Prosecutors show tougher U.S. stand

BY JAY WEAVER

  Miami prosecutors are going to extraordinary lengths to keep a group of Cuban skyjack suspects behind bars -- mainly to send a message to island residents and their leader, Fidel Castro, that the United States will be tough on hijackers.

  The U.S. attorney's office has tried twice, and failed, to block the release of the six defendants on bond before their trial. Now prosecutors say they may ask the 11th U.S. Circuit Court of Appeals in Atlanta to overturn a judge's bail order.

  ''With all due respect to the court's decision, it's a violent crime that put people's lives in danger,'' said U.S. Attorney Marcos Jiménez, citing knives used by the suspects to commandeer a plane with 31 passengers and crew members from Cuba to Key West.

  Prosecutors want the six held without bond, even though they know the defendants would not go free anyway.

  The reason: If they were released on bail, immigration officials would swoop in and detain them for entering the U.S. illegally -- a tactic often used by the government, to the dismay of defense attorneys.

  The skyjacking case represents more than just a criminal prosecution for Jiménez and the U.S. Justice Department. It is driven by decades of friction between Castro and the federal government over hijacking prosecutions and migration policies.

  After the March skyjacking and another in April, Castro accused federal authorities of treating Cuban suspects as ''heroes.'' Jiménez fired back that ''we're not lenient'' and vowed to crack down on plane and boat hijackers, regardless of whether they're Cuban.

  A University of Miami immigration law professor said the Bush administration faces a dilemma of having to treat Cuban hijackers essentially as terrorists in the post-Sept. 11 political climate. If the administration doesn't, Castro could retaliate by allowing a wave of Cuban migrants to set sail for Florida.

  ''There is a pas de deux between the United States and Cuban government,'' UM's David Abraham said. ``Castro upped the ante, and now the U.S. is in a difficult position of responding.''

  During the past two decades, federal authorities have been criticized for selective prosecution in Cuban hijackings. But a review of several cases showed that since the 1994 Cuban rafter crisis, prosecutors have been especially aggressive against Cubans who use violent means to escape from the island.

  IMMIGRATION LAWS

  Meanwhile, more stringent immigration laws have made it virtually impossible for such foreign-born suspects to gain release before trial. Even if a judge grants them bond, immigration authorities routinely hold them.

  ''If you're not a citizen of the United States and you're in this situation, you're not getting out,'' said Ira Kurzban, a prominent Miami immigration lawyer.

  The tougher posture toward fleeing Cubans began almost a decade ago after 35,000 rafters headed for Florida. To stop the exodus, the Clinton administration and Castro government struck migration accords requiring federal officials, for the first time, to return Cubans intercepted at sea.

  Under the so-called wet-foot, dry-foot policy, only migrants who reach U.S. shores could apply for residency under the Cuban Adjustment Act of 1966.

  The U.S.-Cuba accord also made more visas available for Cubans.

  While the move helped stem the rafter crisis, some Cubans who couldn't come to the United States legally found other ways, including boat and plane hijackings.

  EARLIER CASES

  Two high-profile cases in the mid-1990s hint at the long legal struggle awaiting the latest group of Cuban hijackers -- and any who might follow.

  In August 1994, five Cuban men hijacked a fishing boat to Key West. They were charged with transporting stolen goods and granted bond. But immigration officials held them in detention for illegal entry .

  A Key West jury found the men not guilty. ''What happens in these cases is you put Cuba on trial. And whenever you put Cuba on trial, Cuba comes up short,'' said Miami attorney Wilfredo Allen, who represented one of the five.

  But despite their acquittals, the men spent several more months in custody because an immigration judge denied their asylum requests.

  The five eventually applied for -- and received -- residency under the Cuban Adjustment Act.

  In August 1996, three Cubans brandishing guns and knives hijacked a small commercial aircraft, but the plane eventually ran out of fuel and crash-landed in the Gulf of Mexico near Fort Myers. A passing Russian freighter rescued them and turned them over to the Coast Guard.

  The three defendants were denied bond, but at their 1997 trial in Tampa jurors also found them not guilty, saying their actions were justified because they were escaping the Castro regime.

  ''As soon as they were acquitted, the immigration officials pounced on them,'' said Tampa lawyer Ralph Fernandez, who represented one of the three.

  Immigration officials argued the trio had entered the country illegally. But in 1998, an immigration judge ruled in their favor.

  Immigration Court Judge Kevin McHugh noted they dropped anti-Castro leaflets over Cuba while en route to the United States. The judge also said they helped Miami prosecutors in their investigation of the Cuban military's 1996 shoot-down of Brothers to the Rescue planes that killed four fliers.

  ''That put a different gloss on everything,'' Fernandez said.

  Fernandez said the latest group of Cuban hijackers can expect the same treatment from federal prosecutors and immigration authorities.

  HIJACKING VIOLENCE

  Jiménez, the Miami U.S. attorney, said the violent nature of the two recent hijackings was the ''driving force'' behind his office's prosecutions.

  On March 19, the six Cuban men allegedly used kitchen knives, tape and the airplane's own emergency hatchet to hijack a twin-engine DC-3 to Key West.

  Those arrested were Alexis Norniella Morales, Eduardo Javier Mejía Morales, Yainer Olivares Samón, Neudis Infantes Hernández, Alvenis Arias Izquierdo and Miakel Guerra Morales. They each face at least 20 years in prison if convicted.

  U.S. Magistrate Hugh Morgan of Key West set bond at $100,000 each, and it was later upheld on appeal by Senior U.S. District Judge James Lawrence King of Miami. Both judges ruled the defendants were not flight risks or dangers to the community.

  Morales was the only one to have his bond posted by his relatives here, yet he remains in immigration custody.

  The same fate would await the other five if they were to make bail.

  Two weeks after the skyjacking, on April 1, Adermis Wilson González used two fake hand grenades to commandeer a twin-engine propeller plane from Havana to Key West.

  Morgan denied González bond because he had a criminal history in Cuba.

  `I EMPATHIZE'

  Jiménez said he understood why the skyjackers wanted to flee Cuba, but condemned their actions to get here.

  ''I empathize with them,'' said Jiménez, who fled Cuba with his family in 1961. "But when you're committing acts of violence and putting people's lives in danger, that's just unacceptable.''

  Defense attorneys believe federal prosecutors are striving to punish their clients because of Castro's infuriating commentary. Cuba's subsequent executions of three
  ferry-boat hijackers might also be an influential factor.

  ''[U.S. officials] seem to be driven by nothing other than rank politics,'' said attorney Mario Cano, who represents one of the suspects.

  ''[Skyjacking] incidents similar to this have taken place over decades,'' he said. "Yet it's only now that the Cuban government is rearing its ugly head about a lack of effort by American authorities to crack down on hijackers. This has affected someone's sensibilities, most likely in Washington.''