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14048
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. ) Wednesday
6 ) May 30,
2001
GERARDO HERNANDEZ, ET AL., )
7 )
Defendants. )
8 )
‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑x
9
VOLUME 100
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
14049
1 I N D E X
2 Direct Cross
Red. Rec.
3
WITNESSES FOR THE GOVERNMENT:
4
5 SUMMATIONS Caroline Heck Miller Joaquin Mendez
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
14050
1 (Open court. Jury not present.)
2 THE COURT: United States of America versus Gerardo
3 Hernandez, et al., Case Number 98‑721.
4 Good morning. Counsel state their appearances for
the
5 record.
6 (All parties present.)
7 THE COURT: The interpreters are present as well. .
8 Bring the jurors in.
9 (Jury present.)
10 THE COURT: Ladies and gentlemen, you have additional
11 notebooks of evidence, defense exhibits that were introduced
12 into evidence. If you would be so kind as to put your juror
13 number on the first page on each one of the notebooks. As I
am
14 sure you are aware, your boxes are full, so we need to collect
15 these separately and I want to make sure they are returned to
16 you as your notebook. .
17 You may proceed, Ms. Miller.
18 MS. MILLER: May it please the Court, counsel, good
19 morning ladies and gentlemen.
20 We were talking about Count 2, the conspiracy to
21 commit espionage, and as you know, that involves the activity
22 of defendants Gerardo Hernandez, John Doe Number 2, also known
23 as Luis Medina and Antonio Guerrero and involves activity at
24 certain military installations. Yesterday we talked about
Boca
25 Chica and for these defendants, Southcom, Southern Command
RICHARD A. KAUFMAN, RMR, NP
U.S. COURTHOUSE, MIAMI, FLORIDA 33128
14051
1 became an overweening and compelling interest and tasking for
2 them.
3 Southern Command as we know is the command facility
4 for the United States military that covers certain geographic
5 areas, and in June of 1997, it took over responsibility and
6 oversight for the Caribbean, including obviously the area of
7 Cuba. There also was a physical move of Southern Command to
8 South Florida and this caused great interest at the Cuban
9 Intelligence Service and a tasking which became a number one
10 priority for that service.
11 The first reference ‑‑ the earliest references to the
12 Southern Command are when Gerardo Hernandez in some of these
13 documents starts reporting that reflects Mario and Julia are
14 going to be turned over to a new comrade that will take over
15 oversight of the military mission with respect to the Red
16 Avispa, the Wasp Network, in South Florida.
17 For instance at DG 110, a September 4, 1996 mailing,
18 we have an early reference and this report reflects that Giro
19 is to pass Mario, Julia, Gabriel and Lorient on to Allan at
20 superior headquarters and because of Julia's new task, she is
21 to leave her job and break all the ties with the juniors,
22 Manolo and Judith and to get together, and there is an
23 instruction that Manolo should get together with Giro with a
24 pretext or legend for her to leave her job, such as a fight or
25 a claim of a better job. Again, that is not the real reason
RICHARD A. KAUFMAN, RMR, NP
U.S. COURTHOUSE, MIAMI, FLORIDA 33128
14052
1 but there always has to be a trail to explain why these people
2 did what they did in the event authorities might be looking at
3 Mario or Julia.
4 The urgency and the priority of the new mission is
5 reflected clearly in communications both of Gerardo Hernandez
6 and of Allan, and if we could have placard 23, Agent Alonso.
7 This has some of the excerpts of materials that reflect that
8 urgency, and there should be two placards for that.
9 At DG 108 in the middle of 1996, there is a report
for
10 Giro. In view of this situation, the Southern Command turns
11 into one of the new prioritized objectives we have in the
Miami
12 area. It has been decided Mario and Julia should start
working
13 against it.
14 Further down in that same passage as you could see in
15 the highlighting, both comrades should stay apprised and
16 immediately inform regarding everything that appears on said
17 command by public information, secret, visual, as well as
18 everything referring to employment opportunities.
19 Then further on in the same report, Giro writes in
20 that lower case notation that indicates some notes of his, as
21 you see it is time to play hardball and we have to worry about
22 doing things right from the beginning.
23 One of the earliest exhortations then is that both
24 comrades, Julia and Mario, need to gather everything that
25 appears on said command by public information, secret, visual,
RICHARD A. KAUFMAN, RMR, NP
U.S. COURTHOUSE, MIAMI, FLORIDA 33128
14053
1 as well as everything referring to employment opportunities.
2 Ladies and gentlemen, obviously this is early days in
3 Southcom. The place hadn't even been built yet, but they are
4 compellingly interested in getting in there, getting a job
5 there and finding whatever they can by whatever means, whether
6 it is public or secret.
7 This is skipping ahead in time a little bit but these
8 are references that focus on the urgency of the Southcom
9 mission.
10 DH 113 May 9, 1997, there is mail to Allan from Willy
11 at the CP. The subject is the six month evaluation of work
12 against Southern Command from October 26, 1996 to April 25,
13 1997. Obviously by this time Allan, also known as John Doe
14 Number 2, is in place and is trying to activate the
penetration
15 of the Red Avispa into Southern Command, first by doing the
16 operational study of the physical premises then also by
working
17 with Mario and Julia to try to get some jobs and to try to
find
18 out how to get them jobs at Southern Command.
19 CP writes to Allan. Basically they are saying we are
20 glad you are on the job because you will really get things
21 going, and they talk about the fact perhaps time has been lost
22 before and needs to be made up. Now we must recover that loss
23 wherever possible because the deadline is approaching and they
24 must not find us disarmed. I hope conditions are better with
25 you at the head of that valiant group to take the offensive
and
RICHARD A. KAUFMAN, RMR, NP
U.S. COURTHOUSE, MIAMI, FLORIDA 33128
14054
1 make a referral that take us to its very innards.
2 Ladies and gentlemen, we heard from the defense on
3 cross examination and other questions that seemed to be
focused
4 on the idea Mario could never get a job at Southern Command,
no
5 big deal, there was nothing he could do there. First of all,
a
6 conspiracy is not measured by whether it would have been
7 possible for the conspirators to achieve their goal. It is
8 measured by their goal and second of all, we could see here
9 that the goals and hopes of the Cuban Intelligence Service for
10 getting into Southcom, were very great. They weren't looking
11 to have somebody hanging out in the Dunkin Donuts shop. They
12 wanted to make a referral that will take us to its very
13 innards. They wanted to penetrate Southern Command at its
most
14 sensitive points, and that is the tasking they gave to Allan
15 and that is the spirit with which Allan sought to carry out
16 that tasking in his work with the agents.
17 For instance, on October 25, 1997 in DS 103 which is
18 the next passage that appears in these placards, Allan conveys
19 to Mario and Julia instructions from the CP and telling them
20 what is coming out of the CP and he is telling them this is
the
21 number one priority for the whole Directorate of Intelligence.
22 The penetration of the Southern Command is the first priority
23 that the department currently has. Finally he asserted, the
24 person from CP who is speaking at a meeting; he asserted since
25 this is the number one priority in the department, the first
RICHARD A. KAUFMAN, RMR, NP
U.S. COURTHOUSE, MIAMI, FLORIDA 33128
14055
1 deputy chief of the DI, the director of intelligence, will
2 check the status of the operation monthly.
3 Then later on in conclusion, Allan writes to Mario
and
4 Julia, all right, brothers, that is all I received from the
5 nation and we skip to the highlighted portion; we have to
6 exploit all means to penetrate this target. This is the
number
7 one task of the directorate and of our country at the present
8 time and we can do no less than to dedicate all of the best
9 that is in us to this effort.
10 DA 101 is another document of Allan and it is his
note
11 forwarding to the special agents August 1997 report on
12 Southcom. This is what he says in forwarding the reports to
13 the CP.
14 The special agents are ready and prepared for
15 everything needed to penetrate the objective and were all
16 committed to that daily struggle.
17 DA 102 also appearing on the placard. Allan's 1998
18 note to Mario and Julia regarding the CP's evaluation of their
19 work regarding Southcom for the one‑year period to October 27,
20 1997. A note from Allan. This is the report given to
superior
21 headquarters of our institution about the development of this
22 penetration task which as you already know is the number one
23 priority of our institution at this moment. The only thing
24 left is to exhort you to continue on this road and accomplish
25 everything you can of the pending interests and the future
RICHARD A. KAUFMAN, RMR, NP
U.S. COURTHOUSE, MIAMI, FLORIDA 33128
14056
1 ones, so this operation can end with the proposed principal
2 objective, infiltrate the Southern Command in their own
3 territory.
4 Ladies and gentlemen, this was a mission that clearly
5 contemplated acquiring, communicating and obtaining non‑public
6 information. They are to make a furrow to its very innards,
7 they are to infiltrate it in its own territories.
8 It also fulfills one of the other elements you will
9 hear about in the instruction also, that the defendants must
10 have acted with reason to believe that the materials that they
11 would be seeking to acquire would be used to the injury of the
12 United States or to the benefit of Cuba.
13 Ladies and gentlemen, we submit both have been shown
14 here. We have seen the numerous references to you are helping
15 our country by doing this. We have seen the numerous
16 references to Cuba's perception of the United States as its
17 enemy and one over which it wants to get an advantage.
18 Finally along this line on the placard, we have DAV
19 118, the summer of 1998 work directive of the CP. This was
for
20 Oscar when he was here substituting for Allan. The main
21 objective is to achieve penetration of the Southern Command
22 military base.
23 Ladies and gentlemen, as I mentioned, Allan was the
24 one who had primary oversight for the Wasp Network's effort to
25 penetrate Southern Command, and we have some more information
RICHARD A. KAUFMAN, RMR, NP
U.S. COURTHOUSE, MIAMI, FLORIDA 33128
14057
1 about Allan. Allan had long familiarity with penetrating the
2 U.S. military for the government of Cuba. DA 125 and 125A are
3 documents from his time in Tampa in 1992 when he first
arrived,
4 that contain a rather detailed description of how he gets
5 identity cards, including some library cards.
6 We had some questions from the defense that seemed to
7 be focusing on the idea of library cards, that shows they are
8 just going to do research at the library.
9 Ladies and gentlemen, that doesn't make sense. The
10 library cards are parts of the legend these agents used to
11 obtain other identity, and this is reflected in DA 125 at page
12 14 in which Allan is talking about, at last, now I have six
13 good IDs, social security, birth certificate, Miami library
14 card, Tampa library card and a few others. That is what they
15 want the library cards for.
16 In Tampa Allan lived at two addresses, 3407 West Bay
17 Avenue and we had photos of that, 740A and B were the exhibits
18 and later at 6910 Interbay Boulevard Tampa, Florida, and we
had
19 photos of that and that address was close to the McDill Air
20 Force Base and we had photos that showed its proximity to
21 McDill, 740D, F, G, H and I.
22 DA 130 and 131 gives some insights what Allan was
23 doing in Tampa. It reflects his meticulous tracking of
24 departures, flight departures including obviously military
25 ones, from McDill Air Force Base.
RICHARD A. KAUFMAN, RMR, NP
U.S. COURTHOUSE, MIAMI, FLORIDA 33128
14058
1 One other interesting point about this DA 131 when
2 Allan was in Tampa. At one point he includes a little note
3 about another operative named Rolo and what he says in that
is,
4 this is DA 131 page 5; ladies and gentlemen, with regard to
5 these page numbers ‑‑ agent if you could take down the
6 placard.
7 When you look for these page numbers, if it is not on
8 the exact page, please look a page ahead or a page behind.
9 Sometimes the computer will change the pagination slightly.
10 In this document, it has this message concerning
11 Rolando. According to Florida law, I have been living in
12 Florida more than six months without resident ID. This is
13 against the law if detected. Please analyze possibility of
14 beginning document plan ASAP.
15 The point is not that Rolo is so worried he will be
16 breaking the law in Florida because he doesn't want to be a
law
17 breaker. The point is, these defendants want to be totally
18 inconspicuous to the authorities. They want to have their IDs
19 perfect and they don't want to get picked up and arrested.
20 The same thing in these documents when it says obey
21 all security measures, don't go near the intelligence
22 building. That doesn't mean they were not interested in
23 getting intelligence or accessing secrets of the United
24 States. What it shows is they didn't want to get caught and
25 once again, all of their activities in trying to penetrate
this
RICHARD A. KAUFMAN, RMR, NP
U.S. COURTHOUSE, MIAMI, FLORIDA 33128
14059
1 facility had to be done carefully and cautiously without
2 improvisation, with the supervision of the DI but they were to
3 be aggressive, to be opportunistic as we saw down at the Naval
4 Air Station and as we see in these terms concerning Southcom
5 when there is constant exhortation to not only try to get a
job
6 but after they seem to be coming more discouraged about
getting
7 a job, try to meet people from Southcom so we could achieve
8 indirect penetration.
9 I am just going to mention briefly some of the
10 documents you will have an opportunity to look them up
yourself
11 in the jury room. For instance, DG 109 is Giro's last meeting
12 with Mario and Julia before he turns them over to Allan who he
13 describes as the new comrade with whom they will work. He has
14 a lot of experience and great mastery of that work.
15 DA 113, this is after control has passed to Allan and
16 there is hope Allan will step up the pace.
17 They also mention a concern about newspaper
18 information. There is an interesting reference there. It is
19 noted to Allan, on April 11, it was published in the Southern
20 Command newspaper that construction of the headquarters
21 building is 95 percent finished which contradicts what you are
22 seeing. Then the document says, we do not deny the possible
23 existence of disinformation in that newspaper. It is
important
24 not to take your eyes off that elephant.
25 I am not quite sure what elephant means. It might be
RICHARD A. KAUFMAN, RMR, NP
U.S. COURTHOUSE, MIAMI, FLORIDA 33128
14060
1 a code phrase for Southern Command; but the point is, the CP
is
2 well aware and suspicious of information that comes out of
3 newspapers. One reason to look at newspapers is not only to
4 find out what is going on but to find out disinformation.
They
5 are concerned the U.S. Government may be putting out a version
6 of the state of readiness of Southcom that is not true in
order
7 to baffle or thwart enemies or people who might be looking and
8 one of the missions of the Red Avispa is to get behind this
9 information.
10 That also plays into one reason why there is an
11 interest in public information as well as secret information
12 because they are looking to see what is disinformation.
13 At DA 113, page 21, there is also a statement that,
14 our opinion having the command headquarters in Miami will make
15 it is easier for the right wing Cuban elements to increase
16 pressure on the leaders of that military institution.
17 There has been some suggestion through defense cross
18 examination this was the real reason they were into Southern
19 Command because they thought the exile community might
20 control. That is one passing reference in a context of a huge
21 and overwhelming military interest of being in Southern
22 Command. That is not the tail that is wagging the dog. That
23 is the tail on the dog.
24 Yes, it was one of their concerns but one of many
25 concerns and you will look in vain through these documents for
RICHARD A. KAUFMAN, RMR, NP
U.S. COURTHOUSE, MIAMI, FLORIDA 33128
14061
1 anything that supports the view that their reason for being at
2 Southcom was something primarily other than to get military
3 information to benefit Cuba and to injure the United States.
4 DA 123, June of 1997. Allan reports to Willy that
5 Lorient has provided the location of the Southcom central
6 recruiting office.
7 At DA 123, pages 9 through 10, Allan also makes a
8 reference to the effort of Mario and Julia to get public
9 information and it is telling what he says about it. He says,
10 information came to me by these public sources, by these
11 special agents, is mainly from public sources as you can see.
12 Although I know that you have access to these sources, I
wanted
13 our SAs to write about this more than anything so they are
well
14 trained and maintain them 100 percent of the time focused on
15 the main objective, their work. That is why I do not devalue
16 their interest in writing these types of articles, because
they
17 really do contain information of interest although they are
18 public, but I maintain them on alert at all times in search of
19 all information about Southcom from all kinds of sources.
20 Therefore, it is important for you all to understand my point
21 of view, at least at this initial stage of penetration.
22 Even the public information that the agents are
23 gathering, Allan is sort of apologetic for and he says yes, I
24 am having them get public information but we are at an initial
25 stage. It keeps up the morale, it keeps them in training.
RICHARD A. KAUFMAN, RMR, NP
U.S. COURTHOUSE, MIAMI, FLORIDA 33128
14062
1 Clearly he is looking forward to that happy day when they will
2 be getting more than public information.
3 DS 101 also deals with Southcom Command. Mario and
4 Julia in July of 1997. It has this statement that Southern
5 Command is very worried because it will be very difficult to
6 maintain security of the command in Miami because they
consider
7 (and they are 100 percent correct) that Cuba has penetrated
8 their community there.
9 DS 103, October 24, 1997, Allan writes to Mario and
10 Julia and he talks about and conveys instructions of the CP,
11 that they also now have to look for indirect penetration as
12 well as direct penetration. If they can't get jobs there
13 themselves they have to hook into and exploit people who work
14 there and it is noted at page 6, Mario should continue working
15 at Mantec, the side organization that was working with
16 Southcom, in two directions, make friends or acquaintances
that
17 can share any information about Southcom and use them as a
type
18 of trampoline for penetration.
19 That is the indirect penetration that General Clapper
20 told us about.
21 DA 101, August 1997. Allan writes to Willy and again
22 he notes, apologetically, that so far he only has public
23 information and we can see here on the viewer, he says, note
24 from Allan. Here are the reports from the special agents on
25 Southcom. I know that two of them are public, but remember my
RICHARD A. KAUFMAN, RMR, NP
U.S. COURTHOUSE, MIAMI, FLORIDA 33128
14063
1 comment in the previous mailing, that I encourage the comrades
2 to look for everything that is related to the objectives
3 because it is better if there is more than less. In this vein
4 I don't wish to discourage them for now regarding public
5 information.
6 Clearly, public information is, for the moment, until
7 we can get something better and the something better hoped for
8 is non‑public information, the goal of the conspiracy that is
9 charged in Count 2.
10 DA 126, October 1997, Allan to Willy about Southern
11 Command and he mentions that he is telling Mario and Julia we
12 are entering a higher level of penetration.
13 He also mentions that he speaks to them of their
14 positive potential for penetration, that they were clean
15 operationally and document‑wise and the length of time they
16 have been in the United States severed from our country.
17 The defense may sneer at the prospect that Joseph
18 Santos could have ever gotten a job at Southcom. I will tell
19 you who wasn't sneering. Cuban Intelligence Service. They
20 were saying you are clean operationally. Someone else who
21 didn't sneer was Christopher Winne, the intelligence officer
22 from Southern Command who came here and testified. Joseph
23 Santos had the citizenship, he had the legend. He was in no
24 worse position than Lorient, Antonio Guerrero. He did it down
25 at the Naval Air Station. There was no reason why Joseph
RICHARD A. KAUFMAN, RMR, NP
U.S. COURTHOUSE, MIAMI, FLORIDA 33128
14064
1 Santos could not have done it at Southern Command and the
Cuban
2 Intelligence Service thought he could do it and that is enough
3 for a conspiracy. He had to neither succeed nor did it have
to
4 be the case that he couldn't have succeeded. All that matters
5 is, the defendants believed he could succeed. They agreed for
6 him to succeed. They wanted to put him into Southcom. They
7 agreed to do that in order to obtain non‑public information.
8 There were overt acts. That is what is charged in Count 2 and
9 it is not necessary that Joseph Santos had gotten that job.
10 There was ever reason to believe he could have gotten that
11 job. Whether it would have led to a clearance, you don't
know,
12 ladies and gentlemen. Fortunately for us, the FBI arrested
13 these individuals before we ever got that far; but there is
14 nothing to suggest these defendants were not implacably
focused
15 on their goal putting Joseph Santos in Southern Command to
16 benefit Cuba and hurting the United States and in obtaining
17 non‑public information.
18 DAV 122 are the biographies of Mario, Julia and
19 Lorient.
20 You might want to take a look at them when you have
21 some leisure back in the jury room, but again, one thing that
22 is of interest here is that Lorient's background is no
stronger
23 for getting a job than that of Joseph Santos. This is Lorient
24 here. There was some skepticism expressed perhaps through
25 cross examination, Joseph Santos would never get a job. He
had
RICHARD A. KAUFMAN, RMR, NP
U.S. COURTHOUSE, MIAMI, FLORIDA 33128
14065
1 grown up in Cuba and had his education there; but look at
2 Antonio Guerrero, he grew up in Cuba. He had a degree from a
3 Russian University. That didn't stop him from getting a job
at
4 the Naval Air Station.
5 Joseph Santos' English is too poor. He couldn't get
a
6 job there. That is not correct. The employment application
7 placed in evidence by the defense was filled out by Joseph
8 Santos in English and as far as Lorient, English. He didn't
9 speak it well in 1993. That is what they note about him
10 themselves and yet he got a job at the Naval Air Station.
