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13915
1 UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
2 MIAMI DIVISION
3
UNITED STATES OF AMERICA, ) Docket No.
4 )
98‑721‑CR‑LENARD
Plaintiff, )
5 ) Miami,
Florida
v. ) Monday
6 ) May 29,
2001
GERARDO HERNANDEZ, ET AL., )
7 )
Defendants. )
8 )
‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑x
9
VOLUME 99
10
11 TRANSCRIPT OF TRIAL
BEFORE THE HONORABLE JOAN A. LENARD
12 and a jury
13
APPEARANCES:
14
For the Government: CAROLINE HECK
MILLER, ESQ.
15 JOHN KASTRENAKES,
ESQ.
DAVID M. BUCKNER,
ESQ.
16
17 For the defendant Hernandez: PAUL A. McKENNA,
ESQ.
18 For the defendant Medina: WILLIAM M. NORRIS,
ESQ.
19 For the defendant Campa: JOAQUIN MENDEZ, ESQ.
20 For the defendant Guerrero: JACK BLUMENFELD,
ESQ.
21 For the
defendant Gonzalez: PHILIP HOROWITZ, ESQ.
22
23
24
Court Reporter: Richard A. Kaufman,
C.M.R.R.
25
RICHARD A. KAUFMAN, RMR, NP
U.S. COURTHOUSE, MIAMI, FLORIDA 33128
13916
1 I N D E X
2 Direct Cross
Red. Rec.
3
WITNESSES FOR THE GOVERNMENT:
4
SUMMATIONS
5
6
7 WITNESSES FOR THE DEFENDANTS:
8
9
10
11
12 EXHIBITS
13 GOVERNMENT IN EVID.
14
15
16
DEFENDANT'S
17
18
19
20
21
22
23
24
25
RICHARD A. KAUFMAN, RMR, NP
U.S. COURTHOUSE, MIAMI, FLORIDA 33128
13917
1 (Open court. Jury not present.)
2 THE COURT: United States of America versus Gerardo
3 Hernandez et al., Case Number 98‑721.
4 Counsel state their appearances for the record.
5 (All parties present.)
6 THE COURT: Counsel please approach.
7 (Side bar.)
8 THE COURT: As I had chambers indicate on Friday to
9 counsel, I had modified on Thursday after we left at 6:30 in
10 the evening the instruction concerning the statutory exception
11 to 951 and the Kloess ruling and that I believe was faxed to
12 you on Friday morning.
13 I find for the record the modification that the Court
14 made in the last paragraph of the instruction follows the
15 directive in Kloess, in that the jury must find that the
16 government has proved beyond a reasonable doubt that the
17 defendant's conduct is not within the statutory section
18 intended by Congress.
19 In addition, I had chambers notify everyone on Friday
20 I wanted to make additional finding in regard to Count 3 and
21 those findings pursuant to Feola are as follows: I find that
22 there are facts and circumstances that have been presented in
23 both the government's and the defendants' cases that gave the
24 very existence of mens rea. They include issues of
25 justification, based on prior incursions into Cuban air space
RICHARD A. KAUFMAN, RMR, NP
U.S. COURTHOUSE, MIAMI, FLORIDA 33128
13918
1 by Brothers to the Rescue aircraft, improper and unlawful
2 evidence of activity by Brothers to the Rescue aircraft on
3 February 24, 1996 and on prior occasions and conflicting radar
4 data from the United States and Cuba after what occurred and
5 where the aircraft was located at the time of the shootdown
and
6 during the flight on February 24, 1996.
7 Therefore, the defendants' state of knowledge as it
8 relates to the location of the unlawful killings and the mens
9 rea of the conspiracy is relevant.
10 I want to correct something in the record as it seems
11 that the government in its petition to the Eleventh Circuit in
12 its motion for stay indicated they were to be receiving a
final
13 packet of instructions at 11 on Friday. I made no such
14 representation, and in fact I indicated to counsel that I was
15 going to, in an accommodation to counsel, have a very rough
16 draft available specially for the government, so the
government
17 would have it in preparation for closing argument today; but
18 that was an outright misrepresentation of fact made to the
19 Eleventh Circuit.
20 In fact, I had not intended to come in on Friday. I
21 was to be out of the district. I came in, I made my courtroom
22 deputy come in and we worked from 8:30 until five of 1. I was
23 to leave no later than 12:30 to make a very rough draft
24 available so the government would have it this weekend.
25 Are you ready to proceed?
RICHARD A. KAUFMAN, RMR, NP
U.S. COURTHOUSE, MIAMI, FLORIDA 33128
13919
1 MS. MILLER: Yes.
2 MR. McKENNA: Two brief remarks about the jury
3 instruction.
4 THE COURT: I have not finished looking through the
5 packet so I am not prepared to go over it at this time.
6 MR. McKENNA: It has to do with the theory of
7 defense. It should be placed after the charge on Count 3.
8 THE COURT: We can talk about placement.
9 As I indicated on the cover sheet to you when I left
10 here at five of one, well overdue for my being out of the
11 district on Friday, I had not even reviewed the rough draft,
12 that is why it was labeled a rough draft. It was merely
13 provided to counsel on Friday as an accommodation, so all of
14 you would have it over the weekend as you prepared your
closing
15 argument.
16 MR. McKENNA: Understood.
17 THE COURT: It was not a final draft or final packet
18 of instruction and the misrepresentation by the government in
19 their petition to stay, which was denied, as was their
petition
20 regarding the jury instructions on Friday afternoon, is
21 erroneous.
22 MR. McKENNA: Unrelated to the instructions, one
final
23 issue. It has to do with the length of closing argument.
24 Counsel told us today they intend to take a day and a half. I
25 thought that was contrary to what we agreed on which was they
RICHARD A. KAUFMAN, RMR, NP
U.S. COURTHOUSE, MIAMI, FLORIDA 33128
13920
1 were going to open today, two lawyers go Wednesday and two
2 lawyers Thursday and Friday.
3 THE COURT: That was my understanding.
4 MR. McKENNA: I object to opening/closing argument
5 going beyond today.
6 THE COURT: That was my understanding. Mr. McKenna
7 mentioned it at least four or five times last week. Why are
we
8 saying anything different?
9 MR. KASTRENAKES: We are starting a little late.
10 THE COURT: She needs an extra 45 minutes, she can
11 have an extra 45 minutes.
12 MR. McKENNA: We would really encourage we finish the
13 government's today and we begin tomorrow.
14 THE COURT: I can shorten the breaks.
15 (Open court.)
16 THE COURT: Bring in the jury.
17 (Jury present.)
18 MS. MILLER: May it please the Court, counsel, ladies
19 and gentlemen of the jury.
20 First of all, thank you so much for being here for
the
21 attention you have given to all aspects of this case. I would
22 like to thank you on behalf of myself as Caroline Heck Miller,
23 Assistant U.S. Attorney, on behalf of Mr. Kastrenakes, Mr.
24 Buckner, Mr. Alonso, Ms. Salomon and for all the people for
25 whom this is an important day. We know how attentive you have
RICHARD A. KAUFMAN, RMR, NP
U.S. COURTHOUSE, MIAMI, FLORIDA 33128
13921
1 been and we are confident you will be equally attentive in the
2 week that follows and all the arguments counsel will be making
3 and the Court's instructions. I expect I will be speaking to
4 you today and other counsel will be speaking to you in
5 subsequent days this week. Then the government will have an
6 opportunity to make a rebuttal argument.
7 I want to thank you on behalf of so many people.
This
8 is case of people. It is a case of the People of the United
9 States against the individual defendants, Gerardo Hernandez,
10 John Doe Number 2, also known as Luis Medina, John Doe Number
11 3, also known as Ruben Campa, Rene Gonzalez and Antonio
12 Guerrero. Sometimes it is possible to lose sight of the fact
13 this is a case of the United States against these defendants.
14 It is not a trial of the government against Cuba or Jose
15 Basulto or the Cuban exile community. There is nobody on
trial
16 except these defendants and you will hear in the jury
17 instructions, you are here to determine from the evidence in
18 this case whether each defendant is guilty or not guilty.
19 As I speak to you, I will be focusing on the case the
20 government has presented during the months of December,
January
21 and February, a little bit into March.
22 The point is what the defendants have presented is
not
23 important, I will be addressing it and I will address it in
24 rebuttal.
25 The defense case tries to blow past the government's
RICHARD A. KAUFMAN, RMR, NP
U.S. COURTHOUSE, MIAMI, FLORIDA 33128
13922
1 case. Let's look at those violations and how the government
2 has proved them well beyond the burden that it carries, it has
3 proven all the elements of these offenses beyond a reasonable
4 doubt.
5 First and foremost, the proof is overwhelming that
6 these defendants functioned and intended to function here in
7 the United States in the Southern District of Florida as a
ring
8 of agents of a foreign government without notification to the
9 Attorney General. All five defendants that you see here are
10 charged with doing that and they are also charged with
11 conspiring to do that and to deceive the United States with
12 regard to its lawful governmental functions.
13 Three of the defendants on trial here today are what
14 is known as illegal officers, managers with oversight for
15 others, and they are also charged with causing the agents,
what
16 you might call the legmen, to act as foreign agents, agents of
17 a foreign government without notifying the Attorney General.
18 So, Gerardo Hernandez, John Doe Number 2, also known as Luis
19 Medina, III, and John Doe Number 3, also known as Ruben Campa
20 also known as Allan, are charged with causing and abetting
21 agents that they supervised, and the illegal officers as we
22 have heard so often in this trial were here using false
23 identities and passports and they are also charged with counts
24 that relate to the use and the possession of those false
25 identities with the intention to use them unlawfully.
RICHARD A. KAUFMAN, RMR, NP
U.S. COURTHOUSE, MIAMI, FLORIDA 33128
13923
1 The other two defendants, Guerrero and Gonzalez
2 functioned in a world using their true names, because of the
3 precious asset they had which was so precious to the
government
4 of Cuba which was their birth in the United States and their
5 U.S. citizenship; but within the group with code names. Among
6 all five, everything was done with the utmost secrecy, the
code
7 names, the encryption, the avoiding at all cost the SEE. That
8 is enemy special services, and it refers to the United States
9 Government entities including the FBI.
10 That, ladies and gentlemen, that conduct of being
here
11 as agents of a foreign government without notification to the
12 Attorney General, conspiring to do so and the use of false
13 identities, false passports in connection with it accounts for
14 24 of the 26 counts in the indictment.
15 Perhaps that might surprise you, because you might
16 have felt sometimes there were two different trials going on
17 here, but in actuality, ladies and gentlemen, this trial is
not
18 about a political struggle between two ideologies as sometimes
19 may have appeared to you through some of the presentations
20 here. It is much more a factual matter and your job is to
21 determine the facts. It is not your job to resolve the
22 political history of the United States and Cuba. It is not
23 your job to make moral judgments on Fidel Castro, Jose Marti,
24 the CIA or Jose Basulto or Grito de Bairre the most patriotic
25 day in the Cuban calendar.
RICHARD A. KAUFMAN, RMR, NP
U.S. COURTHOUSE, MIAMI, FLORIDA 33128
13924
1 Remember what you will be hearing in the
instructions,
2 in a very real way you are judges, judges of the facts.
3 Another important thing you will be hearing in the
4 instructions, you must not be influenced in any way by
sympathy
5 or prejudice for or against the defendants or the government.
6 All of us Count on you to be objective, to be logical and not
7 to respond to appeals of inflammation in this case as in all
8 others.
9 For your analysis there will be the indictment in
this
10 case. 26 counts and I would like to distribute copies to you.
11 Agent Alonso, would you kindly hand out copies of the
12 indictment.
13 Much of my argument today is going to be going over
14 this indictment and explaining how the facts substantiate
15 everything that is charged in that indictment. There are 26
16 counts. The first three counts charge conspiracies. Counts 4
17 through 26 charge what is known as substantive offenses. The
18 first Count is that all five defendants, including other
19 people, agreed and conspired to do two things, knowingly and
20 intentionally to act as agents of a foreign government, that
21 is, the Republic of Cuba, without notification to the Attorney
22 General, and to defraud the United States with regard to the
23 United States Governmental functions and rights.
24 Can we have Exhibit 1A on the easel, please?
25 All of the individuals who are depicted in 1A are
RICHARD A. KAUFMAN, RMR, NP
U.S. COURTHOUSE, MIAMI, FLORIDA 33128
13925
1 people who made up and comprise this group of conspirators,
and
2 you have heard the term La Red Avispa, the Wasp Network, and
3 you have heard that was a term used to describe this ring.
4 The evidence ladies and gentlemen is overwhelming
that
5 the defendants planned and agreed to do both of those things,
6 act as agents of a foreign government without notification to
7 the Attorney General and to defraud the United States.
8 You are going to hear an instruction that in order to
9 convict of conspiracy, you don't have to find that both of
10 those goals were part of the conspiracy. You can find that
11 only one of those was the goal but if you find only one has
12 been the goal, you must be unanimous to at least one of those
13 goals.
14 We know obviously they did not provide notification
to
15 the Attorney General. You may recall the testimony of an
16 individual marshal Williams who was in charge of the FARA
unit,
17 FARA unit at the Department of Justice. He caused a search to
18 be made of all the places where such notification would have
19 been provided. He caused that search to be made in the names
20 of the defendants, various aliases, other names that were
known
21 and there was no record. Obviously they had not provided
22 notification to the Attorney General of what they were doing.
23 There was no such notification.
24 Furthermore, ladies and gentlemen, these defendants
25 knew they had not disclosed their roles as agents of the
RICHARD A. KAUFMAN, RMR, NP
U.S. COURTHOUSE, MIAMI, FLORIDA 33128
13926
1 government of Cuba to the United States and knew they had not
2 provided notification to the Attorney General. Indeed,
3 concealing what they were doing here and concealing their
4 linkage to the government of Cuba was an obsessive concern of
5 theirs.
6 Can we have placard number 1 on the easel here.
7 You may remember one of the documents that Agent
8 Giannotti testified about, DG 126, it was really a rather
9 amazing document. It was the escape plan that applied to the
10 defendant known as Giro or Giraldo and it listed all the
things
11 he was supposed to do, what he would do if he was arrested, to
12 use one identity and if that didn't work to come up with
13 another identity and that is what is outlined in yellow.
Under
14 no circumstances will Giraldo ever admit to being part of or
15 linked to the Cuban intelligence or any other Cuban
16 organization. These defendants had as an absolute imperative,
17 hiding, obscuring and concealing their roles as agents of the
18 Government of Cuba.
19 Ladies and gentlemen, I think perhaps you recall this
20 but let me go over the nomenclature and what these documents
21 are.
22 As you recall the FBI, pursuant to Court orders, made
23 entries into various apartments of these defendants and during
24 those entries they downloaded or copied diskettes that were in
25 their apartments. During the arrests of the defendants in
RICHARD A. KAUFMAN, RMR, NP
U.S. COURTHOUSE, MIAMI, FLORIDA 33128
13927
1 September of 1998, diskettes were physically seized as well
and
2 they turned out to have voluminous reports on them in
encrypted
3 form. We had testimony from Special Agent Vince Rosado how
4 these reports were decrypted using other disks found in the
5 residences of these defendants.
6 In naming these exhibits, which are basically the
core
7 of the government's case, the three notebooks, they have the
8 tabs, that is what this case is about, ladies and gentlemen,
9 the evidence, the reports, the specific detailing. It is not
10 what a bunch of talking heads say to you about that. You have
11 to make your own assessment of these records and we invite you
12 to do that. We invite you to spend some time with these
13 books. I know you have wrestled with them and juggled them in
14 your laps during the trial but perhaps you didn't have an
15 opportunity to read at your own pace. Please do so. You will
16 find it is an amazing compendium of spycraft, of accounts of
17 what was going on and we think you will find them to be
totally
18 supportive of the government's case.
19 Now, in naming these exhibits, all these exhibits
that
20 came off of these exhibits, which were obtained prior to the
21 arrest in the searches where the diskettes were downloaded or
22 whether physically seized during the arrests, all of those
23 exhibits begin with the letter D as in diskette. For each
24 exhibit there appears an initial and that initial relates to
25 the place where that diskette came from. It is an initial
that
RICHARD A. KAUFMAN, RMR, NP
U.S. COURTHOUSE, MIAMI, FLORIDA 33128
13928
1 stands for the main code name of each individual from whose
2 residence the disks were obtained.
3 This one, for instance is DG, a diskette from Giro,
4 the code name for Gerardo Hernandez and that means and this
was
5 borne out by the testimony, that means this diskette came from
6 the residence of Giro.
7 We also have exhibits that begin DA and the A stands
8 for Allan. Allan is the main code name for the defendant John
9 Doe Number 2, also known as Luis Medina as you see it on the
10 board 1A. That means this diskette came from the residence of
11 Allan.
12 You will also see some exhibits that begin DAV. AV
13 are two initials, A for Allan and V for Vicky. Vicky being a
14 code name for the defendant John Doe Number 3, also known as
15 Ruben Campa, also known as Vicky; and as you will recall, the
16 defendants John Doe Number 2 and John Doe Number 3 were
17 together at the apartment 1776 Polk Street at the time of the
18 arrest September 12, 1998; so disks that were seized from the
19 apartment on that date are labeled DAV, because that was then
20 being used by Allan and Vicky. DA are the searches of Allan's
21 apartment before September 12, 1998.
22 Then we have some exhibits that are DC, that stands
23 for Castor. Those were taken from the residence of defendant
24 Rene Gonzalez. We have some that are DL, L is for Lorient,
the
25 code name for defendant Antonio Guerrero and those diskettes
RICHARD A. KAUFMAN, RMR, NP
U.S. COURTHOUSE, MIAMI, FLORIDA 33128
13929
1 were obtained from locations associated with Antonio Guerrero
2 and there are some other exhibits such as DS, standing for
3 Santos from the residence of Joseph and Maria Santos and there
4 is one DF as in Franklyn. That is the individual Alejandro
5 Alonso, not to be confused with Special Agent Al Alonso.
6 Alejandro Alonso, also known as Franklyn and we have one of
the
7 exhibits seized from his apartment.
8 DG 126 from which this statement comes is really an
9 amazing document, it has explicit acknowledgment of the role
10 being played.
11 Other officers known as Giro shared this concern.
The
12 detailed legends as to main false identities such as Manuel
13 Viramontez and we have obviously a driver's license from
Manuel
14 Viramontez, Exhibit SG 59A and I will ask Agent Alonso to put
15 some of these documents on the viewer as I am speaking.
