UNITED STATES DEPARTMENT OF JUSTICE

EXECUTIVE OFFICE FOR IMMIGRATION REVIEW

BOARD OF IMMIGRATION APPEALS

FALLS CHURCH, VIRGINIA

 

 

IN THE MATTER OF:

BELLO-PUENTE, JOSE ROBERTO;

REGALADO-ULLOA, ADEL; and

REYES-RAMIREZ, LEONARDO

IN REMOVAL

PROCEEDINGS

A72 560015

A72 560016

A74 933218

           

MIAMI DISTRICT (BRADENTON)

_______________________________/

 

 

APPEAL FROM THE DECISION

OF THE IMMIGRATION JUDGE

 

 

APPELLEES

BELLO- PUENTE , REGALADO AND REYES -RAMIREZ

RESPONSE BRIEF

 

 

 

 

RALPH E. FERNANDEZ, ESQUIRE

FERNANDEZ & DIAZ, P.A.

109 South Moody Avenue

Tampa, Florida 33609

Telephone: (813) 251-5991

Florida Bar Number: 246425

THE BROTHERS TO THE RESCUE ISSUE

At various times in the criminal trial of the Respondents (GX1:106, 109-112 and 126-127) the BTTR issue necessarily rearose. There were a number of proffers before the Immigration Judge about its relevance and the facts that counsel was trying to establish. (T:216,464,624 and 695) The Immigration Court was advised of the necessity to establish the quality of the "BTTR case" to relate to the Respondents' fate. (T:454) The government stipulated that if one cooperates with the United States government, one is probably at risk. (T:535) Respondent Regalado's debriefing, the common bond between the three, and the publication by the media of their stories, undisputedly resulted in a finding of a well founded fear of persecution. But again while Respondents' conduct has placed them at risk of harm, rulings by the IJ restricted presentation of much testimony of the BTTR issue. However the evidentiary rulings relating to exhibits allow this development of the facts here. And the reviewing authority needs to have the best possible rendition of those facts before it, at least those available to defense counsel, so this becomes a tangible proposition, not merely some wild allegations about an improbable adventure. Undoubtedly the BTTR issue is a sore spot. However its presentation is a duty and so it follows.

 

Brothers to the Rescue is a non-profit humanitarian organization founded in 1991 in response to the tragic deaths of Cuban rafters trying to flee the island of Cuba and Castro's terror in search of freedom. Its founder, Jose Basulto, is a Cuban veteran of the Bay of Pigs invasion, a former second lieutenant in the U.S. Army, and briefly worked in conjunction with the CIA. (T:428) Among BTTR members there were volunteer pilots of nearly twenty different nationalities. They joined Cubans and Cuban-Americans in South Florida over the years conducting thousands of search and rescue missions over the straights of Florida. Their efforts saved countless lives. (T:433 and 586)

 

In the mid 90's BTTR became a thorn in Castro's side. BTTR pilots became heroes of not only the local South Florida community but of people throughout the world. News reports of their activities were monitored regularly. Some of the BTTR pilots nearly became household names. This made BTTR a target for espionage and penetration by Cuban counter intelligence. (Appendix Exh. 15)

 

Jose Basulto believed that as a native of Cuba he enjoyed certain rights and privileges. He was outspoken against the regime. He promoted a peaceful transition in Cuba . He supported democratic change, as well as dissident activities within the island. On November 17, 1994, while visiting Guantanamo Naval Base and on the spur of the moment Basulto decided to fly over the place his ancestors came from and dropped BTTR stickers. He violated Cuban airspace for a few minutes, for the first time. The Cuban government became indignant.

 

On July 13, 1995, two BTTR aircraft over flew Havana. The Cuban government charged that Basulto publicly, openly and patently endeavored to provoke air incidents and violate Cuban territorial sovereignty. On that flight, Hank Tester, a news reporter from Miami, flew aboard Basulto's plane filming as "fighters were in the area." Basulto claimed his intrusion was an act of civil disobedience. (App. Exh.60) The purpose of the July 13 over-flight was to create a diversion for Cuban fighters that were at the time threatening a freedom flotilla off the territorial waters of Cuba. The flotilla in turn was lawfully commemorating the sinking of the tugboat "13 de Marzo" and the tragic loss of forty lives caused by Cuban gunboats ramming the defenseless vessel. (App. Exh.8 and 60)

 

On July 14, 1995, the day after the over flight, the Cuban government first declared its intention to shoot down even peaceful intruders. Cuba would not govern itself by international standards of engagement when dealing with non-military intrusions.

 

Cuba was by this time listed by the United States Department of State as a state sponsor of terrorism. Cuba enjoyed classification with other illustrious examples as Iran, Iraq, Libya, North Korea, Sudan and Syria. (App. Exh.12 and 13)  In 1996 Cuba continued to harbor foreign terrorists and provided safe haven for their activities. Cuba had also, prior to 1996, engaged in a pattern of assassinations abroad conducted by the DGCI, later the DCI, or DI, Cuba's directorate of intelligence, and its counter intelligence agency. (T:555,556 and 774) Cuba's long arm in extra-territorial active measures had been in place for nearly three decades, was fully operational and functioned at the direction of Fidel Castro himself. Cuban DCI and G-2 leaders, such as Florentino Aspillaga and general Rafael del Pino, had acknowledged these violent active measures at debriefings after their defection to U.S. authorities. (T:556)

 

In 1995 Bill Richardson, the former Congressman from New Mexico, was asked by the Cuban government to visit Havana. (App. Exh.9) He traveled twice and met Fidel Castro. During discussions relating to the release of political prisoners Richardson conveyed assurances to Fidel Castro that the United States would take steps against Brothers to the Rescue and their over flight activities. (App. Exh. 9 )  These discussions had been initiated earlier by Undersecretary of State Peter Tarnoff in secret talks with the Cuban government. These were the meetings that led to migration accords intended to halt the exodus of thousands of Cuban rafters. (App. Exh. 9)

 

Congressman Richardson met with Cuban national assembly president Ricardo Alarcon on September 19, 1995, at the United Nations. Later on October 22, 1995, Fidel Castro addressed the United Nations general assembly and denounced the Cuban Trade --Embargo . (App. Exh.9) A number of individuals present on October 22, 1995, acknowledge seeing Richardson meeting Fidel Castro. At all times material herein Richardson was acting as an envoy and at the behest of the government of the United States.

