Thursday, May 20, 2010

Brief in favor of the Cuban Five

COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT

UNITED STATES

vs

HERNANDEZ, et al

Appellants Respondents

Case 98-271-CR- LENARD (s)(s)

Appeal No. 1433-1, 1440-1, 1441-1, 1446-1 and 1447-1.

“Whether terrorism is committed against innocents in the United States or Cuba, Israel or Jordan, Northern Ireland or India, it is evil and it is wrong; but the terrorist acts by others cannot excuse the wrongful and illegal conduct of this defendant or any other”.

“As a further special condition of supervised release the defendant is prohibited from associating with or visiting specific places where individuals or groups such as terrorists, members of organizations advocating violence, and organized crime figures are know to be or frequent”.

Transcript of Sentencing Hearing Before The Honorable Joan A. Lenard

12/14/01 (Pages 42-43 and 45-46)

WORKING PAPER FOR A STATEMENT OF INTEREST BY AMICI

INTRODUCTION

On June 17, 1998, the Cuban government submitted to the F.B.I. a memorandum on the ongoing Miami sponsored terrorism against Cuba. The U.S. government itself has recognized that:

“ In June 1998, in the aftermath of a series of bombing and bomb threats against Cuban citizens and interests, a team from the FBI met in Havana with Cuban law enforcement authorities. The discussions focused on allegations that United States residents had participated in a terrorist conspiracy related to the bombings. At that time, Cuban officials shared evidence with the Federal Bureau of Investigation for analysis in Washington D.C.”, (Diplomatic Note, U.S. State Department, to Cuban Interests Section, Washington DC, November 5, 1999).

On September 14, 1998, a Grand Jury seated in the Southern District of Florida returned an indictment against several alleged Cuban nationals operating in Miami seeking information and penetrating Cuban terrorist organizations. The Grand Jury returned the indictment after many reports about the case had appeared on radio, television and print media since their arrest. For the next 17 months, the five defendants were held in pre-trial preventive detention in solitary confinement on the 12th floor of the Federal Detention Center in downtown Miami.

On November 27, 2000, the federal trial commenced against the five Cuban nationals with the Honorable Joan Lenard presiding. The trial lasted almost seven months during which 43 government witnesses and 31 defense witnesses testified. The jury only deliberated for short periods of time during 4 days without even submitting a single note or query to the court. On June 8th 2001, guilty verdicts were returned as to all counts and all defendants. Curiously, when the case was submitted to the jury, the foreman announced exactly what day and time the verdict would be rendered.

By December 27 2001, all sentences had been pronounced against the five defendants. Three of them received life sentences, the remaining two were sentenced to nineteen and a half and fifteen years, respectively. Two days later, on December 29, 2001, the Cuban National Assembly (Parliament), unanimously proclaimed the five as National Heroes of the Republic of Cuba. Today, those Cuban national heroes are serving their sentences in U.S. penitentiaries, in California, Texas and Colorado and in Federal correctional institutions in Pennsylvania and Wisconsin.

Notices of Appeal were timely filed for all of the defendants. Their appellate briefs were filed on

INDICTMENT AND CRIMINAL CHARGES.

Arrested in the wee hours of Saturday September 12, 1998, the defendants were not provided court appointed legal representation until two and a half days later. Immediately upon their arrest, the defendants were interrogated for long hours by arresting federal agents without benefit of counsel. The criminal complaints evolved into a superseding indictment, and eventually the government obtained the return of a second superseding indictment on May 7, 1999.

The second superseding indictment included 26 criminal charges. The most serious being Count 1 (18 USC 371) conspiracy to commit offenses against the USA, knowingly and intentionally acting as agents of the government of the Republic of Cuba without prior notification to the Attorney General and defrauding the governmental functions and rights of the United States. Said conspiracy charged the defendants with gathering information concerning the U.S. military installations, government functions and private political activity, infiltrating, informing and manipulating anti-Castro Cuban political groups in Miami, sowing disinformation within said political groups and by carrying out other operational directives of the Cuban government.

Count 2 charged three of the defendants with conspiring to communicate to the Republic of Cuba information related to the national defense of the USA, believing that the same would be used to create injury to the USA and to the advantage of the Republic of Cuba (18 USC 794, the Federal espionage statute) against the U.S. national defense.

Count 3 charged the main defendant, Gerardo Hernandez, with knowingly and willfully conspiring to perpetrate murder. Murder in the unlawful killing of four members of Brothers to the Rescue, a Cuban paramilitary organization, by the shooting down on February 24 1996, allegedly in the special maritime and territorial jurisdiction of the USA, (18 USC 1111, the Federal murder in the first degree statute).