16 If you can put on SG 59A and Exhibit 12‑3 and 8‑4.
17 These are the identities.
18 These are the driver's licenses in the names of the
19 three illegal officers, that they were using, having the Cuban
20 Intelligence Service having appropriated these identities from
21 infants who died and had again, that precious commodity of
U.S.
22 citizenship.
23 So there was an identity available for these
24 individuals to utilize and to appropriate, and they did.
25 Now, these are the main identities. For the main
RICHARD A. KAUFMAN, RMR, NP
U.S. COURTHOUSE, MIAMI, FLORIDA 33128
13930
1 identities the illegal officers used these dead babies
2 identities. However, their escape or fall‑back identities are
3 in the names of live people, and you saw them come in here.
We
4 had Mr. Daniel Cabrera, Edwin Martinez and Osvaldo Reina and
5 Agent Alonso if you could put them briefly on the viewer.
6 For instance, we had the escape documentation of
7 defendant Gerardo Hernandez right here, defendant John Doe
8 Number 3 right here in the name of Osvaldo Reina and the
escape
9 identification for John Doe Number 2 in the name of Edwin
10 Martinez and these are Exhibits 12‑8, 5‑7 and 8‑7.
11 Now, these defendants in the Cuban Intelligence
12 Service spent a tremendous amount of time procuring and
13 protecting these false IDs and building their legends. DA
125A
14 is an excruciatingly detailed account of the individual John
15 Doe Number 2 how he procured his false Florida Driver's
License
16 in 1992 and clearly, the detail of which this is presented is
17 because it is going to be a teaching tool to go back to the
18 Cuban Intelligence Service and serve as instructional material
19 for others to be able to know how they should go about getting
20 their driver's licenses, to know the little pitfalls, to know
21 what they will be facing when they walk into the driver's
22 license bureau.
23 DAV 119 is a detailed travel report for the defendant
24 John Doe Number 3, also known as Vicky, also known as Oscar,
25 and this is about his travel report, about his arrival, the
RICHARD A. KAUFMAN, RMR, NP
U.S. COURTHOUSE, MIAMI, FLORIDA 33128
13931
1 false identification on July 4, 1998.
2 Ladies and gentlemen, sometimes it is hard to
remember
3 dates, but who could forget that date, the arrival of the
Cuban
4 intelligence agent, the Cuban Intelligence Service on July 4,
5 1998 to live in an apartment at 1776 Polk Street. Sometimes
6 there are little quirks here that helps one remember these
7 things.
8 In this document, DAV 119, the travel report is
9 recounted and in another document that is in evidence, there
is
10 congratulations that is given to Oscar or to Vicky.
11 Congratulations on behalf of department heads and the rest of
12 us here for carrying out your travel plans and making contact
13 with Giraldo. We have already won half the battle.
14 Why is it so important they won half the
battle
15 by the man coming here? Because it is deceiving the United
16 States through his identity into this country and working his
17 way through those portals and there are risks in this travel
18 down the road with false identification.
19 As to the defendants using their birth names, they
are
20 equally aware their work is of the utmost secrecy and not to
be
21 revealed to the United States Government. They use their
birth
22 names precisely because they have that precious commodity
which
23 is a U.S. citizenship, therefore they could be back stopped,
24 truly and accurately all the way to their birth and that
allows
25 them to be exploited successfully. To get jobs on military
RICHARD A. KAUFMAN, RMR, NP
U.S. COURTHOUSE, MIAMI, FLORIDA 33128
13932
1 bases as with the defendant Antonio Guerrero and as was hoped
2 with the defendant Joseph Santos.
3 We heard a lot of cross examination and challenge to
4 government witnesses with regard to Joseph Santos scoffing at
5 the idea, he could never get a job, he was right off the boat
6 from Cuba, his social security card was fresh, he didn't speak
7 good English. Ladies and gentlemen, we have Lorient and
8 Antonio Guerrero who did all those things. He arrived in 1993
9 and very quickly got a job at the Naval Air Station. He was
10 able to function and that is what they were trying to do with
11 Joseph Santos as well.
12 All strictly trying to avoid the surveillance of the
13 FBI.
14 So, when they are trying to function as penetration
15 agents to the United States Government such as Juan Pablo
Roque
16 and Rene Gonzalez holding themselves out as cooperating
17 individuals to the FBI, they do so trying to hide their true
18 role and their real interest.
19 Could we have placard Number 2? This is a document
DG
20 107 that is a report by Castor or Iselin, both code names used
21 by the defendant Rene Gonzalez, in which he speaks of his
22 meeting with Special Agent Al Alonso when Alonso reached out
to
23 him following the return to Cuba of Juan Pablo Roque and
24 following the first decryption of disks that enabled the FBI
to
25 get a view of what was really going on here and what Rene
RICHARD A. KAUFMAN, RMR, NP
U.S. COURTHOUSE, MIAMI, FLORIDA 33128
13933
1 Gonzalez wrote was, in short, I thwarted him, Agent Alonso,
2 diplomatically. I left the door open a crack. I think I was
3 very convincing and my "sincerity" impressed him.
4 If that doesn't show intent to defraud the United
5 States Government, I don't know what does.
6 In reality, we know of course he wasn't thwarting
7 Agent Alonso because by that time the FBI was reading the
8 encrypted disks.
9 Does that mean there was a double standard because
the
10 FBI didn't know what Rene Gonzalez' true role was? No. The
11 FBI is the United States law enforcement. These defendants
are
12 not. They are not acting for United States law enforcement.
13 They were here answerable to a foreign government operating as
14 a shadow force here, setting their own rules. You can call it
15 whatever you want, you can call it spying, vigilantism,
16 pursuing their own ideologies, but if they are doing it for a
17 foreign government without notification to the Attorney
18 General, it is a crime and if they are doing it together in an
19 agreement they all be doing that, it is a crime that violates
20 Count 1 of the indictment as well as the substantive counts
21 charging that offense.
22 The indictment also says what the object of all this
23 was with regard to Count 1, and you will see that at pages 3
24 and 4 of the indictment. It says, object of the conspiracy.
25 The object of the conspiracy was for co‑conspirators to
RICHARD A. KAUFMAN, RMR, NP
U.S. COURTHOUSE, MIAMI, FLORIDA 33128
13934
1 function as covert spies serving the interests of the
2 government of the Republic of Cuba within the United States by
3 gathering and transmitting information to the Cuban Government
4 concerning United States military installations, government
5 functions and private political activity, by infiltrating,
6 informing on and manipulating antiCastro Cuban political
groups
7 in Miami, Dade County by sowing disinformation within these
8 political groups and in dealings with United States private
and
9 public institutions and by carrying out other operational
10 directives of the Cuban Government.
11 That is it, ladies and gentlemen, and please note not
12 only what it says but note what it doesn't say. It doesn't
say
13 whether this was a good thing or a bad thing or whether they
14 were doing it to fight terrorism or aggrandize Fidel Castro;
or
15 they were doing it because they were pro embargo or
16 antiembargo. They were just there to carry out the directives
17 of a foreign government and that is enough for these charges
to
18 be made out. Acting on behalf of a foreign government without
19 notification to the Attorney General is the crime here and it
20 is the object of the conspiracy without regard to the type or
21 purpose of this activity.
22 Now, at pages 4 and 5 of the indictment, there is a
23 description of the mechanics of the conspiracy in ways you
will
24 quickly recognize as having been clearly proved. Paragraph C
25 describes what an illegal officer is. It says the expert
RICHARD A. KAUFMAN, RMR, NP
U.S. COURTHOUSE, MIAMI, FLORIDA 33128
13935
1 witness Stewart Hoyt the retired FBI agent testified and is
2 shown in the document. Diskettes referring to the training
3 that the IOs and the agents received and it gives biographies
4 and training histories of Lorient, Mario, and Julia in matters
5 such as with Julia, you will recall that was the code name for
6 Amarylis Santos; computers, computel, ASCII, dead drops,
secret
7 writing, encryption and decryption, standard and document
8 photography, concealment of devices, illustration in graphics,
9 illustration and computers. The training for Lorient included
10 names and methods of intelligence and counter intelligence,
11 selection of operational resources, secrecy and security
12 measures, cover and legend, visual intelligence, surveillance
13 and countersurveillance, interview characteristics and
14 technique, recruitment, radio intelligence, assaults and
15 explosives.
16 Now, the illegal officers as you know used the
17 technique of assuming identities of deceased U.S. citizens.
18 Not any U.S. citizens, they were citizens with Hispanic
19 surnames and all born in Texas and deceased in California.
Why
20 would that be significant? It breaks the chain, the paper
21 trail record of these individuals and the severing of the
birth
22 and the death records makes it harder to associate the
23 identities because they used birth certificates all the time
to
24 get their identities. If they have a birth certificate that
25 leads to the state of Texas, anybody that wants to check them
RICHARD A. KAUFMAN, RMR, NP
U.S. COURTHOUSE, MIAMI, FLORIDA 33128
13936
1 out and check out the state of Texas would not find a death
2 certificate and would have to go trolling throughout the other
3 49 states and the world.
4 The second criteria for a good identity is have
5 somebody who has no history so they want an infant or a child
6 with no actual history and they have a blank canvas that the
7 comrades from documentation can work on. David is a comrade
8 from documentation and in the records whether there is
9 reporting back and forth concerning document and identity
10 issues, often the sender or recipient is David.
11 It is a lot of hard work establishing and researching
12 these identities and in fact that is one of the tests that the
13 illegal officers have is researching future identities that
14 could be used. That is what Allan, also known as John Doe
15 Number 2, Luis Medina III, was doing in the summer of 1998
when
16 Vicky, also known as Ruben Campa had to come to Miami to cover
17 for Allan in his absence, because Allan was off in California
18 working on something called Operation Texaco. That could be a
19 combination of Texas and California and what we see that was
20 being done through the records seized, Allan was out there
21 gathering death certificates out there in California of young
22 people born in other states.
23 For instance, DAV 116, one of the documents found at
24 the apartment 1776 Polk Street for Allan and Vicky where they
25 were residing in September of 1998 references vacations at the
RICHARD A. KAUFMAN, RMR, NP
U.S. COURTHOUSE, MIAMI, FLORIDA 33128
13937
1 CP and in this mail, the document, comrades will give you
2 instructions on travel documents. It says, the comrade
3 relieving you goes by pseudo Camilo. That was another's name
4 used by the defendant John Doe Number 3, also known as Ruben
5 Campa. Approximate height 1.65 light brown hair, brown eyes,
6 normal build, a bit chunky, color skin, white, at times, wears
7 thick mustache, approximately 35 years beginning baldness.
8 Camilo is one of our IOs with experience in the
U.S.A.
9 territory and with good work results.
10 Then on the next page it goes on to say, we are
11 planning upon your return to U.S.A. territory, that is after
12 the vacation at the CP in Cuba, you carry out tasks related to
13 the Texaco‑3 operation. These tasks you will carry out in
14 another state, possibly in Texas during several months, then
it
15 references expenses related to Texaco.
16 Then we know that in fact Allan carried out that
17 tasking. There are documents that show he was in California
18 during the summer of 1998, and at the time of his arrest in
19 September of 1998, found in the department were fruits of
20 Operation Texaco.
21 THE COURT: Our sound man is on his way. We will
22 break for a few minutes and see if we can get this
straightened
23 out rather than it have it constantly interrupt.
24 We are going to take a break. Do not discuss this
25 case amongst yourselves or anyone else. Have no contact with
RICHARD A. KAUFMAN, RMR, NP
U.S. COURTHOUSE, MIAMI, FLORIDA 33128
13938
1 anyone whatsoever associated with the trial. Do not read or
2 listen to anything touching on this matter in any way. Be
back
3 in the jury room in ten minutes.
4 ( Jury leaves room.)
5 THE COURT: At the point where one could understand
to
6 start the language, the words that are spoken, I get very
7 concerned the jury may be hearing something that they should
8 not be hearing outside the realm of the courtroom and while I
9 hate to interrupt closing argument, I had the sound system
10 checked out on Friday. I had them go over everything to make
11 sure everything was in working order. On Thursday we were
12 having some difficulties, so I made sure Robert came up on
13 Friday and it was in working order. I don't know what this
14 problem is but he is on his way and it sounds like we are
15 getting interference.
16 (Therefore a brief recess was taken, after which the
17 following proceedings were had.)
18 (Open court. Jury not present.)
19 THE COURT: We are back on United States of America
20 versus Gerardo Hernandez, et al, Case Number 98‑721.
21 Counsel state their appearances for the record.
22 (All parties present.)
23 THE COURT: As always, the interpreters are present.
24 By now, hopefully, we have the sound system
25 straightened out.
RICHARD A. KAUFMAN, RMR, NP
U.S. COURTHOUSE, MIAMI, FLORIDA 33128
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1 Bring in the jury.
2 (Jury present.)
3 THE COURT: You may proceed.
4 MS. MILLER: Thank you, Your Honor.
5 Ladies and gentlemen, we were talking about Operation
6 Texaco, the process whereby Allan was helping to procure and
7 research future identities and among the materials that were
8 seized in the apartment on September 12, 1998 were these
items,
9 Government's Exhibit SAV 10 and Government's Exhibit SAV 9.
10 You will obviously have a chance to look at these more fully
in
11 the jury room. SAV 9 is a packet of death certificates of
12 individuals who died at a young age at various places in
13 California.
14 What SAV 10 is, is a worksheet of individuals many of
15 whom match up with these death certificates providing such
16 other information as date of birth, where they died, date of
17 death, where they were born and all things that can be useful
18 in terms of coming up with future false identities for future
19 individuals working in the service of the Cuban Intelligence
20 Service.
21 Ladies and gentlemen, I don't know if you saw that
old
22 movie Invasion Of The Body Snatchers. This is a movie where
23 the planet is being taken over by pod people and at the end is
24 a scene of a truck driving off with new pods in it ready to be
25 sown. That is what this is, new identities ready to be used
RICHARD A. KAUFMAN, RMR, NP
U.S. COURTHOUSE, MIAMI, FLORIDA 33128
13940
1 and ready to be sown by the Cuban Intelligence Service.
2 This was the tasking of Allan in this regard but the
3 intelligence officers as they are also known, IOs worked
4 closely together. For instance, DAV 120 references Allan's
5 expenses during this time period and it shows him in
6 Sacramento, in Fort Lauderdale, in various places in
7 California, Oakland, Ventura. All of these places, ladies
and
8 gentlemen are ones where there were death certificates in that
9 packet SAV 9 and this one place down here, the Silver Sands
10 Motel in Ventura, there was a business card for that and it
was
11 found in the bottom dresser drawer in the apartment that he
was
12 living in with Vicky.
13 Now, Vicky as we know is another name for Special
14 Agent ‑‑ for illegal officer John Doe Number 3 at the time
that
15 the apartment was searched on September 12, 1998. There was a
16 wallet sitting out on the dresser and it was full of Ruben
17 Campa identification, SAV comp. It also included a Capital
18 Beeper Company card and on the back Silver Sands Motel with
the
19 hotel and room number. Obviously John Doe Number 3 was in
20 touch with John Doe Number 2 as Allan was carrying out his
21 tasking.
22 This wallet has a bunch of items of interest in it
and
23 in the jury room you may want to go through it as you would
24 many items, but I will show you one right now, the wallet is
25 full of different cards and identities, but a card for the
RICHARD A. KAUFMAN, RMR, NP
U.S. COURTHOUSE, MIAMI, FLORIDA 33128
13941
1 South Garden Chinese Restaurant and it has items in it like on
2 the back important information about the false identity of
3 Ruben Campa, such as his place and date of birth, an address
4 that he supposedly lived in San Francisco and if you take a
5 look at DAV 118, you will see the whole legend for Ruben Campa
6 and his false identity and the things that supposedly went up
7 to comprise this fictitious life.
8 This defendant had a pretty good memory in September
9 of 1998 and you will recall we heard from Special Agent
10 Berlingeri following the arrest of this defendant he recited
11 some of this information back to Agent Berlingeri. His accent
12 wasn't so great. It was considered to be a put on of a
Mexican
13 accent, but he got his correct date of birth, September 14,
14 1965, Weslaco, Texas, his mother and father's name, even the
15 whole social security number and claimed he had moved to San
16 Francisco and North Carolina going to Wilmington, to
17 Fayetteville in 1995, 1996, and claiming to move to Miami in
18 1998 where he met this individual Luis Medina who was
19 supposedly a shoe salesmen and in his material there were some
20 cards and other evidence concerning a Mason Shoe Company
21 including Mason Shoe salesman of the year certificate, and you
22 may recall there was also Mason Shoe identification that was
23 associated with other defendants in this case, Mason Shoe in
24 Chippewa Falls, Wisconsin, evidently was another part of the
25 package put together by David in documentation for other
RICHARD A. KAUFMAN, RMR, NP
U.S. COURTHOUSE, MIAMI, FLORIDA 33128
13942
1 illegal officers coming to the United States.
2 On the front of this card, Ruben Campa ‑‑ the "Ruben
3 Campa" was noting information on the back of the card like
date
4 of birth. On the front of the card he has a notation Fresno
5 April 21, 1966. That is an item that is even harder to keep
in
6 mind because that is the date of his own death.
7 According to Government's Exhibit 121, that is the
8 date that the real infant Ruben Campa died, and I guess it was
9 useful for this to be noted for some purpose on the South
10 Garden Chinese Restaurant card. The man is walking around
with
11 a business card that has not only the date of his birth but
12 also the date of his death.
13 Returning to the indictment, at paragraph C, it lists
14 all the illegal officers. Paragraph D on page 5 ‑‑ the
15 carryover paragraph from 4 and 5 describe the relationship of
16 illegal officers to agents, that the illegal officers manage
17 and oversee and transmit instructions and receive their oral
18 and written reports, and it names the agents, all consistent
19 with the names that you see here, the names and all the
20 aliases, all the false identities as they were developed
during
21 the testimony of the trial step by step and placed on the
22 board.
23 Now, paragraph E tells us, makes the allegation that
24 this group was known as the Wasp Network and that was proved
25 through items such as document DG 101 at page 2, DG 102 at
page
RICHARD A. KAUFMAN, RMR, NP
U.S. COURTHOUSE, MIAMI, FLORIDA 33128
13943
1 30, DG 137 and certainly the activities of this group were
2 overseen and directed and analyzed and reviewed by the
3 Directorate of Intelligence in Cuba.
4 Clearly there was constant communication back and
5 forth with Cuba and there was frequent travel back and forth
6 using these false identities.