11 Lorient's training included operational psychology.
12 Characterization of people. Ability to draw out information
13 and interpersonal relations. Methods of relaxation.
14 Psychological techniques. You saw them at plea. This lady
15 Dalila Borrega that work for the employment agency that helped
16 him get a job at Naval Air Station. She mentioned she was
17 friendly with him. There is nothing wrong with that,
everybody
18 is entitled to have friends, but the lady testified it was her
19 idea for Lorient to get the job at the Naval Air Station.
That
20 wasn't her idea, Lorient was sent here from Panama in 1993 and
21 his job was, his task was to get a job at Naval Air Station.
22 In 1993, a work plan was organized that would begin
23 implementation on January 25, 1993 which was the day he would
24 settle in Key West. This plan already accounted for search
for
25 and rental of housing, search for a job, visual intelligence
RICHARD A. KAUFMAN, RMR, NP
U.S. COURTHOUSE, MIAMI, FLORIDA 33128
14066
1 against Naval Air Station. Study and job surf at the Key West
2 Naval Air Station, obtaining military information from
3 different sources.
4 Ms. Borrego thought it was her idea. It wasn't, she
5 was one of these unwitting dupes occasioned by the Cuban
6 military service and if they could do it without the people
7 realizing it was being done and they were being manipulated,
so
8 much the better.
9 Other documents concerning Southcom, DAV 116. Willy
10 to Allan on April 1998, talks about replacement is coming in
11 for Allan on vacation.
12 DAV 118 is the work plan for that replacement who was
13 Oscar. It states the main objective is to penetrate the
14 Southcom Military Base.
15 DAV 109, the July 1998 statement of Oscar's mission
16 with regard to Southcom, notes as soon as possible, achieve a
17 direct or indirect penetration. The acts have to be more
18 aggressive in search of indirect penetration.
19 DAV 102, August of 1998, Oscar's report in which
Oscar
20 being Vicky, John Doe Number 3, in which he emphasizes to
21 Lorient, everything related to outcome was of extreme
22 importance and for him to keep abreast of every bit of news.
23 He told Mario and Julia and told them the importance
24 of Southcom and emphasized not to overlook any sign or
25 information.
RICHARD A. KAUFMAN, RMR, NP
U.S. COURTHOUSE, MIAMI, FLORIDA 33128
14067
1 So at the end of the summer of 1998 at the time of
the
2 arrest, we leave these defendants desperate to penetrate
3 Southcom as of the time of their arrest.
4 No, they haven't achieved that penetration, but you
5 will hear in the instructions, and this is critical here, it
is
6 not necessary for the government to prove that the
conspirators
7 actually succeeded in accomplishing their unlawful plan.
8 Indeed it is certainly better they didn't succeed, but the
9 conspiracy was committed. That is the crime that is charged
in
10 Count 2 and we respectfully submit you should convict on that
11 charge.
12 We heard from expert witnesses for the defense,
13 General Atkeson, Admiral Carroll. They seem to be focused on
14 the idea whether these spies could have ever achieved these
15 goals. That is not the test of a conspiracy. Certainly their
16 testimony supported the injury. The potential for injury to
the
17 United States by these spying activities. After all, the
18 testimony of those individuals and of Colonel Escalante was
19 that the Cuban strategy is something called the war of the
20 people. That if faced by invasion of the United States, they
21 want the earliest notice so they could rush their equipment
22 into these tunnels and they could wage the war of the people
in
23 a kind of guerilla type of fighting with respect to any U.S.
24 troops that arrive in Cuba.
25 Clearly, that is contrary to the national defense
RICHARD A. KAUFMAN, RMR, NP
U.S. COURTHOUSE, MIAMI, FLORIDA 33128
14068
1 interests of the United states. These defendants tried to get
2 that information with knowledge and ending that would be to
the
3 injury of the United States and to the benefits of Cuba.
4 Finally with regard to Count 2, no security system is
5 foolproof. Of course Southern Command and the Naval Air
6 Station tries to protect material. Of course a General isn't
7 going to walk up to a cleaning person and say would you like
to
8 read what I just wrote today that is top secret; that is
9 ludicrous. Any suggestion by the defense this conspiracy is
10 nonsense because that is not how things happen also refute
11 common sense. People get careless, they get trusting
specially
12 when they see familiar faces around. Cleaning people, low
13 level people can be a means of making these inroads, and
14 indeed, in DA 123, we saw that and we saw that Lorient, for
15 instance, was encouraging that they put a second person at
16 Naval Air Station which Allan thought was a great idea because
17 Allan said, that could enable them to have somebody move from
18 the Naval Air Station to Southcom, leaving someone at Naval
Air
19 Station. This would truly be a very nice penetration and a
20 truly professional one jumping from inside one objective and
21 one of greater interest at the most opportune moments.
22 It is also noted that Lorient says, Lorient told me
23 that there are always cleaning positions available within the
24 NAS and that personnel have access that he himself does not
25 have because cleaning personnel enter offices, dormitories,
RICHARD A. KAUFMAN, RMR, NP
U.S. COURTHOUSE, MIAMI, FLORIDA 33128
14069
1 houses, etc., where there are all types of people and
2 information which could be an important step for us in
3 penetration. That is not a bad idea. According to Lorient,
4 there are always openings for this type of cleaning work.
5 Let's not overlook the humble end of the scale. It
is
6 capable of doing damage to the interest of the United States,
7 the Cuban Intelligence Service knew it and they wanted to
8 exploit it.
9 Ladies and gentlemen, I would like to talk now about
a
10 matter that is of importance in this case as all are and that
11 is Count 3, the conspiracy to commit murder in the maritime
and
12 territorial jurisdiction of the United States.
13 There are two aspects you want to think about in
terms
14 of this count. What happened on February 24, 1996 and what
was
15 this defendant Gerardo Hernandez' role in it.
16 Ladies and gentlemen, his role, although it is not an
17 obvious one and although it was in fact a deeply hidden role
18 and it wasn't a spectacular one, he wasn't on the radio
19 shouting we got them in those unforgettable tones we heard
20 played; but his role was critical, because without his role,
21 there could not have been a shootdown, and the Central
22 Principal knew it and they recognized him for it. There could
23 not have been a shootdown without Gerardo Hernandez because he
24 performed the critical function of making sure their own
agents
25 were not flying on February 24, 1996 and providing
confirmation
RICHARD A. KAUFMAN, RMR, NP
U.S. COURTHOUSE, MIAMI, FLORIDA 33128
14070
1 back to the CP of that fact. That confirmation was critical.
2 In a bureaucratic sense it seems what is the big deal, it is
3 just a message, it is just information; but remember,
4 information is the Achilles heel of intelligence work. The
5 shootdown could not go forward until Cuba was comfortable they
6 would not be shooting down their own agents, and that
7 information had to come from Miami.
8 We do know what happened on February 24, 1996. Four
9 men were killed when their aircraft were shot down in
10 international air space. Yes, ladies and gentlemen, it wasn't
11 just a shootdown of airplanes. It was a shootdown of four
12 human beings.
13 Colonel Buchner testified he didn't have any need to
14 do research on the individuals, all he needed to know about
was
15 Brothers to the Rescue. Ladies and gentlemen, that is not the
16 appropriate way to look at this incident. Those were four
17 people who were in the airplanes that were shot down.
18 These events of February 24, 1996 were the long hoped
19 for outcome of the Government of Cuba to eliminate a nuisance
20 that the Brothers to the Rescue had become to them, to try to
21 get an upper hand in an ongoing propaganda struggle with
22 Brothers to the Rescue. There was not a fear that Brothers to
23 the Rescue was going to be blowing away the Island of Cuba.
24 There was a fear they were dropping leaflets, that they were
25 spreading words about the Universal Declaration of Human
Rights
RICHARD A. KAUFMAN, RMR, NP
U.S. COURTHOUSE, MIAMI, FLORIDA 33128
14071
1 and these were floating onto the Island of Cuba.
2 Yes, Jose Basulto, among other stupid things he might
3 have done, did an incredibly stupid thing when he flew over
the
4 city of Havana in July of 1995. That was months previously.
5 There was not a reason to believe that Brothers to the Rescue
6 was zooming in on the city of Havana. The reason for the
7 shootdown was the propaganda inroads that were being made.
8 A third reason was to serve as a warning for internal
9 dissent on the Island and for Concilio Cubano in particular
10 which Richard Nuccio told us was getting more attention and
11 having more impact within the Island of Cuba than any internal
12 dissent movement had been having for years and there had to be
13 a word so people understood in the words of these HF messages,
14 that Brothers to the Rescue could not act with impunity.
15 We also know what Gerardo Hernandez' role was and we
16 know that from the HF messages. His role was to do advance
17 work through the agents here on information with regard to the
18 plans of Brothers to the Rescue. His role was to get Juan
19 Pablo Roque back to Cuba so Juan Pablo Roque could do his bit
20 in the ongoing propaganda campaign so he could be on CNN
21 talking about Alex Barbeito who heard Juan Pablo Roque in that
22 press interview a few days after the shootdown and his role
was
23 most critically to give the go ahead to Cuba that there were
no
24 Cuban agents on the plane that day, clearing the way for them
25 to be shot down.
RICHARD A. KAUFMAN, RMR, NP
U.S. COURTHOUSE, MIAMI, FLORIDA 33128
14072
1 Those plans of the Cuban Government are reflected in
2 several operations means that we see it in the HF messages.
3 There is Operation Escorpion, Operation Venecia, Operation
4 Giron. These are interlinked and they cannot be separated.
5 The backdrop of course is that Brothers to the Rescue
6 was a long time irritant to the Government of Cuba we have
seen
7 the diplomatic notes. Don't look only at the Cuban diplomatic
8 notes but look at the diplomatic notes that the U.S.
Government
9 sent back, GH 101, GH 103 and GH 105. In those diplomatic
10 notes, the U.S. Government recognizes the right of peaceful
11 protest. It urges the government of Cuba to use the utmost
12 restraint and to insure the safety of human life. It also
13 tries to tell the government of Cuba we are acting against
Jose
14 Basulto. Give us what information you have. We have
15 instituted FAA proceedings against him; but that form of
16 process was not enough for the government of Cuba. They
wanted
17 something swifter and more decisive and without the messy
18 by‑products of the system of due process where there are
courts
19 and defenses allowed and procedures that are in place.
20 There is no question the government of Cuba saw Jose
21 Basulto as a big problem for them; but let's not mistake how
22 they saw that problem, ladies and gentlemen. Did they
23 characterize him as a terrorist? In DG 113 there is
discussion
24 of a meeting with Special Agent German with A‑4 that goes back
25 to December of 1994 where German recounts this story of Jose
RICHARD A. KAUFMAN, RMR, NP
U.S. COURTHOUSE, MIAMI, FLORIDA 33128
14073
1 Basulto supposedly having a secret weapon that was very
2 effective during the Second World War. It is not even taken
3 very seriously by the intelligence service.
4 German stated that he had many and very good things.
5 He said that Basulto had told him about plans he has with a
6 secret weapon that was very effective during the Second World
7 War and has not been manufactured any more. He said the
weapon
8 could be introduced in Cuba. He said it was an antipersonnel
9 weapon but has not been able to find out anything else. That
10 is the German. He was told that didn't sound very serious
11 among other things because if the famous weapon has not been
12 used for 50 years, it puts its validity in doubt.
Nevertheless
13 it was important to report it.
14 At this early stage, December of 1994, something else
15 is happening that turns out to be of significance for the
16 shootdown and that is that one Pablo Roque wants to go home.
17 He wants to return to Cuba and there begins to be discussion
of
18 that in some of the HF messages. There is an HF message 104
19 from October of 1994 in which it references the state of
20 German's pilot license. Trip to CP will be in stolen or
rented
21 plane whenever conditions permits.
22 A few days later, HF 105, November 25, German's last
23 call to his wife led to the to belief his travel would be
24 immediate. Clarify no exact date has been set. He should
have
25 already.
RICHARD A. KAUFMAN, RMR, NP
U.S. COURTHOUSE, MIAMI, FLORIDA 33128
14074
1 What this appears to be is a plan for German to go
2 back to Cuba in some way where he could denounce Brothers to
3 the Rescue. Taking an airplane of Brothers to the Rescue,
4 making a triumphant return, making a tit‑for‑tat for the
flight
5 out of Cuba of Oreste Lorenzo where he flew into Miami taking
6 his family out.
7 It doesn't happen in 1994 and the next thing we see
is
8 an HF message of November 30, 1995. This is a year later and
9 at that time, ladies and gentlemen, Giro is not on the scene,
10 Gerardo Hernandez. He is in Havana and you could see that in
11 some of the documents, DG 133 references the travel plan of
12 Gerardo. There are some exhibits that reflect his travel
13 plans, but clearly, he was in Havana from October of 1995
until
14 mid to late January of 1996. During that time the agent known
15 as A‑4, and you could see his picture on the board which is
16 tilted over there; but he is the fourth person on the top row,
17 that is A‑4 and A‑4 is having some of these HF messages.
18 HF 106, and you will recall the HF messages all have
19 three pages. These messages, ladies and gentlemen, were radio
20 broadcasts, encrypted radio broadcasts that went out to the
21 world, but were decrypted with materials that were found in
the
22 spies' apartments and we have the testimony of Myron Broadwell
23 from the FBI explaining the first page of each message which
is
24 where the encrypted material appears and what is most
important
25 to remember here and I don't know if I could zoom in on it big
RICHARD A. KAUFMAN, RMR, NP
U.S. COURTHOUSE, MIAMI, FLORIDA 33128
14075
1 enough; it includes the date and time of each broadcast,
2 951130, November 30, 1995. It includes what is known as an
3 indicative or call sign by which that broadcast was uniquely
4 identified and what we will see is these indicatives on these
5 messages were indicatives of Gerardo Hernandez. It gives a
6 frequency. We will also see the frequencies were Gerardo
7 Hernandez' frequencies and let me quickly show you the
document
8 on that one.
9 Ladies and gentlemen, DG 140 was part of the radio
10 plan for Gerardo Hernandez and it includes his call sign or
11 indicative being 06471 and 06400. It also includes his
12 frequencies and you may recall we had some rather tedious but
13 important testimony from Agent Giannotti in which these call
14 signs and frequencies were matched to these HF messages.
15 That is the first page. The second page has the
plain
16 text Spanish after the decryption is broken out and the third
17 page contains the English. HF 106 reflects that the interest
18 in German's trip back to Cuba has been revised. Here it says
19 Vedette, that being another name sometime used for German.
20 In DG 112, January 5, 1996, there is a communication
21 for Castor from Miguel, Miguel being another name for A‑4 who
22 was filling in for Giro while Giro was in Cuba, and it starts
23 to give instructions to Castor as to how he should act to step
24 into the shoes of German after German leaves. It tells him to
25 start distancing himself from German, even to start
RICHARD A. KAUFMAN, RMR, NP
U.S. COURTHOUSE, MIAMI, FLORIDA 33128
14076
1 discrediting him because if German is going to be exposed
2 eventually as turning on Brothers to the Rescue, leading at
3 least to suspicion he might not have been loyal to Brothers to
4 the Rescue, anyone close to German could fall within
suspicion,
5 so Castor is instructed in that document to start discrediting
6 him.
7 You might want to take a look at that document in
that
8 regard.
9 HF 108 is January 13 and on these documents, ladies
10 and gentlemen, there are really two dates that are important.
11 One is the date of the transmission that appears on page 1,
12 then the documents themselves often have a sign off date at
the
13 end which appears as part of the text and you could see it
14 here, 12 January.
15 This is when things start to heat up and the plans
16 start to take a turn toward the critical. On day 9 they
17 dropped propaganda between Matanzas and Varadero. This was
the
18 first leaflet drop of January 9 and it caused intense concern
19 by the Government of Cuba and that concern only grows greater
20 and this is when the heat starts to be turned up and plans
21 start to gel for a more decisive way of disposing of Brothers
22 to the Rescue.
23 However, they are still focused on the idea of
getting
24 German back to the CP and in HF 113.
25 That is HF 108. HF 110. Minister had approved
RICHARD A. KAUFMAN, RMR, NP
U.S. COURTHOUSE, MIAMI, FLORIDA 33128
14077
1 Vedette's trip.
2 Again, they are still trying to go forward with that
3 plan; but don't tell Vedette anything until I advise via
4 radio. Things are happening at the CP, at headquarters and in
5 Cuba because of these flyovers, these leaflet drops by
Brothers
6 to the Rescue.
7 HF 111 this is January 18. The message was broadcast
8 January 19. By now they have had the second leafleting which
9 as you may recall was a bigger leafleting. January 9 is when
10 they tried to drop the leaflets and didn't get as many out.
11 January 13 is when the mass of leaflets went out.
12 German and Castor turn in extremely urgent
13 information. Establish a secondary means of communication in
14 case the beeper fails. German and Castor must get information
15 on the equipment used, the route, and how they carried out the
16 operation of January 13.
17 You can see from this, the Cubans don't really know
18 what route Brothers to the Rescue took. That didn't stop them
19 from sending diplomatic notes protesting this had been an
20 incursion into Cuban air space but what they are most
concerned
21 about is the leaflet dropping.
22 HF 112, if we could have the enlargement, please.
23 Which is when things start to reach a critical mass for the
24 government of Cuba.
25 They are still talking about German to come with this
RICHARD A. KAUFMAN, RMR, NP
U.S. COURTHOUSE, MIAMI, FLORIDA 33128
14078
1 airplane variant where he will get a Brothers to the Rescue
2 aircraft and German evidently is reluctant and they say
analyze
3 again with him. Give him the argument the plane will not be
4 stolen or violent action taken. It can be any Brothers to the
5 Rescue. Look for opportune moment. Travel alone. That way
we
6 can denounce Brothers to the Rescue's role with spectacular
7 proof and raise the spirit of the population facing Brothers
to
8 the Rescue's impunity. It will be the culmination of the
9 heroic activity carried out by a loyal pilot. Inform
extremely
10 urgent German's decision.
11 We see the spectacular proof of a floating bag that
12 happened to be found in the water and happened to have a map
in
13 it that had a warning about a shootdown. That is the kind of
14 phony spectacular proof we are talking about here as well by
15 the propaganda drive from the Cuban Government.
16 HF 113, this is January 26, 1996. German is
17 apparently still reluctant but they are still exploring that
18 airplane variant and they talk about, this variable is of
19 utmost importance because of its impact and repercussions.
20 Again, propaganda is a main concern.
21 Ladies and gentlemen, this is the time,
approximately,
22 at this date, that Gerardo Hernandez arrives back in Miami
from
23 the CP where he has been ‑‑
24 MR. McKENNA: Objection, there is no evidence he was
25 at the CP. It misstates the evidence.
RICHARD A. KAUFMAN, RMR, NP
U.S. COURTHOUSE, MIAMI, FLORIDA 33128
14079
1 THE COURT: Sustained.
2 MS. MILLER: Ladies and gentlemen, let me submit to
3 you to simply look at the evidence concerning the fact that
4 Gerardo Hernandez traveled back to Havana during this period
5 and you may consider that evidence.
6 Along with Gerardo Hernandez' arrival back in Miami
7 came a dramatic turn of events and that is the initiation of
8 Operation Escorpion and the announcement of Operation
9 Escorpion, and we first see this at HF 115.
10 HF 115, 116 and 117 is a series of three HF messages
11 that came on three successive days and as you may recall,
12 ladies and gentlemen, the HF messages had to be short because
13 of certain technical limitations, therefore this is one
14 continuous method but it comes over three days. It announces
15 Operation Escorpion.
16 Superior headquarters approved Operacion Escorpion.
17 Already we know it is important because it is coming from
18 superior headquarters.
19 It was approved to perfect the confrontation of CR
20 action against Brothers to the Rescue.
21 To perfect the confrontation. There is always this
22 notion that the government of Cuba is being confronted by
23 Brothers to the Rescue. The government of Cuba is being
24 provoked by Brothers to the Rescue. Ladies and gentlemen,
that
25 is not a justification for murder. That is the sort of notion
RICHARD A. KAUFMAN, RMR, NP
U.S. COURTHOUSE, MIAMI, FLORIDA 33128
14080
1 of your nose got in the way of my fist; but that is the way it
2 is constantly characterized.
3 We could see here, this is the premeditated plan to
4 eliminate Brothers to the Rescue planes and obviously the
5 pilots in them, and the urgency is clear from them. Inform
6 information from German and Castor should come with clear and
7 precise specifications that allow to know without a doubt that
8 Basulto is flying. Whether or not activity of dropping of
9 leaflets or violation of air space. If Castor and German are
10 or are not flying, anticipated plan any type Brothers to the
11 Rescue flights in order to know about activities ahead of
12 time. Always specify if agents are flying. Continues
13 tomorrow.
