IATR: 1988 Col FILIBERTO OJEDA RIOS - MOCION PARA LIBERACION O JUICIO

INSTITUTO

ALEJANDRO TAPIA Y RIVERA

Colección

COMANDANTE FILIBERTO OJEDA RIOS

DOCUMENTOS HISTÓRICOS Y PÚBLICOS

de los JUICIOS FEDERALES contra el COMANDANTE MACHETERO

FILIBERTO OJEDA RIOS LÍDER del

EJERCITO POPULAR BORICUA (EPB)

Colección Lcdo. Luis Abreu Elías, abogado de la Defensa Años 1985-1989

UNITED STATESCOURTOF APPEALS FOR THE SECONDCIRCUIT

UNITED STATESOF AMERICA, Appellee, -against-

FILIBERTO OJEDARIOS, Appellant.

On Appeal From The United States District Court For the District of Connecticut, Clarie, Sr. District Judge, Presiding.

JOINT APPENDIX

STANLEYTWARDY,JR.

United States Attorney District of Connecticut 450 Main Street Hartford, CT. 06103 (203) 240-3270

Attorney for Appellee

RICHARDJ. HARVEY

Stevens, Hinds & White, P.C. 209 West 125th Street Suite 202 New York, N.Y. 10027 (212) 866-6044

Attorney for Appellant

TABLE OF CONTENTS

Docket Entries ......................................... .

Index to Record on Appeal

Motion for Immediate Release or Irmnediate Trial ........ .

Memorandum of Law in Support of Filiberto Ojeda Rios's Motion for Irmnediate Release or Irmnediate Trial ...... .

Proposed Findings of Fact Submitted by Juan Segarra Palmer in Support of His January 12, 1988 Application for Conditional Release .................. .

Transcript, January 26, 1988

Transcript, Janaury 27, 1988 ........................... .

Transcript, January 27, 1988 (Chambers Conference) ..... .

Proposed Findings of Fact and Order Submitted by Filiberto Ojeda Ríos in Support of Application for Immediate Release or Immediate Trial ............. .

Government 's Response to Def endant Filiberto. Oj eda Ríos' Motion for Immediate Release or Immediate Trial ................ -;-............................... .

Defendant Filiberto Ojeda Rios's Reply to Government's Response on Motion for Immediate Release or Immediate Trial

Ruling on the Motion of Juan Segarra Palmer for Conditional Release .................................. .

Ruling on the Motion of Defendant Filiberto Ojeda Ríos for Conditional Release ......................... .

AYES-SUAREZ: END entered & fld on Ex Parte Mot for Perrnission to Travel fld. Clarie, J--cc Atty Bergenn & USM (kao)

TRANSCRIPT of Proceedings held 1/14/88 at Htfd before TEC fld (Falzarano, R.) (kao)

GOVT's Notice of In Carnera Sub #43 fld (kao)

NOTICF of InCamera Hearina Filing, filed FARINC I FARANICCI:

GOVT."S Porposed Procedure Re: Tape Transcript Dispute Resolution EEarings, filed

BERRIOS: Notice of Ibcamera ~iling

TRANSCRIPT of Proceedings held on 1/15/88, filed Cu ningham

OJEDA RIOS: Motion for Immdeiate Release or Immediate Trial, filed

DIAMANTE: ExPart Motion for Trasp. Expenses, filed and end. GRANTED. Clarie, J. copies USM

OJFDA RIOS: Ex Parte Mot. for Autho. of Purchase of Stero Headphones, filed and end: THe Court Clerk is authorized to replace the original e~uipment wit the same quality presently in use." Clarie, J.

CASTRO-RAMOS: CJA-24 approved in the amt of $2,262.50 for transcripts of Dec. 15, 16, 17 & 18, 1987 fld. Clarie, J--check mld (kao)

CASTRO-RAMOS: CJA-24 approved in the amt of $1,642.50 for transcripts of Dec 21, 22 & 23, 1987 fld. Clarie, J--check mld (kao)

SUPPRESSION HRG CONTS. Roll call taken; One Govt witness, previously sworn, resumes stand for further cross; One Govt witness sworn & testifies; Govt. Exhb #450 & 440N full; Deft. Exhb #2514 & 2515 full; Deft. Exhb #2516 marked ID; Court adjour ed to 1/22/88 at 10:00 A.M. Clarie, J. (kao)

FARINACCI: END entered & fld on Re~uest for Approval of Payment for Travel fld. Clarie, J--cc Atty Meyerson (fld by Atty Wieselman) (kao)

SUPPRESSION HRG CONTS. One Govt witness, previously sworn, resumes stand for further testimo y; Deft. Exhb #2517 fld; Deft. F.xhb #2518 marked ID. Clarie, J. (kao)

GOVT's Notice of Disclosure of & Affidavit of SA Jose P. Rodríguez dtd 1/25/88 fld (kao)

GOVT's Pesponse to Deft Segarra Palrner's Application for Bail fld (kao}

SF.GARRA: Proposed Findings of Fact in Support of his 1/12/88 A~plication for Conditional Release ld (kao)

CASTRO-RAMOS: CJA-24 approved in the amt of $2,250.00 for transcripts of Dec 8, 9, 10 & 11, 198 fld. Clarie, J--check rnld (kao}

TRANSCRIPT of Proceedings held 1/19/88 at Htfd before TEC :ld. (Falzarano, R.} (kao)

ALL DFFTS: Response to Govt's Proposed Procedu e re Trar.script/Translation Dispute Resolution ~eetin?S fld by ~tty Sultan (kao)

• FFRlANDF.Z: DF.FT's Memo re Procedure for Transe 1 Translation Dispute Resolution Hrgs (kao)

OJEDA RIOS: Mot for Leave to Withdraw as Court Appointed Attorney fld (kao)

O. GONZALEZ CLAUDIO: MOT to Modify Conditions lof Release fld (kao)

SUP?RFSSION HRGS COIT, deft Ojeda-Rios address s the Court; Deft. Exhb 2519 thru2527 full; Deft. ¡ Ojeda-Rios' Mot for Immediate Release or Immediate 1 Trial--DEC RES; One Govt witness, previously sworn resumes stand for further testimony; Deft. O. Gonz le+ Claudio's Mot to Modify Conditions of Release fld Court adjourned to 1/27/88 at 10:00 AM. Clarie, J ( ao)

FARINACCI: END entered & fld on Ex Parte Mot fo Approval of Payment for Travel. Clarie, J--cc Atty Meyerson only (kao)

FERNANDEZ: MOT for Immediate Disclosure and Production of All Govt Translations & Transcripts of Nonrelevant Tapes fld (kao)

FERNANDEZ: Mot for Disclosure & Production wit Regard to Videotape Suppression Hrgs fld (kao)

SEGARRA: Deft's Reply to Govt's Response to hi Application for Bail fld (kao)

TRANSCRIPT of Proceedings held 1/20/88 at Htfd in Chambers before TEC fld. (Belsvik, R.) (kao

TRANSCRIPT of Proceedings held 1/20/88 at 1 Htfd before TEC fld. (Belsvik, R.) (kao)

1 GOVT's Reply to Proposed Findings of Facts by 1 deft Segarra in Support of his 1/12/88 Application for Conditional Release fld (kao)

OJEDA: END entered & fld on Mot for Atty Kunst r to W/D: "Motion GRANTED.11 Clarie, J--cc mld (kao)

SUPPRESSION HRGS CONT. (Title III Monitoring S Roll call of attys & defts taken by Clerk; Deft. Exhb #2527A, 2528 & 2529 full; One Govt witness, previously sworn, resumes stand for further testim One Govt witness sworn & testifies; Govt. Exhb 440 full; Court adjourned to 1/28/89 at 10:00 AM. Clarie, J. (kao)

TRANSCRIPT of Proceedings held 1/21/88 at Htfd before TEC fld. (McKeever, R.) (kao)

GOVT's Memo in response to deft's Mot for Disclosures Concerning Video Tapes fld (kao)

1 SUPPRESSION HRGS CONT. (Title III Monitoring S s) Roll call of attys & defts taken by Clerk; deft. Segarra-Palmer's oral Mot for Ext. of Time to Argu deft's Mot for Immediate Release--GRANTFD to 2/2/8 v sworn

PROCEEDINGS

(cont1nued)

One Govt witness sworn & testifies; Court adjourned to 1/ 2 9 / 8 8 a t 1 O : OO AM. C1ar i e , J (ka o)

TRANSCRIP~ of Proceedings held 1/22/88 at Htfd before TEC fld. (McKeever, R.) (kao)

GOVT's Disclosure of Videotape Expert Reports fl ao)

GOVT's Mot fer Disclosure re deft's Claims Pertaining to Videotape Evidence fld (kao)

GOVT's Reply to Deft's Mot for Disclosure and Production w/regard to Videotape Suppression Hr?s f d kao)

RAMIREZ-TALAVERA: RULING On deft's Mot to Direct Govt Prosecutors to Answer Interrog Under Oath--DENIED. Clarie, J--cc mld (kao)

SUPPRESSION HRG CONTS. (Title III Monitoring Age ts roll call of attys & defts taken by Clerk; One Govt witness, previously sworn, resumes stand fer further testimony; Govt. Exhb #440P & 451 full; deft. Farinacci's Ex Parte Mot for Transportation f d; Court adjourned to 2/2/88 at 10:00 AM. Clarie, J. ( ao

FARINACCI: END entered & fld on Ex Parte Mot fo ransportation Expenses. Clarie, J--cc Atty Meyerso & SM (kao)

RULING on Defts' Mot for Disclosures Concerning ideotapes--GRANTED in part & DENIED in part. (See uling) Clarie, J--cc mld (kao)

MANDATF from VSCA In Re: Segarra Palmer & Ojeda Rios: AFFIRMFD. Goldsmith, C.

TALAVERA: M!tion to Adopt, filed

END: GONZALEZ CLADIO: Mot. to Modify .... GRANTED. Clarie, J. copies mailed

F.ND. TALAVFRA: Reauest to Modify COnditions of Relief GRANTED. Clarie, J. copies mailed RECOMMENDEDRuling on Tapes-Transcript/Translat on Procedure, filed and entered. Eagan, M. copies mail d GOVT. 's Response to Deft. Filiberto Ojeda Rios Motion for Imrnediate Release or Imrnediate Trial, fi ed AYES SUARFZ: Ex Parte Mot. to Travel ... filed and GRANTED. Clarie, J. copies mailed

OJEDA RIOS: Porposed Findings of Fact and Order Submitted by Filiberto Ojeda Rios in Support of Application for Imrnediate Release or Irunediate Tria , filed.

TRANSCRIPT of Proceedings held on 1/26/88, filed Cunningham, R. CJA-24 for transcripts of January 7 & 8, 1988 approved in the amt of $825.00 Clarie, J. (check ml ao) Sl!PPRESS ION HRG CONTS. ( Roll call of a t tys & def s taken bv Clerk); Deft. Segarra-Palmer's Mot for Rel as on bond~-DEC RES; Deft. F.xhb ~2530, 2531 marked ID; One Govt witness, previously sworn, resumes stand for further testimony; Court adjourned to 2/3/88 at

2/3

2/3 2/3

2/4 2/4

2/4

2/4 2/4

2/4

2/4

2/5

2/5

2/5

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2/5

2/5

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2/5

SCPPRESSIO~ HRG COKTS. Roll call taken; One Govt Kitness, oreviously sworn, resumes stand fer furtr.er testimony; One Govt •vitness sworn & testifi s; 1 Deft. Exhb =2532A, 2532B, 2533, 2534, 2535 & 2536 ft.111. Clarie, J. (kao)

GOVT's Memo in Response to deft's Reply re Audibility Dispute Rlsolution Procedures fld (kao)

TRANSCRIPT of Proceedings held 1/27/88 at Htfd .befare TEC fld. (McKeever, R.) (kao)

! TRANSCRIPT of Proceedings held 1/27/88 in Cham er~ 1before TEC flc (McKeever, R.) (kao)

OJFDA RIOS: Waiver of Right to be Present in :court fld (kao)

I TRANSCRIPT (Excerpt) of Suppression Hrg held !2/3/88 befare TEC fld (Belsvik, R.) (kao)

j TRANSCRIPT of Proceedings held 1/28/88 at Htfd befare TEC fld (Me Keever, R) (kao)

1 Rl>l 1 IREZ-TALAVERA: Mot to Adopt fld (kao)

¡ FARINACCI: Amendment of Technical Investigati ,Report of Frank McDermott fld by Atty Meyerson (ka ! RAMIREZ-TALAVERA: END entered & fld on Ex Par ¡Application fer Necessary Services fld (kao)

1 SUPPRESSION HRG CONTS. One Govt witness, previously sworn, resumes stand fer further testim Deft Exhb f2537, 2538, 2539, 2540A full; Deft Exhb 2540 marked ID; One Govt witness sworn & testifies; Govt Exhb ~440M now made full exhb; Court adjourne

1to 2/5/88 at 10:00 AM. Clarie, J. (kao)

GOVT's Reply to Defts Ojeda & Segarra's Applic lfor Irnmediate Release or Irnmediate Trial fld (kao)

1 GOVT's Notice of Disclosure of FD-302 by SA Ju Gonzalez fld (kao)

OJEDA RIOS: Deft's Reply to Govt's Response on ·Mot fer Irnrnediate Release or Irnmediate Trial fld ( ao

EX PARTE ORDER fld. Clarie, J. (kao)

1 TRANSCRIPT of Proceedings held 1/29/88 at Htfd

1 before TEC fld. (Belsvik, R.) (kao)

I. CAMACHO-NFGRON: Fx Parte Mot fer Transporta io ¡fld & FND. Clarie, J--cc USM & Atty Reeve (kao)

1 OJEDA P.IOS: Waiver of right to be in Court ·2/8/88 fld (kao)

1 SUPPRESSION HRG CONTS. Roll call taken; Deft. !Exhb f2541, 2541A, 2542, 2543, 2544, 2545 & 2546

l marked ID; One Govt witness, previously sworn, res stand fer further testimony; Clarie, J. (kao)

2/4

2/8

I CASTRO-RAMOS: CJA-24 fer transcripts of July 7 10, 1987 approved in the amt of $2275.00. Clarie, (check mld) (kao)

DFFTS' Reply to Govt's Memo in Response to Deft's Re~ly re Audit·· • Dispute Resolution

me hr

SEGARRl>.-PALMER: Waiver of Ri?ht to be in Court 2/8-9/88 fld (kao)

MELENDEZ-CARRION: Deft's Mot to Modify Conditi s of Release fld (kao)

TRANSCRIPT of ?roceedings held 12/8/86 at Htfd before TFGD fld. (Sperber, R.) (kao)

St.;PPRESSION HRG CONTS. (Moni toring Agents, Title III); Roll call of attys taken by Clerk (no defts present--Ojeda & Segarra have signed waivers); One Govt witness, previously sworn, resumes stand for further testimony; Deft Exhb #2547 marY.ed ID; deft Seqarra's Waiver of ~iqht to be present in Court 2/8-9/88 fld; Court adjourned to 2/9/88 at 10:00 AM. Clarie, J. (kao)

TRANSCRIPT of Proceedings held 2/2/88 at Htfd before TEC fld. (Falzarano, R.) (kao)

TRANSCRIPT of Proceedings held 2/4/88 (excerpt) at Htfd before TEC fld. (McKeever, R.) (kao)

APPEARANCE of AUSA Jeremiah Donovan for the United States for the limited purpose of issues arising from the unger strike of deft Segarra fld ka)

SUPPRESSION HRG CONTS. (Monitoring Agents & Ojeda's Bond); Roll call of attys & defts taken by Clerk; One Govt witness, previously sworn, resumes stand for further testimony; One Govt witness swor & testifies; Deft's oral Mot for Demonstration of SAMR by SA Rivera & for continuation of Seguestrat·on Order until the demonstration on this issue--DEC R S: Appearance of AlSA Jeremiah Donovan for the US for the limited purpose of issues arising from the hun er strike of deft Segarra fld; Court Orders the Bure u of Prisons to turn over to Atty. Reeve their resul s of blood & urine testinq of deft Segarra; Deft. o·edRios' oral argument on his ~ot for Immediate Relea e or for Immediate Trial--Drc RFS; Court adjourned o 2/10/88 at 10:00 AM. Clarie, J. (kao)

TRANSCRIPT of Proceedings held 2/3/88 at Htfd before TEC fld. (Belsvik, R.) (kao)

OJFDA-RIOS: Waiver of Right to be Present in Court 2/11 thru 2/17/88 fld (kao)

SCPPRESSION HRG CONTS. (Monitorinq Aoents); Roll call of attys & defts taken by Clerk; One Govt wi tness, !)reviously s 1,1orn, resumes stand for furthe testimony; Deft Exhb P2548 marked ID; Deft Fxhbs. 2549, 2550, 2551, 2552, 2553, 2554, 2555 full; One Govt wicness sworn & testifies; Court adjourned to 2/11/88. Clarie, J. (kao)

TRANSCRIPT of Proceedings held 2/4/88 at Htfd befare TEC fld. (McKeever, R.) (kao)

MFLENDEZ-CARRION: MOT to Require the Preservati n of Notes Qrafts & Work Paoers re Govt's Preoarati n of Transéri ts & Translations of Tape-Recorded Fvi f d (kao)

RVLING on Deft Segarra's Mot for Conditional Release--GRN:TFD. Clarie, J--cc rnld (kao)

BO~D HRG held re deft Seqarra. Govt reouests .~ebbia Hrq--written mot to be fld; Hrg cont'd to 2/22/88 at 9:15 AM re Conditions of Release. Eagan, M. (kao)

SCPPRESSION HRG CONTS. (Monitoring Agents); ¡roll call of attys & defts taken by Clerk; One Gov ¡witness sworn & testifies; Govt Exhb ,440S full; 1 Govt Fxhb f.452 marked ID; Clarie, J. (kao)

CJA-24 approved in the amt of $2280.00 for transcripts of January 12-25, 1988. Clarie, J-check mld (kao)

CJA-24 approved in the amt of $2375.00 for transcripts of January 19-22, 1988. Clarie, J-check mld (kao)

TRANSCRIP~ of Proceedinq held 2/5/88 at Htfd befare TEC fld (McKeever, R.) (kao)

TRANSCRIPT of Dispute Resolution Meeting held 2/8/88 at Htfd befare FOE fld. (Falzarano, R.) (ka

TRANSCRIPT of Proceedings held 2/8/88 at Htfd befare TEC fld (Falzarano, R.) (kao)

TRANSCRIPT of Proceedings held 2/9/88 at Htfd befare TFC fld (Falzarano, R.) (kao)

GOVT's Notice of Disclosure of Service Manual for Panasonic NV 8050 Video Cassette Recorder fld ka

GOVT's Mot for Nebbia Hrg re deft Segarra fld ka

DIAZ RUIZ: Ex Parte Mot to Serve Deposition Subpoenas (2) fld & END. Clarie, J--cc Atty Levy & L'SM (kao)

GOVT's Notice of Disclosure of report by Aschkenasy & Weiss fld (kao)

SUPPRESSION HRG CONTS. (Monitoring Agents); Roll call of attys & defts taken by Clerk; One Govt witness, previously sworn, resumes stand for further cross; Deft. Exhb f.2556 full; Defts' Mot for Subpoenas fld by Atty Backiel; One Govt witnes sworn & testifies; Govt Exhb #440T full; Clarie, J ( ao)

GOVT's Response to Fernandez-Diamante's Mot for Irnmediate Disclosure & Production of All Govt Translations & Transcripts of Nonrelevant Tapes fl ( ao)

GOVT's Response to Melendez-Carrion's Mot to Reguire the Preservation of Notes, Drafts & Work Papers re Preparation of Govt's Transcripts and Translations fld (kao)

RAMIREZ-TALAVERA: Inforrnative Mot of change of deft's work telephone number fld. (ce USPO) (kao)

TRANSCRIPT of Proceedinas held 2/10/88 at Htfd befare TEC fld. (McKeever, R.) (kao) CONT.

PROCEEDINGS (cont,nued)

SUPPRESSION HRG co:TS. (Monitorinc Aqents) i Roll call of attys & defts taken by Clerk; Govt's oral Mot for Ext. of Time (one week) re expert tape analysis--GRA.TED; 2 Govt witnesses, previously sworn, resumes stand for further testimony; deft. Ramirez-Talavera's Ex Parte Mot for Travel fld; def Ramirez-Talavera's Informative Motion fld. Court adjourned to 2/18/88. Clarie, J. (kao)

RAMIREZ-TALAVERA: END entered & fld on Ex Parte Mot for Travel. Clarie, J--cc Atty Acevedo & USM (k o)

TRANSCRIPT of Chambers Conference held 2/11/88 at Htfd before TF.C fld. (McKeever, R.) (kao)

TRP.NSCRIPT of Proceedings held 2/11/88 at Htfd before TEC fld. (McKeever, R.) (kao)

SUPPRESSION HRG CONTS. (Monitoring Agents); roll call of attys & defts taken by Clerk; One Govt witness, previously sworn, resumes stand for furthe testimony; One Govt witness sworn & testifies; Original tapes #83(a)E, 85(a)E, 49F., 86E, 65 & 66 are CNsealed & then subseouently resealed in open Court per Atty Wieselman; Govt. Exhb 440U full; Court adjourned to 2/19/88 at 10:00 AM. Clarie, J. (k o)

RULING on Ojeda-Rios' Mot for Conditional Release fld--DENIED. Clarie, J--cc mld {kao)

ERRATUM fld re Ojeda-Rios' Ruling on Mot for Conditional Release fld. Clarie, J--cc mld (kao)

SVPPRESSION HRG CONTS {Monitoring Agents); Roll call of attys & defts taken by Clerk; One Govt witness, previously sworn, resumes stand for furthe testimony; One Govt witness sworn & testifies; Deft Exhbs #2557 & 2558 marked ID; Deft. Exhb #2559 thru 2561C full; original tape #7 from Levittown residen e UNsealed & then REsealed in open Court per Atty Bergenn by Clerk; Govt Exhb #453 & 440V full; orig Tape #28 from Levittown residence is UNsealed & the REsealed in open court by Clerk by AVSA Corcoran. Court adjourned to 2/22/88 at 10:00 AM. Clarie, J. {ka BERRIOS: Adoption of Mots fld {kao)

Marshal's Executed R~turn of Subpoena for Vincent J. de la Vega fld (kao)

Marshal's Executed Return of two (2) depositio subpoenas fld (kao)

~RANSCRIPT of Proceedings held 2/16/88 at Htfd before TEC f ld. (Falzarano, R.) (kao)

GOVT's Notice of Disclosure of Service Manual for GYYR-RCA Time Lapse Video Recorder fld (kao)

SUPPRESSION HRG CONTS. (monitoring Agents); Roll call of attys & defts taken by Clerk; One Gov witness, previously sworn, resumes stand for furth r testimony; Govt Exhbs #454A, 454B full; Govt Exhb 455A & 455B marked ID; Deft Exhb #2562 & 2563 full Govt's In Camera Submission (no#) of FD-302

P~ysical Surveil loqs dtd 5/30/84 fld; Court Order Govt. Exhbs ~454A & 454B SEALED. Court adjourned at 5:10 pm to 2/24/88 at 10:00 AM. Clarie, J. (ka

1 RULING on Mot to Fxchange Expert Reports on 1 Alleged Videotape Tampering fld. Clarie, J--cc mld (kqo)

TRANSCRIPT of Proceedings held 2/17/88 at Htfd befare TEC fld. (Belsvik, R.) (kao)

¡ CJA-24 for transcripts of 1/26 thru 29, 1988 ¡approved in the amt of $1,945.00. Clarie, J.--chec ¡mld (kao)

SUPPRESSION HRG CONTS. (Monitorina A?ents); Roll call of attys & defts taken by Clerk; One Gov witness sworn & testifies; Govt Rxhb ,440W full; Deft Exhb #2564, 2566 & 2567 marked ID; Deft Fxhbs 2557 & 2558, prevously marked ID, now full exhbs; Orig cassette tape #13F (Datsun Sentra) UNsealed in open Court per Atty Harvey by Clerk; Court adjourned to 2/25/88 at 10:00 AM. Clarie, J. (kao)

SUPPRESSION HRG CONTS (Monitoring Agents); Roll call of attys & defts taken by Clerk; Two (2) Govt witness, previously sworn, resumes stand for further testimony; Orig. Datsun Sentra cassette tapes #13 & 14 are UNsealed in open Court by the Clerk at Atty. Harvey's request & subsequently RFsealed in open Court; Deft Fxhbs #2568 thru 2572 marked ID; Govt Exhbs #456 thru 549 marked ID; Court adjourned to 2/26/88 at 10: 00 AJA.. Clarie, J. (k o)

TRANSCRI:PT of Proceedings held 2/18/88 at Htfd befare TFC fld. (McKeever, R.) (kao)

FERtlA1'1DR2-DIN-IAN':':'F: F.x Parte Mot for '!'ravel fl & END. Clarie, J--cc Atty Williams & USM (kao)

OJEDA RIOS: NOTICE OF APPEAL of Rulinq Denyina Bail or Immediate Trial fld (kao)

BFRRIOS: Adoption of Motion fld (kao)

GOVT's In Camera Fx Parte Application Under Sea for Protective Order fld (kao)

TRANSCRIPT of Proceedings held 2/19/88 at Htfd before TEC fld. (McKeever, R.) (kao)

SUPPRESSION HRG CONTS (Monitoring Agents); rol call of attys & defts taken by Clerk; Govt's Notic of Disclosure of Photo log & Wave Forms f~d; One Govt witness, previously sworn, resumes stand for further testimony; Govt. Fxhbs #460 thru 463A full deft Farinacci's Mot to Modify Condition of Releas fld; Govt Exhb ,464 thru 466 marked ID; deft. Exhb ,2573 full. Clarie, J. (kao)

DIA7 RUI7: Adoption of Mots fld (kao)

AYES-SUARFZ: Mot to Adopt fld (kao)

FFRNAtlDF2-DIN'A 1rnF: Fx Parte Mot for Funds for Video Fxpert fld & FND. Clarie, J--cc Atty William ( ao)

CON'Y'.

ATE

PROCEEDINGS (continued) V. EXCLUDABLE DELAY (bl lcl Id) J-----+-(Documrn1 No.)