These three criminal charges were the ones challenged and vehemently disputed by the joint court-appointed defense team for the five Cuban nationals.

The 23 additional criminal charges were related to either false identification (18 USC 1542, 1546 and 1028); of failure to register as an agent of a foreign government without the prior notification to the Attorney General (18 USC 951, 28 CFR 73.01 et. seg.). As to this latter rosary of criminal counts, the defendants did not dispute the evidence and so announced it at the time of opening statements.

BACKGROUND OF THE DEFENDANTS

1. Gerardo Hernández Nordelo.

In addition to the general conspiracy count (Count 1) and the conspiracy to commit espionage (Count 2), Gerardo was the only defendant charged with Count 3, conspiracy to commit murder by the alleged unlawful killing of the four Brothers to the Rescue pilots by the shooting down by Cuban air force Mig pilots, in a disputed air space, on February 24, 1996. Gerardo was at the time of his arrest in 1998, a 33 year old who had obtained his Master degree from Cuba’s School of Diplomacy (Instituto Superior de Relaciones Internacionales “Raúl Roa García”). He is also a graphic artist.

2. Ramón Labañino Salazar.

Ramón was charged in Count 1 and Count 2. He was charged with having monitored the McDill Air Force base nearby Tampa and subsequently working in the oversight of Cuban agents, intending to penetrate the military installations of the Boca Chica naval air station in the Keys and the U.S. Southern Command in Miami. Ramón was 35 years old at the time of his 1998 arrest. He is a Summa Cum Laude graduate in economics from the University of Havana.

3. Antonio Guerrero Rodríguez.

Antonio was also charged with Count 1 (the general conspiracy count) and Count 2 (conspiracy to commit espionage). Born in Florida, a U.S. citizen by birth, his parents were Cuban workers in Florida before returning to Cuba after the triumph of the Cuban Revolution. Antonio was 40 years old at the time of his arrest, having been a resident in the Keys for the previous five years.

At the time of the alleged conspiracy, Antonio held a successive number of unskilled and menial jobs at the Boca Chica naval air base in Key West, beginning as a ditch digger and working his way up to sheet metal helper. At all times he had very limited security clearance status at the base. He never stole or photographed or copied in any fashion any document or tangible object of any sort. Antonio is a graduate engineer of the Kiev Institute in Ukraine and a poet.

4. Fernando González Llort.

Fernando was charged in Count 1 and with a number of false identity and failure to register as a foreign agent charges. Fernando is a graduate of Cuba’s School for Diplomacy (Instituto de Relaciones Internacionales “Raúl Roa García”). He was 35 years old at the time of his arrest.

5. René González Sehewerert.

René was charged in Count 1 and with failure to register as a foreign agent. A U.S. citizen born in Chicago in a family situation similar to Antonio Guerrero (Cuban parents working in the United States until returning to Cuba at the time of the triumph of The Cuban Revolution). Rene is a licensed civilian pilot in Cuba and the United States and had been a prize winning glider pilot in Cuba. He is also a writer. Rene purposely penetrated the Brother to the Rescue and Democracia, terrorist organizations in Miami and was instrumental in informing the FBI about ongoing drug trafficking activities by ant-Castro Cubans out of Southern Florida Opalocka’s civil airport.

ARGUMENT

Change of Venue

The political and social climate in Miami was hostile and highly antagonistic to the five defendants. On numerous occasions trial counsel brought this concern to the attention of the court but to no avail. In violation of their Constitutional right to a fair and impartial jury the Court denied the defendants motion for a change of venue during prolonged and repeated pre-trial litigation.

The Sixth Amendment, US Constitution, affirms:

“ In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed…”

Rule 21, F.R.Cr.P., states that:

“… upon motion of the defendant (the court) shall transfer the proceeding as to that defendant to another district … if the court is satisfied that there exists in the district where the prosecution is pending so great a prejudice against the defendant that the defendant cannot obtain a fair and impartial trial at any place fixed by law for holding court in that district”.

The U.S. Supreme Court decided, in the seminal case of Sheppard vs. Maxwell, 384 U.S. 333 (1966), that:

“ Publicity, either before or during trial, can prejudice jurors and violate a defendant’s right to an impartial jury. If jurors might have been exposed to prejudicial publicity, the court should make an inquiry to determine the existence of actual exposure. To establish juror partiality, the defendant must show that publicity either actually prejudiced an individual juror or so pervaded the proceedings that it raised a presumption of inherent prejudice”.