14 We then see the continuation.
15 In addition report types of planes, etc., etc. If
16 German and Castor are asked to fly at the last minute without
17 being scheduled, find excuse not to fly. If they cannot avoid
18 it, Castor will transmit over the airplane radio the slogan
and
19 they give little code phrases or slogans that the agents are
20 supposed to say over the radio if somehow they get trapped
into
21 flying with Brothers to the Rescue.
22 Ladies and gentlemen, that reflects not only
awareness
23 of the fatality of flying with Brothers to the Rescue, and it
24 reflects not only the warnings that the agents are to give,
but
25 when you think about it, it also reflects there is a link
RICHARD A. KAUFMAN, RMR, NP
U.S. COURTHOUSE, MIAMI, FLORIDA 33128
14081
1 between the Directorate of Intelligence and the military,
2 because it doesn't do any good to give a code over the radio
if
3 the people at the other end of the radio don't know what the
4 code means.
5 From this message we could see there is a seemless
6 connection between what the Directorate of Intelligence is
7 doing and the instructions that are going now to Gerardo
8 Hernandez and A‑4 back in Miami and what the military planes
9 are going to be doing.
10 HF 117, the last third of this three part message.
11 Establish more than one route for German and Castor to contact
12 you. Avoid arguments over the beeper number. Send
information
13 urgently. Priority for transmission in order to instruct on
14 Operation Escorpion. Extreme security measures in activities.
15 Castor would want Montoto. Giro has come back from Cuba via
16 Miami the CP is giving Giro the word, everybody home is okay.
17 Ladies and gentlemen, after these three messages we
18 see further development concerning Operation Escorpion and
19 these plans. At HF 118, tell German the return to CP is end
of
20 February. Brothers to the Rescue plane variable cancelled.
21 No longer is there going to be a stealing of an
22 airplane or something spectacular that will focus on German's
23 means of leaving the country because there is something more
24 spectacular coming up, ladies and gentlemen, and that is going
25 to be the events of February 24, 1996.
RICHARD A. KAUFMAN, RMR, NP
U.S. COURTHOUSE, MIAMI, FLORIDA 33128
14082
1 German should say how he is most comfortable
2 traveling. German is still supposed to come back to Cuba
3 because he has his propaganda role, but now he is going to
4 sneak out of South Florida rather than come in some
spectacular
5 fashion in an airplane.
6 MX is the head of Cuban intelligence and it shows his
7 level of concern. Per MX interest, you should avoid trip to
8 Honduras alleging protect his identity.
9 German and Castor matters are decided by MX.
10 We are now up to February 5, 1996. DAFAAR is getting
11 information about the Brothers to the Rescue flight and they
12 didn't get this word from Miami where they are also expecting
13 to get information on the Brothers to the Rescue flight. It
is
14 necessary for German and Castor to prioritize Operation
15 Escorpion and report urgent information. These are the type
of
16 flights we are requesting.
17 Agent, if you could take down the boards, please.
18 The planning for Operation Escorpion wasn't limited
to
19 the DI. You may recall that we had testimony from defense
20 experts witness Eugene Carroll and we note from him when he
was
21 in Cuba at just about this time early February, he and a group
22 of visitors were in Cuba. They met with senior Cuba military
23 and Brigadier General Tomayo said there were a series of
24 violations of Cuban air space by light civilian planes coming
25 out of Florida, the pilots had boasted of it on TV and it made
RICHARD A. KAUFMAN, RMR, NP
U.S. COURTHOUSE, MIAMI, FLORIDA 33128
14083
1 Cuba look weak and they couldn't stand that.
2 Ladies and gentlemen, that is not a reason for
3 murder. Brigadier General Tomayo says what would happen if we
4 shot these planes down, we can, you know. The plan was afoot
5 both at the Directorate of Intelligence and at the military.
6 HF 120 G‑3. This is February 13 of 1996 and it is
7 more about propaganda preparation for German's extraction.
Get
8 another copy of German's book presentation and it also
mentions
9 A‑4 is to stay there until German leaves.
10 A‑4 was in Miami when Gerardo Hernandez made his trip
11 back to Cuba and this says that A‑4 should stay until German
12 leaves.
13 One thing about these HF messages you will see, they
14 interchangeably use the third person and the second person.
15 Sometimes they refer to you, sometimes they refer to the
16 individual by a third person. Sometimes they will refer in
the
17 third person to A‑4 and sometimes will refer in the third
18 person to Giro or Giraldo; but clearly, both intelligence
19 officers were privy to all of these messages and we know that
20 because, and we will see activity on the part of the officers
21 and also we know that from a document that is generated at DG
22 104.
23 In DG 104 there is a message to brother Iselin that
24 conveys certain of the instructions that came in these HF
25 messages and it is dated February 13, 1996. It is signed
RICHARD A. KAUFMAN, RMR, NP
U.S. COURTHOUSE, MIAMI, FLORIDA 33128
14084
1 Miguel and Giro, and if you look back at that three part
2 placard I just put up ‑‑ I took it down; that has the three HF
3 messages, 150, 116 and 117, it is word for word as the exact
4 same text this message with the critical difference, this text
5 doesn't reference Operation Escorpion; but the message itself
6 is otherwise word for word and it shows the signers, Miguel
and
7 Giro were privy to those HF messages and both illegal officers
8 were getting both of those messages.
9 HF 121 further references the upcoming travel of
10 German and it says we, coming again from the Centro Principal.
11 We will be waiting for German in Cancun and will give
remaining
12 instructions and new set of documents. He should have his
13 legend. This is February 14.
14 HF 123. Now the plans for Operation Escorpion seemed
15 to have been firmed up to a particular date. MX instructs
that
16 under no circumstances should German for Castor fly with
17 Brothers to the Rescue or another organization on days 24, 25,
18 26 and 27, coinciding with celebration of Concilio Cubano; in
19 order to avoid any incident of provocation that they may carry
20 out and our response to it, immediately confirm when you
21 instruct both of them. Today, N 2506 asked for a flight plane
22 departing from Opa Locka. Confirm if Basulto flew and where.
23 This message is coming from MX, the imperativeness of
24 the message, under no circumstances should they fly on that
25 date.
RICHARD A. KAUFMAN, RMR, NP
U.S. COURTHOUSE, MIAMI, FLORIDA 33128
14085
1 This is the critical role being played by the Miami
2 intelligence officers. Without that confirmation, there can
be
3 no shootdown because the Cuban Government has got to know
their
4 agents are not on those planes.
5 Let's talk for a moment about the significance of
6 these dates, 24, 25, 26 and 27. Those were the dates of
7 Concilio Cubano's planned activity and you can see that on
8 these Government's Exhibits 450 and 450A. That is the
petition
9 that Concilio Cubano gave to the Cuban Government, and if I
10 could have that Exhibit 450 and 450A. It focuses directly on
11 these very days and it shows the linkage by the Cuban
12 Government between meeting Brothers to the Rescue and also to
13 put a dent in Concilio Cubano.
14 We had testimony from several individuals that might
15 be people the government of Cuba has reason to be opposed to,
16 Jose Basulto, we had that rather scary man, Rodolfo Frometa
but
17 I would like to submit to you the proposition the witness that
18 really poses the greatest words of the Government of Cuba was
19 not them, but somebody else,Leonol Morejon Almagro. You
20 remember him. He is the man who is now operating an
automobile
21 parts press up in Michigan having been a lawyer in Cuba and
22 having been one of the founders of Concilio Cubano; and you
23 remember him, he is going to school at night, he is learning
24 English as fast as he can. He was a dissident in Cuba. He
25 founded this organization. He also came up with the name
RICHARD A. KAUFMAN, RMR, NP
U.S. COURTHOUSE, MIAMI, FLORIDA 33128
14086
1 Concilio Cubano. It was an umbrella coalition of internal
2 dissenting groups in Cuba, more than 100 groups, and Richard
3 Nuccio testified this group was getting somewhere in Cuba. It
4 had some traction. Richard Nuccio former White House man on
5 Cuba, he said it was one of the rare times that the dissident
6 movement in Cuba was getting widespread attention not only in
7 the United States but particularly in Europe. Concilio Cubano
8 was more broad based than other dissident groups. It was
9 Nuccio's feelings Concilio Cubano was more challenging to the
10 Government of Cuba and he testified the Government of Cuba
must
11 have seen it that way too, evidenced by the way the Government
12 of Cuba moved so aggressively to destroy them.
13 Also you will see the meeting of February 24 by
14 Concilio Cubano did not take place and also something over
15 shadowed Concilio Cubano completely. In fact that was part of
16 the plan. We had the spectacular shootdown on February 24.
17 Concilio Cubano which had been gaining traction, piddles away
18 and you have a new battle between the government of Cuba and
19 Brothers to the Rescue.
20 It is no surprise that the date Cuba directed these
21 agents not to fly, 24, 25, 26 and 27 are the exact same dates
22 specified by Concilio Cubano for its meeting, the 24th of
23 February and the succeeding days 25, 26 and 27.
24 There are some further messages leading up to the
25 events of the 26th. HF 124. Okay your plan Vedette. Have
him
RICHARD A. KAUFMAN, RMR, NP
U.S. COURTHOUSE, MIAMI, FLORIDA 33128
14087
1 abandon his beeper quick because the FBI can quickly trace it.
2 Edgardo is already in Alexis land. HF 125 is how Castor is
3 supposed to act once Vedette's return is made public. First
4 there should be incredulity then condemnation.
5 Ladies and gentlemen, this is a plan for a totally
6 staged response. It does reference Basulto here. Does that
7 mean there wasn't a shootdown plan because they are
referencing
8 Basulto coming back from that mission? Well, he did return
9 back from that mission but there was a shootdown, ladies and
10 gentlemen, so that is not inconsistent with their plan. Other
11 people didn't come back. The plan was for a decisive and
fatal
12 encounter with Brothers to the Rescue's planes and that is
what
13 they got.
14 Then message HF 126, today the associate arrived
15 well. That is the day of the shootdown.
16 Previously we had references that A‑4 was supposed to
17 go to Tampa and get a ticket for German's travel.
18 Now we are at February 24, 1996 and the fatal events
19 of that day unfold. Three aircraft leave Opa Locka base that
20 afternoon. On board are a total of eight people. On N 2506,
21 Jose Basulto, Arnaldo Iglesias, Sylvia Iriondo and Andres
22 Iriondo.
23 On 2456, we have Pablo Morales and Carlos Costa the
24 pilot. On N 2485, Mario De La Pena and Armando Alejandre.
25 They had filed flight plans. The Cuban Government had the
RICHARD A. KAUFMAN, RMR, NP
U.S. COURTHOUSE, MIAMI, FLORIDA 33128
14088
1 flight plans. You can see that. It has the planned departure
2 and the actual departure, but the flight plans describe the
3 aircraft, the names of the pilots, the transponder codes.
They
4 were squawking, they were announcing their presence every few
5 seconds as they flew forward to their fate. They didn't fly
6 their flight plan. They had originally said they were going
to
7 fly in the morning. Instead they flew in the afternoon and
8 because the direction of the sun was different, they flew a
9 different grid path, they flew it in reverse.
10 Ladies and gentlemen, they announced to the Cuban
11 Government when they were entering the flight information
12 region.
13 Havana knew exactly where they were and knew who they
14 were.
15 Ladies and gentlemen, let's remember that the flight
16 information region is not the same as Cuban air space. The
17 flight information region begins at the 24th parallel and that
18 simply is the delineation of where Miami air control gives way
19 to Havana air traffic control; but the actual territorial air
20 space of Cuba is defined by twelve nautical miles from its
base
21 line and we had testimony regarding that from Robert Smith of
22 the State Department, the State Department geographer and he
23 put in evidence a map in that regard, 876A.
24 As they flew, there was no warning to them they were
25 going to be shot down. When they crossed the 24th, yes, they
RICHARD A. KAUFMAN, RMR, NP
U.S. COURTHOUSE, MIAMI, FLORIDA 33128
14089
1 were told they were entering an activated area and they
entered
2 anyway. Ladies and gentlemen, nobody said what they did that
3 day was smart, but they were not told of the danger of a
4 shootdown and entering an activated area, that doesn't mean
you
5 are going to be shot down. That means entering an area that
6 has been marked for military exercises.
7 As they flew on they had no further warning. Indeed
8 at the exact moment of the first shootdown, Basulto and Havana
9 air center had an interchange according to the transcript
which
10 says, a cordial greeting. We are reporting to you at twelve
11 miles north of Havana continuing with our search and rescue
12 route towards the East at this time. It is a very beautiful
13 day and Havana looks good from where we are. A cordial
14 greeting to you and the people of Cuba from Brothers to the
15 Rescue. Havana response. Havana received.
16 Compare that with what happened back on July 13, 1995
17 where there was much more urgency and exhortation from Havana
18 air center. You are entering bad zones, get out of here, you
19 can't be here and you will see that in 843 a transcript of
that
20 July 13, 1995 conversation and you will see it in Defense
21 Exhibit Gerardo Hernandez Exhibit 75.
22 There was nothing like that on February 24 because
23 they were not intended to be warned away. They were intended
24 to proceed so they could be shot down.
25 Not only were there no warnings ladies and gentlemen,
RICHARD A. KAUFMAN, RMR, NP
U.S. COURTHOUSE, MIAMI, FLORIDA 33128
14090
1 there was no compliance with the most basic international
2 procedures for interception of civil aircraft. In evidence is
3 the ICAO manual for the interception of civil aircraft. It is
4 at Gerardo Hernandez 56A and we heard from Chuck Leonard the
5 government's witness, the purpose of interception is for
6 identification. It is to be used as a last resort. All
7 efforts are to be made to achieve radio contact including use
8 the emergency frequency of 121. Megahertz before doing any
9 maneuvers. According to ICAO rules, Havana center and
military
10 control units are supposed to have that capacity and according
11 to the testimony of Major Garcia, the Cuban radar officer at
12 Matanzas, there was capacity for 121.5 megahertz and
13 Mr. Leonard testified, having made a study of what happened
14 that day and Cuba's own interception procedures which are laid
15 out in a document in evidence, Government's Exhibit 481
16 composite, from the aeronautical information publication of
17 Cuba, it was not complied with in the most basic ways. There
18 were no maneuvers, there was no effort to raise the aircraft
by
19 radio, telephony or directions to land or other steps less
20 drastic than blowing these individuals out of the sky and
there
21 were individuals on those planes and let's not forget who was
22 on board.
23 Defense expert Colonel Buchner said, it did not
matter
24 to his analysis. He spent hundreds of hours analyzing the
25 shootdown, but none considering the persons on board the
RICHARD A. KAUFMAN, RMR, NP
U.S. COURTHOUSE, MIAMI, FLORIDA 33128
14091
1 plane.
2 All I need to know is whether it was a Brothers to
the
3 Rescue aircraft, and that answered all your questions and he
4 said yes. In his opinion, all three planes were to be
5 considered as one.
6 Because Jose Basulto was an irritant and a bad actor,
7 it was okay to shoot him out of the sky and anybody with him?
8 Ladies and gentlemen, that doesn't make sense.
9 There were other planes that day and there were two
10 planes shot down. Even if the government of Cuba had possibly
11 thought they were shooting down Jose Basulto first, what would
12 be the excuse for the second shootdown? He couldn't be in
both
13 planes.
14 Further, ladies and gentlemen, there is no guilt by
15 association that is fairly recognized. The mere fact those
16 individuals were flying with Jose Basulto is not a reason to
17 shoot them down.
18 I will not talk too much about Colonel Buchner but by
19 any standard, he was not, we would submit, a careful and
20 reliable witness. He did not have in‑depth knowledge of many
21 of the fields he talked about. He came up with an opinion
22 about the shot out of the video being a MIG when it clearly
was
23 not. He was careless in what he said, conclusions he drew
were
24 not borne out by the radar and he was not a sound witness, we
25 would submit to you.
RICHARD A. KAUFMAN, RMR, NP
U.S. COURTHOUSE, MIAMI, FLORIDA 33128
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1 Can I have Exhibit 457A, B, C and D, please?
2 I do want to mention two of the more extreme and
3 supportable things that Colonel Buchner said. One is that
4 basically governments can do whatever they could get away with
5 within the context of sovereignty. Ladies and gentlemen, that
6 is not the law. The Judge will instruct you on the law and
the
7 Judge will instruct that every nation has complete and
8 exclusive sovereignty over the air space above its territory.
9 You will not hear an instruction this means whatever
a
10 nation does in its territory is lawful.
11 Look through the ICAO materials you have, not only
the
12 manual on civil interception, GA 56A. Look also at the ICAO
13 convention on international aviation. There is something in
14 there that says it is okay to shoot airplanes down. That may
15 be the law according to Colonel Buchner but not according to
16 anyone else.
17 The second thing I want to address briefly is Colonel
18 Buchner's claim these were not civil but state aircraft. That
19 is a doctrine of convenience, an attempt to walk away from the
20 most basic precept of aviation and it has no foundation. They
21 became non‑civil aircraft, he said, because these aircraft
were
22 operating in a subversive manner trying to undermine the
23 government of Cuba. That does not meet any ICAO criteria. GA
24 54 is an ICAO working paper. It has 11 standards. Chuck
25 Leonard went through them. By no stretch of the imagination
RICHARD A. KAUFMAN, RMR, NP
U.S. COURTHOUSE, MIAMI, FLORIDA 33128
14093
1 were these three Cessnas flying on February 24, 1996 military
2 aircraft.
3 Colonel Buchner was a major witness for the defense.
4 He was not their star witness. The star witness was Jose
5 Basulto. In a relentless effort to turn this from a trial of
6 these issues to a trial of Jose Basulto. He was a bad actor
in
7 1962, so Mario De La Pena, Costa, Alejandro Morales and the
8 others had to die in 1996. Basulto had the bad taste to say
9 hee, hee, hee on the tape. He said it out of nervousness.
10 Maybe not. Maybe out of callousness, but he wasn't the one in
11 a MIG aircraft firing a nine foot missile at those three
12 Cessnas.
13 Basulto entered Cuban air space that day, there is no
14 question, but the shootdown was going to occur anyway and the
15 Cubans were indiscriminate. They were shooting down the two
16 planes who did not enter Cuban air space.
17 Ladies and gentlemen, leave Mr. Basulto to heaven.
18 Here on earth in this Court of law, he is not the one who is
on
19 trial. This defendant is, Gerardo Hernandez for his role in
20 agreeing to and furthering the unlawful killing of these four
21 men, the victims.
22 Could I have photographs 401, 415, 431 and 423 and
23 could I also have the photograph SC 1?
24 These were the victims, Mario De La Pena, Carlos
25 Costa, Armando Alejandre and Pablo Morales. These were the
RICHARD A. KAUFMAN, RMR, NP
U.S. COURTHOUSE, MIAMI, FLORIDA 33128
14094
1 people that were shot down and the effort to obliterate their
2 pictures with the picture of just this man, is something that
3 can only tend to divert you from the reality that Jose Basulto
4 is not the person who was on trial here today and that we are
5 here in an effort to determine a charge that relates to this
6 defendant Gerardo Hernandez.
7 You have seen and heard tapes in this trial played
8 over and over again in an effort to shape the way witnesses
saw
9 little details in the tape; but there is one tape that was
10 played only one time, but ladies and gentlemen, we submit to
11 you it lingers in the memory and cannot be forgotten. That is
12 the price of seeing jubilation and profane triumph that we
13 heard from the MIG pilots as they extinguished four lives.
We
14 got them. They won't fool around anymore, we got them and
15 those pilots were achieving the culmination of a planned
16 mission by the Government of Cuba to eliminate a nuisance to
17 them, Brothers to the Rescue.
18 That sound was not hee, hee, hee. That sound was not
19 the talk of diplomats conversing back and forth how to handle
20 an international problem. That was not the sound of FAA
21 officials either being slow or dragging their feet, whatever
22 the complaint is how they were handling Jose Basulto. That,
23 ladies and gentlemen, was the sound of murder.
24 Gerardo Hernandez was not in the cockpit that day.
He
25 wasn't present at that time, but that sound would not have
been
RICHARD A. KAUFMAN, RMR, NP
U.S. COURTHOUSE, MIAMI, FLORIDA 33128
14095
1 possible without his role and the role of the other Miami
2 illegal officers, because they had to provide assurance for
the
3 government of Cuba it was all clear to do a shootdown that
day,
4 and he had his own moment of triumph as you will hear later.
5 Further, he had an important role in another
important
6 sound closely associated with the shootdown and critical to
it,
7 the sound of propaganda. The ex‑filtration of German, Juan
8 Pablo Roque, so he could be back in Havana giving his press
9 conference denouncing Brothers to the Rescue was a critical
10 component of the shootdown.