7 We have seen in the documents accounts of travel back
8 and forth of defendants Gerardo Hernandez, defendant known as
9 Allan, Luis Medina III, Vicky, Lorient went back for periodic
10 meetings with an individual known as Comrad Saul, who gave him
11 instructions regarding military priorities. Even the
defendant
12 Rene Gonzalez known as Castor wanted to go. This was a
problem
13 because the legend of Castor was that he was an enemy of the
14 revolution who had come here and it would be difficult for him
15 to go back because of the profile he was trying to maintain as
16 a member of the political activist Cuban exile community.
17 So at DC 101 we see some information concerning a
18 visit to his mother that was paid to her on her birthday by
19 high officials of the Directorate of Intelligence, sort of a
20 consolation prize for Castor himself not being able to go
21 home.
22 The oversight was quite close, and for instance, in
DG
23 111, this is instructional material from Giro to Castor, and
it
24 includes an account for Castor's benefit of some of the
matters
25 that we discussed at the CP with regard to our work on which I
RICHARD A. KAUFMAN, RMR, NP
U.S. COURTHOUSE, MIAMI, FLORIDA 33128
13944
1 took notes.
2 Then on the next page ‑‑ it goes into how the agents
3 are supposed to report. The care and the detail with which
4 they are supposed to report with regard to work with Castor
and
5 Ida. It says it is important for Ida to begin to produce.
6 Ida you may recall is the code name for the wife of
7 Castor who was brought over during the course of these events
8 ostensibly as the wife of this Miami exile activist, but
9 actually having received training also in the service of the
10 Cuban Intelligence Service. Her code name was Ida and here it
11 says it was important for her to begin to produce.
12 It is important you do not sleep on information, even
13 though Castor believes that nothing interesting happened at a
14 particular meeting. He must tell us that nothing interesting
15 happened at the meeting because that in and of itself is
16 important information.
17 It is also noted, insist with Castor that he not
18 include in the information any element which might reveal his
19 identity. If it becomes necessary to give additional
20 information, this person worked with me over there, etc., do
21 this at the end in an explanatory note but not as part of the
22 information.
23 That would make these documents a little bit
24 confusing, because sometimes people will be referred to in the
25 third person even though something is being addressed directly
RICHARD A. KAUFMAN, RMR, NP
U.S. COURTHOUSE, MIAMI, FLORIDA 33128
13945
1 to them.
2 Furthermore, you may see in these documents some
3 reports from Castor in which he will recount who was present
at
4 a meeting and he will include in there the name Rene Gonzalez
5 as having been present at the meeting, and that is because he
6 himself is Rene Gonzalez, the instruction is clear, he is not
7 supposed to ever refer to himself in the first person and he
is
8 supposed to write this report so if it is read by somebody
from
9 the outside, there will be no way of discerning who wrote it.
10 That is explained further, another technique you may
11 have seen, capital letters is the main text of the report and
12 sometimes in smaller letters there is commentary on it and
13 there is this commentary from Giro, they explained to me what
14 happens here. The thing is, they don't receive the disk I
send
15 to them, therefore they don't open the mail on screen from
16 which they can delete things. Instead the mail reaches them
in
17 ciphers and they cut out the information and distribute it to
18 different sectors. If certain information is not well
written,
19 if it contains anything that could identify you, etc., it must
20 be rewritten and this is a waste of time. That is why it is
21 necessary for all information to go separately in writing and
22 contain the largest possible number of elements in each,
always
23 keeping in mind that they might go to different places.
24 Another instruction for Castor, and you will see, of
25 all of the agents, he is the only one that sends reports that
RICHARD A. KAUFMAN, RMR, NP
U.S. COURTHOUSE, MIAMI, FLORIDA 33128
13946
1 are not just written in upper case letters. They are written
2 in upper and lower case letters. The instruction is, tell
3 Castor to write in upper case letters because after his
reports
4 are micro filmed, they are very difficult to read.
5 So the materials being sent back to the Cuban
6 Intelligence Service are not just fleeting materials. They
are
7 being micro filmed, being carefully studied, analyzed and
8 archived. This is serious business, vital business to the
9 Cuban Intelligence Service.
10 The indictment recounts the general topics of the
11 agents' instructions and it covers a variety of areas.
12 The defense has focused on some very particular areas
13 trying to provide some sort of sense, well, it is okay for
them
14 to be here because they are looking at Miami Cuban exile
groups
15 that are "bad."
16 Even with regard to these groups, it does not account
17 for and explain away the criminality of what they were doing;
18 but ladies and gentlemen, furthermore, that is not all these
19 groups were doing here, and at paragraph F, it goes on to say
20 what it was that they were doing. Yes it included
instructions
21 to penetrate and observe and report on the activities of Cuban
22 military groups. Also to penetrate on U.S. military
23 institutions and to seek and intervene with United States
24 public and private institutions including law enforcement and
25 political entities.
RICHARD A. KAUFMAN, RMR, NP
U.S. COURTHOUSE, MIAMI, FLORIDA 33128
13947
1 We know about the law enforcement intervention
through
2 Juan Pablo Roque and Rene Gonzalez' duplicity with the FBI and
3 the political entities, do you recall there was testimony
4 concerning the three Cuban American Congress people, Menendez,
5 Ross Lehtinen and Balart. Also information that came out
6 affecting the election campaign of Lincoln Diaz Balart.
7 The point here is not do you like this representative
8 or this representative. The point here is, the Government of
9 Cuba is sending agents here and part of their tasking is to
10 infiltrate and participate in United States political activity
11 without providing notification to the Attorney General.
Ladies
12 and gentlemen, that is a crime and part of what the plan of
13 this conspiracy was.
14 Other tasks were to provoke and encourage dissension
15 among Cuban political exile figures and you may recall all of
16 the active measures we heard about in this case and a campaign
17 to harass Ramon Saul Sanchez, a campaign to make anonymous
18 phone calls, to send anonymous letters, one to send a
19 threatening letter to the publisher of the Miami Herald.
These
20 were not benign activities, ladies and gentlemen.
21 Furthermore, it provides some insight how this Cuban
22 exile community can come to be viewed when what is actually
23 happening, is that the government of Cuba has agents here
24 purporting to speak in the voice of Cuban exiles sending
25 anonymous letters and making threats on the telephone.
RICHARD A. KAUFMAN, RMR, NP
U.S. COURTHOUSE, MIAMI, FLORIDA 33128
13948
1 Remember Letelier the Chilean, he didn't have time to get out
2 of his car. That was one of the anonymous phone calls they
3 were to make to these Cuban exile groups trying to foment the
4 notion that these groups were factionalized and feuding with
5 one another. To scout for and assess individuals with
6 potential asset to the service of the government of Cuba.
7 The penetration of Cuban political groups, the
defense
8 dwelt a lot on this suggesting the effort was to combat
9 "terrorism," but the groups they were monitoring covered a
10 range, some of which were characterized as being terrorists,
11 others of which was not. There was Movimiento Democracia,
12 groups that were supporting Concilio Cubano, something called
13 Miami Medical Team and even Brothers to the Rescue. It is not
14 associated with being a terrorist organization. It is one
that
15 was a troublesome one to the government of Cuba, but one has
to
16 look realistically at what they said they were doing in terms
17 of whether it was fighting terrorism or not.
18 They were also seeking to get information about U.S.
19 Government entities such as Radio Marti and TV Marti and to
20 probe weak points and to try to jam those signals; to provide
21 information to the government of Cuba that would help with
22 jamming those signals.
23 Now, the goal of penetrating and reporting on U.S.
24 military installations, we will be talking about that a bit
25 more with regard to Count 2 of the indictment, the Count to
RICHARD A. KAUFMAN, RMR, NP
U.S. COURTHOUSE, MIAMI, FLORIDA 33128
13949
1 commit espionage, but their activities on military bases were
2 also in furtherance of Count 1 because everything they did was
3 activity on behalf of the government of Cuba and that relates
4 to everything they did, whether it was procuring public
5 information or non‑public information, they were there as
6 agents of the government of Cuba without providing
notification
7 to the Attorney General.
8 I have already spoken about intervention with and
9 seeking to influence United States public and private
10 institutions. The provoking of dissension through active
11 measures and the scouting for and assessment of individuals as
12 potential assets to the service of the government of the
13 Republic of Cuba.
14 In that regard, ladies and gentlemen, DAV 118 is
15 instructive. This is a document partly from Allan for Oscar
on
16 the occasion of Oscar coming ‑‑ also known as John Doe Number
3
17 coming to South Florida in the summer of 1998 to take over
18 Allan's responsibilities and it is signed Allan and references
19 the operations Oscar is taking over and it also has Oscar's
20 escape identity which is Osvaldo Reina and the operations
taken
21 over includes Aeropuerto Boca Chica Naval Air Station, Giron
22 and Surco, which is Southern Command.
23 Now, you may recall that Debbie McMullen an
24 investigator, testified for the defense about certain
25 activities of Mr. Campa and she was unaware of activities that
RICHARD A. KAUFMAN, RMR, NP
U.S. COURTHOUSE, MIAMI, FLORIDA 33128
13950
1 he had undertaken with regard to Southern Command; but ladies
2 and gentlemen, she was only looking at a carefully selected
3 group of documents. This document clearly shows the tasking
of
4 defendant John Doe Number 3 in regard to Southern Command as
5 well as with regard to other matters.
6 In this document, it references Aeropuerto the Naval
7 Air Station mission. It references Operation Giron which is
an
8 operation with objectives of penetrating Federal Congress
9 persons of Cuban origin such as Ileana Ross Lehtinen and
10 Lincoln Diaz Balart and politicians, specially right wingers
of
11 Cuban origin.
12 As a second order of priority, involved with
gathering
13 intelligence possibilities on the Cuban American National
14 Foundation, CID and the federation of ex‑prisoners.
15 It might have seemed to the defense this is all they
16 were doing, looking at the Cuban American National Foundation,
17 and that is not so. Even in the context of Operation Giron,
18 that is the second order of priority. The main order of
19 priority was to penetrate United States political figures.
20 It then goes on to discuss the work directive of
21 Operation Southcom and it then provides later on in this
22 document a sample of a biographical file and ladies and
23 gentlemen, I wanted to just speak to you about that for a
24 moment and if I could have placard number 24 which reproduces
25 some of this material.
RICHARD A. KAUFMAN, RMR, NP
U.S. COURTHOUSE, MIAMI, FLORIDA 33128
13951
1 This goes to the issue of the importance of scouting
2 and assessing recruits. This was a vital part of what was
3 being done specially at the military installations and you
will
4 recall this was a topic of discussion and recording with
5 Lorient, who are your relationships, give us the names,
sorting
6 through names who would be likely. There was a person named
7 Ryan they were interested in trying to cultivate.
8 Moreover at Southcom, when they again to perceive
that
9 getting a job directly for Joseph Santos might take longer
than
10 they wanted, let's do indirect, getting Santos and Amarylis to
11 make friends with people and scout them out. In this document
12 there are instructions how to write a biographical file and
you
13 could see on the screen first there is a template given of the
14 names, the phone numbers, the identification you want, then
15 after going through all of these data, it asks for
biographical
16 data. All the biographical data you could gather on the
person
17 and then it goes into intelligence possibilities, personal
18 characteristics and motivation, and we see that further on
this
19 placard.
20 The intelligence possibilities. Whether or not the
21 person has the possibility for intelligence use, how he or she
22 can be exploited and it goes on and talks about personal
23 characteristics and motivation.
24 At this point it is very interesting ‑‑ give your
25 opinions whether or not these people are recruitable by us.
RICHARD A. KAUFMAN, RMR, NP
U.S. COURTHOUSE, MIAMI, FLORIDA 33128
13952
1 That is, if there is some way we could use the motivations for
2 possible recruiting. He or she might have different
3 motivations and it goes on to talk about politics, idealogy,
4 money, sex, approached by one of our men or women,
compromising
5 whether they have some proof that would allow them using for
6 getting collaboration, anything in obtaining information that
7 would be of interest to us. This is something the IOs are
8 tasking their agents to do and important to the Cuban
9 Intelligence Service, find out how people can be exploited,
10 through their greed, experience, anything that enhances their
11 intelligence possibilities and the information that is
supposed
12 to be provided, it notes everything you know about a person is
13 of interest when we talk about relationships related to
14 operational intelligence work.
15 It further goes on to say, at the time you meet
16 somebody, you will see you will always have an infinite number
17 of questions to ask of them and later on you will be able to
18 create a good and profuse biographic file on them.
19 The people they meet, they are constantly exploiting
20 to serve the interests of the Cuban Intelligence Service.
21 Now, paragraph G of the indictment provides how the
22 Wasp Network's activities sought to interfere and obstruct
23 lawful U.S. Governmental functions as has been noted
24 previously. For instance, seeking to have the U.S. Department
25 of State issue a passport in the assumed identity of a
deceased
RICHARD A. KAUFMAN, RMR, NP
U.S. COURTHOUSE, MIAMI, FLORIDA 33128
13953
1 United States citizen. That relates also to Count 10, ladies
2 and gentlemen, and to the passport that was issued to Luis
3 Medina.
4 Ladies and gentlemen, I know it gets a little bit
5 confusing because there are false documents in the names of
6 false people and there are true documents in the names of
false
7 people and the Luis Medina passport is a "true document,"
8 because according to the application that is on file with the
9 Department of State which is in evidence in this case, an
10 individual, and they have the photograph, it is the likeness
of
11 this individual here who goes by the name of Luis Medina,
12 actually went and made application for a passport and it was
13 issued; so in that sense it was a true passport but issued in
a
14 false name, in the name of Luis Medina and that is not only
15 within the scope of the conspiracy count, it is also a
separate
16 count in the indictment, Count 10.
17 I know there is so much physical evidence in this
case
18 I am sure it must be daunting but we did do one thing we hoped
19 would be helpful, and that is, that the numbering of exhibits,
20 it mostly starts with three digit numbers. There is a 100
21 series, 200 series, 300 series, 400 that mostly relates to the
22 Brothers to the Rescue shootdown; but you will see Government
23 Exhibits less than 100. They will begin, for instance,
Exhibit
24 10 or Exhibit 5‑something and that means they are associated
25 with particular counts that have those numbers.
RICHARD A. KAUFMAN, RMR, NP
U.S. COURTHOUSE, MIAMI, FLORIDA 33128
13954
1 For instance, Exhibit 10 is the passport application
2 that relates to Count 10 and in Count 5 which relates to
3 multiple false identification materials or identification
4 materials held other than for the lawful use of the possessor,
5 you will see there are a bunch of exhibits which are identity
6 exhibits and they all begin 5‑1, 5‑2, etc., and that will help
7 you marshal individual documents to individual counts and
Count
8 10 is the passport application in fulfillment of this first
9 allegation here at paragraph G‑1.
10 Paragraph G‑2 using co‑conspirators in the guise of
11 informants to spy on and manipulate the FBI and that was Juan
12 Pablo Roque and Rene Gonzalez. Rene Gonzalez was certainly
13 seeking to deceive the FBI. Whether he reached out to Agent
14 Alonso or Agent Alonso reached out to him is not the point.
In
15 DG 106, Rene Gonzalez is telling Agent Alonso, this is after
16 the disappearance of Juan Pablo Roque, he is saying I told him
17 I wasn't a Juan Pablo. That is exactly what he was. He was a
18 Juan Pablo, a member of the Cuban Intelligence Service
19 purporting to provide information to the FBI under false
20 colors, and in making that very statement, he was seeking to
21 deceive the United States Government.
22 Furthermore in that same document, he thought he
23 thwarted Agent Alonso diplomatically and they were trying to
24 keep the FBI in reserve in case they, being the Cuban
25 Intelligence Service, wanted to use them in the future.
RICHARD A. KAUFMAN, RMR, NP
U.S. COURTHOUSE, MIAMI, FLORIDA 33128
13955
1 Item Number 3 of the acts of interfering with and
2 obstructing the United States Government, is entering the
3 United States and responding to officials of the Immigration
4 and Naturalization Service in the assumed identity of a
5 deceased U.S. citizen by presenting fraudulent documents.
6 These defendants including the illegal officers were
7 routinely entering the United States using false identity
8 documents. For instance, SAV 38, which is a customs
9 declaration card copy found at the time of the search of the
10 Allan/Vicky apartment and it reflects the false information
11 that was used to procure Ruben Campa, which we know it is a
12 false name, John Doe 3 entry into the United States. He gives
13 his name as Ruben Campa. He gives his address as being Dalton
14 Road, Fayetteville, North Carolina. The country he has
visited
15 before arriving in the United States is Mexico. Of course it
16 was Mexico and Cuba which is not stated there and the whole
17 document obviously is false.
18 We also see in some of the documents his narrative
19 account of how he entered the United States Government and
gave
20 his legend. That is at DAV 119 including to the immigration
21 officer at Houston.
22 There is an incident when the defendant Gerardo
23 Hernandez, of course, using the identity Manuel Viramontez,
24 entered Memphis and had an encounter that was troubling to him
25 where his identification documentation was challenged and you
RICHARD A. KAUFMAN, RMR, NP
U.S. COURTHOUSE, MIAMI, FLORIDA 33128
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1 could read about that in excruciating detail as the defendant
2 Gerardo Hernandez makes a report back to the Cuban
Intelligence
3 Service analyzing what might have gone wrong, what he said,
how
4 he should have handled it, and that appears at DG 135, 136 and
5 DG 105.
6 We also placed in evidence Government's Exhibit 125,
7 if I could have that, please. And this is the customs
8 declaration that went through Memphis that day and it has the
9 immigration stamp on it Memphis, Tennessee and it is also has
10 the false information, Manuel Viramontez, and countries
visited
11 on this trip, Mexico and conspicuously omits Cuba and has date
12 of birth information and other information, which is false.
13 Item 4, planning to obtain and obtaining employment
14 with the Department of Defense in order to spy on military
15 installations.
16 That is exactly what defendant Antonio Guerrero did
17 and exactly what they were trying to have Joseph Santos and
18 Amarylis Santos do at Southcom. In obtaining that employment,
19 there was an undertaking that Lorient made ‑‑ can I have
20 Exhibit 711A, please. This includes the oaths of office by
21 Antonio Guerrero stating that he will support and defend the
22 constitution of the United States against all enemies foreign
23 and domestic, I will bear true faith and allegiance to the
same
24 and I will well and faithfully discharge the duties of the
25 office I am about to enter.
