Luis Posada Carriles' Immigration Case Wrongly Dropped

[magbana]

http://news.yahoo.com/s/ap/20080604/ap_on_re_us/cuban_militant


Feds: Militant's immigration case wrongly dropped

By MICHAEL KUNZELMAN
The Associated Press
Wednesday, June 4, 2008; 4:16 PM

NEW ORLEANS -- A U.S. judge improperly dismissed immigration fraud charges against an
anti-Castro militant suspected of plotting the 1976 bombing of a Cuban airliner, a
government lawyer told a federal appeals court Wednesday.

Prosecutors are appealing the dismissal of charges that Luis Posada Carriles made false
statements as part of his bid to become a naturalized U.S. citizen.

Posada is a Cuban-born citizen of Venezuela, where he is wanted for alleged involvement
in a 1976 airliner bombing that killed 73 people. He denies any wrongdoing.

U.S. prosecutors say he was taken into custody after he illegally entered the U.S. from
Mexico in 2005.

In dismissing the immigration charges last year, U.S. District Judge Kathleen Cardone in El
Paso, Texas, said federal authorities engaged in trickery and deceit by using a
naturalization interview to build a criminal case against Posada.

Cardone also ruled that transcripts of Posada's April 2006 interview couldn't be used as
evidence in the criminal case. The judge said the interview was tainted by a translator's
mistakes interpreting for Posada.

Federal prosecutors argued Wednesday before the 5th U.S. Circuit Court of Appeals in New
Orleans that Cardone should not have taken the case out of a jury's hands. John De Pue, a
lawyer for the Department of Justice's national security division, said Cardone went too far
in tossing out the entire transcripts of the interview.

"It's our submission that no one could have possibly misunderstood any of these
questions," he told the court's three-judge panel.

Rhonda Anderson, a lawyer for Posada, said it was Cardone's job to review the reliability of
evidence before a jury could hear it.

"The court exercised its proper authority under the federal rules of evidence," she said.

A ruling could take several months.

Posada, who moved to Miami after the criminal case was dismissed, still faces a
deportation order.

An immigration judge in El Paso has ruled that he should be deported, but not to Cuba or
Venezuela.

The governments of both countries want him handed over to face charges that he plotted
the airliner bombing. The former CIA operative and U.S. Army soldier is also accused of
participating in a series of 1997 bombings targeting tourist spots in Havana.

He was convicted in Panama of participating in a 2000 plot to assassinate former Cuban
president Fidel Castro, but released in 2004 as part of a general amnesty.
© 2008 The Associated Press

U.S. court upholds conviction of Cuban spies

Reuters
Wednesday, June 4, 2008; 6:42 PM

MIAMI (Reuters) - A U.S. court on Wednesday upheld the convictions of five Cubans
serving long prison sentences for spying and conspiracy to commit murder but opened the
door to new and possibly lighter sentences for three of the men.

FBI agents arrested the five in 1998 and they were convicted in 2001 of 26 counts of
spying on the Cuban exile community in Miami on behalf of Fidel Castro's government.

Lawyers for the men, in an August 2007 filing with the Atlanta-based U.S. Court of
Appeals for the 11th Circuit, said they deserved a new trial because the prosecution made
statements in closing arguments that violated court rules and because the sentences were
harsher than the crimes deserved.

The appeals court rejected arguments that the convictions should be overturned but said
the federal court in Miami may have erred when it imposed the sentences against three of
the men in 2001.

The so-called "Cuban Five" are celebrated by many in Cuba as national heroes who were
spying on armed exile groups in Miami to prevent attacks on their country and are victims
of Washington's campaign against the communist-run island.

To hard-line, anti-Castro members of the Cuban exile community the five agents were
justly convicted, however, and Havana's support for them is seen as an example of an
anti-U.S. agenda in Cuba dating back to Castro's 1959 revolution.

In Wednesday's ruling, the appellate court affirmed a sentence of two life terms for
Gerardo Hernandez, who was indicted for conspiracy to commit murder based on charges
he passed information to Havana that led to the 1996 downing by a Cuban MiG fighter jet
of two small planes operated by a Miami-based exile group that were flying near Cuba.
Four people were killed.

The court also affirmed the 15-year sentence of Rene Gonzalez, who was convicted of
acting as an agent for a foreign government and conspiracy to defraud the United States.

The sentences of the three other men, two of whom were serving life terms, were vacated
and remanded for resentencing proceedings in district court.