11 You recall the testimony of FBI Agent Alex Barbeito
12 who saw one Pablo Roque giving a press conference on CNN from
13 Havana a couple of days after the shootdown.
14 It wasn't important that Cuba strike a blow against
15 Brothers to the Rescue but it had to seem like they were
acting
16 righteously.
17 It wasn't enough for them to kill these individuals
to
18 eliminate their enemies. It also had to be a good thing. It
19 had to be a thing they were entitled to do, that in their
20 sovereignty they have a right to do and getting Juan Pablo
21 Roque back to Cuba to do this was important. Indeed, that
part
22 of the plan invaded even Operation Escorpion.
23 Message HF 112. That way we can denounce Brothers to
24 the Rescue's role with spectacular proof and raise the spirit
25 of the population.
RICHARD A. KAUFMAN, RMR, NP
U.S. COURTHOUSE, MIAMI, FLORIDA 33128
14096
1 Concerning those HF messages and what happened
2 following February 24, 1996, we then see HF 127. This is the
3 first message we have after the shootdown. It is dated
4 February 28 and it says, Operation Venecia has been a success.
5 The Commander‑in‑chief met with all of us on two occasions in
6 order to analyze steps to be taken to continue the operation.
7 He was very pleased with the job done. Send via copronto all
8 secret information related with repercussions.
9 This was a matter that was important enough and
10 triumphant enough in the government of Cuba the commander in
11 chief met with all of them on two occasions in order to
discuss
12 it.
13 It references Operation Venicia, not Operation
14 Escorpion. Indeed, after February 24, we do not see the word
15 Escorpion again. Perhaps they thought better of the sinister
16 connotations of that phrase, once the dirty deed was actually
17 done.
18 We know that Venecia was part and parcel of the plan
19 for Escorpion because the extraction of Juan Pablo Roque so he
20 could play his propaganda role, was critical.
21 Further we see in the next HF message, this is on
22 March 1 and it says, on behalf of intelligence headquarters
23 receive together with Giraldo our profound recognition for
24 Operation German. Everything turned out well. The
25 Commander‑in‑chief visited him twice, German being able to
RICHARD A. KAUFMAN, RMR, NP
U.S. COURTHOUSE, MIAMI, FLORIDA 33128
14097
1 exchange the details of the operation. We have dealt the
Miami
2 right a hard blow in which your role has been decisive.
3 Again and with some more formality, you guys did a
4 grand job. We have struck the Miami right a hard blow.
5 Ladies and gentlemen, this message says received,
6 along with Giraldo. Does that mean Giraldo wasn't part of
7 this? That is not what it means. This is another instance of
8 this third person being used when they are addressing
9 individuals, and we see it in other messages as well. Indeed,
10 if you take a look at the Spanish, which is HF 128 G‑2, you
11 will see that the word that is used for this sentence, we have
12 dealt the Miami right a hard blow in which your role has been
13 decisive, the "your" in Spanish can be either singular or
14 plural and here it is plural, "ustedes." It appears right at
15 the beginning of this line. That is the plural for you and it
16 is referring to two individuals.
17 Further, you will see in other HF messages this
18 feature of referring sometimes to Giraldo and sometimes to A‑4
19 in the third person in the messages going to this same
20 indicative number which here is 6471. The other one being
21 6400; both of them being Giraldo's indicative numbers
according
22 to the exhibit I showed you.
23 Some of the other HF messages that refer to A‑4 in
the
24 third person are HF 120, 122 and 134.
25 Further ladies and gentlemen, the disks that were
used
RICHARD A. KAUFMAN, RMR, NP
U.S. COURTHOUSE, MIAMI, FLORIDA 33128
14098
1 to decrypt these messages all were found at Giro's apartment
2 and you could see that by the chart that was placed into
3 evidence that gives you a list of where all the decryption
4 disks for the HF messages came from. That chart is HF 152.
5 Following the events of February 24, there are some
6 other HF messages that relate. HF 129, March 5, 1996. They
7 start to reference the fact that they are to send material
that
8 German left behind and ladies and gentlemen, you may recall
the
9 testimony that at the time of the search of Gerardo Hernandez'
10 apartment in September of 1998 there was an item found there
11 that was a pilot's log book. That was exhibit SG 43. It was
12 analyzed for fingerprints. We had the fingerprint expert come
13 in. He compared Juan Pablo Roque's fingerprints from his INS
14 fingerprint card and the expert witness from the FBI testified
15 there was a match and that that pilot's log that was in
Gerardo
16 Hernandez' apartment had Juan Pablo Roque's fingerprints on
17 it.
18 Now, a further important development that occurs
after
19 the shootdown is that Gerardo Hernandez receives recognition
20 for his role in the event of February 24. We see this first
in
21 HF message 136. In that message. Okay, because of German's
22 Operation Venicia, Giraldo was given recognition by the head
of
23 the DI. Congratulations on behalf of all the comrades here.
24 This references Operation Venicia, and subsequent
25 information about that award makes it clear that Operation
RICHARD A. KAUFMAN, RMR, NP
U.S. COURTHOUSE, MIAMI, FLORIDA 33128
14099
1 Venicia is linked and part of the events of February 24, 1996,
2 because there is recognition by Giro that he is proud of
having
3 received this message and we see that at DG 127. This is one
4 of the saved outbound messages of Gerardo Hernandez that
5 appears in one of the disks, DG 127 and Gerardo Hernandez
6 writes, about 46. 46 having been the number of the HF message
7 announcing his recognition. It is a great satisfaction and
8 source of pride to us that the operation to which we
9 contributed a grain of salt ended successfully. It is our
10 greatest hope in this job for which we will continue to work
so
11 that it will always be like that. Stop.
12 Then further we see a more full description of this
13 recognition in a subsequent message that comes.
14 Could we have the enlargements of that one, DG 108 A.
15 In this document, DG 108, there is a section in this
16 report that was found in Giro's apartment, item 5, just as we
17 informed you via radio, you were recognized by the head of the
18 DI for Operation Venicia. The order says the following.
Order
19 from the Chief of the Directorate of Intelligence April 1,
20 1996. To grant recognition to personnel. Keeping in mind the
21 outstanding result achieved on the job, I order first,
22 recognition for the outstanding result achieved on the job
23 during the provocations carried out by the government of the
24 United States. This task 24th of February, 1996. To the
25 comrades Giraldo. Second, knowledge of the present order to
RICHARD A. KAUFMAN, RMR, NP
U.S. COURTHOUSE, MIAMI, FLORIDA 33128
14100
1 the esteemed comrade and to the chief and officials that
2 participate in its fulfillment. Third. Annotated in the
3 comrade's service card. Chief Director of Intelligence,
4 Brigadier General Delgado Rodriguez.
5 There were different forms of satisfaction that
people
6 got out of the events of February 24 which are clearly linked
7 with Operation Venicia, the date of the shootdown.
8 This is the recognition granted to Gerardo
9 Hernandez ‑‑ we are waiting for that exhibit.
10 There are some more HF messages about sending German
11 things. That appears at HF 137 and at HF 140.
12 A final note from Gerardo Hernandez comes quite a bit
13 later about Brothers to the Rescue.
14 Can we have placard 27, please, agent?
15 This is some time later, the following year from
16 Giraldo some opinions, and he gives a couple of opinions and
17 says ‑‑ he talks about, how it would be good if we could put
18 out some publication. He is talking about propaganda,
19 basically and says this is a very rich subject and sometimes
20 think we don't take maximum advantage of these characteristics
21 to create uneasiness here and make things a little more
22 difficult for them. The same as they tried to do over there.
23 For example, at this point a first book should have come out
24 even just a preliminary pamphlet made in Cuba about the
downing
25 of the planes, which doesn't have to be presented as the
RICHARD A. KAUFMAN, RMR, NP
U.S. COURTHOUSE, MIAMI, FLORIDA 33128
14101
1 official position of the government in the least. Instead, it
2 should be written by anyone, and emphasize the things that we
3 know are going to hurt here the most and create endless
injury;
4 with the fact Basulto being in charge let the kids go ahead
and
5 he stayed behind so later he could tell the story, that co‑
6 incidently, none of the older men or the preferred younger
ones
7 of Basulto got screwed, just the new volunteers, etc., etc.
If
8 that is done, even if the book does not sell well here, the
9 press is going to cover it and there will be food for a long
10 time and Basulto who is already a little screwed up due to his
11 conscience will have a heart attack.
12 There are a lot of arguments here that although
13 logical and reasonable have little or no effect coming from
the
14 mouths of our spokesmen, official or otherwise, because these
15 people are neither logical nor reasonable. Even so, there are
16 neuralgic points and factors people are realizing more and
more
17 that cause damage when they are brought to light like the two
18 examples mentioned. It is like in boxing, you have to bruise
19 over the wounds.
20 Ladies and gentlemen, that provides some insight into
21 the thought process of Gerardo Hernandez as to whom you must
22 find entering this conspiracy he acted with malice
23 aforethought.
24 Ladies and gentlemen, that is illustrative.
25 I do now have Defense Exhibit 45A in which I
mentioned
RICHARD A. KAUFMAN, RMR, NP
U.S. COURTHOUSE, MIAMI, FLORIDA 33128
14102
1 there were different forms of recognition that different
2 individuals received for their role of February 24.
3 This was a rather unforgettable one. A photograph
4 placed in evidence by the defense of the MIG aircraft that
shot
5 down the two Cessnas and there it is, the two stars for the
two
6 airplanes and the kills that were achieved on February 24,
7 1996.
8 Ladies and gentlemen, there is one other question
that
9 remains about the shootdown, where did it occur.
10 Ladies and gentlemen, the proof in this case is clear
11 and unequivocal. It occurred in international air space.
That
12 is according to United States radar which was severely and
13 extensively tested and stood the tests in this courtroom.
That
14 is true according to the eye witness Capt. Johansen of the
15 Majesty of the Seas. That is true according to the Coast
Guard
16 which viewed oil slicks that were exactly where Capt. Johansen
17 said he saw the oil slicks and that were established to be in
18 international waters. All three sets of data coinciding in a
19 close proximity of points, clearly in international waters.
20 Could we have Exhibit 877, please. Capt. Johansen
was
21 an unshakeable witness. The most that the defense counsel
have
22 to carp about with regard to his testimony is that he wrote
his
23 log the day after, but he wrote his notes contemporaneously
and
24 they match exactly. His log is Government's Exhibit 440 comp.
25 His notes are 440 A. Captain Johansen saw the shootdown, the
RICHARD A. KAUFMAN, RMR, NP
U.S. COURTHOUSE, MIAMI, FLORIDA 33128
14103
1 second one visibly, the MIG streaking up from behind to shoot
2 Mario De La Pena and Armando Alejandre in the back.
3 He also saw the two oil slicks which you saw yourself
4 in the videotapes, 465 and 465A.
5 There are two versions of the radars, the U.S. radar
6 and the Cuban radar and ladies and gentlemen, they are too
7 drastically different to be reconciled. One has to be not
8 telling the truth.
9 The U.S. radar was criticized somewhat in cross
10 examination particularly with regard to the Cudjoe Key radar.
11 The notion was, it is a tethered aerostat. It is high up in
12 the sky on this tether; but ladies and gentlemen, the findings
13 of the Cudjoe Key radar were not impeached, they were only
14 jeered at by the defense. Lannie Clelland demonstrated the
15 smooth continuity between Cudjoe Key and Key West radar.
16 Could I have the 480 series exhibits, please. We saw
17 in this exhibit ‑‑ do we have 480K, agent? We see again that
18 continuity demonstrated as it shifts from the red which is the
19 Key West radar to the blue which is the Cudjoe Key radar.
20 So, the allegations about the Cudjoe Key radar were
21 really a red herring, ladies and gentlemen.
22 877 is a combination of material that was placed on
23 the easel by Lannie Clelland and Robert Smith the State
24 Department geographer. Lannie Clelland wrote down the
25 coordinates of the last radar return for the Costa plan and
the
RICHARD A. KAUFMAN, RMR, NP
U.S. COURTHOUSE, MIAMI, FLORIDA 33128
14104
1 De La Pena plane. He also wrote down the coordinates for the
2 southernmost point reached by each of those planes. Dr. Smith
3 plotted those points on a map and gave us confirmation of the
4 distances that the RADES radar had found.
5 On this chart the Costa plane is lettered A and A‑1
is
6 the shootdown sight, being the last radar return and A‑2 is
the
7 southernmost point.
8 De La Pena is item B and point B‑1 is the shootdown
9 site and B‑2 is the southernmost point. Both shoot downs were
10 in international air space. Ladies and gentlemen, neither of
11 those planes ever entered Cuban air space that day.
12 The Cuban data is a gross variation. The witness we
13 submit was not a reliable witness. This was Major Garcia. He
14 was very sober, very serious in his testimony. I don't mean
he
15 was careless in that sense; but his testimony when you look at
16 it is not believable testimony.
17 For instance, he claimed his radar was the best, but
18 when he was asked on cross examination what were the other
19 radars and how many were there, he said that was a state
20 secret.
21 Then evidently he thought better of that answer and
22 decided that a better although frankly a more unbelievable
23 answer, we would submit to you, would be that he didn't know.
24 Ladies and gentlemen, he had been a Cuban military
25 radar man for 16 years and he doesn't know what the other
Cuban
RICHARD A. KAUFMAN, RMR, NP
U.S. COURTHOUSE, MIAMI, FLORIDA 33128
14105
1 military radars are but he knows his is the best? That
doesn't
2 make sense, ladies and gentlemen.
3 When asked whether he would come to the United States
4 to face perjury charges, he said I am a military man. I don't
5 command myself. I have superiors over me. That was his own
6 testimony.
7 To what was his testimony dedicated, to the truth or
8 the needs of the Government of Cuba.
9 His data are not believable and his data are not
10 consistent internally over other evidence. They differ
grossly
11 from the U.S. radar and you could see that in this Exhibit 480
12 C in which the heavy lines are the U.S. radar patterns and the
13 thin lines are the Cuban radar patterns as RADES plotted them.
14 Take a look for yourself ladies and gentlemen at the
15 Cuban radar map which is DH 94 and you will see that RADES
16 plotted those radars correctly. You will be able to see that
17 yourself.
18 Looking at the Cuban radar alone, you will see that
19 Carlos Costa is on a totally different trip than the other two
20 planes, according to the Cubans. This is the Cuban rendition
21 of the radar and it has De La Pena and Basulto flying here and
22 Costa coming in from a completely different direction. The
23 result is large differences among the three aircraft and that
24 is not consistent with the testimony. It is not consistent
25 with the testimony of the individuals who were there, Iglesias
RICHARD A. KAUFMAN, RMR, NP
U.S. COURTHOUSE, MIAMI, FLORIDA 33128
14106
1 and Basulto. It is not consistent with the video and the
audio
2 tape.
3 Mr. Richardson of RADES showed us what some of those
4 differences were. For instance at 3 p.m. points A and B, A
5 being the Costa plane according to the Cubans and B being the
6 De La Pena plane according to the Cubans were 22.66 nautical
7 miles apart.
8 At 2:51 p.m. according to the Cuban data, even the
two
9 planes that were supposedly flying a similar track were far
10 apart. They have Basulto's plane at 2:51 p.m., 16 nautical
11 miles away from De La Pena's plane, at the same time.
12 Close up the distinctions are even more glaring and
13 the data cannot be reconciled with the testimony and
14 particularly with the videotape.
15 You may recall that the testimony was that Basulto's
16 plane was proceeding East along the coast of Cuba and that it
17 shot the videotape of smoke in the first shootdown out the
left
18 window. That is borne out by the videotape itself which shows
19 that smoke looking out towards the ocean. That testimony is
20 consistent with the way the United States radar data depicts
21 that southernmost point where you have Basulto heading East
and
22 this is the Costa shootdown site and as we can see a plane
23 heading East at that point would be looking straight left out
24 the window to get a view in its camera of the Costa shootdown.
25 When you look at the Cuban radar, ladies and
RICHARD A. KAUFMAN, RMR, NP
U.S. COURTHOUSE, MIAMI, FLORIDA 33128
14107
1 gentlemen, it doesn't add up. Here is the Cuban version of
2 that same closeup shot and you will see here at 3:20 p.m.,
3 which is the last radar hit on the Carlos Costa plane and here
4 is 3:20 p.m. for the Basulto plane, you have the Basulto plane
5 going northeast and the Costa plane is almost directly behind
6 it. For Basulto to have been able to videotape that first
7 shootdown site as we know he did because we saw it in the
8 videotape, that video would have had to be aiming out the back
9 of the airplane where there isn't even a window.
10 Similarly, with regard to the shootdown of Mario De
La
11 Pena, it just doesn't wash and ladies and gentlemen, take a
12 look at the distance between the Costa plane and the Basulto
13 plane at the moment of shootdown, 3:20 p.m. Mr. Richardson
14 measured it and found it to be 19.546 nautical miles. Do you
15 recall the testimony of Colonel Buchner, his theory which I
16 have to say is a ridiculous one, that the MIG pilots actually
17 thought they were shooting Jose Basulto and somehow there was
a
18 mix up and they ended up shooting Carlos Costa in a period of
19 seconds or a minute. That is not even consistent with the
data
20 Colonel Buchner said he was relying on. The two planes were
19
21 and a half nautical miles apart. It could not happen in the
22 way Colonel Buchner said it happened and his is further
23 suggestion of the weakness of these data.
24 THE COURT: We will take a break now. We are going
to
25 take a break. Do not discuss this case amongst yourselves or
RICHARD A. KAUFMAN, RMR, NP
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1 anyone else. Have no contact with anyone whatsoever
associated
2 with the trial. Do not read or listen to anything touching on
3 this matter in any way. Be back in the jury room in ten
4 minutes
5 (Jury leaves room.)
6 THE COURT: Ms. Miller you indicated yesterday you
had
7 45 minutes today. It has been over an hour and 45 minutes.
8 Where are you in your argument?
9 MS. MILLER: I am so sorry for my having so miss
10 judged the time that I needed. I also want to say on behalf
of
11 my client, I am so grateful that I have been able to proceed
12 with my argument even though I made such a bad estimate of the
13 time I needed.
14 I first of all want to express that appreciation on
15 behalf of the United States.
16 I am just about finished with the shootdown count.
17 The other counts are relatively perfunctory. I will try to
18 wrap it up. If you could grant me that further indulgence.
19 THE COURT: How much longer?
20 MS. MILLER: 20 minutes.
21 THE COURT: We will be in recess for 15 minutes.
22 (Therefore a brief recess was taken, after which the
23 following proceedings were had.)
24 (Open court. Jury not present.)
25 THE COURT: We are back on United States of America
RICHARD A. KAUFMAN, RMR, NP
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1 versus Gerardo Hernandez, Case Number 98‑721.
2 Counsel state their appearances for the record.
3 (All parties present.)
4 MR. McKENNA: Your Honor, I was going to raise the
5 issue of the Court's, in my opinion, need to create some time
6 limits here. We set out with a schedule for this week to
7 complete the closing arguments this week and based on the fact
8 that the government has so exceeded what it said it would need
9 for closing argument, we are now facing the prospect of the
10 government's rebuttal argument on Monday which is what I
11 believe they are angling for at this point. Mr. Kastrenakes
12 raised this with me yesterday, and I object. We need to have
13 time limits. I could live with time limits. We could all
live
14 with time limits, but to allow the government to get up and
15 read documents that have been published to this jury and
16 basically engage in a filibuster with the evidence already in
17 evidence is not right. They have had too much time and we
18 believe if the Court now imposes some limits on them, they
19 should not have more than ten minutes at this point. Let
20 Mr. Mendez, who will be the next attorney to go finish today.
21 We believe we could get the other three lawyers in on
22 Thursday. If I start on Friday we could get this done, but it
23 has to have some limits, Your Honor, because it is sort of out
24 of control with their argument. They will take as much time
as
25 they desire and Mr. Kastrenakes will take as much time as he
RICHARD A. KAUFMAN, RMR, NP
U.S. COURTHOUSE, MIAMI, FLORIDA 33128
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1 desires and they will have the weekend to recover and do
2 rebuttal on Monday and we don't want that.
3 THE COURT: Mr. Mendez, how much time do you need
4 today?
5 MR. MENDEZ: I really do want to wrap it up today.
If
6 I begin a quarter of twelve, I am pretty sure I could finish
it
7 by a quarter of 2 which is when we usually conclude. I would
8 like two hours and I hope not to use it all but I don't want
to
9 be ‑‑ already I am inheriting a jury in my opinion is already
10 beaten up, tired and I don't want to have them now towards the
11 end of the day when their stomachs are growling and their
minds
12 are wandering. I want to have some of their attention at the
13 beginning of my presentation.