RICHARD A. KAUFMAN, RMR, NP
U.S. COURTHOUSE, MIAMI, FLORIDA 33128
13957
1 Antonio Guerrero like the other defendants who were
2 seeking to deceive the United States certainly did have mental
3 reservation and purpose of evasion. From the fifth item is
4 requesting the assistance of members of the United States
5 Congress to facilitate the entry into the United States of a
6 would be Cuban spy, the wife of Rene Gonzalez and that is in
DG
7 107 page 31.
8 There was some focus in the defense case and in cross
9 examination on the fact that Ida, or Rene Gonzalez' wife
10 already had clearance to enter the United States, but when you
11 look at these materials, you will see the charade being played
12 out, it was the Cubans who didn't want to let her go and the
13 assistance sought of Congresswoman Ileana Ross Lehtinen sought
14 to write to the U.S. Interest Section in Havana to see if they
15 could do something to persuade the Cubans to let her go when
in
16 actuality, the Cuban Intelligence Service was eager for her to
17 be here, but this was part of the charade she was the wife of
18 an antiCastro Cuban as to whom the government of Cuba would be
19 reluctant to make accommodations.
20 Paragraph H explains how there is extreme concern for
21 secrecy and non‑detection by the use of code names, false
22 identities, extensive countersurveillance measures, concealed
23 communication techniques, encryption of the content of
24 communication and compartmentalization of agents and
25 functions.
RICHARD A. KAUFMAN, RMR, NP
U.S. COURTHOUSE, MIAMI, FLORIDA 33128
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1 I will not go over all of those details. There was a
2 ton of evidence in this case concerning that. The code names
3 were proved throughout trial. Some of the names we heard over
4 and over again and appear in the documents such as Allan, the
5 name Johnny didn't appear as frequently but you will recall
the
6 testimony of a lady Wendy Santiago who had met the defendant
7 John Doe Number 2 through her friend Ms. Quinones and they
knew
8 him as Johnny. Certainly Oscar and Vicky were code names for
9 the same individual known as Camilo.
10 We had the escape identities. Juan Pablo Roque was
11 the same as German according to the radio messages concerning
12 his ex‑filtration to Cuba in February of 1996.
13 Lorient was established to be Antonio Guerrero
several
14 ways including by his own biographical statement which appears
15 at DA 122 and there was surveillance of a meeting with Lorient
16 who was photographed with Giro on February 25, 1997 and that
17 appears in a bunch of photographs that are labeled
Government's
18 Exhibits 311, 311A, 312, 312A, 313, 313A, 314 and 314A.
19 That particular meeting on February 25, 1997 is also
20 the subject of one of the overt acts in this indictment, and
it
21 is an interesting meeting because it is preceded by quite a
bit
22 of reporting concerning a building down at Boca Chica Naval
Air
23 Station known as the hot pad building, and could we have
24 placard 15A.
25 Ladies and gentlemen, this placard pulled together
RICHARD A. KAUFMAN, RMR, NP
U.S. COURTHOUSE, MIAMI, FLORIDA 33128
13959
1 disparate items of evidence that lead up to the exchange of
2 materials February 26, 1997.
3 First of all, it relates to something known as
4 building A 1125, also known as the hot pad building. We have
5 heard about this from Captain Hutton who had been the
Commander
6 at the Naval Air Station and it was being renovated and was
7 then certified to hold top secret documents and have top
secret
8 and other classified materials in 1998. This is a photograph
9 of building A 1125. You could see some of the security
10 features including the perimeter fence that went all the way
11 around with razor wire.
12 In DG 123, this is mid year in 1996 ‑‑ excuse me,
13 early 1997.
14 There are previous documents in which Lorient
15 discusses having learned about this building which was
16 renovated for some top secret function. We will talk about
17 that later. Right now I want to talk about the events leading
18 up to February 25, 1997.
19 In DG 123 page 4, Lorient writes they are very
20 interested in this facility. We shall try to come up with a
21 mental blueprint of this installation to give an exact idea of
22 this description. The measurements we are giving are
23 approximations. We shall also try to be more precise in this
24 regard.
25 As you may recognize, these reports are sort of
RICHARD A. KAUFMAN, RMR, NP
U.S. COURTHOUSE, MIAMI, FLORIDA 33128
13960
1 rolling reports and there will be events of subsequent days
2 reported in the same report.
3 Page 6 it goes on, the first thing I wish to make
4 clear, I wrote the first part of this on January 9. Today is
5 Thursday the 23rd of January, two weeks following the above
6 report and I will now expand, bring you up to date and respond
7 to other matters you have requested of me which are important.
8 I have been able to memorize a blueprint more or less exact of
9 this installation, and from the context, you can see he is
10 talking about A 1125, with some of the dimensions. It may be
11 possible for me to make this blueprint and give it to you
12 during our next contact, signed Lorient, January 23, 1997.
13 Here we see another photograph of another angle of
14 this A 1125 with the warning, restricted area, keep out.
15 Authorized personnel only.
16 Then in a subsequent report on February 24, 1997,
17 Lorient is writing in anticipation of a meeting he is going to
18 have the next day with Giro and at the end he talks about
19 enclosures he is going to be giving to Giro along with a
report
20 and says, in addition, a copy of the floor plan of building A
21 1125 in Boca Chica where the hot pad used to be and where
22 remodeling has been done for some "top secret" activity.
23 The next day February 25, 1997, they have their
24 encounter. It was surveilled by several agents. We heard
from
25 2 FBI agents and there are pictures showing materials passing
RICHARD A. KAUFMAN, RMR, NP
U.S. COURTHOUSE, MIAMI, FLORIDA 33128
13961
1 back and forth between Giro and Lorient and here we have a
2 photograph of them that was taken on that day.
3 Ladies and gentlemen, it certainly is a fair
4 conclusion from this chain of events that Lorient went from
5 trying to come up with a mental blueprint to a physical
6 blueprint of some kind he handed off to Giro on February 25,
7 1997, sending it on its way to Cuba for them to be able to
8 study this hot pad building.
9 Ladies and gentlemen, that is something which is an
10 overt act in Count 1 of the indictment. Count 1 of the
11 indictment does not even charge espionage. It charges
activity
12 on behalf of the government of Cuba. Certainly this was
13 activity on behalf of the government of Cuba as to which this
14 defendant had not provided notification to the Attorney
15 General.
16 To wrap up the issue who is who in this case, we also
17 have Castor, being Rene Gonzalez. That is clear through the
18 evidence in this case. It is explicit, for instance, through
19 placard 4, if we could put that on the board and placard 4 is
20 one in which there is a report made of beeper numbers and home
21 numbers for the various agents. This is for the benefit of
the
22 illegal officers and it includes a home number for Agent
Castor
23 and you may recall we also put in evidence certain telephone
24 company records and those telephone company records show, as
25 you can see here, that the same home number for Castor is in
RICHARD A. KAUFMAN, RMR, NP
U.S. COURTHOUSE, MIAMI, FLORIDA 33128
13962
1 fact the home phone number of Rene Gonzalez.
2 There were other codes used by the Wasp Network and I
3 know these codes get confusing. They were confusing for the
4 defendants also. There were little cheat sheets placed around
5 the apartment that would give explanation of these codes and
6 some of them were seized during some of the previous searches
7 and some of them were seized during the searches of September
8 12, 1998.
9 For instance, could we have SAV 40A.
10 Agent Alonso, I think we can take down this placard
11 and put these up instead. These were little post‑it notes
12 found in the apartment, the one that relates Miami to monkey
13 was found in the Allan/Vicky residence, 1776 Polk Street.
14 The one that references the V numbers, that was found
15 at the Gerardo Hernandez reference, 13100 Atlantic Boulevard,
16 and this one is a little legend to the V numbers that were
used
17 for the individuals. The individuals have CT, V 52, Franklyn
18 FK V 53. Manolo V 54 and Judith V 55.
19 These code numbers are also reflected in the chart
20 Government's Exhibit 1A, because sometimes those code numbers
21 are used in reports and they don't even use the names of the
22 individuals.
23 It is a little hard to keep straight, but as I said,
24 it was for the defendants also, and they had those little
cheat
25 sheets and they are available to you as evidence as well.
RICHARD A. KAUFMAN, RMR, NP
U.S. COURTHOUSE, MIAMI, FLORIDA 33128
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1 Ladies and gentlemen, just before we leave this topic
2 of paragraph H and the matter of their security features; I
3 wanted to talk to you for a moment about the fact maybe in
4 retrospect it looks like this group looks transparent or a
5 bunch of bumblers to the world with their encryption laid bare
6 to the FBI and their movements watched and surveilled and
7 photographed by the FBI; but let's not look at it with the
8 hindsight of Monday morning quarterbacking. This was an
effort
9 and endeavor of the utmost seriousness. It was carried out
10 with elaborate and professional concealment techniques. It
had
11 all the earmarks of a classic intelligence operation. It
12 utilized encryption, counterfeiting of documents, counter‑
13 surveillance, colored contact lenses found in the refrigerator
14 at one of the search sites.
15 These diskettes looked blank. It was only when
16 someone with the decryption materials looked at them could
they
17 be seen what they were. They were masters of numerous
18 identities. Their false documents included some that the
19 questioned document examiner from the United States said they
20 were among the best he has seen such as the escape passports
of
21 Osvaldo Reina with the picture of John Doe number 3 and the
22 escape passport of Edwin Martinez, John Doe Number 2.
23 It was one that a foreign intelligence service placed
24 great confidence in. Perhaps it looks easy from the way the
25 FBI did it but that doesn't mean, ladies and gentlemen that it
RICHARD A. KAUFMAN, RMR, NP
U.S. COURTHOUSE, MIAMI, FLORIDA 33128
13964
1 was.
2 Let's not engage in any effort to trivialize or
3 marginalize these defendants. You may recall in opening
4 statements, one of the defense attorneys even said, this
wasn't
5 a James Bond operation, this was more like an Austin Powers
6 operation. Consider these poor pitiful agent with their
little
7 scrimping budgets.
8 Let's stop for a moment and consider how very unfunny
9 these defendants were. Let's look at placard number 5.
10 Placard number 5 is from a document that was found in the
11 apartment of Horacio and when I mentioned the initials, I
12 forgot to state there was diskette DHO and that stands for
13 Horacio. It is a three part one, it is a big one. In this
14 document, ladies and gentlemen, there is a description of
15 something called Operation Picada. Actions to be developed.
16 They are talking about the counterrevolutionary organization
17 Brothers to the Rescue and among actions to be developed is 2,
18 the possibility of burning down the warehouse of the counter‑
19 revolutionary organization and affect their planes, make it
20 seem like an accident, negligence or self damage.
21 Item 3. Attempt to disable their equipment and
22 transmission antenna on land, the one they use to communicate
23 with during their missions, to make it seem like negligence.
24 Further in the same document, ladies and gentlemen,
25 goes on to discuss Operation Paralelo. The objective of this
RICHARD A. KAUFMAN, RMR, NP
U.S. COURTHOUSE, MIAMI, FLORIDA 33128
13965
1 operation is to develop a series of actions against CIA Agent
2 Jesus Flor. Once the house is photographed, make various
3 threatening telephone calls concerning his nearing execution.
4 Item 3. Prepare an alleged book bomb, book, cables,
5 batteries, plastique and send it via express mail.
6 These objectives, at least for Operation Picada are
to
7 be analyzed by Castor who will tell us when the planes will be
8 taking off.
9 Austin Powers, ladies and gentlemen, I think not.
10 This was not the only example. Could we have placard
11 6, agent, and we could take down 5. This is from DG 139.
This
12 is from Giro to Edgardo who is a handler back at the CP. You
13 may recall that stands for Centro Principal, the headquarters
14 of the Cuban Intelligence Service and he is also talking about
15 Brothers to the Rescue.
16 Here are some of the angles with which these people
17 could be crushed. Relaxed security conditions as it is known
18 they had to abandon their hangar in Opa Locka and now are
19 located in terminal 1, a central building. It seems their
20 airplanes are not under the protection of a hangar as they
used
21 to be before. Their vulnerability in this situation could be
22 investigated to see if some kind of sabotage was feasible and
23 convenient.
24 Agent Alonso, could we have placard 7, please.
25 Ladies and gentlemen, this is from DF 101, that
RICHARD A. KAUFMAN, RMR, NP
U.S. COURTHOUSE, MIAMI, FLORIDA 33128
13966
1 document I told you that came from the residence of the
2 individual known as Franklyn, one of the agents. This is
3 instructions ‑‑ excuse me, that is not the one I was looking
4 for.
5 Suggestion. This is the Centro Principal
6 communicating with Franklyn. How would you suggest a maritime
7 incursion could be carried out from the U.S. to our country.
8 What type of boat would you recommend and for what reason.
For
9 this part it would have two or three crew members with false
10 documentation. Tell us by which zone you would consider it to
11 be the safest. Suggest places where one can land that you
12 already know about. The general idea about all of this which
13 is under your control is to operate in the area and be able to
14 move persons as well as things, including arms and explosives
15 between our country and the U.S. for that concept. Suggest
16 other subjects we might not have had in mind. Be as extensive
17 as possible in your explanations and keep in mind we will
never
18 exhaust the theme.
19 We also had testimony the group was considering in
the
20 summer of 1998 dealing with a boat on the Miami River they
were
21 concerned about by considering the possibility of burning the
22 boat down.
23 We also see throughout these documents lurid and
24 belligerent and unequivocal dedication of the United States
25 Government towards their enemy. The FBI is called the enemy
RICHARD A. KAUFMAN, RMR, NP
U.S. COURTHOUSE, MIAMI, FLORIDA 33128
13967
1 secret services. Communication plans for Allan at DAV 111 and
2 for Oscar at DAV 129 are replete with references to enemy
3 surveillance and activity to look out for and signal against.
4 Let's look at placard 8. Here they are talking about
5 TV Marti. Even TV Marti, is the "enemy."
6 This is from a document in Giro's apartment and it is
7 about getting information on TV Marti, the application of this
8 information is vital so as to prepare in a timely manner the
9 mechanism that will allow the neutralization of the enemy
10 signal; talking about jamming TV Marti.
11 Then there are a bunch of placards and I will ask
12 Agent Alonso to bring them all up, placards, 9, 10, 11, 12 and
13 13 and these reflect the rhetoric of adversity towards the
14 United States which is perceived as the enemy. And these are
15 all documents that were retrieved ‑‑ withdrawn. Placard
number
16 8, DG 108 to Allan from Willy. That is one of the handlers at
17 the Centro Principal May 21, 1997. You have the privilege of
18 celebrating this day in the very heart of our main enemy.
19 Then we have a message dated July 28 to Lorient from
20 Oscar, Oscar being John Doe Number 3, and this is when Oscar
is
21 taking over Allan's work as he talks about, brother when you
22 read this file we will have already met each other in person
23 which makes me proud because of the political, operational and
24 human quality of the comrades who like yourself are carrying
25 out missions in enemy territory so our families and our people
RICHARD A. KAUFMAN, RMR, NP
U.S. COURTHOUSE, MIAMI, FLORIDA 33128
13968
1 in general can rest.
2 Then we have placard 11 which is to Lorient from
Allan
3 dated February 24, 1998. Regards and best wishes for this new
4 year of battles and victories right in the enemy's bosom.
5 Then we have placard number 12; December 12, 1997 to
6 Lorient from Allan. Congratulations for your praiseworthy and
7 fine work right in the belly of the enemy. Lorient works at
8 Boca Chica Naval Air Station and Allan characterizes that as
9 being right in the belly of the enemy.
10 Then placard 13 from DAV 125A. This is an older
11 document from Allan. Happy New Year. He is writing to the
12 CP. I hope you spent it with your loved ones and happy as you
13 deserve to be. Received on the last day of the year are
14 brotherly greetings and our conviction from this trench we
will
15 give imperialism the blow it deserves. Greetings, Allan.
16 That concludes this theory, ladies and gentlemen.
17 What the script for this story might be, this is not
a
18 comedy movie.
19 Pages 7 through 11 of the indictment are overt acts
20 and 31 of them are listed. You will hear in the jury
21 instructions that in order to show a conspiracy basically
there
22 has to be a conspiratorial agreement such as is described in
23 the indictment, then at least one Overt Act. In other words,
24 not every Overt Act has to be proved. There does not have to
25 be one Overt Act for every defendant. There has to be one
RICHARD A. KAUFMAN, RMR, NP
U.S. COURTHOUSE, MIAMI, FLORIDA 33128
13969
1 Overt Act that is taken by one member of the conspiracy in
2 furtherance of the conspiracy.
3 The overt acts do not have to be crimes themselves,
4 they simply have to be something that furthers the goals of
the
5 conspiracy and the indictment alleges 31 of them.
6 I will go over them rather quickly, because you will
7 have an opportunity to go through the indictment ‑‑ I will try
8 to go over them rather quickly, and just mention to you
briefly
9 what are some of the items of evidence that relate to these
10 overt acts.
11 On or about December 4, 1995, the DI agreed German's
12 continued involvement with and urgently inform on Jose
Basulto.
13 That is in 107G, one of the radio messages. They came across
14 in morse code and when the morse code was deciphered, it was
15 meaningless jumbles of letters. They were decrypted with
16 programs found at individuals houses and that is the key to
the
17 lettering of the HF messages. For instance, HF 107G and G
18 means that HF message was decrypted with a program found at
19 Giro's residence.
20 You may recall we also had the analyst from the FBI
21 computer team who was here. He did his demonstration how this
22 program worked. At first it looked like a typing program and
23 you can see a little truck moving across the screen and you
had
24 to type something before the truck hit the screen. If one
puts
25 in a certain password, it would lead to the decryption of the
RICHARD A. KAUFMAN, RMR, NP
U.S. COURTHOUSE, MIAMI, FLORIDA 33128
13970
1 HF message and Overt Act 1 relates to one of those overt acts.
2 HF 2 relates to a report found at DG 112 page 2
3 written to Castor from Miguel. That being one of the code
4 names, Miguel, as a member of the conspiracy known as A‑4.
5 Overt Act 3 is found at DG 104 page 2, which is a
6 reference or a message that is directed to Iselin and it is
7 signed Miguel and Giro, A‑4 and Gerardo Hernandez.