 

On January 17, 1996, Richardson arrived in Havana accompanied by Calvin Humphrey, senior counsel to the House Intelligence Committee. Humphrey had received briefings from U. S . State Department officials, the National Security Council and intelligence agencies. Richard Nuccio, the president's Cuba policy advisor, spoke to Richardson before the trip. (App. Exh.9) Richardson met Castro and top government officials including Alarcon and economic chief Carlos Lage. The over flights by Brothers to the Rescue came up again.

 

Several days before, on January 9, and later, on January 13, 1996, Brothers to the Rescue planes dropped half a million leaflets over Havana. The planes never entered Cuban airspace and were able to accomplish the feat under favorable weather and wind conditions from outside Cuban airspace. (App. Exh. 61) Between January 13, 1996, the day of the second leaflet drop and the meeting with Richardson and others, Fidel Castro had become so disgruntled with BTTR peaceful confrontations that he gave the Cuban commander of aircraft defense and the Air Force of Cuba the authority to personally decide when to intercept and shoot down Jose Basulto and Brothers to the Rescue planes.

 

Between February 5 and 9, 1996, the Center for Defense Information, at the direction of John J. Shanahan, Vice Admiral, U.S. Navy (Ret.) hosted a military delegation to Cuba which included Robert E. White, former U.S. Embassador to Paraguay and El Salvador, and Admiral Eugene Carroll, United States Navy (Ret.) (App. Exh. 63 and 64) During discussions the visiting group of U.S. dignitaries was asked by Cuban Generals Rosales Del Toro and Arnoldo Tamayo, one being the Chief of Staff of the Cuban Military Forces, about what (the Americans) thought the consequences would be if Cuban forces "shot down intruding aircraft." (App. Exh.9) According to Admiral Carroll the question was direct and to the point. (App. Exh.62) This resulted in a debriefing upon their return, at the State Department's Office of Cuban Affairs, on February 20, 1996. At this debriefing the information was conveyed to State Department high ranking personnel. The information was conveyed again later at a debriefing at CDI before "cognizant DIA officers" on February 23, 1996. (App. Exh. 63) By January U.S. intelligence agencies had evidence of Cuban MiGs test firing air-to-air missiles and practicing maneuvers to attack slow moving aircraft similar to the Brothers planes. (App. Exh.65) Basulto later received confirmation from controllers who saw them on radar. (T:477)

 

Several days before the tragedy of February 24, 1996, Jeane Kirkpatrick, President Reagan's former ambassador to the United Nations, was told by a senior administration official that "he was so concerned he had not been able to sleep at all. He was convinced something dreadful was going to happen to the Brothers' planes." (App. Exh. 49)

 

On February 23, 1996, Concilio Cubano, a confederation of dissidents in Cuba, was denied permission to host a public meeting on the following day, February 24, 1996. Many of its members were arrested. (App. Exh. 49) Basulto and BTTR had voiced support and even previously filed a license with the United States Treasury Department to send economic support to Concilio Cubano. (App. Exh. 68 )

 

On February 23, Richard Nuccio and others at the Department of State Office of Cuban Affairs, contacted the FAA Office of International Aviation to indicate that BTTR might fly in support of the solidarity movement and Concilio Cubano's efforts the next day. (ICAO report) The State Department indicated that "the Cubans were in a rough mood. " (App. Exh .47) At 2:40 P.M. an FAA official e-mailed the detailed information to FSCO, FAA in Miami and FAA headquarters. A military liaison officer received the message at 6:00 P.M. He then briefed the Miami ARTCC shift supervisor and military liaison officer on duty of the "potential activity for the following day." According to the authorities in the United States "[T]he specifics of the briefing were that the Miami AIFSS and Opa Locka Tower were to be advised to coordinate all flight plans and departure time information with the Watch Supervisor; the Watch Supervisor and/or the Military Liaison Specialist were to track the Brothers to the Rescue transponder codes as long as possible, take detailed notes, and advise other facilities (DAICC, NORAD, etc.) of the activity." (ICAO report; App. Exh.47)

 

The military liaison officer then called the DAICC (Customs facility in California) supervisor, briefed him on the potential Brothers to the Rescue activity and requested their assistance. Furthermore, the manager of FSDO in Miami requested that the B94 Aerostat radar balloon at Cudjoe Key, Florida, be "put up." (ICAO report page 51; App. Exh.47) At 6:44 P.M. Richard Nuccio sent an urgent e-mail to his national security council superior, Samuel Berger, warning that "this may finally tip the Cubans towards an attempt to shoot down or force down the planes." (App. Exh. 9) The White House had now been noticed.

 

It was later developed that after the FAA alerted Customs (DAICC) a domino effect on alerts took place. The 1st Air Force, Southeast Air Defense Sector facility (SEADS) and CARIBROC were alerted also that BTTR would be flying in the Florida Straights the next day. Everyone was keeping track of the flights and generating images on the 24th of February. FAA specifically requested support from Customs in recording scope data on the BTTR aircraft. SEADS also took steps to record the data and apparently did so.

