelevant.
b) The additional risks would have been generated in 2011:

Now, in the case of the assignment of profits in CONIRSA dated June 1,
2011 for additional risks, it can be ascertained that it would have only
been generated in 2011, which would confirm the Public Prosecutor's
Office's thesis, in the sense that this concept would have been used to
justify the payment of covert bribes; proof of this is that:
o The accounting provision for said concept (additional risks) was

not recorded in 2011, despite being required, given that accounting
and tax matters are governed by the accrual rule, in the sense that
any expected loss must be recognized as such immediately, in
accordance with paragraph 22 of the International Accounting
Standard IAS 11 Construction Contracts, and cited in the
Accounting, Financial and Economic Expert Report No. 2-2017
Interoceánica Sur Tramo 2 and 3-IIRSA SUR.
15
o In the same sense, the conclusions reached in the Analysis and

Comments of the Accounting, Tax and Legal Treatment signed by
two Judicial Accounting Experts cannot be acceptable, saying that
in the case of participation due to the leadership it would be carried
out at the end of the works and that, when discussing additional
risks, reference is made to risks for additional works, because:
 It would not have differentiated between the Leadership of

the Works (which occurs during the execution of the main
Works) and the Risks for additional Works (which occurs
when the main Works were completed), in such a way that
it invokes them indiscriminately to justify the assignment
of profits by CONIRSA (on the part of G&M SA, by the
accused in favor of ODEBRECHT).
 It invokes the concept of Leadership of the Works to justify

the assignment of profits in CONIRSA and that it would
have to be applied at the end of the Works, despite the fact
that this concept would not be applicable to it (as already
explained extensively in section 5.3.3.1.3. subparagraph b),
and without taking into account that the account reflecting
those concepts are provisioned immediately according to
IAS 11.
 It assimilates the concept of additional risks to the risks

inherent to the execution of additional works, without
giving any explanation.
4.3.3.3. About the penal relevance of the alleged offense:
Moreover, the Procedural Representation of the accused invoked, as a new piece

of evidence, the Judicial Resolution No. 8 of January 19, 2018 issued by the First
National Criminal Appeals Chamber (hereinafter the Higher Criminal Court),
however, it would be insufficient to prove unfounded the initial appearance of a
prima facie case that hangs over the accused, for the following reasons:
4.3.3.3.1. Although the Higher Criminal Court in Judicial Resolution No. 8 did
not specifically rule on the accused Hernando Alejandro Constancio Graña Acuña,
and indicated that its effects could not be applied extensively to said accused
(because being remanded in custody it is a very personal matter, according to
judicial decision 12 dated February 1, 2018), the truth is that judicial resolution 8,
now invoked as a new piece of evidence, established legal criteria that have a
direct bearing on the facts imputed to the now accused Hernando Alejandro
Constancio Graña Acuña, in order to establish whether or not the initial grounds
were undermined.
16
4.3.3.2.2. That being the case, this Court disagrees very respectfully with the legal
criterion assumed by the Higher Court in Judicial Resolution No. 8, and on the
contrary reaffirms what has already been resolved in Judicial Resolution 2 dated
December 4, 2017 in accordance with its own basis, where an order was issued to
have the accused Hernando Alejandro Constancio Graña Acuña remanded in
custody for the term of 18 months, invoking to that end the principle of
independence in the exercise of the jurisdictional function, provided for in article
139.2 of the Political Constitution of Peru.
4.3.3.2.3. The points of disagreement with the criteria set by the Higher Criminal
Court are explained in detail, among them we have:
a) It is said that the figure of the offense of collusion by integration or chain

of title violates the principle of legality (subparagraph 3.2.13 of resolution
8), however, it was not taken into account that the collusive agreement
when it is complex and involves a number of parts — as well as a
partnership contract, as it would be the case of a consortium contract —
can be formed in time and by integration of other parties into a basic or
initial agreement of intent.
b) It has been pointed out that, given that the circumstances in which Jorge
Henrique Simoes Barata had communicated the conversation with Toledo
to the persons investigated were not defined, the existence of a criminally
relevant conduct cannot be verified (subparagraph 3.2.13 of resolution 8),
however, it has not been taken into account that defects in the necessary
imputation and of non-criminality of the act impute cannot be discussed
when dealing with being remanded in custody, because there are specific
procedural mechanisms for this (protection of rights and objection of
inadmissibility of the proceedings).
c) With regard to the pieces of evidence derived from the effective