The Cuban Five defense team realized early on in the pre-trial process that it was impossible for their clients to receive a fair trial in a court of law in Miami. It is the only city in America governed by a body politic totally under the control of Cuban Americans that consider themselves as in exile and in opposition to the Cuban government.

The period between the arrest in September of 1998 and jury deliberations in June 2001, perfectly coincided with the Elian González experience and the mob- type conduct by those who wrongly purport to govern and speak on behalf of the entire Cuban American population in Miami. The public opinion still remembers the riots that were intended to prohibit the performance of Cuban musical groups such as the Van Van and the incidents that led to the transfer of the Grammy Awards away from Miami.

Court-appointed defense expert in psychology, Dr. Gary Moran, Ph.D. testified that he found that 69% of all respondents to a survey in Dade County, and 74% of all Hispanic respondents, were prejudiced against persons charged in the types of activities outlined in the indictment. Dr. Moran further found that nearly 49% of all respondents actually said they could not be fair or impartial. Approximately 90% of all respondents said that there were no circumstances that would change their opinions. Dr. Moran serves as a full professor at Florida International University (F.I.U.) and is a Fellow of the American Psychological Association.

The court denied the motion for a change of venue on July 27, 2000, merely three months before commencement of trial, authorizing the filing of proposed additional voir dire for the court questionnaire to the prospective jurors. The Court erroneously found that the defendants had not demonstrated the degree of pervasive community prejudice which would warrant a presumption of jury prejudice, and that through vior dire and careful instruction to the jury throughout trial will be enable the Court to safeguard defendants´ right to a fair and impartial jury in Miami-Dade County.

The court’s decision not to grant change of venue, within or outside the district, and its cure for the situation by extending the jury questionnaire and allotting additional time for jury selection, did not afford due process of law to the defendants. The defendants had even conceded that Fort Lauderdale (the closest city to Miami) would have been acceptable.

The following trial transcript references are most relevant. On November 27, 2000, on day one of jury selection, immediately after the preliminary examination of the very first panel of prospective jurors and after returning from lunch break, the court was informed that the purported victims relatives present during the voir dire, had conducted a press conference outside the court house and specifically “they were holding a press conference of some sort with cameras as jurors were walking out”. (The Court, 11/27/00, page 111). And the court added:

“It is important that jury venire be isolated from that kind of exposure and during the trial as well … and we don’t need victim families nor the media in accomplishing their goals to be working against the goals of the court and the judicial processes that move forwards” (p. 112).

On June 5, 2001, during jury deliberation and barely 72 hours before the jury returning guilty verdicts as to all counts and all defendants the Court was informed by one of her staff members that:

“...and watched this person being filmed as they were walking the courthouse steps. As she got in the elevator with this person ... there was a discussion among the jurors who were there that they had been followed by the cameras...” (The Court, trial transcript 06/05/01, page 14644).

The Court also found that:

“They were filmed yesterday and several of them felt they were filmed all the way to their cars and their license plates had been filmed…they don’t need this pressure – nothing should be dissuading them or preoccupying the jurors from their duty at this time to deliberate and they certainly should not be pressed by the media during deliberations…this is something brought up by them, they were concerned. The observation was made by my secretary. Then it was brought by the jurors what had happened that they had been filmed and several of them felt their license plates were being filmed, so they are concerned. They are concerned they are being pressed and filmed and I want to accommodate and alleviate that concern that they have …“ (p. 14644 – 14646).

One of the TV crews present throughout the trial was TV Marti, which is owned and operated by the U.S. government. It was crew members from TV Marti who filmed the jurors and their license plates. This conduct should be directly attributed to the prosecutors. It constituted gross misconduct and was designed to intimidate the jury and deny the defendants their right to be tried by an impartial jury.



Despite the Courts acknowledgement of this problem, no action was taken to rectify it. At least two jurors granted interviews to the Miami media after the conclusion of trial and at least two of the jurors, one of them being the jury foreman attended the first sentencing hearing six months later, during which he sat with the relatives of the four deceased B.T.R. pilots and the FBI agents in charge of the case.



