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The Battle for the Passport

It seems that we were all anxious for the trial of Luis Posada Carriles in El Paso to get moving again, after a 48-hour recess due to the historic storm that descended on this Texan valley. We all arrived very early, at the same time: just before 8:30 a.m.

The morning freeze from our walk over here clung to us, even inside the courthouse, and none of us dared to take off our coats. Since the courtroom was still locked, the defense attorneys, prosecutors, FBI agents, assistants, journalists, Luis Posada Carriles, and this attorney for Venezuela who writes to you, gathered together in the hallway, waiting for someone to open the door. Litigation makes strange bedfellows. Scores of boxes and several carts filled with documents surrounded us.

The tie

After about 15 minutes, a court clerk opened the door, and we went inside.

One of the interpreters walked past me. Posada Carriles claims he doesn’t speak English, despite the fact that we’ve heard him speak it on his tape-recorded interviews with Immigration. The interpreter was dressed today in a kitschy, loud tie, emblazoned with the U.S. flag. Thirteen stripes, fifty stars.

Because of his slight accent, it’s clear that the interpreter was not born here, but as evident by his taste in ties, it’s also clear that he’s well assimilated to this society.

A reversal

The Guatemalan passport of Luis Posada Carriles is an essential piece of evidence to support two of the eleven counts against him. The tenth count in the indictment is for “false statements made in the naturalization process,” and it consists of the statement that Posada made to the Department of Homeland Security when he said that “he had no kind of documentation or passport from Guatemala, when in fact he had a passport from that country with his photograph and the name of Manuel Enrique Castillo López.”

Count ten charges him with failure to disclose that he has previously used the name of Manuel Enrique Castillo López, when in fact he applied for a passport under that name with his picture.

Without being able to evidence the Guatemalan passport, the prosecution will be unable to convict him on those two charges. As soon as prosecutor Bridget Behling told the client she wanted to move the passport into evidence, Judge Kathleen Cardone told the bailiff to wait: to not call the jury into the courtroom yet. The judge did not want the jury to realize that a Guatemalan passport with Posada’s photo on it, in the name of another person, was in play. She wanted to first rule on its admissibility, before allowing the jury to find out about it. She asked Behling to explain how she proposed to establish the basis for the passport’s authenticity.

Bridget Behling

Behling is a slender blonde attorney who doesn’t look like a prosecutor for the Anti-Terrorist Section of the Justice Department’s Division of National Security. She’s quite young, pretty, and looks more like a humanities student at some university. She walks briskly, moving her arms with each step, but unsure of her step. Her face mirrors her feelings. Because of that, she’s probably a dreadful poker player.

The prosecuting team assigned her the important job of making sure that Judge Cardone would admit several key documents into the record. Behling began by telling Judge Cardone that an FBI agent had discovered the Guatemalan passport in Santiago Álvarez’s office during the execution of a search warrant. “Agent Christopher Capanelli is here, ready to testify about the search that was carried out at the offices of Santiago Álvarez’s Caribe Foundation,” Behling said.

Art Hernández

In a loud voice, Posada Carriles’ attorney voiced his objection to the introduction of the Guatemalan passport. “The Guatemalan passport that they found in the offices of the Caribe Foundation has not been authenticated,” he said. Arturo Hernández is of Cuban origin, and speaks perfect Spanish. However, when he expresses himself in English, he pronounces Guatemala as Huádmahla, and Santiago Álvarez’s Fundación Caribe as the Carib (sic) Foundation.

Foreign documents must be authenticated

The prosecution knew that it is necessary to authenticate the passport, and Behling said “Your Honor, we have an expert from Homeland Security who can testify that the document was issued by the Guatemalan government.” The judge did not hesitate: “The passport is not evidence until you comply with the rules,” she ordered.

The rules that govern the introduction into evidence of foreign documents in federal courts require that an official from the foreign government authenticate the documents. “I don’t understand why you didn’t resolve this beforehand,” said Judge Cardone, irritated. Cardone’s decision appeared to take the prosecutors by surprise. Behling looked at her colleagues, Timothy J. Reardon and Jerome Teresinski with a “now what?” look on her face”

She was prepared to question Agent Capanelli about the search of the offices of Santiago Álvarez at the Fundación Caribe, but now realized without the passport, charges 10 and 11 in the indictment against Posada were teetering on the brink of dismissal. The prosecutors asked the judge for permission to hold a short conference at counsel table.

They huddled there together, standing with their arms crossed: Reardon, Teresinski, Behling and Omar Vega, the FBI agent in charge of the Posada case. The judge, impatient because we were already halfway through the morning session and had not yet taken testimony, twice asked the prosecutors: “are we ready to call the jury in?”

I heard Teresinski whisper to his colleagues, “then let’s change the order of the witnesses.”

The jury entered the courtroom without knowing why the case is dragging on so long. We’ve spent almost a month here and we’re still not even to the halfway point.

Bridget Behling looked like a wounded boxer, looking to gain time by leaning against the ropes, while trying to clear her head. Still groggy, she called Troy Eberhardt to the stand. Eberhardt entered the courtroom with spring in his step, happy to have been called first. The first one called is usually the first to leave.

Behling told the judge that Eberhardt could authenticate the Guatemalan passport because he was a forensic expert in matters related to foreign documents. Eberhardt works for Homeland Security in the forensic lab for the Office of Immigration and Customs. He’s a specialist. “I’ve examined more than 1,000 passports in more than 500 cases,” he said, confidently. “On December 25 of 2005 I examined the documents in the Luis Posada Carriles case,” he testified. Behling then showed him a photo. She wanted Eberhardt to identify it as the document that he previously examined, without yet telling the jury that it is a passport, but Eberhardt was not privy to the judge’s concern that the jury not learn of the passport until it had been admitted as evidence. He had no way of knowing that he l couldn’t yet utter the word “passport.” Behling cautiously asked: “Do you recognize this document?” “Yes,” said the witness, “it’s the passport that I examined…” He didn’t get to finish his answer. Hernández popped up from his chair and objected. He asked for a sidebar: a conference with the judge outside the presence of the jury.

