By José Pertierra

Yesterday was a rough day. Today the witness reentered the courtroom with melancholy eyes, a slow step, and his shoulders sagging from the weight of his life’s burdens. But the Government did not have to force Tony Álvarez to come to El Paso to testify against Luis Posada Carriles. He offered of his own free will, just as he did 15 years ago, when he warned Guatemalan intelligence and the FBI that Posada Carriles was involved in a terrorist conspiracy to place bombs in the most famous hotels and restaurants in Cuba.

Limits set on testimony

Yesterday Judge Kathleen Cardone ruled that the jury would not be allowed to see a key document that links Posada Carriles to the bombing campaign in Havana. “It does not contain sufficient characteristics to satisfy the rules of evidence,” she had said tersely.

This morning, prosecutor Jerome Teresinski informed the judge, “Your Honor, we’ve told the witness that he is not allowed to speak of the fax.” And thus, the legal boundaries around what Tony Álvarez could say were drawn.

The first questions posed to him by Teresinski were softballs. They were meant to simply get the witness to recollect things that he had seen or heard in Guatemala in August 1997. But Teresinski’s questioning had to be more delicate the closer he got closer to the forbidden subject matter.

Trying to avoid objections to any questions that would elicit hearsay evidence, Teresinski asked the witness about the things that Álvarez had seen with his own eyes rather than what he had heard someone else say. A difficult task.

“When you returned from your trip, did you see your secretary?” asked Teresinski. “Yes,” said Álvarez hesitantly, not knowing how much more he could say. “How did you interpret the behavior she showed?” asked Teresinski. “I saw that she was worried,” answered the witness. “Did your secretary give you any information that was not related to the business?” asked the prosecutor.

The defense attorney immediately objected. “That question is not appropriate, Your Honor. The prosecutor is leading the witness.” “Don’t lead the witness, Mr. Teresinski,” the judge scolded.

Teresinski reframed the question. “What did you do after speaking with your secretary?” “I spoke to someone in the Guatemalan government,” answered Tony Álvarez.

“Why?” Teresinski asked.

The witness hesitated and gave a vague response, “Because of some suspicious activities that had nothing to do with my business.”

“What else did you do?” asked the prosecutor.

“I wrote a letter to President Arzú,” the witness answered.

“Did you share the letter with anyone else?” asked Teresinski.

“Yes. With the Miami Herald and the New York Times,” said the witness. “I followed the suggestion from Diego Arzú, the president’s son, and spoke with Presidential Intelligence.”

It may be that Álvarez is still not aware that Posada Carriles was working with Guatemalan Presidential Intelligence during the administration of President Vinicio Cerezo Arévalo at the end of the 1980s. Although President Arzú’s was a different era, many of Cerezo’s intelligence officers had remained in place. It is not surprising that the investigation didn’t go anywhere.

Hearsay

Teresinski and his witness were in the legal straightjacket known as hearsay. It restrained their attempts to get the witness to articulate key information for the jury regarding Posada Carriles’ role in the bombing campaign in Havana.

Hearsay is a third-party statement that is introduced for the truth of what it asserts. The rules of evidence render it inadmissible. Although there are some exceptions to it, the hearsay rule is the defense attorney’s best friend—since black-letter law devalues hearsay as nothing more than an unsubstantiated and unreliable rumor.

Teresinski charged ahead. He asked his witness, “Do you recall the contents of the letter?”

“Hearsay!” objected defense attorney Arturo Hernández.

This time the judge overruled the objection. She said that although the witness may not testify about what the letter said, he was allowed to tell the jury that he remembered what it said—but only that he remembered it.

“Do you remember what Posada Carriles told Pepe Álvarez in your office?” asked Teresinski.

“Hearsay!” objected Hernández again, and the judge repeated her ruling. The witness could testify that he remembered someone having said something to him, but could not testify as to what that something was.<

Frustrated by the legal straightjacket, Teresinski then showed the witness—although not the jury—a copy of the letter that Álvarez had said he had drafted and given to President Arzú’s son. He asked the witness to read it to himself. He then asked him to place the letter face down on the desk in front of him.

“Without reading from the letter or looking at it again, can you tell us what you remember you wrote in the letter?” asked Teresinski.