BATSON VIOLATION



Jury selection took seven days. The jury was composed of approximately one third white, one-third African American and one-third non-Cuban Latinos. The defense raised a “Batson” challenge to the repeated prosecutorial practice of excluding African Americans from the jury venire, as a violation of the due process clause. The defendants challenged the use of the peremptory challenges in a race-based manner. See Batson vs. Kentucky 476 U.S. 79 (1986). The defense formally filed a Batson opposition to the government’s exercise of six (6) peremptory challenges against African Americans. (Trial transcript, December 5, 2001, at 1496-1497).





THE VERDICT WAS AGAINST THE WEIGHT OF THE EVIDENCE



COUNT ONE



Count One charged all the defendants with participation in a conspiracy. In defending against Count One they put forth a necessity defense in which they stated that when they were:

· Faced with a choice of evils and chose the lesser evil,

· Acting to prevent imminent harm,

· Reasonably anticipating a causal relationship between their conduct and the harm to be avoided,

· That there were no other legal alternatives to violating the law; U.S. vs. De Aguilar 883 F. 2d. 662, 693 (9th Cir., 1989).

The defense variously referred to as “necessity” or “justification” as an affirmative defense which essentially excuses otherwise criminal conduct which is committed for the purpose of preventing an imminent greater harm. U.S. vs. Bailey 444 U.S. 394, 409-410 (1979).

The deeds of these defendants were in response to forty years of hostility by persons who left Cuba since 1959. The defense presented evidence of the following acts of terrorism by individuals and organizations based on Southern Florida:

1. Persons like B.T.T.R. founder José Basulto, C.I.A. trained and who with other men reached within a couple of hundred yards off the coast of Cuba and fired a cannon at a coast-line hotel, intending to indiscriminately kill people. Most recently, from 1993 to 1996, taking advantage of Cuba’s economic crisis after the falling down of socialist countries in Eastern Europe, authored a sizeable number of paramilitary attacks against Cuba, who were, admittedly, sailing off to Cuba to place explosives in the country or to arm people there or themselves to lead military attacks against Cuba, in violation to the U.S. Neutrality Law and international law modern behavior, prohibiting individuals to launch and to go off on military expeditions against countries with whom the U.S. is at peace.

2. Persons and organizations such as ALPHA-66 – with paramilitary training camps off Miami – with C-4 plastic explosives. The acquitted defendants in the USA vs. Alfonso, et. al. Cr. 97-257 (HL) (D.P.R.), after a number of terrorists having been arrested in the Caribbean high seas by U.S.C.S. agents as these men were on their way to Isle Margarita to assassin President Fidel Castro at the time of an Ibero-American Summit in Venezuela in 1997 . U:S: authorities found that the vessel was registered by a Florida company whose chairman is member of the CANF leadership. One of the rifles appeared registered to the president of this organization. The four crew members on the vessel were identified as active members of terrorist groups that operate against Cuba from United States.

3. Terrorists like Orlando Bosch, after authoring a bazooka attack to the United Nations (U.N.) headquarters in 1964, and involved in the assassination of Chilean Foreign Minister Orlando Letelier and Ronni Moffitt, a US citizen in Washington D.C. on September 1976; Bosch has been identified as a vicious killer by the U.S Justice Department which in June 23, 1989 ordered his expulsion from the United States because his terrorist background, including the bombing of a commercial Cubana de Aviación flight that exploded in mid air taking the lives of 73 innocent persons (The Associated Attorney General File A 28 851 622, A 11 861 810 June 23, 1989).

He was later pardoned by then President Bush senior in 1990.

4. Terrorists like Luis Faustino Posada-Carriles currently arrested in Panama after having illegally entered that country with a large cargo of C-4 explosives with the aim of killing the President of Cuba and hundreds of students at an University conference. Posada, in his autobiography, published in Miami, and in a front page interview carried by The New York Times on July 12, 1998, recognized the material and financial support, received from the Cuban American National Foundation (CANF) to carry out activities like the bombing attacks against Havana Hotels, discotheques and public places, in which was killed a young Italian tourist on September 4, 1997.

In the face of this overwhelming evidence of the need for a response otherwise characterized as justification for the acts of the defendants, the jury verdict ignored this affirmative defense which the government failed to disprove beyond a reasonable doubt.

COUNT TWO

Count 2 charged three of the main defendants with conspiring to communicate to the Republic of Cuba information related to the national defense of the USA, believing that the same would be used to create injury to the USA and to the advantage of the Republic of Cuba, in violation to 18 USC 794 (the federal espionage against the U.S. national defense).

