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The Battle Over the Solo Fax

Today the prosecution suffered a profound setback.  Judge Kathleen Cardone ruled that a key document that links Luis Posada Carriles to the financing of a series of bombings in Havana in 1997 was inadmissible.

Tony Álvarez

Short of stature and stooped by a lifetime of tribulations, Antonio (Tony) Álvarez looks like a walking question mark.  He entered the courtroom dressed like the businessman he once was in a dark blue suit, a white shirt and a light blue tie.

Tony Álvarez told the jurors that he was born in Cuba and is now 75 years old.  He said he came to the United States in 1961 and became an American citizen.

Álvarez became a star witness in the case against Luis Posada Carriles only after the Justice Department filed a superseding indictment in March 2009 that added three new counts against the defendant.  The additional charges included perjury for the statements the defendant made under oath when he denied his involvement in the conspiracy to set off a series of explosions in Havana in 1997.

Tony Álvarez was the first to notify the FBI about Posada Carriles’ role in the bombing campaign in Havana.

In his opening statement to the jurors more than two months ago, defense attorney Arturo Hernández promised he would show them that Tony Álvarez is a biased witness.  He told the jurors that Álvarez had enjoyed an intimate relationship with a member of Fidel Castro’s family.  He also alleged that Álvarez was a money launderer and a drug dealer.  Would the defense attorney be able to impeach Tony Álvarez?

Marital relations

Anticipating the coming cross-examination, Government attorney Jerome Teresinski asked the witness if he had had any kind of relationship with Fidel Castro’s sister.  “Yes.  With Lidia Castro.  We went out together starting when I was 15, until I was 26,” he said.  “I broke off the relationship with Lidia, because I got another girl, Silvia Builla, pregnant.  My father made me marry Silvia,” he added.

“But did you love Lidia?” asked Teresinski.  Taken aback by the question, Álvarez lowered his voice and replied with his eyes looking into space, “Yes, I did.”

Álvarez went on to explain that soon after their son was born, he separated from his wife.  Although Teresinski didn’t inquire about the son’s name, he did ask, “And what—if anything—happened to him?”  Álvarez answered that his son died tragically at the age of 19 in an elevator accident in New York.

As if this were a domestic relations case, Teresinski continued to ask the witness about his marital history.  “Did you divorce Silvia?” he asked.  “Yes, and I married Ana.  We have two daughters, Jacqueline and Carolina,” testified Álvarez.  “However, we are now separated,” he said.

Encouraged by the prosecutor to elaborate on what happened after the separation, the witness said, “Now I’m in another relationship.  I live with Ana Graciela Bonilla, and I have a 15-year-old-son with her.”  Suddenly, the sullen witness brightened and added, “He is an honor-roll student, you know.”

It may seem strange that a witness should have to talk about the intimate details of his marriages and relationships as a necessary condition for testifying about the issue at hand in a criminal trial, but that’s how things work in the U.S. legal system.  When a witness takes the stand, he must be prepared to air the family’s linen before perfect strangers.

Álvarez will probably be on the stand a few more days, and the trial itself will continue for several more weeks.  When all is said and done, I don’t know if the jurors will remember his testimony about Posada Carriles.  But I’m certain they’ll remember that Tony Álvarez was the guy who said he had a sexual relationship with Fidel Castro’s sister.

Of course, the witness’ past sexual and marital relations have nothing to do with Posada Carriles.  They satisfy the appetite for titillating details about the private lives of others, an appetite that criminal defense attorneys rely on to try to influence the jurors.

The prosecutor in this instance seemed to have no choice other than to ask those questions of his witness, because he is certain that Posada Carriles’ attorney will.  Therefore it is preferable to preempt defense counsel’s line of inquiry on direct examination than to have those details brought out on cross.

From Cuba to the USA and then to Guatemala

Before getting into what Tony Álvarez knows about Posada Carriles, the Government asked him a few more personal questions.

The jurors learned that Álvarez studied at Belén High School in Havana and later at the University of Havana.  He testified that he graduated from the school of engineering in 1959 and from the school of medicine only two years later. He said he was an only child and that his father was a medical doctor.

He recounted his arrival in the United States in 1961 with a fake passport that his father had bought for him.  After being interviewed by United States immigration officials at the Opa-Locka detention facility in South Florida, he took a Greyhound bus to Philadelphia and settled there, making a living as a waiter at a local golf club.

Álvarez testified that he landed an engineering job with General Electric in South Carolina in the early 70s.  His job took him to many places in Latin America, he said.

“Did there come a time when you went to work for WRB Enterprises?” asked Teresinski.  Álvarez said that he began his employment with WRB in Tampa in 1996.  “That’s an investment business in Tampa that also had an electrical plant in Guatemala.  I was the vice president and Bob Blanchard was the president,” he said.

Tony Álvarez speaks quickly and has a tendency to interrupt Teresinski.  Judge Cardone had to ask him to slow down several times, because it was impossible for the court reporter to transcribe two people speaking simultaneously.  “Wait until Mr. Teresinski has finished asking you the question before you respond,” she said.

Álvarez testified that on behalf of WRB Enterprises he rented office space in Guatemala.  “I then hired José Burgos, because local law requires that only Guatemalan citizens can legally register a business there,” said Álvarez.  “Burgos is Guatemalan.”

Álvarez testified that he also hired a Cuban American, José (Pepe) Álvarez, as well as a Guatemalan secretary—Cecilia Canel Peen.