SFGARPA-PAL~FR: CO~T'd Bond hra held. Nebbia hrq to be scheduled at reouest of counsel during week of 3/1/88. (Fagan, t 1 .) (kao)

0RDFR re Schedulina of Title III Fxpert Witnesses fld. Clarie, J--cc rnld (kao) '?RA!''SCRIºT of transcript dis!)ute resolution meeting held 2/5/88 at Htfd before FOF fld. (Benoit R ) (kao)

TRANSCRIPT of O roceedings held 2/23/88 at Htfd efore TFC fld. (Falzarano, R.) (kao)

ALL DFFTS: In Carnera Fx Parte Mot to Furnish dditional Funds for Frank McDerMott fld by Atty 'ieselrnan (kao)

OJEDA RIOS: INDEX, ROA and Clerk's Certificate rnld to USCA (re Denial of Bail or Trial) (CB)

CASTRO-RAMOS: CJA-24 for transcriots of 2/2-2/5 approved in the arnt of $2,165.00. Clarie, J--check rnld (kao)

CASTRO-RAMOS: CJA-24 for transcriots of 2/8-2/1 88 appproved in the arnt of $2,147.50. Clarie, J--chec rnld (kao)

SUPPRESSION HRG CONTS. (Monitoring Agents); Roll call of attys & defts taken by Clerk; Certified interpreters Maria J. Cazabon & Janice Palma sworn by Clerk; One Govt witness, previously sworn, resu stand for further testirnony; Deft Exhb #2574 rnarke ID; Govt's oral Mot to Modify deft Segarra-Palrner's Conditions of Release--DEC RES; original Levittown residence tape f.7E is UNsealed in open Court by Clerk per Atty Reeve & then resealed. Clarie, J. ( TRANSCRIPT of Proceedings held 2/24/88 at Htfd befare TEC fld. (Belsvik, R.) (kao)

ALL DEFTS: In Carnera Ex Parte Mot to Furnish Funds for testirnony of McDerrnotts fld by Atty Wieselrnan (kao)

SUPPRESSION HRG CONTS (Monitoring Agents); Roll call of attys & defts taken by Clerk; One Govt witn ss previously sworn, resumes stand for further testirno y; Deft Exhb 2575 full; deft. Fernandez' Mot for Transcripts & Translations of Portions of all "original" surveil tape recordinqs under Seal in this case fld; deft Exhbs #2576, 2577, 2578 rnarked ID; Court adjourned to 3/3/88 at 10:00 A.M. Clarie, (kao) FER1ANDE2-DIAMANTE: Mot for Transcripts and Translations of Portions of all "original" surveil tape recordinqs under Seal in this case fld (kao)

COURT REPORTER's Notes of Proceedings held 2/23 88 in Charnbers of TEC fld SEALED. (Falzarano, R.) (ka )

~R.l\NSCRIPT of in Chambers Conf held 2/23/88 at Htfd before TEC fld SFALED. '(Falzarano, R.) (kao

TRl\~lSCRIPT of Proceedings held 2/26/88 at Htf before TFC fld. (McKeever, R.) (kao)

BERRIOS: MOT to Furnish CJA Funds fld & END. Clarie, J--cc Atty Wieselman & USM (Kao)

FARINACCI: Ex Parte Mot for Perrnission to Trav l fld & END. Clarie, J--cc USM (kao)

SUPPRFSSION HRGS CONT. (Monitoring Agents-- / 1 Title III}; Roll call of attys & deft5 taken by Cl rk;

1 One Govt witness, previously sworn, resumes stand J for further testimony; Deft Fxhb #2569A, 2579 thru 1

1 2584 marked ID; Govt Exhb #467 rnarked ID; Deft. ¡ I. Camacho's oral Mot to UNseal his bail hrg 1· Exhbs #4 thru 10--GRANTF.D; Court adjourned to 3/4/88 at 10:00 AM. Clarie, J. (kao)

ALL DFFTS: (4) Objections to Govt's Transcri~ts Intended to be Offered at Trial (Vega Baja tapes 40, 58, 98 & 105 fld by Atty Sultan (kao)

TRANSCRIPT of Proceedings held 2/25/88 at Htfd before TEC fld. (McKeever, R.) (kao)

8F.GARRA: Cont'd bond hearing re Conditions of Release held. Maa Orders additional conditions of Release: ( 1) curfew 1 O: 00 PM to 7: 00 AM 7 days per week; (2) Atty Weinglass to accept custody of deft and appt surrogate custodian to serve when he i5 unavailable; ( 3) deft' s brothers Luis & Antonio Segarra & sister Adela Segarra Barcelo, to co-sign bond. Luis Segarra given to 3/8/88 to sign "duplic t original" and to 3/23/88 to sign original and (4) deft to subrnit to electro body monitoring at direction of Pretrial Services; Govt's request fo Nebbia hrg--GRANTED & set for 3/7/88 at 9:00 AM. Clarie, J. (kao)

GOVT's Notice of Disclosure of 29 photos from tape experts fld (kao)

SUPPRESSION HRGS CONT. (Monitoring Agents-Titl I I); One Govt witness, previously sworn, resumes stand for further cross; One Govt witness sworn & testif' s; Govt Exhb #468 full; Clarie, J. (kao)

TRANSCRIPT of Proceedings held 2/26/88 at Htfd before FOE (Segarra's bond hrg) fld. (McKeever, R.) ( ao)

TRANSCRIPT of Proceedings held 2/26/88 at Htfd before FOE (transcript resolution hrg) fld. (McKeever, R.) (kao)

SEGARRA: Nebbia Hrg held; Mag. finds equity sufficient for posting of bond; One Govt witness lsworn & testified; Declaration of Atty Weinglass f d. , (Eagan, M.) ()<ao) i

SFGARRA-PAU~FR: Hrg held re signing waived hel 1 Waiver of Right to be Present at Pretrial Proceed'ng , Trial & Post-Trial Proceedinas executed & fld.

SEGARRA: Declaration of Atty Weinglass Agreeing to Supervise the Release of deft fld (kao)

FE~ JANDF.Z-DIAMA!'JTF.:!-10"' for Access to Videotape and Machines fld (kao)

F.ND entered & fld on Govt's Mot for Nebbia Hrq re Seqarra: "GRA!'J'J'FDin ooen court 3/4/88--to he conducted 3/7/88 at 9:00 l\M. 11 Fagan, M--cc rnld (kao

TRANSCRIPT of nroceedings held 3/1/88 at Htfd before TEC fld. (Falzarano, R.) (kao)

OJEDA-RIOS: WAIVER of Right to be present in Court 3/9/88 fld. (kao)

SUPPRESSION HRG CONTS. Roll call of attys & def s taken by Clerk; Govt. Exhbs 1469 thru 472 marked ID; One Govt witness sworn & testifies; deft exhbs f.258 thru 2587 full; Deft F.xhbs #2588 & 2589 marked ID; Court orally Orders Govt's Tape Fxpert's Report to be fld 3/11/88 & deft experts McDermotts to appear to testify 3/18/88. Court adjourned to 3/18/88. Clarie, J. (kao)

FARINACCI: RULING on deft's ~ot to Hodify Condts of his Release fld. Clarie, J--cc mld counse & USPO (kao)

BERRIOS: RULING On Mot to Suppress Evidence an Statements--DENIED. Clarie, J--cc mld (kao)

MELENDEZ: RULING on Mot to Modify Conditions o Release fld. Clarie, J--cc mld counsel & USPO (kao)

TRANSCRIPT of Proceedings held 3/2/88 at Htfd before TEC fld. (Belsvik, R.) (kao)

APPEARANCE OF AUSA Denis M. King for the Unite States fld (kao)

GOVT's Notice of Disclosure of 3rd roll of pho fld (kao)

TRANSCRIPT of Proceedings held 3/3/88 at Htfd before TEC fld. (McKeever, R.) (kao)

GOVT's Notice of Disclosure of waveform plots fld (kao)

GOVT's Memo in Opp to Deft's Submission of Composite Transcripts fld SEALED (to FOE) (kao)

DEFT's Memo of Law re Filing of Transcripts fl SEALED (to FOE) (kao)

ALL DEFTS' Memo of Law in Support of defts' llegations of live-Monitoring fld by Atty Meyerson (Garcia Report) (kao)

AYES-SUAREZ: NOTICE of Ex Parte Filing fld (ka

TRANSCRIPT of Proceedi~gs held 3/4/88 at Htfd before TEC fld. (McKeever, R.) (kao)

TRANSCRIPT of Bond hrg re deft Segarra held 3/4/88 before FOE fld. (Lecours , R.) (kao)

TRANSCRIPT of Transcript Resolution Meeting held 3/4/88 before FOE fld. (McKeever, R.) (kao) CONT.

HRG re status of Mr. de la Vega's tapes held. Clarie, J. (kao)

HRG held re deft Fernandez' Mot for Access to ~ideotape~-& Machines--DEC RES; Govt's response to ~eft Fernandez' Mot for Access to Videotapes and Machines fld. Clarie, J. (kao)

AYES-SUAREZ: Ex Parte Mot for Permission for Travel fld (kao)

GOVT's Response to Fernandez' Mot for Transcr pti & Translations of All Orig Surveil Tapes Under Sea fld (kao)

GOVT's Notice of Disclosure of tape report from Weiss & Aschkenasy fld (kao)

FERNANDEZ: MOT to Modify Conditions of Bond fld (kao)

OJEDA: ~ECEIPT from USCA re Index to Record on ~ppeal fld (kao)

FERNANDEZ: Ex Parte Mot for Transportation fld & END. Clarie, J--cc USM & USPO (kao)

FARINACCI: Ex Parte Mot for Transportation fld & END. Clarie, J--cc USM & USPO (kao)

TRANSCRIPT of Nebbia Hrg held 3/7/88 at Htfd before FOE re deft Seg arra fld. Falzarano, R.) (kao)

TRANSCRIPT of Proceedings held 3/8/88 at Htfd oefore FOE fld. (Falzarano, R.) (kao)

FERNANDEZ-DIAMANTE: Mot for one week ext of tirre for Inspection & Reporting by Videotape Expert fld (kao)

FERNANDEZ-DIAMANTE: Deft's Reply to Govt's Response to Mot for Transcripts & Translations of Portions of all Orig Surveil Tape Recordings fld (~ao)

GOVT's Notice of Disclosure of photos of duplicate orig Levittown tapes & waveform plots & notes by Govt experts fld (kao)

FERNANDEZ-DIAMANTE: END entered & fld on deft's Mot for one-week ext of time for inspection and reporting by videotape expert: "GRANTED." Clarie, tr-cc mld (kao)

ALL DEFTS: Mot for Ext. of Time (to 3/22/88) fo~ presentation of testimony of Frank McDermott, Ltd fld & END: "Motion GRANTED; the hearings will proceed on Tuesday 3/22/88 at 10:00 AM. All necessary witnesses shall be prepared to testify. No further continuances shall be granted." Clarie, J--cc mld (kao) (fld by Atty v7ieselman)

ORDER Authorizing the duplication of Title III tape recordings presently under seal fld. Clarie, J--cc mld (KAO)

CASTRO-RAMOS: MOT to Modify Condts of Release fld (kao)

ALL DEFTS: Ex Parte Request for Funds for deft's expert fld by Atty Wieselman (kao)

CONT.

RAMIREZ-·i'ALAVERA: Ex Parte Mot for Necessary Services fld & END. Clarie, J--cc Atty Acevedo only (k o)

DEFTS' Objections to Govt's transcript of Reel #79 at Vega Baja fld by Atty Sultan (kao)

DEFTS' Objections to Govt's transcript of Reel #19 at Vega Baja fld by Atty Sultan (kao)

DEFTS' Objections to Govt's transcript of Reel #10 at Vega Baja fld by Atty Sultan (kao)

DEFTS' Objections to Govt's transcript of Reel #3 at Vega Baja fld by Atty Sultan (kao)

TRANSCRIPT of Tape Resolution hrg held 3/10/88 at Htfd before FOE fld. (Lecours, R.) (kao)

RAMIREZ-TALAVERA: Ex Parte Mot for Travel Reque t fld & END. Clarie, J--cc Atty Acevedo only (kao)

AYES-SUAREZ: END entered & fld on Ex Parte Mot for Permission to Travel fld. Clarie, J--cc Atty Bergenn & USH (kao)

TRANSCRIPT of Proceedings held 3/10/88 re Mot for Access to Videotapes & Machines fld. (McKeever, R) (kao)

RULING on deft A. Camacho Negron's Mot to Suppr ss Evidence from his home & Car and oral statements-DENIED. Clarie, J--cc mld (kao)

WEINBERG: Mot to Enlarge Limits of Bond fld (k o)

WEINBERG: END entered & fld on Mot to Enlarge Limits of Bond: "GRANTED." Clarie, J--cc mld (kao)

DEFTS' Memo re Issues Relating to Transcript/ Translation Dispute Resolution Proceedings fld by Atty Sultan & SEALED (w/FOE) (kao)

ALL DEFTS: In Camera Ex Parte Mot to Arnend Ord r of 8/5/87 re Expert García fld (kao)

BERRIOS: MOT to Modify Condts of Release fld ( ao

TRANSCRIPT of Proceedings held 3/11/88 at Htfd before FOE (transcript dispute resolution hrg) fld. (Cunningham, R.) (kao)

END entered & fld on All Deft's Ex Parte Mot to Arnend Order re Interim Payments fld. Clarie, J--cc defense counsel only (kao)

GOVT's Memo in Opp to defts' Objections to Govt 1 s ranscripts & Translations fld (kao)

CJA-24 for transcripts of 2/16, 17, 18 & 19, 19 8, approved in the arnt of $2,485.00. Clarie, J. (check rnld ( kao)

CJA-24 for transcripts of 2/23, 24, 25 & 8, approved in the arnt of $2,115.00. Clarie, J. rnld (kao)

DIAZ-RUIZ: Adoption of Mots fld (kao)

SUPPRESSION HRG CONTS (Comrnence Title III Expe Roll call of attys & defts taken by Clerk; Court orders sequestration or~--- ~, continue to expert wi ne ses; . '

UNITED STATES DISTRICT COURT DISTRICT OF CONNECTICUT

UNITED STATES OF AMERICA vs. FILIBERTO OJEDA RIOS

INDEX TO RECORDON APPEAL

VOLUMEI

Transcript of Proceedings held before the Honorable T. Emmet Clarie, Senior U.S.D.J., on January 26, 1988 in Hartford, Connecticut

Transcript of Proceedings held before the Honorable T. Emmet Clarie, Senior U.S.D.J., on January 27, 1988 in Hartford, Connecticut

Transcript of Chambers Conference before the Honorble T. Emmet Clarie, Senior, U.S.D.J., on January 27, 1988 in Hartford, Connecticut VOLUMEII

Transcript of Proceedings held before the Honorable T. Emmet Clarie, Senior U.S.D.J., on February 2, 1988 in Hartford, Connecticut

Transcript of Proceedings held before the Honorable T. Emmet Claire, Senior, U.S.D.J., on February 9, 1988 in Hartford, Connecticut

VOLUMEIII

Certified Copy of Docket Entries (Front Page of Filiberto Ojeda Ríos; Master Docket From Page 95 A; January 22, 1988)

Motion for Immediate Release or Immediate Trial

Proposed Findings of Fact Submitted by Juan Segarra Palmer in Support of His January 12, 1988 Application for Conditional Release

Proposed Findings of Fact and Order Submitted by Filiberto Ojeda Ríos in Support of His Application for Immediate Release or Immediate Trial

USA vs. Ojeda Rios Index to Record on Appeal

Government's Response to Defendant Filiberto Ojeda Rios' Motion for Immediate Release or Immediate Trial

Defendant Filiberto Ojeda Rios' Reply to Government's Response to Motion for Immediate Release of Immediate Trial

Government's Reply to Defendant Filiberto Ojeda Ríos' and Juan Segarra Palmer's Application for Immediate Release or Immediate Trial

Notice of Appeal From Denial of Bail or Immediate Trial

UNITED $TATES DISTRICT COURT DISTRICT OF CONNECTICUT

UNITED STATES DISTRICT COURT -against -

FILIBERTO O.JEDARIOS -----------------------------------x

No. H-85-50 (TEC) January 22, 1988

MQTIONPOR IMMEDIATERELEASE OR IMMEDIATETRIAL

FILIBERTO OJEDA RIOS hereby demands imrnediate release from 29 months of preventive detention imposed under the authority of 18 u.s.c. Section 3141 tl ~. As a person detained as the result of bis participation in the struggle of the people of Puerto Rico for self-determination, he is entitled to immediate release under international law, which prohibits the detention of persons engaged in struggles for independence frorn colonial control, alíen dornination and racial discrimination. 1

Mr. Ojeda Rios charges that, pursuant to international law, this Court has neither lawful jurisdiction nor moral authority to try him. Given the 90 year history of United States District Courts in upholding the u.s. government's cqlonial domination over Puerto Rico, it is not possible for this Court to give fair consideration to Mr. Ojeda Rios's entitlement to the

1 This right is well established in custornary international law, binding on all rnernbers of the United Nations, including the Uni tea Sta tes. Sorne of the more relevant conventions, declarat ions and treaties are cited and discussed in the attached Memorandurn of Law.

special status accorded by international law to tbose engaged in anti-colonial struggle, and to his attendant rigbt to release. In consequence, Mr. Ojeda Rios has the right to bave this claim adjudicated "by a competent, independent, and impartial tribuna 1 " , o t her t han a Co u r t o f t he c o 1 o ni a 1 p owe r , in accordance with the obligations entered into by the United States government as a signatory of the American Convention on Human Rights. 2

Both the International Court of Justice, the judicial organ of the United Nations, and the Inter-Arnerican Court of Human Rights, a judicial arrn of the Organization of American States, of which the United States is a rnernber, provide such international, independent and impartial fora. Mr. Oj eda Rios therefore requests that the Court order the United States governrnent to submit to the jurisdiction of one or other international tribunal so that a competent, impartial and independent body rnay rule on the question of Mr. Ojeda Rios's right to be treated as a participant in the struggle against the colonization and alien domination of the people of Puerto Rico by the governrnent of the United States.

2 American Convention on Human Rights, signed at San Jose, Costa Rica, 1969. Article a, entitled Right to a Fair Trial, reads in relevant part:

l. Every person has tbe right to a hearing, with due guarantees and within a reasonable time. by a compeent « independent « and impartial tribunal~ previously established by law, in the substantiation of any accusation of a criminal nature made against him ... (ernphasis supplied).

In the event that this Court shall deny Mr. Ojeda Rios's demand for imrnediate release and also refuses to transfer this case for adjudication before an international tribunal, then Mr. Ojeda Rios is compelled to insist on bis right to immediate trial. Any further delay prolongs bis political internment while suppressing bis right to respond to and expose this politically motivated prosecution.

In support of bis demands, Mr. Ojeda Ríos further states the following:

l. A Puerto Rican citizen, he was arrested in his homeland for bis participation in the struggle of the Puerto Rican people for self-determination and independence from the alíen domination of the United States. Rather than permit the allegations against him to be judged by Puerto Ricans, the United States governrnent transported hirn, together with his compatriots, to the United States to stand trial in Hartford, Connecticut.

2. Ini tially, nine of the Puerto Rican patriots were held in preventive detention. All but Mr. Ojeda Rios and his coaccused, Juan Segarra Palmer were ultimately released pursuant to directions of the United States Court of Appeals for the Second Circuit. Far 29 months the United States govermnent has held Mr. Ojeda Rios in preventive detention, rnany hundreds of miles from his family and comrnunity.

3. International law and the Constitution of the United States provide that any person charged with a criminal

offense shall be entitled to trial within a reasonable time or release. 3

4. If Mr. Ojeda Rios is forced to wait until all further pre-trial hearings are completed, he will have been subjected to up to five (5) years preventive detention before a jury --which will not be a jury of bis peers --decides this case. This wholly unprecedented delay is caused by the strategic and tactical decisions made by the u.s. government to conducta wide-ranging and open-ended intelligence gathering operation against a political organization, its activities, members, affiliates and supporters, rather than to conducta more limited investigation concerning specific alleged illegal acts.

s. The indifference of this Court to the length of continued preventive detention had already been demonstrated when the Court denied requests for bail and for severance as long ago

3

Article 9 (3) of the International Covenant on Civil and Political Rights provides:

Anyone arrested or detained on a criminal charge shall be brought promptly before a judge or other officer authorized by law to exercise judicial power and shall be entitled to trial within a reasonable time orto release. rt shall not be the general rule that persons awaiting trial shall be detained in custody, but release may be subject to guarantees to appear for trial, at any other stage of the judicial proceedings, and, should occasion arise, for execution of the judgment. (Emphasis supplied).

The Sixth Amendment to the United States Constitution states in material part:

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed ...

as Mar ch, 19~7. Moreover, in a ·substantial number of other rulings, particularly in its disregard for international law; in its denials of motions to transfer venue to Puerto Rico; and in its upholding of the u.s. government's wholesale violation of privacy rights through physical and electronic searches, this Court has revealed its prejudice against patriotic Puerto Rican organizations, which it characterizes as "terrorists". Further efforts to vindicate the rights of Mr. Ojeda Rios, whom the prosecution claims was a founding member of Los Macheteros, will only serve to prolong his inhuman detention and to assist the u.s. government in its efforts to criminalize the legitimate struggle for Puerto Rican self-determination.

Accordingly, Mr. Ojeda Rios refuses to permit the prosecution to prolong his internment through these extensive pre-trial hearings; the length and number of which have been necessitated by the gross misconduct of agents of the u.s. government.

·waEREFORE, Mr. Ojeda Rios demands that this Court Order his irnrnediate release and the irnrnediate transfer of his case to an international tribunal. Failing which, he has no alternative but to demand his irnrnediate trial.

Dated: Hartford, Connecticut January 22nd, 1988

ios

UNITED$TATESDISTRICTCOURT

DISTRICTOF CONNECTICUT

UNITED STATES DISTRICT COURT -against - No. B-85-50 (TEC) January 22, 1988

FILIBERTO o.JEDA RIOS

ORIMMEDIATETRIAL

Submitted by: Richard J. Harvey Attorney for FILIBERTO OJEDA RIOS

STEVENS, HINDS & WHITE, P.C. 209 West 125th Street Suite 202 New York, N.Y. 10027 (212) 866-6044

QNITED STATES DISTRICT COURT DISTRICT OF CONNECTICUT

UNITED STATES DISTRICT COURT - against -

FILIBERTO o.JEDA RIOS -----------------------------------X

No. H-85-50 (TEC) January 22, 1988

MEMORANDUM OF LAWIN SUPPORTOF MOTIONFOR IMMEDIATERELEASE ORIMMEDIATETRIAL

FILIBERTO OJEDA RIOS is a Puerto Rican citizen who was arrested in his horneland on August 30th, 1985, and transported to the United States. He has been held in preventive detention pursuant to the 18 u.s.c. Section 3141 tl ~. for 29 rnonths. The Court has refused to set any terrns and conditions for his release.

The grounds advanced by the United States governrnent for continuing his preventive detention are manifestly political, in that Mr. Ojeda Rios is asserted to be a leader of Los Macheteros, part of the liberation movement which seeks to free Puerto Rico frorn colonialism, alien dornination and racial discrimination. Mr. Ojeda Rios has indeed been an active participant in the Puerto Rican liberation struggle for more than 25 years and he relies on the rules of customary international law in support of his dernand for immediate release or immediate submission of the case toan independent, impartial international tribunal. In the alternative, he dernands immediate trial.

PQINT1

UNITED STATES COURTS ARE OBLIGEDTO APPLY THE LAWOF NATIONSAS SET FORTHBY CUSTOMARYINTERNATIONALLAW ANDTHECHARTEROF THEUNITEDNATIONS

Mr. Ojeda Rios asserts bis right under custornary international law and the Charter of the United Nations to be treated as a rnernber of a national liberation rnovernent engaged in the legitirnate struggle to free bis country, Puerto Rico, frorncolonialisrn, alien subjugation and racial discrirnination.

Principles of international law, whether derived frorn treaty, custorn, general rule or scholarly prescription, are binding on the Courts of the United States. As the Suprerne Court ruled in The Paguette Habana, 175 u.s. 677, 700 (1900):

International law is part of our law and rnust be ascertained and adrninistered by the courts of justice of appropr iate j ur isdiction, as often as questions of right depending upon it are duly presented for their deterrnination.

Moreover, the United Nations Charter is a treaty to which the United States is a party and therefore, under the Constitution, part of the Suprerne Law of the Land. As the suprerne Court stated in Asakura v. Seattle; 265 u.s. 332, 341 (1924):

[A treaty] stands on the sarne footing of suprernacy as do the provisions of the Constitution and laws of the u.s. It operates without the aid of any legislation, state or national; and it will be applied and given authoritative effect by the courts.

This principle is of paramount importance in this case in evaluating the United States government's violations of its international treaty obligations in respect of the American Declaration on the Rights and Duties of Man, which has been both signed and ratified by the u.s. government and therefore constitutes the Supreme Law of the Land. See below, page 16.

More recently, the United States Court of Appeals for the second Ci rcui t held, in Filartiga y. Pena-Irala, 63 o F. 2d 876, (1980) that the law of nations forms a part of the laws of the United States, notwithstanding the absence of specific congressional enactments, and accordingly the Court applied various sources of international law in finding that the prohibition against torture has become a peremptory norm of international law, binding upon the United States government and enforceable in its Courts. 1

In reaching its holding in Filartiga, the Court stated that the Declarations on human rights of the United Nations General Assemblyt ":recify with great precision the obligations of member nations under the Charter," and "[s]ince their adoption, l!_embers can no longer contendthat they do not know what human rights they promised in the Charter to promete." The Court went on to state:

Moreover, a U.N. Declaration is, according to one authoritative definition, "a formal and solemn instrument, suitable forrare occasions when principles of

1

See also, u.s, v. Toscanino, soo F.2d 267,276-78, (2d Cir., 1974); FTC v. Caben, 636 F.2d 1300 (D.C. Cir. 1980); Fernandez y. Wilkinson. 505 F.Supp. 787 (D.Kan., 1980).

great and lasting importance are being enunciated."

34 U.N. Doc. E/cn.4/1/610 (1962) (memorandum of Office of Legal Affairs, U.N. Secretariat). Accordingly, it has been observed that the Universal Declaration _of Human Rights "no longer fits into the dichotomy of "binding treaty" against "nonbinding pronouncement", but is rather an authoritative statement of the international community." E. Schwelb, Human Rights and the Internatinal Community, 70 (1964). Thus, "a declaration creates an expectation of adherence, and insofar as the expectation is gradually justified by State practice, a declaration may by custom become recognized as laying down rules binding upon the Sta tes." 34 U.N. ESCOR, supra. Indeed, several commentators have concluded that the Universal Declaration [of Human Rights] has be come, in toto, a part of the binding customary international law. Nayar, supra. at 816,17: Waldock, "Human Rights in Contemporary International Law and the Significance of the European Convention," Int'l. & Comp. L.Q., Supp. Publ. No. 11 at 15 (1965).

In the same way, the historie United Nations Decolonisation Declaration, like the International Human Rights Covenants and other declarations recognizing the fundamental human right to self-determination, establish principles of great and lasting importance which both give specificity to the Charter and stand as authoritative statements of binding customary international law. 2 (See below, page 4, Point II, for a fuller treatment of these documents).

2 "[I]t is clear that Courts must interpret international law notas it was in 1789, but as it has evolved and exists among the nations of the world today." Filarteaa, supra, at p.881.

At least one authority considers that international human rights precepts are binding on the courts of the United States through the Ninth Amendment. See Paust, Human Rights and the Ninth Arnendrnent. a New Form of Guarantee, 60 Cornell Law Review 231 (1975).

POINTII

INTERNATIONALLAWRECOGNIZES THAT COLONIZEDPEOPLES HAVE THERIGHTTOSELF-DETERMINATIQN

The right to self-determination of colonial peoples is an incontestible legal principle today. 3 The steady march of progress of former colonies to independence as full members of the cornrnunity of nations has been advanced by the recognition of this principle in the Charter of the United Nations; 4 the two seminal human rights covenants of 1966 the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights; 5 and, of

3 see, inter a.lli, Brownlie, Public International Law. 2d Ed., p. 577; and "The Legal Status of National Liberation Movements", by Kader Asmal, Senior Lecturer in Law, Trinity College, Dublin; published by the United Nations Centre Against Apartheid, 1984.

4 Article 1, paragraph 2 requires the development of:

"friendly relations arnong nations based on respect for the principle of equal rights and self-determination of peoples";

Article 55 places respect for "the principle of equal rights and self-determination of peoples" in the context of "peaceful and friendly relations arnong nations";

Article 56 enjoins member States of the U.N. to take "joint and separate action in co-operation with the Organization for the achievement of the purpose set forth in Article 55".

5 Common Articles 1 and 2 of each Covenant read as follows:

1. All peoples have the right to self-determination. By virtue of that right they freely determine their economic, social and cultural development.