(Reporting by Tom Brown; Editing by Anthony Boadle)
© 2008 Reuters

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[magbana]

1. Jane Franklin Comment on MH Article on Court Decision - CUBAN 5 NOT ACCUSED OF ESPIONAGE

Re: Cuban Five convictions upheld, three sentences vacated
Posted by: "Jane Franklin" [e-mail]
Wed Jun 4, 2008 4:34 pm (PDT)

While reading this article, (see below) it is important to keep in mind that not
one of the Cuban Five was accused of espionage. The Miami Herald heralds
the court's decision with a big headline: ESPIONAGE. Three of the Cuban
Five were charged with CONSPIRACY TO COMMIT ESPIONAGE. As one of the
lawyers in this case, Leonard Weinglass, puts it so well:

"Conspiracy has always been the charge used by the prosecution in
political cases. A conspiracy is an agreement between people to commit a
substantive crime. By using the charge of conspiracy, the government is
relieved of the requirement that the underlying crime be proven. All the
government has to prove to a jury is that there was an agreement to do the
crime. The individuals charged with conspiracy are convicted even if the
underlying crime was never committed. In the case of the Five, the Miami
jury was asked to find that there was an agreement to commit espionage. The
government never had to prove that espionage actually happened. It could not
have proven that espionage occurred. None of the Five sought or possessed
any top secret information or US national defense secrets. Yet, three of the
Five were convicted of entering into an agreement to commit espionage....The
sentence for the conspiracy charge is the same as if espionage were actually
committed and proven. That is how three got life sentences. The major
charges in this case were all conspiracy related, the most serious being
conspiracy to commit murder levied against Gerardo Hernandez. The government
charged Gerardo with conspiracy to commit murder based on a February 24,
1997, shoot down of two Brothers to the Rescue planes that illegally entered
Cuban airspace." I'll find and send the decision itself later.
Jane Franklin
http://ourworld.compuserve.com/homepages/jbfranklins


Posted on Wed, Jun. 04, 2008
Court rules on sentences of 'Cuban 5'

By WALTER PUTNAM

A federal appeals court has again upheld the politically charged convictions
of five Cuban intelligence agents accused of spying in the U.S., but vacated
sentences of three of them, including two who are serving life terms.

A three-judge panel of the 11th U.S. Circuit Court of Appeals returned those
cases to a federal judge in Miami for resentencing based on findings in an
opinion filed Wednesday that the five gathered no "top secret" information.
It was the third time the case had come before the court.

The full 11th Circuit court already upheld the convictions of the so-called
"Cuban Five" in August 2006. It rejected claims that their federal trial
should have been moved from Miami because of widespread opposition among
Cuban-Americans there to the communist Cuban government.

The five have been lionized as heroes in Cuba, while exile groups say they
were justly punished.

In the appeal ruled on Wednesday, the five challenged a judge's refusal to
suppress evidence from searches conducted under the Foreign Intelligence
Surveillance Act, sovereign immunity, discovery procedures, jury selection
and alleged lack of evidence to support their convictions.

"We conclude that the arguments about the suppression of evidence, sovereign
immunity, discovery, jury selection and the trial are meritless, and
sufficient evidence supports each conviction," Circuit Judge William H.
Pryor wrote.

The latest decision included the life sentence for Gerardo Hernandez, who
was convicted of murder conspiracy in the deaths of four Miami-based pilots
shot down by Cuban jets in 1996. The panel split 2-1 to uphold Hernandez'
life term.

The four slain pilots flew planes that were part of the Brothers to the
Rescue organization, which dropped pro-democracy pamphlets on the island.

Hernandez and the others - Ruben Campa, also known as Fernando Gonzalez;
Rene Gonzalez; Luis Medina, aka Ramon Labanino; and Antonio Guerrero - were
members of what was known by Cuban intelligence as The Wasp Network.

The panel vacated the life terms of Medina and Guerrero and Campa's 19-year
sentence, agreeing with their contentions that their sentences were
improperly configured because no "top secret information was gathered or
transmitted." The judges concurred with Campa that his sentence was too
strict because he was not a manager of supervisor of the network.

The five acknowledged being Cuban agents but said they were not spying on
the United States. They said their focus was on U.S.-based exile groups
planning "terrorist" actions against the Castro government.

After a trial that lasted six months, they were convicted in 2001 of acting
as unregistered Cuban agents in the United States and of espionage
conspiracy for attempting to penetrate U.S. military bases.

A three-judge 11th Circuit panel overturned the convictions in 2005, saying
there should have been a change of venue. But the full court reversed that
decision, 10-2.

The National Committee to Free the Cuban Five denounced the decision to
uphold the convictions.

"It flies in the face of the truth. The five men are not guilty of any
crime," said Gloria La Riva, the committee coordinator. "They were saving
lives by stopping terrorism. They never had weapons. They never posed any
harm to the people of the United States."

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2008 Miami Herald Media Company. All Rights Reserved.
http://www.miamiherald.com