Thursday, January 20, 2011

Searching for truth in the Posada Carriles case

Anti-Castro militant Luis Posada Carriles is on trial because he allegedly lied to U.S. immigration authorities in 2005 and 2006.
He was indicted in 2007, but got off on a technicality. U.S. District Court Judge Kathleen Cardone threw out crucial tapes and transcripts of his 2006 naturalization interview and then dismissed the indictment.
In 2008, the U.S. Circuit Court of Appeals said Cardone was wrong and should not have tossed out the indictment.
Prosecutors filed a new indictment against the former CIA operative in 2009 and this time they charged him with:
  • Two counts of perjury
  • One count of obstruction of proceedings
  • One count of naturalization fraud
  • Seven counts of making a false statement in a naturalization proceeding.
Posada Carriles is back before Cardone, the same judge who threw out the 2007 indictment.
The appeals court decision makes clear to me that 1) Cardone shouldn't have dismissed the indictment and 2) prosecutors have a strong case. It's fairly obvious that Posada Carriles lied. But that doesn't necessarily mean he'll be convicted.
The defense can claim a lot of things:
  • He was confused, he didn't understand, he may have lied, but they were small lies, lies that don't matter.
  • He's a patriot, he loves the United States, he's loyal, he served in the U.S. military.
  • He fought communism, he risked his life, he's a hero, he's a warrior.
  • He's been wounded, his health is poor, he's frail, he's an old man.
  • He's an immigrant, he's a victim, prosecutors were unfair, the government is conspiring against him.
The defense can claim all that - and more. But if this case is simply about who's telling the truth, then the government should win.

It's not that simple, of course. Juries can be fickle. They don't always make decisions based on the evidence. And if they believe the government is persecuting a defendant, they sometimes side with the defendant no matter what the facts say.
It will be interesting to see what happens if the jury finds Posada Carriles is not guilty. Under the law, he is still in the United States illegally. He would, in theory at least, be subject to deportation. But who would take him?
And what would the federal government do then, after spending many hundreds of thousands of dollars - our tax dollars - trying to put him in jail?
We'll have to wait and see.
Excerpts from the Circuit Court decision - download 18-page PDF - are below. They provide useful background for anyone trying to understand this complicated, long-running case.

How Posada Carriles entered the United States in 2005:
Posada maintained that he had entered the United States by land through Mexico with the assistance of a coyote (this was apparently the story that he told immigration officials at the May 21, 2005, interview), but media reports as well as public statements by Castro indicated that he had actually entered by sea into Miami aboard the vessel SANTRINA. There were reasons to suspect that this in fact represented the truth. The SANTRINA was owned by the Caribe Foundation, and on November 15, 2005, federal agents conducting an unrelated search of that organization's Miami offices discovered a Guatemalan passport bearing Posada's picture issued in the name of "Manuel Enrique Castillo Lopez." This passport indicated that "Castillo Lopez" had traveled from Guatemala to the Mexican province of Quitana Roo, in which the city of Cancun is located, in March 2005. Documents provided by the government of Mexico revealed that the SANTRINA had run aground at Isla Mujeres, an island off the coast of Cancun, on March 15, 2005.
Whether Posada Carriles understands English. These comments were in reference to the defendant's 2006 naturalization interview:
The interview was conducted in a mixture of English and Spanish. At times questions would be put to Posada in English and translated into Spanish by the interpreter; Posada would then give answers in Spanish which would be translated into English by the interpreter. At other times, however, Posada simply listened to the questions in English and responded in English without the use of the interpreter.
Why Cardone threw out crucial tapes and transcripts that could have led to Posada Carriles' conviction:
On May 8, 2007, the district court issued an order excluding the tapes and transcripts, suppressing the statements made at the interview, and further dismissing the indictment. After noting that it had thoroughly reviewed the enhanced digital copy of the tapes multiple times with the aid of a court-certified interpreter, the district court first found that the digital copy was inaudible at times, but that the inaudible portions were not so substantial as to render the digital copy untrustworthy. It next found inaccuracies in the transcript of the interview that made the transcript unreliable, although it noted that if the indictment were not dismissed, there would still be time for the government to submit a new version of the transcript before trial.
Cardone's objections to the federal government's tactics:
The district court determined that "there was no genuine [naturalization] interview and the entire interview was, instead, a pretext for a criminal investigation," and further found that the government engaged in "fraud, deceit, and trickery" by misrepresenting to Posada the purpose of the questions at the interview. In addition, it found the government's tactics "grossly shocking and so outrageous as to violate the universal sense of justice." Stating that it was "left with no choice," the district court dismissed the indictment.
The federal government appealed Cardone's ruling. The appeals court agreed with the government and said Cardone should not have dismissed the indictment. The appeals court wrote:
As a preliminary matter, we agree with the government that the district court erred in dismissing the portions of the indictment charging Posada with making false statements on his Form N-400 naturalization application. The government conduct identified by the district court as the grounds for dismissing the indictment simply has no relevance to these alleged offenses, which were completed before USCIS began adjudicating Posada'sPosada with making false statements at the naturalization interview. As we explain, neither of the grounds put forward by the district court—grounds which we have loosely characterized as government deception and outrageous conduct—supports the drastic remedy of dismissal of the indictment. Before turning to the record, though, we first examine the relevant law.
The circuit court's reasoning, excerpts:
It was not permissible for the district court to suppress Posada's statements at the interview unless translation errors affected the crucial questions and answers relevant to the false statements charged in the indictment in such a way that these statements, as a matter of law, may not form the basis for a false statements conviction. Otherwise the matter of Posada's understanding of the questions should have been left to the jury.