2. All peoples may, for their own ends, freely dispose of their natural wealth and resources without prejudice to any obligations arising out of international economic coA-

course, in the historie U.N. Declaration on the Granting of Independence to Colonial Countries and Peoples, 1514 (XV), 1960. 6

operation, based upon the principle of mutual benefit, and international law. In no case maya people be deprived of its means of subsistence.

/51~ 6

.:;::::::::-

This Declaration provides that:

l. The subjection of peoples to alien subjugation, domination and exploitation constitutes a denial of fundamental human rights, is contrary to the Charter of the United Nations and is an impediment to the promotion of World peace and co-operation.

2. All peoples have the right to self-determination¡ by virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.

3. Inadequacy of political, economic, social or educational preparedness should never serve as a pretext for delaying independence.

4. All armed action or repressive measures of all kinds directed against dependent peoples shall cease in order to enable them to exercise peacefully and freely their right to complete independence, and the integrity or their national territory shall be respected.

S. Immediate steps shall be taken, in Trust and Non-SelfGoverning Territories or all other territories which have not yet attained independence, to transfer all powers to the people of those territories, without any conditions or reservations, in accordance with their freely expressed will and desire, without any distinction as to race, creed or colour, in order to enable them to enjoy complete independence and freedom.

6. Any attempt aimed at the partial or total disruption of the national unity and territorial integrity of a country is incompatible with the purposes and principles of the Charter of the United Nations.

7. All States shall observe faithfully and strictly the provisions of the Charter of the United Nations, the Universal Declaration of Suman Rights and the present Declaration on the basis of equality, non-interference in the internal affairs of all States, and respect for the sovereign rights of peoples and their territorial integrity.

Lea,ding commentators. on in terna tional j urisprudence accept that Declaration 1514 is an authoritative interpretation of the Uni ted Nations Charter, binding on all Member Sta tes. 7 Moreover, the principle of self-determination has been incorporated into so many international instruments that it is now generally recognized to forro part of the coaens; those overriding principles or peremptory norms of international law "which cannot be set aside by treaty or acquiescence but only by the formation of a subsequent customary rule of contrary effect." 8

The courts of the United States have long accepted that such peremptory riorms of international law are of binding effect. In The Paguette Habana. supra, the supreme Court held:

[W]here there is no treaty, and no controlling executive or legislative actor judicial decision, resort must be had to the customs and usages of civilized nations; andas evidence of these, to the works of jurists and commentators, who by years of labor, research and experience, have made themselves peculiarly well acquainted with the subjects of which they treat. Such works are resorted to by judicial tribunals, not for the speculations of their autbors concerning what the law ought to be, but for trustworthy evidence of what·the law really is. 175 u.s. at 700.

7

See Brownlie, Q.l2 ti.t., p.576. Waldock, 106 Hague Recueil (1962, II), 33; Annual Report of the Secretary-General (1961), p.2; Asmal, "International Law and the Liquidation of Apartheid", U.N. Centre Against Apartheid, 1984, p.11. Cf. Judge Moreno Quintana, I.C.J. Reports (1960), pp. 95-962.

8 Brownlie, Q.P cit., pp. 499-500.

This right to self-determination is well established at international law and all other human rights are clearly connected to this right of all people to determine their own destinies, in their own countries, free from coercion, interference and exploitation by alien powers. As a peremptory norm of customary international law, this Court must therefore respect the right of all dependent peoples, including the people of Puerto Rico, to self-determination.

POINTIII

INTERNATIONALLAWDECLARESTHAT COLONIALISMIS A CRIMEAND RECOGNIZESTHE RIGHT OF COLONIZEDPEOPLES TO EMPLOY"ALL MEANSNECESSARY" FOR THE TERMINATIONOF COLONIALISM ANDRACISMIN THEIRTERRITORIES,

In 1970, the U.N. General Assembly declared that:

"the continuation of colonialism in a11 its forms ana rnanifestations is a crime and that colonial peoples have the inherent right to struggle by all necessary rneans at their disposal against colonial Powers and alien domination in exercise of their right of selfdetermination recognized in the Charter of the United Nations and the Declaration on Principles of International Law concerning Friendly Relations and Coope ration among Sta tes in accordance wi th the Charter of the United Nations." 9

Thus, the General Assembly, in its resolution marking the first decade since the 1960 Decolonization Resolution (supra, p.6,n.),

9 Resolution 2621 (XXV), October 12, 1970. On the authoritative and binding character of the Declaration on Pr inciples of International Law (Resolution 2625 (XXV), annex), see below, Point IV.

explicitly recognized that it is colonialism itself which is the crime under international law and not acts carried out by those who struggle against colonialism and alien domination.

In 1973, the United Nations General Assembly issued a Solemn Proclamation establishing the Basic principles of the legal status of the combatants struggling against colonial ana alien domination and racist regimes. 10 Among the principles proclaimed therein were the following:

l. The struggle of peoples under colonial and alien domination and racist regimes for the implementation of their right to self-determination and independence is legitimate and in full accordance with the principles of international law.

2. Any attempt to suppress the struggle against colonial and alien domination and racist regimes is incompatible with the Charter of the United Nations, the Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations, the Universal Declaration of Human Rights and the Declaration on the Granting of Independence to Colonial Countries and Peoples and constitutes a threat to international peace and security.

Numerous subsequent U.N. resolutions on selfdetermination have consistently employed wording such as that contained in the Resolution A/33/24 of 1978, wherein the General Assembly reaffirmed:

"the legitimacy of the struggle of peoples for independence, territorial integrity, national unity and liberation from colonial and foreign domination and foreign occupation by all ayailable means. particularly armed struggle." 11 (Emphasis supplied)

Resolution 3103 (XXVIII), 1973

See further below, Point V, page 12.

POINTIY

THE UNITED STATES SUPREMECOURT HAS REPEATEDLYRECOGNIZEDTHAT PUERTO RICO IS A COLONY OF

THEUNITEDSTATES

Beginning with a series of decisions referred to as the "insular cases", 12 the United States Supreme Court has held repeatedly that Puerto Rico is a "territory" or "possession" of the United States and has established the status of its citizens as colonial subjects. In Downes y. Bidwell, 182 o.s. 244 (1901), the Court held that the Constitutional requirement under Article 1, Section 8, Clause 1, that all taxes and duties imposed by Congress be uniform throughout the Onited States was not applicable to Puerto Rico:

" • • • [W] hile in an international sense Porto Rico [sic] was nota foreign country, since it was subject to the sovereignty of and was owned by the United Sta tes, i t was foreign to the United Sta tes in a domestic sense, because the island had not been incorporated into the Onited States, but was merely appurtenant thereto as a possession." 182 o.s. at 341-342.

The attitude of the Solicitor General, arguing the government's 1901 position in DeLima v. Bidwell, is redolent of the racist colonial attitudes of the white settlers of South Africa and the British occupiers of Ireland: 12 DeLirna v. Bidwell. 182 o.s. 1 (1901); Downes y. Bidwell, 182 o.s. 244 (1901); nooley v. unitea states, 183 o.s. 151 (1901); Hawaii y, Mankichi, 190 o.s. 134 (1904); Kepner v. u,s., 195 u.s. 100 (1903); DO(( y, u,s,, 195 o.s. 100 (1904); Rasmussen v. u,s., 1977 o.s. 516 (1905); Pepke y, u,s,. 183 u.s. 176 (1901).

Certainly the Treaty [of Paris] never intended to make this tropical island, with their savage and half civilized people, a part of the United States in the constitutional sense, and justas certainly did make them part of the u.s. in the international sense. 182, u.s. at 138.

Even after o.s. citizenship was imposed on the Puerto Rican people by the Jones Act of 1917, the Supreme Court still held that the island was not incorporated into the United States but merely a territorial possession. See Balzac v. Porto Rico, 258 u.s. 298 (1922), where the court held that the Onited States consitution did not guarantee an accused in Puerto Rico the right to indictment by grand jury and trial by petit jury.

This colonial approach continues even into the l980's, with the Supreme Court, in Harris v. Rosario. 446 u.s. 651 (1980) upholding regulations which provided less federal financial assistance to the people of Puerto Rico than to those similarly situated in the United States. The Court found that: \ Congress, which was empowered under the Territorial Clause of the Constitution, u.s. Const. Art IV Section 3 el. 2, to "make all needf ul Rules and Regula-tions respecting the Territory ... belonging to the United States," may treat Puerto Rico differently from States so long as there is a rational basis for its actions. IJJ.

A number of other recent Supreme Court decisions uphold the separate and unequal treatment of the "territory" of Puerto Rico. see, e.g. Califano y, Gautier Torres, 435 u.s. 1, 3 n.4 (1978); Examining Board y. Flores de otero, 426 u.s. 572, 596-597, n.28

(¡976); l3 Teural Torres v. commonwéalth of Puerto Rico, 442 u.s. 465, 470 (1979).

POINT Y

THE GOVERNMENT'SATTEMPT TO CRIMINALIZEMR. OJEDA RIOS ANDHIS ASSOCIATESIN THE STRUGGLEFOR PUERTORICAN SELF-DETERMINATION CONSTITUTESA VIOLATION OF INTERNATIONALLAW

Mr. Ojeda Rios is before this Court in violation of International Law. As a Puerto Rican citizen, arrested in his homeland by agents of the United States government, brought to the United States and charged with acts attributed to the liberation movement of Puerto Rico, he is entitled to the protection of customary international law.

The right of peoples to take "forcible action in pursuit of the exercise of their right to self-determination", against powers which seek to thwart that right, is recognized by all Mernber States of the United Nations, including the United States. The u.s. government joined in the unanirnous adoption by the o.N. General Assembly of the Declaration on Principles of rnternational Law concerning Friendly Relations ana co-operation amona states in Accordance with the Charter of the united Nations G.A. Res. 3314 (XXIX), 1974.

13 In this case the Court stated:

"We readily concede that Puerto Rico occupies a relationship to the United States that has no parallel in our history ... ", at 596.

This Declaration imposes a duty on all States:

"to refrain from any forcible action which deprives people referred to in the elaboration of the present principle of their rights to self-determination and freedom and independence."

It further recognizes the collective responsibility and right of all peoples to fight against such forcible actions which deprive them of these fundamental human rights:

"In their actions against, and resistance to, such forcible action in pursuit of their right to selfdetermination, such people are entitled to seek and receive support in accordance with the purposes and principles of the Charter."

The unanimous character of this landmark Declaration makes it an authoritative statement as to the status of members of national liberation movements at international law.

It is no longer permissible therefore, for colonial powers such as the United States to attempt to criminalize participants in anti-colonial struggles such as Mr. Ojeda Rios by subjecting them to detention. International law further preeludes colonial courts from presuming to try persons in the same category as Mr. Ojeda Rios on charges under the domestic criminal law of the colonizer. 14

It has been the common practice of colonizing powers to refuse to heed the dictates of international law. In this respect, the United States government finds itself in the same position as the racist regime of South Africa, which consistently violates international law in its treatment of Namibian and South

14 See below, at Point VI, General Assembly Resolution 33/24 (XXXIII), December 8th, 1978.

African opponents of colonialism, military tyranny, alíen domination and racial discrimination.

POINTYI

INTERNATIONALLAWDEMANDS THE RELEASEOF MR. OJEDA RIOS AS A PARTICIPANTIN ANTI-COLONIALSTRUGGLE

On December 8th, 1978, the United Nations General Assembly passed Resolution 33/24, entitled Importance of the universal realization of the right of peoples to self-deterrnination ana of the speedy granting of independence to colonial countries and peoples for the effectiye guarantee and observance of human rights. This resolution recognized that the right to resist colonial domination and foreign occupation by all means necessary creates as a corollary the right to release from detention of all those incarcerated for their role in such legitimate struggles. The General Assembly demanded:

[TJhe imrnediate release of a11 persons detainea or irnprisonea as a result of their struggle for selfaetermination and independence. full respect for their fundamental individual rights and the observance of article 5 of the Universal Declaration of Human Rights, under which no one shall be subjected to torture orto cruel, inhuman or degrading treatrnent. ¡g. (Ernphasis supplied).

PQINTy¡¡

THE BAIL REFORMACTAS APPLIED TO MR. OJEDA RIOS AND HIS CO-ACCUSEDCONSTITUTES A VIOLATIONOF INTERNATIONALLAW

The United States government has held Mr. Ojeda Rios in preventive detention for 29 months. The fact that the Speedy Trial Act provides for trial within three months, 15 only highlights the egregiousness of the violation of 01:ited States law when a person is held in preventive detention for more than three years before trial. Pre-trial suppression hearings have now lasted more than 12 months, with no end in sight. A trial date has not been set and any trial of the charges against all 16 accused must lasta further 12 to 18 months, by which time Mr. Ojeda Rios will have spent anything up to five (5) years in preventive detention.

The indefinite internment of a person who, under international and domestic law, is presumed innocent of any offense, so far exceeds anything which could legitimately be regarded as "regulatory" 16 by any government or court that it constitutes punishment. Moreover, it constitutes punishrnent of a cruel, unusual, inhuman and degrading nature, contrary to Article 5 of

15 See 18 u.s.c. Section 3161 tl ~.

16 see u.s. y. Salerno, 107 s.ct. 2095, 2101, where the majority concluded, in the case of a person detained for nine months (at time of hear ing --already sentenced at time of decision) that the purpose of the Bail Reform Act was regulatory, rather than punitive. The trenchant critique of the majority's decision in Justice Marshall's dissent is all the more pointed in the case of a person held for three times that period.

the Universal Declaration of Human•Rights 17 and Article XXV of the American Declaration of the Rights and Duties of Man. 18 It is important to note that the United States has both signed and ratified the American Declaration, which is a treaty obligation and therefore operates as the Supreme Law of the Land.

Such internment also viola tes Articles 5 (2) and 9 of the American Convention on Human Rights 19 and, of course, the Eighth Arnendment to the United States Constitution.

A further fundamental human right which is violated by such indefinite internrnent, is the presumption of innocence. 20

"No one shall be subjected to torture orto cruel, inhuman or degrading treatment of punishrnent."

No person may be deprived of his liberty except in the cases and according to the procedures established by pre-existing law ... Every individual who has been deprived of his liberty has the right to have the legality of his detention ascertained without delay by a court, and the right to be tried without undue delay. or, otherwise to be releasea. He also has the right to humane treatment during the time he is in custody. (Emphasis supplied).

Article 5 reads:

No one shall be subjected to torture orto cruel, inhuman or degrading punishment or treatment. All persons deprived of their liberty shall be treated with respect for the inherent dignity of the human person.

Article 9 reads:

No one shall be subjected to arbitrary arrest, detention or exile.

Article 11 of the Universal Declaration of Human Rights provides:

Everyone charged with a penal offence has the right to be presumed innocent until provea guil ty according to A-37

Justice Marshall, in his dissent in u.s, y, Salerno, 107 s.ct. 2095, said of the Bail Reform Act: n[T]he very pith and purpose of this statute is an abhorrent limitation of the presumption of innocence.: I,g. at 2109. He continued:

"Under this statute an untried indictment somehow acts to permita detention, based on other charges, which after an acqui ttal would be unconsti tu tional. The conclusion is inescapable that the indictment has been turned into evidence, if not that the defendant is guilty of the crirne charged, then that left to his own devices he will soon become guilty of something else. 'If it suffices to accuse, what will become of the innocent?' Coffin Y, united states, supra, 156 u.s. at 455, 15 s.ct., at 403 (quoting Ammianus Marcellinus, Rerum Gestarurn Libri Qui Supersunt, L. XVIII, c.1, A.D.359.)." I,g. at 2110.

Justice Marshall also cited Chief Justice Vinson who, writing fer the Court in Stack y, Bovle, 342 u.s. at 4, 72 s.ct. at 8, held: "Unless th[e] right to bail before trial is preserved, the presumption of innocence, secured only after centuries of struggle, would lose its meaning." u,s, y, Salerno. I,g., at 2111.

What happens when these rights to bail and the presumption of innocence are not preserved can be observed readily from the history of the racist South African regime, which began by instituting 12 day detention in 1961; 21 extended to 90 days in 1963; 22 increased to 180 days in 1965; 23 and, since 1967, the 21

General Law Arnendment Act, No. 39, of 1961.

General Law Arnendrnent Act, No. 37, of 1963.

22 23 law in a public trial at which he has had all the guarantees necessary for bis defence.

Criminal Procedure Arnendrnent Act, No. 96, of 1965.

regime has arrogated to itseif the power to hÓld persons in preventive detention indefinitely. 24

The argurnents of the Assistant u.s. Attorney on January 14, 1988, in support of the governrnent's denial of release to Mr. Ojeda Rios's co-defendant, Juan Segarra Palmer, sought an interpretation of the Bail Reform Act, 1984, which would be identical to the indefinite detention provisions ernployed by the apartheid regime of South Africa. The Court was rerninded in that hearing by Mr. Segarra Palrner's attorney that the Senate Judiciary Cornrnittee was assured by Senator Strorn Thurmond that the Bail Reforrn Act would not cause the detention of any person beyond 90 days. 25 Mr. Ojeda Rios will spend more than 1,000 days in preventive detention before bis trial cornrnences. This not only makes a rnockery of what was allegedly the intent and understanding of the United States Congress, but it amounts to a gross violation of international human rights agreements of which

24 First, under the Terrorisrn Act, No. 83, of 1967; and currently under the Interna! Security Act, No. 74, of 1982, Section 28 (1) of which empowers the Minister of Justice to arder indefinite detention of any person:

(a) if in bis opinion there is reason to apprehend that a particular person will cornmit an offence referred to in section 54 (1), (2) or (3) [dealing respectively with what the Act defines as "terrorism", •subversion" and "sabotage";

(b) if he is satisfied that a particular person engages in activities which endanger orare calculated to endanger the security of the State or the maintenance of law and order or that he propagates or prometes or is likely to propagate or promete such activities.

25 130 Cong. Record S9416.

. the United States government is a signatory. 26

PQINTVIII

THE GOVERNMENTALMISCONDUCT OF THE UNITEDSTATES IN CONDUCTINGILLEGALELECTRONIC SURVEILLANCEON MEMBERSOF THE PUERTORICAN NATIONALLIBERATION MOVEMENTCONSTITUTESA VIOLATION

QF INTERNATIONALLAWANPHUMANRIGHTS

Since January 13, 1987, Mr. Ojeda Ríos and his coaccused have been constantly engaged in pretrial hearings in order to vindicate their internationally protected rights to privacy, to freedom of political association and expression and to pursue self-determination for the Puerto Rican people. The length and complexity of this litigation has been necessitated by

26 See especially, International Covenant on Civil and Political Rights, Article 9(3):

Anyone arrested or detained on a criminal charge shall be brought promptly before a judge or other officer authorized by law to exercise judicial power and shall be entitled to trial within a reasonable time orto release. It shall not be the general rule that persons awaiting trial shall be detained in custody, but release may be subject to guarantees to appear for trial, at any other stage of the judicial proceedings, and, should occasion arise, for execution of the judgment. (Emphasis supplied).

The American Convention on Human Rights, Article 8 (1) states:

Every person has the right to a hearing, with due guarantees ana within a reasonable time. by a cornpetent. independent. ana irnpartial tribunal, previously established by law, in the substantiation of any accusation of a criminal nature made against him or for the determination of his rights and obligations of a civil, labor, fiscal or any other nature. (Emphasis supplied).

For the American Declaration on the Rights and Duties of Man, Article XXV: see supra. p. 16, n.19

the strategic and tactical decisions made by the prosecution in conducting a wide-ranging, open-ended and repressive intelligence gathering operation into a political organization, its activities, members, affiliates and supporters. The government has failed utterly to conducta focussed investigation into a specific alleged illegal act. Its case is a juggernaut which was designed to crush the Puerto Rican independence movement but has instead run out of its masters' control.

The massive quantity and indiscriminate nature of both the physical seizures and the electronic, aerial, video and other surveillance has only been partially tested to date. However, the accused and their attorneys have succeeded in demonstrating a record of widespread abuses of Fourth Amendment and Title III requirernents, amounting to a wholesale subversion of the Constitution of the United States and of international human rights.

POINTIX

SINCE NO COURT OF THE UNITED STATES IS COMPETENT, INDEPENDENT AND IMPARTIAL IN THIS CAUSE, THE U.S. GOVERNMENT MUST SUBMIT TO THE JURISDICTION QF ANAPPRQPRIATEINTERNATIQNALTRIBUNAL

In view of the status of Puerto Rico asan acknowledged colony of the Onited States, and in view of the well-founded clairns advanced by Mr. Ojeda Rios under international law, this Court and all other courts of the Onited States are disqualified frorn attempting to hear and decide this cause, since the Courts of the United States forrn a branch of the governrnent of the party

which should properly be the defendant.

International law gives Mr. Ojeda Rios the right to have this claim adjudicated "by a competent, independent, and impartial tribunal", other than a Court of the colonial power, in accordance with the obligations entered into by the United States government as a signatory of the American Convention on Human Rights. 27

Both the International Court of Justice, the judicial organ of the Onited Nations, and the Inter-American Court of Human Rights, a judicial arm of the Organization of American States, of which the Onited States is a member, provide such international, independent and impartial fara.

This Court is therefore bound by international law to order the United States government to submit to the jurisdiction of one or other international tribunal so that a competent, impartial and independent body may rule on the question of Mr. Ojeda Rios's right to be treated as a participant in ~he struggle against the colonization and alien domination of the people of Puerto Rico by the government of the Onited States.

27 American Convention on Human Rights, signed at San Jose, Costa Rica, 1969. Article 8, entitled Right to a Fair Trial, reads in relevant part:

l. Every person has the right to a hearing, with due guarantees ana within a reasonable time. by a compeent. independent. and impartial tribunal, previously established by law, in the substantiation of any accusation of a criminal nature rnade against hirn ... (ernphasis supplied).

CONCLQSION

The United States government has deliberately attempted to coerce Mr. Ojeda Rios into a choice between his international human right to a speedy trial and his human right to expose the illegal conduct of o.s. agents in their design to suppress the legitimate aspirations of the Puerto Rican people.

Mr. Ojeda Rios therefore demands immediate release. He further demands that the present proceedings be terminated and that the United States government submit to the jurisdiction of a cornpetent, independent and impartial tribunal in accordance with its obligations under international law.

Finally, if the Court is not willing to uphold Mr. Ojeda Rios's rights under international obligations binding upon the United States, then he demands an immediate trial.

Richard J. Harvey STEVENS, HINDS & WHITE, P.C.

209 West 125th Street Suite 202 New York, N.Y. 10027 (212) 866-6044

CERTIFICATEop· SERVICE

This is to certify that a copy of the within and foregoing has been forwarded this day to all counsel of record:

Juan R. Acevedo, Esq. 107 Franklin Avenue Hartford, CT 06114

Michael Avery, Esq. Avery & Friedrnan six Beacon St., Suite 520 Boston MA 02108

James w. Bergenn, Esq.

Shiprnan & Goodwin 799 Main Street Hartford, CT 06103

Michael Deutsch, Esq. 107 Franklin Avenue First Floor Hartford, CT 06114

Ronald L. Kuby, Esg. 107 Franklin Avenue Hartford CT 06114

Williarn M. Kunstler, Esg. 13 Gay Street New York, N.Y. 10014

Roberto J. Maldonado Rivera, Esq. P.O. Box 23063

U.P.R. Station Rio Piedras, Puerto Rico 00931

Linda Backiel, Esq.

Rabinowitz, Boudin et al., 740 Broadway New York, N.Y. 10003

James L. Sultan, Esq.

Rankin & Sultan 79 Milk Street Boston, MA 02109

Margaret P. Levy, Esg. 60 Washington Street Suite 1402 Hartford, CT 06106

Harold Meyerson, Esq. 6 East 45th Street New York, N.Y. 10017

Diane Polan, Esg. 850 Grand Avenue New Haven, CT 06511

Richard Reeve, Esg. 234 Church Street New Haven, CT 06510

Leonard I. Weinglass, Esg. 6 West 20th Street New York, N.Y. 10011

Jacob Wieselrnan, Esq. 50 Colurnbus Blvd. 5th Floor Hartford, CT 06103

John R. Williarns, Esq. 51 Elm Street New Haven, CT 06510

F. Mac Buckley, Esq. 51 Russ Street Hartford, CT 06106

Al Dabrowski, Esq. u.s. Attorneys' Office 450 Main Street

CT 06103

RICHARDJ. BAR Y, ESQ. Counsel of FILIBERTO OJEDA RIOS.

22nd January, 1988.

UNITED STATES DISTRICT COURT DISTRICT OF CONNECTICUT

UNITED STATES OF AMERICA, Plaintiffs, vs. H 85-50 (TEC)

VICTOR GERENAET AL., Defendants JANUARY25, 1988

PROPOSEDFINDINGS OF FACT SUBMITTEDBY JUAN SEGARRAPALMERIN SUPPORT OF HIS JANUARY12, 1988 APPLICATION FOR CONDITIONALRELEASE

The Defendant Segarra hereby proposes the following Findings of Fact with respect to his Application for Conditional Release:

I. POSTUREOF THE CASE

l. The Defendant, Juan Segarra Palmer, one of 19 defendants facing a 17 count indictment, was arrested by federal authorities on August 30, 1985. For the past 29 months he has been held in pretrial detention pursuant to 18 U.S.C. 3142(e). All but one of his co-defendants, Filiberto Ojeda Ríos, have been released on bond.

2. At present, pretrial hearings respecting the suppression of evidence obtained through electronic surveillance, which commenced on September 1, 1987, are still ongoing. The government has not completed its case respecting alleged sealing delays and tampering, having called 24 witnesses to date. According to the government's most recent Proposed Scheduling Order (December 15, 1987) the hearings on Title III matters will not conclude, including the filing of briefs, until March 29, 1988. The defense estimates that date will be July 25, 1988 (the respective submissions on scheduling are attached to the defendant's application as Exhibits B and C). The government is already behind schedule since it failed to conclude its case on January 15, 1988, the target date in its proposed order. Additionally, the government's proposed order contains no mention of the audibility hearings which might take several weeks to complete.

3. The government now estimates the case cannot go to trial before May 27, 1988. The defense estimates November 7, 1988. No trial date has been set. The last trial date set by the Court was March 3, 1987.

4. In either event the defendant will have spent anywhere from 33 to 38 months in detention prior to his trial.

5. Estimates of the length of trial run from eight months ata minimum to 16 months or longer. Thus, the defendant will have been detained a minimum of more than 40 months, but more likely between four and five years, before a jury receives his case.

II. HISTORYOF DELAYANO THE GOVERNMENT'S RESPONSIBILITYFOR A PORTIONTHEREOF

6. Seventeen months elapsed between the defendant's arrest on August 30, 1985 and the start of testimony on contested pretrial motions in January, 1987. The reason far that delay, and whether or not the government is responsible far a portian of the delay, have been the subject of holdings by two panels of the Second Circuit Court of Appeals. As recently noted by Justice Newman i his 11-page dissent from the Court's action in denying the defendant's Petition far Hearing In Banc: '\',There is a divergence between the opinions of the two panels in assessing governmental responsibility for the pretrial

delay" (see p. l of the dissenting opinion attached hereto as Exhibit l).

However, in a detailed analysis of those opinions as well, as the District Court's ruling denying bail on December 22, 1987, Judge Newman reconciled the factual findings in each, concluding that the undisputed facts reveal the following delays attributable to the government:

"(a} the prosecution took nine months to translate the wiretaps;

(b} the prosecution took ten months (not twelve months) to translate the seized documents;

(e) the prosecution delayed ten months in disclosing the existence of videotapes of the defendants;

(d) the prosecution had not completed compliance with Rule 16 discovery requests as of fourteen months after detention began."

