Sunday, April 15, 2007

Text of emergency appeal

Prosecutors challenge Posada's release

Text of appeal submitted by Justice Department


Last week, a court of appeals in New Orleans suspended an order by a district court in El Paso, Texas, releasing Luis Posada Carriles from prison on bail. Because of the interest shown by Progreso Weekly readers in this case, we are publishing an abridged version of the federal prosecutors' motion for suspension.

[TO:] The United States Court of Appeals for the Fifth Circuit

[FROM:] The United States District Court for the Western District of Texas, El Paso Division

[CASE:] 3:07-CR-87

[SUBJECT:] Motion of the United States for an emergency stay of the District Court's order of pretrial release

Pursuant to Rule 8 of the Federal Rules of Appellate Procedure [...] the United States of America, hereby respectfully moves for an emergency stay of the District Court's order releasing Luis Posada Carriles, on conditions of pretrial release. [...] In support of this motion, the government [...] states as follows:

1. Procedural Background

On January 11, 2007, a federal grand jury in the Western District of Texas indicted Luis Posada Carriles for one count of naturalization fraud [...] and six counts of making false statements in immigration proceedings [...] The government moved to detain him pretrial. On January 22, 2007, Posada Carriles waived his right to a detention hearing and was ordered detained. He subsequently filed a motion to reopen the detention hearing, which was denied by a U.S. Magistrate Judge. Posada Carriles then appealed this denial to the U.S. District Court Judge.

On April 3, 2007, the District Court heard the defendant's appeal and accepted proffered facts from the parties. [...] At that hearing, and at all stages of the proceedings, the government contended that Posada Carriles's history indicated a very real risk that he would flee if released pretrial. Among other things, Posada Carriles had an acknowledged and recent history of using false official documents and aliases, a history of failing to appear for proceedings, both attempted and actual past escapes from custody, and no history of residence in the United States for approximately forty years, during which time he lived clandestinely in several Latin American countries.

On Friday, April 6, 2007, the District Court granted Posada Carriles's motion for pretrial release, provided that he fulfill certain conditions of bond. [...] The District Court determined that Posada Carriles was frail, his history of escape happened well in the past, he has support in the Miami community and apparently little financial resources. The District Court conditioned his release on

Posada Carriles posting a $250,000 cash or corporate surety bond, posting a $100,000
appearance bond co-signed by his wife, son and daughter, and living in his wife's residence under electronic monitoring.

That same day, the government moved the District Court to stay the release order for seven days, while it considered the advisability of pursuing an appeal. [...] On April 9, 2007, the government filed a motion for reconsideration of the bond decision and for a hearing [...] into the suitability and source of the bond. [...] On April 9, 2007, the District Court denied the government's motion for a stay, and denied the second motion on April 10, 2007. [...] The government has been notified that Posada Carriles is prepared to post bond today, April 12, 2007. The government therefore filed a notice of appeal on April 12, 2007, and seeks this stay of the release order [...] .

2. There is a Risk that Posada Carriles will Flee if Released on Bond, before an Appeal may be Resolved.

Posada Carriles' history demonstrates that there is a very real risk that he will flee if released. Among other things, first, he is a non-citizen of the United States, and has no history of living in this Country since the 1960s.

Second, he has a history of flight. He was arrested and charged in Venezuela for involvement in the bombing of a Cubana airliner in the 1970s, which killed more than seventy people. Before the charges were resolved, Posada Carriles acknowledged that he escaped from a Venezuelan prison, following two previous, unsuccessful escape attempts.

Third, Posada Carriles acknowledged living clandestinely in several Latin American countries following his escape, and further acknowledged using several fraudulent passports and aliases. Indeed, in 2000 he was arrested in Panama and charged with offenses related to an assassination attempt against Fidel Castro. He was convicted of crimes against the national security and of using fraudulent public documents -- the latter charge because he used a false Salvadoran passport to enter Panama. As a result, he is the subject of a current Salvadoran arrest warrant for document fraud.

Fourth, Posada Carriles admitted to immigration authorities that he unlawfully entered the United States in March 2005, with the help of an alien smuggler. Although the government disputes the manner of his entry and the identity of the smugglers, which forms the basis for some charges pending against Posada Carriles, he has admitted to clandestine entry.

Fifth, after his entry, Posada Carriles essentially hid in plain sight in Miami, and the government was unaware of his location until his arrest on May 17, 2005, in part because he filed incomplete address information on immigration pleadings. The defendant did not live with his wife or family members in Miami during this period.

Moreover, Posada Carriles has a history of non-appearance at proceedings in the United States. On May 17, 2005 -- the day of his arrest-- Posada Carriles was scheduled to appear at an immigration hearing. He did not attend that hearing, claiming to be too ill, but instead gave a press conference at an undisclosed location in the Miami area. During that press conference, Posada Carriles expressed some intention to leave the United States.

The government subsequently located him at the house of an associate and discovered that he had a bag packed with clothing and medications. Posada Carriles, in proceedings below, claimed that he was living from a suitcase because he did not know how his immigration case would be resolved. An associate reportedly told members of the press that Posada Carriles was arrested at his last stop, to retrieve belongings before leaving the United States.

Without a stay of the District Court's order, Posada Carriles may post bond and be released under the specified conditions before the end of the day. The government submits that the facts proffered above, which form the basis for its appeal of the District Court's decision, demonstrate a very real risk that the defendant will flee if released, and, more specifically, that he will flee before any appeal is resolved. [...]

Given Posada Carriles's history and the government's argument concerning his risk of flight, the United States respectfully requests that this Court stay the District Court's order of April 6, 2007, releasing him on conditions of bond, through disposition of an appeal by the government of the District Court's pretrial order, if authorized by the U.S. Solicitor General. [...]

Accordingly, the United States respectfully requests that the District Court's order of April 6, 2007, releasing Posada Carriles on conditions of bond, be stayed pending the U.S. Solicitor General's prompt determination whether to authorize an appeal, and, if an appeal is authorized, through the disposition of the appeal.

Respectfully submitted,

MICHAEL MULLANEY,

Acting United States Attorney

JOHN F. DEPUE, J0HN W. VAN LONKHUYZEN, PAUL AHERN,

Trial Attorneys

Counterterrorism Section

National Security Division

United States Department of Justice

10th Street & Constitution Avenue, NW

Washington, DC 20530


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Source: Progreso Weekly

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