collaboration procedure, it indicates that the accused did not have the
opportunity to contradict it (subparagraph 3.3.5 of judicial resolution 8),
however, it was not taken into account that the effective collaboration
procedure is autonomous and reserved and in which other procedural
subjects do not intervene, according to Article 2 of Supreme Decree 007-
2017-JUS (Regulations on Effective Collaboration).
17
d) With regard to the additional risks, the auditors in their statements

mentioned not having found any qualifications and that their opinion is a
standard one, so they would not have found any deviation from the
application of generally accepted accounting principles (numeral 3.3.6 of
the resolution 8), however, it was not taken into account that Auditor
Horna Montoya stated in answer to question 16 that in accounting there is
no definition of additional risks (folio 199), and Aparicio Ponce, who, in
response to question 17 on the concept of additional risks, did not answer
anything
e) It has been pointed out that only the economic activity of the appellants
and the ease with which they could leave the country cannot substantiate
the procedural risk (subparagraph 3.4.3 of judicial resolution 8), however,
it has not been taken into account that a series of additional criteria to
constitute the procedural risk (severity of the penalty, magnitude of the
damage caused, involvement with a criminal organization, obstruction to
the gathering of evidence).
f) It has been said that there is no minimum data to argue that the
presentation of documents has meant an obstruction to the gathering of
evidence (subparagraph 3.4.5 of judicial resolution 8), however, it was not
taken into account that the accused, to justify the assignment of profits for
additional risks, presented documentary evidence that deal with another
concept (Leader of the Consortium), and a Report where it was concluded
that there was no evidence to consider that the differentiated dividends
were linked to corruption activities (although the documentation of the
company was not reviewed).
FIVE: ANALYSIS OF THE THIRD ISSUE (THE NEW PIECES OF

EVIDENCE DID NOT UNDERMINE THE INITIAL PROCEDURAL
RISK):
With regard to the new pieces of evidence that the Procedural Representation of
the accused Hernando Alejandro Constancio Graña Acuña would have presented,
aimed at undermining the procedural risk, they become insufficient, for the
reasons explained below:
5.1. Initial grounds for the procedural risk:
18
It should be borne in mind that, when the order was issued to have the accused
remanded in custody, the procedural risk was considered, given that his ties to the
community were not deemed enough (assuming that his home address, family
and financial ties to the community were deemed accredited — referring to him
being linked to assets that guarantee that he will not escape justice, however his
economic activity has been called into question — due to having used his capacity
as a G&M officer to commit the alleged offense he is accused of, his economic
capacity and the ease with which he could leave the country), the severity of the
sentence (due to the fact that he faces a sentence higher than four years of
custodial sentence), the magnitude of the damage caused (by distorting the
principle of transparency and causing a potential danger to the State's assets in
large-scale public works), involvement with a criminal organization (it could
generate potential danger of him absconding and obstruction), and a conduct of
obstruction to the gathering of evidence (presentation of documents to divert
the ascertainment of truth).
5.2. Reevaluation of the procedural risk:

Given that the accused's Procedural Representation presented new pieces of
evidence aimed at undermining the initial procedural risk, we shall proceed to
reevaluate the procedural risk of said accused in its entirety, based on the new
pieces of evidence presented — which is erected in a kind of gateway to the
suspension of the accused being remanded in custody — and invoking the initial
grounds for the initial procedural risk.
5.3. About the ties to the community:
The ties to the community of the accused Hernando Alejandro Constancio Graña
Acuña, seen in their entirety, would not be deemed enough, because:
5.3.1. The accused has a home address, family and financial ties to the
community — established according to the ownership of assets, however, in his
motion he indicated that he has a family, and even people who depend on him,
and to that end, he presented a series of documents (DNIs (Documento Nacional
de Identidad [National Identity Card]), documentary evidence of the transfer from
the BCP, and documentary evidence from the Social Security Office), which in no
way altered the initial procedural risk (in the sense that it would neither strengthen
nor undermine it), given that this is an issue that has already been proved when
the accused was ordered to be remanded in custody (family ties to the
community).
5.3.2. In the case of labor or activity ties to the community, which constitute the
most important ties to the community, because the experience reveals the
occupation of the accused, and therefore would ensure his relationship to the
proceedings, it can be ascertained that it would have lapsed in the case at hand,
because the accused had resigned from the company's Board of Directors, and
therefore the level of his relationship with the proceedings would have been
weakened.
19
5.4. The ease with which the accused could leave the country:
Established on account of his migratory movement, which would have made it

clear that he would find it easier to leave the country, and potentially to escape
justice, with the clarification that:
5.4.1. This is one of the criteria to be taken into account when defining whether or
not the accused's procedural risk persists, which is why it will only be a factor to
be taken into account in the final balance of the procedural risk.
5.4.2. Moreover, it can be ascertained that the documentary evidence submitted

by the defendant to prove that the trips he made abroad were due to his work
schedule are insufficient to undermine the initial procedural risk, given that they
concern trips made in an era prior to the formal initiation of this investigation
against him.
5.5. Conduct of having attended when summoned by the authorities:
With regard to his procedural conduct of having attended when summoned by the
authorities (Congress of the Republic, Public Prosecutor's Office and Judicial
Power), they [sic: it] become insufficient to prove unfounded the procedural risk
in its entirety, because of being weighed against the other criteria used as the basis
and with greater weight (to constitute the procedural risk), so we have:
a) The severity of the sentence applicable to the accused, which would be a

sentence higher than four years of custodial sentence (established in
accordance with the offense of asset laundering), because as it is likely
that a serious sentence is applied (at least 8 years of custodial sentence), he
is likely to escape justice.
b) The magnitude of the damage caused focuses on the severity of the

charges against the accused Hernando Alejandro Constancio Graña, due to
having joined a basic collusive agreement between Simoes Barata and the
President of the Republic Alejandro Toledo Manrique, to be favored in
public procurement, with potential risk to the State's assets in major works.
20
c) The involvement of the accused with a criminal organization, note that

this is a non-exhaustive criterion of the procedural risk, according to the
Thirty-Fifth Grounds for the Appeal for Annulment 626-2013/Moquegua,
then, in the case at hand Hernando Alejandro Constancio Graña would
have been involved with the criminal company Odebrecht to place part of
his ill-gotten gains in the company ODEBRECHT (carrying out the
reimbursement of a bribe through the legal red herring of the additional
risks), whose representatives are outside the country, and from which it is
inferred that the accused could make use of this contact with the alleged
criminal organization — characterized by paying bribes to public officials
to obtain the awarding of public works in different countries — to escape
justice or to obstruct the gathering of evidence.
o It should be noted that the imputation of the accused as a member

of the criminal organization is not being alluded to, and neither is
he being accused of the offense of belonging to a criminal
organization, rather the only thing that is being done is invoking a
non-restricted criterion of procedural risk, established as a function
of the involvement that the accused would have had with the
criminal company Odebrecht.
o It should be pointed out that, in the case at hand, the existence is

assumed of a criminal organization with a criminal scope, as
recorded on Tax Provision 03 dated January 21, 2017, where it was
pointed out that: “It is necessary to specify that, in the tax folder
19-2016 (Arena case), the offense of unlawful association to
commit an offense has been investigated, considering that the
Odebrecht corporation became a criminal organization due to the
payment of bribes at the international level, having established a
specific area intended for this criminal purpose (Division of
Structured Operations), as well as a network of offshore structures
and computer programs of registration of unlawful agreements
(mywebday) and the Drousys system that allowed the members of
the Division of Structured Operations to communicate with each
other and with external financial operators and other accomplices
using secure emails and instant messaging.”
o Said criterion of the single connection with a criminal organization

already had jurisprudential coverage under subparagraph 8.3. of
File 249-2015-23 issued by the Second National Criminal Appeals
Chamber, Ollanta Moisés Humala Tasso and Nadine Heredia
Alarcón case, in which it was established that:
21
“(…), the accused OLLANTA MOISES HUMALA TASSO and