The letter of the statute and as instructed by the Court to the jury at the time of Jury Instructions states that in addition to the willful and unlawful confederation and agreement to communicate, deliver and transmit information to a foreign government, in this case, the Republic of Cuba, the following additional requirements are specific elements of the offense to be proven beyond reasonable doubt:

a) The information transmitted would have to be related to National Defense;

b) The information transmitted to be of a type that the government would seek to be protected or safeguarded from public disclosure;

c) That the defendants would have to act with the intent or with reason to believe that the information would be used to the injury of the United States or to the advantage of a foreign nation;

d) That one or more overt acts in the furtherance of the conspiracy be committed.

The element of the offense that pertains to the transmission of information that relates to the national defense, would require that the government proves beyond a reasonable doubt that: a) the material would be potentially damaging to the United States or may be useful to an enemy of the United States and, b) it must prove that the material is closely held by the United States government.

The Jury Instructions specifically asserted that:

“ Where the information has been made public by the United States government and is found in sources lawfully available to the general public, it does not relate to national defense. Where sources of information are lawfully available to the public and the United States government has made no effort to guard such information, the information itself does not relate to the National Defense”. (See in general, Jury Instructions, trial transcript 06/04/01, pages 14593 – 14596).

Defendant Hernández and Labañino were charged with Count 2 by charging them with either transmitting information, not secrets, and/or supervising the presence of defendant Guerrero in the Keys as an unskilled worker at the Boca Chica Naval Station. There was evidence presented by the government that defendant Guerrero transmitted open information about counting airplanes, due to Cuba’s concern about U.S. military preparedness about attacking Cuba in the aftermath of the B.T.T.R. shoot down events of February 24, 1996 or in the context of the expected invasion of Haiti, but never about secrets of National Defense with the intention of committing injury to the United States. Defendant Guerrero was doing what CNN normally does off a military base. Defendant Guerrero was collecting open information that works under the title of open source which is something available to the public, coming without risk. Defendant Guerrero´s compilation of information, not secrets, would come from the Key´s weekly Southernmost Flyer, dated May 22nd, 1998, Defendant Exhibit # 27; or October 25th, 1995 Miami Herald or May 11, 1995 Key West Citizen. Boca Chica Naval Air Base is an open base, not even a front guard at the entrance, there are fence letter signs that invites the observers to take photos.

The one most damaging piece of evidence as to information transmitted was the on-going refurbishing of an old bungalow building, the “Hot Pad”, with a “secret” letter sign, a description as a restricted area and fences around. At the time of the Opening Statement, the government proffered that defendant Guerrero had transmitted a “blue print” of the “secret” Hot Pad building refurbishing. The blue print never existed. Furthermore, the government conceded that defendant Guerrero had not transmitted any secrets of the U.S. related to the National Defense.

Defendant Guerrero was a Key West resident from 1993 to 1998, beginning as a ditch digger working his way up to sheet metal worker, at most installing air conditioning vents, with an average weekly salary of $ 97.00, for a yearly salary of $ 4, 800.

There were several military experts that testified on behalf of the defense and the prosecution(*). A common thread throughout their testimony was the fact that Cuba posed no threat to the national security of the United States.

COUNT THREE

Count 3 charged the main defendant, Gerardo Hernandez, in knowingly and willfully conspiring to perpetrate murder. Murder in the unlawful killing of four members of Brothers to the Rescue, a Cuban counter-revolutionary organization, by the shooting down on February 24 1996, allegedly in the special maritime and territorial jurisdiction of the USA, in violation to 18 USC 1111 (the Federal murder in the first degree count).

The crux of the government’s evidence against defendant Gerardo Hernandez was probably two high frequencies messages sent by Havana to Gerardo Hernández in Miami.

Message 22 instructed:

“that under no circumstances should German nor Castor (defendants Roque and René González) fly with BTTR or another organizations on days 24, 25, 26 and 27, coinciding with celebration of Concilio Cubano, in order to avoid any incident or provocation that they may carry out and our response to it. Immediately confirmed when you instruct both of them. Today N2506 (counter-revolutionary Jose Basulto paramilitary Cessna airplane) asked for a fight plan departing from Opalocka. Confirm if Basulto flew and where. Edgardo 172”. (18 February), (G. Exh. HF-123-G-3, Trial transcript, Rule 29(a), March, 5 2001, page 8038).

