Amicus Curiae of Sociedad Cubana de Ciencias Penales in Support of
Appellantes - April 9, 2003
The Amicus brief was prepared by Erik Luna, from the College of Law of the University of Utah. Luna is a consultant of the Cuban Association of Criminal Sciences. The document reviews a series of terrorist actions carried out against Cuba over the last decades and it supports the "state of need" or the circumstances which have forced Cuba to look for information to prevent the constant aggressions against the country, planned and carried out from US territory.
The goal of Amicus in this brief is threefold: (1) to summarize from public information the decades of terrorism against Cuba planned and perpetrated by individuals and organizations within the United States; (2) to point out the obligation of American law enforcement to prevent and prosecute such terrorism and its failure to do so; and (3) to argue that the defendants were entitled to a jury instruction on the affirmative defense of necessity given (1) and (2).
I. CUBA HAS SUFFERED A LONG HISTORY OF TERRORISM PLANNED AND PERPETRATED BY THE EXILE COMMUNITY IN THE UNITED STATES.
The Republic of Cuba and its citizens have suffered more than four decades of terrorism at the hands of individuals and groups within the Cuban exile community, most of whom openly operate in the United States and, in particular, southern Florida. Indiscriminate bombings of civilian "targets," murderous conspiracies against those who oppose exile violence or support rapprochement with Cuba, and assassination plots aimed at Cuban leaders and diplomats have been the persistent trademarks of these terrorists and associated paramilitary groups. Collectively, they form a loose, al-Qaeda style web of exile organizations committed to inflicting maximum harm on Cuba, going by names such as "Omega 7," "Comandos F-4," "Alpha 66," "Accion Cubana," and Spanish-language acronyms like "F.L.N.C.," "C.O.R.U.," and "M.I.R.R." Even the non-profit and supposedly no-violent "Cuban-American National Foundation" ("C.A.N.F.") maintains close ties to terrorist groups, with the latter functioning "as the military wing to the Foundation's political wing." Ann Louise Bardach & Larry Rohter, Key Cuba Foe Claims Exiles' Backing, N.Y. Times, July 12, 1998, at 10. "Lawless violence and intimidation have been hallmarks of el exilio," Jim Mullin, The Burden of a Violent History, Miami New Times, Apr. 20, 2000, whose "fanatics are wily enough and sufficiently skilled to strike lethal blows against their enemies-real or imagined -hundreds of miles from the militants' home base in Miami ... outbidding each other in violent attacks[.]" David Binder, Some Exiles Are Still at War With Castro, N.Y. Times, Oct. 24, 1976, at 3. The existence and danger posed by these terrorists and their organizations have been well documented and well known to U.S. law enforcement. In 1976, the U.S. Senate held hearings on "terrorism in the Miami area," providing testimony and supporting documentation about terrorist activities by the exile community. Terrorism In the Miami Area: Hearings Before the Subcomm. to Investigate the Admin. of the Internal Sec. Act and Internal Sec. Laws of the Senate Comm. on the Judiciary, 94th Cong. 607 (1976). One witness, an officer with Dade County's organized crime bureau, summarized the violence and criminality of exiles "whose hatred of Cuban [President] Fidel Castro and communism has led them to engage in extralegal actions and to violate the laws of the country which gave them sanctuary". These individuals use Dade County as a base for international terrorism against allied governments of Cuba, Cuban shipping, Communists, purported Communists, and individuals who take a stand against their terroristic type tactics.... A number of the militant type groups have carried their militancy to the point of engaging in terrorist acts both within and without the United States. These militant type groups, often having diverse membership representing other groups, both social and militant, have organizational structures much like a military government, containing positions such as minister of defense, director of propaganda, director of naval operations, chief of intelligence, chief of internal security.... These groups receive their funding from sympathetic persons within the Cuban community who mirror the activists' hatred for Fidel Castro. Failing support for funding in these areas, groups have resorted to bombings and extortion in an effort to gather support and additional funding for their cause.... Some Cuban groups purporting to be involved in terroristic type acts against the Cuban Government are no more or no less than outright criminals, feeding upon the Cuban population and diverting they collected funding for their own purposes.... We are aware that many criminal conspiracies are entered into in the Dade County area which culminate in terrorist type attacks