Tony Álvarez meets Posada Carriles

“Pepe was the one who introduced me to Luis Posada Carriles at the Hotel Camino Real in Guatemala,” said the witness.  “Posada told me that he was a freedom fighter and that the communists had tried to kill him there.”

“Afterwards, I saw him in my office,” said Álvarez.  “When I arrived, I saw an SUV parked there with Salvadoran plates.  Then I saw him leave with Pepe and another person.”

Teresinski then asked, “Did your office have a fax machine?”

Hearing this, the defense attorney sprang to his feet.  He interrupted the witness before he could answer and asked the judge for a sidebar discussion out of the jurors’ earshot.  Hernández knew that Teresinski wanted the witness to testify about an important document, allegedly written and signed by Posada Carriles that had arrived by fax at Álvarez’s office in 1997.

The judge obliged the defense attorney’s request and dismissed the jury so that she could hear the arguments about the document’s admissibility.

The “Solo” fax

The document consists of two pages handwritten in block letters.  It is dated August 25, 1997, just 10 days before a series of four bombs exploded in Havana—one of which took the life of Fabio Di Celmo.  The fax is addressed to José and Pepe, the two employees of WRB that Tony Álvarez said he hired in Guatemala.

It tells them, “You will receive four payments of $800 a piece via Western Union” and instructs them to distribute the money to Pedro Pérez, Abel Hernández, José Gonzalo and Rubén Gonzalo.  The names of the recipients match those on the money orders sent from New Jersey, about which FBI Agent Omar Vega and the accountant Oscar de Rojas testified last week.

The fax ends by saying “as I told you, if there’s no publicity, the work is useless, the American press doesn’t publish anything that has not been confirmed.  I need all the data from the nightclub in order 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.”  It’s signed “Solo.”  This is one of Posada Carriles’ aliases, inspired by the television character Napoleon Solo of the 1960s spy series, “The Man from U.N.C.L.E.”

The Solo fax is the missing link between the New Jersey money orders to Guatemala and El Salvador and Posada Carriles. It shows that the money trail led directly to Posada Carriles and that it was to finance the bombings in Havana.

Posada Carriles admitted to writing and signing the fax in the June 1998 interview he gave to New York Times reporter Ann Louise Bardach.

There is no doubt that the Solo fax is a key piece of evidence against the ex-CIA agent.

The balance of the day’s proceedings was conducted outside the presence of the jury for the limited purpose of determining whether Tony Álvarez could authenticate the Solo fax so that it could be admitted into evidence.

C-4 plus the Solo fax = anxiety

Tony Álvarez told the judge that after seeing the fax, he became so worried that he took it to Diego Arzú, the son of then president Álvaro Arzú.

Adding to his concern was the knowledge that his secretary, Cecilia Canel Penél, had seen José Burgos, Pepe Álvarez and Posada Carriles meeting in the office to which they had brought plastic tubes and calculators.  The witness said that he knew those were bomb-making materials.  The explosives went into the plastic tubes, and the calculators were the timing mechanisms used to detonate them.

“I saw a package in my office, marked ‘Mexican military industry,’ ‘C-4,’ ‘dangerous explosives,’” said Álvarez.  “That’s why the fax caught my attention.”

President Arzú’s son, Diego, advised him to draft a letter about his concerns to Guatemalan Intelligence, Álvarez testified.  He said he also gave the letter to the FBI.  Neither of the two intelligence agencies followed up on the matter.

The legal battle over the Solo fax

Posada Carriles’ attorney vigorously opposed the admission of the Solo fax.  He argued that Álvarez had not marked the document, which made it impossible for him to identify it years later as the one he had seen with his own eyes in August 1997.  Moreover, said attorney Hernández, “He can’t testify about who actually wrote the document, there is no way of assuring that it has not been altered, and the prosecutors can’t establish a proper chain of custody.”

Citing the federal rules of evidence, Hernández argued that the contents of the document are filled with hearsay and therefore should be excluded by the Court.

Government prosecutor Teresinski offered a different interpretation.  “A defendant’s statements are exempt from the hearsay rule and are admissible in court.”  Furthermore, “the contents of the fax match the names on the money orders from New Jersey and the testimony of the Cuban witness about the explosion at the Aché discothèque on April 12, 1997,” Teresinski added trying to explain that the Solo fax reveals Posada Carriles’ concern that the bombing of the Aché had not received sufficient publicity in the weeks following the attack.

As to the authenticity of the fax, Teresinski pointed out, “This document has been authenticated by Tony Álvarez through its contents, its appearance, and its distinctive characteristics.  Therefore, it should be recognized as evidence for the jury’s consideration.”

The judge’s ruling

“The document does not have sufficient characteristics to be received as evidence,” said Judge Cardone.  With these few words, she rejected one of the key pieces of evidence in the case and did not explain her ruling.

Tomorrow Tony Álvarez will testify again:  this time before the jury.  He will not, however, testify about the Solo fax.

Without the Solo fax to evaluate, the jurors will remain in the dark about the complicated conspiracy surrounding the campaign of bombings in Havana.  It was a big victory for Luis Posada Carriles.

And so ended this Ash Wednesday in El Paso.

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/2011/03/10/diario-de-el-paso-posada-carriles-gana-la-batalla-del-fax

 

 

 

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José Pertierra is an attorney in Washington, DC.

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