14 MS. MILLER: If you bring them in right away, if you
15 give me a two minute warning, I will finish by the time
16 Mr. Mendez wants.
17 THE COURT: A quarter to?
18 MS. MILLER: Yes.
19 Bring them in.
20 (Jury present.)
21 THE COURT: You may proceed.
22 MS. MILLER: Thank you, Your Honor.
23 Ladies and gentlemen, other problems with the Cuban
24 radar and discrepancies from the U.S. As we can see and as
25 Mr. Richardson testified, the deviations were extreme. This
is
RICHARD A. KAUFMAN, RMR, NP
U.S. COURTHOUSE, MIAMI, FLORIDA 33128
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1 the Carlos Costa plane as recorded by the U.S. in red, by Cuba
2 in blue. At the time of the shootdown you can see the Cuban
3 and the U.S. data show them being 23 nautical miles apart.
4 These are not data that can be both reconciled. One of them
5 isn't truthful, ladies and gentlemen.
6 Similarly with regard to the Mario De La Pena radar
7 tracks, the purple is the U.S., the orange is the Cuban. At
8 one point, 2:43 p.m., they are 43 nautical miles apart. Just
9 an incredible discrepancy, truly incredible.
10 The Cuban radar data has another problem and you
could
11 see it particularly with regard to the Mario De La Pena track.
12 Starting this far back from where it actually was, as
reflected
13 in the U.S. and needing to show it going this far South in
14 order to substantiate the claim this shootdown occurred in
15 Cuban air space, it had to be speeded up and ladies and
16 gentlemen, it was speeded up in a way that is not consistent
17 with the facts, because as you can see, and this is the actual
18 Cuban radar map and let me see if I could zoom in without
19 losing the focus; there were certain points and Mr. Richardson
20 testified to this and I am pointing to them right here, but
21 this is 2:59, this is 3 o'clock and this is 3:01. He measured
22 the distance between these points and it was six nautical
miles
23 from the first point and five nautical miles from the second
24 point. Over this period of three points, there was a distance
25 traveled by Mario De La Pena's Cessna according to the Cubans
RICHARD A. KAUFMAN, RMR, NP
U.S. COURTHOUSE, MIAMI, FLORIDA 33128
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1 of 11 nautical miles. That is 11 nautical miles in two
2 minutes. Two minutes is 1/30 of an hour. 30 times 11 is 330,
3 I hope and ladies and gentlemen, that would come out to a
speed
4 of 330 knots per hour; but we had testimony, the top speed of
a
5 Cessna is 200 knots per hour.
6 This just can't be. The data cannot be truthful and
7 accurate because they show the plane going substantially
faster
8 than it could have gone. There are some laws that can be
9 broken but laws of physics are not among them and this radar
10 just doesn't wash.
11 So the U.S. radar data are sound and the shootdown
12 occurred in international air space.
13 Is that what was intended and agreed on? The
evidence
14 does show that the plan was to shoot down the aircraft,
period,
15 and if that meant in international air space, that was
16 agreeable to the plan.
17 MR. McKENNA: Objection, it is a misstatement of the
18 law.
19 THE COURT: Sustained.
20 MS. MILLER: We know that the shootdown in
21 international air space was contemplated from the fact that it
22 actually occurred in international air space.
23 Ladies and gentlemen, a conspiracy does not need to
24 have succeeded for this to be a conspiracy, but when it does
25 succeed as this one ‑‑
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U.S. COURTHOUSE, MIAMI, FLORIDA 33128
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1 MR. McKENNA: Objection, it is a misstatement of the
2 law.
3 THE COURT: Sustained.
4 MS. MILLER: When a conspiracy does succeed, ladies
5 and gentlemen, we can tell from the event as it actually
6 occurs ‑‑
7 MR. McKENNA: Objection. It is a misstatement of the
8 Court's instruction, this argument.
9 THE COURT: Overruled.
10 MS. MILLER: When a conspiracy actually does succeed,
11 we can tell from the events that transpire what its plans
were,
12 and here the conspiracy did succeed, the shoot downs did occur
13 and they occurred in international air space.
14 We also know that the shoot downs occurred as they
15 were planned to because the shoot downs had to occur during
16 that time. The government of Cuba was "spending its
propaganda
17 capital by sending German back to Cuba." The die was cast, the
18 dates were set, they were the dates of Concilio Cubano. There
19 was no turning back. This was premeditated. The shootdown
had
20 to be then because the propaganda show had to go on. The rest
21 falls quickly into place.
22 The overt acts, I will go through them quickly to
tell
23 you which messages relate to which act.
24 Overt Act 1, HF 115.
25 Overt Act 2, HF 119.
RICHARD A. KAUFMAN, RMR, NP
U.S. COURTHOUSE, MIAMI, FLORIDA 33128
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1 Overt Act Number 3, DG 104.
2 Number 4, HF 123.
3 Number 5, HFs 121 and 125.
4 Number 6, DG 112.
5 Number 7, HFs 120, 121 and 122.
6 Overt Act number 6 is Giro receiving Castor's report
7 as to a meeting Castor had with Jose Basulto and we also know
8 ladies and gentlemen, Giro met with both Castor and Juan Pablo
9 Roque from the expense report that was submitted that reflects
10 expenses and you could see that in this placard that has been
11 placed before you which is from DG 103, I believe and it
12 reflects contact with German and A‑4 by Giro on day 22 and a
13 similar contact of Giro with German and A‑4 on the 23rd.
14 Overt acts 8 and 9 are supported by the testimony of
15 Johansen, Buchner and the RADES radar data. Number 10, ‑‑
16 Overt Act 11, DG 128 and number 12, DG 140.
17 There are some documents reflecting the Court records
18 of the two shootdown records, you will find them at 477, 471
19 and 472 and they will support in fact these were aircraft
owned
20 by corporations within the United States.
21 Ladies and gentlemen, the rest of the indictment
which
22 is substantive counts falls quickly into place from the
23 evidence in this case. It is all counts of substantive
24 violations of 951 and false identity documents. The false
25 identity documents are numbered to match the counts. For the
RICHARD A. KAUFMAN, RMR, NP
U.S. COURTHOUSE, MIAMI, FLORIDA 33128
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1 most part and I say for the most part because there are some
2 false identity documents that feature in two different counts.
3 For instance, Count number 4 relates to Gerardo Hernandez
4 possessing a purported passport he knew to be forged,
5 counterfeited, falsely made and procured by means of fraud.
6 That is Exhibit Number 4. It goes with Count 4.
7 Count number 5 charges Gerardo Hernandez with
8 possessing a number of identity documents with intent to use
9 them unlawfully and they all have the prefix number 5, that
10 Exhibit 4 is also one of those documents. Look out for those
11 exhibits that are specific to one count and stand alone
because
12 they also may fit into some of the counts that allege
13 possession of multiple false identity documents.
14 Count 4, Gerardo Hernandez possessing the phony
Daniel
15 Cabrera Oliva, Hernandez escape passports.
16 Count 5, Gerardo Hernandez possessing five IDs with
17 intent to use them unlawfully. There is a count like this for
18 each of the illegal officers based on the false documentation
19 they had, both their primary false documentation in the names
20 of Manuel Viramontez, Luis Medina III and Ruben Campa in the
21 names of Cabrera, Martinez and Osvaldo Reina. Look for the
22 exhibits that start with the prefix 5.
23 Count 6 is a Count that Gerardo Hernandez possessed a
24 false passport that was actually a passport of A‑4 in the name
25 of Francisco Salgado Nieves. It was found in Gerardo
RICHARD A. KAUFMAN, RMR, NP
U.S. COURTHOUSE, MIAMI, FLORIDA 33128
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1 Hernandez' apartment. It was found along with other Francisco
2 Salgado Nieves' identification for A‑4. The other phony
Nieves
3 documentation appears at 135 comp. We know the passport is
not
4 good because it does not match Government's Exhibit 131, the
5 genuine passport application for Francisco Salgado Nieves
6 possess by the U.S. Government.
7 Count 7, the Osvaldo Reina passport of the escape
8 identity for defendant John Doe Number 3 and that is Exhibit
9 7.
10 We had testimony from Mr. Reina as well as Mr.
Cabrera
11 and Mr. Martinez as to the falsity of these passports.
12 Count 8 is defendant John Doe Number 3 possessing
five
13 or more identification documents with intent to use them
14 unlawfully and those are all the exhibits that begin with the
15 prefix 8.
16 Some of these documents, the ones in the name of
17 Osvaldo Reina were found at the apartment 18100 Atlantic
18 Boulevard. The other false identity documents, the ones in
the
19 name of Ruben Campa were found at the apartment 1776 Polk
20 Street. The evidence is that Mr. ‑‑ that the defendant John
21 Doe Number 3 utilized and resided at different times in both
22 apartments, and we have as exhibits, Exhibits 560, 565, 563,
23 shots from the door camera that were taken between the Autumn
24 of 1997 and the early winter of 1998 when Ruben Campa, John
Doe
25 3, was substituting for Gerardo Hernandez. He was clearly
RICHARD A. KAUFMAN, RMR, NP
U.S. COURTHOUSE, MIAMI, FLORIDA 33128
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1 living at that apartment. These exhibits than show him taking
2 out the garbage.
3 You will get an instruction on possession and from
4 that instruction, you will know that the scope of possession
is
5 large enough to include what is known as constructive
6 possession. A person who is not in physical possession but
who
7 has both the power and intention to later take control over
8 something either alone or together with someone else, is in
9 constructive possession of it. That applies to those
10 materials. Certainly there is evidence this defendant knew
11 that this was his escape identity. He posed for the pictures
12 in those false identity documents.
13 Count 9 is John Doe Number 2's possession of the bad
14 passport in the name of Edwin Martinez, Exhibit 9. We had
15 testimony about that. We also had testimony from questioned
16 document examiner Wayne Laptosh to be as to the falsity of
that
17 document.
18 Count 10 is somewhat unique because that is a charge
19 that the defendant John Doe Number 2 possessed a passport and
20 this was actually, ladies and gentlemen, a real passport. It
21 was real because there is evidence that this defendant filed
an
22 application with the U.S. Government and that application is
in
23 evidence, it is Exhibit 10 and got a passport issued to him;
so
24 it is a genuine passport from the U.S. Government but it is
25 fraudulent because it was obtained based on false statements
as
RICHARD A. KAUFMAN, RMR, NP
U.S. COURTHOUSE, MIAMI, FLORIDA 33128
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1 to his name, his mother's name, his father's name, etc. That
2 is what that count is about.
3 Count 11 is his possession of that passport, because
4 even though that passport was genuinely issued by the United
5 States, it was known to have been procured by fraud and false
6 statements. That is the same passport and it is numbered as
7 Exhibit 11.
8 Count 12 is five or more identities, identity
9 documents for that defendant and they are all numbered with
the
10 prefix 12, except that again, Count 10 and Count 11 also
relate
11 to it and you need to look at those numbered exhibits as well.
12 The final counts, 13 through 26 are the substantive
13 offenses of acting as an agent of the Government of Cuba.
Each
14 of these defendants is charged with acting himself and the
15 illegal officers are also charged with aiding and abetting and
16 causing the acts that they supervised to act as agents of the
17 Government of Cuba, and you will get an instruction that a
18 crime can be committed either as a principal or as an aider
and
19 abetter; one who causes another one to act and that is what
20 those counts are about.
21 Ladies and gentlemen, I want to thank you for the
22 attention you have given me. I know you will give that same
23 attention to the defense counsel in this case. Following
24 defense arguments, the government will have an opportunity to
25 come back to rebuttal and we will present further testimony to
RICHARD A. KAUFMAN, RMR, NP
U.S. COURTHOUSE, MIAMI, FLORIDA 33128
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1 you.
2 One last thing I want to mention is the active
3 measures. You will find those active measures throughout the
4 documents and I am just going to give you a couple of page
5 citations ‑‑ I will skip that. If we need to get into that
6 further, I am sure you will find them in the material but they
7 reflect the propaganda thrust of the Government of Cuba and
8 several of those active measures were assigned to Castor to
9 review and you will find them not only in his documents, the
DC
10 documents, but there is also evidence here that several of
11 those active measures were carried out. We had some of the
12 letters actually being sent and they were placed in evidence,
13 Government Exhibits 701 and 702.
14 Ladies and gentlemen, thank you for your attention,
15 for the care that we know you will give this case. The United
16 States submits to you all the charges in this case have been
17 proved beyond a reasonable doubt and we further submit to you,
18 ladies and gentlemen, that it is time now for the propaganda
to
19 end. It is time for you to deliberate after you hear the
other
20 arguments and instructions of the Court and the United States
21 asks and is confident as you deliberate, you will see that
22 these charges have been proved and that you will return a
23 verdict of guilty as to every defendant on every Count.
24 Thank you.
25 THE COURT: Mr. Mendez.
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U.S. COURTHOUSE, MIAMI, FLORIDA 33128
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1 MR. MENDEZ: May it please the Court, ladies and
2 gentlemen of the jury. I am Joaquin Mendez public defender
and
3 I represent Fernando Gonzalez who is identified in most of the
4 papers as Ruben Campa.
5 I have sat here now for two days as I have sat here
6 through most of the trial and most of the government's
7 presentation of the case and I have been listening to the
8 prosecutors in the last couple of days, Ms. Miller go on and
on
9 and on and on and on in painstaking detail about a large
number
10 of things and my head goes numb, my eardrums reverberate and
it
11 is hard to stay awake and to stay focused because there is so
12 much information, so many words coming out that it is easy to
13 conclude they must be related to something, that each word
must
14 be important, but if you step back a minute and are able to
15 come up for air and step back and think about what is really
at
16 issue in this case, you will find that 90 percent of what we
17 have been told by the government, 90 percent of the proof in
18 this case, 90 percent of the evidence and the testimony they
19 have presented doesn't have to do with anything that you
really
20 have to decide.
21 So much of what has been said deals with things that
22 are just not at issue in this case. We have now for two days
23 and for several weeks during trial been given information that
24 we just don't deny, that we don't dispute, that you don't have
25 to figure out whether to believe or not. We agree.
RICHARD A. KAUFMAN, RMR, NP
U.S. COURTHOUSE, MIAMI, FLORIDA 33128
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1 There is no need to go on and on to prove that
2 Fernando Gonzalez used the name Ruben Campa. I told you that
3 when I first got up here several months ago. In fact I
4 introduced documents, his personal identification documents to
5 prove that he was not Ruben Campa. There has been no need to
6 go on and on to show that he lived with Manny Viramontez who
is
7 Gerardo Hernandez, for a period of time and show 50
photographs
8 of him taking out the garbage. There has been no need to show
9 that disks and reports written by someone named Oscar belonged
10 to Fernando Gonzalez. We haven't denied that.
11 You have been given so much information, so much
12 evidence that you do not need to perform those duties because
13 we are not denying it. I am not denying it on behalf of
14 Mr. Gonzalez.
15 What the government has tried to do is create this
16 impression that they have so much information, a ton of proof,
17 that some of it must require that you convict these men of
what
18 they have been charged with; but you have to separate the
wheat
19 from the chaff. You have to sit back and think about what is
20 really important in this case and whether the government has
21 presented any evidence as to those important matters, as to
22 those matters that really are at issue in this trial.
23 To listen to the government put on so much evidence
24 and make such arguments about things that are really not at
25 issue reminds of me an old Cuban saying that talks about
RICHARD A. KAUFMAN, RMR, NP
U.S. COURTHOUSE, MIAMI, FLORIDA 33128
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1 someone who wants to cover the sun with a thumb, "Tapar el sol
2 con un dedo," and it is the number that relates to all this
3 evidence and all this information, all these documents and
4 photographs that have nothing to do with this case, and the
sun
5 which I want to have shine on this trial, which I want you to
6 be exposed to and enjoy and appreciate, is the background of
7 what is going on in this trial, the historical context in
which
8 all of these things that the government has said that our
9 clients are doing was taking place, and I told you at the
10 beginning when I first met you in my opening remarks it was
11 necessary to have a bird's eye view of what is going on here.
12 A motion picture view of what is going on here to really
13 understand what is going on in this trial; because it is easy
14 to get lost in the big picture when you are confronted with so
15 many minutes of photographs and papers and documents that
16 really don't have anything to do with this case.
17 When you look at the context, when you look at the
big
18 picture, there are two sort of aspects to that big picture.
19 One is 40 years, as we have heard during the course of this
20 trial, 40 years of hostility between persons and organizations
21 who left Cuba when Fidel Castro came to power and the Cuban
22 Government.
23 We have only gotten a taste of those 40 years because
24 by far the focus of the evidence in this case has dealt with
25 the period of time covered by the indictment, so most of what
RICHARD A. KAUFMAN, RMR, NP
U.S. COURTHOUSE, MIAMI, FLORIDA 33128
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1 we have talked about has been between 1963 and 1998, but there
2 is enough in the record concerning the prior history to give
3 you a flavor for how long and how serious these hostilities
4 have been and there were references to the Bay of Pigs in the
5 testimony of Jose Basulto and others and there were references
6 to Jose Basulto's own personal exploits. We heard about the
7 time in the 1960s when he and some other men got on a boat and
8 got to a couple of hundred yards off the coast of Cuba and
9 fired a cannon. Fired a cannon at a hotel.
10 Just think about that. How twisted a person has to
be
11 in order to go ahead and fire a cannon at a hotel. What does
12 the person hope to accomplish by doing that. To kill
13 indiscriminately? When you have a problem with a government
14 and you fire a cannon at a hotel, are you going to kill the
15 workers, there, the maids, the groundskeeper? What kind of
16 hatred is in his heart, what kind of disrespect for the law
17 someone like that has.
18 Mr. Basulto comes back and testifies at trial he is a
19 different man. Now he is no longer a violent man. Mr.
Basulto
20 is a wolf in sheep's clothing. He hasn't changed his stripes.
21 Mr. Basulto's idea, his goal if you will is to start a war.
To
22 pro vehicle a war between the United States and Cuba. He is
23 like one of the kids in the playground who pushes a kid to
24 start a fight but doesn't want to get in the fight himself.
He
25 wants your children and my children to fight the war, he
RICHARD A. KAUFMAN, RMR, NP
U.S. COURTHOUSE, MIAMI, FLORIDA 33128
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1 doesn't want to fight the war himself. He wants to start the
2 fight, get the countries at war and pick up the pieces.
3 When he talks about Martin Luther King and he
compares
4 himself to Martin Luther King, I was shocked. I am still
5 shocked, because Martin Luther King was a man of courage, of
6 vision, of conviction, a man who didn't run away from a fight,
7 who didn't have other people fight the fight for him. When he
8 marched in the South he was in the front line. If somebody
who
9 had to go to jail for his conviction it is, he was there and
10 even the night before he got killed, before he was shot dead
by
11 a sniper's rifle, he knew his life on this earth was short
12 because of his convictions and he didn't back away. He said I
13 may not be with you to the mountain top but I will keep the
14 struggle alive. That is a man of honor and conviction than to
15 say Mr. Basulto who was back there and left, to compare
himself
16 to that man, was an outrage.
17 Once we get into the modern period if you will, the
18 1993 to 1998, the number and the types of attacks changes a
19 little bit. We have during the early period from 1993 to
1996,
20 half of the period of time we are talking about, we saw during
21 the course of this trial that there were a number of
22 paramilitary attacks, paramilitary organizations who were,
23 admittedly, sailing off to Cuba to place explosives in the
24 country or to arm people there or themselves to lead military
25 attacks against that country, in violation of the neutrality
RICHARD A. KAUFMAN, RMR, NP
U.S. COURTHOUSE, MIAMI, FLORIDA 33128
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1 laws and we talked about the neutrality statute and how it
2 prohibits individuals to launch and to go off on military
3 expeditions against countries with whom this country is at
4 peace.
5 I will give you more information about that
neutrality
6 statute when the time comes and you are given instructions on
7 the law.
8 We heard about Alpha 66 and maybe some of you never
9 heard about Alpha 66. The documents I introduced into
10 evidence, they were also taken from the homes of these men,
are
11 chock full of references and concern with Alpha 66 and it is
no
12 surprise. Here is an organization that is openly in
everyone's
13 face advocating war against Cuba. We have this photograph
14 which you have all seen before and it is up on that board.
15 This is the Alpha 66 office. It is on Flagler and 17th
16 Avenue. Downtown Miami, openly, talking about war being the
17 only solution to Cuba. Irregular war in Cuba. The only
18 solution, forever war. People in military fatigues going in
19 and out of that store.