in Latin American countries or international waters, directed against Cuban targets or targets which have, or appear to have, some relationship with Cuba. Id. at 608-09. The Senate hearings went on to detail specific incidents of terrorism and related activities within the exile community, including: numerous murders and assassination plots against, among others, Cuban President Fidel Castro and former U.S. Secretary of State Henry Kissinger; bombings of residences, automobiles, commercial and diplomatic offices, and even bazooka attacks on the United Nations and a Polish freighter bound for Havana; the gunning down of sailors on Cuban fishing boats; strong-arm extortion to finance the terrorist attacks; and many other examples of exile violence and criminality. Id., passim. The hearings also described at length the military character and terrorist goals of certain exile organizations. Id. at 616, 621, 623-26, 647-79. See also Juan de Onis, Anti-Castro Terrorists Tolerated, If Not Encouraged, N.Y. Times, Nov. 15, 1976, at 10 (noting exile terrorism circa 1976); Binder, Some Exiles, supra, at 3 (same). Probably the single most horrific act of terrorism against Cuba occurred only a few months after the Senate hearings. On October 6, 1976, a bomb exploded aboard a Cuban commercial airliner traveling from Venezuela to Cuba shortly after take-off from a brief stopover in Barbados. All passengers and crew were killed in the blast-73 men, women, and children, including teenage members of the Cuban junior fencing team returning from a tournament in Caracas. See, e.g., David Binder, Cuban Exile Admits Bombing an Airliner Killing 73 Aboard, N.Y. Times, Oct. 19, 1976, at 2; Juan de Onis, Venezuela Depicts Intrigue Among Exiles in Crash of Cuban Plane, N.Y. Times, Oct. 26, 1976, at 4; Binder, Some Exiles, supra, at 3; de Onis, Anti-Castro, supra, at 10. The atrocity was quickly connected to exile terrorists, including Orlando Bosch, one of the masterminds behind the bombing. In subsequent statements, Bosch attempted to justify the barbaric act, claiming that "[t]here were no innocents on that plane" and "[t]hey were all esbirros [collaborators]," that the bombing was "a legitimate act of war," that "[y]ou have to fight violence with violence," and that "[a]t times you cannot avoid hurting innocent people." See Kirk Nielsen, Righteous Bombers?, Miami New Times, Dec. 5, 2002; Kirk Nielsen, Terrorists, but Our Terrorists, Miami New Times, Dec. 20, 2001; Ann Louise Bardach & Larry Rohter, Life in the Shadows, Trying to Bring Down Castro, N.Y. Times, July 12, 1998, at 6. The obscenity of such statements only adds brazen insult to insufferable injury in Cuba and should infuriate any decent, civilized people-particularly the U.S. citizenry. Most Cubans believe that the slaughter of those aboard the Cubana de Aviación jetliner is no different than the bombing of Pan Am Flight 103 over Lockerbie, Scotland. The ongoing story of Orlando Bosch-described by the New York Times as "one of the hemisphere's most notorious terrorists," The Bosch Case Does Violence to Justice, N.Y. Times, July 20, 1990, at 26, and by the Boston Globe as "the godfather of anti-Castro terrorism" and "in a class with terrorists such as Abu Nidal," A Terrorist Test for Bush, Boston Globe, Aug. 18, 1989, at 12-provides a powerful example of Cuban grievances and persistent fear of terrorism to this very day. Bosch returned to the United States after being released from a Venezuelan prison in 1987. He was arrested in 1988 on an earlier parole violation, having fled the country after being convicted of the aforementioned bazooka attack on the Polish freighter. See Castro Foe, Freed by Venezuela, Accused in U.S., N.Y. Times, Feb. 17, 1988, at 6. The Immigration and Naturalization Service began deportation proceedings against Bosch, and in 1989, the Associate U.S. Attorney General wrote a scathing memorandum ordering his exclusion from the United States. Joe D. Whitley, Decision of the Acting Assoc. Att'y Gen., In the Matter of Orlando Bosch-Avila, File No. A28-851-622/A11-861-810, June 23, 1989, reprinted at http://cuban-exile.com/doc_051-075/doc0054.htm . It listed in meticulous detail Bosch's terrorism-dozens of acts of lethal sabotage, kidnapping, murder, and so on-including: his involvement in the bombing of the Cubana de Aviación flight; his bazooka attack on the Polish freighter and bombings of Japanese and British vessels; his bombings of a Cuban sugar mill, Cuban Embassies in Lima, Madrid, Ottawa, and Buenos Aires, and the Mexican Embassy in Guatemala City; his attempted assassination of the Cuban Ambassador to Argentina and other high ranking Cuban diplomats; and, while incarcerated in Venezuela, his order that local facilities be bombed. Id. at 3-10. Given his appalling background of terrorism, the memorandum found overwhelming reasons to ban Bosch from the United States: For 30 years, Bosch has been