 

In the outskirts of Havana, a week before, a Cuban military pilot and high ranking officer had engaged in a practice with a small tourist plane during which the plane acted as a BTTR plane for MiG fighter practice. The plane used in the practice was the Wilga plane later the subject of Respondents' case here and was piloted during the practice run by Adolfo Perez Pantoja, Alfredo Torres Ten and a Cuban Air Force captain. (Appendix Exh.3)

 

On the evening of February 23, 1996, Jose Basulto attended a function at the Hyatt in Miami. He discussed the idea of flying on the following morning with Sylvia and Andres Iriondo, Armando Alejandre, Carlos Costa, Mario de la Pena and Pablo Morales. The Iriondos were an affluent and politically active couple that Basulto knew. Alejandre was a Metro-Dade employee deeply involved in legitimate anti-Castro activity. Costa worked at Miami International Airport. Costa's friend, Mario de la Pena, was a twenty-four year old who wanted to eventually fly for an airline. Pablo Morales was a young rafter who had fled Cuba in 1992 and was saved by Brothers to the Rescue at sea. (T:457)

 

Beginning on an unknown date, but at least as early as 1994, in the Southern District of Florida and elsewhere, a conspiracy to commit espionage by the Republic of Cuba in the United States existed. (App. Supp. Exh. 15) The object of the conspiracy was for co-conspirators "to function as covert spies serving the interest of the government of the Republic of Cuba within the United States by gathering and transmitting information to the Cuban government concerning United States military installations, government functions and private political activity; by infiltrating, informing on and manipulating anti-Castro Cuban political groups in Miami-Dade County; by generating disinformation within these political groups and in dealings with United States private and public institutions; and by carrying out other operational directives with the Cuban Government." (App. Supp. Exh.15)

 

It was part of the manner and means of the conspiracy that "trained officers of the Cuban Directorate of Intelligence (DI) took up residence in South Florida and carried out clandestine activities on behalf of the Cuban government. " That Cuban spy network was known as "the Wasp Network." The activities of the Wasp Network were overseen, directed, analyzed and reviewed by the DI in Cuba. (Appendix Exh.15) One of the penetration agents was Juan Pablo Roque, code name "German."

 

Juan Pablo Rogue supposedly defected from Cuba to the United States in 1992. For reasons unknown until his later return to Cuba and the publication of his espionage activities, Roque drifted into exile politics, even forming a group of Cuban ex-mi1itary and joining Brothers to the Rescue. (T:444)  He married Ana Roque and lived in West Dade. According to Jose Basulto, he had flown several missions with Brothers to the Rescue. (T:444)  Roque had at the same time, however, become a double agent. He had become an FBI informant and was paid six thousand seven hundred and twenty-two dollars by the FBI for what the FBI believed was intelligence activity. (App. Exh.106) According to Paul Philip, special agent in charge of the FBI in South Florida, Roque volunteered in 1993 to provide information about exile groups. (App. Exh.95) Part of the information that he was being paid for by the FBI to give included information on Brothers to the Rescue. Basulto was never informed by any source that BTTR had been infiltrated by individuals working for the Federal Bureau of Investigation or by individuals working for the Cuban DCI. Roque was an example of both. But Roque was not alone. Rene Gonzalez, code name "Castor" or "Iselin, " also penetrated BTTR on behalf of the Cuban DI. (Appendix Exh.15)

 

On or about January 5, 1996, Cuban agent "A-4" gave "Castor" the DI's instructions for "Castor's" decisive role in a plan associated with the exit of Comrade "German" from the United States. (Appendix Exh.15) Later on February 13, 1996, "A-4" and "Giro" directed "Castor" to provide precise information as to the anticipated BTTR flights and directed Castor" not to join any flights, and, if he could not avoid flying with BTTR, that he should repeat specified phrases into the radio (so that Cuban MiGs would not fire and destroy during the anticipated confrontation). On or about February 22, 1996, "Castor" reported to "Giro" that "Castor" felt Jose Basulto was preparing something expressly for the meeting of Concilio Cubano, which was scheduled for that weekend. On or about February 22, 1996, the DI communicated to “Giro” and “A-4” that a DI officer had traveled to support the travel of "German" from the United States to Cuba via Mexico. On or about February 23, 1996, "German” aka Juan Pablo Roque, the FBI informant, left Miami as directed, to return to Cuba, with his deadly mission nearly accomplished. (Appendix Exh.15)

 

"The perceived leader of the Wasp Network, Gerardo Hernandez, also known as "Manuel Viramontez" , or "Giro" , combined, conspired, confederated and agreed with persons known and unknown , to perpetrate murder, that is, the unlawful killing of human beings with malice aforethought, in the special maritime and territorial jurisdiction of the United States, in violation of Title 18, United States Code Section 1111, so reads the second superseding indictment finally filed on May 7, 1999, by prosecutors in the Southern District of Florida. The object of the conspiracy between Hernandez aka "Giro" , Roque aka "German" , and Gonzalez aka "Castor" , was to plan for a violent confrontation of BTTR aircraft and Cuban MiGs with decisive and fatal results for the BTTR pilots. (Appendix Exh.15)

 

Operation Scorpion was approved by Fidel Castro on or about January 14, 1996, when he delegated the authority for the date of the ambush and downing of the Brothers to the Rescue planes to Cuban Generals Arnoldo Tamayo and Rosales Del Toro. Fidel Castro himself subsequently acknowledged both his knowledge and participation in a video taped segment with Dan Rather of CBS News. Castro stated that he "communicated to the Air Force that what took place on the 9th and 13th could not be allowed to happen again." Castro said that his Air Force "acted knowing full well they were carrying out orders." Fidel Castro then admitted that " [he] assumed the responsibility... I won't try to skirt my responsibility in the least...since those were the directives given in a moment of great irritation...the order given to the pilots, if I recall accurately. ..I believe on January 14."