The Chicano juror looked at the African American sitting next to him with a puzzled expression. Both looked confused. It was clear that neither understood what the prosecutor was trying to accomplish. Perhaps they were asking themselves, “What does the secretary have to do with all of this?  What suspicious activities are they talking about? Why don’t they tell us what these were? Why can’t we read the letter? Wouldn’t it make more sense for the witness to read the letter instead of turning it face down and then trying to remember what it says?”

The jurors don’t know it, but they will not get to read that letter—nor the Solo fax—because Judge Cardone already ruled those inadmissible.

The judge did leave an opening for Teresinski. “Parts of the letter may be told, but other parts are hearsay,” the judge had said.

Trying to squeeze through the tiny legal opening, Teresinski asked, “What did you do after you wrote the letter?”

It was difficult to see the witness while he testified, because he is very short and the television monitor in front of him covered up his entire face. The plump woman on the first row of the jury box signaled with her hands to the prosecutor that she couldn’t see the witness. She gestured for them to move the monitor. Teresinski called the matter to the attention of the clerk of the court, who walked to the witness stand and adjusted the monitor so that Tony Álvarez could be seen. It was the first time that the jurors had been able to see his face as he testified.

An exception to the hearsay rule allows key testimony in

“I installed a hidden intercom between Pepe Álvarez’s office and my own,” the witness stated. “That was how I heard Posada Carriles talk about money.”

After a private sidebar between the prosecutor and defense attorney, Judge Cardone ruled that the witness could talk about the things that he had heard Posada Carriles, Pepe Álvarez and José Burgos say. “They are part of the same conspiracy,” said the judge, “and therefore their declarations are evidence and are exempt from the exclusive limitations of hearsay.”

All right, then! She had finally loosened the legal straightjacket and allowed Tony Álvarez to say something substantive on the stand.

“How did you know that the voice you heard through the intercom was that of Posada Carriles?” asked Teresinski. Álvarez responded instantly, “Because he has a very peculiar way of speaking,” referring to the speech impediment that Posada Carriles acquired when he lost part of his tongue and half of his chin in an attempt on his life in Guatemala in 1990.

The letter from Tony Álvarez to the president of Guatemala remained excluded as evidence but the judge ruled that the witness could testify as to its contents. He was even allowed to look at it “to refresh his memory.”

An odd scene followed. The witness would look at the letter, read it to himself, turn it over and repeat what he remembered from it. This legal make-believe went on for several minutes.

Yet that is how the witness was able to tell the jury that he had heard Posada Carriles, Pepe Álvarez and José Burgos talking about the best way to send explosive materials to Cuba. “Posada said that he knew someone at Aviateca [the former state airline of Guatemala] who could help get the explosives to Cuba,” the witness said.

Tony Álvarez also declared under oath that he found in his office various materials to make bombs, including calculators, funnels and plastic tubes labeled “Mexican military industries, C-4, dangerous explosives.” He added, “I took them outside city limits and buried them for fear of explosive residues.”

The cross-examination

The cross-examination of the witness by Posada Carriles’ attorney, Arturo Hernández, was typical of his aggressive and off-base style.

“The executions at the Cabaña had already begun when you were in the communist army, hadn’t they?” Hernández began.

“Yes,” answered the witness, not knowing where the question was leading.

“500 a week?” snapped Hernández.

“I don’t believe so,” said Álvarez.

“5,000 altogether?” asked the Miami attorney.

“I don’t think so,” responded the bewildered witness.

“Isn’t it true that communist Cuba convicts people in the morning and executes them in the afternoon?”

Teresinski had heard enough. He shot up from his chair with an objection. The judge finally tried to rein in Hernández. She ruled his question inappropriate and ordered him to “move on.”

Attorney Hernández changed the subject, but stayed the course on his tactics.

Without any supporting evidence, Hernández launched into a new set of questions premised on the witness having been a drug trafficker as well as a money launderer for the Colombian cartel of Pablo Escobar, whom he mistakenly referred to several times as “Pedro Escobar.”

Having exhausted that fantastic line of questioning, Hernández changed the subject again and went further afield. This time the premise was that the witness had maintained a bomb-making lab in Guatemala and that the one who had wanted to introduce explosive materials into Cuba had not been Posada Carriles, but Tony Álvarez himself.

But the crowning glory of today’s brutal cross-examination was the defense attorney’s grilling the witness on his current relationship with his common-law wife.