The indictment charges that Posada falsely stated that he never had any type of documentation, passport, or identification from Guatemala. The district court 365*365 identified no translation errors in the portion of the interview relating to this topic, and we see nothing that would suggest that Posada did not understand the relevant questions. The interviewer asked, "Guatemala, have you ever had a passport from Guatemala?" This was translated as, "Guatemala, ¿usted tuvo un pasaporte de Guatemala?" Posada replied, "No." The interviewer later asked, "Nothing from Guatemala, ever?" This was translated as "Nunca, ningun de Guatemala," to which Posada replied, "Que yo recuerdo, no," or, in English, "That I remember, no." There is nothing fundamentally ambiguous about this exchange.

The indictment also charges that Posada falsely stated that he never saw the SANTRINA while traveling to the United States in March 2005 and that he never saw several individuals on board the ship at that time. From the discussion immediately preceding the crucial questions and answers on this point it is clear that Posada was aware of reports that he had arrived into Miami aboard the SANTRINA, and was also aware that Castro had made statements to that effect. Posada was then asked, "When you were in Mexico, did you ever see the SANTRINA?" This was translated as, "¿Cuando usted estuvo en Mexico, usted vio el SANTRINA?" Posada replied, "No." The topic of discussion then turned to the various other individuals that the government believed were aboard the SANTRINA with Posada. After these individuals were named, Posada was asked, "Did you see them at all while you were in Mexico?" This was translated as, "¿Cuando usted estuvo en Mexico usted alguna vez a estata personas las vio?" Posada replied, "No." Again, there is no basis for concluding here that, because of translation errors or otherwise, Posada could not have understood these questions as a matter of law.

The same can be said about the questions and answers relevant to the indictment's charge that Posada falsely stated that he was never in Cancun or Isla Mujeres when traveling to the United States in March 2005. Posada was asked, "Were you ever, in the trip to the United States in March of 2005, were you ever in Cancun?" This was translated as, "En el viaje que usted hizo a los Estados Unidos en marzo de 2005, ¿usted estuvo en Cancun?" Posada answered, "No." He was then asked, "Were you ever in Isla Mujeres?" Again he answered, "No."

In sum, the district court erred in suppressing Posada's statements at the interview because it did not focus on the specific questions and answers relevant to the false statements charged in the indictment. And since there is nothing fundamentally ambiguous about these questions and answers (whether by reason of faulty translation or otherwise), they should not have been suppressed.

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