 

On or about January 29, 1996, the DI reported the final approval by superior headquarters of Operation Scorpion in order to down the BTTR planes. The instructions were conveyed to the Miami based Dl agents. From February 5 through February 22, 1996, there was substantial contact between the chief of the DI, Dl agents who traveled to Mexico, and the DI agents conducting the espionage activities in the United States. (Appendix Exh.15)

 

Members of the conspiracy to commit the murder on February 24, 1996, had expanded from the lower tier DI agents in the United States, engaged in traditional espionage activities, to the Cuban Air Force pilot who participated in the practice run; to a high ranking Cuban official by the name of Lt. Col. Comeneros who directed the practice run a week before; to the Chief of the Cuban DI; to General Arnoldo Tamayo; to General Rosales Del Toro; and to Fidel Castro himself. Subsequently the conspiracy would include Lt. Col. Perez-Perez and the other MiG pilot who pulled the trigger the next day, as well as a number of participants, known and unknown, deservant of prosecution.

 

On the morning of February 24, 1996, flight plans for the three Cessnas were filed around 9:15 A.M. They were transmitted to Miami ARTCC and Havana ACC by the Miami automated international flight service station (AIFSS). The original flights had been planned for 10:15 A.M. The pilots, however, did not depart at 10:15 A.M. but returned to the hangar to discuss an issue with a mechanic who had been detained in Cuba and questioned the previous evening while flying back from Cancun. At 10:12 A.M. Cuban air defense supposedly "detected" unidentified aircraft flying south of the 24th parallel in the outer boundary of the Cuban air defense identification zone (AIDZ) .According to Cuba the intruders flew at an altitude of five hundred to fifteen hundred meters, and between two and three hundred kilometers per hour. At 10:34 A.M. Cuban interceptors took off and later returned to base at 11:30 A.M. Havana center called Miami ARTCC about the alleged planes flying in the MUD-9 danger area south of the 24th parallel. Miami checked with the Coast Guard and notified that no one knew of any aircraft down there at the time. (ICAO report) In reality Cuba may have believed BTTR planes had gone up as scheduled and scrambled the MiGs to destroy the planes.

 

At 11:47 A.M. BTTR amended flight plans for the three planes that had been allowed to expire were filed and a new departure time was set for 12:30 P.M. The new flight plans were again transmitted to Havana. Between 12:15 P.M. and 12:45 P.M. U.S. radar picked up military aircraft activity in Cuba. At 1:01 P.M. the BTTR planes took off. At 1:24 P.M. Miami AIFSS notified Miami ARTCC and Miami ACC of the BTTR take off. At 2:50 P.M. the three BTTR planes passed an Orion P3 U.S. military aircraft at nine hundred feet of altitude. At 2:39 P.M. Cuban air defense detected aircraft north of the 24th parallel. At 2:43 P.M. two interceptors, a MiG 29 UB and a MiG 23 ML, were placed on alert at the Cuban air base at San Antonio de las Banos. At 2:55 P.M. the MiGs took off. At 2:56 P.M. a BTTR pilot called Cuba on 133.37 frequency and advised Cuba of a five-hour stay in the area north of its airspace. At 2:57 P.M. the other two BTTR pilots radioed Havana informing them of their presence. Havana issued its customary warning about presence in the danger area. (T:458) Jose Basulto replied that as free Cubans they would continue their operation north of Cuban territorial airspace.

 

At 3:00 P.M. the Royal Caribbean ship Majesty of the Seas and the Tri-Liner tuna fishing boat were in the vicinity below where the planes were about to fly. Between 2:55 P.M. and 3:11 P.M. Cuban interceptors were vectored to various air defense radar contacts, one of which was the large ship Majesty of the Sea. At 3:17 P.M. the MiG 29 reported visual contact with one of the planes. According to U.S. radar, N5485 (Seagull Mike) reached its southernmost point outside Cuban territorial airspace. (App . Exh.50,52,53 and 54) At 3:18 P.M. Seagull Mike notified the other two that he was at 23 28 N 82 29 W. Between 3:17 P.M. and 3:21 P.M. the MiG 29 maneuvered in the sky while ground control requested visual identification of type, color and registration. As the MiG 29 maneuvered to intercept N 2456 (Seagull Charlie) Seagull One began an exchange with Havana over the radio. At 3:20:31 P.M. Basulto greeted Havana. At 3:21 P.M. Seagull One's inside cabin intercom and radio communications reflect that a MiG was in the air. At 3:22 P.M. Seagull Charlie disappeared from radar, at 23 25.8 Nand 082 _25.6 W. At 3:23 P.M. the Majesty of the Seas had individuals aboard who witnessed the explosion which was established to be well outside Cuban territorial airspace. More or less at the same time the Tri-Liner tuna vessel established the position of the attack to likewise be outside Cuban territorial airspace. ICAO reached an independent conclusion that the downing occurred between five and ten nautical miles outside Cuban territory. (ICAO report)

 