resolute and unwavering in his advocacy of terrorist violence. He has threatened and undertaken violent terrorist acts against numerous targets, including nations friendly toward the United States and their highest officials. He has repeatedly expressed and demonstrated a willingness to cause indiscriminate injury and death. His actions have been those of a terrorist, unfettered by laws or human decency, threatening and inflicting violence without regard to the identity of his victims. The United States cannot tolerate the inherent inhumanity of terrorism as a way of settling disputes. Appeasement of those who would use force will only breed more terrorists. We must look on terrorism as a universal evil, even if it is directed toward those with whom we have no political sympathy. As a United States District Court has eloquently stated with respect to this very case, "the evils of terrorism do not become less because of the participants and the cause." .... The United States cannot grant shelter to someone who will, from that shelter, advocate the visitation of injury and death upon the property or person of innocent civilians. The security of this nation is affected by its ability to urge credibly other nations to refuse aid and shelter to terrorists, whose target we too often become. We could not shelter Bosch and maintain our credibility in this respect. Id. at 2, 17 (citation omitted).
The Associate U.S. Attorney General was not alone in this assessment; more than 30 nations refused to allow Bosch to immigrate to their shores. See Catherine Wilson, Convicted Terrorist Bosch Sent Bombs to Cuba, Associated Press, July 18, 1990, Apr. 12, 2001. But in one of the most unconscionable decisions involving avowed terrorists, federal officials released Bosch in 1990 and allowed him to stay in the United States. See, e.g., James LeMoyne, Cuban Linked to Terror Bombings Is Freed by Government in Miami, N.Y. Times, July 18, 1990, at 1, 18. Since then, Bosch has continued his advocacy of terrorism against Cuba, arguing that "[t]he banner of pacificism cannot be waved" and "[a]ll fights are terrorism," and signing a "Declaration of Principles" that championed the use of "all means and methods" against Cuba. Wayne S. Smith, Can New Justice Tell Patriotism from Terror?, Sun-Sentinel (Ft. Lauderdale Fla.), July 13, 2002, at 17; Nielsen, Terrorists, supra. And as was revealed at the trial of the case at bar and in various media accounts, Bosch was implicated in a series of bombings of Havana hotels, restaurants, and nightclubs in 1997, resulting in death and injury. See, e.g., Wilson, supra; Nielsen, Terrorists, supra. Bosch's response was unrepentant: "I've sent so many things to Cuba that I can't remember if they were explosives or not. You can't destroy a tyranny by praying to saints in a church." Nielsen, Terrorists, supra. The fact that a serial terrorist and murderer lives freely in the United States is both galling and terrifying to Cuba. One need only imagine how the United States would feel if Osama bin Laden was openly residing in Havana. One of Bosch's co-conspirators in the bombing of the Cubana de Aviación flight, Luis Posada Carriles, maintained an equally despicable record of violence. After bribing his way out of a Venezuelan jail in 1986 (which was bankrolled by C.A.N.F. leaders), Posada became a chief agent for the illegal Contra supply operation in Central America and apparently was involved in smuggling cocaine into the United States and counterfeiting American currency. See, e.g., Joseph B. Treaster, Accused Terrorist Helping to Supply the Contras, N.Y. Times, Dec. 10, 1986, at 12; Bardach & Rohter, Key, supra, at 10; Bardach & Rohter, Life, supra, at 6-7; LeMoyne, supra, at 18. In the past decade, Posada was implicated in assassination plots against President Castro and claimed responsibility for organizing the string of bombings of Cuban hotels, restaurants, and nightclubs in 1997, resulting in serious injuries and the death of an Italian tourist. See, e.g., Ann Louise Bardach & Larry Rohter, A Cuban Exile Details 'Horrendous Matter' of a Bombing Campaign, N.Y. Times, July 12, 1998, at 10-11; Tim Golden, Plot to Oust Castro, Run on a Shoestring, Lands 5 Underpaid Amateurs in Jail, N.Y. Times, Jan. 15, 1999, at 8; Bardach & Rohter, Life, supra, at 6; Nielsen, Righteous, supra. He showed no remorse for the fatality, contending that he "sleep[s] like a baby" and that the "Italian was sitting in the wrong place at the wrong time." Bardach & Rohter, Key, supra, at 10. In a series of interviews published by the New York Times in 1998, Posada admitted that his terrorist activities were financed by the exile community in the United States and, in particular, leaders of C.A.N.F. Bardach & Rohter, Key, supra, at 1, 10; Bardach & Rohter, Life, supra, at 6-7; Bardach & Rohter, A Cuban, supra, at 10-11. To be clear, Bosch and Posada are only two of the legion of