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How Ann Louise Bardach Helped Win the Second Battle Over the Solo Fax

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

 

José Pertierra is an attorney in Washington, DC.

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