Around this time N2506 (SeagullOne) aboard which Jose Basulto was flying, supposedly reached 1.5 nautical miles into Cuban airspace. This was according to U.S. radar charts (which could have been up to 28% in error) but inconsistent with the Basulto GPS coordinates, as well as Basulto's testimony of his location. At 3:24 P.M. the MiG reported sighting a second plane and for three minutes maneuvered in pursuit. At 3:25 P.M. the MiG was authorized by Havana to destroy the second BTTR aircraft. At 3 :28 P.M. U.S. radar detected the disappearance of N 5485 S (Seagull Mike) at 23 30.3 N 8227.1 W. Crew and passengers aboard the Majesty of the Seas and the crew of the Tri-Liner tuna vessel were watching and saw no warning pass on the second downing. They did see the BTTR plane circling and the fighter coming in from behind and firing. At 3:28 P.M. Seagull One's occupants noticed the flare and the ball of smoke and attempted to call the other planes without success. (ICAO report)

 

At 3:31 P.M. a second pair of Cuban interceptors went up. At 3:36 P.M. the original two MiGs (that shot down the BTTR planes) returned to base. At 3:45 P.M. the subsequent pair of Cuban interceptors reported seeing a light blue and white Cessna. (App. Exh.51) The translation of the colloquy between Cuban ground control (GRC) and the MiGs (App. Exh. 51) at 3:46 P.M. follows:

GRC: Tell me if you (can) identify the target.

MiG 23: Cessna 337

GRC: Repeat.

MiG 23: It is a Cessna 337, it is turning to the left.

(Later at 3:46:43 P.M.)

GRC: I need to have the color identified.

MiG 23: It is light blue. Correct.

CRC: It is light blue?

MiG 23: Yes light blue.

(Later at 3:47:56 P.M.)

CRC: Do you have it?

MiG 23: No, it was lost, we passed it.

(Later at 3:48:09 P.M.)

CRC: The target is ten degrees to your right, distance seven kilometers... begin turning to the right to course 180.

MiG 23: It was above or below?

MiG 23: It was at a distance, level with us…

ARC: You have it five degrees to your left.

MiG 23: Understood.

(Later at 3:48:50 P.M.)

MiG 23: I have it in sight.

GRC: Distance?

MiG 23: At 12, 2

GRC: I have it, give me the registration.

MiG 23: Wait, let me find it first.

{Later at 3:50 P.M.)

GRC: Do you have the target in sight.

MiG 23: It is below and ahead of me.

{Later at 3:51 P.M.)

GRC: How many targets do you have? One or two?

MiG 23 #2: Only one.

GRC: Correct, type of aircraft, blue color.

MiG 23 #2: Light blue and white.

GRC: Report.

MiG 23 #2: Cessna 337.

{Later at 3:52 P.M.)

GRC: At what altitude is the target?

MiG 23 #2: More or less two thousand meters.

(Later at 3:53 P.M.)

GRC: Suspend the mission.

MiG 23 #2: Copied, suspend the mission.

 

At 3:53 P.M. the Cuban interceptors where told to discontinue the mission. According to United States radar charts Seagull One, Basulto's plane, was at that time of the suspension of the mission by Cuban MiGs forty miles northwest of the Cuban interceptors. The evidence of location is clearly inconsistent with the radio communications and visual identifications of the Cuban interceptors. At 3:46 P.M. Basulto radioed Miami about the possible downing of the companion planes and the MiG involvement. Seagull One landed at Opa Locka Airport at 5:08 P.M.

 

According to Cuba the MIG 29's (the shooter) flight recorder data was erased due to later flights. The MIG 23 recording was provided to ICAO. It was further established during the investigation that the Cuban Air Force Commander went to the command center early in the morning of February 24, 1996. At 9:40 A.M. Cuba received the flight plan messages about the BTTR flights. At 11:30 A.M. the commander received the new plans and decided to stay in the command center. No warning passes by the Cuban MiG pilots were reported by either victim to any other plane. Cuban recordings were missing information that appeared on United States recordings. In the gaps of Cuban information that is missing between 3:23 P.M. and 3:29 P.M., United States recordings have references by the Cuban planes to vessels below where they were flying. These and other references were deleted from the Cuban communications between 3:32 P.M. and 3:33 P.M. According to ICAO, the differences in the recordings cannot be reconciled.

 

Even with the Cuban communications the placement of the vessels indicates that at 3:12:56 P.M. the area of interest was thirty kilometers north of Baracoa. At 3:14:06 P.M. it was described as thirty-five kilometers from Santa Fe. At 3:17:34 it was described at twenty-four kilometers from Santa Fe, relating to N 2456, Seagull Charlie.

 

The Cuba communications indicate that at 3:23:48 P.M. N 5485S (Seagull Mike) fell in the region. At 3:22:31 P.M. an indication was that it fell where there was a boat below "...it fell close to it" and at 3:29:02 P.M. it was a fishing boat identified below. Cuba later stated that "due to malfunctions of the automatic data recording system the data was not recording at Havana ACC that day. " Cuba supposedly recorded the positions by hand.

 

According to the ICAO report the U.S. radar records reveal progress of the flight but an accurate assessment of the maneuvers of the BTTR planes and the MIG 29 in the final stages of interception was not possible. As a matter of fact ICAO investigators concluded that there were significant irreconcilable differences between the radar information provided by Cuba and the United States. Despite having the radar records of the United States, ICAO found the most reliable evidence was the recording positions and tracks, as well as the observations by occupants, aboard the two vessels below. (ICAO report) Great significance by ICAO was given to the entries of the Majesty of the Seas. Majesty of the Seas personnel indicated that at 3:27 P.M. the small plane turned and headed directly at the boat. It maintained the heading a minute before heading north. At 3:29 P.M. a fighter appeared from starboard and fired its missile, destroying the small plane.