exile terrorists who have planned and perpetrated violence against Cuba and its people, with a complete account listing myriad other terrorists and terrorist attacks. All told, the Cuban government has documented nearly 700 acts of terrorism against its people over the past forty years, resulting in massive death and injury. Bruno Rodriguez Parrilla, "Statement by the Permanent Representative of the Republic of Cuba," United Nations Security Council, at 5 (Feb. 20, 2003) (attached as Appendix C). The district court in the present case, however, restricted defendants' evidence of exile terrorism to acts committed between approximately 1992 and 1998. Such a limitation created the false impression that Cubans woke up one day in 1992 to find that their country was under terrorist attack, as though the prior three decades of violence had never occurred. But it is the long history of exile terrorism and, in particular, the continuous aggression prior to 1992 that forced Cuba to try to uncover and prevent future violence against its people. The trial court's stricture is little different than limiting an analysis of al-Qaeda's anti-American terrorism to the past couple of years, ignoring, for example, the previous bombing of American embassies in Africa. Admittedly, justice for the accused and strict judicial economy can and do conflict. But in such instances, the former must trump latter-and in the present case, the defendants should have been allowed to present the full history of exile terrorism that motivated their conduct. Nonetheless, even the temporally abridged account offered by the defendants at trial painted a compelling picture of exile terrorism-bombings, assassination plots, large caches of lethal weapons, attempts to purchase stinger missiles and C-4 explosives, and so on-forming a catalogue of "very serious, very dangerous activities by persons committed to the violent overthrow of the Cuban government in activities and plans that were originated and largely carried out from U.S. soil." Trial Transcript at 13566 [hereinafter "T.T."] (statement of defense attorney Mendez); see also id. at 13562-66 (summarizing evidence of terrorism).
II. THE U.S. GOVERNMENT IS OBLIGATED TO PREVENT AND PROSECUTE TERRORISM LAUNCHED FROM ITS JURISDICTION BUT FAILED TO DO SO WITH REGARDS TO TERRORIST ATTACKS AGAINST CUBA.
It almost goes without saying that the foregoing violence contravenes American domestic law, amounting to terrorist acts proscribed by the federal penal code, see, e.g., 18 U.S.C. § 2332b (2000) (acts of terrorism transcending national borders); 18 U.S.C. § 2339A (2000) (providing material support to terrorists); and constituting violations of the Logan Act, 18 U.S.C. § 953 (2000) (criminalizing conduct by unauthorized U.S. citizens designed to influence foreign governments or officials); and the Neutrality Act, 18 U.S.C. § 960 (2000); see, e.g., United States v. Leon, 441 F.2d 175 (5th Cir. 1971) (Neutrality Act violated by attempt to overthrow foreign nation). Moreover, the United States has an affirmative obligation under international law to prevent and prosecute known terrorist attacks against other nations that are hatched from American soil. This obligation is represented in some dozen anti-terrorist conventions of which the United States is a signatory. See, e.g., U.S. Dep't of State, "Major Multilateral Terrorism Conventions," available at http://usinfo.state.gov/topical/pol/terror/conven.htm (listing international anti-terrorism conventions and protocols signed by the U.S.). Likewise, a long list of United Nations Security Council resolutions have condemned terrorist acts, called upon member nations to cooperate in combating terrorism, and required affirmative steps by each country to prevent and prosecute terrorists within their jurisdiction. See United Nations, "U.N. Action Against Terrorism: Action by the Security Council," available at http://www.un.org/terrorism/sc.htm (listing anti-terrorist action by the U.N. Security Council); see also U.S. Dep't of State, "Countering Terrorism: International Resolutions," available at http://www.state.gov/s/ct/c4353.htm (listing international resolutions against terrorism). In particular, Resolution 1373, sponsored by the United States in the wake of the terrorist attacks of September 11, 2001, "reaffirm[ed] the principle ... that every State has the duty to refrain from organizing, instigating, assisting or participating in terrorist acts in another State or acquiescing in organized activities within its territory directed towards the commission of such acts." S.C. Res. 1373, U.N. SCOR, 56th Sess., 4385th mtg. at 1, U.N. Doc. S/RES/1373 (2001) (emphasis added). Among other things, Resolution 1373 demanded that all nations: Take the necessary steps to prevent the commission of terrorist acts, including by provision of early warning to other States by exchange of information; ... Deny safe haven to those