20 This organization has been engaged in a long list and
21 a long number of attacks against Cuba and they do it openly
for
22 the world to see, challenging anybody, whether it is the
23 Cubans, the U.S. authorities, to try to stop them. We heard
24 from some of the members of Alpha 66 who came in here and
25 testified and we heard, for example, from Osvaldo Orlando
RICHARD A. KAUFMAN, RMR, NP
U.S. COURTHOUSE, MIAMI, FLORIDA 33128
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1 Suarez, who has mellowed out there. He has been retired from
2 Alpha 66, he hasn't been a part of that organization for a few
3 years but in 1993 when he was a captain in Alpha 66 and he was
4 on a vessel with grenades up there, with pipe bombs, with
5 daggers, knives, machine guns, he was a very dangerous man and
6 so were his buddies. These are not characters out of a movie.
7 These are life human beings walking around our community who
8 were doing this, again and again and again because it was a
9 revolving door they would go through. If they were stopped by
10 the police, stopped by customs, ATF, the FBI, nine times out
of
11 ten they were allowed to go back.
12 When Ms. Miller says Alpha 66 is not on trial, I
13 agree. That is the problem. Alpha 66 is not on trial. They
14 are never on trial. That has been the problem. They go out
15 there with impunity and threaten to attack the Castro
16 Government, threaten to attack tourist installations in Cuba,
17 industrial plants and they do it brazenly, openly and nobody
18 stops them or if they stop them, they may take their boats
away
19 or their guns and occasionally we heard they were arrested.
20 For whatever reason, they are not convicted and back out on
the
21 streets doing it again and again.
22 These men, several of them, you will see their
23 photographs more than once because there was more than one
24 stop. You have weapons, you have maps of Cuba, literature
that
25 shows what these men want and what they want is war with Cuba
RICHARD A. KAUFMAN, RMR, NP
U.S. COURTHOUSE, MIAMI, FLORIDA 33128
14127
1 and whether they start it and bring the rest of us in on it or
2 they start it and try to get the people in Cuba to rise up
3 against their government; they have a mission that no one can
4 keep them from pursuing. These men have to be kept an eye on
5 and if the FBI and the ATF, customs don't have the willpower
or
6 the resources or the ability, then it is important that
someone
7 keep an eye on them and notify these law enforcement
8 authorities of what they are doing to keep these kinds of
9 violent acts from being committed.
10 Alpha 66 training camps. You heard about those.
This
11 fellow with the machine gun. You heard about that. The
12 bushwhacker. These were scary people, scary weapons, but they
13 can't hold a candle to Rodolfo Frometa. We heard from him,
and
14 I don't think you will quickly forget this man in the middle
15 with the beret and the beard. Of course he didn't come to
16 court dressed that way but that is how he appears when he is
17 not in front of a jury. Here is a man who used to be a
captain
18 of Alpha 66, as he said, who also went through the revolving
19 door several times until he finally picked up a federal
20 conviction in 1994. Before he goes to prison in 1994, he
tells
21 us of all these other trips that he made to Cuba, all the
other
22 attempts he made against Cuba. Of course now as everyone else
23 does, he denies having any violent tendencies. They know what
24 time it is. They are in the courtroom and they will deny
that,
25 but their actions speak louder than words and when he is on a
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1 boat with machineguns and a map of Cuba and he tells us the
map
2 of Cuba is so he doesn't stray too close to Cuba, who can
3 possible believe that. The map of Cuba is precisely to guide
4 him where he will carry out his violent military mission. His
5 business card says that. That is what this man has been doing
6 for years and years and on February 7, 1994, he told us that
he
7 and his men were stopped, their boat was stopped, 50 firearms,
8 25,000 bullets were taken away from them but they were
9 released. Everyone knew they were released because it came
out
10 in the paper that way. That is true. Not only the people
here
11 but the people who follow the news all over the world can see
12 people in the United States that advocate the violent
overthrow
13 of Fidel Castro are allowed to go about their business. The
14 worse they can expect to happen based on what we have seen,
15 they get their boats taken away or their rifles taken away and
16 sometimes they don't even get those taken away because as
Julia
17 Torres told us, unless they are automatic weapons, they
haven't
18 committed a violation so go on with their lives, it is not my
19 business.
20 What happens with Frometa? Frometa is a very
21 dangerous man. He is a lunatic. He is an absolute lunatic
who
22 lives in Miami, who drives elderly people to a clinic. He is
a
23 nut who doesn't think that grenade launchers and machine guns
24 are enough. He thinks they are kid toys. After he has been
25 confronted and several times told to stop his activities, he
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1 goes out and tries to buy a stolen missile. Imagine that. He
2 thinks machine guns are toys. He is going to get an
3 antiaircraft stinger missile to shoot down helicopters, things
4 that move up in the sky. That is not enough. He will also
try
5 to buy antitank weapon and C 4 explosives. He will buy a
pound
6 of C 4 explosives which we heard about and know what kind of
7 damage they could do and will drive around town with his stuff
8 but of course unknown him at that point, the FBI does put a
9 stop to him, does arrest him.
10 But this is a guy who doesn't learn his lesson and he
11 says he wants to go and blow up helicopters in Cuba, he wants
12 to blow up bridges, he wants to attack a building that he says
13 Fidel Castro frequents along with some of his top advisers.
He
14 will kill them all and anybody else who goes in there because
15 they are all part of the government?
16 That is the kind of person who is here in Miami among
17 us.
18 What do you do if you cut in front of him on 8th
19 Street and he is carrying a missile, this lunatic. He is a
20 dangerous man and there are more like him.
21 Finally he does pick up an indictment. The FBI does
22 arrest him, but what does he say? He says they offered him a
23 one year house arrest. He says looking back maybe I should
24 have taken it but I wasn't prepared to renounce my mission.
25 He says he is told he could do one year house arrest
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1 for buying these missiles, antiaircraft, antitank weapons and
2 C 4 explosives. People are looking on this in horror. People
3 all over the world and in Cuba in particular are looking at
4 this and wondering what is going on in Miami, who will put a
5 stop to this craziness that has been going on for years and
6 years and years.
7 One of the things about, earlier on in the
8 government's case they introduced my photographs of my client
9 Fernando and Manny Viramontez and those photographs were along
10 with other photographs involving a meeting and contact in Key
11 West and the prosecutor didn't know from where those
12 photographs were taken but it gave me the impression they had
13 all been taken on a trip to Key West and you heard a lot of
14 testimony about Key West and Boca Chica and what have you.
15 You heard from Debbie McMullen, the investigator in
16 our office, those photographs which are on this board and you
17 will have them later on, of Fernando and Giraldo, were
actually
18 taken enroute trying to find one of these F 4 camps up in
19 Central Florida and Debbie McMullen tried to retrace those
20 camps and could not find it but found the store in front of
21 which they were photographed; and I will come back to that,
how
22 in the focus of my client and the others as well, was on the
23 activities of these groups that are openly advocating violence
24 against Cuba, openly training in the Everglades or other
25 locations and bragging about it and not being stopped.
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1 Here is another dangerous extremist nut. We met the
2 police officer who does arrest him, the customs officer Marko
3 Rocco. I hope you can see it. These are the four men who
were
4 picked up off the shores of Puerto Rico on this very large,
5 very expensive boat called La Esperanza and Agent Rocco said
6 they did a routine check of the boat and within certain
7 concealed compartments they found a number of weapons
including
8 two 50 caliber machine guns, semi automatic guns, 50 caliber
9 weapon with a tripod, you have to lie down and shoot.
10 They also found night vision goggles, a large amount
11 of ammunition, and these men or one of them, Alfonso, who is
12 photographed here with the crazy look in his eyes, you will
see
13 that photograph, it is scary just to look at him, this man
says
14 we are on a mission to go kill Fidel off the coast of
Venezuela
15 at a Summit of the Americas. That is what I am doing. These
16 are my weapons and I am on a mission to go kill Fidel. It is
17 my mission in life to go kill him. I don't care how many
times
18 I am thrown into jail. I won't stop until I carry out this
19 mission.
20 You will see in the records and in the papers and the
21 documents I have introduced into evidence there is a great
22 concern for Fidel's safety at this summit in Venezuela because
23 there is information that these men had, had gathered that
24 there were plans afoot to assassinate him in Venezuela and it
25 turned out to be true.
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1 How did customs, how did the Coast Guard, the U.S.
law
2 authorities also come upon this information is open to debate
3 but thank goodness, in this instance they did stop this boat,
4 they did arrest these men. They did charge them with all
these
5 offenses, but they are all acquitted at trial.
6 MS. MILLER: Objection, Your Honor.
7 THE COURT: Sustained.
8 MR. MENDEZ: What else does Alfonso say? Not only
9 does he say his mission in life is to kill Fidel. He won't be
10 stopped from doing that, but of course as so many of these men
11 do when they are caught, he also says and compares himself to
12 Martin Luther King. I guess it is something they pick up at
13 terrorist school or something, to compare yourself to Martin
14 Luther King if you get arrested. Nothing could be further
from
15 the truth, ladies and gentlemen.
16 We talked a little bit about PUND, and when you were
17 asked that during voir dire you must have wondered what we
were
18 talking about. That is another one of these groups. The
19 photographs we were able to submit to you. You will recall
the
20 testimony of Agent Torres who talked about the five machine
21 guns that she seized from one of their boats and how they told
22 her they were on their way to Cuba to either drop off the
23 weapons or to engage in some kind of confrontation with people
24 down there. We don't have any photographs but there were
those
25 black and white photocopies and you remember there were a
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1 number of weapons and they were frightening weapons indeed.
2 We also talked about Orlando Bosch. He did not
3 testify but we went through a long list of his
4 accomplishments.
5 I will not go back to that. That is at R 77.
6 Let me highlight a few. Bosch you will recall is
7 someone who has engaged in terrorist acts against Cuba for 40
8 years. Not only against Cuba but against anyone who he thinks
9 is an ally of Cuba or a supporter of socialism anywhere in the
10 world. In these documents you see references to his
11 involvement in the killing of Orlando Letelier, a Chilean
12 diplomat in Washington, D.C.. You can see a list, a short
list
13 of his activities. Beginning in 1960 through 1993 when he
14 formed The People's Protagonist Party.
15 There is a 20 page resume' of his activities from one
16 period of time after another.
17 Aren't we lucky that in 1991 or thereabouts ‑‑ by the
18 way some of his activities include putting a bomb on a plane
in
19 Barbados in 1976 that killed 73 civilians. 73 civilians on a
20 Cuban airliner flying from Barbados to Cuba were blown up in
21 the sky. This man was part of that.
22 Aren't we the lucky ones. Back in 1991 after his
23 arrest, because he wasn't a U.S. citizen, after his request
for
24 political asylum was refused by 31 countries, Orlando Bosch is
25 granted parole in the United States and lives in Miami,
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1 Florida. He lives in Miami, Florida. He buys groceries at
our
2 stores, he drives around the streets and continues to plot
3 violent acts, terrorist acts against Cuba, against Castro,
4 against anyone who he thinks is a friend of the Castro regime.
5 Once we get past this initial period of military
6 aggressions and driveby shootings by boats we enter a period
7 that begins around 1994, 1995 and continues on to 1997 of
8 bombing campaigns. Bosch is really in a lot of ways the
poster
9 child of terrorism because he stretches over every aspect of
10 violence. He was active in firing cannons and firing bazookas
11 and firing machineguns, but also was able to evolve into the
12 bombings that have come to the scene in the last couple of
13 years and we heard quite a bit of evidence about the recent
14 bombing campaigns in Cuba. We heard two men give testimony by
15 way of deposition and the Court will instruct you that
16 testimony is to be considered by you just as if it had taken
17 place here in the courtroom today. It was conducted pursuant
18 to U.S. laws, pursuant to the Court's rules and it is just as
19 valid as any other testimony that you were given during the
20 course of this trial and these two men, Francisco Godoy and
21 Juan Gomez told you about specific personal experiences that
22 they had in which people involved in different organizations
23 here in Miami tried to recruit them to become involved in
24 putting bombs in Cuba. Godoy named four or five men, Zuniga
25 Reyes, Alfredo Torres to name a few, who are living in Miami
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1 who the documents we have shown you are active members of the
2 Cuban American National Foundation, who drive around town.
3 These men according to Godoy who testified under oath and no
4 one ever came into this courtroom and said he lied, the men he
5 identified as people who wanted to pay him to put the bomb in
6 the Tropicana never came in here and said that man was telling
7 a lie. His testimony is absolutely uncontradicted under oath
8 and he said these men were going to pay him thousands of
9 dollars to put a bomb in the Tropicana Hotel, a beautiful
10 elegant night club, Las Vegas style club in Havana that
11 hundreds of people go to according to him and tourists fill
12 every night of the week. He wouldn't do it? Because he was
13 cooperating with the Cuban authorities and rather than blow up
14 the place, he turned over the explosives to the Cuban
15 authorities and indeed the explosives were seized after he was
16 given the explosives in Guatemala to bring back to Cuba.
17 This is real live stuff. Nobody is making it up. It
18 went on again with this other fellow Gomez. Godoy is the man
19 photographed in the middle. You remember him. He is the one
20 who they tried to recruit to blow up the Tropicana. Gomez is
21 the other fellow who lives in another part of Cuba and he told
22 me members of the group called the Ex‑club, they tried to
23 recruit him to blow up the Che Guevara museum. Whatever you
24 think of the Cuban Government and their history and political
25 institutions and their historical artifacts, you can see from
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1 this photograph and Gomez also talked about how the Che
Guevara
2 museum is a very popular place, specially in this province of
3 Cuba, a little bit out of the way and every day hundreds of
4 people go there, either because they are curious about Che
5 Guevara or it is one of the things to see and do when you are
6 in that part of the country and they wanted him to blow that
7 place up. He also was cooperating with the Cuban authorities
8 and he also egged these people along and kept calling them
back
9 and kept going along with the plan until on June 10, 1998 the
10 Cuban authorities were able to arrest a couple of people at
the
11 airport who were bringing in the explosives that were supposed
12 to be delivered to him to be placed at that memorial to kill
13 anybody who was there, because these bombs and bazookas and
14 missiles, even if the shooter and the person who places them
15 has political views, these bombs and missiles, they kill
16 indiscriminately. You have a heat seeking missile but you
17 don't have a communist seeking missile. You fire that weapon,
18 you are likely to kill a child as a military officer as a
19 tourist as a worker. You can't control the damage, you can't
20 control the harm and he refused to do it and turned over the
21 information to the authorities and that attempt was thwarted.
22 Godoy refused to do it and that attempt was also thwarted.
23 As we saw from the testimony of Roberto Hernandez
24 Caballero not all of these attempts to put the bombs in Cuba
25 were prevented, and you will recall Roberto Hernandez
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1 Caballero, a Colonel in the Cuban Ministry of the Interior, he
2 came and told you what he does for a living and told you about
3 his own personal experience in investigating a series of
4 explosions in Havana.
5 Someone might say and Ms. Miller referred to some of
6 the witnesses, Cuban witnesses who talked about the shootdown
7 as, she didn't quite say government puppets, but suggested
they
8 might be trained seals for the Cuban Government. No one can
9 possibly say that about Hernandez Caballero because that is a
10 man who not only testified about what he had seen, heard,
11 smelled, his own personal experience, but he was also brought
12 to the United States before by the U.S. Attorney's Office
13 because they believed him too, to testify as a witness in
Tampa
14 in a case for the government. You may not like this man's
15 politics, although I don't think he said anything to show what
16 his politics are one way or the other, but he is a
professional
17 instructor, a lawyer, he is trained to find out what is behind
18 these bombings and he talked about a series of eight actual
19 bombings over a period of four months.
20 He talked about the first bombing was at the Melia
21 Cohiba Hotel, and as he said and as this other fellow Felipe
22 Carmona, this other man who gave his deposition and worked at
23 the Melia Cohiba Hotel, according to the fellow who works
24 there, he said it is the best hotel in Havana. It is a five
25 star hotel. It is a popular hotel for tourists. It has 462
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1 rooms. Over a thousand people can stay there. April 1997 a
2 bomb goes off at the discotheque that belongs to that hotel.
3 One of the photographs we have shows the damage that was done
4 to that hotel.
5 On April 30, just a couple of weeks after that,
6 Hernandez Caballero discovers another explosive device at the
7 same Melia Cohiba Hotel before it goes off and that is on the
8 15th floor.
9 On July 12 two bombs go off in Havana hotels. One of
10 them the National and you have a photograph of that beautiful
11 hotel like the Biltmore down here. Spacious, luxurious. The
12 bomb goes off there and destroys part of a lobby. No one is
13 killed but people are injured.
14 July 12th, the same day, two bombs. This one at the
15 Capri Hotel. Not quite the elegant luxurious hotel the others
16 are but still one that is frequented by tourists and Cubans
who
17 work there. It is located in a busy neighborhood where the
18 damage could have affected passers by. A bomb goes off there
19 as well. Here is a photograph of some of the destruction.
20 This isn't made up.
21 August 4, a favorite target of the terrorists,
another
22 bomb goes off at the Melia Cohiba Hotel. A second bomb placed
23 there. A third one was discovered. That is the one where
24 Felipe Carmona worked at and he was in the lobby when it went
25 off. There was no doubt about it happening. He talked about
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1 how it destroyed the furniture and here you can see how it
sent
2 a shank of wood that the bomb exploded and ripped this piece
of
3 furniture about and the shank of wood flew across the floor
and
4 pierced its way through that planter. Fortunately no one was
5 killed there.
6 September 4, four bombs go off in the City of Havana,
7 at the Triton Hotel, with that kind of damage.
8 At the Chateau Miramar Hotel, with that kind of
9 damage. You can see the kind of damage it did.
10 At the Copacabana Hotel, with that kind of damage.
At
11 the Bodeguita del Medio, it is not a hotel but it is a popular
12 restaurant and people write their names on the walls and the
13 furniture and look at the damage that took place there,
blowing
14 up the second floor of that restaurant. Three photographs
15 reflecting the destruction that it caused. People injured
16 there. People injured at the other hotels and one death. One
17 completely innocent, completely undeserving victim of this
18 awful violence, an Italian tourist was killed as he sat
19 drinking Cafe Cubano at that spot at the Copacabana and if you
20 look closely, you can still see some of the blood on that
floor
21 that he had no business shedding. He never should have been
22 dragged into this hateful enterprise that people from Miami
23 have been sponsoring for many, many years. It is not Fidel
who
24 was killed or Raul Castro. The people that were hurt weren't
25 government officials. They were everyday Joe's and the man
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1 that was killed didn't deserve to be killed and that is what I
2 meant when I said these bombs don't discriminate. If you set
3 it off, you don't know what is going to happen.
4 There were also bombs that didn't go off that we
5 talked about at the airport and at a tour bus. They didn't go
6 off but you saw photographs of those as well.
7 This man's presence in this country is in
8 direct response to that situation. Fernando Gonzalez, Ruben
9 Campa, Camilo, Oscar, Vicky, is here because he can't stand
the
10 sight of what has been going on in Cuba, the violence against
11 his people that has been going on for way too long. If we
12 could even imagine what it would be like to live and work in a
13 situation like that, we could begin to understand the anxiety,
14 the fear and the desire to do something about it that people
15 like Fernando Gonzalez hold in their hearts.
16 We are fortunate in this country, although
regrettably
17 in recent years we have been victimized and terrorized by
18 bombings; but for the longest time we didn't have to deal with
19 that. If one can imagine what it would be like to live in a
20 town like Miami if there were eight or ten bombs in hotels in
21 South Beach. That is the kind of situation, the kind of
terror
22 that was gripping these people and Fernando Gonzalez' presence
23 here is one of Cuba's responses to that situation, to find out
24 what is going on, to find out who is behind it, to notify the
25 authorities, the U.S. authorities. That has always been a
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1 possibility. We talked about the Miami River and those yacht
2 bombs. We saw those reports. When the Cuban authorities
3 including Mr. Gonzalez, goes out there and does a video of
4 those boats and reports back to the authorities in Cuba about
5 the presence of a boat they believe contains explosives and
6 bombs; the FBI thank goodness was on to the same information
7 and they did something about it; but in those reports you
8 remember that a number of possibilities are being discussed.
9 To damage the boat so it doesn't go to Cuba, or burn it which
10 is something they decided not to do and another possibility
was
11 to call the FBI.
12 These people are here, Fernando Gonzalez is here
13 gathering information that will help his country protect
itself
14 from these acts of terrorism. These acts of terrorism that
15 kill indiscriminately and without regard to politics or views
16 or what have you.
17 I don't think I will go through the documents with
you
18 because we have done that quite a bit. You will recall that I
19 introduced into evidence a three‑ring binder that contained
20 excerpts from a number of documents and we went through them
21 with Ms. McMullen and identified those, some of the ones that
22 concerned and reflected Cuba's preoccupation with these
23 matters.