 

It was undisputed that the three planes had contacted Havana ACC prior to entry into any of the areas of concern. Transponder codes had been confirmed. Havana was alerted previously by the FAA. It was also established that Cuban military did a no time make radio contact in any frequency with the downed planes. Other than the Cuban pilot's statements, there was no visible tangible or recorded evidence, of the MiG 29 maneuvering a warning while passing either one of the victim planes.

 

As part of the conspiracy, in Havana, allegations were immediately generated that BTTR involved itself in "paramilitary activities against the government of the Republic of Cuba." Juan Pablo Roque, who had defected on the day previously, and arrived in Cuba through Mexico, claimed that BTTR was planning to introduce anti-personnel weapons to blow up high-tension plants. Roque also made the statement that he had flown airplanes with U.S. Air Force markings and some of the BTTR planes were military versions. (App . Exh.71) Roque also stated "the U.S. government knew they were going to shoot them down" and identified an FBI agent who told him "not to go” that day. (App. Exh.71)

 

On that same day in Miami Juan Pablo Roque's wife, Ana, was telephoned at her house. A man she didn’t know claiming to be from the FBI asked to speak to Juan Pablo Roque. She demanded to know who he was. He identified himself again as an FBI agent. She described her husband's mysterious disappearance and demanded to know what the caller knew about it. The caller denied any knowledge and hung up. (App. Exh.49)

 

On the morning of February 24, nearly twenty five hundred miles away at March Air Force Base in California, senior detection specialist Jeffrey Houlihan was at his post. He worked at the Domestic Air Interception Coordination Center (DAICC). His duty was to oversee all radar controllers monitoring the Atlantic Ocean, the Caribbean, the Gulf of Mexico, and the southwest border with Mexico. Houlihan had been an air weapons controller with the United States Air Force previously. He had worked for the North American Air Defense Command (NORAD) at the 26th Air Division at March Air Force Base. He had been assigned to weapons sections and had used fighter aircraft to perform intercepts on unknown aircrafts coming into the Unites States. Houlihan was familiar with and had attended school at Tyndall Air Force Base in Florida. Houlihan received radar information from seventy-two different radar antennas spread allover the United States, the Caribbean and parts of South America. He also received information from Aerostat balloons. Houlihan monitored the events of the downing of the Brothers to the Rescue planes on February 24, 1996. (App. Exh.50)

 

Houlihan noted that Cuban interceptors on February 24 were operating without transponders. The MiGs were operating at speeds in excess of 500 knots, at times making rapid turns and maneuvering quickly as they came in and out of radar coverage. This indicated to Houlihan that for the majority of the time the MiGs flew at extremely low altitudes. Houlihan has no doubt that the MiGs were actually squawking a particular transponder code but the code was encrypted. Houlihan to that date had enjoyed a very good relationship with BTTR. He claimed it was easy to be able to tell who they were because they would call Customs and tell Customs that they were going fly and where. They were assigned mode "C" codes in the VFR block. (App. Exh.50)

 

Houlihan had come on duty at 8:00 A.M. pacific time. The majority of the incident occurred around 3:00 P.M. eastern time. Fourteen screen prints were generated. The screens were printed pursuant to a previous directive. As the incident progressed and Houlihan saw what was going on he felt that it was extremely important to start printing every time he saw a change. Later he described what he saw as "cold blooded murder." (App. Exh.50, p.339) He monitored the three BTTR aircraft as they proceeded southbound towards Cuba. Houlihan watched on screen as the BTTR aircraft several their southernmost point and began to head east in a comb pattern. He then saw on the screen a MiG shoot down a BTTR aircraft three nautical miles outside Cuban airspace. Later he saw the Cuban MiG shoot down the second BTTR aircraft approximately ten to twelve nautical miles north of Cuban airspace. (App. Exh.50)

 

All this information was given by Houlihan on March 30 and 31, 1996, in administrative hearings presided by the Honorable William Pope, before the United States National Transportation Safety Board. Houlihan reiterated that he was asked to monitor the ill fated BTTR flight by the Federal Aviation Administration. He testified that he had never seen Cuban MiGs that far out there before and he became worried about what was going on. (App. Exh.50) Houlihan said he became concerned with the MiG that was in international airspace heading for the United States flying directly over the BTTR plane. The first BTTR plane gave Houlihan no indication from the way it was performing that inside the cockpit they had seen the MiG flying over them. After the initial shoot down Houlihan saw what led him to believe that the BTTR plane was fleeing. Houlihan saw data that was also prepared by the 84th Radar Evaluation Squadron. Houlihan learned later from the 84th Radar Evaluation Squadron that a MiG had operated in the area earlier that day. (App. Exh.50)

 

At 3:17 P.M. eastern standard time (EST) Houlihan made a frantic call to the senior director technician at the Southeast Air Defense Sector facility (SEADS) and told him that he "saw a high speed primary only aircraft coming out of the Cuban ADIZ and that "[he] suspected it was a Cuban MiG and it was going directly over the Brothers to the Rescue. " The senior director technician at SEADS replied that he had seen the plane and Houlihan asked him if he knew what was going on with BTTR on that day. The individual responded, "we have been briefed.” At that time Houlihan said "it looks like a MiG 23 to me heading directly towards the United States. I think that's important.” The response was we are handling it, don't worry.” (App. Exh. 50, p.468) Houlihan later stated that he had specific knowledge by watching the area at the time that "no American interceptor aircraft showed up." (App. Exh. 50, p.468) Had interceptors shown up they "could have come out of Homestead, or they could have come out of Key West. Depending on the alert status of the aircraft at either location, they could have been there within... five minutes." (App . Exh. 50, p.470) Houlihan also said that if the interceptors had come out of "Homestead, if they were sitting on battle stations there... they could have been there in ten minutes." (App. Exh.50, p.471)