The other most damaging message was Message 26:

“…Operation Venice has been a success. The Commander-in-Chief met with all of us on two occasions in order to analyze steps to be taken to continue the operation. He was very pleased with the job done. Send via copronto all secret information related with repercussion. Lorient (defendant Antonio Guerrero) should urgently inform of any changes at the base, specially reinforcements, increase in security measures and state of alert of the units. Since February 24 bases at Homestead and McDill have been at maximum state of alert. 28 February”. (G. Exh. HF-127-G-3, Trial transcript, Rule 29(a), March, 5 2001, page 8046).

The government informed the jury, at the time of Opening Statement that, “the Cuban Intelligence Service...had set up a triple play...they would facilitate their violent confrontation with Brothers to the Rescue...(and that on) February 24, 1996 Operation Scorpion was brought to its deadly conclusion. (Trial transcript, Government’s Opening Statement, December 6, 2000; pages 1593-1599).

The government intended to employ three methods to secure a murder conviction against defendant Gerardo Hernández.

The first method was to suggest to the Court that to convict would not necessarily require finding the defendant guilty of murder in the first degree, but that it could include finding the defendant guilty of murder in the second degree. (May 9, 2001, at 12434-12438).

The second method was trying to persuade the Court to include an instruction claiming, justification and/or legitimate defense instruction for the shoot down. The defense objected to the government’s attempt to confuse the defendants­ legitimate defense with the government of Cuba’s sovereign conduct pursuant to the Doctrine of State.

Defense counsel Paul McKenna asserted:

“These pilots that were in the mission that shot down the BTTR aircraft were following the order of their government. Their government had the Cuban radar on the aircraft in their sovereign territory. They had a right to defend that territory and they exercise that right after the repeated warnings in this case. It was not malice...I think the government confuses the situation. We are not talking about individuals here. Your Honor, we are talking about States. It was a State act and I have tried to frame it within the context of a body of international rules that came out in this trial, the ICAO (International Civil Aviation Organization), to have the jury understand that all nations have a right to protect their sovereign territory”. (May 21, 2001, at 13517-13519)

The third and last method was attempting to limit the Jury Instructions on whether the defendant conspired to commit murder in the special maritime and territorial jurisdiction of the United States. The defense correctly argued that the government was attempting to hold defendant Gerardo Hernández responsible for something that the Cuban government’s military did.

“This was a military decision made by the Cuban government protecting its own borders from someone they viewed to be a terrorist. I daresay if Osama Bin Laden tried to fly over the U.S. Capitol in Washington DC, we would not hesitate to shoot him down, either if we had warned him not to come and he did, and I would submit to the Court, you would not expect someone who said in another country that gave the information that Osama Bin Laden is coming, you would not expect him to be held responsible for a military decision made here in the United States that was involved in protecting our government”. (Defense’s argument at the time of Charge Conference on the jurisdictional element of Count 3, May 9, 2001, at 12446).

Five and a half months later, the presentation of evidence had concluded and the government had not presented any evidence whatsoever that supported the allegation that Gerardo Hernandez had conspired to commit murder.

What the government portrayed as the worst and most incriminating piece of evidence, “the don´t fly” message, could be considered as well, the best exculpatory piece of evidence for the defense. The “don´t fly” message was drafted in the context:

“In order to avoid any incident of provocation that they may carry out and our response to it. Immediately confirm when you instruct both of them (German or Castor). Today N2506 (Basulto´s BTTR paramilitary Cessna aircraft) asked for a flight plan departing from Opalocka...” (Govt. Exh. HF-123-G-3).

“ To avoid any incident of provocation” may be construed as the best exculpatory piece of evidence, not only as to defendant Gerardo Hernández, but also exculpatory for the government of Cuba.

¨ CIPA and FISA.

The pre-indictment criminal investigation and the pretrial period in this case were swamped by two very peculiar prosecutorial devises; to wit, the Foreign Intelligence Surveillance Act (FISA), 50 USC 1801 et seq. and the Classified Information Procedures Act (CIPA), 18 USC App. 3 § 1-16. Perusal of the voluminous docket of this prosecution shows that, for most of the pretrial period between the arrest on September 1998 and the commencement of jury selection in November 2000, pretrial preparation by the defendants was overtaken by a "inch by inch" litigation of tens of thousands of pages characterized by the government as classified information under the authority of CIPA.

The Foreign Intelligence Surveillance Act of 1978 asserts that:

(1) the Court has exclusive jurisdiction to determine the legality of all surveillance and physical searches conducted under FISA,

(2) the Court is to review all pertinent documents of the U.S. Foreign Intelligence Surveillance Act on an ex-parte, in-camera basis,
(3) the electronic surveillance on which the defendants were overheard and the physical search of premises and properties are deemed to be lawful, and

(4) no further disclosure of information to defendants is warranted.