(See p. 7 of Exhibit 1)

Thus, the last word on the issue of delay and the government's responsibility for it, albeit a dissenting opinion, points unerringly to undisputed facts establishing the government's responsibility for delay.

III. GOVERNMENT'SDELAY IN PROVIDING COURT-ORDEREDDISCOVERYl/

7. The government's investigation of the defendants began in October, 1983. Physical surveillance, which included photographs, video and aerial surveillance, began in January, 1984. In April, 1984, the government searched an office, alleged by the government to be a "safehouse", and seized more than 30,000 pages of documents, all in Spanish. A lengthy prosecutive report was filed in April, 1985, detailing the evidence against each of the defendants named in the original indictment. By the date of the arrest, the government had possessed most of its documentary and photographic evidence for more than fifteen months.~ 1

8. On September 13, 1985, Magistrate F. Owen Eagan entered a Standing Order for Discovery which directed the

1/ Delays in disclosure of electronic surveillance evidence and other materials is addressed separately in Section VI, infra.

~/ Additional documentary evidence was seized in searches conducted on August 30, 1985, the date of the defendants' arrest.

9 . government to disclose within ten {10) days all books, papers, documents which the government intends to offer as evidence at trial . or which were obtained from or belong to the deendant, as well as all photographs material to the preparation of the defense. (Docket p. 2A).

On October 15, 1985, the District Court (Clarie, J.) ordered the government to complete to disclosure of discoverable material by October 28, 1985. (Docket p. 3). The defendants were ordered to file any additional discovery motions by November 12, 1985. (Docket p. 3).

10. On November 12, 1985, defendant Ivonne Melendez Carrion filed on Omnibus Motion far Disclosure and Inspection which was adopted by defendant Segarra. This motion specifically of photographs and videotapes. (Docket p. 4, 4A).

11. In December, 1985 and January, 1986, the government disclosed to defendants a number of photo arrays that were shown to witnesses far

identification purposes. No other photographs were disclosed to the defense until August, 1986.

12. On April 9, 1986, the Court ordered the government to disclose Rule 16 discovery by April 30, 1986. (Docket p. 23A).

13. On May 16, 1986, the Court ordered the government to file a list of its case-in-chief exhibits by June 30, 1986. (Docket p. 26A).

14. On June 30, 1986, the government filed its exhibit list, which included 800 surveillance photographs of the defendants and 50 surveillance videotapes. The exhibit list constituted the government's first revelation of the existence of videotapes. No copies of the photographs or videotapes were provided to the defendants.

15. On July 8, 1986, defendant Hilton Fernandez Diamante filed a motion for copies of the photographs and videotapes listed as trial exhibits. The Court ordered the government to

comply the same day the motion was filed. (Docket p. 35A).

16. On August 4, 1986, the government disclosed 800 photographs to the defendants. The photographs were taken between January, 1984 and August, 1985.

17. On August 15, 1986, the government provided the defendants with copies of 22 videotapes. Disclolsure of the SO videotapes listed on the exhibit list continued until October 6, 1986. (Docket, p. 38A, 40, 41, 41A, 42).

18. On October 31, 1986, the government disclosed the existence of 4445 additional surveillance photographs. (Docket, p. 43A).

19. On December 10, 1986, the government disclosed the existence of 16 additional surveillance videotapes.

20. On October 31, 1986, the Court ordered a pre-trial Scheduling Order directing the government to

complete its scientific and laboratory testsing of evidence seized on or before August 30, 1985 by November 21, 1986.

21. The government has continued to disclose the results of laboratory tests conducted on evidence seized on August 30, 1985 beyond the November 21, 1986 cut-off date. The most recent laboratory testing disclosure was January 7, 198'z. (Docket, p. 33A).

22. During pre-trial evidentiary hearings on motions to suppress evidence seized during searches on March 26, 1987, the government disclosed for the first time an 88-page inventory of documents seized during the April 2, 1984 search. (3/26/87

Tr. 25). The bulk of those documents (other than those listed as trial exhibits) were first made available to the defendants in April, 1987, three years after the search was conducted. 4/ /87

Tr.

IV. DELAYIN THE TRANSLATIONOF DOCUMENTS

23. On September 13, 1985, Magistrate F. Owen Eagan signed and entered the Standing Order for Discovery applicable to all criminal cases in the District Court. Paragraph (A)(5) expressly directed the government to disclose to the defense, within ten days all "books, papers, documents ... which the government intends to offer as evidence at trial ... or were obtained from or belong to the defendant." (Standing Order for Discovery; Docket Entries). The government finally complied with tht order on May 8, 1986 --nearly eight months later. (Receipt far Discovery Materials dated May 8, 1986). Within one week of the date these materials --all of which were written in Spanish --were disclosed to them, the defendants obtained from the Court an arder authorizing them to retain a translation service to translate the documents. (Docket Entry, May 15, 1986).

One week later, on May 23, 1986, the defendants having located an appropriate service, moved for the appointment of the service and submitted a detailed proposed contract. (Ex Parte Submissions Concerning Order far Translation Services, May 23, 1986).

24. For two months thereafter, the Court took no action. On July 11, 1986, the Court granted the defense motion. (Docket Entry, July 11, 1986). Ten days later, the Clerk of the Court submitted a contract to the translation service. (Letter from Clerk of Court to Accent, Inc., dated July 21, 1986). These documents, consisting of many thousands of pages were then translated and returned to the Clerk of the Court for imrnediate delivery to the defendants in a series of shipments beginning on August 15, 1986, and concluding on October 31, 1986. (Receipt for delivery on file in Office of Clerk, U.S.D.C.).

25. Thus, although the Government took eight months merely to disclose the documents to the defense, the defense tr~nslators fully translated all the materials within three months of the date they were delivered by the Clerk of the Court. Any delays in effecting the translation of documents for the defense are therefore attributable to the government (late turnover) and the Court (a delayed ruling).

26. The Court's Endnote observation (nota factual finding) in its Ruling of December 22, 1986 respecting the translation of documents notes that "the translation of the relevant documents undertaken by the defense was not, however, completed until November, 1986," implying a delay attributable to the defense. However, the above recitation of undisputed facts should correct any such impression and restare to the record and accurate portrayal of events which, in fact, absolve the defense of any responsibility for delay in the translation of documents.

V. DELAYIN THE TRANSCRIPTIONAND TRANSLATIONOF AUDIOTAPES

27. The defendants first moved that they be provided QQ.th Spanish transcripts and English translations of the Title III tape recordings on October 21, 1985 -- less than sixty days after their indictment and many months before the Government had prepared its own transcripts and translations. That motion, which the defendants repeatedly pressed upan the court during ensuing months, was not granted in any form until March of 1986.

28. When finally sorne form of translation was authorized by the Court, it was grossly inadequate and not at all what had been requested. As noted, the defendants had moved far provision of QQtll Spanish transcripts and English translations. There are two obvious reasons why this was sought: since the tapes are the evidence; the transcripts must reflect exactly what appears on the tapes; anda translation from a Spanish transcript is far more reliable than one made directly from a Spanish tape recording. The defense demand far both transcripts and translations was repeated in open court on December 4, 1985, January 22, 1986, and February 7, 1986. (12/4/85 Tr. p. 58; 1/22/86 Tr. p. 31; 2/7/86 Tr. p. 8).

29. Assistant United States Attorney Carmen Van Kirk, the only prosecutor in the case who understands Spanish, also advised the Court that "we can't do a translation until we have a transcription ... we have to do the transcriptions befare we do the translations ... we can't do the English until we do the Spanish." (1/22/86 Tr. pp. 39, 67) The Court itself recognized that both Spanish transcriptions and English translations were essential in the case of any evidence important enough

to be challenged, observing tht with respect to "any controverted material, that is the only way you can really compare it." (2/7/86 Tr. p. 19) On February 24, 1986, the defendants filed, at the Court's direction, a confidential and parte report evaluating all the proposals which the had received from translation/transcription services bidding on the project. That report, noted that, without exception, every bidder contemplated doing l:22.th Spanish transcriptions and English translations of the tapes.

30. Despite all the foregoing, however, the Court denied the defendants' motion fer Spanish transcripts and over objection ordered that the defendants would be provided only English translations which the Court ordered to be made directly from the Spanish tape recordings. The Court expressly based this ruling on economic considerations and nothing else, noting that it would be cheaper to do the project in that manner. In their February 24, 1986, report to the Court, which was based on extensive interviews of all bidders by the undersigned and personal inspection of their facilities, the defendants asked the Court to award the

transcribing/translating contract to Caribbean Courtroom Services of San Juan. Caribbean Courtroom Services consisted of virtually all the court reporters and translators employed in the United States District Court far the District of Puerto Rico. They had been highly recommended by both Chief Judge Perez-Gimenez and Chief Deputy Clerk Juan M. Masini-Soler. They were unquestionably far better qualified and far better equipped to begin work immediately andona "crash" basis than any of the other bidders. They guaranteed delivery of all Spanish transcripts and all English translations of all tape recordings, both those the Government intended to offer inevidence and the more than 800 others, in one year. Moreover, this bidder, alone among the bidders, noted the grossly inferior quality of the cassette copies which had been provided by the Government and informed the Court explicitly that an adequate job could not be done with the request that the Court approve that recommendation as well.

31. The Court, again noting expressly that it was basing its ruling purely on economic considerations, rejected the recommendations of the defendants, Chief Judge

Perez-Gimenez and Mr. Masini-Soler. The bid of Caribbean Courtroom Services was rejected, as was its recommendation that sound-enhanced tapes be provided. Instead, the Court awarded the contract to two other bidders, dividing the project between them. One of those two, whom the defendants had urged the Court to reject because of her inexperience, resigned from the contract more than ayear later without completing the work. Her portian of the work was reassigned by the Court to the other bidder, which continues to deliver translations of tapes the Government will not offer into evidence.

32. Predictably, the Court's attempt to save money by awarding the contract to the less experienced low bidders, by refusing to provide them with sound-enhanced tpaes, and by requiring them to translate directly from tape recordings, had disastrous results. The money and time were wasted. To the extent that translations were supplied, they were virtually useless. In September of 1986, after further complaints by the defendants, the Court ordered the government to make its "duplicate original" tapes available to the defense translators, as

these tapes were of a better sound quality than the copies of those tapes previously supplied. The Court did not, however, arnend its order requiring the translators to work directly frorn tapes and prohibiting thern frorn making Spanish transcriptions.

33. The defendants continued to press their clairn that Spanish transcripts were required and that reliable translations could not be rnade without such transcripts. On March 13, 1987, after further argurnent on this point, the Court rnet privately in chambers with the courtroorn interpreters and solicited their opinions on the issue. They inforrned the Court that the defendants were correct, the proper translation required that Spanish transcripts first be prepared. At that point, the Court authorized the defendants to solicit bids for providing transcripts and translations but only of those tapes which the Governrnent intends to offer into evidence at the trial.

34. The defendants reviewed various proposals and by motion of April 1, 1987, and again by letter to the Court on April 8, 1987, urged the Court to award this contract to

Dr. Alicia Betsy Edwards of Washington, D.C. Dr. Edwards had worked as a courtroom interpreter in this case and was personally known and highly regarded by the Court. Once again, however, the Court rejected the defendants' request and selected another bidder --again solely for economic reasons. The bidder selected by the Court on this occasion was Vincent de la Vega of Miami.

35. The government in its January 12 Memorandum complains that Mr. de la Vega has not delivered the transcripts and translations within the time promised in his original agreement with the Court. The government seeks to attribute his delays to the defense. Indeed, the government goes so far as to attribute to the defense all the delays in providng transcripts and translations of the government tape recordings.

36. The record on this issue demonstrates conclusively that the delays in furnishing the defense with the tools needed to understand and argue the admissibility of tape recordings and any issue related to either the recordings or the transcripts and translations, are exclusively the responsibility of the Court. Had the

defendants' original requests and recommendations been accepted by the Court, full transcripts and translations of all the more than 1,000 tape recordings would have been in the defense files by the early Spring of 1987. Instead, more than twenty-seven months after the original defense request was filed and almost ayear after the entire project should have been concluded, the defense continues to wait far delivery of most of the transcripts and translations of the tapes the government will offer into evidence and has no hope of ever receiving transcripts or reliable translations of the remaining tapes, review of which is essential to providing the defendants with effective assistance of counsel. These horrendous delays, the money wasted, and the continued failure to afford the defendants equal tools with which to litigate this case all result from the series of Court rulings described above, which the defendants ~ave previously characterized as being "penny wise and pound foolish.• (See Defendant's Response to Government's Supplemental Memorandum Re: Tape and Transcript Hearing" dated March 13, 1987, p. 4).

37. Again this Court's Endnote reference in its Ruling of Decernber 28, 1986 wrongfully concludes that the defense "waited for nearly five rnonths before cornplaining about the quality of the cassettes from which their transcripts were made." The record indicates otherwise. It wasn't until the end of February, 1986, that the Court's personnel provided the defense with recorders so the tapes could be reviewed. After an adjustment was made to the equipment in early March, the incarcerated defendants began their review of the tapes in mid March, 1986. After approximately five weeks that process carne to a halt when the Metropolitan Correctional Center refused to allow the defendants to continue their work in a room with sufficient outlets and privacy. Instead, on May 1, 1986, the defendants were assigned to a rnuch smaller room with a single outlet and no privacy. This fact was immediately brought to the court's attention by oral and written motions. It was only after this Court threatened the personnel at MCCwith a contempt citation that the defendants were permitted to continue their wotk in an appropriate setting. (See Docket of July 8, 1986).

Despite this interference by personnel at MCC, sufficient information was generated by the defendants to call into question the quality of the cassette tapes. Within several weeks the defense applied to the Court far permission to retain the services of Audio Forensic Center of San Francisco to review and compare the quality of the cassettes with the reel to reel tapes. The Court agreed; and, following an arrangment with the government, a selected number of tapes and reels were forwarded to the Center.

On August 13, 1986, Dr. Krause of the Center rendered a report which was prornptly filed with the Court on August 14, 1986. Thereafter, a hearing was held on September 2, 1986 to determine whether or not the quality of the cassette tapes interferred with the translation process. At the conclusion of that hearing, the Court ordered the reel to reel tapes to be brought into the process of translation so that accurate transcripts could be made.

In any event, little orno delay was occasioned by the change from cassettes to reels far translation purposes. The translators merely went back over those portions of the transcripts marked "unintelligible" in arder to ascertain if the improved sound quality of the

reels aided their translation. In light of subsequent developments, as set out herein above, any problems relating to the sound quality of the cassettes, in fact, caused no delay in the proceedings.

38. Lastly, while the government had gathered close to 1000 reels of conversations of the defendants in Spanish, it steadfastly refused to translate into English (for english-speaking counsel) approximately 800 reels it deemed not relevant to its own case. As of now, these tapes have still not been cornpletely translated, leaving defense counsel --more than two years after their clients' arrest --in a position of still not having in their possession, in an intelligible form, statements allegedly made by their clients which are in the governrnent's possession.

VI. THE TESTIMONIALHEARINGS

39. On January 20, 1987 hearings began and testirnony was taken in support of defense rnotions to suppress evidence seized in the course of physical searches of over 35 residences and businesses on the day of the defendant's -22-

arrest. These hearings lasted more than six months and ended in late August, 1987.

After various court rulings pared down to 16 the number of contested searches, testimony was taken in connection with each as well as the lack of particularity and overbreadth in the affidavits and warrants authorizing the searches. In all, approximately 50 agents of the FBI testified on these issues.

40. The defendant Segarra had standing with respect to just two of the contested searches, each of which consumed one day of court time.

41. Following extersive briefing on the issues (the defense overbreadth brief was 110 pages in length) the Court sustained a number of the defense claims respecting overbreadth and particularity and ordered the suppression of various seized items. In its 54 page Ruling of September 18, 1987, the Court concluded:

"The Court finds overbroad, in part, paragraphs one, four, six, eight and nine. As written,

paragraphs seven, eleven, thirteen and fourteen lack the specificity required by the Fourth Amendment." (See Exhibit 2 attached).

42. Almost immediately thereafter, on September 1, 1987, hearings began with respect to defense motions to suppress Title III evidence. Five months have elapsed anda minimum of two additional months will pass befare these hearings conclude. However, the more likely probability given the fact that the prosecutor's schedule is already behind and fails to allow any time far audibility hearings --is that Title III hearings will not conclude befare the end of July, 1988.

43. The FBI engaged in electronic surveillance in Puerto Rico from April 27, 1984 until August 29, 1985, the day before the arrests in this case.

44. During that time, the government conducted electronic surveillance at two (2) residences, one (1) office, seven (7) telephones, and one (1) automobile.

45. The government had disclosed the creation of over 1000 original reel to reel recordings, and approximately SO original cassette recordings, during electronic surveillance in Puerto Rico.

46. Defendants filed an initial Motion to Suppress, based on sealing violations, in March, 1986 and pursuant to Court Order, filed other Title III suppression motions on December 22, 1986, including claims of listening without recording, tampering, and failure to minimize. The government responded on January 5, 1987, and both parties and the Court agreed that an evidentiary hearing on sealing and, if necessary, tampering was required.

47. The length of time between termination of electronic surveillance (and termination of authority to intercept, where different) and the date of judicial sealing, is as follows:

(a) Levittown Boulevard residence and three public pay phones:

(1) Electronic surveillance termination on July 9, 1984, and authority to intercept expired on July 23, 1984;

(2) The tapes were sealed on October 14, 1984;

(3) The length of time between termination of electronic surveillance and judicial sealing was 96 days;

(4) The length of time between termination of authority and judicial sealing was 82 days.

(b) 1982 Datsun Sentra

(1) Electronic surveillance termination on August 3, 1984, and authority to intercept termination on October 10, 1984;

(2) The tapes were sealed on October 13, 1984;

(3) The length of time between termination of electronic surveillance and judicial sealing was 71 days;

(4) The length of time between termination of authority and judicial sealing was three days.

(c) Taft Street PHone:

(1) Electronic súrveillance terminated on August 13, 1984, and authority to intercept expired on August 25, 1984;

(2) The tapes were sealed on October 13, 1984;

(3)

(4) The length of time between termination of electronic surveillance and Judicial sealing was 61 days.

The length of time between termination of authority and judicial sealing was 49 days.

(d) El Cortijo residence:

(1) Electronic surveillance and authority to intercept both termination on September 24, 19 84;

(2) The tapes were sealed on October 13, 1984;

(3) The length of time between termintion of electronic surveillane (and authority) and judicial sealing was 19 days.

(e) Vega Baja Residence:

(1) Electronic surveillance and authority to intercept both terrnination on May 30, 1985;

(2) The tapes were sealed on June 15, 1985;

(3) The length of time between termination of electronic surveillance (and authority) and judicial sealing was 16 days.

(f) Vega Baja Public Pay Phones (2)

(1) Electronic surveillance and authority to intercept both terrninated on May 30, 1985;

(2) The tapes were sealed on June 15, 1985;

(3) The length of time between termination of electronic surveillance (and authority) and judicial sealing was 16 days.

{g) El Centro Cando:

(1) Electronic surveillance terminated on August 29, 1985, and authority to intercept terrnination on August 30, 1985 {date of arrests);

(2) The tapes were sealed on August 14, 1985;

{3) The length of time between termination of electronic surveillance and judicial sealing was 16 days;

{4) The length of time between termination of authority and judicial sealing was 15 days.

48. The government has conceded that it has the burden, given the uncontested evidence respecting delays, of proving a satisfactory explanation for any delay and also proving that the tapes have not been tampered with.

49. The delay caused by the extensive Title III hearings is the responsibility of the government since its own failure to meet its statutory obligation to seal the tapes in a timely manner has necessitated extensive evidentiary hearings.

50. The hearings have been further prolonged by this Court's Ruling, filed on February 4, 1987, that it would disregard the law of the Second Circuit and apply First Circuit law to the electronic surveillance issues in this case. Since the issue of tampering is part of the sealing inquiry in the First Circuit, but not in the Second Circuit, extensive evidence on the issue of tampering had to be presented. This would not otherwise

have been necessary if sealing delay alone could have led to suppression as would have been the case under Second Circuit law.

51. The defense vigorously opposed application of First Circuit law, filing a Motion for Reconsideration before the trial court, a Petition for a Writ of Mandamus with the Second Circuit anda petition for rehearing with suggestion for rehearing QfillQ.

52. The Title III hearings have been further prolonged by the government's failure to make copies of the FBI chain of custody envelopes (504's) and 192 forms prior to sealing the tapes. This omission necessitated the use of court and attorney time for s~veral weeks in order to unseal the tapes and make copies of the necessary forms.

53. On September 1, 1987, the first day of electronic surveillance hearings, the government revealed for the first time the existence of a third set of original tapes created during electronic surveillance in Puerto Rico. While the defendants had been advised for two years that original and duplicate original reel to reel

tapes had been created, the government never disclosed that original cassette tapes were also made simultaneousy with the reel to reel tapes.

54. The government, through its monitoring FBI agents, knew of the existence of these cassettes when they were created in 1984 and 1985. However, government prosecutors currently involved in this case were not advised of this by the FBI until April 16, 1986 (1/13/86 Tr. p. 51).

55. The defense had filed detailed discovery requests regarding electronic surveillance procedures, and specifically regarding equipment used in the monitoring sites. Although the government responded to these requests, the use of work cassette recorders was never disclosed until September l, 1987 --17 months after the prosecutors were told of it by the FBI. Indeed, although a technical FBI agent drafted answers to defendants' requests and included explicit references to the use of cassette recorders to create original tapes in his drafts, the prosecutors intentionally omitted all such references in their written responses to counsel and the Court.

56. On August 29, 1987, Agent Lino Corral, having previously refused to sign the form affidavit prepared by government counsel and submitted by other agents because it contained no reference to these cassettes, submitted an affidavait which mentioned the use of work cassette recordings. On September 1, 1987, several days later case agent Jose Rodriguez, aware of the Corral affidavit, disclosed fer the first time on the record the use of such cassette recorders.

57. Despite awareness of the creation of cassette recordings simultaneous with the reel to reel tapes, the government did not make available any work cassettes until September 2, 1988 when eight tapes found in the desk drawer of FBI Case Agent Jose Rodriguez were filed with the Court. Pursuant to the Court's Order on September 17, 1988 (p. 83 Docket) 20 more cassettes from Puerto Rico were filed with the Court on October 8th and 157 from Boston were filed on October 30th. Despite the Court's Order of September 17th mandating disclosure in two weeks, a third batch of 11 cassettes was delinquently filed on November 17, 1987, even though they had been located two months earlier.

58. Despite the fact that the cassette recorders were used amd thereby create a third set of original recordings, government agents intentionally destroyed virtually all of the cassettes. This was done in two ways: (1) first, agents reused the cassettes, and in so doing, erased recordings; and (2) cassettes were intentionally run through a "bulk magnetic eraser" in the FBI office, to destroy their contents.

59. The 39 cassette tapes inadvertently retained by the government had played a key role in the electronic surveillance hearings in that review of their contents established that more oral communications were intercepted on the cassettes than on the sealed "original" reel to reel. Furthermore, the few retained cassette tapes have been instrumental in establishing other irregularities with the sealed tapes.

60. The intentional destruction of these original recordings (an unknown number) makes impossible any determination of the amount of original recordings never sealed in this case, makes analysis and enforcement of other Title III provisions exceedingly difficult, and grossly

interferes with the defendant's right to cross examine monitoring agents.

61. The proceedings have been further delayed and prolonged not only by the government's destruction of the cassette recordings, but by its failure to notify defendants of the use of the cassette system as well as its failure to search fer and make available the few inadvertantly retained cassettes, investigators for both sides have had to review the cassettes, prepared transcripts and conduct extensive comparisons with the reel to reel tapes. As noted by a prosecutor in open court on January 13, 1988, •it is very difficult and time consuming to review all of these work cassettes.• (1/13/88 Tr. p. 69).

62. On or about November, 1986, most electronic surveillance monitoring agents filed affidavits stating that they "did not alter, erase, change or tamper with any tape in my possession or control." (Affidavits all marked as defendant's Exhibit 2138 A et seg.). At least ene agent has admitted that this language in his affidavit was false. (Testimony of Juan Gonzalez, Tr. 11/18/87, p. 178).

63. Other agents have admitted that they live monitored, i.e. listened to oral communications without recording them, in violation of the statute, the court order, and direct instructions of other FBI agents. (See testirnony of Tyler Margan, Abelardo Alba).

64. Agent Margan further revealed that he had signed a false affidavit, which wrongly indicated that he had not live rnonitored, and then subsequenlty crossed his name off the affidavit.

65. The defense has filed with the Court, a 43 page expert report, itemizing numerous irregularities with the tapes. One of the expert findings is that the so-called "original" and "duplicate original" reels, as labeled by the government are in reality copies made from sorne other source.

66. The governrnent has retained its own experts, but no report of any kind has been submitted as yet by the government. The defense experts reports stand, as of now, uncontradicted in the record.

67. Of the initial 20 monitoring agents the government agreed to call, six have not yet testified. No decision has yet been made by the Court regarding what other, if any, monitoring agents will be called to testify.

VII. THE GOVERNMENT"SFAILURE TO USE "EXTRAORDINARY MEANS• TO BRING THE DEFENDANTTO TRIAL

68. Although the government has stated privately and on the record its belief that" the government could convict Segarra Palmer without the Title III surveillance (emphasis supplied) (See Exhibit 3, a copy of p. 54 of the Tr. of August 20, 1987) it has not sought to sever his trial from that of his co-defendants and try him without the benefit of this nonessential evidence. Such would certainly appear to be its obligation under United States v. Jackson, 823 F.2d 4, 8 (2d Cir. 1987) (quoting United States v. Salerno, 794 F.2d 64, 79 n.2 {2nd Cir. 1986) {Feinberg, C.J. dissenting) reversed ~n other goods 107 s. et. 2095 (1987) where the Court explicitly warned prosecutors to bring detained defendants to trial in multiple defendant cases using •extraordinary means if necessary.•

69. Indeed, not only did the government fail to move a severance when it should have, it strenuously objected when Mr. Segarra joined such a motion made by his co-defendant Ojeda Rios on March 4 and 5, 1987, over 10 months ago. In that motion, Mr. Segarra sought bail or a severed trial on condition the government not use the nonessential Title III evidence. Following the government's objection the Court denied the severance. Had that motion been granted Mr. Segarra's trial could have started in March, 1987, 14 months earlier than the May 1988 trial date now envisioned by the government.

70. It was only after an additional 10 months had passed, five months into the Title III hearings, that the government indicated on the record that it might consider a severance of Mr. Segarra's case, but only after the Title III hearings were concluded. As date no such motion has been made.

of this

VII. A COMBINATIONOF THE OFFERED CONDITIONS FOR RELEASEWILL REASONABLYASSURE MR. SEGARRA'S PRESENCEAT TRIAL

71. Mr. Segarra has offered the following terms and conditions fer his release:

(1) A one million dollar bond signed by his father, a member of the bar in Puerto Rico and active practitioner, and his mother;

(2) $500,000.00 in equity on real estate in Puerto Rico to secure the bond;

(3) A restriction on his travel to the confines of the District of Connecticut;

(4) An agreed living arrangement whereby he would move into a residence in Hartford, Connecticut now occupied by his family and his attorney (as well as other attorneys in the case) and reside there until the completion of his case.

(5) Reporting requirements as determined by the Court.

(6) The execution of a waiver of his right to be present at trial in the event he fails to attend.