 

Houlihan then went on to answer questions from the Honorable William A. Pope in the administrative proceedings. He stated that "through that entire area the Southeast Air Defense Sector has made it very clear to me in briefings that... anything that pops up inside that area, they will launch their interceptor aircraft on immediately. Their assumptions being that anything that pops up in that area, heading towards the United States, is coming out of Cuba.” (App. Exh. 50, p.484) Judge Pope then asked Houlihan "would it be fair to say that the MiGs you saw were in that area?" (App. Exh. 50, p.484) Houlihan replied "yes. " Judge Pope then asked him "that's why you made the phone call" and Houlihan replied "yes." Judge Pope then asked "and as far as you determined, from what you saw, no interceptors were launched, " and Houlihan replied "that's correct, your honor. " (App. Exh.50, p.484) Houlihan candidly acknowledged that his chart locations were estimations that could be off a mile or more. He acknowledged that his estimates of distance could have been off by percentage of distance. Regardless of any inaccuracy, the two BTTR planes were downed outside Cuban airspace.

 

The time of the first call to SEADS was of great significance. Houlihan stated that "I started to call at 3:16 P.M. They picked up the line at 3:1.7 P.M." (App. Exh.50, p.515) The first BTTR airplane was shot down between 3:22 P.M. and 3:23 P.M. Houlihan acknowledged that he completed the warning call to SEADS five or six minutes before the first shoot down. (App. Exh.50, p.515) On February 27, the information that Houlihan had gathered was given to the CIA to draw up a "briefing chart for their supervisors.” (App. Exh. 50, p.583) The information supposedly "went to the State Department and to the Joint Chiefs of Staff.” At the time the frantic phone call was made by Major Houlihan to Tyndall Air Force Base two F-15 fighter jets at Homestead Air Force Base were on battle stations.

 

In official statements made long after the incident, according to the Southeast Air Defense Sector command (SEADS), they were in contact with NORAD during the ongoing incident in international airspace to keep headquarters informed. SEADS was monitoring both the location of all planes involved as well as the communications between them. According to SEADS, at the point that it was determined a hostile act had occurred, the remaining BTTR aircraft had "separated from danger" and any requirement for an immediate scramble was over. This conclusion is not founded on reason as Cuban MiGs were in the air while Seagull One was only minutes away at best, under any scenario. Further, according to SEADS, NORAD and SEADS had the best picture of the events of February 24 and by the time that it was determined that a threat existed the opportunity to intervene on behalf of BTTR aircraft had passed. Given Houlihan's statements this is a most interesting proposition, and a troublesome one indeed. (See App. Exh.S7)

 

SEADS claims it does not know which technician took the Houlihan call but acknowledges receiving the call and that it was taken by someone in a position to receive it. SEADS maintained that there was no governmental forewarning of Cuban intent to shoot down BTTR aircraft on February 24. SEADS and NORAD were both aware that Cuban MiGs had flown in the morning. The flight was north of the island, slightly west of Havana. Other agencies such as CARIBROC, Customs and FAA, that feed off the same radar sensors knew or should have known that the MiGs were flying that morning. NORAD and SEADS did not share information with the BTTR aircraft concerning the MiG flight activities, although the information had been shared in the past. SEADS acknowledged that the FAA alerted Customs, the lst Air Force ( SEADS ) and CARIBROC that BTTR would be flying in the Florida Straights. They specifically requested support from Customs in recording scope data on the BTTR aircraft for that day, based on the need to gather supporting information on BTTR violations. SEADS also took steps to record the data. SEADS has acknowledged that F15 fighter interceptors at Homestead remained in a position to launch within five minutes throughout the entire sequence of the BTTR shoot down. (App. Exh.48) SEADS has asserted that "owing to communication mixup between Cheyenne Mountain and SEADB, Homestead was told to stand down from battle stations for fifteen minutes, between 1520L and 1535L, the period which included both shoot downs." SINCNORAD directed to Cheyenne Mountain that SEADS alert aircraft should understand the rules of engagement and that SEADS was not to be provocative. That direction was supposedly interpreted by an NORAD duty official that the fighters at Homestead should come off battle stations, which was neither the direction nor the intent, according to SEADS. By the times SEADS commanders clarified the situation and placed the fighters back on battle stations, the engagement had already concluded and four men were dead and four more U.S. citizens were in grave danger.

 

This command and control breakdown resulted in alert fighters going on five minutes airborne response time instead of two to three minute response time, but supposedly did not impact the outcome of the day's events, according to SEADS. SEADS has acknowledged that in general, when U.S. fighters have been scrambled, Cuban fighters have avoided confrontation by moving away and retiring closer to Cuba. All of this information was presented by SEADS long after the event during a Congressional inquiry on September 18, 1996.