“Let’s see, Mr. Álvarez, how many wives have you had?” And without waiting to hear the answer, Hernández continued, “To whom were you married in 1997?”

“To Ana,” said Álvarez.

“Was Ana with you in Guatemala?” asked Hernández.

“No, we’d been separated for a number of years. She didn’t want a divorce. I remain married to her, but I live with another woman who is also named Ana,” answered the witness.

And with that the attorney who represents Posada Carriles launched the questions he had been saving for the witness all afternoon. “So you were living with somebody else?”

“Yes”, said the witness.

“So you were married to Ana, and yet you decided to live with another woman?” asked Hernández.

The 75-year old man felt the punch. You could see it in his face. He flushed, embarrassed and in pain, trying to hold back his tears. Álvarez made an effort to tell the jury that he’s not a womanizer—but the defense attorney wouldn’t let him. During cross-examination, the attorney calls the shots. He is allowed to attack with impunity and then hide behind his next question. That is how cross-examination works in courtrooms throughout the land.<

Tears

When Hernández was through with the witness, the judge turned him over to the prosecutor for redirect examination. Teresinski knew that the witness had wanted to explain the matter of his relationships, and so he asked, “What is your partner’s name?”

“Ana Graciela Bonilla,” answered Álvarez, still trying to control his tears. “I love her very much. She has cancer. They took out four tumors recently.”

With these words, the man lost all control. The tears flooded his face, and in a halting voice he said, “The cancer has metastasized. She’s very ill—she’s very, very bad, very bad.” Álvarez went on, “I have a son with her who is 15, but I also have two girls with my wife [also named Ana]. I am in touch with them all the time, even though I don’t live with them.”

Yesterday, Álvarez had explained that his wife had asked that he not divorce her—not an unusual request among Roman Catholic couples of their generation—and he had complied with that request. He lives openly with the woman he loves and who is dying of cancer.

Tony Álvarez will leave El Paso without shame. Can the same be said for Posada Carriles’ defense attorney?

Teresinski asked for a short recess, so the witness could compose himself. At first, the judge did not want to grant it. “We just took a recess less than an hour ago,” she told the prosecutor. Teresinski insisted and told her that the witness needed it.

“Do you need a few minutes to compose yourself?” Judge Cardone asked the witness. “If you would be so kind, a few minutes would do me good,” answered Álvarez, still weeping.

The judge granted a recess of 10 minutes, and Tony Álvarez made the long walk from the witness stand to the courtroom door. He drank some water, sat by himself on a hallway chair and collected himself.

The incriminating evidence

Álvarez returned to face the questions and the inquisitive eyes.

In a clearer and stronger voice than before he reiterated, “In August of 1997 I heard through the intercom the voice of Posada Carriles speaking with José Burgos and Pepe Álvarez. I heard them say that they knew an Aviateca airline mechanic that could help introduce explosive materials in Cuba.”

Without being able to show the jury the compromising fax from Posada Carriles or the letter that Álvarez had to President Arzú and his Presidential Intelligence Unit, the prosecution managed to establish that Posada Carriles was a key player in a conspiracy to introduce explosives into Cuba less than a week before the murder of Fabio Di Celmo in Havana’s Copacabana Hotel.

Memory

History has not given Tony Álvarez the recognition he deserves. Battered by an unusually challenging life, he lives on a very limited income in South Carolina, far from Cuba, with his common-law wife and their son. Since leaving Cuba in 1961, he has not returned. He says it is because he does not agree with the Revolution.

His disagreements with the Cuban Revolution do not translate into terrorism. When he learned of Posada Carriles’ connection with the bombings in Havana, he immediately informed the authorities. The jury does not know it, but it was Tony Álvarez who also warned the FBI of the conspiracy to murder President Fidel Castro at the summit on Isla Margarita in Venezuela in 1997.

In a federal courtroom, Posada Carriles’ attorney tried in vain to assassinate Álvarez’s character and destroy his reputation. With no proof, Hernández accused him of being a terrorist, a drug trafficker, a money launderer, a thief and a womanizer. Álvarez responded to it all with dignity.

This 10th of March, the fifty-ninth anniversary of Cuban dictator Fulgencio Batista’s violent coup that launched a tyranny based on violence and lies, saw a different sort of result in El Paso. A humble Cuban businessman sacrificed time to be with his ailing wife so that he could risk his life to come El Paso alone, lock eyes with Luis Posada Carriles in federal court and peacefully speak the truth.

