Tuesday, January 25, 2011

Prosecutors ask judge to admit testimony of controversial FBI informant

Prosecutors today asked U.S. District Court Judge Kathleen Cardone to reconsider her ruling throwing out the testimony of Gilberto Abascal, their star witness against Luis Posada Carriles.
Abascal, an FBI informant, has drawn condemnation from some Cuban exiles who say he has also reported to Cuban intelligence agents. He was aboard a shrimping boat called the Santrina that went to Isla Mujeres, Mexico, in 2005 to pick up Posada Carriles and smuggle him to Miami.
Cardone's ruling on Monday is damaging to the government's case against Posada Carriles. In a document filed Tuesday, prosecutors wrote:
The testimony of Mr. Gilberto Abascal clearly establishes that the individuals who sailed on the Santrina in March 2005 did conspire to sail to Mexico and smuggle the defendant back into the United States.
As such, any statement exchanged between the individuals aboard the boat in furtherance of that plan is admissible as nonhearsay evidence in this case.
Rule 801(d)(2)(E) of the Federal Rules of Evidence provides that a statement is not
hearsay if it is made "by a coconspirator of a party during the course and in furtherance of the conspiracy."
...the United States has already admitted evidence establishing that a conspiracy existed among the five individuals who had sailed from Miami, Florida to Isla Mujeres, Mexico, to rendezvous with the defendant and bring him back to Miami. The evidence already admitted in this matter consists of the testimony of Mr. Gilberto Abascal (and related
As the case in chief continues, the United States will call witnesses who will provide additional proof that this conspiracy existed, including:
  • An individual who did not sail to Isla Mujeres aboard the Santrina in March 2005 but whose passport was taken on the voyage so that the defendant could use it during the trip if necessary.
  • Multiple agents from the Department of Homeland Security who will testify about documents obtained during a search warrant, as well as a Grand Jury investigation, which indicate that Santiago Alvarez planned the trip to Isla Mujeres in order to rendezvous with the defendant and bring him back to Miami.
Several statements made in furtherance of the conspiracy and witnessed by Mr. Abascal while he was aboard the Santrina in March 2005 are admissible under both Rule 801(d)(2)(E) and Fifth Circuit precedent. These statements include:
  • The announcement by Santiago Alvarez to his Santrina crew members that the real purpose of the trip to Isla Mujeres was torendevous with the defendant in Mexico and bring him back to Miami.
  • The admonition by Santiago Alvarez during the Santrina's voyage back to Miami that Mr. Abascal and his other shipmates, including the defendant, should remain quiet about the smuggling of the defendant.
  • The statement by Santiago Alvarez to his shipmates that the Santrina would stop in the Bahamas on the way back to Miami in order to leave a smaller boat there.
Under Rule 801(d)(2)(E) of the Federal Rules of Evidence and Fifth Circuit authority, these and other statements made during the course of the voyage are admissible as evidence. They provide probative evidence relating to all those Counts which involve the voyage of the Santrina (see note 1, supra). This evidence demonstrates that the group of individuals aboard the vessel were working jointly both to execute and cover up the illegal plan which they engaged to bring the defendant into the United States.

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