8 Overt Act number 4 is a report by Castor, that is
Rene
9 Gonzalez, to Giro concerning a meeting he had with Jose
Basulto
10 and that appears at DG 112 pages 9 through 11.
11 Overt Act 5 is further communication by the
12 Directorate of Intelligence to Giro and A‑4 that a Directorate
13 of Intelligence officer had supported the travel of German
from
14 the United States to Cuba via Mexico. This is when German or
15 Juan Pablo Roque was being ex‑filtrated from the United States
16 and that appears in HF 123G‑3 and 124 G‑3.
17 Overt Act 6, on or about February 23, 1996, German,
18 Juan Pablo Roque left Miami as directed to return to Cuba, and
19 that is reflected in HF messages 120 and 122 and then HF 126
in
20 which the message is sent back to Miami, today the associate
21 arrived well. The associate obviously referring to Juan Pablo
22 Roque.
23 Overt Act 7, Lorient travel to Cuba at the
Directorate
24 of Intelligence instruction how to get U.S. military
25 information they were seeking. That appears at HF 135. That
RICHARD A. KAUFMAN, RMR, NP
U.S. COURTHOUSE, MIAMI, FLORIDA 33128
13971
1 is a high frequency message from Edgardo saying Lorient has
2 arrived and the meeting itself is described in more detail at
3 DG 108 pages 31 through 33, which describes a meeting with
4 Comrad Saul. DG 108 is an April, May, June, 1996 document and
5 mentions it is Lorient's first trip back to Cuba and it is
6 important to reindoctrinate him, and you could see there is a
7 focus on building solidarity with him.
8 In HF 136, Edgardo signs a radio broadcast message,
9 "Lorient left today. Work with him was very positive."
10 Overt Act 8, on or about May 30, Lorient following
11 contact with the DI in Cuba submitted to Giro a proposal for a
12 beeper code system of sending information, including in an
13 emergency, concerning an United States military threat being
14 planned against Cuba. You will see that at DG 107, pages 37
15 through 49 and you can see Lorient is making good use of his
16 visit to Cuba and the instruction he has just received on
17 military reporting in a report that is signed by him on May
30,
18 1996. He not only provides a debriefing to his Miami handlers
19 of his meeting with Comrad Saul, he also makes a new proposal
20 for an informational code and it proposes beeper codes and
they
21 all have Roman Numerals concerning deployment of special
22 operations resources, deployment of Air Force resources,
23 including bombers, deployment of drones, of air resources of
24 the air wings, etc., etc.
25 Overt Act 9, some time prior to July 1996, Giro
RICHARD A. KAUFMAN, RMR, NP
U.S. COURTHOUSE, MIAMI, FLORIDA 33128
13972
1 communicated to Franklyn instructed to penetrate Movimiento
2 Democracia a Miami based political group. You will see that
at
3 DG 114 where there are two reports by Franklyn to Giro
4 concerning a July 13, 1996 flotilla by Movimiento Democracia.
5 Throughout these documents you see a big focus on
6 reporting concerning Movimiento Democracia. Movimiento
7 Democracia was a main topic for agent Gonzalez or Castor and
8 you will see nothing in these documents that reflect terrorist
9 activity. This was a group that went out on flotillas. These
10 flotillas were troublesome to the Cuban Government but it
11 cannot be put on the same footing as groups that supposedly
12 were planning bombings and acts of violence and terrorism
13 within Cuba. Yet it remained a topic of overwhelming concern
14 of the individuals here.
15 Overt Act 10, some time prior to July 1996, Franklyn
16 penetrated Movimiento Democracia and became a participant in
17 their protest flotillas and that is reflected at DG 114 pages
1
18 through 16, in which Franklyn brings a report describing his
19 role in the flotilla.
20 Number 11. In or about the summer of 1996, Franklyn
21 provided Giro a report on the plans and activities of
22 Movimiento Democracia at that flotilla. Again that is
23 reflected in DG 114 pages 1 through 16 and there is a detailed
24 description and it is signed by Franklyn with the slogan,
25 motherland or death.
RICHARD A. KAUFMAN, RMR, NP
U.S. COURTHOUSE, MIAMI, FLORIDA 33128
13973
1 Overt Act 12, some time after July 3, 1996, Castor
2 provided Giro a report incorporating the text of a letter
3 Castor had caused a U.S. Congressional representative to write
4 concerning the entry of his wife into the United States, at
5 pages 30 through 33.
6 Here on the viewer I have placed a copy of the letter
7 that Castor recounts how he went to the congressional offices
8 of Ileana Ross Lehtinen and subsequently he received a letter
9 dated July 3 which was actually a copy of a letter from Ileana
10 Ross' office to the U.S. Interest Section and the letter is
11 reproduced at pages 31 and 32.
12 As I said, this was not an effort to persuade the
13 United States to let his wife in. This was an effort to make
14 it seem as if the United States was intervening with the
15 Government of Cuba to let her in and as Castor writes in a
more
16 candid section of the report where he is telling what he is
17 really doing; as you know these steps are designed more to
give
18 an appearance rather than to seek action to have my family
19 leave.
20 That is Overt Act 12.
21 Overt Act 13 is in or about September of 1996, Giro,
22 Horacio and Remi consulted about an apparent problem about the
23 computer of Horacio and you will see that reflected at DG 127
24 pages 10 through 11.
25 Now, ladies and gentlemen, I wanted to talk to you
for
RICHARD A. KAUFMAN, RMR, NP
U.S. COURTHOUSE, MIAMI, FLORIDA 33128
13974
1 just a moment about communications because that relates to
this
2 Overt Act 13. Communications is a real issue in intelligence
3 work, because if you have somebody placed undercover in an
4 installation, isolated from the home country, a critical issue
5 becomes how do you get that person's information and how do
you
6 communicate back with that person.
7 We heard from lots of experts in this case, but I
8 would suggest to you, ladies and gentlemen, there is nobody
9 more expert in these matters than the co‑conspirators
10 themselves.
11 Let's look for a moment at P 14, the other placard
12 from the Franklyn document we mistakenly put up before ‑‑ it
is
13 not P 14. Whatever that number would have been; and here it
14 says, let's see what we can do to make sure we had secure
15 communication. Remember that is the Achilles heel of all of
us
16 who dedicate ourselves in one way or the other in intelligence
17 work.
18 It was the Achilles heel, ladies and gentlemen
because
19 now we have all of these communications and we can see quite a
20 bit of what these individuals were actually doing.
21 And the communication techniques that were used here
22 are laid out in the documents. Diskettes are one type of
23 them. They provide detailed and voluminous information, but
24 the diskettes were slow because they physically had to be
25 couriered and gotten out of Miami down to Cuba and vice‑versa.
RICHARD A. KAUFMAN, RMR, NP
U.S. COURTHOUSE, MIAMI, FLORIDA 33128
13975
1 So there were other forms of communications.
2 For instance, DG 127 reflects another type, and you
3 will see several of these files have the abbreviation PTRS
4 which stands for the word Pitirre, and these were outbound
5 messages that were sent and saved to the computer disks by
6 co‑conspirators; and Joseph Santos testified with regard to
7 this technique of a message being encrypted and sent through a
8 modem and DG 110 recounts how various centers have been used
9 for such messages such as M 15 being the legal center in New
10 York for the UN. M 2 being Mexico and recounts that
11 technique.
12 What are these centers? Do you recall the testimony
13 of Stewart Hoyt? M 15 according to Stewart Hoyt is the legal
14 center, that is, the UN. M 107 is the Nicaragua legal center
15 and that is according to DA 126 where it has an escape plan
and
16 it gives as the escape route from Montreal by air to Managua,
17 Nicaragua.
18 It is made explicit at DG 110 that M 15 is the United
19 Nations, the Cuban Mission to the United Nations and the
20 testimony and the evidence in this case showed the Cuban
21 mission to the United Nations was exploited by Cuba in order
to
22 transit materials and communications from their illegal
23 officers here in Miami back to Cuba with which the Cuban
24 Mission to the United Nations can have communications.
25 You may recall there were a number of exhibits that
RICHARD A. KAUFMAN, RMR, NP
U.S. COURTHOUSE, MIAMI, FLORIDA 33128
13976
1 related to post office boxes in New York, and you may recall
we
2 had testimony from some individual who ran these post office
3 boxes and some of them identified individuals and they
4 identified photographs that turned out to be photographs of
5 officers from the Cuban Mission to the United Nations.
6 I will not go over all of those exhibits right now
but
7 if you wanted to take a look at them, there are things like
8 391, the application for the Brooklyn, New York Post Office
9 Box, SAV 28A, a Federal Express slip that was found at the
10 Allan/Vicky residence that was addressed to that post office
11 box. The address is also referenced in communication plans of
12 Allan at DAV 111 and Vicky at DAV 129 and the other New York
13 post office box, the application was at Exhibit 392 and that
14 was a box in the name of Juan Gomez and this was a mailbox
15 known as Oso, serviced by the legal center and we had a
witness
16 Methani, the man that came in and ran this postal service and
17 he identified Juan Gomez as being the person in a photograph
18 Government's Exhibit 911 and this individual turns out to be
an
19 individual known as Antonio Gonzalez Gonzalez, Third Secretary
20 at the Cuban Mission to the United Nations.
21 So these Cuban Mission United Nations officers are
the
22 ones who control the post office boxes and they also make
23 personal deliveries including to Allan in the video tape you
24 may recall having seen the videotape shot at the Wendy's
25 Restaurant in Long Island at which there was a meeting between
RICHARD A. KAUFMAN, RMR, NP
U.S. COURTHOUSE, MIAMI, FLORIDA 33128
13977
1 Allan and an individual known as Leonardo Rodriguez Esteban
2 Iglesias. I may have get even the order of those names wrong,
3 but who was also an officer of the Cuban Mission of the United
4 States and following elaborate countersurveillance also
5 recorded in the videotape, the two individuals meet in a men's
6 room, they exchange items, exchange clothes. Allan changes
7 clothes in an effort to disguise his appearance and then they
8 separate.
9 Even though they had these elaborate communication
10 systems, things can go wrong. Communications are the Achilles
11 heel of intelligence work. You might consider the words of
12 another one of the co‑conspirators on the occasion of ‑‑
13 remember he had a bad border entry in Memphis. He had his
14 identification documentation, but it wasn't working out quite
15 right.
16 If we could have placard 15, please.
17 In this placard, Gerardo is writing, never experience
18 nervousness when having to make a border crossing. I
19 definitely do not belong nor have ever inspired to belong to
20 that group. I have never been ashamed or belonging to the
21 group that errs or make mistakes or make a bad decision and
are
22 always willing to recognize it without fear of labels because
I
23 am of the opinion there is nothing worse in this profession
24 than to think you are perfect.
25 Ladies and gentlemen, those are true words, because
RICHARD A. KAUFMAN, RMR, NP
U.S. COURTHOUSE, MIAMI, FLORIDA 33128
13978
1 these spies were not perfect, it turns out, but it doesn't
mean
2 they were not spies, and they were not able to achieve all the
3 goals they set out to achieve. They never did get somebody to
4 get a job at Southcom. That doesn't mean they were not
5 trying.
6 You will hear as one of the most basic instructions
7 the instruction on the law of conspiracy; that it is not
8 necessary to prove a conspiracy for the goals of that
9 conspiracy to have succeeded. The crime exists in the making
10 of the agreement and the doing of an overt act in furtherance
11 of the conspiracy; but even if the conspiracy does not succeed
12 and even if Joseph Santos does not get a job at Southcom, that
13 doesn't mean that the conspiracy doesn't exist.
14 Returning to the overt acts. Overt Act 13, in or
15 about the summer ‑‑ we talked about that one.
16 14. On or about September 21, 1996, Lorient gave
Giro
17 a report of Lorient's observations at the Naval Air Station in
18 Boca Chica, west. There are numerous such reports. The one
19 referred to here is DG 107 pages 11 through 20 and it includes
20 reference to a meeting that Lorient and Giro had in the
21 bathroom of a health food restaurant, the Unicorn Village
22 Market, where they made an exchange of money and disks without
23 saying a word and there follows the report about aircraft
24 deployed such as the Nimrod reconnaissance aircraft. At pages
25 16 and 17 there is a focus on an unidentified airplane not
RICHARD A. KAUFMAN, RMR, NP
U.S. COURTHOUSE, MIAMI, FLORIDA 33128
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1 previously seen here.
2 Obviously this is a topic of great curiosity for
3 Lorient. He is seeking further information.
4 Ladies and gentlemen, what this shows is, this
5 conspiracy was opportunistic. These agents understood it was
6 their mission to get as much information as they could and to
7 help the Cuban Government develop information.
8 One point we heard developed through the defense
case,
9 well, the agents were not supposed to improvise and that is
10 true, they weren't supposed to improvise and go off on their
11 own but they were supposed to glean everything they could and
12 report it back and in several places you could see this. They
13 get a little tidbit, they report it to their handlers. It
14 guess to Cuba. They say try to develop this, try to develop
15 that and they go with it.
16 The point is not that they were improvisers; but they
17 were aggressively seeking information and to be opportunistic
18 and they did it within the framework of control of the Cuban
19 Intelligence Service and when Lorient is discussing this
20 unidentified aircraft, he takes pains to give a description of
21 an aircraft unfamiliar to him so his handlers can know what to
22 do about it and to give him instructions.
23 Further in this report he has an addendum at pages 19
24 and 20 where he corrects an error and provides home addresses
25 of senior staff at Boca Chica Naval Air Station including
RICHARD A. KAUFMAN, RMR, NP
U.S. COURTHOUSE, MIAMI, FLORIDA 33128
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1 Captain Hutton, who we heard testimony from. Meanwhile we
will
2 seek to learn everything possible on this matter. Later on he
3 even reported her birthday.
4 Overt Act 15. In or about autumn of 1996, Castor met
5 with the FBI in the guise of an cooperating individual. This
6 is DG 107 page 59 and then there is further colloquy about
that
7 back and forth with the Cuban Intelligence Service at DG 128
8 and then at DG 131, the Cuban Intelligence Service sends
9 messages back about agreeing that Castor should respond to the
10 inquiry of Agent Al Alonso and meet with him.
11 Then at DG 106 pages 17 through 18 and at page 21,
12 there is a report from Castor, Castor or Iselin, both names
13 clearly associated with that individual; say there had been a
14 meeting the previous day, the one where he said falsely, I am
15 no Juan Pablo, to Agent Alonso.
16 DG 134 pages 15 through 18, there is a report about a
17 call from Agent Alonso the previous day and again there is
18 debate, should we have let Castor get more involved with this
19 FBI agent or should we not. Ultimately they decide to pull
20 back for two reasons. They don't want to repeat the pattern
of
21 Juan Pablo Roque because that could be suspicious given what
he
22 turned out to be. Second, they didn't think it would be
23 logical with Castor's legend to offer to the FBI or to appear
24 to the FBI to be spying on some groups he claimed to have
25 allegiance with.
RICHARD A. KAUFMAN, RMR, NP
U.S. COURTHOUSE, MIAMI, FLORIDA 33128
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1 The conclusion was and I am paraphrasing, it is
better
2 to reject a person's proposal without closing the door. It
may
3 be necessary to unleash an action against North American
4 government against some of these people. I could approach
5 Alonso for this.
6 Overt Act 167. On or about November of 1996, Lorient
7 reported observations of aircraft and of flight training and
8 construction activity at Boca Chica Naval Air Station. That
is
9 DG 106 pages 3 through 10.
10 Overt Act 17, on or about February 25, 1997, Lorient
11 and Giro met in Key West and exchanged bags. That is the
12 placard I showed you earlier that had the picture of A 1125,
13 the picture of two of them meeting and the documents that was
14 drawn from included, I think it was DG 138 and DG 123.
15 Overt Act 18, some time after on or about February
25,
16 Castor provided Giro a report on aviation activity on
17 Movimiento Democracia. That is DG 138, pages 1 through 7.
18 In that report, by the way, there is an exhortation
to
19 Rene Gonzalez saying once and for all, send the list of
20 aircraft with all the data on each one.
21 Sure enough, at the time of the arrest of Rene
22 Gonzalez we found a list of tail numbers handwritten at the
23 Rene Gonzalez residence.
24 Could I have SC 14, please.
25 Ladies and gentlemen, these abbreviations, they also
RICHARD A. KAUFMAN, RMR, NP
U.S. COURTHOUSE, MIAMI, FLORIDA 33128
13982
1 refer to the same initials for the individuals, C standing for
2 Castor and the S means it came from a search. DC a diskette
3 from Castor and SC a physical search at Castor's residence.
4 SC 14 on the viewer is a handwritten list of those
5 aircraft tail numbers, similar to what is requested in DG 138.
6 Overt Act 19, Mario and Julia are to give a report on
7 Southern Command.
8 DA 113 is the evaluation of it that says their report
9 is marvelous. That is what the Cuban Intelligence Service
10 writes back.
11 Overt Act 20, on or about March 27, 1997, Castor
12 reported to Giro he had been flying close to Homestead Air
13 Force Base with the aim of reporting any strange movement as
14 Giro had directed. That appears at DG 109 in which on March
15 27, 1997, Iselin is reporting to Giro and makes some reports.
16 Then on the next page writes: Issue, Homestead Air Force
17 Base. As you told me to do, I have been flying in the
vicinity
18 of Homestead Air Force Base in order to be able to observe any
19 strange movements.
20 He goes on to describe a flight made last Sunday the
21 23rd matching the date in the overt act.
22 Overt Act 21, Allan communicated that a main
objective
23 was from Mario or Julia to get a job at Southcom. That
appears
24 at DS 101.
25 In or about November of 1997 ‑‑ as you know not every
RICHARD A. KAUFMAN, RMR, NP
U.S. COURTHOUSE, MIAMI, FLORIDA 33128
13983
1 overt act that is stated has to be proved.
2 Overt Act 23, in or about October 1997, Mario
3 communicated with ‑‑ concerning penetrating Southcom and that
4 appears in DA 126. DA 104 pages 2 through 11. This is the
5 development of relationships. It is the number within tasking
6 of the Directorate of Intelligence.
7 In or about late 1997, Overt Act 24, Giro transmitted
8 to Castor plans for active measures Flotin and ‑‑ that appears
9 at DC 101. You may or may not recall, those were particularly
10 nasty ventures in which there was this harassment campaign
11 against Ramon Saul Sanchez trying to stir up resentment among
12 the groups and included some of these telephone threats I
13 mentioned to you.