José Pertierra practices law in Washington, DC.  He represents the government of Venezuela in the case to extradite Luis Posada Carriles.

Translated by Machetera and Manuel Talens. They are members of Tlaxcala, the international network of translators for linguistic diversity.

Spanish language version: http://www.cubadebate.cu/noticias/2011/03/11/diario-de-el-paso-las-razones-de-tony-Álvarez/

p>El Paso Diary: Day 33 of the Posada Carriles Trial

By José Pertierra

Using the testimony of the journalist Ann Louise Bardach, the Government was able to introduce the Solo fax as evidence against Luis Posada Carriles.  In the fax, the defendant alerts his co-conspirators to the money orders they would receive from New Jersey to carry out the bombing campaign in Havana in 1997.

The first battle of the fax

Earlier in the case, Judge Cardone excluded the fax, because in her opinion it had not been properly authenticated. She agreed with defense attorney Arturo Hernández who argued that the witness—Tony Álvarez—”can’t testify about who actually wrote the document, and there is no way of assuring that it has not been altered.”

Mr. Voir Dire

Before the judge called in the jury, prosecutor Timothy J. Reardon voir dired Ann Louise Bardach to determine whether she could authenticate the fax.  Voir dire is a Latin expression that means “tell the truth.” In this particular instance, it refers to a hearing, outside the presence of the jurors and designed to see if the witness can establish a proper foundation for a document’s admission into evidence.

Though the examination of the witness could have easily been conducted in front of the jury, attorney Hernández asked for a voir dire hearing so that the jurors would not be exposed to the testimony about the fax until the document had been admitted into evidence.

The defense attorney has made multiple voir dire requests, so many that the prosecutor calls him “Mr. Voir Dire.”

The Solo fax

Prosecutor Reardon opened the hearing by asking the witness, “During the interview that you did with Posada Carriles in Aruba in June of 1997, did you talk about the Solo fax?”

“Yes. We spoke about who he suspected might have stolen it from the office in Guatemala. We did a line-by-line analysis of the document to try and understand the names in the fax.  He told me that he had signed it ‘Solo’,” testified Bardach. “Solo is one of his most original aliases. He explained to me that it is the name of a television character, Napoleon Solo,” she added.

Bardach didn’t recall the name of the program with the Solo character, broadcast by NBC between 1964 and 1968, but the readers of this Diary know that the show is “The Man from U.N.C.L.E.,”a series about the adventures of two spies.

Bardach told the jury that she got the Solo fax from two separate sources: Arnaldo González, a Venezuelan who first tried unsuccessfully to sell her the document at Isla Margarita yet ended up giving it away, and Tony Álvarez, the Cuban American businessman in Guatemala who testified last week in El Paso. Tony Álvarez told Bardach in 1998 that he had also shared the fax with the FBI.

The Solo fax is dated August 25, 1997, ten days before the murder of Fabio Di Celmo in Havana.  It is addressed to two of Posada Carriles’ close collaborators: José Burgos and Pepe Álvarez. Burgos is a Guatemalan who had worked as a bodyguard for the former President of Guatemala, Jorge Serrano Elías, and Pepe Álvarez is a Cuban exile who was a subordinate of Posada Carriles for many years. The Government considers both of them to be unindicted co-conspirators of the bombing campaign.

At Prosecutor Reardon’s request, Bardach read the first paragraph of the fax aloud.

This afternoon via Western Union, you’ll receive four payments of $800 apiece, for a total of $3,200.  Western Union will send it to you from New Jersey, in the following manner: in the name of José Álvarez.  Pedro Pérez, $800; Abel Hernández, $800; José Gonzalo, $800; Rubén Gonzalo, $800.

FBI Agent Omar Vega previously testified that the names of Pedro Pérez, Abel Hernández, José Gonzalo and Rubén Gonzalo were on money orders that sent from New Jersey to Pepe Álvarez in Guatemala. The dollar amounts that Vega recounted are the same as in the Solo fax.

Reardon asked Bardach to read the last paragraph of the fax aloud, and so she did:

As I already explained to you, if there’s no publicity, the work is useless, the U.S. media do not publish anything that has not been confirmed.  I need all the data from the discotheque to try to confirm it; if there’s no publicity there’s no payment.  I’m awaiting news today.  Tomorrow I will be out for two days.  Regards, Solo.