{7) Any other reasonable restrictions.

A combination of these conditions will reasonably assure Mr. Segarra's presence at trial.

RESPECTFULLYSUBMITTED,

By ,g

._¡)

6'(\

Leonard

,Ó,,, ::v:{, lC1-f ..J

Weinglass

j 6 w. 20th Street New York, New York 10011

CERTIFICATION

This is to certify that a copy of the foregoing Proposed Findings of Fact Submitted by Juan Segarra Palmer in Support of His January 12, 1988 Application for Conditional Release has been mailed, first class, postage pre-paid to all counsel of record:

Juan Ramon Acevedo, Esq.

107 Franklin Avenue Hartford, CT 06114

Attorney Linda Backiel

424 W. Schoolhouse Lane Philadelphia, PA 19144

F. Mac Buckley, Esg.

Buckley & Santos 51 Russ Street Hartford, CT 06106

Michael Deutsch, Esq.

343 S. Dearborn Street Chicago, IL 06604

Richard J. Harvey, Esq.

107 Franklin Avenue First Floor Hartford, CT 06114

Ronald Kuby, Esq. 13 Gay Street New York, NY 10014

Attorney Margaret Levy 60 Washington Street Hartford, CT 06106

Roberto Maldonado, Esq. e/o Institute de Derechos Humanos de Puerto Rico 23063 UPI Station Rio Piedras, PR 00931

Hal Meyerson, Esq.

Comer & Meyerson 6 East 45th Street New York, NY 10017

Office of the U.S. Attorney

Albert S. Dabrowski 450 Main Street Hartford, CT 06103

Attorney Diane Polan 850 Grand Avenue New Haven, CT 06511

Richard Reeve, Esq.

Assistant Public Defender 234 Church Street Suite 302 New Haven, CT 06510

James L. Sultan, Esq. Rankin & Sultan 79 Milk Street 10th Floor Boston, MA 02109

James W. Bergenn, Esq. Shipman & Goodwin 799 Main Street Hartford, CT 06103

Jacob Weiselman, Esq. Blume & Elbaum 50 Columbus Blvd. Hartford, CT 06103-2819

John Williams, Esq. Williams & Wise 51 Elm Street New Haven, CT 06510

on this 25th day of January, 1988.

EXHIBIT 1

UNITED STATES COORTOP APPEALS POR TlJE SECONDCIRCOIT

Ata stated TenD of the Onited States Court of Appeals, in and for the Second Circuit, held at he Onited States Courthouse, in the City of New York, on the t~elfth day of January one thousaod nine hundred and eighty-eight,

UNITEO STATES OP AMERICA, Appellee, -against-

yVONN'EME~ENDEZ-CARllION,EILTON P'ERNANOEZ-OIAMANTE, LUIS AL?REDO COLONOSORIO, PILIBERTO INOCENCIOO.JEDARIOS, ISAAC CN-\ACSO-NEGRON,ORLANDOGONZALESCLAOOIO, ELIAS SAXURLCASTRO-RAMOSand JUAN !'NRIQO'ESEGARRAPALMER, Oefendants,

PILIBEP.TO INOCENCIO OJEDA RIOS and JUAN ENRIQO'E SEGA.~ PAL"fi::R, Defendants-Appellants.

A petition fer rehearing containing a suggestion that the action be reheard in ba.oc having been filed herein by counsel for the defendant-appellant Juan Er.rique Segarra Palmer,

Upen consideration by the panel that heard the appeal, it is

ORDER..~ that said petition for rehearing is DENIED.

It is further noted that the suggestion for rehearing in banc having been transinitted to the judges of the Court in regular active service and to any other judge that heard the appeal anda poll of said judges having been taken, a cajority of the Court has voted not to reconsider the decision in banc. Judge Newman dissents from the denial of the rehearing in banc in a sep,arate opinion, in which Judges Oakes and ~earse c:oncur.

-:,q /1·1..~laine B. Goldsmith, 1 Clerk ·.J

U.S.A. v. 0ieda R!os and Se~arra Pal~er Nos. 87-1007, -1079

JON O. NEWMAN,Circuit Jud~e, with whom OAKESand KEARSE,Circu!: Jud~es, concur, dissenting from denial of rehearing in banc: The appellants' suggestion fer a rehearing in banc alleges a significant conflict between the panel's opi~ion uphol:ing the preventive detention of Ojeda Rios and Segarra Pal~er, United States v. Melendez-Carrion (Oieda Rios), 820 F.2d Só (2d. i Cir. 1987) (hereinafte,: "Oie¿a Rios"), and a prior panel's opinion ! • in United States v. Gonzales Claudio, 806 F.2d 334 (2d Cir. 1985), which held that the duration of pretrial detention of two codefendants of Ojeda Rios and Segarra Palmer exceede.d constitutio~al limits. I respectfully dissent from che denial of rehearing i~ banc because "consideration by che full court is necessary to secure or maintain unifor:nity of its decisions," Fed. R. App. P. 35(a) (1), and because che divergence between the opinions of t~e two panels in assessing governmental responsibility far pretrial delay creaces needless uncertainty on che importanc issue of when t~e duration of preventive decencion has exceeded conscitutional l it:1i ts.

In Gonzales Claudia, we ruled chat whether t~e d~ratio~ of pretrial detencion because of a risk of flig~t excee¿s ccr.stitutional limics de?ends on a composite assess~ent of ac le3st three factors: the length of che decention, the extent to whic~ che prosecucion bears responsibility far the delay oi t~e tri31, 8C5 and che strengch of the evidence indicating a risk of flig~t.

F.2d at 340. As to the cwo defendants challenging their dete~:ic~ on thac appeal, we held that constitucional limits had been

exceeded by detention lascing fcurteen monchs and remanded for che seccing of reasonable conditions of release. Wich respect to c~e second of che chree percinent factors, we concluded chac "che Gover~rnenc, even if not deserving of blame, bears a responsibilicy for a por:ion of che delay significant enough to add considera:le weighc to che defendancs' clain that che duration of decencia~ has exceeded constitucional limics."~/ 806 F.2d ac 342-43. Thac conclusion was based on four fac:s thac we underscood were undispuced:

(a) che prosecution did noc complete the tas~ of translacing wiretaps until nine mcnchs after detencion began;

(b) che prosecucion did noc complete the cask of translacing seized doc~~encs until one vear after decention began;

(e) the prosec~tion did not disclose che exiscence of videotapes of the defendants until ten monchs after detention began;

(d) the prosecution had not compleced compliance wich Fed. R. Crim. P. 16 discovery reques~s as of fourceen months after decencion began.

Afcer che renand in Gonzales Cla~dio, seven codefendancs muved for release from pretrial detention. Judge Clarie granted the mocion wich respect to five co-defe~da~:s, 2/ denied che motions of Ojeda Rios and Se~arra Pal~er.- In making che lacee:- rulings, Judge Clarie accepced as "c::e r'..!:e e: the case" the Courc of Appeals' conclusion in Gonzales Cla 1.;:: ~.:, concer~ing che prosec'..!tion's responsibilicy "'for a por:ion e: c:-.2 delay significant enough to add considerable weight'" to c::e

conscicucional claim. Uniced Scaces v. Ge:::-ena, Cri~. ~o. E-85-50, sli;, op. ac 10 (D. Conn. Dec. 22, 1986) (quocing Gonza.les ·c1a1..:c:.o, 806 F.2d ac 342). Judge Clarie concluded chac che prosec~:ion's responsibilicy for delay and che lengch of decencion ~ere oucweighe¿ by che s:rengch of che evidence indicacing ris~ o: flig~c.

The panel opinion affirming Judge Clarie's decision prcceeds somewhac differencly. Ic maincains chat Judge Cla:::-ie "t:ade excensive findings of facc chac, in effecc, largely absolved c~e prosecucion from responsibility for the delay in bringing appellancs to erial." Oieda Rios, suora, 820 F.2d at 60. "[A}ssisced by che addicional findings supplied by che discricc courc," t~e panel "decer:nined chac che prosecucion is noc responsijle for a signi:icanc portian of the delay in bringing app~llancs co c:::-ial, and we cherefore conclude thac chis factor weighs in favor of a finding thac appellants' due process righcs are noc violaced by their concinued pretrial detention." Id. Ulticately cr:e pa:-iel af:ir.::ed, relying on both che absence of prosecucicn res?cnsi:ilicy far erial delay and che screngch of c~e evid~nce ccnce:::-~i~g risk of flight. Id. ac 61-62. These fac:ors were ¿ee~ed ca c~:weigh che significance of che duracion of precrial con:in~~en:, which was nineteen months as of the date che Oieda Rics ª??eal ~as argued and now exceeds cwency-eighc monchs. Though Jud~e Clarie did not pur?orc·co discurj c~e conclusion of the Gonzales Claudia panel that che prosec~cio~ :ore responsibilicy far a significanc portian of che precrial dela::, he

did observe thac "che record on which the second circ'..lit relied for ics decerminacion as to the governmenc's faulc for the delay was boch faccually imprecise and incomplece." Slipº?· a.: 9. In supporc of this scacemenc, he added a note identifying four disag~ee~encs wich whac had been said in Gonzales C~a~dic. le is t~e ccntencs of chis note on which the Oieda Ríos panel relies in reaching ics conclusion that the prosecution is .!!2!. responsible for a significanc portian of the precrial delay. Befare examining the concent of thac note in decail, I observe that ic makes a slighc alceration in jusc one of the four faces thac were se~ forch in Gonzales Cla~ciio as providing an undispuced basis for ccncluding that the prosecucion was responsible for a signi:icanc portien of che pretrial delay. Gonzales Claudia had s:aced c~ac the prosecution took one year to complete the task of t=anslacing seized docu.~encs. Judge Clarie's note says that the task was comple~ed in ten monchs. Nothing in Judge Clarie's note cases ar.y d0ubt on the ocher three pertinenc facts: that the p=osec~.:icn cock nine monchs to translace the wirecaps, took ten ~cnc~s e~ disclose the existence of videocapes of the defendancs, anc hac not cocpleced compliance wich Rule 16 discovery reques:s as o: fourteen months· afcer decencion began.

The balance of Judge Clarie's note does noc alter c~e undispuced faces of prosecucion responsibilicy for a signi:ic~~c por:ion of the pretrial delay. Firsc, Judge Clarie peines o~: thac Gonzales Claudia had placed the duracion of wire~appi~g a:

t~ency-four months. Judge Clarie scaces thac che duration was sixteen months. Obviously, a somewhat shorter duration of wiretapping prior to arrest does not lessen the prosecution's res?onsibilicy far the undisputed nine-month delay in cranslating c~e wiretapped conversations afcer arrest.

Second, Judge Clarie challenges the Gonzales Claud:o observation thac the need for cranslations arose because che prosec~tion insisted on indicting che defendancs in Connectic~c and resisted cheir motion to transfer the case to Puerto Rico. Though this aspect of che controversy for.ned. no pare of the four undis?uted faces on which th~ Gonzales Claudia panel relied, I ack~o~lecge that che observation concerning tne site of che prosecution was somewhat overstated. Judge Clarie is quite corree: in pointing out that a erial in Puerto Rico would have been conc~c:ed in English, thereby necessitacing translation of all erial evide~ce. It remains true, however, that prosecution in Connec::c~c has s~bscantially increased the amount Q[ required trar.slatic~ a~c the consequent erial delay. In Puerto Rico, of the vast q~a~:~:y of wiretaps and seized documents, translacion would have required only far the relacively small portian that c~e pros~;~tion and che defense would place inco evidence. In Puer:o R~;;, lawyers fluenc in Spanish would not have needed translac:or. ~=c~e balance of these materials. In Connecticut, the many defe~~~ counsel who are noc fluenc in Spanish have needed translac~;~J of che wireta?S and seized docur.iencs not incended for use as t?·:: :,:~ce

in order to identify those ite~s percinent to preparing precrial challenges, including clairns of lack of wirecapping and seizures of unreasonable scope.

Third, Judge Clarie challenges che Gonza~es Cla~c~o observacion thac che prosecucion could have shortened che ci~e for c~e translacion task by devocing more resources. Judge Clarie peines out that the defense contributed to the delay by requesting an oppor:unity to make its own translations of the tapes, a task that consumed more time than the nine months taken by che prosecution. Whatever portian of the delay in securing che defendants' translacions of the tapes is actributable to che defense, che prosecution's nine-monch delay in securing ics cranslacions re~ains undispuced. Though Judge Clarie expresses the view t~ac the Gover~menc devoted adequace resources to chis task, chac is a conclusion of law on which reasonable minds may differ.

From Judge Clarie's note, che Oieda Rios panel discilled che following:

Judge Clarie specifically found, inter alia, chac che prosecution had completed ics cransTacTon of seized documents in a timely manner and thac the defense was responsible for che delay in tra~slacing docu.~encs, thac che need to translate docur.iencs and surveillance tapes arose inde?endencly of the prosecucion's opposition to cransferring che case to Puerto Rico, and thac che defense's, rather chan the prosecution's, ef:orts to obcain multiple translacions of surveillance tapes had concributed si~nificancly to the delay.

820 F.2d at 60.

In facc, Judge Clarie did noc make any finding as tJ

whecher che prosecucion had translaced che seized doc~~encs i~ a "cirnely manner." He scaced only thac che task had ca~en ten monc:1s, noc che c·,;elve monchs scaced in Gonzales ClaucEo. t:o:- did Jucge Cla:-ie find thac che defense was responsible far "t:-ie dela.:,'' in cranslacing documencs; he scaced thac che de:ense cook f~::ee~ roonchs to translace doc~~ents, bue he never dispuced c:1at c~e prosecucion cook ten monchs to translace che docurnencs ic wis~ed to have translaced. Judge Clarie's observacion abouc c~e sig~ificance of prosecution in Connecticuc concerned only che need in any evenc to translate evidence; there was no dispute thac translacion of che vast quantity of tapes and documents to be offered inca evidence would noc have been ~ecessary in Puerto Rico. Unquestionably che defense concributed to che delay in crar.slaci;.g c~e wirecaps, bue Judge Clarie did not question thac che prosec~cion took nine monc~s far chis cask.

I fully accepc every scacemenc of facc Judge Clarie r.as rnade concerning che causes of che precrial delay. ~ñat e~er 5es fro~ a careful reading of his opinion is thac che four fa.c:s be~ring on prosecucion responsibility for a porcion of delay, s:a:ed to be undisputed in Gonzales Claudia, re~ain undispuced w::~ o~e minar adjusc~enc:

(a) che prosecucion cook nine monc:is to cranslace che wirecaps;

(b) c:ie prosecucion cook ten monchs (noc t,;.;el ,..e monchs) to cranslace che seized docUI!lencs;

(e) che prosecucion delayed cen mont:is in

disclosing che existence of videocapes of the defendants; •

(d) the prosecution had not completed compliance with Rule 16 discovery requescs as of fourtee~ monchs after detention began.

These four undispuced faces still show, as they did wr.en Gonzales Claudio was decided, that che prosecution bears "a responsibility for a portian of che delay significanc eno~g~ to a¿d consi¿erable weight" to che defendants' due process clai=.

806 F.2d at 342-43. Yet the Oieda Ríos panel concludes chac t~e prosecution is "noc responsible for a significant por:ion of t~e delay" and thac this factor "weighs in favor of a fin¿ing" t~a.c continued decencion does not exceed due process limics. 820 F.2d at 60. I acknowledge that Judge Clarie's opinion may be rea.d to provide some basis for concluding thac che de2ree of prosecucion responsibility for precrial delay is slighcly less than appea~ed to che Gonzales Claudia panel. Bue ~he undispuced fac:s scill show a significant prosecution responsibility for dela~. This fac:or concinues to weigh in favor of a finding thac cor.cin~e¿ decencion does exceed due process limics.

Ic would be premature to vencure a view ac c~is t~~e as to whether, in light of all t~e pertinent factors, c~e durat~cn of precrial detencion, which has now lasced twency-eighc monc~s. exceeds constitucional scandards. Bue we ought noc to lec s:anc· two confl ic t ing conclus ions from und isputed f ac·cs as to wht:!:::e::one of che percinent factors, governmencal responsibilicy far

O T N O T E S

l/ As another panel of chis Court has pointed out, "[¡.;]hen che government moves far pretrial detention it has an obligation to arrange far che erial as quickly as possible, using 'extraordinary means' if necessary." United Sc:aces v . .!acksc:-1, 823 F .2d 4, 8 (2d Cir. 1987) (quocing United St:ates v. Sale:-:-:o, 794 F.2d 64, 79 n.2 (2d Cir. 1986) (Feinberg, C.J., disse!¡t:.ng), rev'd on ocher 2rounds, 107 S. Ce. 2095 (1987)). The Jackscn panel said it was writing "to make completely clear chat we w:.11 not vie•,... chis obligation of che gov·ernment lightly." 823 F.2d at 8.

11 Ojeda Ríos and Segarra Palmer had originally bee~ held in pretrial decencion wichout bail on grounds of boch ris~ of flight and dangerousness. On a prior appeal, a divided panel ruled that their detention on the ground of dangerousness was unconstitutional. United States v. Melendez-Carrion, 790 F.2é 98~ (2d Cir. 1986). As a member of the panel majority, I conc:~ce¿ that decencion far dangerousness violated substantive d~e prccess; Chief Judge Feinberg concluded that decencion fer dangero~s~~s~ violaced due process under che circ'.!IIlstances of dec:encion e~~: hac then lasced eighc monchs. The Government did not seek to hd·:~ thac decision reviewed by che Supreme Courc. Subsequenc~y. :~¿ conscicucionalicy of detencion on the ground of dangerousn~~s .as

(198i),

bv thel Suore?!le Court agaiast a facial substan:lve d~e ~hall~ng~. United Scaces v. Salerao. 107 S. C:. 2095 rev'2i 794 F.2d 64 (2d Cir. 1986). ' ]_/ 1 Undoubcedly che issue of the conscicutior:al ci=e ' limits on pre~=ial decencion will again confronc this Cou=:. I! ic arises again in this case, I would hope thac the District Cour: will provide ~ecailed findings concerning the time periods of pret=ial delay att=ibutable to the prosecution. 1

UNITED STATES orSTRICT COURT ;: _; :_: DISTRICT OF CONNC:CTICUT~::- !~ .~:-. f'J , ~-.,

UNI~ED S7ATES OF AMERICA

v. VICTO~ MANUELGERENA, et al

CRIM. NO. H-85-50 , '·

quLING ON THE DEFENDANTS'MOTIONTO SUPPRESS EVIDENCESEIZED DURINGPHYSICALSEARCHESEXECUTEDAüGUST30, 1965 ON THE GROUNDST~AT THE AFFIDAVITS SUBMITTEDFAILED TO ESTABLISH PROBABLECAUSE AND/ORTHE WARRANTSFAILED TO SPECIFY WIT~PARTICULARI~YT~E ITgMs TO BE SEIZED

The defendants in th1s case have moved to supp~ess the evidence seized in the cou~se of ten sea~ches conducted on August 30, 1985 at the ~esidences of named defendants in this case. The Cou~t has conside~ed the claims that p~obable cause and sufficient pa~ticula~ity we~e not established in the sea~ch wa~~ants. The Court finds that sufficient p~obable cause was established to believe that the 1tems 11sted in addendum two of the sea~ch wa~~ants would be found in the ~es1dences sea~ched. Howeve~, the Cou~t finds that addendum two, as modified by the affidavit, failed, in pa~t, to confo~m to the Fourth Amendment's pa~ticula~ity ~equi~ement. Thus, pa~ag~aphs two, three, five, ten, and t~elve of addendum two a~e sufficiently pa~ticula~. The Cou~t f1nds ove~b~oad, in pa~t, pa~ag~aphs one, four, six, eight, and nine. As w~itten, pa~ag~aphs seven, eleven, thi~teen, and fou~teen lack the specificity ~equi~ed by the Fou~th Amendment.

UNITEJ STATES OF AHE~!CA, Plainti.ff, ) vs. ) ) VICTOR GERE.JA, et al., ) Def endants. )

For t~e Plaintiff: OFFICE OF TH2 U.S. ATTOR~EY 450 Ma:.:i Street Hartford, Connec=icuc 06103 BY: ALBERT S. DA:ROWS;<I, SSQC':~: JOHN A. JA!-JA~2R, 2SQU!?.::'. For the Defendant Antonio Ca~ac~o-Neg~on: LINDA BACKIEL, ::'.SQUI~E 424 West Sc~ool~ouse

Philadelphia, Pennsylvan::.a

the t~o a~d bring them to trial immediately.

THE COURT: You aq~eed to that?

MR. WE!NGLASS: If they will drop all t~e Title 3 evidence plus all t~e conseque~ces that f 10w f rom ; !- -, yes.

T~E COUR~: Well, the consequences might be t~e searches.

MR. WEINGLASS: The consequences very well might be that.

TE~ COURT: Sure. In other words, if they give up their case, you're willing to go to

Let's not debate that ar.y furthe~.

MR. WE!NGLASS: No, Mr. Dabrowski said to me, Your Honor --and he's here in Court today --that they have a case. He contends that they'd be willing to go to trial without the Title J against the t~o.

T:!~ COURT: Provided

MR. WEINGLASS: That was what he represented to me.

MR. DABROWSKI: Mr. Dabrowski is going to respond to that, Your Honor.

MR. WEINGLASS: Yes, I wish he wculd.

MR. DABROWSKI: I don't ordinarily

counsel, but I feel compelled to do so in t~is particular case. I have said to Mr. Weinglass t~a: I believe t~e Government could cocvict Se~arra-?almer wi:hout the T:tle 3 surveillance and Ido believe that. Tha: does not mean, however, t~a: I ag~ee to and I have not agreed to go for~ard wit~ a trial of Juan Segarra-Pal~er without the Title 3 evidence and/or without all of the consequences that flow from that evidence.

So let the record reflect that I have told Mr. Weinglass that I believe there is suf:icient evidence to convic: his client, Juan Segarra-?almer, without the ~itle 3 evidence. T~at if we didn't have it, we'd be going fo~Ñard without it.

Sut I have neve~ agreed with him t~at we would drop all of the Title 3 evid~nce and try his client without it. We discussed that. There was never any agreement. The only thing that was ex;;,ressed to him to my recollec:ion, and it is ve::y clear, was that there was sufficient independent evidence to convict his client even if we were to exclude all of the Title 3 evidence.

THE COURT: I don't want to cut you off, but I don't think we're progressing with the

UNITED STATES DISTRICT COURT DISTRCIT OF CONNECTICUT

UNITED STATES OF AMERICA, Plaintiffs, vs.

GERENA ET AL., Defendants H 85-50 (TEC)

JANUARY 25, 1988

APPENDIX I

PROPOSEDSTIPULATIONOF UNDISPUTEDFACTS

Attached hereto is a list of uncontrovertible facts identified by Defendant Juan Segarra Palmeras relevant to the issue of responsibility fer the pretrial delay of 29 months. Each fact is succinctly stated, generally in the language of the docket entry or transcript which records its occurrences. A uniform, non-narrative format has been adopted to permit the prosecution to separately identify and verify each proposed stipulated fact. This format will also permit the Court to verify the precise dates in the Defendant's brief and/or in the prosecution's reply or argumentas relevant to specific periods or cause of delay.

To facilitate the evaluation of a voluminous and complex record, four critica! areas of litigation relevant to the issue of delay have been separately identified herein:

VICTOR

(1) Arrest -Detention -Motions fer Bail and Severance;

(2) Discovery and Production of Physical Surveillance Evidence (corresponds to .3 of Proposed Findings of Fact);

(3) Physical Searches: Production and Translation of Evidence and Motions to Suppress correspondence to 14 of Proposed Findings of Fact)(;

(4) Electronic Surveillance: Seizure, Presentation, Production and Translation of Evidence and Motions to Suppress (corresponds to .6 Proposed Findings of Fact).

The information concerning the dates of significant events in each of these categories is arranged chronologically to assist the Court's evaluation of the specific causes of delay.

Defendant Segarra hereby requests that the prosecution stipulate to the accuracy of each factual representation herein, but not to the relevance or significance of any particular fact. Defendant Juan Segarra Palmer specifically requests the Court to find that the attached Appendix constitutes a list of accurately -stated objective acts which are part of the record of the proceedings before the District Court. The defendant incorporates this recitation into the record before the District Court.

Arrest, Detention, Motions for Bail

FACT/EVENT

8/30/85

9/9/85

9/17-10/7/85

Defendant arrested in Dallas, Texas ordered removed to Connecticut.

BASIS

United States v. Melendez Carrian

790 F.2d 984 at 988 (2d Cir. 1986)

11/25/85

Defendant arrived in Connecticut and arraigned EODIE. Requested bail hearing 9/13/85.

Seven separate detention hearings for all detained defendants. Defendants request for consolidated hearing, requiring repetition on sorne testimony on seven separate occasions. Detentions ordered.

District Court affirms all order of detention and detains two admitted to bail by the magistrate.

790 F.2d at 988

790 F.2d at 989

12/27/85

3/3/86

5/2/86

10/21/86

11/20/86

12/10/86

Defendant files Notice of Appeal regarding preventive detention.

Oral argument on Appeal.

Detention affirmed by Second Circuit u.s. v. Melendez carrian.

Oral argument in United $tates v. Gonzalez Claudia.

See Docket USDC u.s. v. Gerena (hereinafter "Docket") p. 14, 12/27/85 entry.

Docket p. 14

790 F.2d 984 (2d. Cir. 1986)

804 F.2d 334 (2d. Cir. 1986)

Decision in Gonzalez Claudia, l_d.

12/22/86 remanding to District Court for setting of conditions of release.

Defendant renews application for bail. Government files Motion for continued detention

Application for bail denied

Docket p. 49

Docket p. 53

1/6/87 1/14/87

1/30/87

2/10/87

3/4/87

3/17/87

4/14/87

5/218f

6/15/87

9/21/87

FACT/EVENT

Motion for Reconsideration and review of Proposed Conditions of Release.

Renewed bail hearing conducted.

Detention Order affirmed.

Defendant files appeal to u.s. Court of Application fer the Second Circuit.

Defendant moves fer severance and immediate trial. Government objects.

BASIS

Docket p. 55A

Tr. 1/14/87 pp. 19-108

Docket p. 57

Docket p. 61

Docket p. 64A "Transcript of Proceedings, u,s. v. Gerena. u.s.o.c. (hereinafter "Tr.") 3/4/87 at p. __ ."

12/10/87

Court denies defendant's Motion fer Severance.

Appeal argued in Second Circuit. Court informed trial could proceed in September, 1987.

Decision in u.s. v. Melendez Carrion affirming detention of Juan Segarra Palmer.

Defendant files Petitiion fer Rehearing with Suggestion fer Rehearing ~.

Defendant communicates by letter to Court of Appeals indicating trial did not commence in September and would be delayed until early in 1988 at the earliest.

Government acknowledges on the record it cannot bring Defendant to trial before May 16, 1988.