14 Number 25, in 1997, the DI provided to Vicky a
15 communications plan at DAV 129. On or about January 24, 1998,
16 Giro reentered the United States at Memphis. That is the
17 incident I previously told you about. I showed you the
customs
18 declaration GX 725. There is also a stipulation from an
19 immigration officer about that and that Memphis trip was
20 discussed in various documents I also told you about, DG 135.
21 DG 105 pages 2‑16 is an account in excruciating detail about
22 this.
23 DG 135 pages 1 through 11 is an even more detailed
24 analysis for the benefit of documentation.
25 Overt Act 27 is the meeting of Allan with that Cuban
RICHARD A. KAUFMAN, RMR, NP
U.S. COURTHOUSE, MIAMI, FLORIDA 33128
13984
1 UN officer, Cuban Mission to the UN officer meeting
2 clandestinely in the men's room of Wendy's on April 14, 1998
3 and we learned about that through the testimony of FBI Agent
4 Carlos Fernandez. The meeting was with Leonardo Esteban
5 Rodriguez Iglesias depicted in the photograph 395 and it is
6 reflected in videotapes which we saw and the videotapes
7 included 381, 382, 383, 383A, 384, 384A 385 and 386.
8 There was also surveillance and there was a final
word
9 that sort of harkened back to this meeting in one of the HF
10 messages and that was HF message, the very last HF message and
11 one of the last communications in this case; HF 1 44A V 3, and
12 you may recall these HF messages, there is a broadcast date
13 that appears ‑‑ I know this is impossible to read and it gives
14 you 980915. That means September 15, 1998 when the broadcast
15 was. Here is the actual message. It is from Nelson and it is
16 dated 9/14 in the Latin style with the number first, September
17 14. At M 15, New York, there was an approach made by FBI, and
18 you will recall Carlos Fernandez testified about that, on
19 Officer Esteban who had a pass with Allan past April,
referring
20 to the videotape meeting. At this point it is not realized by
21 Cuban Intelligence Service it is videotaped, garbled, showed
22 picture of a person, garbled, look like Allan. Allan had
23 reported signal of enemy activity and should arrive in CP next
24 date.
25 You will recall there was a suitcase with Allan but
he
RICHARD A. KAUFMAN, RMR, NP
U.S. COURTHOUSE, MIAMI, FLORIDA 33128
13985
1 never got there. Use extreme security measures. Suspend
2 operational activity until advised. We alerted Oscar with
whom
3 you should have no contact. I will give you new instructions
4 via this route. Update escape plan just in case.
5 It was too late. By this time these defendants were
6 in custody.
7 Overt Act 28, on or about June 18, 1998, the DI
8 communicated to Giro concerning continuity of his work with
the
9 Avispa network, that is at DG 102 pages 30 through 31. It is
10 about how Edgardo is retiring. Don't worry. La Red Avispa is
11 going to come under somebody new and they give a name.
12 Overt Act 29, in or about July 1998, Vicky reported
he
13 met with several agents in the operative base, and that
appears
14 at DAV 102 and it reflects meetings where Oscar, also known as
15 Vicky, also known as Camilo, also known as Ruben Campa, is
16 picking up the responsibilities of John Doe Number 2 and
17 meeting with his operative base, including people who were
18 working on military matters such as Luis, Gabriel, Margot,
19 Julia and M 19 people working on the counterrevolutionary
20 matters, Tania, etc.
21 In this document, Oscar writes on the report of the
22 result of the contact with both operative bases, the military
23 base and the counterrevolutionary base and he explains he is
24 going to try to make the flow of information to Centro
25 Principal more available. He will try to be not too wordy. I
RICHARD A. KAUFMAN, RMR, NP
U.S. COURTHOUSE, MIAMI, FLORIDA 33128
13986
1 don't know if he succeeds. I don't know if any of us succeed
2 in that, we all try to do it; then he reports on his contact
3 with Lorient on Wednesday July 29 and details that contact,
4 then goes on to say, I emphasize that everything related to
5 Southcom was of extreme importance and for him to keep abreast
6 of every bit of news.
7 You will see at this point Southcom was of extreme
8 concern by La Red Avispa.
9 These code names are very important and Vicky himself
10 had his own little cheat sheet.
11 May we have SAV 30 and the placard and you may recall
12 this little piece of paper was in the wallet of Ruben Campa
and
13 it is written on both sides, and it contains aircraft numbers
14 and various codes that were associated with them in some of
15 these documents, including certain telephone and beeper codes
16 that were difficult to decipher and it also includes certain
17 counts of aircraft that were being reported and jotted down on
18 this little slip of paper as you can see.
19 Overt Act 30, in or about the summer of 1998, Allan
20 possesses dozens of death certificates. Operation Texaco was
21 further discussed at DAV 116 page 7. DAV 120 pages 1 through
22 2. DAV 103 and DAV 108.
23 Finally, Overt Act 31, in or about September 1998,
24 Giro, Allan and Vicky participated in plans for the return of
25 Allan to Cuba following the theft of Allan's computer and
RICHARD A. KAUFMAN, RMR, NP
U.S. COURTHOUSE, MIAMI, FLORIDA 33128
13987
1 encoded diskettes.
2 Here you will see certain messages that were recorded
3 in the diskettes, for instance, DAV 105 is a September 4, 1998
4 message from Oscar back to CP which is recorded in the
5 diskettes and it says, Allan asked by way of telephone to
6 inform you in hotel room in Oakland, repeat Oakland, they
7 forced the window and robbed suitcase with computer and all
the
8 disks. Information on disks was protected. He has no way to
9 receive or send information. He believes it was an ordinary
10 robbery as well as that he is willing and can continue the
11 operation writing report at the end. He proposes eventually
to
12 send him any instructions, send it by way of me.
13 DAV 106 there is another message Oscar September 7
14 that Allan has arrived in monkey, and monkey you may recall
15 from some of the codes is a place Miami via fortress. A code
16 name for Fort Lauderdale. Older is a code word for September,
17 September 3.
18 DAV 107, Oscar's message of September 9. Allan says
19 via phone he arrived this a.m. Is in fortress in hotel.
20 DAV 120 recounts travel plans from Fort Lauderdale to
21 San Antonio by bus to Laredo, Texas across the border then fly
22 to the CP. Allan never got to take that trip because the
23 arrests were made the morning of September 12, 1998. At that
24 time there was a suitcase packed, SAV 56U. Do we have that
25 photograph, the blowup of it, the Beverly Wilshire ‑‑ the
RICHARD A. KAUFMAN, RMR, NP
U.S. COURTHOUSE, MIAMI, FLORIDA 33128
13988
1 Wilshire Beverly Hills ‑‑ the Wilshire Beverly Hills wheeled
2 luggage and it was found between the bed and the balcony door
3 ready to go.
4 Ladies, that is Count 1 of the indictment. You
5 probably think there are 26 counts. Count 1 is really the
6 overview of what these individuals were doing. The conspiracy
7 to commit espionage, Count 3, is the conspiracy to commit
8 murder.
9 THE COURT: We will take our break now. We are going
10 to take a break. Do not discuss this case amongst yourselves
11 or anyone else. Have no contact with anyone whatsoever
12 associated with the trial. Do not read or listen to anything
13 touching on this matter in any way. Be back in the jury room
14 in ten minutes.
15 (Therefore a brief recess was taken, after which the
16 following proceedings were had.)
17
18 (Open court. Jury not present.)
19 THE COURT: We are back on United States of America
20 versus Gerardo Hernandez, Case Number 98‑721.
21 Counsel states their appearances again.
22 (All parties present.)
23 MR. McKENNA: Briefly before the jury is brought in,
I
24 have one request. When we concluded on Thursday, the
25 government brought up the issue of the use of the indictment
RICHARD A. KAUFMAN, RMR, NP
U.S. COURTHOUSE, MIAMI, FLORIDA 33128
13989
1 and its use in the closing argument. I had stated at that
2 time, we would be able to resolve that Tuesday morning. We
3 didn't resolve it. I don't object to them using the
indictment
4 in the manner they are using it, obviously it is permissible
5 but I did want to request an instruction from the Court to the
6 jury that the indictment is not evidence. I think that is
7 something why I wanted to consider it over the weekend so we
8 would be protected and as the government reads this indictment
9 over and over again, the jury knows the indictment is not
10 evidence. They have not been told that, I don't believe,
since
11 jury selection. That was going to be my request.
12 THE COURT: You are requesting they be instructed
13 now?
14 MR. McKENNA: Yes; specially in view of the fact we
15 handed out copies of the indictment to them and in the manner
16 in which it is being used, I think it is a fair request, Your
17 Honor.
18 THE COURT: Yes.
19 MS. MILLER: That instruction is part of the standard
20 jury instructions that will be given to them and we would
21 submit that is an appropriate way to proceed here to have it
be
22 part of the standard jury instructions rather than singled out
23 for any special emphasis at this time.
24 MR. MENDEZ: I would join in that request given the
25 possibility the jury may not receive its final jury
RICHARD A. KAUFMAN, RMR, NP
U.S. COURTHOUSE, MIAMI, FLORIDA 33128
13990
1 instructions until next week and there are even admittedly
2 allegations in the indictment which the government has
conceded
3 they didn't prove.
4 I think it is specially important we instruct them at
5 this time.
6 THE COURT: I am not going to instruct the jury at
7 this time. It is included within 2.1 pattern jury
8 instruction. I expect at the end of the day today these
copies
9 of the indictment will be collected at the close of the
10 government's argument. This is only for the jury's use during
11 their argument.
12 MR. McKENNA: I thought I saw jurors writing on the
13 indictment while she was giving her argument and that is why I
14 particularly wanted to bring that up. On Friday when we broke
15 it was left we were going to decide the issue this morning.
16 Before we got to it, she had passed these out and I didn't
want
17 to interrupt her closing argument. The jurors are marking on
18 these indictments and this is a very important fact Your
Honor,
19 that the indictment is not evidence. It is the only thing she
20 is going to be talking about and using that is not evidence in
21 the closing argument, and it is terribly important that the
22 jury not be confused between the evidence and the indictment.
23 I think it is an appropriate, short, brief, accurate
24 instruction. It has no ‑‑ it does nothing to any of the other
25 instructions making them stronger or weaker. This is
something
RICHARD A. KAUFMAN, RMR, NP
U.S. COURTHOUSE, MIAMI, FLORIDA 33128
13991
1 you already told the jury at the beginning of the case and I
2 believe given the fact they seem to be writing on the
3 indictment that they have to be reminded at this point that is
4 not evidence.
5 MR. NORRIS: We weren't shown a copy of that before
it
6 was handed into the jury box. Customarily the indictment is
7 returned with the authentication, if you will that it is a
true
8 bill and I don't know what this division's preference is about
9 that but very often that is not part of what goes back, the
10 fact the grand jury has voted on it.
11 THE COURT: This issue came up last week.
12 MR. NORRIS: And you reserved on it.
13 THE COURT: I said it has never been requested before
14 and Ms. Miller at that point indicated she was going to be
15 utilizing the indictment in her closing argument. I had not
16 anticipated she would be handing out copies of the indictment
17 to the jurors at that time. I anticipated she would be
perhaps
18 be publishing part of it or using a demonstrative board.
19 MR. NORRIS: That is what we anticipated and we
didn't
20 want to interrupt her closing argument, but that one point is
21 giving the jury in effect a true bill.
22 THE COURT: Is it a complete copy of the indictment
23 signed by the grand jury?
24 MS. MILLER: It is. It is pulled off of WINDOC. It
25 is the filed copy.
RICHARD A. KAUFMAN, RMR, NP
U.S. COURTHOUSE, MIAMI, FLORIDA 33128
13992
1 THE COURT: Did you indicate last week you would be
2 handing out copies?
3 MS. MILLER: I hadn't planned one way or the other
but
4 I certainly knew I would be making extensive use of the
5 indictment.
6 THE COURT: Did you notify counsel this morning you
7 would be handing out copies? I did notice that many of the
8 jurors were writing on the copies.
9 MS. MILLER: Just as we have numerous placards here,
10 it is not something I specifically notified counsel of but
they
11 knew I would be making extensive use of the indictment.
12 THE COURT: But you haven't handed out the placards.
13 MS. MILLER: That is true. I was just publishing
14 them.
15 Certainly there is nothing inconsistent about the
16 practice we followed this morning with what I forecast to the
17 Court last week, that I did intend to make extensive use of
the
18 indictment.
19 MR. NORRIS: Telling the jury it is a true bill is
20 nothing we contemplated.
21 THE COURT: It would say it.
22 MR. NORRIS: It does. As I said I never tried a case
23 before in this division ‑‑
24 THE COURT: You are saying it is stricken?
25 MR. NORRIS: Yes, which I think is the reason why we
RICHARD A. KAUFMAN, RMR, NP
U.S. COURTHOUSE, MIAMI, FLORIDA 33128
13993
1 all join with the request that the instruction be given at
this
2 point.
3 MS. MILLER: It is not my experience of true bill
4 words being stricken. I don't have the instruction in front
of
5 me. It is my recollection the instruction is the fact that an
6 indictment has been returned is not in and of itself evidence.
7 The fact an indictment has been returned is not something that
8 is kept a secret from the jury.
9 With regard to the notes, Your Honor, if the jurors
10 are not going to be retaining or being able to get back these
11 copies of the indictments that have their notes on them, I
12 would want the jury to note if they want to make notes they
13 need to make them in a separate notebook because obviously if
14 their notebooks are important to them, we don't want them to
be
15 surprised later that the notes they made is in some group of
16 materials that has become undifferentiated.
17 THE COURT: So what you are objecting to is the words
18 a true bill and signed by the foreperson?
19 MR. NORRIS: Yes. I didn't know whether or not that
20 was said. That is the specific objection but it more broadly
21 goes to the point this is something we thought was an open
22 matter of discussion last Thursday and that is the reason for
23 our request at this point that the jury be told this document
24 that they have been handed by the government is not evidence
in
25 this case.
RICHARD A. KAUFMAN, RMR, NP
U.S. COURTHOUSE, MIAMI, FLORIDA 33128
13994
1 MS. MILLER: Because I researched it in other cases,
2 there is case law on the propriety of the indictment being
3 furnished to the jury. I have never seen it addressed from
the
4 exact viewpoint of Mr. Norris' concern, but I never have been
5 personally acquainted with the experience of redacting that
6 information. Even the instruction is that the fact that an
7 indictment has been returned is not in and of itself evidence.
8 THE COURT: What are the parties preference in regard
9 to the copies that the jurors now have that some have been
10 writing on them?
11 MS. MILLER: The government's preference would be
that
12 the jurors be able to either keep these copies or identify
them
13 uniquely to them so they may have them during deliberations.
14 It is routine practice and I believe it is also
15 referenced in the instructions that the indictment will be
16 provided to them and specially since some of these jurors seem
17 to have been using those papers to make their notes on, we
18 would suggest just as they have been making notes in their own
19 individual notebooks that are unique to them, that the
20 indictments also go into those boxes.
21 THE COURT: I had not anticipated when this was
22 brought up last week by the government that each person would
23 be getting their own personal copy of the indictment.
24 MS. MILLER: My only concern in that regard is with
25 regard to the notes.
RICHARD A. KAUFMAN, RMR, NP
U.S. COURTHOUSE, MIAMI, FLORIDA 33128
13995
1 THE COURT: That is the point.
2 MR. NORRIS: That can be dealt with in some other way
3 rather than letting the government jump the gun and make the
4 decision for all of us. If the notes are something that you
5 say they can keep, fine, let them transcribe their notes but
6 that doesn't predispose the question of whether they all ought
7 to have an individual copy of the indictment and whether it
8 ought or ought not say it is a true bill.
9 During jury selection ‑‑ I guess we didn't, but we
10 didn't have anybody that had done grand jury work but when you
11 have a member of the panel who has had grand jury experience,
12 the difference between grand jury and jury work is explained
to
13 them. That wasn't done because it wasn't necessary. Now the
14 government has thrown into the jury box this thing about 23
15 people or some number of people who have already decided this
16 is true. That opens a real can of worms, Judge, and our
17 request is that if they want to transcribe their notes, fine,
18 but that those things come back and the jury to try to cure
19 this thing about having been told it is a true bill, having
20 them told now it is just not evidence in this case. It is
21 simply the point of beginning.
22 THE COURT: Since it seems several of the jurors have
23 taken notes, I am going to instruct the jurors to transpose
24 whatever notes they have into their notebooks, if they have
25 taken notes and they wish to retain those notes. They need to
RICHARD A. KAUFMAN, RMR, NP
U.S. COURTHOUSE, MIAMI, FLORIDA 33128
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1 transpose them into their notebooks.
2 I will indicate to them they should do so at this
time
3 when they come in or before the close of trial today, that
4 these copies of the indictment will be collected at the close
5 of the government's case and that these copies were for their
6 convenience during the government's closing argument.
7 I did instruct them at the beginning of the case,
8 albeit almost seven months ago, that the indictment is only an
9 accusation, and it is included within the instructions I
intend
10 to give to the jurors after the close, at the conclusion of
all
11 the closing arguments that the indictment is not evidence of
12 guilt.
13 I do find those instructions are sufficient and I
will
14 instruct the jurors they will not be retaining these copies
and
15 any notes they have taken should be transposed.
16 I will do that as soon as they come in.
17 You may bring them in.
18 MS. MILLER: I also wanted to talk about timing. I
19 thought I have been giving argument for two hours and a little
20 under 15 minutes. I do anticipate to have another hour and 45
21 minutes of argument consistent with our original prediction.
22 Does the Court want to go later today? Will the
Court
23 accommodate my need to go into this extra time or do we want
to
24 do it tomorrow?
25 I do anticipate and I have been planning an argument
RICHARD A. KAUFMAN, RMR, NP
U.S. COURTHOUSE, MIAMI, FLORIDA 33128
13997
1 of a total of four hours. I have been going just under two
2 hours and under 15 minutes.
3 THE COURT: The problem with the sound system and one
4 of the jurors got here rather late this morning.
5 MS. MILLER: There was a traffic problem on I‑95.
6 THE COURT: I have two hours and 14 minutes that the
7 government has argued so far.
8 How much longer do you need?
9 MS. MILLER: An hour and 45 minutes, Your Honor.
10 THE COURT: What I would propose doing, then, is to
11 proceed with another hour until 2 and the 45 minutes will be
12 tomorrow morning.
13 Let's go, Larry.
14 (Jury present.)