who finance, plan, support, or commit terrorist acts, or provide safe havens; ... Prevent those who finance, plan, facilitate or commit terrorist acts from using their respective territories for those purposes against other States or their citizens; ... Ensure that any person who participates in the financing, planning, preparation or perpetration of terrorist acts or in supporting terrorist acts is brought to justice .... Id. at 2. These international conventions and U.N. actions merely codify well-established, long-standing customary international law and norms against a state permitting harmful behavior to other nations from being launched from their own jurisdiction. Cf. Ian Brownlie, Principles of Public International Law 434-478 (5th ed. 1998) (discussing responsibilities of states). In turn, the U.S. Supreme Court has held that customary international law and norms are part of American jurisprudence and binding on federal officials. See The Paquette Habana, 175 U.S. 677 (1900). The long history of violence described in Part I of this brief was well known to American law enforcement. Anti-Cuban terrorism has been reported in leading U.S. newspapers from its inception four decades ago, and among other things, the 1976 U.S. Senate hearing, Terrorism In the Miami Area, supra, put law enforcement on notice of the ongoing violence perpetrated by terrorists in the exile community. Over the course of many years, in fact, Cuba provided information to the United States about exile terrorism and made repeated requests that American law enforcement follow through with its obligations to prevent terrorism against other nations. For instance, on June 17, 1998, Cuban officials provided F.B.I. agents a comprehensive dossier of information about exile terrorists and their activities with the hope that it would be used to prosecute these criminals and prevent future acts of violence. See, e.g., Nielsen, Frometa, supra; Rodriguez Parrilla, supra, at 5. The Cuban Ambassador to the United Nations also took the matter up with the U.N. Security Council (of which the U.S. is a permanent member), asking that exile terrorism be addressed by the United States or the international community, or both. See, e.g., "Letter Dated 8 May 1992 From the Permanent Representative of Cuba to the United Nations Addressed to the President of the Security Council," U.N. Doc. S/23850 (1992) (attached as Appendix D); "Provisional Verbatim Record of the Three Thousand and Eightieth Meeting," U.N. Doc. S/PV 3080 (1992) (attached as Appendix E). Given the documented history of anti-Cuban violence, American law enforcement could not plausibly claim ignorance about exile terrorists and their organizations-and to Amicus' knowledge, no U.S. official has ever declared such a dubious pretense. The near uniform response to anti-Cuban terrorism, however, has been one of ambivalence and "a studious lack of curiosity." Bardach & Rohter, A Cuban, supra, at 10. See also Nielsen, Terrorists, supra (noting law enforcement failure to respond to terrorism); T.T. at 13570-72 (similar). "As you can see," Luis Posada Carriles said during his interview with the New York Times, "the F.B.I. and the C.I.A. don't bother me, and I am neutral with them." Bardach & Rohter, Key, supra, at 10. Another terrorist "chuckled" at law enforcement's feeble response when his explosive-ladened boat turned up near Havana: "[The F.B.I. agents] said, 'You could hurt someone. Don't do it again.' .... I promised not to do it again, and they went away." Tamayo, supra, at 11. According to one former U.S. prosecutor, the "lax law enforcement atmosphere" allowed exile terrorists to believe that they had a "yellow light" to attack Cuba. Id. Likewise, Professor G. Robert Blakey reviewed many of the F.B.I.'s classified files about exile terrorism while working as chief counsel to the U.S. House Select Committee on Assassinations and was disturbed by law enforcement's blind eye to anti-Cuban criminality: "When I read some of those things, and I'm an old Federal prosecutor, I thought, 'Why isn't someone being indicted for this?'" Bardach & Rohter, Key, supra, at 10. Ironically, the F.B.I. utilized the information on exile violence provided by Cuban officials during the aforementioned meeting in June of 1998, not to prevent anti-Cuban terrorism and investigate and prosecute exile terrorists, but to arrest the defendants in this very case. To borrow the satirical words of one federal appellate court, "This case gives fresh meaning to the phrase, 'I'm from the government and I'm here to help you.'" United States v. Gomez, 92 F.3d 770, 772 (9th Cir. 1996). The appellate court's concluding words seem apropos as well: "To prosecute [the defendants] for trying to protect [themselves], when the American] government refused to protect [them] from the consequences of its own indiscretion, is not what we would expect from a fair-minded sovereign." Id. at 758.