Docket p. 65A

Tr. of oral argument 2d. Cir 4/14/87

790 F.2d 984 (2d. Cir. 1986)

U.S.C.A. Docket

U.S.C.A. Docket

Tr. of Proc. 12/11/87 at p. 210

DATE

12/12/87 12/7/88 1/13/88 1/12/88 1/14/88

FACT/EVENT

BASIS

Defendant files Motion for Immediate U.S.C.A. Docket Ruling in Second Circuit. Prosecution files Proposed Scheduling Order: May 27

Motion for Imrnediate Ruling Denied Docket, 93A without prejudice to apply for bail to Disctrict Court

Defendant files renewed Application Docket p. 94A for Bail in District Court

Petition for Rehearing and Sugg for U.S.C.A. Docket Rehearing .en~ denied by u.s. Court of Appeals

Argument in District Court on Docket p. 94A Defendant's Bail Application

FACT/EVENT

Physical surveillance, videotapes and identification processes. Jan. 1984 Jan. 1984 Feb. 1984

Government began conducting physical surveillance in Puerto Rico in connection with investigation of an October, 1983 rocket attack on federal building in Hato Rey, P.R. (FEDROC investigation)

First surveillance photographs taken of suspects in FEDROCinvestigation

Physical surveillance photographs were taken between January 1984 and August 30, 1985, the date of defendant's arrest

First videotapes made of suspects in FEDROCinvestigation. Videotapes including aerial surveillance tapes, were made between February 1984, and May, 1985

8/30/85

9/13/85

9/25/85

10/15/85

11/12/85

Arrests terminate investigation

Standing Order on Discovery filed requiring the Government to disclose to defendants all photographs material to the preparation of the defense

First Motion far Bill of Particulars filed by defendants.

Government ordered to complete discovery by 10/28/85. Discovery motions to be filed by 11/12/85

Defendant Ivonne Melendez Carrion files Motion for Discovery and Inspection containing specific requests fer photographs and videotapes.

BASIS

Government's Title III Discovery Vol. I at p._

Notice of Disclosure dated 6/30/86; 10/31/86

IdNotices of Disclosure dated 8/15, 8/29 9/16, 9/17, 9/29 10/6 and 12/26/86

Docket p. 2A

Docket P. 2A

Docket p. 3

Docket p. 4

DATE

11/12/85

1/15/86

FACT/EVENT

Defendant Segarra adopts Motion for Disclosure and Inspection filed by co-defendant Ivonne Melendez Carrion

Government discloses photographic arrays used in eyewitnesses identifications No other photographs were disclosed to defendants until August, 1986.

BASIS

Docket p. 4A

Docket p. 16 8/4/86 letter to Diane Pelan

3/18/86

3/21/86 4/9/86

4/9/86

5/16/86

6/30/86

Ruling on Defendant's Pre-trial motions. Court •encourages• the Government to complete scientific tests by 6/1/86 but •will refrain from imposing specific time limitations at this time".

Superseding indictmenet filed. Three additional defendants arrested. Number of Counts increased from 8 to 17.

Ruling on Discovery motion. Government ordered to disclose Rule 16 evidence by 4/30/86.

•Government ordered to file Bill of Particulars re: specific dates when each defendant's participation comrnenced and when terminated.• (Order reiterated on 11/4/86).

Court orders government to file list of trial exhibits by 6/30/86.

Docket p. 21A

Docket p. 22A

Docket p. 23A Docket p. 23A

Docket p. 45

Docket p. 26A

Government files list of number of Docket p. 34A trial exhibits which includes approximately 800 photographs and SO videotapes. This constitutes the prosecution's first disclosure of the existence of videotapes. No copies of the photographs or videotapes are provided to defendants.

This list exhibits is superseded by Docket p. 39 another, filed 8/1/86, anda final, sequentially ordere dlist on 12/1/86.

FACT/EVENT

7/8/86 8/1/86

8/4/86

8/15/86

8/27/86

8/29/86

9/17/86 - 9/29/86

10/6/86 10/31/86

12/10/86

BASIS

Defendant Hilton Fernandez Diamante Docket p. 35A files a rnotion fer copies of all photographs and videotapes listed as trial exhibits. So ordered EODIE.

Government seeks exception frorn discovery en May 16, 1986.

Government discloses 800 photographs to defendants.

Government discloses 22 video cassettes.

Docket Letter Pelan, 8/4/86

Docket p. 38 to Diane dated p. 38A

Prosecutor ordered to produce pen Docket p. 39 register data, docurnents alleged to be in handwriting of any defendant, and to disclose the identities of "other crimes" it intends to use on rebuttal.

Notice of Disclosure [additional Docket p. 40 surveillance videocassettes] filed.

Notice of Disclosure [Additional Docket p. 41 surveillance video cassettes] filed.

Notice of Disclosure [additional Docket p. 41A surveillance video cassettes] filed.

Notice of Disclosure of surveillance Docket p. 42 video cassettes.

Government discloses 4445 additional Docket p. 43A surveillance photographs. Government does not represent that these are all the photographs in the possession of the U.S. Government but are all of the photographs in possession of AUSA Dabrowski.

Government reveals existence of 16 additional surveillance videotapes.

Tr. 12/10/86 at p. __

DATE

1/11/88

1/13/88 1/13/88 1/14/88 1/15/88

1/20/88

10/31/86

11/4/86

FACT/EVENT

Ruling on Motion to Suppress Fernandez Diamante, Ojeda Ríos.

Ruling on Motion to Suppress Gonzalez Claudio.

Ruling on Motion to Suppress Ramirez Talavera.

Ruling on Motion to Suppress Isaac Camacho Negron.

Ruling on Motion to Suppress Colon Osorio.

Ruling on Motion to Preclude Use of Two Passport --Segarra.

Government shall disclose by 11/21/86 such evidentiary material in its possession [on] which it is conducting labor other exams.

Docket p. 94

Docket p. 94

Docket p. 94A

Docket p. 94A

Docket p. 94A

Docket p. 95

Docket p. 44

Disclosures of laboratory reports on Docket P. 93A evidence seized on 8/30/85 continue, the most recent being dated 1/7/88.

Court orders government to explain Docket p. 45 and failure to comply with any portien of specific [discovery] orders [dated 3/18/86, 7/17/86 and 8/27/86].

11/4/86

11/14/86

Government ordered to disclose which Docket p. 45 videotapes were recordered over and reasons, methods and responsibility fer erasurers on surveillance video cassettes.

Motions fer Production of documents Docket p. 46 [or sanctions]; Motion fer Compliance [Discovery] and sanctions.

DATE

12/1/86

12/17/86

FACT/EVENT

Motion for Imrnediate Disclosure of all Laboratory Reports and Scientific Evidence (and for Preclusion for failure to promptly disclose).

In response to defense Motion filed 8/14/86, Government discloses existence and provides copies of 16 additional videotapes.

BASIS

Docket p. 47

Docket p. 38A; reference to 12/12 letter from Attorney Acevedo to Court

C. PHYSICAL SEARCHESAND SEIZURES

DATE

4/2-3/84

8/30/85

FACT/EVENT

9/30/85

10/16/85

11/12/85

8/27/86

12/22/86

BASIS

First search and seizure of evidence Tr. U.S. v. to be used at trial of defendants Gerena U.S.D.C. arrested 8/30/85 Approximately 200 Tr. of 2/26/87, documents from this search identified Exhibit 267, 267a as government exhibits on exhibit list dated 6/30/76.

An eighty-six page index of these documents seized at Puerto de Tierra disclosed to Defendants three years later

Approximately 45 searches at various locations, including a business, a motorhome and luggage alleged to belong to Juan Segarra Palmer. Thousands of documents as well as physical objects are seized.

Prosecutive report· of 1600 pages summar1z1ng evidence against each defendant sent to US. Attorney's office in Hartford and FBI headquarters in Washington. Transcripts translation~ available to FBI in 10/84

omnibus discovery motions filed seeking all Rule 16 material

Motion for Bill of Discovery and Bill of Particulars and supporting memoranda

Final ruling on Motion for Discovery and Sanctions

Motion to Suppress Juan Segarra's luggage and Jamboree Motorhome filed.

Docket at p. 34A. Tr. U.S.D.C., 3/31/87 Ex. 381 and 381A.

Tr. 4/28/87 p. 99-100 Cf. 68-99

Docket p. 29

Docket p. 3

Docket p. 4

Docket p. 39

Docket p. 52A

DATE

1/20/87

3/26/87

8/26/87

9/4/87

9/10/87

FACT/EVENT

Evidentiary Hearings on Motions to Suppress Physical Evidence begin.

Existence of an 88 page sub-inventory documents seized 4/2/84 first disclosed. The documents [virtually all of which are in Spanish] can not be made available to counsel according to A.U.S.A. Dabrowski because they are •not in any logical order ... we are talking about a cerner of a room that consists of boxes piled quite high.•

Hearings on Motions to Suppress Physical Surveillance conclude.

Defendant's Proposed Finding of Fact and Conclusions of Law filed.

BASIS

Docket p. 58

Tr. 3/26/87 at p. 25

Docket p. 81

Docket at p. 81A

9/11/87

9/13/87

9/23/87

Defendants ordered to file briefs on individual Motions to Suppress. by 9/22/87; government to reply by 10/6/87; defendants' further rereply by 10/13/87 and final prosecution response by 10/19/87. Defendants' reply to prosecution's memo of 8/7/87 re: general warrant filed.

Ruling on all Defendants' Motions to suppress physical evidence for lack of probable cause and general warrant filed.

Ruling on Motion to Suppress Evidence Seized from Motorhome

Docket at p. 82A

Docket at 83A

Docket at 84

D. ELECTRONICSURVEILLANCE

FACT/EVENT

4/27/848/29/85

10/13/849/14/85

Electronic surveillance conducted in Puerto Rico and Boston resulting in evidence the prosecution seeks to introduce into evidence.

Judicial sealing was accomplished on the following dates (numbers in parentheses indicate delays between sealing and termination of surveillance and expiration of the order:

Levittown: 10/13/84 (96 days/82 days)

Datsun: 10/13/84 (71 days/3 days)

Taft Street: (residence of Segarra): 10/13/84 (61 days/49 days)

El Cortijo: 10/13/84 (19 days)

Vega Baja Residence (residence of 6/15/85 (16 days)

Vega Baja Public Telephone: 6/15/85 (16 days)

El Centro Condorninium: 9/14/85 (16 days/15 days)

Title III Discovery

Title III Discovery

Title III Discovery

Title III Discovery

Title III Discovery

Title III Discovery

Title III Discovery

Title III Discovery

Title III Discovery

DATE 5/2/84

2/26/86 10/9/86 11/25/86 2/4/87

FACT/EVENT

BASIS

S.A. Balizan writes rnernorandurn Ex. G 387 detailing use of •work• cassettes. Tr. 9/16/87 It is withheld frorn defensealong with all evidence of this use of cassette recordings; until 9/16/87. .I_d.

Prosecution responds to defense Docket p. 20 interrogatories about type and use of various surveillance tape recorders without acknowledging use of cassette recorders to rnake •work• cassetts

Prosecution files response to Docket p. 43A Defendants' Supplemental Memorandurn Ex. 2411 Re Interrogatories [. . . ] concerning Recording Procedures. This response does not include reference to use of cassette recorders to make •work cassettes• provided by technical agent Luis Montserrate.

Electronic surveillance monitoring Tr. 11/18/87 agents file affidvaits swearing they Gov. Ex. 440 •did not alter, erase, change or tamper with any tape in rny possession or control.•

Ruling that law of First, not Second Docket at p. 60 Circuit would determine sealing issue in this case.

•[w]e rnade no mention anywhere of that work copy just to keep . really to keep questions frorn being asked about it.•

Tr. 9/1/87 at p. 236

FACT/EVENT

8/29/87

9/1/87

9/2/87

9/17/87

10/8/87

10/30/87

11/13/87

11/18/87

11/24/87

S.A. Lino Coral, who had refused to sign forro affidavit submitted by the prosecution to agents, revealed on the witness stand the use of cassette recorders for purposes other than previously disclosed.

S.A. Rodriguez first reveals creation of over 1,000 original cassette tapes, most of which were destroyed by the FBI.

(AUSA's first advised of cassettes 4/86)

Eight original cassette recordings found in desk drawer of S.A. Rodriguez and turned over.

Court orders all additional work cassettes disclosed.

Disclosures of 20 additional cassettes (in Spanish) from Puerto Rico.

157 cassettes from Boston disclosed.

11 cassettes located in early November disclosed to defense.

S.A. Juan Gonzalez admitted that this statement, which he swore to in a written affidavit, was false.

Agent Aponte admits that •work cassette• #6 contains 6 minutes of conversation not on •original" reel-to-reel recording. Agent Aponte admits he has no idea how many of the destroyed •work tapes" contains conversations not on •original" recordings.

BASIS

Tr. 11/24/87 pp. 60-65

Tr. 9/_/87 p. 198, 230

Tr. 1/13/86 p. 51

Tr. at Docket p. 83

Docket p. 86

Docket p. 88A

Tr. at pp 188-89, 207-208

Tr. 11/17/87 p. 178

Tr. p. 140 l..d, p. 142

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF CONNECTICUT

UNITED STATES OF AMERICA vs. VICTOR MANUEL GERENA, ET AL, Defendants. ----------------------------------x

H-85-50 TEC Federal Building 450 Main Street

Hartford, Connecticut January 26, 1988

Held Before:

The Hon. T. EMMET CLARIE Senior u. S. o. J.

very grateful if they could be permitted to have the use of ear~hones during this procedure.

MR. KUBY: It's been done.

THE ~OURT: Certainly.

MR. HARVEY: With the Court's leave, Mr. OJecia-Rios will adoress the Court now.

THE CüURT: I want to state to the memoers who are present we're glad to see so many here, but there will be no outbursts, there will be no applause; there will be no statements of approval or disapproval because this is a court. This is nota town meeting. law. This is a court of

We must have discipline in a court just like you have discipline in a classroom. you don' t have discipline in a classroom where your ch1ldren 90 to school, you can' t have teaching. Unless you have discipline in a courtroom, you can't have the administration of justice.

So, I expect you to conduct yourselves accord1ngly.

Mr. Ríos, you may proceed. If

MR. OJEDA-RIOS: Good morning, sir.

I am sure you will find the Puerto Rican people

who support me are extremely courteous people and dignified.

THE COURT: You have always been very t:ourteous.

MR. OJEDA-RIOS: Thank you, sir.

"There are two points which I consider of importance to this court at this time. They are in the first piace rny position on the jurisdiction of the Court and second rny right to be released and the obervánce of due process and basic human rights under international law.

"At this rnoment I will limit myself to reiterate in a general manner what has been my pos~ure re9arding the jurisáiction of this court.

I simply state ana reaffirm that Ido not reco~nize the Jurisdiction of what I considera colonial court presiding ata trial of persons committed to and arrested because of struggling against colonialism and for self-determination.

I am sure there will be more appropriate moments during this interminable process to raise this issue and explain my position in full detail.

"The right to be released, and the strict observance of due process, rights that are clearly protected by international law, will thus

be the main subject of my intervention, complying with what is the fundamental point of discussion by the Court at this time.

"To this day two years, four months and 26 days have passed since I was arrested in my country and brought here for these proceedings.

" I wi 11 n o t g o i n t o t h e

what these past 29 months have meant. Even when prison is full of hardships for all incarcerated, these hardships have been arbitrarily multiplied in our case. Isolation, harassment, psychological torture and even physical aggression have been all applied at different moments of this protracted incarceration.

"As I stand here today, it is the fifth and very possibly the last effort to obtain a relea se in this particular _court. Hearings have been conducted on four previous occasions, two in this very place and two in the Second Circuit Court of Appeals.

"Our release has obviously been denied on all these occasions. During the hearings the Government has achieved its objective by relying on the testimony of an FBI agent. In the same manner and on different hearings other

agents repeated the same fundamental accusations as they defended their numerous violations in the conduct of the searches and arrests. All of it took the form of a well-orchestrated litany.

"The arguments constantly repeated by the agents in order to prevent my release have been basically three. The first and most important being that I ama leading member of Los Macheteros, which has been described as a 'terrorist organi zat ion.'

"The second argument has been that I ama Cuban agent; and the third and of no less influence on those who must take the decision for my release, is the resistance I displayed in order to respond to my projected arrest that resulted in the wounding of an FBI agent.

"All these accusations, none of which I have been indicted for, have definitely played a decisive influence in the decisions taken not only by this Court, but also by the Court of Appeals for the Second Circuit. The ideological position was first clearly established by Attorney General Edwin Meese on the first day of our arrest when he presented this position to the North American people. At that time he expressed the

opinion thac, and I quote, 'The Macheteros have oecome one of the most violent of the clandestine groups operatin~ in Puerto Rico. The Justice Department's massive infusion of resources during this investigation is evidence of our resolve and commitment to respond to tE:rrorism in the Commonwealch of Puerto Rico and elsewhere. We want our fellow citizens 1n Puerto Rico to recognize this commitment and to know that without their full coo~eration and support, it would be more difficult to contain terrorisrn.'

"This was a Department of Justice press release on the 30th of August 1985; 'The most extreme of these opinions, even when it is a dissentin~ opinion, was expressed by Judge Timbers wnen he surpassed even the allegations made by the United States Government by saying, and I quote, 'The essential question presented on this appeal is whether the United States is powerless to protect the public from the depredations of appellants who are Key members of Los Macheteros, one of the most notorious terrorist organ1zations in the western hernisphere, based in Puerto Rico.'

"This staternent was in the United States v. Melendez-Carrion, and I think your Honor

well remembers that.

"The opinions written by Judge Newman also in Melendez-Carrion and

Gonzalez-Claudio expressed such an attitude, saying, referring to Los Macheteros, and I quote, 'The group was identified as a paramilitary, terrorist organization that had committed various crimes to advance the cause of Puerto Rican independence.'

"All these opinions stem from findings made by this court on numerous occasions, such as, and I quote, 'The Defendant is a salaried member of the Macheteros, a clandestine terrorist organization committed to the overthrow of the United States Government in Puerto Rico by violence.' In United_States vs. Gonzalez-Claudio, the Ruling on Remand at page 4, and I quote, 'The Defendant is a full-time soldier in the organization, with training to commit acts of sabotage and terrorism.' vs._Isaac_Camacho-Neiron 4. Another example and This is in United States Ruling on Remana on page I q u o te , ' The De fe n dan t has asserted that he is the head of Los Macheteros, a clandestine terrorist organization committed to the overthrow of the United States Government in

Puerto Rico by violence.' This is Ruling on Motion of Filiberto Ojeda-Rios for Order of Conditional Release. To be accurate, the last sentence should have really read, "The FBI has asserted that the Defendant has asserted," because that is strictly an FBI allegation and those have not been my words.

"Thus the Court, through a totally unjust system of proceedings established by the Bail Reform Act, assumed to be totally true what an FBI agent expresses without permitting the confrontation that these allegations deserve by our attorneys. Terrorism, therefore, is a main

issue in these hearings andas such, I will try to present, with permission of the Court, my position on that issue.

"Being that these hearings have become, legally speaking, fact finding hearings, I find myself in the obligation, both morally and legally, to respond to each of these allegations by which I have been found guilty without trial and already submitted to a very prolonged period of incarceration.

"International terrorism, therefore, became one of the most important reasons for

considering me a danger to the community anda risk of flight.

"Numerous actions attributed to Los Macheteros were cited in order to demonstrate their position. The attack on the Muniz Air Force Base, the attack against military personnel stationed in Sabana Seca, which is one of the numerous United States military bases which occupy 13 percent of our country was another, as so were the rocket attacks against the offices of the repressive FBI forces in the San Juan Federal Building.

"While all these clearly political statements were repeated over and over again by the FBI witnesses with the indulgence of the Court, any attempt made by our attorneys to rebut the 'terrorist' claim was immediately censured and characterized as a 'propaganda ploy.'

"Even the definition of'terrorism' took the form of a great struggle, which didn't even take into consideration Resolution 40/61, which contains the internationally recognized definition unanimously approved by the United Nations on December 9, 1985. Naturally, when I say,' unanimous'" I mean that the United States

Government was also a signatory to this resolution.

"The resolution clearly defines terrorism as acts, and I quote,'which endanger or take human lives, jeopardize fundamental freeáoms and seriously impair the dignity of human beings.'

this same resolution also protects the rights of lioeration movements when it ~x~resses that it, and I quote, 'Again reaffirms the inalienable right to self-determination and independence of all peoples under colonial and racist regimes and other fo~ms of alien dornination, and upholding the legitirnacy of their struggle, in particular the struggie of nat1onal l1beration rnovements, in accordance with the purposes and principles of the Charter and of the Declaration of Principles of International Law Concerning Friendly Relations and Cooperation among States in Accordance with the Charter of the United Nations.'

"By all rneans, that resolution represents the normal aspirations of humanity to live in peace and with a guarantee of respect for h um a n r i g h t s

"An affirmation much closer to reality is that we, the Puerto Rican people, have

been victims of terrorism in all its forms by the United States Government.

"There can be no worse expression of terrorism, in this case, state terrorism, than genocide.

"The Genocide Convention, approved by the General Assembly of the United Nations on December 9, 1948, defines the crime of genocide as, and I quote, 'In the present Convention genocide means any of the following acts committed with intent to destroy, in whole or in part, a I national, ethnic, racial or religious group, as s uch:

A: B: Killing members of the group; Causing serious bodily or mental harm to members of the group;

C: Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in all or in part;

D: Imposing measures intended to prevent births within the group;

E: Forcibly transferring children of the group to another group."

"If we analyze these two important international statements in the context of United

States policy, no other conclusion can be reached tnan to c:learly exonerate Los Mc:1cheteros liberation movement of such practices and accuse the United States Government as the greatest representative of terrorism, not only in my country, but all over the world.

"A comparison of the armed actions attr1buteó to Los Macheteros with those executea by the United States Government through their 1nteliigence and repressive a~encies --such as the CIA and the FBI will clearly demonstrate who is ac~1ng as a true defender of numan rights and condemns terror1sm, and who violates human r1ghts and appiies terrorism. And, of course, we can never forget that genocide is the most criminal and inhuman form of terrorism.

"I will reach for vivid examples, the Court ~ermitting, examples that are part of contem~oraneous history. I will not go into the details of Hiroshima and Na~asaki, which is truly an onerous example of barbarism.

"Today, a criminal arm of assassins, organized, directed and fully financed by the United States Government is taking and endanger1ng innocent human lives, is jeopardizing fundamental

freedoms and is seriously impairing the dignity of human beings all in the name of democracy --in Nicaragua. The peace-loving North American people are against terrorist acts by which farmers, children, women and menare being murdered or maimed. Schools, hospitals, homes, industries and infrastructural resources that have been built with great sacrifices by the Nicaraguan people have been criminally destroyed.

"These horrendous acts of terrorism have taken effect solely by the decision of the United States Government which has gone as far as to engage in the deceitful policy of trading arms for hostages with Iran and diverting the funds obtained to finance the North American/Contra forces. This act constitutes, besides an international crime, a total deceit to the people of this country.

"To top this shameful and criminal policy, other finance resources were obtained by engaging in other criminal acts: cocaine trafficking. All of this has been directed by the wrongly-directed creativity of Colonel Oliver North, who follows a policy established by the President of the United States of America. Th is,

your Honor, is a vivid example of state terrorism as applied by your Government on the international level. But by no means can we separate this from what is done in our country, for it is part of the same policy.

"It should sadden our hearts to see other parts of the world in which humble people that only struggle to put an end to their misery, are also victimized by exactly the same policies. In Angola, a government of the people that had to fight very hard in order to attain power and commence a struggle against illiteracy, hunger, s i c k n e s

, u n e m p 1 o yme n t a n d g r e a t m i s e r y , i s a t this time under fierce attack by an army totally supported and logistically maintained by the CIA. The atrocities committed against the Angolan people are of the same savage nature as those committed in Nicaragua," and those committed in my country, Puerto Rico.

"It is not I who makes this charge. The accusations have been made by the person who was the station chief of the CIA in that part of the world. His name is John Stockwell, and his book, I~-~~~!~~_of_Enemies, together with the numerous and more recent conferences that he has

given, documented this very well. After reaching, by his own experience, a· level of consciousness of the criminality of his government' s policy and the great harm to humanity which it inflicts, he made a decisive and brave stand which led him to retire from such practices. His experience serves asan inspiration, hope and faith that the peace-loving people are truly sensitive to the sufferings of the peoples from the underdeveloped countries.

"I could go on and on citing to this Court numerous examples of the nature of state terrorism that has characterized the imposition and support of military dictators all over Latin America and the Phillipines -- Trujillo, Marcos, Duvalier, Pinochet, Strossner, Ríos Mont, Somoza, Batista. These are justa few examples. The murders of human rights and civil rights defenders in Honduras by an elite batallion of military forces trained by the United States in Texas, such as was recently described in a New York Times editorial, is another.

"And it is this Government, whose deplorable aggressions of a terrorist nature all over the world constitute one of its main elements of foreign policy, that accuses the partriotic

Puerto Rican liberation movement, and particularly Los Macheteros, of terrorism.

"In Puerto Rico, terrorisrn has played a major role, but it has been the terrorism exercised by the u.s. Governrnent, which has been described orto be more exact, falls within the scope of the Genocide Convention.

"The United States Government has killed, imprisoned and persecuted all members of Puerto Rican society that believe in and struggle t for independence in one way or another. Th e U. S. Government has caused serious bodily and mental harm to our population through its policies of physical repression and psychological aggression.

"There is perhaps no greater crime committed against a population than that which pursues the destruction of the national conscience and the cultural values that give the people its sense of dignity and self-respect. This policy takes the form of a sadistic and extremely racist practice when, since birth, the children are mentally hammered with a sense of national impotency, through false claims that without the United States, we would starve to death. These were the words that were used in our schools when

we were children. This, in reality, means nothing but to deliberately inflict on our population conditions of life calculated to bring about its physical destruction in whole or in part.

"It is no secret that the colonial administration has imposed measures intended to prevent births. This practice has taken place to the point in which, at the present time, well over 46 percent of all married women of child-bearing age in Puerto Rico have been sterilized." This was reportea, it was a scientific study, reportea in the Puerto Rican newspaper, on July 30, 1984.

"In other words, terrorism, in its worst manifestations, has been premeditatedly instrumented in Puerto Rico through all 89 years of United States colonial rule. The violent repression of the independence movement has taken a variety of forms. Here I can only mention a few of the most notorious and well-documented:

"The outright entrapment and murder of two innocent young independentistas by police of the intelligence division at Cerro Maravilla;

"The brutal torturing and murdering of activists such as Angel Rodriguez Cristobal

while held in custody in United States prisons for his opposition to the use of the island of Vieques as target practice by the United States Navy;

"The disappearance of labor leaders such as Caballero and Estrella whose bodies were later found mutilated and decomposed;

"The bombing of independence organizations' headquarters and the shooting and wounding of persons inside;

"The bornbing and destroying of pro-independence printing shops.

"The cornpiling of lists of people who favor independence who are labeled as subversive ' and denied jobs, adrnission to schools and professions, and otherwise discriminated against;

"Finally, the second invasion of our island on August 30, 1985, abusing our people, terrorizing the population and indiscrirninately searching and seizing political documents pertaining to the independence struggle as well as personal letters, poerns, and other docurnents. Cuban agent. explanation.

"I have been accused of being a This, your Honor, also requires an

The glorious Cuban revolution is

like a thorn in the heart of imperialism. It represents, to this day,• a symbol of hope, dignity and self-determination for the peoples of all

L a t i n Am e r i e a • It has opened the minds of all our peoples to the fact that we are not condemned to live in misery, under ferocious exploitation, dying from hunger, sickness and denied the rnost elemental human rights.

"The extraordinary valiant posture of its leaders and its people and the incorruptible defense of their own achievements serve asan example to all peoples that are forced to live under savage exploitation and repression. Their accomplishment in transforming their country from a land of rarnpaging hunger, rnisery, dependency and fierce repression which cost the lives of over 20,000 Cubans --into a country of self-relianc , where hunger no longer exists; where illiteracy has been totally eradicated and education is reaching the highest standards; where health is one of the main concerns and rendered free of cost to all the people; where unemployment has been totally eliminated; where drugs do not constitute a refuge from the inequities of a social and economic system; and where crirne does not

representa problem of the nature known in the, euphemistically called 'free world.'