24 If I may refer to one or two examples.
25 I don't know whether you could see that. Is that
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1 clear?
2 Here is one to illustrate the sort of general
3 character of the work that Fernando Gonzalez was doing here.
4 It says the terrorist flow of the ultra right of Miami
5 represented by the paramilitary group of the Federacion ‑‑
6 Cuban American National Foundation, of PUND, Alpha 66, CID,
7 persist in their desire to execute violent and provoking
8 actions against Cuba.
9 In their drive against Cuba they continue to plot
10 sabotage against tourist sites, power plants, the sugar
11 industry. They attempt to foster civil disobedience and they
12 conceive new plans to make an attempt against the
13 Commander‑in‑chief.
14 Tasking requirements, one example. Search of
15 information regarding the preparation of subversive activities
16 to enter explosives into Cuba, as well as the movement of
17 Posadas Cariles and other dangerous counterrevolutionary
18 subjects such as Tony E S Q U I V E L, Arnaldo M O N Z O N ‑‑
19 you heard about that. Richard Nuccio and Stewart Hoyt said
20 were involved in the killing of Letelier. The other people
21 that are mentioned there.
22 Here are two documents that give you a bird's eye
view
23 of the general interest, the general concerns that they have
24 about what is going on here. Then there are specific ones
that
25 I will refer to, one or two.
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1 As you will recall a number of these communications
2 concerned the need for information that someone might be
3 planning an attempt on Fidel Castro during his trip to the
4 United States or the trip to Venezuela or the trip to the
5 Dominican Republic.
6 For instance, here is one. M 19 source ‑‑ we don't
7 deny, it is a group within the Ministry of the Interior
8 concerning intelligence gathering.
9 M 19 source says that during the meeting in Atlanta
10 between Erneido Oliva, Rafael Del Pino, Orestes Lorenzo and
11 others, they talked about the commander's trip to New York.
12 Del Pino offered to pilot a fighter jet which must intercept
13 the commander's plane and bring it down between Cuba and the
14 Bahamas. T 11 is instructed to find out what he can about
15 that.
16 When you go through these documents and I have chosen
17 the relevant pages, you don't have the whole 80 page document
18 but I have taken out the two or three pages that deal
19 specifically with instructions about the need to get that kind
20 of information; take a look at it and you will see the concern
21 is wide ranging but by far focused on these attempts on Fidel
22 and attempts to introduce bombs into Cuba.
23 One of the neatest set of documents that illustrates
24 how this communication goes back and forth is this one, and I
25 mentioned these in my opening remarks and maybe you
remembered,
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1 but bear with me.
2 Here is a communication from Cuba to Miami and it
3 says, number 15. During this month of April, there was an
4 explosion in a public restroom at the Cohiba Hotel. That is
5 referring to the April 12th explosion. Material damage only.
6 It would appear the Cubans are involved, and will name some
7 people. Then it says, we need Jose, an agent, to look for
8 whatever active information he can find on this happening or
9 any intention by Camco, C A M C O, the group considered to be
10 behind it, to carry out future similar actions. Details on
any
11 and all activities they may be planning.
12 A bombing has taken place. Try to find out who is
13 behind it, try to find out whether they have any other plans
to
14 do anything like it and pass that information along.
15 That communication, those instructions come from Cuba
16 to Miami.
17 On April 14, the next day, Allan, Luis Medina, Ramon
18 Labanino, follows up and sends a memo to Jose and Tania, and
he
19 tells them exactly what has happened in Cuba, about the
bombing
20 at the hotel and the need to gather information to think about
21 information concerning future attempts and to pass that along.
22 There are many other examples like this in the
23 three‑ring binder that I have introduced into evidence and if
24 there is any doubt in your mind what the focus was of these
men
25 in the United States, then I strongly recommend that you go
and
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1 look at them, because you will see by far the greatest
2 preoccupation was with these criminal elements and increasing
3 flow of terrorist activities.
4 As far as Fernando Gonzalez is concerned, Ruben
Campa,
5 I told you before and I will remind you now that his
activities
6 concerned, based on the documents you have in front of you,
7 basically eight activities, eight tasks he was involved with
8 and they are the Rain Bow, Morena, Miami River, the one we
9 talked about where they filmed these boats thought to be
10 containing explosives to be sent to Cuba. Neblina, Fog.
11 Giron, Paradise, Surco and Aeropuerto.
12 If you see any more when you go through the
documents,
13 you could add them but those are the projects the record shows
14 he was involved with. Most of them really concern the groups
15 that we have been talking about here today and for example,
you
16 will see in one of these documents, R 24, and you will have
it;
17 Fernando is told he should give priority to the other tasks
18 that he has been given and those are Arco Irris and Paraiso;
19 Paradise. Those are surveillances of some of the people.
Arco
20 Irris as you have been told, quite simply was a task that
21 Fernando and others videotaped a meeting between Orlando
Bosch,
22 the man we talked about and Ruben Dario Lopez where according
23 to the information they received they were planning to ship
24 weapons and explosives into Cuba. To make a videotape of that
25 meeting so they could supply proof that such a plan was
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1 underway. That is in R 24. We could see at the bottom it
2 talks about the video.
3 Moreno was also involved with Orlando Bosch. Bosch
is
4 somebody they are extremely concerned with and there is a
5 videotape of him. There was a need to videotape boats on the
6 Miami River.
7 Neblina concerns somebody who was considered to be
8 behind the explosions and in fact there was a document, R 52.
9 You have seen it. It says there was an explosion in
10 one of the hotels and it instructs and it has to do with the
11 Capri and the National Hotel and it instructs Allan to begin
12 the operational base to begin Operation Fog, which is to
follow
13 the movements of this man Perez who is thought to be behind
14 it.
15 It is from Nelson to Allan and it refers to the Capri
16 and the National Hotels and start Operation Fog to locate and
17 study the head of the counterrevolutionary organization
18 considered to be behind it.
19 These are all in that packet. If you have any
20 questions, take a look at them. The way they are organized, I
21 think you will be able to get through them without much
22 difficulty.
23 Other activities that Fernando was involved with, we
24 talked about Giron. There was very little discussion about
25 that. Paradise concerned the filming and surveillance of the
RICHARD A. KAUFMAN, RMR, NP
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1 Bahamas because of the suspicion the Bahamas was being used by
2 some of these groups as launching places as attacks against
3 Cuba. Surco, that is Southcom you have heard reference to and
4 the involvement and you heard Santos come in and say the only
5 one who had anything to do with that was Fernando, who was
6 cooperating with the authorities as well and he said he met
7 Campa once or two times and the only thing he did for Campa or
8 the only involvement Gonzalez had anything to do with
Southcom,
9 Santos gave him a couple of newspaper articles that he located
10 in the press and typed them up on a disk and gave them to
11 Fernando Gonzalez. So there was no involvement at all. If
12 anyone would want to exaggerate Gonzalez' involvement or the
13 involvement of anybody else in this case, it would be Santos
14 because he is the one you will recall struck a deal with the
15 government shortly after he was picked up and agreed to
testify
16 for the government in exchange for a lower sentence. You will
17 recall he is someone who knew he had originally been charged
18 with espionage and was looking at life in prison. He wanted
to
19 avoid that. He was charged with being an agent which is what
20 Fernando Gonzalez is charged with looking at ten years in
21 prison ‑‑
22 MS. MILLER: Objection.
23 THE COURT: Overruled.
24 MR. MENDEZ: He struck a deal to avoid those kinds of
25 prison sentences he was afraid he would get based on his
RICHARD A. KAUFMAN, RMR, NP
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1 understanding, his reading of newspaper articles, his
2 conversations with lawyers. He wanted to avoid that. He
3 struck a deal and got a fair charge against him. He pled
4 guilty. Got a favorable sentence based on his cooperation.
5 Someone like that, if he wanted to exaggerate as the others
6 have done, because the more trouble you could get them into,
7 the better deal he thinks he will get. Notwithstanding that,
8 all he could say, in honesty as shown in the records, all he
9 ever did and all that Fernando Gonzalez ever did with regard
to
10 Southcom is receive two newspaper articles about the
11 construction that was going on there.
12 Aeropuerto is the one dealing with Boca Chica and no
13 one came in here and testified about Fernando Gonzalez'
14 involvement with that and the records or documents that deal
15 with that are already in front of you and they show again what
16 a limited role he had in that operation as well.
17 It is important to keep in mind what Cuba is doing
18 here as far as asking these men to keep an eye on this radical
19 fringe element, is just one part of a number of things, of a
20 strategy that Cuba has shown in the records and the evidence
in
21 this trial, of a strategy they have to try to put a stop to
22 this craziness. To send these people here to gather
23 information so the information could be sent back to Cuba so
it
24 might be sent to the U.S. authorities, so that the plans can
be
25 disrupted; so people could keep an eye on what is going on.
So
RICHARD A. KAUFMAN, RMR, NP
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1 the introduction of bombs can be prevented. That is one part
2 of a strategy.
3 The other strategy deals with those diplomatic notes
4 we talked about.
5 I will not go through all of these notes. We read
6 them before, but I wanted you to see and I wanted to
illustrate
7 that Cuba, at least from what we have seen during the course
of
8 this trial is doing everything it can to help the U.S.
9 authorities do their job, to give them the information they
10 need and if the U.S. authorities are either unwilling or
unable
11 to do whatever Cuba can to prevent this flow of terrorism from
12 reaching its shores and the diplomatic notes, one dated
October
13 21, 1992, two dated that day and they deal with one of these
14 driveby shootings at a hotel. You will have those in Spanish
15 and English. Where the Cuban authorities complain about it
and
16 provide information.
17 There is a note on April 6 dealing with the shooting
18 of a vessel, not even a Cuban vessel but a Greek vessel by
19 people here connected to one of these organizations.
20 May 3, 1993 there is a note that talks about
21 information that Alpha 66 has a training camp and won't you do
22 something about it.
23 October 29, a note complaining about an Alpha 66
press
24 conference in which the organization threatens the safety of
25 anyone that goes to Cuba or spends money there.
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1 March 1, another note dealing with a guy arrested
with
2 explosives. March 13, dealing with PUND. So on and so forth.
3 You will see a diplomatic attempt. Ms. Miller
4 referred to the lack of diplomacy. Hear you see the
diplomatic
5 attempt to work this thing out which you decide for yourself
6 whether it succeeded or failed.
7 Not only is there a diplomatic attempt but there is
8 actual contacts with law enforcement officers and Caballero
9 comes into play because he told you he was involved in
10 preparing this report which the Cuban authorities prepared, in
11 response to some questions, some diplomatic notes introduced
12 into evidence where the U.S. says you tell us there are people
13 in Miami behind the bombings, show us what you got and the
14 Cubans prepare this report. The Americans go down to Cuba and
15 review the evidence and the report and you will see this
report
16 details the evidence that Cuba has about not only what
happened
17 in Cuba but about its connections with the United States. We
18 don't have the attachment but you will see the reference to
all
19 those attachments, tape recordings, photographs. You name it.
20 The Cubans are putting together a whole package. Here is the
21 evidence we have to support our claim a lot of what is going
on
22 in Cuba is coming from the United States. The U.S. says fine,
23 we will follow up on it. You decide for yourselves whether it
24 has been followed up or not.
25 Caballero and others down there say they are
RICHARD A. KAUFMAN, RMR, NP
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1 frustrated by the lack of follow‑up on this information. Ask
2 yourself ‑‑ the FBI of course has been following these guys
3 around for several years. It is no surprise that they are
here
4 and they know what they are doing. They can read the
documents
5 just as we can. The FBI has for years admittedly known some
of
6 the people who have been here longer than others have been
here
7 and are getting information. Why they decided to shut it down
8 on September 12, 1998 is anybody's guess.
9 They have known it for years, why didn't they stop
10 it? Because it is not threatening to them. They told the
11 Cubans to give us information and when the Cubans gave them
12 information about a guy in New Jersey or Miami, where do the
13 Cubans think they are getting that information? They are
14 getting it from people here who are monitoring these
activities
15 and keeping an eye on these guys.
16 Even though Caballero said he never heard of any
17 conversation where one of his superiors told anybody they were
18 angry at the U.S. for arresting these people, he said he never
19 heard of that conversation but he would be surprised because
it
20 is biting the hand that feeds you. Give us that information
21 and when the men here are providing the information, are
22 arrested, that would lead to a great deal of frustration down
23 there and that is what is going on down here.
24 I have gone on awhile about the facts and what the
25 documents say the people were doing and I want to talk a
little
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1 bit about the law because you will eventually and you might be
2 relieved to know that you will be told by the Court what the
3 law is that will help you put all of this information into
4 place and that is why I say when you have that framework in
5 mind, you will be able to see a lot of what you have been told
6 you don't really need in order to perform your roles; because
7 it is the law that applies as the Court will instruct you that
8 will help you decide whether my client and the others are
9 guilty or innocent of the charges against them, and I do want
10 to talk a little bit about the law you will have to decide.
11 The reason I have been spending a lot of time
12 reminding you and telling you again and again and again you
13 simply cannot perform your role, that you simply cannot do
what
14 you have taken an oath to do and what everyone expects you to
15 do without going into the hearts and minds of these
16 individuals, without going into what is involved in their
17 minds or doing what they are doing because of the instructions
18 that the Court will give you concerning the criminal state of
19 mind that the government has to prove beyond a reasonable
doubt
20 in order to convict Mr. Gonzalez and the others of these
21 crimes.
22 You will see, and I will talk about Mr. Gonzalez and
23 the other gentlemen can talk about their clients; that they
are
24 charged with a number of different offenses. Many of those
25 offenses require that the government prove beyond a reasonable
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1 doubt that Mr. Gonzalez acted willfully and that is, as the
2 Court will instruct you, that means something in the law.
3 Whenever Mr. Gonzalez is charged with having acted willfully,
4 that means, all you will see in most of the counts the
5 government has to prove he acted willfully; you will see the
6 government has to prove beyond a reasonable doubt that as it
7 says here, that the act was committed voluntarily and
purposely
8 with the specific intent to do something the law forbids, that
9 is, with bad purpose either to disobey or disregard the law.
10 That is what I am saying. It is not enough to know
he
11 sent a disk on a given day or he took a photograph the next
day
12 or made a phone call the third day. He is obviously part of
13 the picture and we are not fighting too much about that. In
14 fact we are not fighting at all about that; but what they have
15 to prove beyond a reasonable doubt whenever they charge him
16 with committing a crime willfully, that he acted with specific
17 intent to do something which the law forbids.
18 What it means to act willfully will be defined again
19 and again because it is important. You will see for example,
20 willfulness should not be and specific intent should not be
21 confused with motive. We are talking about the state of mind.
22 Intent refers to the state of mind with which the acts were
23 done and they have to prove he acted with specific intent to
do
24 something which the law forbids. The Court will instruct, if
25 you have a reasonable doubt whether the defendant acted in
good
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1 faith, sincerely believing himself to be exempt by the law,
2 then the defendant did not intentionally violate a duty.
3 That is why I have been telling you so much about the
4 background, the context, the historical perspective because
5 that will help you focus in on this man's state of mind
whether
6 he acted with criminal intent.
7 You will also be told as to Count 1 of the
indictment,
8 it is the defendant's theory of the case that they were
9 monitoring the activities of persons and organizations in
order
10 to prevent acts of violence and aggression against Cuba. In
11 other words, the defendant's theory of defense, they did not
12 act with the necessary bad purpose to disobey or disregard the
13 law, because they were acting as agents of the Cuban
Government
14 in the United States to prevent acts of violence from being
15 carried out.
16 That is what the Judge will tell you is the
17 defendant's theory of defense. That is a mouthful.
18 The government has the burden of proving beyond a
19 reasonable doubt that the defendant acted with the requisite
20 specific intent to violate the law. If it fails to do so, you
21 must return a verdict of not guilty in favor of the
22 defendants.
23 This is the law and I am sure you haven't lost sight
24 of the fact, you have taken an oath and you will be instructed
25 and you will follow the law and this whole process, this whole
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1 judicial system depends on everyone doing what they are
2 supposed to do and that is why we put on this kind of evidence
3 to help you do that.
4 It is also a defense in this case my client wasn't an
5 agent of the Cuban Government. At first blush it may sound a
6 little crazy, but we are in the world of the law and just as
we
7 have to set aside certain prejudices, sympathies and hunches
we
8 have, we all have to operate under the law as the Court
defines
9 it, as Congress defines it and that is what everybody is
10 operating under. When the government decides to charge
someone
11 with a crime, they read the statutes, they read the law like
12 everybody else and they decide whether that construct falls
13 within it or not. Now it is your turn to decide whether in
14 fact the proof, because it is easy enough to charge someone
15 with something, you were told I believe an indictment isn't
16 proof of anything, it is just a charging document, to put
these
17 people on notice what the government thinks it is they think
18 they did wrong, but now you have to decide whether the
19 government proved what they proved and whether it falls within
20 the reach of the law and one of the things the government has
21 to prove against Mr. Gonzalez and I think all of the
defendants
22 are being charged with being agents one way or the other, is
23 that the defendant acted as an agent of a foreign government.
24 That might appear to be a no brainer, but as you may
25 not be surprised to know, the law isn't always as obvious as
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1 you might think. The Court will instruct you. The Judge who
2 is the only authority as to the law in this courtroom will
tell
3 you, an agent of a foreign government, as defined in these
4 instructions, does not include any officially and publicly
5 acknowledged and sponsored official or representative of a
6 foreign government.
7 Another bunch of legal words. Fortunately we have
8 further definitions.
9 The meaning of that, the meaning of officially and
10 publicly acknowledged and sponsored official or representative
11 of a foreign government, and here is the language I marked
off,
12 the meaning of those kinds of people who do not qualify as
13 agents of the foreign government under the statute includes
any
14 official of a foreign government ‑‑ on a temporary visit to
the
15 United States for the purpose of conducting official business
16 internal to the affairs of that foreign government.
17 You will have this. Bear with me. You will have
this
18 instruction in writing, you will be able to pore through it
19 carefully.
20 The kinds of people who are not considered agents of
a
21 foreign government under the law includes any official of a
22 foreign government on a temporary visit to the United States
23 for the purpose of conducting official business, and in
24 addition to that ‑‑
25 MS. MILLER: Objection. Official business internal
to
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1 the affairs of that foreign government.
2 THE COURT: Sustained.
3 MR. MENDEZ: If I paraphrased, I am sorry. You read
4 it.
5 You have here in addition to that, it is the
6 government that must prove beyond a reasonable doubt that
these
7 men do not fall within that statutory exception.
8 The government has to approve it doesn't apply but in
9 fact what the government's proof actually shows is that it
does
10 apply and you have that by the repeated references to them and
11 Mr. Gonzalez is an illegal officer, an intelligence officer,
an
12 official of the Ministry of the Interior and you have it in
13 their own documents. You have for example, DAV 109 in
14 evidence, it couldn't state it any more clearly. One document
15 here where it says the priority is Operation Giron, also says,
16 Oscar, who is this man, never a doubt about it, never a denial
17 about it; Oscar will temporarily relieve Allan's case.
Oscar's
18 departure from CP occurred on Monday June 29 and he should
19 return at the end of October or beginning of November this
20 year.
21 Oscar is here temporarily in the United States as an
22 official of the Cuban Government to do what? To follow these
23 people around, to monitor their activities, to engage in
24 conduct which I submit to you falls within the meaning of
25 business internal to the affairs of Cuba.
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1 The government's own evidence shows that what
Fernando
2 Gonzalez was doing here was temporarily acting as an official
3 of the Cuban Government engaged, as it says here, conducting
4 official business internal to the affairs of that country.
5 That is why it is more to keep these jury
instructions
6 in mind, because once you have that and you know what it is,
7 what the filtering procession is you have to go through, you
8 will see much of what was introduced into evidence is
9 unnecessary for you to do your jobs and you will also, I hope,
10 realize why it is important, why I have been introducing the
11 evidence I have been introducing because it is important for
12 you to consider that evidence in light of the jury
13 instructions.
14 I said the government was trying to block the sun
with
15 a finger or thumb and what I meant by that is, you have been
16 given a lot of information you really don't need to make up
17 your minds and we saw all those photographs of Fernando
18 Gonzalez coming in and out of the apartment. We saw 35 agents
19 trailing Luis Medina and videotaping him as he gave a set of
20 documents over to some other Cuban official in New York. We
21 have been exposed to so much information that really is
besides
22 the point, and what I am asking you to keep in mind is,
whether
23 the government has proved beyond a reasonable doubt that
24 Fernando Gonzalez, Ruben Campa, was acting with that criminal
25 state of mind that he must act in order to be convicted or
RICHARD A. KAUFMAN, RMR, NP
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1 guilty of these crimes.