In sum, FISA authorizes the warrantless electronic surveillance for foreign intelligence purposes. Needless to say, there are many unanswered questions such as whether most of the alleged evidence was needlessly enveloped in a cloak of secrecy.

The Classified Information Procedures Act (CIPA) allows the government to limit the discovery of classified information at trial, creating additional obstacles for the defense to overcome in order to exercise the constitutional rights of the defendants. Section 4, for example, authorizes the Courts "upon a sufficient showing" to permit the government's deletion of classified information from documents to be made available to the defendants through discovery, to substitute a summary of the information for such classified documents, or to substitute statements admitting relevant facts that the classified would tend to prove. Section 5, imposes on the defendant the obligation to give notice within 30 days prior to trial of the defendant's intention to disclose classified evidence. Section 6 allows the government to seek a pretrial hearing for the Court to make all determinations concerning the use, relevance, or admissibility of classified information that would otherwise be made during trial.

In sum, (in the context of an otherwise normal criminal defense litigation) by adding FISA and CIPA, the applicable law obliges the defense to show all cards prior to commencement of trial, contrary to the constitutional principles that allow the defense not to advance or commit itself to any particular defense strategy other than announcing expert witnesses or alibi witnesses prior to trial. CIPA and FISA oblige the defense to spend considerable time trying to declassify tens of thousands of documents prior to trial that in the first place should not have been classified at all.

· Pretrial Detention and Solitary Confinement

The five Cuban defendants were in pretrial detention for 33 months before conviction on all counts. They relinquished Speedy Trial rights in exchange for further preparation for trial. They spent approximately 18 months on solitary confinement in the Special Housing Unit (SHU) at the 12th floor of the Federal Detention Center (FDC) in Miami, Florida, prior to sentencing.

¨ Government Misconduct

A summary reading of this working paper, may identify a number of instances, individually or encompassed, that will show the government's prosecutorial misconduct in the instance case. By either cloaking discoverable evidence that should not have ever been classified, procuring pretrial solitary confinement for a period of 16 months before commencement of trial, promising evidence at the time of the government's opening statements that was never produced at the time of trial jamming decrypted messages that meant differently to what the prosecutor was proffering, the government may very well be liable to prosecutorial misconduct, so many times condemned by the U.S. Supreme Court.

The United States Attorney is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done. As such he is in a peculiar and very definite sense the servant of the law, the twofold aim of which is that guilt shall not escape or innocence suffer. He may prosecute with earnestness and vigor-indeed, he should do so. But, while he may strike hard blows, he is not at liberty to strike foul ones. It is as much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one…… Moreover, we have not here a case where the misconduct of the prosecuting attorney was slight or confined to a single instance, but one where such misconduct was pronounced and persistent, with a probable cumulative effect upon the jury which cannot be disregarded as inconsequential. A new trial must be awarded. Berger vs United States 295 U.S. 78,88-89(1935); Kyles vs Whitley 514 U.S. 419,439(1995)

(*)Among the defense and government witnesses that took the stand on the espionage count, the following are most relevant:

Expert witnesses for the defense:

1. Eugene Carroll, Rear Admiral U.S. Navy Retired, 35 years of active service, including the command of two aircraft squadrons, two warships, including an aircraft carrier, and command of the carrier battle force of the U.S. Sixth Fleet. He currently serves as the Vice president of the Center for defense Information in Washington D.C. and has visited Cuba. (Trial transcript 03/06/01, pages 8196 - 8301).

- “Cuba is not a military threat to the united States”.

(At page 8225)

- “Let’s start with Boca Chica. Are you familiar with that as a top gun type of school? “

- “Training site, yes”.

- “What information about United States Navy tactics and training levels would be of any use to the Cuban military?”

- “I know of none. We have been sending teams down to Key West to train and learn fighter tactics for decades and it is a given fact that these planes come and go, come and go”.

(At pages 8229 – 8230)
2. Edward Breed Atkeson, Major General, U.S. Army; West Point graduate, Master’s Degree from Syracuse University and PhD. University of Luton, United Kingdom. Commissioned in 1951, he went up the ranks, first in artillery, anti-aircraft battery commanding and eventually intercontinental ballistic missiles and military intelligence detachment. He ended up in the intelligence field serving under the Director of the Central Intelligence Agency (C.I.A.), retiring from active duty in 1984, since then he has been a consultant to Rand Corporation, serving as an instructor at the Defense Intelligence College and for the last 10 years serving as a Senior Fellow in the Institute for Land Warfare. (Trial transcript, 04/11/01, pages 11049 – 11199).