 

NORAD stated that Air Force fighters had never scrambled to respond to BTTR activities. Yet back in July of 1991, shortly after BTTR began flying, Alfredo Sanchez, a BTTR pilot, recalls a MiG encounter as he was circling a raft carrying seven people in international waters. As he circled above the raft to keep the location of those below him Sanchez heard a strange voice on his radio calling his plane number. It was WOVE 1. As he looked up he saw a pair of U.S. fighter jets flying several thousand feet above him giving him cover. The MiGs who had responded to the scene, also threatening the BTTR plane, vanished. The rafters were saved. The incident was documented formally. (App. Exh.49 and 59)

 

On March 2, 1996, U.S. and Cuban officials met in New York to discuss the shoot down. According to the State Department the purpose of the meeting was to make clear to the Cubans that the U.S. government had definitive information that the aircraft were shot down in international airspace. The State Department has denied that the meeting was to develop or mutually agree on positions which each side would take with respect to the shoot down. (App. Exh.80)

 

Defense Department spokesman Kenneth Bacon told reporters that F15 fighters based south of Miami at Homestead were put on alert as the MiGs went after Brothers to the Rescue planes. According to Bacon, they were taken off alert when the MiGs turned south. (App. Exh.48) But when two MiGs went south, two more MiGs took off, heading north. Despite an intense intelligence gathering effort focused on the flight that day and the Air Force having access to audio recordings of the MiG pilots as conversations developed, Defense Department's Mr. Bacon said that the Air Force "did not know what was going to happen before two civilian planes were shot down." (App. Exh .48 and 57 )

 

On September 5,1996, Howard G. DeWolf, then Brigadier General of the United States Air Force, wrote Congressman Dan Burton. In that letter General DeWolf states "neither party knew that the two slow moving aircraft were the BTTR aircraft nor were they aware of the Cuban government's intentions." (App. Exh.55) Houlihan's sworn testimony indicates that by February 27, 1996 the Chiefs of Staff had or should have received a full report before them of the whole incident. General DeWolf further stated that "our personnel were not in a position to have anticipated the unwarranted shooting down of the BTTR aircraft." Perhaps DeWolf was unaware of FAA, SEADS, CARIBROC, 84th Radar Squadron, Customs, Tyndall, Homestead and other pieces of the puzzle.

 

In a report of inquiry prepared by Brigadier General Rodney P. Kelly, the findings indicate that "no intelligence indicated any hostile intent" on February 24, 1996, by the Cuban aircraft. According to the General Kelly during this sequence of events, the Homestead F15's were "directed off battle stations due to a communication error at Cheyenne Mountain." (App. Exh.57) General Kelly added that the MiGs were "never a threat to BTTR 1 once he turned north and were never a threat to U.S. airspace. " Of course, this is the most interesting proposition because of what had happened. First, two planes had already been shot down. Second, MiGs were in the air. Third, the fleeing plane was slow moving. Fourth, assuming the MiGs did not give chase (as documented by their own communications now transcribed) what if they had given chase?

 

Between February 28, 1996, and March 1, 1996, the DI gave profound recognition to agents "Giro" and "A-4” for the successful downing of the Brothers to the Rescue planes. The DI noted that the Commander and Chief, Fidel Castro, had visited twice to analyze steps and to follow up on the operation and declared that they had dealt a hard blow to the Miami right, in which their (the agents') role had been decisive. (Appendix Exh.15) Back in Cuba the Wilga plane practice run occupants were likewise recognized and rewarded in small ceremonies attended by Lt. Col. Comeneros and other dignitaries. Respondent Regalado was present. (Appendix Exh.3)

 

The activities of the spy ring, the Wasp Network, continued through at least September 12, 1998, according to Guy Lewis, Assistant United States Attorney, in and for the Southern District. Interestingly the indictment against the spy ring details the role of Luis Medina, reputedly Cuban intelligence major. Medina had primary assignments to "infiltrate MacDill Air Force Base in Tampa and later U.S. Southern Command headquarters in Miami." (App. Exh.112) Luis Medina, aka "Alan" and "John Doe number two" was active as a Cuban agent from 1997 through 1998, presumably in the Southern and Middle Districts of Florida. As part of the Wasp Network activities and Operation Scorpion, the downing of the BTTR aircraft, Cuban agents sent information to the government of Cuba. (Appendix Exh.15)

 

In July of 1997, during the criminal trial of Respondents Regalado, Bello Puente and Reyes Ramirez, in Tampa, Cuban DCI (DI) Major Roberto Hernandez Callabero visited the Tampa Bay area. The counter-intelligence specialist roamed about town freely. During the course of that trial, monitored by Cuban authorities, and the DCI, the BTTR practice run was first exposed during a proffer in open court and received substantial publicity in the media. (APP.Exh.19,21,22,23,25,26,27,29,30,3l,33,35 and 36) In open court participants in the conspiracy were identified, including Adolfo Perez Pantoja. Pantoja returned to Cuba without ever being interviewed about the shoot down of BTTR planes, by any authorities of the United States. The continuing allegations by defense counsel Fernandez about spies, penetration and conspiracy by the DCI, were scoffed at and ridiculed by the government (and later by the Service). During that same criminal trial counsel for the Respondents had to resist an effort at disqualification, which suggestion came after the court directed that Cuban Major Roberto Hernandez Callabero testify (over government objection) in the Respondents' criminal proceedings.

 

During Respondents' Immigration trial a witness arose, Leonel Herrera. (T:29,34 and 79) He had information on the BTTR issue, specifically as to a Lt. Col. Cameneros, a clear conspirator in the murder. The government refused to interview him after being told who he was and what he knew, and even a successful objection was posed to his appearance and testimony.

 

During the Immigration trial of Respondents defense counsel again published over and over Juan Pablo Roque's participation in the conspiracy to murder, and in penetration efforts. The Service resisted or ignored development of the issue although directly related to the issues of fear of persecution and retaliation. Although recognized as a witness in a significant inquiry affecting the security of the United States, Regalado's prosecution by the Immigration Service continues. The objective has always been and continues to be removal. Why? Does the BTTR investigation trouble someone somewhere? It should clearly trouble Fidel Castro and others in Havana, but why does this government proceed in the inexplicable fashion it has so far in this case. To remove Regalado weakens the BTTR murder prosecution. To weaken the case lessens the chances of indicting higher ups, such as Castro himself. Is there a purpose in gutting the case?