"Tnese achievements which are only a fract1on of ~he numerous benefits enJoyed by the human people, have costa lot of sacrifice. But even sa~r1fice can become a powe,ful example for all Latin Americans, because sacrifice is a parallel road to the aspiration uf achiev1ng a dignified goal anda decorous future. Such is the power of hope and faith, and such is the symool and message of the Cuban revolution to all 1m1,Joverished Latin Arnericans and the world. I can only say with pride that I hold great respect and é5teem ior the Cuban revolution. And this respect and esteem emerge from the fact that this revolution taught me the values of self-respect, independence and the enormous value of pride in Déing Puerto Ri~an. It has not been a lesson of dependency, but rather of the need to break away frorn aepenüency ano foilow a true path of restoration of dignity. It helped me understand the extraoró1nary values of rny people, our patriots, our history and our own struggle through self eíforts, self-reliance, and total and indestructible loyalty to rny people, rny country

and my strugyle. Forme, to be what the U.S. Government calls me --a Cucan agént --would be to have learned nothing. It would be contrary to what the Cuban revolution re~resents in this continent to all Latin Americans.

"The intention of this ~erf1dious accusation does not stern from strength, but from fear. I t

States offensively calls its'oackyard.' Wha t g 1 v 1:s t he Un 1 te d Sta tes Go v e r nmen t t h e r i g h t o f dictating to our countries how to live? Wha t giv1:s this country the right of subjugating the Puerto Rican people and irnposing on us the onerous colonial system of explo1tation? The era of manifest destiny is long gone and we, the oppressed, are claim1ng our rights to live in freedom, peace and self-deterrnination.

"No, your Honor, I am nota Cuban agent. I am simply a Puerto Rican man of humble or1gin who nas learned through his own experience as a victim of colonialism and through the heroic examples of Latín American struygles and of the Puerto Hican struggles the values of being Puerto R1can. The Cucan and the Puerto R1can peoples nave a cornrnon history. Our forefathers struggled

arm in arm in what was has been a historical, single struggle. The aspirations of our forefathers were those of seeing a union of Caribbean countries. The tradition of struggle was then the result of a common effort for independence against Spanish colonialism. Then i t was the Government of the United States which interrupted that natural process and artificially divided our countries, to serve their own colonialist and imperialist interests.

"During the past 89 years, the Cuban people have expressed active support for the independence of Puerto Rico. This support began long befare the triumph of the Cuban revolution. It was expressed by leading Cuban citizens and intellectuals, by artists and by political leaders of great prestige over many, many decades. All these efforts and expressions of the Cuban people then became, after 1959, official government policy. The support in the international level prometed by the Cuban Revolution to Puerto Rican independence has been constant, never submitting to the pressures of the United States Government. Such has been the strength of Cuban solidarity, and such has been the sphere of their support. It

has been moral support displayed with great effectiveness and vehemence. For that, all Puerto Ricans are grateful.

"I have personally experienced the Cuban revolution. I lived in that country, worked amongst its people. I cut sugar cane. I helped construct schools. I studied and I raised my children. I saw the people' s total dedication to the revolution, their trust and leve for their leaders, heroes and martyrs, and their total dedication to conquer their goals. My activities in that country were very far from anything that could be connected to the government. Teaching their children is far from being anything like an agent.

"The intention of calling me a Cuban agent is very clear. It pursues the objective of deceiving the North American people and preparing conditions in order to continue its barrage of attacks against the Cuban revolution and justify further aggressions. They very well know that revolutions cannot be exported. Revolutions are solely provoked by the miserable conditions that people are subjected to, from their lack of freedom and from the eternal need of humanity to

struggle for their rights, survival and social j ustice.

"The FBI attack on the presumed Macheteros was directed at destroying their example and their progressive development within

Puerto Rican society on the path to freedom. larger scale, the actual attack on the Cuban On a revolution is aire~ted to curtail their example to all Latin American people. Both repressive effo~ts are aest1ned to fa1lure.

"The final argument strongly utilized by the ~rosecutor to demonstrate rny so-callea dangerousness to the community has been the fact that I've resistea arrest; that there was a shoot-out and tnat one of the FBI agents was woundeó. Tnis, of course, I have not and w1ll not deny. But is this event really a revealing facto~ as to my being a danger to rny community? possible answer to that question is 'no.' The only Th is will also require, I am sure, sorne explanation.

"In the first place, I have publicly stated that when I assumed tnat m1litant stand, I was in fact exercising a right. It was the home of a Puerto Rican family that was be1ng attacked oy alien paramilitary forces in what was an overt

act of repression. To my judgment, the dignity of my people and the right to defend that dignity was at stake. Even when it was an individual act, it was a clear manifestation of a collective right. The strength carne from the people and it was, if anything, a response of a people who, fer 89 years, have suffered aggression after aggression at the hands of the colonial power and the forces of repression. I have no doubt that my cornmunity is in no way condemning that act. On the contrary, I have had ample proof of support.

"It is highly contradictory to say that I ama danger to the community. The only enes that representa danger to my Puerto Rican community are the forces that have been assigned the role of maintaining the colonial systern of exploitation intact. In other words, those in charge of implementing the political repression, the ones that created and oriented their local acolytes to keep a so-called 'subversives list; the ones that murdered the son of independentista leaders Juan Mari Bras, the ones that were given the roles as political repressors on the morning of August 30, 1985.

"If I represented a danger to the

would hardly get the support I have

yotcen because, after all, how could a community support anyone who is or ~an be amenace to them? "How woula it be poss1ble for thousands of persons representative of all strata of Puerto R1can soc1ety to sign ~etitions claiming Íor my rele3se? How could it be possible that hea~s of states, u.s. presiaential cand1dates, ex-governors of states in the United States, as well as dist1nguished jur1sts and óefenaers of humdn rights from all over Latin America, Europe ano As1an countries sign petitions asKing for my release?

"If anything, and if they really want to ex~ress the truth, they should say that I ama menace to the FBI's violent intervention over my people. And this is only because the FBI and the Government that establishes its policies representa menace anda danger to the Puerto Rican community. In any extent, it 'was not I who invaded the1r territory, breaking áoors, ransacking homes and terrorizing the American people. It was not I who violatéd the sanctity of their homes or the privacy of their lives. they who did all these things in my country.

It was And

we firmly maintain that this was strictly an act of ~ol1tical repress1on. It was oesigned as a message through terrorist means, similar to the ones the Israelí 9overnrnent is at this moment putting into practice against the Palestinian ~eople oy pur~osely fracturing their arms anó legs in order to -- as they have said -- 'show them who is boss. 1

11 Why was i t, your Honor, that they had the n~ed to keep secret this a~gression even from the colonial governor of the island? The answer is painíully simple. It was an act designed to intimidate and terrorize the Puerto Rican people and to try to paralyze the growing liberation movement. And all this brings a question to my mind, why is it that after 29 months of this historical FBI violation of Puerto Rican numan r19hts in whi~h they correc~ly claim I resisted arrest, I have not been indicted for such an accusation? I truiy do not know the answer, but I cannot help but think that it lies within the same l1ne of political reasoning that has óetermined that we are to stand trial in Connect1cut. There is no doubt that a trial in our country could constitute a strong political

controversy and massive public support would def1n1tely oe i11 our favor. lt is, in a way, the political line of reasoning the British enforced by 'transport1ng' the revolutionaires 'beyonó the seas to be tried for pretended offenses back oefore 1776."

I will conclude, your Honor, with just a few words that have a certa1n relation to the case. When we were first arrested, I had truly ~~eat fears. Whe:n we were brought up to this country, the first North American people that we contacted were our attorneys, and it nas b~en a very educative experience to have been in contact with these attorn~ys because to me they ao representa certain sentiment of these dignities and respe~t ano ~rofessionalism.

They have worked very, very hard and they llave bee:n very, very rE:sponsiole in the fulfillment of their obligations, and it strikes me that oelay on many occasions has been attributed to them by the prosecutors, and it's really very contraóictory in my mind and I cannot really understand how it is possible that people that llave been so resJ?onsible in their work and looking for every possible way of defending each

and every ene of the accused and analyzing the eviaence that was b~ought 1n front of us with such zeal, how could that attitude of responsibility be said tnat it 1s an intentional delay?

The Governrnent, we have all seen, took over 1,0~0 hours of tapes, thousands and thousands of docurnents, all of which require a lot of work; and thesc attorneys have done a very responsible job in preserving the rights of each and every ene of the accused.

At no moment has a tactic of delay been adoptea or discussed. Tne only thing that has been discussed is how to deal properly with every p1ece of ev1dence and with these tapes. I say this not only in recognition to our attorneys, and not only w1th a ray of hope that the~e attorneys give me because of their being Americans and because of the1r being my faith in the first contact I had with Americans after my arrest and fa1th and hope in the American people. And I do hope this Court will take into consideration these elements of professionalism ano h1~h degree of responsibility when he discusses delay and when he taKes a new position to present. final words. These are my

I will thank the Court fer this courtesy and fer aliowing me to speak at this moment. Thank you.

THE COURT: Are you satisfied with Mr. Harv~y as your attorney? Remember, at 011e time we raised the question when he carne up to speed to take over the case, Mr. Kuntsler wouid be released.

Are you satisfied witn his ability and his grasp of your case to repres~nt you in this matter?

MR. OJEDA-RIOS: I am very, very sa1:isfied with Mr. Harvey.

THE COURT: Mr. Harvey, are you

Sát1sf1ed that you, too, hav e a full grasp of this case 50 you can take over for Mr. Kunstler?

M.k. HAkVBY: I thought you were going to ask me if I was satisfied with rny client.

The answer is definitely yes, judge. I am filing today affidavits (AiJplause .) Yes indeed.

THE COURT: If that were to happen during court, I would clear the courtroom and those who participated would not be eligible to be admitted under those circurnstances. I asked you

to refrain frorn any outbursts and you violated the Court's reyu~st. Maybe you dián't know. Maybe I'll charge it up to that.

Counselor?

MR. HARVEY: Judge, Ido apologize. I, in fact, have with me today an affidav1t frorn Mr. Kuntsler and one from rnyself which I was proposing to file with tn~ Court indi~ating his withdrawal frorn the case and his satisfaction and mine that I am fully up to speed on the case.

THE COURT: Very well. It may be filed. Mr. OJeaa-Rios, you're satisfied that Mr. Kuntsler should file that withdrawal?

Ml:L OJI:;DA-RlOS: Yes. Yes , I arn .

THE COURT: Very well. So ordered.

MR. HARVJ::Y: Thank you, Judge.

Judge, in following Mr. Ojeda-Rios, he has referred to a number of intérnational law docurnents and precedents which we assert in our motion before the Court are binding on this Court as part of United States law.

T H E C O U };{'l' : They're in your brief and footnotes referring to thern. I've read them.

MR. HARVEY: Judge, I'rn grateful for that and I'rn not proposing to reiterate every line

o f rny rnern oran d um .

THE COURT: I wanted to call to your aLtention that I read it.

MR. HARVEY: What I want to call to the Cuurt's att1:11tion are the copies of those resolutions and declarations which Ido have here, wni~h I would like to hanú up to ~ne Court.

THE COURT: They' 11 be filed as exbibits without obje~tion frorn Gov1:rnment counsel.

MR. HARVEY: I have copies here for Mr. Daorow5ki as well, Jua~e. Judge, I don' t know if you want to file 1t as one exhioit one by one.

THE COURT: They should be separate.

M~. rlAHV~Y: Let's deal with thern The first is General Assernbly Resolution 31/03.

THE COURT: Without objection, full exhibit.

MR. HARVEY: That deals with the l~gitirnacy of the strugyle of colonial peo~les against alien dornination and racist regimes.

THE COUHT: That's Exhibit 2519. Received in ev1aence.)

MR. HARVEY: I call the Court's attent1on to the fourth paragra~h of th&t exhibit, starting with the words, "Reaffirming that the con~inuation of colonialism in ail 1ts forros and manifestations as noted in General Assembly Hesolution 26/21 of 12 Octooer 1970 1s a crime. That colonial peoples have the inherent right to stru~gle by all means necessary at their disposal against colonial powers."

I just uraw the Court's attention to both of those resolutions.

33/24 is the next resolution, wnich on page 3, as the Court will see under items 2 and 3, r~aff1rms the legitimacy of the struggle of peoples for independence, territorial integrity, nat1onal un1ty and liberation from colonial and foreign dornination and foreign occupation by all availabie means, particularly arms struggle; and 3 in pertinent part reaffirms the inalienable right of all peoples under alien and colonial dornination to self-determination, national independence, territorial 1nteyrity, national unity and sovereignty without external interference.

Then, Judge, over the page, most particularly important, perhaps at this stage of

this hearing, item 13, demands the irnmediate release of all persons detained or im~risoned as a result of their struggle fer self-determination and 1nde;;,endence, full respect fer their fundamental individual rights and the obervance of Articie 5 of the Universal Deciaration of Human Rights under which, "No ene shall be subjected to torLure orto cruel, 1nnuman or de~raáing

"

THE COURT: Defendants' Exhibit 2520.

MR. DABROWSKI: Your Honor, our position, with ragard to these documents is that tne GovernmenL is not in a position to determine whether, from our viewpoint, the admission of these aocuments is objectionable or not without first reading them and examining them in the forrn tilat tiley are in as they are .oe1ng submitted to the Co urt.

However, in order to expedite the position we will not object at this particular time to their admission, provided that we have an opportunity to object later after exarnining thern if we should choose.

THE CúUHT: Can you so agree?

MR. HARVEY: Yes, Judge.

THE COURT: Very well.

Received in eviuence.)

MIL HARVEY: Next, General Asse~bly

Re&olut1on 32/122 of 16th Decemoer 1977, wh1ch at p a

again that any attemp~s to su~press the struggle against colonial doroination and racist regiroes are incom~atiole with the char~e of the United Nations and Universal Declaration on Human Rights. Itero 3 demands the release of all individuals ~etained or iroprisoned as a result of their struggle against aparth12id, ra<.:ism, racial dist..:rimination, colonialisro, aggression and foreign occupation; and 4, self-aetermination and independence and social progress for their people. Itero 5 calls on member states to prov1de sup~ort and assistance in all fields to the peoples fighting for their liberation, colonialism, foreign occupation, racisro and racial discriro1nation.

THE COUHT: Defendants' Exhibit 2521. (Defendants' Exhibit 2521: ----------------------Received in ev1dence.)

MR. HARVEY: Mr. Ojeda-Rios referred the Court ~o Resolut1on 40/61, which the Court has,

concerning the U.N. definition of international terror1sm and the U.N.'s f>OSit1on again reaffirming the right of peoples to struggle aga1ust colonial domination and racist discrimination.

THE COURT: Defendants' Exnibit 2522. (Defendants'_Exnib1t 2522: Received in ev1dence .)

MR. HARVEY: Judge, we have the decolon1alization declarat1on. That's the Se~inal U.N. document of December 1960 which is, in fact, cited in full in our memorandum of law, but tne Court has there a copy for its own purposes.

Ap~ended to that, following on, is tje Genocide Convention of 1948, which Mr. Ojeaa-Rios cited to. That is one of the most frequently misunderstood conventions, I think, of the United Nat1ons and Mr. OJeda-Rios brought that out I think very clearly and I'm not going to repeat 1t; how each of the five oef1nitions of yenocide may be said in this case or in the case of Puerto Rico, to have relevance to the conduct of the United States towards the people of Puerto Rico througnout history.

That convention, of course, is of

particular importance since after a delay of almost ~O years the Un1ted States Senate ratif1ed that convention last year, making it the Supreme Law of tlle Land.

'i'HE CüURT: That will be Defendants'

(Defendants' Exhibit 2523: Received -----------------------1n ev1oence.)

MR. HARVEY: Number 2524 will be the Universal Declaration of Human Rights and Nurnoer 2525 will be the International Covenant on Civil aná Polit1cal Rights, wn1ch ~ntered into force in 1976. The final Defense Exhibit, 2526, will be tbe American Declarat1on on the R19hts and DutiE:!s of Man of 1948, together with the American Convention on Human Rights of 1969.

THE COURT: They may be made full exhibits Wlthout ObJeC~lon. 2526: Heceived in evictence.)

MR. HARVl:.:Y: The reason, Judge, that we rely so strongly on international law is not sirnply that we don't recognize the authority of the courts to try the case. It's not sirnply that we don' t recognize the validity of the United

States concentration as applied to the people of Puer ,:o Ri c.:o.

It is because there comes a time in history when a Government and a peo~le have to re-evaluate its relations with another people. That time, in respect of rny country anó yours, carne in the 18th century when Edmund Burke, the

to me to be narrow and pedantic"

TH E co u~ ·r: You made a statement, country of ours. Amer 1 e a. The country is United States of

MR. HARVEY: Jud ge. Your country 'tis of tnee. No, I was not suggesting that your country was anything other than the United States.

'.L'HE COURT: I want to make that clear.

MR. HARVEY: Edmund Burke, I refer to him being Irish born because that's one of his great distinctions.

THE COURT: So was Robert Emmet.

MR. HARVEY: That's another great fortune that you have, Judge. Burke though, in his speech on conciliation with America, that's my point, said, "It looks to me to be narrow and

pedantic to apply the ordinary ideas of criminal justice to this yreat t'Ubl1c contest. 11

He was talking about the contest betwe~n the em~rying United States and the British Cr o wn . He said, "Ido not know the method of arawing upan 1nd1ctment against a whole people. 11 It's those significant words, Judge, and they have a uirect a~p~ication on this case.

Mr. Ojeda-Rios is being áetained as a hostage, as a representative of his ~eople's struggle for self-deterrnination.

I think it was of extreme significance that only last week Judge Dorsey gave this Court, ~ave all of us, a timely reminoer of the ~upreme Court's statement in Maf~_v. Ohio; that "No~h1ng can destroy a government more quickly than its failure to observe its own law, or worse, its aisregard of the charter of its existence. 11

He was speaking then, as the Court is probably aware, in the case of ~~rd~E in which Juáge Dorsey ordered the release of a convicted murderer on the grounds that his ~retrial detent1on had violated const1tutional guarantees of the right to speedy trial and that

is ene of the most important questions that we're dealing with here today, Judge.

Part of the charter of existence of the Un1t~d States, aaopteó when a colonized ~eople rightfully took up arms against my country, was the D~claration of Inaependence. The Court is fully familiar with the expression, "Whenever any forro of governillent oecomes destructive of these ends, it is the right of peoples co alter orto aooi1sh 1t and to 1nstitute new yovernment laying its foundations on such principles and organizing its powers in such formas to them shail seem most likely to effect their safety and happiness."

The Declaration of Independence and che Bill of Rights have hadan enormous impact on the development of 1nternational law and international respect for individual rignts and the r1ghts of peoples.

Likewise, the development of 1nternational law has naa a rec1procal 1nfluence on the development of laws in the United States, and, ~articularly, I have c1ted to the Court the case of Filartiga_v._Pena-Irala, which is perhaps th~ most author1tative statement that we have currently of the appropriate approach of United

States courts to dealing with questions of intecnational law.

The Constitution of the United Stdt~s incor~orates, by ref~rence, international law, the law of nations and the United States has oeen traaitionally one of the upholaers of the rights to self-determination, at least in theory, 1f not always 1n fact.

The right of Mr. Ojeda-Rios to release is yoverned, therefore, not sim~ly by the Bail Reforrn Act, not simply by the Constitution, but by 1nternational law. the aeclarations which have been cited to you this morning, the óeclarat1ons of the General Assembly of the United Ñations were explicitly held by the Second Circuit Court of h~p~als 1n Filarti~a_v._Pena-Irala as documents which specify, "With great precision the obligations of member nat1ons unaer the charter."

In a series of declarations of this sort the General Assembly has condemned colonialism as a crime, has proclaimed the right of colonizeá pcople to employ all means necessary, including arms struggle, for their liberation from colonialism, from alienation in their teiritories; and international law has demanded the release,

immediate and unconditional release, of all j,)ersons aetaineá or imprisoned as a result of their struggle for self-determination and 1ndept:ndence.

It would be specious, Judge, for anybouy to argue that Mr. OJeda-Rios is aetained or imprisoned for any other reason than for his

commitment co the stru~gle tor self-oeterm1nation and independence of the Puerto Rican people.

The Un1ted States has long ~aid l1p service to the concept of self-determination. Presiaent Wooarow W1lson was saying it Dack in 1918 justa year after the people of Puerto Rico hao Unicea States citizenship irn~osed upon them and had been sent off to fight for the United Scates in a war in Europe.

President Woodrow Wilson is wrongly accredited with coining the phrase, "Self-determination of nations," in his famous Fourt~en Point Address 1n his rnessage to Congress precisely 70 years ago this rnonth.

In point of historical fact, the principle of self-deterrnination of all peoples was first proclaimed and actea upon by the newly victorious Bolshevic party in 1917, who published

peace decrees and denounced annexationism and the policies of the great powers of Europe in ~arving up Asia, Africa and the Middle East.

Whather this pr1nc1~le of self-determination rnay be described as Leninist or W1lsonian in 1ts origins, it' s not so well established as tenets of international law that it forms part of custornary 1nternational law binding upen this Court.

Now, it rnay be argued by the United States Government that you should only concern yourself with the alleged participation by Mr. OJeda-Rios 1n a conspiracy to violate feóeral robbery statutes in West Hartford. That is a á1s1ngenuous clairn, as d1sin~enuous as to sug9est that Nelson Mandela was only charged with vio1at1ng South African pass~ort regulations 16 years ago.

Mr. Ojeda-Rios is on trial here today because of his committments to international law and internationally recognized principlas of JUstice.

THE COURT: That's a point I fail to see in your prern1se. In other words, he's here oecause he's alleged to have conspired to rob out

in West Hartford seven and two-tenths million aollars from Wells Fargo. No other reason. That's why he's here.

I have no jurisdiction over Puerto R1can independence. Nene wnatsoeve.r. I'm only interested in did he conspire to commit that roobery? I áon't know. We're going to f1nd out when the jury decides.

MR. HARVEY: Juáge, w1th respect,

it's not for a jury of the United States to decide any more than it is for this Court to decide. If one wishes to put on judicial b 1 in u e r s a n á i l:Jno re t i1e p o l i tic al re al i ti es surrounding this case, the fact is Mr. Ojeda-Rios ano his colleaques were ail Puerto Ricans, all living in Puerto Rico, all allegedly conspiring in Puerto Rico to comm1t numerous acts.

THE COURT: Up in Connecticut and Massachusttts and New York under the evidence that's been brought out so far.

MR. HARVEY: I would rem1nó the Court there' s not one shred of evidence that Mr. OJeda-R1os ev~r set foot in Hartford, Connecticut befare he was brought here, befare he was arrested.

'l'HE COURT: That remains to oe seen.

MR. HARVEY: From what has been seen sotar, and the Court has seen a tremendous amount, 1 don• t believe the Court can point me to any evidbnce that anybody but the United States Government ever brought him to Hartford, Connet:ticut.

Be that as it may, Judge, as I say, 1f une puts on judicial blinders aná JUSt looks at the narrow 1ssue and says, 11 This is justa simple trial about a robbery, 11 then one misses not only the entire relevance of international law to this case, but ene misses the historical question that we 1 re dealing with.

The respect which I and many British lawyers have for the liberties guarantetd unoer the Constitution of the United States and the United Stdtes courts 1 res~ect for 1nternational law is considerable.

I don't say that to flatter, but to warn, cecause as Jua~e Dorsey reminds us, 11 Nothing can destroy a government more quickly than its failure to observe its own law ano, moreover, its disregard of the charter of its existence."

It 1 s our position that part of the charter of existence of the Government of the

United States is 1nternational law is the fact that Mr. OJeda-Rios, as a p~rson with personality under international law is entitled to release, may not De oatained by the United States Government or by this Court by virtue of the alle~ation, the ~irnpie allegation, of this simple criminal actas it's alleged to be.

T ri E C O U R 'I' : Let me ask you this -1 want to be enlightened by your remarks -- how can tl11s Court, for exa,nple, release Mr. Ojeda-Rios on bond, as you suggest, if he tells ti1e Court what he has, "You nave no Jurisdiction o ver me. This court has no jurisdiction over me." How can he ever be mace certain to respond to the trial of the allegations?

MR. H.!\RVEY: Judge, you know full well that the Government has stood here with defendant after defendant in this cáse and said, "There is no way that this person is ever going to come back to Court. There is no way we can ever guarantee that this person will come back. They don't believe in the right of the United States to .::ry them. They don't believe in this, that and the other ." Tnese Defendants have come forward. They have signed bonds, undertaking to return and

rnany of them are here today to hear this argurnent.

Judye, tne Court

THE COURT: But they all recognize the Court's jur1sd1ction.

MR. HARVEY: Judge, I think with r.::spect --

MR. DEUTSCH: Excuse me, Judge. I don' t thinl< that' s accurate.

THE COURT: At least they didn' t say they aian't. Let's put it that way.

MR. HARVEY: It' s one thing, Judge, to sign your undert~l<ing to abide by tne conditions of your bond. It' s another thing, Judge, when the Court, I'rn sure, would not have released any of them if the Court were not well satisfied that there is another means of insuring their return and that is the overwhelrning and, to me, terr1fy1ng ~ow~r of the agents of the United States Governrnent to ensure that they do not disap~ear, to ensure that tney are brought back and to ensure that they are kept under the constant surveillan~e that I am absolutely certain wi 11 be Mr . Oj e da-R i o s ' l i v in g ni g h trn ar e e ver y da y he's out of this courtroom, out of the jail. He's willing to live that nightmare,

Judge, and be under that forro of constant surve1ilance.

Judge, I want to address, very briefly, the ques~ion of the Bail Reform Actas it's ot'erated in this case, because

THE COUl<T: Excuse me, counselor, it' s 11: 30. I don' t mind staying until 1: 00 o•~lock, but my Sténoyrapher here does have a right to be entitled to sorne consideration --

MR. HARVEY: I have full solidarity with your Stenograph~r, Judge. adjourn at this point. I'll be happy to

THE COURT: Why don't we take our usual 15-minute recess and proceed?

MR. rlAf<VEY: Than k you. (Whereupon, a recess was taken from 11:30 o'cloc.:k a.m. to 11:46 o'clock a.m.)

MR. HARVEY: Judge, shortly before the break the Court had asked me how the Court should deal with the fact that Mr. Ojeda does not recognize the jurisdict1on of the Court to try him in relation to the Court's concern about the impact of that on releasing hirn or any other Defendant on bond.

During the break Mr. Acevedo rerninded

me of an irnportant point, which indeed bears sorne sim1larity to experiences of my own. He has represented a good nurnber of Puerto Rican independentistas who have been haled before the grand juries of the Unitad States and in Puerto Rico to 1nqu1re into their alleged ~artic1pation in activities of underground independentista

THE COURT: Since this case started?

MR. HARVE.Y: Not s1nce this case has started, but in the course of very recent history, Juage, which the Court 1s familiar, I'm sure.

It's the comrnon practice, if not the rule his~oricaliy, tnat all Puerto Rican independentistas will sit mute and will refuse to recognize the jur1sdiction of the Court over them, will refuse to answer questions, refuse to testify before the grand JUry; ~et, nevertheléss, they will appear with their suitcases in hand ready to go to Jall rather than to submit to that jurisdiction.

So, this is an involuntary compliance with tne oraers of a Court which does not go to the recognition of the jurisdiction of the Court.