¨ Defense Counsel William Norris, for defendant Ramon Labanino:

- “Are there any differences between our relationship with the Warsaw Pact and the Soviet Union in Europe and our relationship with Cuba?”

- “Enormous”.

- “What are those differences?”

- “They (the Cubans) are not a threat to us”…. “I don’t think we worry about Cuba at all”.

(At pages 11080 – 11081)

- “How does that fear we are going to attack them (the Cubans), plug back into this concept of essential elements of information?”.

- “My opinion is that they direct their intelligence gathering organization to find out whether indeed we are preparing to attack them”.

- “How do they do that?”.

- “They do it with agents, I guess in this country. They read the newspaper. They probably watch CNN. They have air patrols. Any way they could think of… I don’t think they are concern with trying to get nuclear secrets from the United States or other things of strategic importance that aren’t relevant to them. They don’t think we are going to nuke them”.(At pages 11083 – 11084)

- “How was Cuba viewed by the United States military in the period the mid 1990s after the fall of the Soviet Union, with respect to military threat to the United States?” “It was zero”. (At page 11090)

¨ Defense Counsel Paul McKenna, for defendant Gerardo Hernandez:

- “I would like to direct your attention to that particular word – penetration -. Can you tell to the ladies and gentlemen of the jury, what that word means in this context based on your review of all the documents”?

- “To pass through. It’s a generic term’.

- “Does that term necessary mean obtain classified documents or top secret documents?”.

- “No”… “As far as I know it is not in the dictionary of intelligence terms”.

- “In your review of all the materials, did you ever come across any taking for people to get a hold of classified materials?”.

- “No”.

- “Did you ever find any specific tasking to get a hold top secret material?”.

- “No”.

- “Did you ever come across any tasking directing agents to find materials that would be harmful to the United States?”.

- “No”.

(At pages 11100 – 11102)

3- Charles Elliot Wilhelm, General, U.S. Marines Corps, retired. Commissioned in 1964, he went up all the ranks to becoming General, Four Stars, and the highest rank in the U.S. Armed Forces. He served as the Commander-in-Chief of the United States Southern Command (1997 on); headquartered in the Miami metropolitan area. The court certified General Wilhelm as an expert in the policy and physical systems for security at Southcom. (Trial transcript 04/16/01, pages 11491 – 11547).

· “ My view was that Cuba’s Armed Forces posed no conventional threat to the United States” (at page 11546).

Expert witnesses for the prosecution:

1. James R. Clapper Jr., Lieutenant General, U.S. Air Force, retired. Commissioned in 1961 Lieutenant General Clapper Jr. served for 32 years in active duty in the U.S. Air Force and at the time of his trial testimony was serving as Vice president and Director of the Intelligence Program at S.R.A. International in Fairfax Virginia. Among his duties he served for over three years as Director of Air Force Intelligence Programs and Systems in the Pentagon, and later on as Commander of the Air Force Technical Application Center, Patrick Air Force in Satellite Beach, Florida. He also served as Director of Intelligence for the U.S. Forces in Korea, as Director of Intelligence for the entire U.S. Air Force during Operations Dessert Shield and Dessert Storm, concluding his active service for a 4-years period as Director of the Defense Intelligence Agency (D.I.A.), the senior military analytic organization for the Department of Defense, which has a worldwide global mission to study foreign military activities and operations. (05/16/01, pages 13089 – 13235).

Three questions and answers are of almost importance:

¨ Defense Counsel William Norris, for defendant Ramon Labanino:

- Would you agree, General Clapper, the hallmark, or the distinguishing characteristic of open source intelligence is that it is not espionage?

- That is correct.

(At page 13156).

- You would not in any way, shape or form, as a man with your background in intelligence, classify Cuba as a military threat to the United States?

- Absolutely not. There is not a conventional threat posed by Cuba by any stretch of the imagination.

(At page 13161)

¨ Defense Counsel Paul McKenna, for defendant Gerardo Hernandez:

- Did you ever come across any document that you immediately that you could see their right now and record Giro (Gerardo Hernandez), tasked somebody to get closely held information related to the national defense of the United States?

- Not that I committed to memory, no.

- What you do see is that he is telling somebody to get public information; correct?

- Yes.

(Page at 13226)

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