Judge Cardone dismissed the jury and asked Hernández to explain his objection. The attorney once again insisted that the document could not be accepted as evidence because it is missing an authentication seal from the Guatemalan government. Behling, who’d been on the defensive ever since Cardone belted her with the decision that the passport would not be allowed as evidence, counterpunched with a strong and unexpected argument: “Whether or not the passport is real is practically a side issue. What matters is that the defendant pretended that the document was real and then lied about it.”

I thought that Behling had convinced the judge, but no. Cardone has been a practicing judge for eight years in El Paso’s Federal Court, after having been nominated by President George W. Bush. In this border town she has plenty of experience with the use of foreign documents, and she reacted decisively: “I’m not going to allow the passport to be introduced.”

An eerie silence descended upon the court for what seemed an eternity, while Behling consulted with Reardon, Teresinski and the FBI Agent Omar Vega. What to do?

Joy among the defense attorneys

Posada Carriles’ attorneys could not contain their pleasure. Even the normally taciturn Rhonda Anderson, a member of Posada’s legal team, smiled. This is the first time I have seen her smile in the last four weeks. The other two defense attorneys, Arturo Hernández and Felipe Millán, had looks of irrepressible joy written on their faces. Posada sat expressionless on his chair, perhaps not yet realizing the dramatic consequences of this judicial decision.

With nothing more to ask Eberhardt, Behling dismissed him. According to Judge Cardone, the government’s expert was not competent to authenticate the passport. The prosecution had been overconfident and had not prepared for this. They made an error: a costly one.

Behling’s counterpunches

After lunch, Behling returned to the ring, renewed and ready for battle. She called another witness: Steven Ussher, from the Department of Homeland Security. Ussher testified that the Republic of Guatemala sent the United States government an official Report; pursuant to the Mutual Legal Assistance Treaty (MLAT) between the two countries and that an official of the Guatemalan government authenticated it.

Hernández again objected, alleging that it is not an original document and contains parts in Spanish that have not been translated. However, Behling was ready this time. She showed the judge the original, as well as the certified translation. The judge then examined the document, its seal of authenticity, the original manuscript, and the accompanying translation. Judge Cardone concluded that they met all the requirements under the federal rules of evidence, and overruled Hernández’s objection.

“The document is admitted into evidence,” declared the judge. Through the back door, Behling had managed to get into the record the copy of the Guatemalan passport with the photo of Luis Posada Carriles! Although the Guatemala Report does not contain the original passport, it does include a copy.

How ironic. The original is not evidence, but the copy is. During her direct examination of Ussher, Behling shook the Guatemalan report as if it were a piñata, and all sorts of interesting things came tumbling out, including an authenticated copy of the passport application, as well as a Mexican visa, under the name of Manuel Enrique Castillo López, with a photo of Luis Posada Carriles.

Behling was on a roll, and she knew it. Her questions flowed with a certain elegance, and she her step revealed confidence. Meanwhile, Hernández sat silently at counsel table. “I show you this document, Mr. Ussher, do you recognize it?” “Yes. It’s a copy of the passport for Rubén López Castro,” he answered. “It contains an entry and an exit stamp for the Bahamas, in addition to a stamp from Mexican immigration.” Ussher had managed to obtain López Castro’s passport through another search warrant, as well as the passports of Pepín Pujol, Gilberto Abascal, and Generoso Bringas. Bringas’ passport had been on the Santrina and had an entry date from the Bahamas for March of 2005. It is a U.S. passport.

The super-pickup-truck

The prosecutor then pulled out a large map of Mexico, Central America and the United States. She asked Ussher to identify the countries through which Posada Carriles said he had travelled, before arriving in Houston in March of 2005. The Homeland Security officer pointed to Honduras, Guatemala, Mexico, and the United States. He marked the begging and ending points of the trip in red: the border between Honduras and Guatemala and the city of Matamoros.

Behling then asked the witness to read to the jury key parts of the transcript from the interview that Posada Carriles had with Immigration officials in 2006, during which he said that it took him only two hours to travel in a pickup truck from Matamoros to Houston. “It’s a distance of 350 miles,” said Usher. Behling didn’t have to ask whether there is a pickup truck capable of traveling that distance and traversing four countries in only two hours.

From Mr. P. to Mr. Maya

When the Elmo projector in the courtroom displayed Posada Carriles´ Guatemalan passport application, alongside his photograph, something curious caught my eyes.

Posada is from Cienfuegos, Cuba, and is almost 5’11”, with light skin, greenish eyes, and not a drop of indigenous blood. However, the Guatemalan passport that carries his photograph says that he was born in the small town of San Antonio Huista, Huehuetenango. It is located east of the Quiché, south of Totonicapán, and smack in the middle of the Cuchumatan Mountains in the highlands of Guatemala.

Its population of only 13,955 is pure Maya. The townspeople speak Cachiquel and Poqomam. How can he seriously pretend to be from that town? Posada Carriles has about as much chance of being confused for a Maya from Huehuetenango, as he does with Bridget Behling. See for yourself: http://nigeldickinson.photoshelter.com/image/I0000HQMmqk8XD1c

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/2011/02/05/el-diario-del-paso-la-batalla-del-pasaporte/

 

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José Pertierra is an attorney in Washington, DC.

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