2 We are not here to decide whether Cuba is a good
3 country or not, whether we agree with their form of Government
4 or not. We are not here to decide whether that is the kind of
5 place we want to live in or not. We are here to decide
whether
6 under our system of justice, the one that we hold dear, the
one
7 that is ours, that we have grown up with, whether the
8 government can possibly ask you to convict these men of crimes
9 with the kind of evidence that they have been able to put
10 together.
11 Again I will talk about Fernando Gonzalez. Whether
12 the government can show not only was he sending reports about
13 bombs in the Miami River or the camp at F 4; whether he was
14 acting with that kind of criminal mentality that the law
15 requires and what the evidence shows is quite to the contrary.
16 That Fernando Gonzalez was acting in good faith. That
Fernando
17 Gonzalez was not trying to hurt anybody here. He was not
18 trying to subvert our system of government. Fernando Gonzalez
19 was trying to save his own country, and when you have been
20 given so much evidence about his use of the false
21 identification documents and even though that he really wasn't
22 an issue at all and we told you from the beginning he really
23 wasn't Ruben Campa and even after we did that and proved he
24 wasn't, the government produced transcripts of an initial
25 appearance back in 1998 where again he said he was Ruben
RICHARD A. KAUFMAN, RMR, NP
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1 Campa. The only point of that I can see is to try to get you
2 to feel that somehow Fernando Gonzalez is a bad person, that
he
3 is to be blamed, he is to be faulted and in fact he is to be
4 convicted because somehow he has done this horrible thing
which
5 was to adopt the identity of someone who has died.
6 That is not an issue in this case. We can go on and
7 on why someone needs identities and there is no disrespect to
8 the family of this child who died at an early age and there
was
9 no attempt to malign or somehow damage that person's memory.
10 The truth is as you have seen from some of the evidence in
this
11 case, when you are working against some of these
organizations,
12 you really have to have an undercover identity.
13 This man Godoy who talked to us about being recruited
14 to blow up the Tropicana, he told us when he returned to Cuba,
15 the people he was staying with in Miami had their house fire
16 bombed because people realized who he was and realized where
he
17 was staying and bombed his house.
18 If you are here and you are working against these
19 groups, you really can't use your own name and I guess you
20 could make one up from thin air; but that is the reality of
the
21 situation. He has family in Cuba and you can't use your own
22 name, any more than Agent Lopez when he did his undercover
work
23 with Frometa, he used a false name and a false identity. He
24 didn't say he was Agent Lopez, he said he was someone else.
25 The only point in hammering that point is to give you
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1 a bad taste for this man, but you will see, I think, through
2 the course of the trial and the testimony that Fernando
3 Gonzalez is actually a decent man. He is respectful. You saw
4 Agent Berlingeri who arrested him say he was fine, he was
5 respectful. He didn't bad mouth him. He answered his
6 questions. He said he was Ruben Campa which wasn't the truth
7 but he didn't try to disrespect him or do anything like that.
8 You heard from his landlord who said this was a
decent
9 guy, he kept the house fine. Everything is fine. There is no
10 one who has come in here and said he is anything but someone
11 who loves his family and loves his country and that is in some
12 of those documents where he says in his own words and you were
13 read that a few days ago or yesterday, he said in his own
14 words, I am doing this so our families in Cuba can sleep
better
15 at night. Those are his own words.
16 One of the things to keep in mind is, when you have
17 people like Ruben Campa, Fernando Gonzalez here, on the one
18 hand and you have people like Frometa and Basulto and other
19 people on the other hand, are we better or worse off because
of
20 that.
21 I submit to you, what stands between some of these
22 people in this community, some of these extremists, what
stands
23 between them and what stands between them and those bombs that
24 go off in Cuba and the hotels that have killed at least one
25 Italian tourist, that the best guarantee that those kinds of
RICHARD A. KAUFMAN, RMR, NP
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1 actions can be prevented are these men and nobody is trying to
2 usurp the authority of the U.S. Government or the FBI or
3 anybody else. Everybody is working towards the same goal; but
4 the FBI and some of these other agencies have bigger fish to
5 fry, apparently. It is not as important to some of these
6 government law enforcement officials to put a stop to this as
7 it is to the people who are actually victims of it.
8 Maybe some day there will be a day and a time when we
9 don't have people who are full of hate, who are full of anger,
10 who don't respect the law. Hopefully there will be a day when
11 we don't have people like that around in our communities, in
12 our schools, in our stores, driving on our streets; but until
13 that day comes, until we learn to live with respect toward
each
14 other with understanding, with tolerance towards other people
15 and other countries, we will need to have people kept an eye
16 on.
17 The more people that can keep an eye on Frometa, the
18 better we are. Rather than have 35 agents trail Ruben Campa
19 around, have one of them watch Frometa. As soon as the ATF
can
20 do that, the FBI can do that, the City of Miami Police can do
21 that, until Frometa goes up to his maker and is replaced with
22 other kinds of people who still have hatred in their hearts,
23 this kind of situation will have to exist.
24 You are in an unenviable position. If you look at
25 your calendars ‑‑ those of us who are here are made to do
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1 this. These are our jobs, our lives. You have been taken out
2 of your regular lives and been dragged into this situation
3 which you handled marvelously for a very long time and you are
4 being asked to make a decision in a case involving alleged
5 Cuban spies in Miami and that is why you were asked so many
6 questions before you were asked to be jurors about your
7 feelings about that situation, because everyone realizes that
8 it is a touchy situation. You were asked about whether you
9 could be fair to the defendants despite the feelings that some
10 of your friends or family may have and each of you who are
11 sitting here today told us that you could judge these men
based
12 solely on the evidence.
13 The truth is, nobody out there knows what is going on
14 in this courtroom except you and those of us who are here
every
15 day. Out there people guess, surmise, innuendos, hunches, but
16 you are the actual ones who know what is going on. That is
why
17 the Judge will tell you, you are the judges of the facts.
18 Judge Lenard will tell us what the law is and will tell you.
19 When she sustains an objection, that is the last word. She is
20 the authority on the law and as the Court will tell you, you
21 are the authority on the facts. What you decide in this case
22 guilty or not guilty is entirely your decision. You will
never
23 have to explain it to anybody. The Judge will tell you that.
24 You don't have to explain it to anybody, you don't have to
give
25 any interviews. It is your decision based on this record and
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1 nobody can mess with that decision. It is your decision.
2 I am sure because of the nature of this case, the
3 nature of this community that you will feel all kinds of
4 pressures that don't have anything to do with the facts of
this
5 case; but I ask you to put them aside and I think Judge Lenard
6 will tell you, you shouldn't let sympathy or prejudice come
7 into play. You should make your decision based on the
evidence
8 that has been presented at trial and it takes a lot of
9 courage. You have that courage or you would have thought
about
10 a way to get out of this case a long time ago it you have sat
11 through the trial, you have heard all the evidence, you have
12 paid attention and now it is your time to make a decision you
13 will live with for a very long time and everyone will live
with
14 you for a long time.
15 All I will ask you is to be faithful to the case,
16 faithful to the evidence that has been presented, faithful to
17 the law and you will find that Fernando Gonzalez was here only
18 to monitor the activities of these groups, because there is no
19 doubt he had a meeting with Santos and what have you; but that
20 is the overwhelming interest he had in our community. He did
21 not have that criminal state of mind he needs to have in order
22 to be convicted of all those offenses that charge him with
23 being willful. That he was not an agent of the foreign
24 government as it is defined in the law. The only thing they
25 have proven against Fernando Gonzalez and we have not denied
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1 it; is that he has been here under a false identity. That is
2 why I scratch my head and you may have scratched your head for
3 months as more and more evidence about that came into
4 evidence. He is not guilty of the main charges against him.
5 When I was appointed to represent Fernando Gonzalez I
6 was given that responsibility to make sure that his rights
were
7 guarded, that his constitutional rights were protected.
8 I will sit down now and I won't talk to you again,
but
9 I pass on to you that responsibility, because I can no longer
10 respond to what the government says in their rebuttal about
11 Fernando Gonzalez. That is it, I am done, but I pass that on
12 to you. I am sure you will treasure, you will protect those
13 rights as you are sworn to do and I am sure you will come to
14 the right and just result in this very difficult case that
15 requires courage and conviction on your part.
16 Thank you very much.
17 THE COURT: Counsel, please approach.
18 (Side bar.)
19 THE COURT: Who is next up?
20 MR. HOROWITZ: I am next.
21 THE COURT: Do you want to begin today?
22 MR. HOROWITZ: We have been at it since 11:30 without
23 a break. It is at the Court's discretion but they are tired.
24 THE COURT: We will break today as Mr. Blumenfeld
25 would say, I need a recess.
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U.S. COURTHOUSE, MIAMI, FLORIDA 33128
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1 I want to distribute to you the jury instruction
2 packet that I have been diligently working on for the last
3 several days that hopefully Lisa is running your copies now,
4 and I know there are some issues that Mr. McKenna had
mentioned
5 with regard to placement.
6 I will dismiss them indicating it has been a long
7 extended morning for them. I wanted to make sure Mr. Mendez
8 had all the time he needed and we will recess for a few
minutes
9 then come back and I will distribute the packet to you.
10 MR. KASTRENAKES: I know I went through the
11 instructions and I caught a bunch of little typos ‑‑
12 THE COURT: As I indicated to you before, what was
13 provided to you was an extremely rough copy that Lisa had not
14 reviewed and that I had not reviewed. Since I had indicated
to
15 counsel for the government that you would have a rough copy to
16 prepare your closing argument, I came in on Friday and met
that
17 commitment because I had committed to you.
18 What you will be getting now is a totally different
19 packet that Lisa has now gone over and I have gone over
several
20 times. That is not to say there may not be a typo in it and
21 certainly if there is any problems with it you can certainly
22 bring it to my attention once I have reviewed it, but this is
a
23 totally different packet from what you have received that has
24 been reviewed by both the courtroom deputy and myself several
25 times, so I would expect ‑‑
RICHARD A. KAUFMAN, RMR, NP
U.S. COURTHOUSE, MIAMI, FLORIDA 33128
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1 MR. KASTRENAKES: When would be the appropriate time
2 to collectively bring those matters to your attention.
3 THE COURT: You have to review this packet.
4 Mr. McKenna had brought up some placement issues in regard to
5 the ICAO instructions and we could take those up after the
6 break. I am sure he is ready to take those up and I suspect
7 you will want to review the packet and go through them and if
8 there are any typographical errors or errors in ruling you
will
9 bring it to my attention, but I am sure you are not prepared
to
10 do that now since I am going to distribute the packets to you.
11 The packets, before I indicated, was a very rough
12 draft to counsel. It was not meant to go anywhere other than
13 your eyes only for closing.
14 (Open court.)
15 THE COURT: It has been a long extended morning and I
16 know you did not get your second break, so we are going to
17 break a little bit early. You will get your second break now,
18 to continue with additional closing argument tomorrow.
19 We are going to take a break. Do not discuss this
20 case amongst yourselves or anyone else. Have no contact with
21 anyone whatsoever associated with the trial. Do not read or
22 listen to anything touching on this matter in any way.
23 Have a nice afternoon and evening. Be back in the
24 jury room tomorrow morning at 8:45.
25 (Jury leaves room.)
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U.S. COURTHOUSE, MIAMI, FLORIDA 33128
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1 (Open court. Jury not present.)
2 THE COURT: We are back on United States of America
3 versus Gerardo Hernandez, et al., Case Number 98‑721.
4 Counsel states their appearances again for the
5 record.
6 (All parties present.)
7 THE COURT: Counsel have now received their copies of
8 the jury instructions for your review and correction of either
9 any rules or any typographical corrections that will be
10 distributed and read to the jury and after it is read to the
11 jury, filed in the record, after the jury is instructed.
12 I want to correct one matter that I stated in error
on
13 the record, and that is, that a copy of the indictment always
14 goes back to the jury room. I stated that in error. That was
15 incorrect. It is provided for in the instructions and in
every
16 criminal trial I had, a copy of the indictment is sent back to
17 the jury, one copy. I stated that in error thinking of other
18 matters. I wanted to correct that.
19 There was one issue and I know you haven't had a
20 chance to review this packet which has now been reviewed by
the
21 courtroom deputy and the Court and I have gone over it several
22 times. That is not to say there is not a typographical error
23 in it, but I do believe it is in compliance with the rules I
24 have issued in this case and hopefully there are no
25 typographical errors, but you can certainly bring it to my
RICHARD A. KAUFMAN, RMR, NP
U.S. COURTHOUSE, MIAMI, FLORIDA 33128
14169
1 attention once you have reviewed the packet.
2 Mr. McKenna indicated a placement issue and as long
as
3 we had a few moments, I thought we should take it up now and
4 your copies are stapled. I indicated to you I would listen to
5 your argument, Mr. McKenna, with regard to the placement.
6 MR. McKENNA: I will make the argument from right
7 here.
8 As I indicated, I am not requesting any substantive
9 changes at all. It is just the placement of my theory of
10 defense instruction and unfortunately, mine doesn't have pages
11 yet ‑‑
12 THE COURT: I don't know that they will have pages.
13 Which instruction are you referring to?
14 MR. McKENNA: Mine says, you are instructed every
15 nation has complete and exclusive sovereignty over the air
16 space.
17 THE COURT: That is the instruction on ICAO.
18 MR. McKENNA: After that the following page, it is
for
19 you to determine whether or not an aircraft acted as a state
20 aircraft or a civil aircraft.
21 THE COURT: Yes. The first instruction on that is
the
22 requested instruction by the government as to ICAO, yours is
23 the second and the third instruction is the determination of
24 civil or state aircraft.
25 MR. McKENNA: My request is that my theory of defense
RICHARD A. KAUFMAN, RMR, NP
U.S. COURTHOUSE, MIAMI, FLORIDA 33128
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1 instruction follow the Court's instruction as to Count 3.
2 First you will read the conspiracy pattern, then the
3 substantive pattern and I was going to ask that this go
4 directly after that followed by, it is for you to determine
and
5 the government follow mine.
6 The government's request basically was as a follow‑up
7 to my instruction. I don't think theirs should go first. I
8 think theirs should follow mine. Mine is a theory of defense
9 instruction you granted and I think its logical placement
10 within the overall package of instructions is right after you
11 instruct the jury with regard to Count 3 and you will give my
12 theory, then the follow‑up, it is for you to determine and
13 after that give the government's requested instruction. I
14 think that would be the most logical and what would make most
15 sense, because it kind of gets lost among other instructions
16 that don't have anything to do with Count 3. This has
17 exclusively to do with Count 3 and I am trying to keep all of
18 that together.
19 THE COURT: Does the government have a position?
20 MS. MILLER: Can we have a moment? I want to make
21 sure I understand Mr. McKenna's request. He wants to have all
22 three of these particular instructions interpolated in where
23 the substantive instruction is, the offense instruction. Then
24 he wants to have them in the order of first the sovereignty
25 instruction then our ICAO provision and the state or civil
RICHARD A. KAUFMAN, RMR, NP
U.S. COURTHOUSE, MIAMI, FLORIDA 33128
14171
1 aircraft instruction; is that correct?
2 MR. McKENNA: No. I was going to request first to
3 have my theory of defense.
4 THE COURT: The sovereignty instruction.
5 MR. McKENNA: Followed by my second requested
6 instruction, it is for you to determine, followed by the
7 government's. You lose the effectiveness ‑‑
8 MS. MILLER: I don't want to argue. I am trying to
9 understand.
10 You want that whole unit of three to be interpolated
11 in after the substantive instruction?
12 MR. McKENNA: Right.
13 THE COURT: The Count 3 conspiracy pattern, Count 3
14 pattern, 1111 then these three instructions sovereignty
15 determining civil or state aircraft and the ICAO principles
and
16 areas of interception.
17 MS. MILLER: Now could we have a moment?
18 THE COURT: Sure.
19 (Interruption.)
20 MS. MILLER: Your Honor, we do not want to see the
21 theory of defense instructions move from where they
22 traditionally are towards the end of the instructions as we
23 have seen done with Mr. Mendez' theory of defense instruction
24 and have it be interpolated in with the actual offense
25 instructions. We think that breaks up the flow and also runs
RICHARD A. KAUFMAN, RMR, NP
U.S. COURTHOUSE, MIAMI, FLORIDA 33128
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1 the risk of blurring the distinction between these offense
2 instructions which are clearly the Court's view of the theory
3 and the theory of defense which comes later.
4 We object to that portion of Mr. McKenna's request.
5 To the extent he wants to reorder the three
6 instructions as he stated, we do not object to his reordering
7 them in the way he requests and we think obviously the unit of
8 three should remain together but we respectfully submit that
9 unit of three once reordered should remain in place in the
10 instructions where the Court has placed it.
11 MR. McKENNA: My fear, Your Honor, in putting it
where
12 it is now, the jury could be confused as to what that applies
13 to, and there are so many other instructions. There are a lot
14 of complicated instructions in this case. I prefer it to be
15 logically where the jury will understand.
16 THE COURT: How about if the instruction was
17 identified as Mr. Mendez' theory of defense instruction ‑‑
18 actually I think I inserted this language, in regard to Count
1
19 of the second superseding indictment. If it said in regard to
20 Count 3 of the second superseding indictment?
21 MR. McKENNA: If all it says in regard to Count 3 ‑‑
22 THE COURT: It would say the remainder of the
23 instruction.
24 MR. McKENNA: Yes.
25 THE COURT: It would just be an introduction ‑‑ in
RICHARD A. KAUFMAN, RMR, NP
U.S. COURTHOUSE, MIAMI, FLORIDA 33128
14173
1 regard to Count 3 of the second superceding indictment, you
are
2 instructed that every nation has complete and exclusive
3 sovereignty over the air space above its territory; etc.,
etc.,
4 to the end.
5 MR. McKENNA: That would be all right, Your Honor, if
6 you think you could add this with regard to Count 3 which
7 charges the defendant Gerardo Hernandez with conspiracy to
8 commit premeditated murder ‑‑ you could say as to Count 3.
9 THE COURT: I really believe this jury will
understand
10 what that instruction relates to.
11 MR. McKENNA: That will be okay, Judge.
12 THE COURT: It will remain where it is in the packet
13 which is after the offense instruction and I will insert ‑‑
14 first of all ‑‑ strike that, I am sorry.
15 As to the sovereignty instruction, I will insert, in
16 regard to Count 3 of the second superseding indictment ‑‑
17 MR. KASTRENAKES: The only thing I see that is
missing
18 is the typical language that you included with respect to
19 Mr. Mendez which was posited as a theory of defense
20 instruction. I thought it would be included. It is the
21 defendant's theory of the case ‑‑
22 THE COURT: That was not the instruction I approved
by
23 Mr. McKenna. He submitted three instructions and this is
24 number three, I believe, and that is what I approved.
25 It is actually a statement of the law because it
comes
RICHARD A. KAUFMAN, RMR, NP
U.S. COURTHOUSE, MIAMI, FLORIDA 33128
14174
1 under the articles of ICAO which the United States has signed
2 on to.
3 MR. KASTRENAKES: Okay. I may be confused.
4 THE COURT: I did approve the instruction as it is
5 written.
6 It will be the sovereignty instruction first. Next
7 will be, it is for you to determine whether or not an aircraft
8 acted as a state aircraft or civil aircraft and the
9 government's instruction in regard to the principles of ICAO
10 and the interception procedures under ICAO would be third.
11 Lisa tells me as we speak she is putting in page
12 numbers because it is difficult without them; but she is
13 trying. It comes right after, correct me if I am wrong, it
14 comes right after Title 18 United States Code Section 2, which
15 I also inserted into the pattern because the pattern does not
16 identify the code and I have had questions come back from
17 juries what is Title 18 United States Code Section 2.
18 In the normal course of affairs I insert that
language
19 which I took the liberty to do, and it will come right after
20 that instruction and before the references to the Neutrality
21 Act.
22 I know that you have the official packets from the
23 Court for your review, you can review them and make sure that
24 what is contained in those packets is the rules made by the
25 Court and also review it for any typographical errors that you
RICHARD A. KAUFMAN, RMR, NP
U.S. COURTHOUSE, MIAMI, FLORIDA 33128
14175
1 see and you can bring it to my attention and we can take it up
2 tomorrow after closings.
3 Anything else we need to take up at this time?
4 We are in recess for the day.
5
6 o0o
7
8 I certify that the foregoing is a correct
9 transcript from the record of proceedings in the
10 above‑entitled matter.
11
12 _______ _______________________
13 Date Official Court Reporter
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RICHARD A. KAUFMAN, RMR, NP
U.S. COURTHOUSE, MIAMI, FLORIDA 33128
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