15 THE COURT: Ladies and gentlemen of the jury, the
16 copies of the indictment that have been distributed to you
will
17 be collected at the close of today and at the close of the
18 government's case. These copies were provided to you for your
19 convenience during the government's closing argument. If you
20 have made any notes on these documents, you should transpose,
21 if you wish, whatever notes you may have made into your
22 notebooks if you wish to retain those notes.
23 You may proceed.
24 Also make sure you put your juror number on the copy
25 of the indictment so that particular copy will be returned
only
RICHARD A. KAUFMAN, RMR, NP
U.S. COURTHOUSE, MIAMI, FLORIDA 33128
13998
1 to you.
2 (Interruption.)
3 THE COURT: You may proceed.
4 MS. MILLER: Count 2 charges a conspiracy of Gerardo
5 Hernandez seated at the far end of the bench here, John Doe
6 Number 2, seated at the middle of the bench and Antonio
7 Guerrero also known as Lorient seated in the back row at the
8 far end. Conspiracy of those three particular defendants to
9 communicate, deliver and transmit information related to the
10 national defense of the United States to a foreign government
11 intending and having reason to believe the information would
be
12 used to the injury of the United States and to the advantage
of
13 a foreign nation.
14 Counts 1, 2 and 3 all charge conspiracy counts, and I
15 would like to take a few moments talking to you concerning
some
16 of the instructions you will be receiving on the law of
17 conspiracy and how it relates to the facts in this case.
18 If I might put up placard 20. This placard reflects
19 some principles about conspiracy.
20 A conspiracy, the essence of a conspiracy is that it
21 is an agreement, in this case an agreement to do something
22 which is unlawful.
23 You will hear and come to understand that the
24 agreement need not be expressed ‑‑ there doesn't have to be a
25 contract. There doesn't have to be an explicit moment at
which
RICHARD A. KAUFMAN, RMR, NP
U.S. COURTHOUSE, MIAMI, FLORIDA 33128
13999
1 it is said we are going to do X, Y and Z; do you agree we are
2 going to do X, Y and Z. In order to establish a conspiracy
3 offense, it is not necessary for the government to prove those
4 who were members entered into an informal type of agreement.
5 However, there must be a common understanding what the
6 agreement is.
7 It is also not required that the agreement be
8 successful, and as you will see on the placard, because the
9 essence of a conspiracy offense is the making of the agreement
10 itself ‑‑ because the essence of a conspiracy offense is the
11 making of the agreement itself followed by the commission of
12 any overt act, it is not necessary for the government to prove
13 that the conspirators actually succeeded in accomplishing
their
14 unlawful plan.
15 Ladies and gentlemen, that certainly applies to Count
16 2, because as the government told you in opening statement,
17 what you would not be seeing in this case is documents that
say
18 classified on them that were being passed back and forth.
19 The charge is a conspiracy, an agreement to provide
20 and to communicate and deliver and transmit information
21 relating to the national defense with the other elements and
22 that offense, underlying substantive offense need not be
23 successfully completed for this to be a full and complete
24 conspiracy.
25 Ladies and gentlemen, when you think about it, that
is
RICHARD A. KAUFMAN, RMR, NP
U.S. COURTHOUSE, MIAMI, FLORIDA 33128
14000
1 really only common sense. It is common sense that the United
2 States doesn't have to wait until individuals who are on their
3 military bases actually get national defense information and
4 actually injure the United States before arresting that group,
5 and we did give you evidence of this group's intense interest
6 in information relating to the national defense of the United
7 States, and evidence from which you know and you fairly
8 conclude their agreement and their plan was to acquire
national
9 defense information of the United States; to do it carefully
10 with step by step instruction and biding their time, years if
11 need be, but to get whatever they could to help their country
12 and obviously their "enemy" which they have identified as the
13 United States.
14 Now, the statute actually doesn't require that the
15 person, that the nation which is trying to acquire information
16 view the United States as an enemy because it applies to
either
17 friend or enemy; but their adversity here to the interest of
18 the United States shows how committed they were to getting any
19 advantage over the United States, getting invasion signs and
20 plans in advance, planning and ending functions of secret
21 installations such as building A 1125 at the Boca Chica Naval
22 Air Station and the other buildings, 290 and 291, jotting down
23 the frequencies in that greenhouse, the mobile air traffic
24 control unit which Captain Hutton told you included non‑public
25 frequencies. Closely monitoring electronic aircraft, like the
RICHARD A. KAUFMAN, RMR, NP
U.S. COURTHOUSE, MIAMI, FLORIDA 33128
14001
1 RC‑12 and battalions 224 and 138, Lorient reports on those
2 intelligence battalions, to have their Cuban intelligence
elude
3 the listening capabilities of those battalions.
4 For instance, take a look at DL 103. This is a
5 document in which Allan is forwarding to Lorient's evaluation
6 from CP, headquarters, for the period of time October 26
7 through April 23rd, 1997, and you will see it is dated June 2,
8 1997 from Lorient to Allan. Here is the next of the work
9 analysis reports from the CP for the last period, that being
10 October 26, 1996 through April 25, 1997.
11 It goes on to say at page 2 of the report that
Lorient
12 sent during that semester, and they are rated on an objective
13 scale, two were of interest, 11 medium value and three of
14 value. It says the valuable ones were those related with the
15 arrival of the 224 BON, battalion of military intelligence and
16 the construction of a new radar and the possibility of
17 reinstalling antiaircraft missiles at the Naval Air Station.
18 Again, there is that interest in the 224th battalion
19 of military intelligence in particular and further on the next
20 page, we see Lorient being evaluated on how much information
he
21 has produced and again it is on an objective scale. They
22 actually try to quantify these item of information he has
23 provided and divide it into public information and military
24 information.
25 We heard some questioning and some challenge through
RICHARD A. KAUFMAN, RMR, NP
U.S. COURTHOUSE, MIAMI, FLORIDA 33128
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1 defense questioning as to, does secret here mean the same
thing
2 it means to the United States?
3 Ladies and gentlemen, secret does not necessarily
4 refer to the United States classification system. The point
is
5 that this shows the Cuban Intelligence Service makes a
6 distinction between information they consider to be public and
7 that they consider to be secret, and that they prize secret
8 information and they want to quantify it and Count it
9 separately; which really only makes sense and comes back to a
10 proposition which is really central to this case, which is
11 common sense.
12 You will hear in the jury instructions that common
13 sense plays an important role in your considerations. For
14 instance, you will hear a reasonable doubt is a real doubt
15 based upon reason and common sense after careful and impartial
16 consideration of all the evidence in the case.
17 You will also here in considering the evidence, you
18 may make deductions and reach conclusions which reason and
19 common sense lead you to make.
20 Ladies and gentlemen, it is only common sense for a
21 nation to place covert agents on a military base, there has to
22 be a pay off in it for them that at least they are hoping for,
23 that they are going to get something you can't get at a
library
24 and you can just get by sitting at a computer and surfing the
25 Internet.
RICHARD A. KAUFMAN, RMR, NP
U.S. COURTHOUSE, MIAMI, FLORIDA 33128
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1 Yes, we had testimony on the defense side from Col.
2 Escalante, the Cuban military Colonel that said oh, no, all I
3 need is information from the Internet.
4 Did that make sense to you? Colonel Escalante said
he
5 would love to have an agent inside Southern Command, for
6 instance, and when you think about it, the thrust of his
7 testimony was they weren't really here, but of course we know
8 they were here and that is something you have to assess his
9 testimony in light of.
10 Frankly, Col. Escalante was the one that said the
11 allies did not win World War II so you have to take his
opinion
12 in light of his reasonable explanations; but his account
didn't
13 make sense. It is not common sense that an intelligence
14 service would be investing this enormous effort to place
people
15 on military bases for years long penetration if all they were
16 looking for was things they could get from magazines and
17 surfing the Internet.
18 That is not to say that these agents also don't
report
19 public information, but they are evaluated and assessed on
20 something more than just public information. It includes
21 secret information.
22 Here again in this evaluation, it notes under the
23 completion of the informational guidelines, again this is an
24 evaluation of the defendant whose code name is Lorient,
Antonio
25 Lorient, who is seated in our back row, changes in the level
of
RICHARD A. KAUFMAN, RMR, NP
U.S. COURTHOUSE, MIAMI, FLORIDA 33128
14004
1 combat personnel like the 224th intelligence battalion.
2 This evaluation also has something in it that we will
3 be talking about a little bit later. Let me mention it now
and
4 you can store it away because you know we will be talking
about
5 the hot pad. One reason we are going to be talking about it
6 is, because these defendants and Mr. Guerrero in particular
7 identified this as a facility where there was some top secret
8 activity going on. Nothing can show more clearly the goals
and
9 hopes and aspirations of this group, this conspiracy to
acquire
10 protected national defense information than these references
to
11 top secret functions of the hot pad.
12 Here we have the feedback to Lorient on that hot pad
13 report, saying the report amplifying the OS, operative
14 situation, of the hot pad very precise and specific. It was
15 transferred to the DIM, which is Directorate of Military
16 Intelligence, to include it in the study of the operational
17 situation. It is valuable. We should try to determine its
18 future use.
19 This is information that not only Lorient is privy
to,
20 but also Allan, also known as John Doe Number 2, who is the
one
21 providing this report to Lorient.
22 I wanted to again get back to the topic of the 224th
23 military battalion, because one thing that is of interest,
they
24 had repeated over and again, the comings and goings of an
25 airplane is not secret information. You can hang out on the
RICHARD A. KAUFMAN, RMR, NP
U.S. COURTHOUSE, MIAMI, FLORIDA 33128
14005
1 perimeter and watch planes come and go.
2 Recall the testimony of Captain Hutton, is that the
3 plans for the arrival of the planes are not something that is
4 necessarily made public and when you think about, that also
5 makes sense. Even with regard to information that ultimately
6 becomes public such as the fact there is an RC‑12 aircraft
that
7 is lifting off the runway at Boca Chica Naval Air Station,
8 there are also stages preliminary to that when there are plans
9 to bring that aircraft to Boca Chica Naval Air Station and the
10 fact the aircraft can be seen taking off does not mean that
the
11 preliminary plans are public and does not mean that that
12 information is not protected. Indeed, a unit devoted to
13 military intelligence, that is exactly the type of information
14 that would be protected until the last possible minute when
15 this hulking machine is on the runway.
16 Indeed, at the bottom of this page from DL 103, the
17 evaluation goes on to state, in connection with the arrival of
18 the RC‑12s, and you may recall RC‑12 is a reconnaissance
19 aircraft that functions with these military intelligence
20 battalions, and aircraft of the 224th BON, on January 14 I
21 received the following version. Lorient informed us today,
22 1/14 that on Friday the 10th he noticed three TA‑4Js and
23 perhaps other aircraft arrived from the 224th Battalion.
Today
24 he also reported on the landing of five RC‑12s and the arrival
25 of elements of communication command control that are foreign
RICHARD A. KAUFMAN, RMR, NP
U.S. COURTHOUSE, MIAMI, FLORIDA 33128
14006
1 to the NAS. In the mail you tell me that on January 7 you
2 found out of the arrivals of those aircraft from January 9 to
3 24th.
4 There is information those aircraft are going to be
5 arriving there.
6 It is necessary that when you obtain the plan that if
7 you do not have the data verified by visual observation it be
8 sent by a radio to alert the exploration aircraft from the
FAR,
9 an abbreviation for Cuban aircraft, and prevent the enemy from
10 picking up our communication and locating the DAFAR ‑‑ FAR is
11 the entire military forces, DAFAR is the military Air Force in
12 particular.
13 So Cuba wants to get news not only that an RC‑12 is
14 taking off, they want that advance information so they know
15 when the military battalion is arriving so they could prevent
16 the enemy, and we know who that is, the United States, prevent
17 the enemy from picking up our communications and easily
18 detecting the DAFAR radio communication system.
19 Our electronic aircraft is listening to this, they
20 want to get the aircraft information so they could elude them
21 so they could try and thwart the United States electronic
22 activity and surveillance.
23 Ladies and gentlemen, that reflects conspiracy,
24 agreement, a plan to attain non‑public information related to
25 the national defense of the United States.
RICHARD A. KAUFMAN, RMR, NP
U.S. COURTHOUSE, MIAMI, FLORIDA 33128
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1 Captain Hutton told us a bit about the Naval Air
2 Station and she told us, yes, in some regards it was operated
3 as an open base and she explained because of the great
physical
4 accessibility to the base, which is on water, it was
determined
5 it was not practicable and indeed it might be counter
6 productive to give a false sense of security by having a
7 closely controlled gate with military personnel on the base
8 thinking when they were checked through the gate they were
9 okay; so from 6 a.m. to 6 p.m. the gate was open and people
10 could drive through. They couldn't go into buildings but the
11 public could drive through and that created more of a sense of
12 an allrightness on the on‑base personnel to determine the mere
13 fact somebody was physically inside that base did not mean
that
14 they had carte blanche.
15 Now, Captain Hutton showed us, including with some
16 schematics of the Naval Air Station, areas that were visible
to
17 the public and areas not visible to the public. The airfield
18 was enclosed by a perimeter fence. It was not accessible to
19 the public or to persons who had no business being there. The
20 far eastern end of the airfield was not visible from the
public
21 areas and there were areas not intended to be seen by the
22 public that could be landed in more obscure areas of the base.
23 Throughout the base there was something called lift
24 stations. Captain Hutton referred to them as lift stations
and
25 Lorient refers to them as pumping stations. Ladies and
RICHARD A. KAUFMAN, RMR, NP
U.S. COURTHOUSE, MIAMI, FLORIDA 33128
14008
1 gentlemen, they are pumping sewage and from something as
humble
2 as that, there is access that is available because these lift
3 stations have to be maintained and they have to be maintained
4 regularly. DG 120 is an account by Lorient of the drill that
5 he runs through with these pumping stations and it is a
routine
6 he goes through on a regular basis as a member of the public
7 works department. We checked the pumping station at the
8 building known as the BOQ.
9 This BOQ is an important place because we can watch
10 the pilot's movement and even though we cannot check them,
they
11 keep the lists of the flight plans for the squadrons that are
12 in training.
13 By checking this pumping station, Lorient is getting
14 that access.
15 The visits over there have allowed me to meet
civilian
16 personnel in charge of housekeeping for the building. He goes
17 on to talk about somebody named Juan whose mother we later
18 learn is Sonia of Cuban origin who is cleaning these buildings
19 too.
20 At 9:45 we go to the Truman Annex where we have a
21 station in the area of the docks. This allows me to check on
a
22 daily basis if the docks at this unit are occupied.
23 Another station is located in the area of the
24 cafeteria beach patio and this runs through Truman and allows
25 me to see the movements in the building of the Joint Task
Force
RICHARD A. KAUFMAN, RMR, NP
U.S. COURTHOUSE, MIAMI, FLORIDA 33128
14009
1 and those buildings were noted as housing secret activity we
2 will later learn.
3 During the defense questioning of some of the
4 witnesses, there was a sense of skepticism a low level person
5 like a cleaning person ever gain access to anything more but
6 who will give a cleaning person anything important.
7 Ladies and gentlemen, common sense tells you that is
8 not the case. Cleaning people are the very people who
9 sometimes blend into the wallpaper and become invisible and
10 they are the very ones against whom the guard can be easily
let
11 down. That is not only common sense. We see here as humble a
12 function as checking the sewage stations throughout the base
13 give access to advantage points to glean information for a
14 foreign intelligence service.
15 More about the pumping station or the lift station.
16 Another station located in the military hospital. After lunch
17 we usually do the check of Boca Chica.
18 You may recall that is where the airfield is located.
19 There are different components of the Naval Air Station. Boca
20 Chica is the airfield.
21 We start about 12:45. Here we have to check 12 more
22 stations located in different parts of the base. Of all of
23 them, the most important ones from the operational point of
24 view ‑‑ you know he is not talking about sewage operations.
He
25 is talking about the operational interest of the Cuban
RICHARD A. KAUFMAN, RMR, NP
U.S. COURTHOUSE, MIAMI, FLORIDA 33128
14010
1 Intelligence Service.
2 The most important ones are a station located on the
3 side of the building 1125, the hot pad. From there we can
4 identify squadrons and Count the airplanes.
5 The Naval Air Station, that is a training facility.
6 Remember what Captain Hutton said, we train like we fight. If
7 somebody observes the way that the Navy and the tenant
military
8 entities are training, they get a window of insight how those
9 units will perform in an actual combat situation. That is of
10 vital concern to the Cuban Intelligence Service.
11 You remember the testimony of defense expert
witnesses
12 who testified that the Cuban military strategy is something
13 called the war of the people and that when the much dreaded
14 invasion by the United States of Cuba which is what they fear
15 happens, they intend to use the war of the people in order to
16 take out as many of those troops as they can and observing
17 training is one way to get a window into that information.
18 More pumping station. A station located inside the
19 armaments warehouse that even though has a strict entrance
20 control, is a strategic point to which we have access.
21 Lorient has access the public doesn't have and he is
22 noting this as a point of interest for the Cuban Intelligence
23 Service that this can be exploited.
24 A station located in the area where the fuel is
stored
25 which gives us visibility of the hangar area and the main
RICHARD A. KAUFMAN, RMR, NP
U.S. COURTHOUSE, MIAMI, FLORIDA 33128
14011
1 platform.
2 Let's talk a little bit about the hot pad building.
3 This evolved as an area of concern for Lorient. It was
4 reported back to his handlers and his handlers also saw it as
5 an opportunity to be exploited. No, Lorient didn't go running
6 out when he heard there was a top secret function and start
7 scanning it with binoculars; that would have been stupid and
8 these are not stupid people, ladies and gentlemen. They act
9 carefully, they act cautiously, but they act. Lorient knew
10 what he had a whiff of and he wanted to make sure his masters
11 in Cuba knew and they gave him instructions.
12 The hot pad is a secured facility. It was a place
13 screened by mangroves and during the command period of Captain
14 Hutton, it was renovated to store all types of classified
15 material. It has high intensity lamps that were lit all the
16 time ‑‑ do we have GX 720A ‑‑ this is an overall. Let me
17 visually describe. High intensity lamps lit all the time of
18 nighttime, during darkness. A hangar opening on one side not
19 the ends or the backs so you can't see what is inside. There
20 is a large open expanse in front of the building so anyone
21 approaching the structure would have to cross very visibly and
22 we could see that in the placard earlier. There is a new
fence
23 line with razor wire. We could see that in the photograph on
24 the placard as well. It has no windows. According to Captain
25 Hutton, it contains information that the U.S. military
RICHARD A. KAUFMAN, RMR, NP
U.S. COURTHOUSE, MIAMI, FLORIDA 33128
14012
1 endeavors to protect from public disclosure and it was being
2 fitted for those purposes during the time Lorient had his
3 interest in it.
