Appeals court orders Cuban militant to stand trial

By ALICIA A. CALDWELL Associated Press Writer © 2008 The Associated Press
Aug. 14, 2008, 6:48PM

EL PASO, Texas — A federal appeals court on Thursday ordered Cuban militant Luis Posada Carriles to stand trial in El Paso on immigration fraud charges.

A three-judge panel of the 5th U.S. Circuit Court of Appeals in New Orleans ruled that Posada, an aging anti-Castro militant, should stand trial on charges that he lied to federal authorities in his 2005 bid to become a U.S. citizen.

The criminal case against Posada, 80, was dismissed last year when El Paso-based U.S. District Judge Kathleen Cardone ruled that the government engaged in trickery and deceit by using a naturalization interview to build a case against Posada.

Felipe Millan, one of Posada's lawyers in El Paso, said Posada's legal team is reviewing the lengthy decision.

"We are analyzing the opinion to determine what it is we are going to do," Millan told The Associated Press on Thursday. "We will make a decision ... once we have an opportunity to review the decision."

In a statement e-mailed to the AP, Justice Department spokesman Dean Boyd said, "We're pleased with the ruling and will proceed forward as appropriate."

The Cuban-born citizen of Venezuela is wanted in the South American country on charges that he orchestrated the 1976 bombing of a Cuban jetliner. He has denied any wrongdoing.

Posada was first arrested on a civil immigration violation in May 2005 after sneaking into the country from Mexico about two months earlier. Posada, a former CIA operative and U.S. Army officer, has claimed that he was brought across the border into Texas by a smuggler, but federal authorities have alleged that he actually sailed from Mexico to Florida.

Posada, who has a pending deportation order, was released from jail in April 2007 and has been living with his family in Miami. An immigration judge has ruled that he cannot be sent to Venezuela or Cuba because of fears he would be tortured. No other country has been willing to let Posada in.

In January 2007, a federal grand jury indicted Posada in the immigration fraud case after prosecutors argued that he lied about how he got into the United States in 2005 and other facts about his past.

In a 38-page ruling issued just before his scheduled trial in May 2007, Cardone said a transcript of Posada's naturalization interview was imprecise, omitted key elements of the interview, and appeared to have been transcribed by several different people of varying skill. She also said a government-provided Spanish-language translator was incompetent.

"In addition to engaging in fraud, deceit and trickery, this Court finds the Government's tactics in this case are so grossly shocking and so outrageous as to violate the universal sense of justice," Cardone wrote.

She also concluded that the naturalization interview was used by the government as a pretext to build a criminal case.

The appeals judges, however, concluded in a 35-page ruling that "the government conduct identified by the district court as the grounds for dismissing the indictment simply has no relevance to these alleged offenses."

The court also ruled that because Posada initiated the naturalization proceeding, the government was obliged to provide an interview and investigation.

"It strikes us as highly incongruous, to say the least, for these proceedings to then be characterized as a sham engineered by the government," the court ruled.

The court also concluded that a review of Posada's interview and documents in the case appeared to show that the naturalization interview was above board.

"More broadly, nothing in the record suggests that the naturalization interview was anything other than a bona fide examination conducted in accordance with the applicable regulations," the judges ruled.

A new court date in El Paso has not yet been set.