Despite a U.S. pledge to treat hijackers as criminals, the record shows a mixed response.

 BY ALFONSO CHARDY

 Federal authorities may face a familiar dilemma: whether to arrest or give asylum
 to the suspected hijacker or hijackers of the small Russian-made plane that
 crashed 180 miles southwest of Key West.

 Nearly a dozen times since 1980, when the United States first prosecuted Cuban
 hijackers, officials have debated the same politically charged question. Yet,
 despite promises after the 1994 rafter exodus to treat all hijackers as criminals,
 the record shows a mixed response.

 In some instances, prosecutors didn't file charges -- even where extreme violence,
 including murder, allegedly had occurred.

 In 1995, the government decided not to prosecute Leonel Macías-González, a
 Cuban coast guardsman who allegedly killed a Cuban naval officer in August 1994
 during the hijacking of a boat to Key West. Federal authorities determined they
 had no jurisdiction over an incident off U.S. soil.

 And in cases where suspects have been tried, juries have acquitted -- not only in
 Miami, but elsewhere in the United States.

 The only Cuban believed to be in detention after the hijacking of a Cuban plane is
 former Cuban Army intelligence Lt. Col. Jose Fernández Pupo, who was acquitted
 of an air piracy charge but was denied asylum.

 CHARGES AHEAD?

 Federal officials say it's still too early to determine whether charges will be filed in
 Tuesday's case. The key is not whether the hijacking occurred outside the United
 States but whether the suspects end up on U.S. soil.

 Ultimately, a decision to prosecute would not be made in Miami, said Judy
 Orihuela, an FBI spokeswoman. ``This would not be determined at a local level,''
 Orihuela said.

 Rosa C. Rodriguez Mera, a U.S. Attorney spokeswoman, said her office had no
 comment.

 The United States toughened its attitude toward Cuban hijackers as part of an
 agreement with Cuba that ended the 1994 rafter exodus. Under the accord, the
 United States agreed to help end the hijacking of Cuban aircraft and boats from
 the island.

 But subsequent cases show both the government's resolve to abide by the
 agreement and the difficulties of prosecuting.

 In October 1997, Ridel Ruiz Cabrera and his brother-in-law, Rafael Jorrín, hijacked
 a boat in Varadero. But they were intercepted off the Florida Keys and returned to
 Cuba.

 In July 1996, Fernández Pupo -- the Cuban intelligence officer -- brandished two
 .22-caliber pistols to force a commuter plane to land at the U.S. naval base in
 Guantanamo.

 U.S. prosecutors flew Fernández Pupo to Washington and charged him with air
 piracy. But in May 1997, a federal jury acquitted him after the defense argued that
 his only option had been violence.

 While acquitted, Fernández Pupo was not freed. A U.S. immigration judge denied
 his asylum request in November 1997 and he remains in custody.

 Another immigration judge handed down a different decision in a separate case in
 December 1998 in Brandenton, Fla. He granted asylum to three Cubans who
 commandeered an airplane and then crashed off Florida's Gulf Coast in August
 1996. A federal jury in Tampa acquitted the Cubans of hijacking charges in July
 1997.

 The government then sought to deport Adel Regalado Ulloa, Leonardo Reyes and
 José Roberto Bello-Puente -- but Immigration Court Judge Kevin McHugh thwarted
 the move.

 In air-piracy cases, pilot involvement often determines whether charges are filed.

 In 1992, Carlos Cancio -- flying a plane that had taken off from Havana with more
 than 50 people aboard -- diverted the aircraft to Miami after his son and a flight
 engineer overpowered an armed guard.

 NO CHARGES

 Prosecutors decided against filing charges because laws are vague about whether
 a pilot can hijack his own plane.

 In Tuesday's case, the pilot radioed the Havana control tower saying he had been
 ``kidnapped,'' according to the FBI in Miami.

 It's also unclear whether passengers aboard the plane would be allowed to stay.
 While U.S. policy dictates the return of Cubans picked up at sea, Patricia
 Mancha -- a U.S. Immigration and Naturalization Service spokeswoman in Miami
 -- said officials were monitoring developments.

 ``We won't speculate because we really don't know what will happen at this
 point,'' Mancha said.

 A boat hijacking two decades ago prompted the United States to reverse a
 20-year practice of welcoming as heroes all Cubans fleeing the island. It was a
 time when the United States sought to improve relations with Cuba despite the
 Mariel boatlift.

 FIRST INDICTMENT

 On Aug. 2, 1980, a federal grand jury handed down the first-ever indictment
 against Cubans involved in a hijacking. It charged Omar Fabelo Blanco and
 Epifanio Mantilla Herrera, who boarded the 30-foot Victoria de Girón boat in
 waters near Havana and tied up its captain, Jesús Hernández Rivero.

 Shortly after, two other men -- Luis Hernández Collazo and Miguel Angel
 Matilla-Tartabul -- swam to the boat and boarded it.

 The group arrived in Key West July 9, 1980 -- amid the Mariel boatlift.
 Matilla-Tartabul, then 17, was not charged because he was a minor.

 Hernández Rivero, the boat captain, testified at the trial in Miami -- but the jury
 acquitted the Cubans after defense attorney Ellis Rubin portrayed them as
 refugees seeking freedom.

 On Tuesday, Rubin said that if federal prosecutors file charges, he will offer his
 services free to the hijacking suspect or suspects.

 ``I will represent them because they're obviously looking for freedom,'' Rubin said.