4 There is no entry. There is a gated entry with a
turn
5 style. There are cameras. There is no entry without being on
6 an access list and positively identified.
7 There are noise generators to prevent overhears.
8 There are cameras throughout the facility and even the
interior
9 is controlled.
10 The building was first used to store classified
11 documents beginning April of 1997. There were classified
12 discussions in that building before that.
13 Lorient's interest preceded the completion of that
14 renovation, because as I said, he had a whiff of what he was
on
15 to there.
16 Could we have placard 21 a double placard.
17 The story of the hot pad involves at one point or
18 another all three of the individuals charged with conspiracy
to
19 commit espionage, Lorient, Allan and Giro.
20 First of all, we have Lorient's July 19, 1996 report
21 to Giro, and it appears at DG 121. These are excerpts placed
22 on the board. It notes, general remodeling is being done to
23 the location that is occupied by the command post of what we
24 call the hot pad and it says this confirms all the national
25 guard aircraft there were transferred to the base.
RICHARD A. KAUFMAN, RMR, NP
U.S. COURTHOUSE, MIAMI, FLORIDA 33128
14013
1 Then later in that same report it says what was said
2 about the remodeling of the A 1125 building which will be
3 identified as hot pad is confirmed. This building is being
4 remodeled from other functions because of which all activities
5 of the national guard is based at and directed by the
Homestead
6 base.
7 Lorient's curiosity is piqued.
8 In one of these other documents, one of the
evaluators
9 from the CP says we know you are going to go in there and
catch
10 everything that your sharp eye can take in. He does have a
11 sharp eye. He saw them pulling out of building A 1125 and he
12 wanted to know what was going to happen there next.
13 By November 1996 he has gotten information. He says
14 in that report DG 106, the renovations we mentioned are taking
15 place in building A 1125, the hot pad building. It continues
16 to be priority work for public work. I haven't been able to
17 determine the reason for the renovation. I do have
information
18 that the structure will be used for some top secret activity.
19 I also noted they sealed all the windows of one of
the
20 buildings wings with block and that office type dividers were
21 built.
22 Underneath that particular passage we have indicated
a
23 little section from the Spanish version of the same document
24 and I won't try to read it to you out loud but you will see
25 that it is in Spanish about having information that there will
RICHARD A. KAUFMAN, RMR, NP
U.S. COURTHOUSE, MIAMI, FLORIDA 33128
14014
1 be a building, the structure will be for some activity, top
2 secret. That was a term of art that Lorient was gloming onto.
3 This wasn't just saying in Spanish there was something going
on
4 there, something not known to the public. He was saying "top
5 secret," his quote, his emphasis. He knew what he was looking
6 for. He knew he found a hot button and he was pushing that
hot
7 button for his masters in the Cuban Intelligence Service.
Sure
8 enough, he is right, they are interested.
9 For the end of 1996, Saul writes to Giro and you will
10 remember Comrad Saul is the individual in Cuba who tutors
11 Lorient periodically on military objectives he is to be
12 focusing on and Saul writes in DG 141 and this is information
13 for Lorient's benefit, the end of year evaluation for Lorient.
14 About the remodeling of the hot pad building. You say they
15 have information they will use it for top secret activity. If
16 possible expand on why they say it is for top secret and
17 anything else you can get related to the use of that building.
18 Ladies and gentlemen, this is quite explicit. It is
19 the purpose and the goal of this operation. It is part of
20 their agreement and ending that they are to acquire top secret
21 information. Protected information relating to the national
22 defense of the United States.
23 Again, we have included the Spanish in this placard.
24 It comes right from the Exhibit DG 141 and it has information
25 in Spanish, the same words, but it also repeats those phrases,
RICHARD A. KAUFMAN, RMR, NP
U.S. COURTHOUSE, MIAMI, FLORIDA 33128
14015
1 top secret in English, not just for Lorient but for the Cuban
2 Intelligence Service. That is a term of art, it is a hot
3 button that has been hit.
4 You will have the documents because they are in
5 evidence in both English and in Spanish. Lorient is never one
6 to fall down on his instructions having gotten this
7 instruction, in January 23rd, 1997 reports back and this is at
8 DG 123, regarding what you were telling me about the hot pad,
9 for the last two weeks I have been working at this building.
10 As I explained to you, the remodeling has been characterized
by
11 the extreme security measures taken for these offices.
12 These documents, ladies and gentlemen, so far, these
13 are all DG documents and these are all going through Giro.
The
14 defendant Gerardo was aware of and overseeing this operation
of
15 interest trying to penetrate and find out the top secret
16 function of a building at the military base of the United
17 States in Key West.
18 Then February 24, 1997, Lorient further is describing
19 this building at DG 138 and this is where he is talking about
20 having to be able to make a copy of the floor plan of that
21 building and he says where remodeling has been done for some
22 top secret and again we have the Spanish and he talks about,
23 this is for some activity, top secret and in parenthesis he
24 puts, so there is no misunderstanding, this is talking about
25 something that is strictly secret.
RICHARD A. KAUFMAN, RMR, NP
U.S. COURTHOUSE, MIAMI, FLORIDA 33128
14016
1 That is also a report that goes through Gerardo
2 Hernandez.
3 The next two items, the final two items in this
4 placard are also with regard to Lorient's work but they are
5 coming through Allan and we recall Allan has now taken over
6 management of Lorient by this time in early spring, mid 1997;
7 so Allan also is privy to and part of the agreement of
8 penetrating and getting information about protected national
9 defense information of the United States and Allan's June 2,
10 1997 transmittal of Lorient's work analysis report from the CP
11 appears at DL 103 and that includes that reference I just read
12 to you. Remember I said it appeared in DL 103, but certainly
13 it is clear, we should try to determine its future use; that
14 Allan now as well as Lorient is absolutely on board with the
15 interest in the hot pad building.
16 Finally among these items, about a little less than a
17 year later they are still focused on the hot pad building and
18 Lorient makes a report which is enclosed in Allan's February
19 1998 report and appears at DAV 114. It is very possible that
20 the hot pad A 1125 of the air naval station will also be
21 designated for Southcom work, since up to the present there is
22 no one at this location.
23 Again, these interests are coming together, interests
24 in top secret activity at Boca Chica Naval Air Station and
25 interest in Southcom and maybe now this has something to do
RICHARD A. KAUFMAN, RMR, NP
U.S. COURTHOUSE, MIAMI, FLORIDA 33128
14017
1 with Southcom.
2 Captain Hutton also told us that that was not the
only
3 secure area at the Naval Air Station of areas that were
4 referenced by Lorient.
5 For instance, you will recall he was talking about a
6 lift station near the armament warehouse? Captain Hutton told
7 us that was a secure area.
8 There was talk about the JIATF and Captain Hutton
9 explained the Truman Annex housed the Joint Interagency Task
10 Force. She said the public is not allowed in these buildings,
11 it relates to the national interests of the United States. It
12 contains classified information. There is open classified
13 information. One must be on an access list to gain entry
14 there. There is a perimeter fence. It stores all levels of
15 classified information including top secret.
16 Some of the photographs included GX 712G‑1 showing
17 building 729 and 1280 and if we could look in particular,
18 building 290 or 291, high intensity lamps and a gate camera
19 used to protect those buildings. And Government Exhibit 870
is
20 Lorient's work record and they show him doing work on February
21 24, 1998 and February 25, 1998 and this is work that is
22 associated with building 291 at the Truman Annex.
23 April 28, 1998 and June 11, 1998, he is doing work
24 associated with building 729, also part of this complex.
25 If we could have the placard please regarding the
RICHARD A. KAUFMAN, RMR, NP
U.S. COURTHOUSE, MIAMI, FLORIDA 33128
14018
1 Joint Interagency Task Force East this is Lorient's report of
2 July 19, 1996 to Giro regarding the Joint Interagency Task
3 Force East. Again he says, according to information we were
4 able to obtain, there are indications that this installation's
5 main secret military work sites are to be found in building
6 290.
7 It goes on with some more concerning 290 and 291,
8 describing the controlled access. Then it goes on to say,
with
9 respect recently able to discover that the main secret
military
10 missions are carried out in building 290.
11 Ladies and gentlemen, again, it is quite explicit
that
12 this group of spies wants to acquire United States protected
13 national defense information. This is what they are hungry
14 for, what they are looking for.
15 We were recently able to discover the main secret
16 military missions are carried out in building 290.
17 Further, as it goes on, it describes the departments
18 that are there, and then it says, this location 200 in
building
19 290 is classified as "top secret." Again we have set forth
20 the Spanish text and you can see those words are in English
and
21 put in quote marks showing the particular interest in probing
22 that information.
23 Right underneath that it says it was not possible to
24 obtain information on the specific activities being carried
out
25 there.
RICHARD A. KAUFMAN, RMR, NP
U.S. COURTHOUSE, MIAMI, FLORIDA 33128
14019
1 Ladies and gentlemen, does that mean there is somehow
2 not a conspiracy to acquire this information? Of course not.
3 It means they were not necessarily successful in piercing the
4 defenses of the United States Government to find out what that
5 top secret activity was, but they were trying to and taking
6 steps to. The writing of this report is such a step.
7 When a Cuban foreign intelligence ‑‑ a Cuban
8 intelligence agent in a foreign country writes back to
9 headquarters, hey, I found some top secret information, that
is
10 an overt act in furtherance of a conspiracy to acquire and
11 obtain and communicate non‑public United States national
12 defense information, and it is not necessary that that agent
be
13 successful in getting the information for the conspiracy to be
14 completely proved and that is exactly what we have here.
15 Another matter as to which Lorient reported was
16 something called the greenhouse and that was at DAV 102 and if
17 I could take a moment to go through that document because we
18 had some testimony concerning this from Captain Hutton as
19 well.
20 Again, Lorient has good instincts. He smells when
21 there is something of interest here.
22 This is a report by Lorient to Allan and it was
23 delivered actually to Oscar during the summer of 1998 when
24 Oscar, also known as Vicky, also known as Ruben Campa, John
Doe
25 Number 3, at the far left side of the bench when he was
filling
RICHARD A. KAUFMAN, RMR, NP
U.S. COURTHOUSE, MIAMI, FLORIDA 33128
14020
1 in for John Doe Number 2.
2 It describes the greenhouse and he says, this came up
3 because of a repair job assigned to me on a mobile sentry box
4 which they call greenhouse.
5 He doesn't quite know what that greenhouse is but he
6 senses it could be important.
7 As far as I know this sentry box is subordinate to
the
8 work of electronic grounding for the Naval Air Station. I
know
9 that has been used when training squadrons come here to this
10 Naval Air Station for practice.
11 Today I was able to obtain some information which
12 might be important related to equipment and frequencies that
13 they used with this sentry box. Of course it was empty and I
14 was there to get information about the construction of a new
15 door.
16 Here we see a little bit of opportunism on behalf of
17 Lorient. No, he is not rushing out with a camera where people
18 can notice him and throw him off the base. But he takes
19 advantage. He was there to get information about constructing
20 a new door. He saw it was empty and what does he do, he takes
21 down frequency information, as we see on the next page.
22 The sentry box has some equipment which is a radio
23 transmitter/receiver type and the equipment has two frequency
24 controls with the following frequencies marked and he makes a
25 note of them.
RICHARD A. KAUFMAN, RMR, NP
U.S. COURTHOUSE, MIAMI, FLORIDA 33128
14021
1 Then he says there was another smaller radio
equipment
2 on a table with these frequencies, 305.0 and 328.3.
3 Again he says, we are unable to confirm that these
4 frequencies are the ones that have been used in the work at
5 this facility, but there is a possibility they are the last
6 ones used here in the work with the training of aircraft.
7 Captain Hutton did tell us a little bit about those
8 greenhouses, that it was something important and the little
9 equipment on the table, the smaller equipment, that was
10 important. According to Captain Hutton, the greenhouse is a
11 slang term for a mobile landing signal officer shack. It gets
12 towed along. It has glass on the top and sides which is how
it
13 gets its name. It is an alternate air control tower. Inside
14 is a bank of radios. It is air conditioned and it provides
15 training for landing of aircraft on carriers and that is
16 something pilots are tested and graded on.
17 The public does not have access to these greenhouses
18 which can be moved from runway to runway. They are mini
19 control towers that can be used in lieu of the main control
20 tour in the event of combat.
21 Captain Hutton explained to us their main tower
22 controls is not only for military aviation but also civilian
23 aviation and they used public frequencies and on DAV 102 he
had
24 those sets of frequencies, the top two sets of frequencies,
25 340.2 are published. The second set on the smaller radio
RICHARD A. KAUFMAN, RMR, NP
U.S. COURTHOUSE, MIAMI, FLORIDA 33128
14022
1 equipment on a table, those were not published and as Captain
2 Hutton said, we don't want certain frequencies to be available
3 to the general public, so if we shift to those, the public
4 doesn't know we are using those frequencies to talk on to
5 communicate.
6 Lorient's instincts were sound. Trying to glean
7 information that was protected and the information he received
8 in fact was protected.
9 Captain Hutton also testified a bit about the arrival
10 of the 224th Battalion of Military Intelligence is not
11 announced to the public. The same is true of other military
12 intelligence units. As Captain Hutton said, it is non‑public
13 information related to the national defense. We are not in
the
14 business of publishing the movement of military assets. Yes,
15 at a certain time they become known because they are seen, but
16 they are not necessarily published in advance.
17 Captain Hutton further said we don't want people to
18 have knowledge how we operate in peacetime because obviously
19 many things we do in peacetime will be exactly the same things
20 we do in war.
21 So if you can understand how we operate, you have an
22 understanding what we are likely to do in a conflict
situation,
23 what units are maneuvers about, what other units there are and
24 how long they stay and what they do is important information
25 that we maintain, closely held information, not public
RICHARD A. KAUFMAN, RMR, NP
U.S. COURTHOUSE, MIAMI, FLORIDA 33128
14023
1 non‑disclosure information.
2 Ladies and gentlemen, obviously these conspirators
3 wanted secret, non‑public information, the hot pad, building
4 290, the greenhouse, 224th Battalion. They were sniffing
5 around the edges and were graded on it. Remember also what we
6 had testimony about, that intelligence can also be monitored.
7 One of the aircraft they were monitoring, for instance, was
the
8 Sikorsky SH 3 Sky King. That is one of the aircraft in that
9 war planes box.
10 Here it is, ladies and gentlemen, and from the
11 information on the back of the card we see that this is a
12 submarine hunter/killer helicopter. It is a shipborn
13 antisubmarine helicopter.
14 Another aircraft in which they had interest was the
15 P‑3 Orion. This is also a maritime patrol and antisubmarine
16 plane.
17 Similarly with the British Aerospace Nimrod, another
18 one of great interest. Another maritime patrol and
19 antisubmarine plane.
20 Ladies and gentlemen, Admiral Carroll, one of the
21 defense expert witnesses, testified that the Cuban military
has
22 no operational submarines. For whom are they acquiring
23 submarine monitoring information?
24 Remember, information is portable. It can be sold,
it
25 can be marketed and according to General Clapper, Cuba has
RICHARD A. KAUFMAN, RMR, NP
U.S. COURTHOUSE, MIAMI, FLORIDA 33128
14024
1 cooperative intelligence relationships with other nations,
2 including Russia and China.
3 There is so much more that can be said about the
Naval
4 Air Station. DAV 122, the list of the aircraft codes, there
is
5 the monitoring of the base personnel including their home
6 addresses and birthdays. A description of the unknown
aircraft
7 as I mentioned. The positing of theories what those military
8 intelligence units are up to.
9 Let's talk about the Southern Command for a few
10 moments ladies and gentlemen because we are going to talk a
11 little bit about the Naval Air Station again when we talk
about
12 the topics of recruitment and exploitation of human
13 intelligence ‑‑
14 THE COURT: We will break for the day at this time.
15 We are going to take a break. Do not discuss this case
amongst
16 yourselves or anyone else. Have no contact with anyone
17 whatsoever associated with the trial. Do not read or listen
to
18 anything touching on this matter in any way. .
19 Be back in the jury room tomorrow morning at 8:45.
20 You are to hand the copies of the indictments that you
received
21 this morning up to the front if you would, please.
22 Have a nice afternoon and evening.
23 (Jury leaves room.)
24 THE COURT: Counsel please approach.
25 (Side bar.)
RICHARD A. KAUFMAN, RMR, NP
U.S. COURTHOUSE, MIAMI, FLORIDA 33128
14025
1 THE COURT: There is another erroneous statement that
2 was made in the government's motion to stay before the
Eleventh
3 Circuit I find must be clarified for the record.
4 Friday morning, Mr. McKenna was not available because
5 his daughter was graduating from high school and all counsel
6 knew he would not be available that day. At the time that my
7 courtroom deputy called counsel to notify of the modified
8 instruction for the Kloess ruling, I also had Ms. Shelnut
9 notify all counsel, the government and defense counsel that I
10 had additional findings to make regarding Feola. I also had
11 her notify there would be no change in the ruling but I had
12 additional findings.
13 The government in its motion for stay before the
14 Eleventh Circuit indicated at 9:30 Friday morning my rulings
15 were final. While that may be technically correct, it
16 certainly was not within the spirit of the message that was
17 conveyed by Ms. Shelnut, and in addition the government
18 attached the findings that the Court made that I indicated at
19 Friday morning I intended to make additional findings and I
did
20 make additional findings today.
21 I am very disappointed that the government would have
22 made such gross misrepresentations concerning both my findings
23 to Feola and the status of the jury instructions before the
24 Eleventh Circuit in its motion for stay that was filed on
25 Friday.
RICHARD A. KAUFMAN, RMR, NP
U.S. COURTHOUSE, MIAMI, FLORIDA 33128
14026
1 We are in recess until 8:45 tomorrow morning.
2
3 o0o
4
5 I certify that the foregoing is a correct
6 transcript from the record of proceedings in the
7 above‑entitled matter.
8
9
10 _______ _______________________
11 Date Official Court Reporter
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RICHARD A. KAUFMAN, RMR, NP
U.S. COURTHOUSE, MIAMI, FLORIDA 33128
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