III. THE DISTRICT COURT SHOULD HAVE INSTRUCTED THE JURY ON THE AFFIRMATIVE DEFENSE OF NECESSITY.
Admittedly, Amicus is composed of experts on criminal justice in continental legal systems (often referred to as "civil law"), the approach utilized by most European nations and the entire Spanish-speaking world. But this outsider's view, formulated after research and interaction among Amicus and its counsel, can provide insight into difficult legal issues in the present proceeding. "[D]espite great cultural differences," Professor Paul Robinson has noted, "principles of exculpation are surprisingly similar throughout the civilized world." Paul H. Robinson, Criminal Law Defenses 191 (1984). See also George Fletcher, Rethinking Criminal Law 774-75 (1978) (noting convergence of "Western legal systems"). In particular, Amicus contends that the jury should have been instructed on the affirmative defense of "necessity." This error by the district court-in itself or coupled with various other legal mistakes that undoubtedly will be raised by the principal parties (e.g., denial of defense motion for change of venue)-calls for reversal of the defendants' convictions and the granting of a new trial. Prior to closing arguments, defense counsel requested that the jury be instructed on the necessity defense, marshaling forceful evidence and legal arguments as to why such an instruction was appropriate. See T.T. at 13561-76. However, the district court failed to give this or any other affirmative defense instruction and instead provided a definition of the mens rea element melded with its own account of the defense theory: The word "willfully," as that term is used in the indictment or in these instructions, means that the act was committed voluntarily and purposely, with the specific intent to do something the law forbids, that is, with bad purpose either to disobey or disregard the law....
So if you find beyond a reasonable doubt that the acts constituting the crime charged were committed by the defendant voluntarily as an intentional violation of a known legal duty, that is, with specific intent to do something the law forbids, then the element of willfulness, as defined in these instructions, has been satisfied even though the defendant may have believed that the conduct was politically or morally required, or that the ultimate good would result from such conduct.
On the other hand, if you have reasonable doubt as to whether the defendant acted in good faith, sincerely believing himself to be exempt by the law, then the defendant did not intentionally violate a known legal duty, that is, the defendant did not act willfully, and that the essential part of the offense would not be established. In regard to Count 1 of the second superseding indictment, it is the defendant's theory of defense that they were monitoring the activities of persons and organizations in order to prevent acts of violence and aggression against Cuba. In other words, it is the defendants' theory of defense that they did not act with the necessary bad purpose to disobey or disregard the law because they were acting as agents of the Cuban Government in the United States to prevent acts of violence from being carried out.