I think the Court can well understand that there is. a distinction to be drawn there. It certainly is a distinction which I have experienced in representing members of the Irish liberation struggle in Britain who have likewise given that degree of qualified recognition to the Court which permits a trial to take place, but do not recognize the authority of the Court to actually pass sentence or find a verdict against.

So, Judge, to return to where we were before we took the break, the Bail Reform Act, as applied to Mr. Ojeda-Rios in this case, constitutes a violation of international law and, in our submission, also the law and Constitution of the United States.

It is clear that the Speedy Trial Act, which Congress was assured would guarantee that all persons held under the Bail Reform Act would never be held longer than 90 days, it is clear that that guarantee to Congress has no validity in the present case.

In fact, on any reasonable computation, Mr. Ojeda-Rios will have spent a thousand days in preventive detention, effectively

internment, until the commencement of his trial.

Tnat is so far a violation of everything that the United States stands for in rny submission tnat it amounts to a presumption of guilt. It amounts to cruel and unusual punishment. It cannot oe aismissed lightly as regulatory in the words of the maJority in ~~É~-~~_Salerno, 107 Su~reme Court 2095 at 2101.

The Court will well remember that the Supreme Court in Saierno expressly ae~lined to deal with the question whether a point must come in any ~ase where the length of ~reventive detention is so great as to override all other cons1derations and reyuire the release of the accused.

The Supreme Court refused to deal with that yues-cion, l:,)erhaps because they were only dealing with somebody who had spent sorne eight or nine montns in preventive detention.

In this case, Judge, we are dealing already with 29 months anda certainty, in the view of the defense, that it will be sorne 38 mon-chs, if things continue to take their expected course, befare a jury selection can begin in this case.

In all likelihood, it will be five years before a jury reaches a veráict. I mean five years from the date of Mr. Ojeda-Rios' first 1nca.rcerat1on.

While that remains not justa poss1bil1ty, but a oistinct probaoility, it is in our submission for the Court here today to grasp the medal, to draw the line and to say, "This is enough. Mr. Ojeda-Rios must be freed."

Tnis deyree of 1nternment, as Justice Marshall pointed out in his dissent in Saierno, goes to the t>Oint of attacking the presumption of innocence. As he said there, "Under t h i s s ta tu t e a n un t r 1 e d i n el i e tm en t s omeh o w a et s to permita detention based on other charges which after aquittal would oe unconstitutional. The conclusion is inescapable that the indictment has oeen turned into evidence. If not tnat the defendant is guilty of the crime charged, then left to h1s own devices he will soon become guilty of something else."

~!!~!! saying, "If it suffices to accuse, what will become of the innocent?" That is from page 2110 of the Supreme Court's decision, 107 Supreme Court. He also cited Judge Vinson in Stack_v._Bo1le, 342

u.s. at page 4 who said, "Unless the right to bail befare trial is preserveá, the presumption of innocence secured only after centuries of struggle would lose its meaning

It's instructive, Judge, when one looks at countries which have abolished the right to bail, which have denied the presumption of innoce11ce to see the oáium with which they stand in the world today. The most extreme example of such a country is tue South African regime, which has for years now arrogatad to itself the power to hold persons inaefinitely in preventive detention.

As I sat here last week listening to the expert and learned argurnent of Mr. Wein~lass on behalf of Mr. Segarra-Palmer, and I then heard Mr. DabrowsKi's response to ~hat, I was reminded of the South African reaction in that the Government urged th1s Court to hola that there are no limits to the length of preventive detention permissible under the Bail Reform Act.

If that is true, if this Court sends out ttiat signal to u.s. attorneys across the United States and to other courts across the United Sta~es that tnere is no limit to the length of preventive detention, then the implications for

the standing of the United States in the world community dnd under 1nternational law are done.

Article 9, paragraph 3 of the International Covenant on Civil and Political f<ights reads, "Anyone arrested or detained on a crimlndl cnHr~e shall be brought p,omptly before a Judge or other officer authorized by law to exerc1se Judicial power and snall be entitled to trial within a reasonable time orto release."

The American Convention on Human Rights, Article 8, paragraph 1, "Every person has the r1ght to a hE:aring w1th due guarantees and within a reasonable time by a competent, inaepenó~nt anó impartial tribunal."

Judge, the partiality and lack of inde~enaence of this Court is dealt with at Point

I X • o f m y m ern o r a n d um • It is done so not in order co insult or annoy the Court with a personal attack.

It is an attack which goes to the heart of the competence of any court in the United States to deal properly with the questions of 1nternat1onal law, which you yourself have said you find it hard to see the relevance of those questions to this case.

It is understandable that any Court of t.he United States would find 1t hard to stand above the conflict between the right of the Puerto Ri~an people to self-determination on the one hand and the supposed pretended authority of the United ~tdtes to impose 1ts laws on the people of Puerto Rico on the other.

That is the impossible task which 1nternational law requires of this Court. It is for that reason, Judge, that we, recognizing this im?ossib1lity, say that this is not the appropriate forum. There exists appropriate int1::rnational ood1es; the Int.ernational Court of Justice, the Inter-American Court of Human Rights, which are em~owered to hear and determine questions of the status of liberation movement members under inte~national law. They can hear those questions on suom1ssion by the Governrnent and we ask you to order that the Government subrnit this question to the authority of either of those appropriate bodies.

In conclusion, Judge, what happens when a Court ignores the rnarch of h1story and ignores the international perspective on a case is

perhaps best summed up by a very close parallel to that of my client and his colleagues, which occurred 20 years ago in South Africa, where members of the Namibian independence movement, the Southwest African Peoples Organization were arrested not in South Africa, but in their homeland of Namibia and were forcibly removed from there to stand trial in South Africa; a parallel ver y e lose to my client' s experience. Their leader at that time, Hermann Toivo ja Toivo, addressed the Judge on the conclusion of the case saying, "You, my Lord, decided that you had the right to try us because your parliament gave you that right. That ruling has not and could not have changed our feelings. We are Namibians and not South Africans. We do not .now and will not in the future recognize your rights to govern us, to make laws for us in which we have no say, to treat our territory as if it were your property and usas if you were our masters. A Court can only do justice in political cases if it understands the position of those that it has in front of it. The state has not only wanted to convict us, but also to justify the policy of the South African government. We will

not e~en try to present the other side of the picture because we know that a Court that has not suffered in the same way as we have cannot understand us. This is ~erhaps why 1t is said tnat one should be tried by one's equals. We have felt from the very time of our arrest that we were not being tried by our equals, but by our masters and that those who have brought us to trial very often do not even do us the courtesy of calling us by our surnames ."

If one substitutes Puerto Rico for Namibia and the United States for South Africa, we have a parallel as close as any I can point to in h1scory and we have a po1nt of history where Mr. Ojeda-Rios is entitled to irnrnediate release.

The only alternative is to grant hirn irnmediate trial and we request that the Court choose between those two alternative::s.

THE COURT: If he wanted an immediate trial, have you talked with the prosecutor as to what you would stipulate to as the büsis for an imrnediate trial?

MR. HARVEY: Judge, I've had sorne tentat1ve d1scussions with Mr. Dabrowski. I 've indicated a potential course which I think is the

best that we can hope to deal with.

Mr. OJeda-Rios has indicated that he is prepared to sacrifice an enormous number of r1ght$ which the United States Constitution would give him by demanding irnrnediate trial at this pOlnt. He 1s ~repared to sacr1f1ce his right to participate in the rest of the Title III. hearings that are currently penaing and in a numoer of other hearings that would norrnally take place before this case run its normal course to trial.

I don't think I speak out of turn in say1ng Mr. Dabrowski asked me whether we would be prepared to give up all of the Court's rulings or potential rulings 1n relation to the Title III. proceedings, and I indicated to him a course which will now suggest to the Court as the most reasonable way in which this can be resolved.

We believe that by the time a jury has been selected, by the time hearings have gone

would have a need to introduce any of the Title III. ev1aence, by that time this Court would have already reached a ruling on the sealing/tampering issue in this case. We believe no delay need result from saying that we will be bound by the

law of the case on the Court's ruling on the sealing/tampering 1ssue.

Of course, we preserve our objection and our exception to the Court's ruling that First Circuit law should apply and it would be our pos1c1on thac the Courc could go ahead and rule under Second Circuit law today on the question of seal1ng and we would not resuire any further ruling frorn the Court.

Since the Court has decided to apply First Circuit law, then, of course, tarnpering cecomes a part of that and 1t's our submission that the best way to deal with that is that we will accept the Court's rul1ng as the law in the case, but we will play no further part in these hear1ngs. he're ready to p1ck a Jury now.

As I say, the just, equitable, const1tutional and 1nternational law approach should be to give Mr. Ojeda-Rios his right to immed1ate release.

THE COURT: Is there any possibility of us1ng the first 10 counts, which are the bank robbery counts, trying them separately? Tha t would expedite it. You wouldn't need the electronic business for any of those?

MR. HARVEY: I have not discussed that with ~he prosecut1on. That really is their problem Judge, not mine.

'!' H E C O U R T : I understand. If tne

ti~e comes when you're going to come to any agreem~nt on th1s po1nt, there has to be something on t~e record to know where you stand. That's the reason fer in~uiring. Maybe you want to think it over.

MR. HARVEY: Judge, if you would yive me a moment to th1nk that over.

THE COURT: You' 11 have more than a moment, if you need more than a moment.

MR. HARVEY: will probaoly óo, Juage. (Pause.)

MR. HAkVEY: I think five seconds One second was enough, J ud ge. Yes, we would be prepared to adopt the Co ur t' s

THE COURT: On the first 10 counts?

MR. HAkVEY: Yes, sir.

THE COURT: Anything else?

MR. HAHVEY: Nothing from me, Judge. Thank you.

THE COURT: All right. Counsel for

the Governrnent, do you want to be heard?

MR. DABRO.-l~KI: Yes, your Honor. Good afternoon, your Honor.

THE CvUrt'.C: Good afternoon, counselor.

MR. DABROWSKI: For the record, my name is Albert Dabrowski and I represent the United States.

Your Honor, we are here today

because both Mr. Harvey anu, through a rather extraordinary procedure, his client, Mr. Filiberto Ojeoa-Rios, were yiven an op¿ortunity to address the Court.

'l'HE COURT: Is the microphone turned I coulán't hear you too well oack there, sorne couldn't hear you too well. They probably want to hedr what you have to say, too.

MR. ACEVEDO: They want to hear the Juage, too.

THE COURT: That's a good thought. I som~tirnes forget I have a microphone here. right, go ahead. All

MR. DABROWSKI: As I just indicated, your Honor, we are here today because Mr. Harvey has been given an opportunity to address the Court

with regard to a motion that he filed last Friday.

'i' H E C O U .k T : Excuse me. So there won' t be any impartiality her e, I didn't have them turn it up whbn Mr. OJeda was speaking. Maybe I should have. I could hear him pretty well. talked so low, I coulun't hear you too well. Yo u Now I can hear you without any problems. Go ahead.

Mi<.

DABi(OwSKI:

The Court has granted a request, a rather extraordinary request, but nonethel~ss one was maáe to hear from the áefendant, Filiberto Ojeda-Rios, in this case.

Tne Gov~rnment is here to respond oriefly, but I want to rernind the Court that the procedure that we have agretd to follow is that both sides will submit simultaneous written briefs addre~sing not only the is~ues raised in the application filed on Friday, but those observations that were rnad~ by both Mr. Harvey and Mr. Filiberto Ojeda-Rios as well as myself here today.

The Government desires to respond in a written forro. We also áesire to make sorne brief observations, however, at this particular time. I would like to divide my observations into two areas. First, I would like

to respond to the legal argument that was made by Mr. Harvey and then I would like to respond to sorne of the factual representations that were made by Mr. Fi11b~rto Ojeaa-Rios.

First, with regara to Mr. Harvey 1 s ar~ument, the heart of his claims, bo~h in the papers that he filed on Friday and in his argument to tne Court h~re, reduces itself to the claim that this Court lacks jurisdiction to hear this case and the case against this Defendant.

In effect, as he argued today, what he is saying is that it is not for a JUry in Connecticut to decide the issues that are before this Court, ultimately, and that it is not for this Court to sit in judgment with regard to the issues that must be deciaed before the jury would be given an opportunity to decide the facts.

1 would like to make a simple observation.

Either the Court has jurisdiction or it does not. Time is not relevant to that determination.

Secondly, I would like to ask a simple question and the ~uestion is, is his argument that this Court lacks jurisdiction, well grounded in fact and warranted by existing law?

The answers to those two questions are oeterminative of the validity of his motion. Does the Court have jurisdiction? Is nis argu~enl well grounded in fact? Is there a reasonable basis in law? The answer is clear. This Court has jurisaiction to hear this case. There is no basis in fact for his argument, nor is th~re any bus1s in the law for this argument.

We need look no further into the files and recoras of this case to make that determination. If you'll take his application on Friday and compare it against motions wnich he nas already filed in this case, including but not limitéd to a motion f1led on D~cemoer 22, 1986, entitled, "Defendant's motion to Disrniss for Lack of Jurisdiction Because tne United States Constitution Prohibits Colonialisrn," that motion says, "Defendant rnoves in Court to dismiss the indictment on the ground that this Court lacks jurisdiction." That is the argurnent that he now makes to this Court.

On January 6, 1987 by margin endorsement this Court endorsed that motion. Mot1on déniea, "So ordered."

ooes the Court have jurisdiction?

The Court has determined that it does. The Court maoe that aetermination on January 6, 1987. Tt1ere is no basis, in factor in law, for this particular ground, this only yround that supports his motion.

Not only, your Honor, has this issue be:t:n lit1gated in tllis court, but I would direct the Court's attention to the brief of Defendant F1l1berto OJeda-Rios, filed as part of U~ite~ ~tates_of_America_versus_Ivonne_Melendez-Carrion, tnen Docket 87-1007.

This was the first óecision, very first decision. The arguments that he makes to this Court in his motion for immediate release or immediate trial filed on January 22, 1988 is virtually identical to the argument that he made to the Court of Appeals.

By way of example, I'm submitting to the Court at this point page 33 along with the cover sheet of the Defendant's brief and page 10 of nis motion just so the Court can have before it at this particular time these two documents.

I would airect the Court's attention not only to the fact that the argument is ioentical, but I would dire:ct the Court's

attention to the fact the language is virtually identical, with exception of a few words, word for word, the argument that he makes to this Court is identical to the ar~ument he mace to the Court of Appeals for the United States Second Circuit in New York, an argurnent wn1ch was reJected, your Honor, in that decision.

THE COUI-Vi': these papers for counsel? Do you have copies of

MR. DABRO~JSKI: I have a copy for Mr. Harvey, your Honor. Mr. Harvey stands before tnis Co~rt and ar3ues before this Court that the Court of Appeals has considered this issue in the Pilar dE::cision. He fails and neglects ~o actvise this Court that the Court of Appeals in New York was confront~d w1th the very issue, the very language, he now gives to this Court in support of h i s a r g ume n t .

This argurnent, your Honor, that this Court 1acks jurisdiction has been ruled upon by this Court, has been addressed by the Court of Appeals. There is no question that this Court has ju r i sd i et ion

The foundational basis of the argument supporting the argument that he makes in

his papers, filed on Friday, and to this Court by wa y o f o r a 1 a r g ume n t h a s j u s t d i s a p ,t->e a r d . Th e Court has already ruled on that motion. We need look no furtiler than Rule 11 of the Civil Rules of Criminal Procedure for sorne gu1aance as to what is ha~pening here, your Honor, and what the significance of this is. That rule reads 1n 1-Jart, "The signature of an attorney" and that's the sanction rule, your Honor, and I'rn only lookin9 to 1t for guioance. I'm not suggesting there ought to be in this case an act1on imtJosed. It 1s an important rule and that rule reads, "The signature of an attorney constitutes a certificate by the s1gner that the signer has raad the pleading, motion or other paper; that to the best of the signer's knowledge, information and belief formed after reasonable inqu1ry it is well grounoed in fact and warranted by existing law."

There can be no argument that this motion is well grounded in factor warranted by existing law. He's already made it to the Court. It's been reJected. it's been rejected. He's pursued it on appeal and

The purpose of this rule, if one

goes on, is to prevent "The problem created by suc.:h motions, such as 'caus1ng unnecessary dc::lay.'" The rule is designed to ensure the prornpt resolut1on of criminal cases by prevent1ng toe Defendants from having second, third and fourth days in court and from otherwise wast1ng this Court's time while at the same time guaranteeing they have thtir first aay in court.

Well, the Defendant has had his day 1n court on th1s issue. He's not entitled to the second day, the third day and the fourth day.

When Mr. F1l1berto OJeda-R1os gets up and praises his counsel for their diligent efforts in pursuing their obiigations to vigorously defend him, he fails to see that that obli~ation does not extend to multiplic1ous litigation, to wasting this Court's time by att~m~t1ng to litigate over and over again issues that have already been decided.

Mr. Harvey's obs~rvations can be disposed of on a simple basis of the fact that we've already heard thern and they've already been ruled on.

Turning rny attention briefly to the remarks of the Defenaant, Filiber~o OJeda-Rios,

Mr. Ojeda-Rios, in effect, seeks a guarantee of respect for human rights_ while at the same time asserting his right to take human life and still to this essence that's what he argued to this Court.

You must guarantee and respect human rights. I, however, have the right to take human life. That, in a nutshell, very succinctly is what he said to this Court.

In connection with his claim that Los Macheteros is nota "terrorist" organization, he speaks of his own isolation, harassment and in his words even physical aggression.

When he speaks of that, however, he totally disregards the vicious killing of innocent, unarmed American citizens which he does not deny participating in. He simply attacks Senior Judge Timbers for characterizing those vicious acts as terrorism. important. Keep in mind here that's very

Mr. Filiberto Ojeda-Rios objects to the characterization of his conduct of killing another human being as being a terrorist act. These facts which the Governrnent speaks of, which he so lightly casts aside are

not part of a fairy tale that's been weaved by the Government. were taken. These were real people whose lives These were unarmed American citizens who were gunned aown by automatic weapons fired in cold blood.

The rocket attacks that he and his counsel referred to, sumebody actually launched a bazooka attack at the Old San Juan Federal Courthouse. Soméone actually launched a rocket attack at the federal building in Hato Rey, a projec.:t1le wllich, for the yrace of God, missed an FBI clerk who was on the floor below when that pr0Ject1le impacted.

This organization took credit for the aelioerate, violent destruction of approximately $40 million worth of jet aircraft. These aren' t fairy tales that tne Government 1s telling. These are real facts. These are real incidents and these are real people.

In connection with allegations that he 1s a Cuoan agent, Mr. Ojeda-Rios speaks of the Cuban revolution as being a "thorn in the heart of i m pe r i al i srn . 11 It is the conduct that is involved here, such as the killing, taking of innocent lives and the v1olent acts which have been

perpetrated as part of the background to this case which is the thorn in the heart of ~eace-lov1ng people everywhere.

Filiberto Ojeda-Rios abhors what he describes as state terrorism, but then he turns around and argues his right that he rnay choose to kill in the narne of t'eace. No one has elected Filiberto Ojeda-Rios to represent the law-abiding, peace-loving ~éople uf Puerto Rico.

The only position he's been elected to o~cu~y is the position that ~uts hirn in charge of Los Macheteros, a srnall band of people who do not re~resent anyone in Puer~o Rico and certainly óo not represent the rnajority of people. Man y o f thern advocate independence, but very few of thern advocate achieving independence in the rnanner and means advocated by the Macheteros.

He's elected leader of that organization who has hid hirnself unaerground for approximately 10 years to protect hirnself from prosecution and to ~ermit him to act and continue to perpetrate acts of violence.

So, he óoes not speak for the Puerto Rican people. He speaks for hirnself. And he speaks for th1s small band of people tnat we know

as Los Macheteros who are not representative of anyt:hing other than their own membership.

One of the more striking comments or ooservations tnat I woula want to maKe with regara to Mr. Filiberto Ojeda-Rios' remarks is that the na tu re o f h i s remar k s i s 't ti a t he atta c k s t he system of justice. He refuses to recognize the jurisaiction of this Court, the system of justice that does not recognize, in turn, and should not recognize, the political arguments that he makes.

This Court has taken an oath and has an obli~ation to uphold the law of the United Sta tes. Political argurnents which the Defendants are en-cit1ed to make, and I indeed encourage them to maKe on any street cerner that they want in the united Statas, play no role in the administration of justice in this courtroom unless it's a2t'ropriate for that to happen. he made are not appropriate.

The rernarks that

He attacks the very system of justice, however, and the very Court that permit-ced hirn to stand up here and articulate his views, at the sarne time praising other governments and other lands.

The question the Government has to

Mr. Filiberto Ojeda-Rios and which we would like to pose to tne Court is simply where would Mr. Ojeda-Rios have been if he attacked a federal courthouse in Cuba? Or attacKed Fiael Castro?

You think that Filiberto Ojeda-Rios would have op~ortunity, would oe g1v~n the o~portunity to an stand before a Court there? You think he would be given the o~portun1ty to lit1gate to the nth degree the issues that he has litigated in that fashion and that he has raised o~fore th1s Court?

Quite ironic that he chooses to attack the very system of just1ce wnich nas given to him rights he would not have elsewhere.

The reason we are here reduces itself toan assessrnent ultirnately by this Court, as to whether ~ontinued detention is appropriate in this case far this Defendant.

We believe a fair assessrnent of all of the factors that must be considered in making such a determination compels a finding that the continued detention of this Defendant does not v1olate due ~rocess.

Due process certainly does not requ1re that the ~ublic be denied 1ts profound interests in assuring that a defendant stand trial

for crimes properly charged. Filiberto Ojeda-Rios will not be here. The public's profound interest in assuring that he will be here will not be served if he is released at this time. He will run. He has run in the past. He does not recognize the jurisdiction of this Court. There is no guestion that he will not submit himself to the jurisdiction of this Court fer sentencing.

Due process certainly does not strip the Government or this Court of its obligation to protect the public from a key member of Los Macheteros, which we submit has been accurately described by Senior Judge Timbers as one of the most notorious terrorist organizations in the western hemisphere.

Even if one removes the word, "terror ism" from the assessment, from the descriptive assessment, of the nature of these acts, one cannot escape the fact that these individuals advocate a cause, advocate a belief, that permits them to bomb, and to kill others; to kill unarmed others, including instances of innocent, unarmed American citizens.

So, while Mr. Filiberto Ojeda-Rios

stands before this Court and asks you to guarantee him h1s human rights and to res~ect those human rights, we do nothing more than stand before this Court and s&y, "Don't forget that tnis is an individual who disregards human life." it's not justa yuestion of human rights, it's a question in this case of risk of flight and áan~erousness, and part of that assessment involves consideration of who this man 1s, what he óoes, what he believes and what he thinks of this Court.

All of those factors and many more, when weigned against what is ddrnittedly an extraordinary length of pretrial detention, nevertneless weigh clearly in favor of continued detention, and we urge the Court to continue the detention of tnis Defendant.

I would also re~ind the Court of my remarKs at the outset that we intend to respond in more detail to the arguments made by Mr. Harvey, perhaps to the comments made by Mr. Filiberto Ojeda-Rios in a written pleading which is dueto be filed a week frorn today.

THE COURT: Do you have any response ~o Mr. Harvey's ~roposal tnat he be given

immediate trial on the bank robbery, the first 10 coun1:s?

MR. DABROWSKI: Ido, your Honor. When Mr. Harvey ind1ca1:ed to me that he would be filing an application for bail andan application which containea therein demand for an immeóiate trial as well, I first raised with him the quest1on of were there any cond1tions associated with that demand for immediate trial; or more to the ~01nt, was he w1llin~ to waive his present right to a hearing on the Title III. evidence, for example, and other factors?

Mr. Harvey indicated to me that he would be making such a request and I expected that it would be in his papers. I have not seen it. have not hdd an opportunity to discuss that further with Mr. Harvey. I have read it in the newspa~er, wnich seems to me to be somewhat interesting because he appears to be prone to d1scuss these matters w1th newspa~er reporters before discussing them in detail with the GovE:rnment.

I think it would be very I aávanta~eous for Mr. Harvey and I to continue that discussion. I would like to rnake two observations.

THE COURT: Could the Court help both of you on that issue, or could you resolve it alone?

MR. DABRO'flSKI: Well, I don't believe, quite frankiy, that the Court could help either side at this particular time. I believe uitimately the Court is 901ng to have to address this issue. At this particular time I don't know wnat the Court 1s suggesting when it offers its help.

THE COURT: The other alternative, let's say one of the Magistrates, instead of the Court itself, like Magistrate Eagan who is exper1enceci, could he help counsel on the issues, 1f you know?

MR. DABROWSKI: I suspect that he could help us, your Honor. The problem is that neither the Court nor the Magistrate in that situat1on is 901ng to have any clear, direct authority over the Government's position or the Defendant's. That's not to say the Government doesn't know which way the wind is blowing, to put it in those terms.

THE COURT: It might bring people

MR. DABROWSKI: For example, and I don't want to go into it in great oetail at this particular point, but the Court directed both of Mr. Harvey's attention and rny attention to the possibility of undertaking a trial on a limited number of counts in the 1ndictments, whether they be the first 10 -- I indicated the first 10.

That's certa1nly an observation we would like to pursue. My immediate reaction to that 1s ttlat could not be done witnout 1ntroduc1ng any Title III. transcript. It probably could be áone with a very lim1ted number of transcripts.

So, one observation I would make is that is a thouyht which should and will be pursued, assuming that Mr. Harvey wants to pursue it with me. I need to assess whether or not it's a realistic approach; that is, can we undertake that kind of a prosecution, as the Court has suggested oras Mr. Harvey has conditioned at this point, wichout any electronic survei1lance evidence?

I think we could do away with a yreat aeal of the Title lII. evidence, but Ido not think at this point that it would be possible to do áway with all of it. CuNNiNGHAM

Once again, having heard that ob~~rvation just now, one reaction l have to it, again as tailored by Mr. Harvey's re~arks, is that selecting a jury and comrnencing a trial before this Court renders its ruling on the Title ·111. issue would ~ffectively strip the Government of its right to appeal an adverse decision. l 'm not su~~est1ng that this Court is go1ng to render an adverse decision. l'm not suggesting the Court is going to rénaer a favorable one. this point. We áon't know at

THE COURT: The Court doesn't know éither at this point. It hasn't made up its mind. It hasn't heard all the evidence.

MR. DABRO\l.::i K .i: The Government will not give up, l cannot, without seeing what the ruling is, without assesing a right toan appeal. Irnmediately l have a proble~, and that is we can't selecta Jury, have jeopardy attach and then receive an adverse ruling which we can't appeal.

'.L'HE COURT: Maybe you and Mr. Harvey could discuss it between yourselves and report back.

MR. DABROWSKI: That doesn't mean that the concept is nota good one and ought not

CuNNiNGHAM

to be pursued. Sorne of the observations that have been made here by Mr. Harvey with regara to the proposal and the one observation the Court --I believe they're all observations by Mr~ Harvey would present considerable problems for the Government, would involve rights that the Government could and should not, by the way, give up.

MR. HARVEY: Judge, I will respond briefly if I may, to a number of points that Mr. Dabrowski has raised. First of all, to state that, he has clearly missed what he claims to be the heart of our argument.

The heart of our argument is not simply that the Court lacks jurisdiction. We are not here simply to reiterate and hope with the process of water on the stone, finally the Court will suddenly change its mind and decide to apply international law.

THE COURT: I like your comparison, water on the stone. I hope the Court isn't in that category.

MR. HARVEY: Judge, I hope not, too. It's my belief that an epiphany can come to all. Be that as it may, we' re not here asking the Court