NADINE HEREDIA ALARCON established links with a
transnational organization, whose modus operandi was to
collude not only with officials and political parties from
different countries but also with political candidates of
different nationalities with the aim of obtaining and
maintaining business in different parts of the world, among
which our country is included.”
5.6. The obstruction to the gathering of evidence materialized in the fact that
the accused Hernando Alejandro Constancio Graña Acuña would have presented
documents to justify the legality of the assignment of profits, that would have
served to disguise the unlawful origin of said funds (reimbursement of the bribe),
among them we have:
a) He cited two concepts to justify the assignment of profits as additional

risks: on the one hand, the concept of Leader fee (folio 1045 of the
separate proceedings concerning the accused being remanded in custody
of separate proceedings 16-2017-74), and on the other hand, the concept
of Risks inherent to the execution of Additional and Accessory Works
(folio 1052 of the separate proceedings concerning the accused being
remanded in custody 16-2017-74), with the aim of misleading the
investigation of the truth, with respect to the facts that are being
investigated in the case at hand.
b) He presented a report signed by Simpson, Thacher & Barlett LLP dated

November 1, 2017, where it was concluded that the accused could not
identify any evidence to conclude that the Company's staff considered that
the payment of the leadership fees or the use of differentiated dividends
was related to corruption activities (point 4c in folio 1071 of separate
proceedings 16-2017-74), despite the fact that this investigation was
made with intrinsic limitations, such as the fact that a significant amount
of incorporation documents, contracts and other operational documents
were missing or not available, which limited the ability to fully analyze
the financial transactions in question during the investigation (folio 1664
of separate proceedings 16-2917-74), from which it follows that the
accused would be using a favorable report to cover up the unlawful acts he
is charged with (having disguised the payment of bribes through the
concept of additional risks), in order to mislead the court.
22
c) In effect, said procedural conduct of the accused to invoke two different

concepts to justify the assignment of profits, and to present a Report to
generate the procedural appearance that there was no evidence of the
payment of differentiated dividends related to acts of corruption, reveals
an objective circumstance of deviation from the truth concerning the facts
that are being investigated against him, due to demanding that he has a
positive conduct, and that, consequently, would reflect an obstruction to
the gathering of evidence, the Constitutional Court ruled in the same sense
in Folio 6 of File 2748-2010-HC Alexander Mosquera Izquierdo, saying
that:
“(…), It should be noted that the obstructionist attitude of the latter

can be demonstrated in: (…), and 4) in general, all those conducts
carried out in order to divert or prevent the acts leading to the
formalization of the criminal complaint.”
5.7. That being the case, and evaluating all in all the procedural risk of the
accused Hernando Alejandro Constancio Graña Acuña, it can be ascertained that
the procedural risk of the latter still persists, as well as his conduct of hindering
the ascertainment of the truth adopted by the accused, the severity of the sentence,
the magnitude of the damage caused and his involvement with a transnational
criminal organization, these having a greater weight than his personal
circumstances of age, state of health and of not having a criminal record.
Due to these considerations, and in accordance with the legal provisions invoked,
the First National Preparatory Investigation Court.
IT IS HEREBY DECIDED TO:
ONE: DECLARE UNFOUNDED the motion for the SUSPENSION OF THE

ACCUSED BEING REMANDED IN CUSTODY, filed by the Procedural
Representation of the accused HERNANDO ALEJANDRO CONSTANCIO
GRAÑA ACUÑA, in the investigation that is conducted due to the offense of
asset laundering, to the detriment of the State.
TWO: LET IT BE NOTIFIED in the manner indicated by the law.
23