The government has the burden of proving that the defendant acted with the requisite specific intent to violate the law and if it fails to do so, you must return a verdict of not guilty in favor of the defendant. Trial transcript at pp. 14613-14615. But merely defining a mental state requirement cannot substitute for instructions on affirmative defenses. See, e.g., United States v. Bailey, 444 U.S. 394, 402 (1980) ("necessity negates a conclusion of guilt even though the necessary mens rea was present"); id. at 425 (Blackmun, J., dissenting) (agreeing with the majority that "affirmative defenses of duress and necessity" are not taken into account by a "theory of intent"); United States v. Deleveaux. 205 F.3d 1292, 1298 (11th Cir. 2000) (rejecting the contention that an affirmative defense "negates the mens rea" and instead "requires proof of additional facts and circumstances distinct from the evidence relating to the underlying offense"). Moreover, the court's mere regurgitation of the theory of defense was wholly insufficient. Like another federal district court, the court below "instruct[ed] the jury generally on the defendant[s'] theory of the case," but "did not present [an affirmative defense] as grounds for acquittal, and did not indicate that the [affirmative defense] has a basis in the law." United States v. Newcomb, 6 F.3d 1129, 1132, 1139 (6th Cir. 1993). In the present case, as was true in the Sixth Circuit's judgment, "the fact that the court summarized [defendants'] theory of the case did not compensate for its failure to give [their] requested instruction .... The failure to give the type of instruction requested by the defendant[s] ... significantly impaired [their] case." Id. at 1139. The district court may well have been confused over the doctrine of necessity, which seems understandable given the legal muddle on affirmative defenses. To begin with, "[m]odern cases have tended to blur the distinction between duress and necessity." Bailey, 444 U.S. at 410. See Deleveaux, 205 F.3d at 1295 n.2 (refusing "to explore the distinctions between duress and necessity"). See also Joshua Dressler, Understanding Criminal Law 285, 299, 302 (3d ed. 2001) (noting confusion over duress/necessity distinction). Their proper placement within the two general categories of affirmative defenses, justification versus excuse, helps distinguish necessity from duress. "In the case of 'justification' what is done is regarded as something which the law does not condemn or even welcomes," Professor H.L.A. Hart asserted in his classic work on punishment. H.L.A. Hart, Punishment and Responsibility: Essays in the Philosophy of Law 13 (1968). As for excuses, "What has been done is something which is deplored, but the psychological state of the agent when he did it exemplified one or more of a variety of conditions which are held to rule out the public condemnation and punishment of individuals." Id. at 14. Or in Professor Robinson's pithy phrase, "Acts are justified, actors are excused." 1 Robinson, supra, at 101. See also Dressler, supra, at 205-19; Fletcher, supra, at 810-13; Sanford H. Kadish, Blame and Punishment 82 (1987). This classification is made concrete in the context of duress and necessity by, among others, Professor Joshua Dressler: As long as duress is recognized as an excuse defense, which it should be, it is important to see how the two defenses differ. The necessity defense-as one of its alternative names ("lesser evil" defense) reminds us-applies "when a person is faced with a choice of two evils and must then decide whether to commit a crime or an alternative act that constitutes a greater evil," and the person makes the right choice. In contrast, duress applies when the coercing actor's threats overwhelm the actor's will so that she makes the wrong choice, i.e., perpetrates an equal or greater evil. Dressler, supra, at 302-03 (citation omitted). See also 1 Robinson, supra, at 108-09.
The confusion over duress versus necessity has been exacerbated by the creation of the unfortunately misnamed defense of "justification." See, e.g., United States v. Rice, 214 F.3d 1295, 1297 (11th Cir. 2000) (listing elements of "justification" defense). At times, "justification" is described as a "broader defense" than necessity. United States v. Bell, 214 F.3d 1299, 1300 (11th Cir. 2000). At other times, "justification" is seen as "closely related" but distinct from necessity and duress, with courts "treat[ing] the three defenses separately." Gomez, 92 F.3d at 774 nn.5&6. At still other times, courts have used "justification" as a code word for duress, necessity, and even self-defense. See United States v. Posada-Rios, 158 F.3d 832, 873 (5th Cir. 1998); United States v. Harper, 802 F.2d 115, 117 n.1 (5th Cir. 1986); Deleveaux, 205 F.3d at 1295 n.2, 1299 (discussing United States v. Talbott, 78 F.3d 1183 (7th Cir. 1996); United States v. Hill, 893 F.Supp. 1044, 1045 (N.D. Fla. 1994). But there is no specific defense of "justification," just as there is no specific defense of excuse"- it is analogous to saying the crime of "misdemeanor." As just noted, justification is a category of affirmative defenses, not a defense in and of itself, an important point that only one federal court seemed to understand: The parties use the terms "justification" and "necessity" as if they were interchangeable. They are not. "Justification," and its counterpart, "excuse," are terms for general categories of defenses. "Justification" pertains