We might also recall that the Cuban inspector, Roberto Hernández Caballero, told the jury that the first bomb exploded in Havana on April 12, 1997, in the Aché discothèque at the Meliá Cohiba.  The fax reveals that Posada Carriles needed more information about the attack, so that he could provide details to the press and justify the money from New Jersey.

The Solo fax and the Miami Herald

Two journalists from the Miami Herald, Juan Tamayo and Gerardo Reyes, wrote an article on June 7, 1998, based on the Solo fax.  They had obtained it from a source that was unidentified at the time—Tony Álvarez.  The Miami Herald article concluded that the Solo fax identified the money trail from New Jersey that Posada Carriles used to finance his terrorist campaign against Cuba in 1997.

The FBI knows that I received money from the United States

During the June 1997 interview, Posada told Bardach, “The FBI knows that I received money from the United States.”

It certainly did.  FBI Agent Omar Vega testified in El Paso, a few days ago, that the Bureau became aware that the money had reached Posada Carriles from New Jersey in the form of money orders sent through Western Union.

The verdict on the fax

Bardach testified that Posada Carriles sent the fax to Guatemala from El Salvador.  “How do you know?” asked Judge Cardone, one of the few times she has asked a question directly of a witness.  “Because of what Mr. Posada told me, and what Tony Álvarez also said to me,” answered Bardach.

Judge Cardone had heard enough.  She ruled the fax was admissible as evidence and said that it could be shown to the jury.  Attorney Hernández objected, but the judge overruled his objection.  The journalist’s testimony had been solid.

The tenth motion for a mistrial

After a brief recess, the judge brought the jury back into the courtroom and Bardach resumed her testimony.

Much of it had to be repeated for the jury’s benefit.  Prosecutor Reardon asked Bardach about her conversations with Posada Carriles concerning the Solo fax.

“Mr. Posada told me that he wanted to generate sufficient publicity about the bombs to stop tourism [in Cuba].  However, he was worried, because he’d had problems in other countries and didn’t want any more,” answered Bardach.

Upon hearing this, the defense attorney again moved for a mistrial, alleging that telling the jury that Posada Carriles faced problems in other countries was highly prejudicial.

The judge, accustomed by now to the motions from the Miami attorney, rejected it without a single comment.

The greatest hits from the interview with Posada Carriles

The recording of the interview that Bardach did with Posada Carriles lasted three days in Aruba and is very revealing.  This afternoon the Government played several “greatest hits” from it for the jury.

One of the clips was a conversation regarding Raúl Ernesto Cruz León, the Salvadoran who placed a number of explosives in the hotels and restaurants in Havana, one of which killed Fabio Di Celmo at the Copacabana Hotel.  “Cruz León did it for money,” Posada Carriles told Bardach.

St. Patrick’s Day and the Cuban American National Foundation

Another of the clips was of Bardach asking Posada Carriles about the relationship between the Cuban American National Foundation (CANF) and the money to finance military actions against Cuba.  “The Foundation is the political arm and you are the military?” Bardach asked Posada Carriles.  “Yes.  Everything went through Jorge [Mas Canosa].  He’s the one who managed everything,” said Posada Carriles.

Perhaps because she saw eight of the jury members dressed in green—in honor of St. Patrick’s Day—Bardach had Ireland on her mind.  She explained to the jury that the relationship between the Foundation and the military actions of Posada Carriles is like the relationship in Northern Ireland between Sinn Féin and the Irish Republican Army (IRA).  Sinn Féin is the political arm and the IRA is the military, Bardach explained.  “That’s the analogy to the Foundation and Luis Posada Carriles,” she added.

Prosecutor Reardon then played another clip from the interview.  The unmistakable voice of Posada Carriles filled the courtroom, and we heard him say, “Jorge [Mas Canosa] said that any time I needed money—$10,000, $5,000—they’d send it to me.

José Pertierra practices law in Washington, DC.  He represents the government of Venezuela in the case to extradite Luis Posada Carriles.

Translated by Machetera and Manuel Talens.  They are members of Tlaxcala, the international network of translators for linguistic diversity.

Spanish language version: http://www.cubadebate.cu/opinion/2011/03/18/diario-de-el-paso-la-fiscalia-gana-la-segunda-batalla-del-fax