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Case 2:17-cv-01105-JMA-ARL Document 22-3 Filed 05/29/18 Page 1 of 24 PageID #: 434

PROCEEDINGS THAT DECLARE UNFOUNDED THE MOTION FOR

JUDICIAL RESOLUTION NUMBER TWO

Lima, February the twenty-third,

ONE: MOTION FOR THE SUSPENSION OF THE ACCUSED BEING

The Procedural Representation of the Accused Hernando Alejandro Constancio

- The leadership of the Consortium or Company manifested through the

Evidence for this can be found in the CONIRSA Shareholders Agreement

- The concepts of leadership, leadership fee, greater risks or additional risks

1.1.3. The Model Consortium Contract of the International Chamber of

1.1.4. The CONIRSA Shareholders' Agreement signed by the intervening parties

1.1.5. The Letter of Understanding dated February 9, 2006 between Odebrecht

1.1.7. The Memorandum of Understanding signed between Constructora

b) With regard to the procedural risk, it pointed out that: i) it cannot be

1.1.11. Legal Opinion of Professor José María Asencio Mellado, in which he

1.2.1. The National Identity Documents of the accused Hernando Alejandro

1.2.4. The cancellation of an airline reservation on a trip he had in November

1.2.5. The letter of resignation of the accused to companies related to Graña y

1.2.5. Official letter of the Multi-Party Committee of the Congress, by which he

1.2.6. Proof of appearance before the Public Prosecutor's Office.

TWO: ISSUES UNDER ANALYSIS:

2.1. The requirements to order the suspension of someone accused being

2.2. Establishing whether the evidence presented by the Procedural

2.3. Determining whether the evidence presented by the Procedural

THREE: ANALYSIS OF THE FIRST ISSUE (REQUIREMENTS FOR

3.2.1. The suspension of the accused being remanded in custody demands

FOUR: ANALYSIS OF THE SECOND ISSUE (THE NEW EVIDENCE DID

As for the evidence presented by the Procedural Representation of the accused

4.1. ABOUT THE CHARGES THAT HAVE BEEN BROUGHT AGAINST

4.2. ABOUT THE INITIAL APPEARANCE OF A PRIMA FACIE CASE:

4.3. ABOUT THE NEW EVIDENCE:

As for the evidence presented by the Procedural Representation of the accused

4.3.1. Requirement of new evidence:

4.3.2. Rejection in limine of a piece of evidence:

i) there is no fumus boni iuris that meets the requirements of the

ii) the periculum in mora rests on generic and abstract presumptions,

iii) the principles of exceptionality and necessity lead to the necessary

4.3.3. Analysis on the new pieces of evidence:

i) The existence and legality of the concept of Leader of the

ii) The reimbursement of the payment of bribes was not disguised

iii) The conduct attributed to the accused Hernando Alejandro

In that order of ideas, we have that:

The Procedural Representation of the accused presented as new pieces of

4.3.3.1.1. Presentation of the evidence:

a) It is possible to establish a leadership fee pursuant to the contractual

c) The concepts of leadership, leadership fee and risks inherent to the

4.3.3.1.1.2. The Model Consortium Contract of the International Chamber of

a) The concept of Leader, a role to be played by a member of the Consortium

b) The authorization, according to which the Leader of the Consortium shall

c) The duties of the Leader of the Consortium, which are exclusively of

d) The remuneration of the Leader of the Consortium shall be established

4.3.3.1.2. About the initial grounds:

Contrasting the Legal Report by Navarro Sologuren, the Consortium Model

a) At the outset it is important to distinguish two key concepts: the concept

o The concept of Leader of the Consortium — Leadership fee —

o The concept of risks inherent to the execution of the Additional

b) The case of the additional risks, invoked at the General Shareholders'

o Faced with this scenario, the defendant's Procedural

o This being so, and analyzing the pieces of evidence invoked, it is

 The additional risks would have no connection with the

 However, it should be emphasized that said reference of the

c) Now, in relation to the reasoning proposed by the Procedural

o A premise would have been selected that would not be applicable