to the category of action that is exactly the action that society thinks the actor should have taken, under the circumstances; "excuse," on the other hand, denotes a more grudging acceptance of an action, where society wishes the actor had not done what he did, but will not hold him blameworthy. Self-defense is an example of the former, while mistake of fact is an example of the latter. And "necessity" is also a particular example of a defense that, when proved, will justify the defendant's action, because "[t]he theory of necessity is that the defendant's free will was properly exercised to achieve the greater good and not that his free will was overcome by an outside force as with duress." Newcomb, 6 F.3d at 1133 (citations omitted). Even this opinion, however, felt obliged to use the term justification "in an attempt to avoid confusion." Id. As might be expected, these hopelessly confused precedents infected the case below. For instance, the prosecution argued against a necessity instruction by applying the Posada-Rios opinion, T.T. at 13577-78, a case that was not about necessity at all but instead one explicitly about duress. Posada-Rios, 158 F.3d at 873. A correct explication of the defense of necessity was most recently provided by the First Circuit: "The necessity defense requires the defendants to show that they (1) were faced with a choice of evils and chose the lesser evil, (2) acted to prevent imminent harm, (3) reasonably anticipated a direct causal relationship between their acts and the harm to be averted, and (4) had no legal alternative but to violate the law." United States v. Ayala, 289 F.3d 16, 26 (1st Cir. 2002) (quoting United States v. Maxwell, 254 F.3d 21, 27 (1st Cir.2001)). See also Hill, 893 F.Supp. at 1045-46 (articulating same test). Not only should the court below have given a necessity instruction predicated on this test, but Amicus believes that the evidence clearly demonstrated that the defendants would have been entitled to a favorable verdict based on this defense.
First, using virtually any moral hierarchy of harms or evils, preventing further terrorist violence-bombings, kidnappings, assassinations, and so on-clearly outweighs the actual conduct of the defendants: failing to register as foreign agents, possessing false identification, and surveilling exile terrorists and their organizations.
Second, the terrorist attacks were not just imminent, they were interminable, as demonstrated by evidence at trial and in Part I of this brief. "There's a conspiracy a day here," said a former "military chief" of Alpha 66, Tamayo, supra, at 11-and, of course, who would know better than the terrorists themselves? Moreover, the term
"imminent" should be interpreted in light of the reality of modern terrorism, as the White House itself has recently argued: “We must adapt the concept of imminent threat to the capabilities and objectives of today's adversaries.... [T]errorists do not seek to attack using conventional means. They know such attacks would fail. Instead, they rely on acts of terror and ... weapons that can be easily concealed, delivered covertly, and used without warning”. The National Security Strategy of the United States of America 15 (Sept. 2002), available at http://www.whitehouse.gov/nsc/nss.html .
Third, there was a direct causal relationship between the defendants' acts-gathering evidence about terrorist attacks-and the harm to be averted, the terrorist attacks themselves. And finally, there was no legal alternative open to the defendants and Cuba as a nation. Unlike other necessity cases, the defendants and the citizens of Cuba are (obviously) not enfranchised in the United States, they lack even an indirect or surrogate voice in the American political process, and Cuba and the United States do not maintain formal diplomatic relations with one another. Moreover, in the present case "a history of futile attempts revealed the illusionary benefit of the alternative." Hill, 893 F.Supp. at 1047 (quoting United States v. Gant, 691 F.2d 1159, 1164 (5th Cir.1982)). Over the course of decades, Cuba pleaded with the United States to prevent and prosecute exile terrorism against its people. The response by American law enforcement, as discussed above, was one of indifference. The only other "alternative" was to wait in terror for the next attack and then heal the wounded and bury the dead. This, of course, is no alternative at all.
In this case, the government emphasized the importance of “incapacitating” the defendants to carry out in the future any activity that could be damaging for the anti-Cuban terrorist groups. The Court declared: “The terrorist acts by others cannot excuse the wrongful and illegal conduct of this defendant or any other” and agreed to the governmental request, including in its sentence the following: “As a further special condition of supervised release the defendant is prohibited from associating with or visiting specific places where individuals or groups such as terrorists, members of organizations advocating violence, and organized crime figures are know to be or frequent.” (Transcript of Trial. 12/14/01, 12/27/01).
This position assumed by the Government and by the Court indeed protecting terrorism is a proof of the existence of a defense of necessity and justifies the behavior of the defendants.
Based on the foregoing arguments, this Court should reverse the defendants' convictions and remand for a new trial.
DATED: April 9, 2003
Professor Erik Luna