Wednesday, May 09, 2007

The Crux of the matter

I was looking over the 38-page ruling in favor of Luis Posada Carriles and it comes down to these lines from the end of the document:

This Court finds that the Government engaged in fraud, deceit, and trickery when it misrepresented to Defendant that the purpose of asking him such extensive questions about his means of entry into the United States, his conduct in Panama and Venezuela, and his use of various aliases and passports was merely to “clarify the record.” The Court ponders exactly which record the Government sought to clarify. The Government did not merely ask him questions directed towards a moral character determination. They questioned him extensively about bombings and other violent activities. The mere fact that they had to question him about bombings belies the argument that this was a routine naturalization interview.

Furthermore, throughout the interview, Millan attempted to advise Defendant to exercise his Fifth Amendment rights, yet invariably Bolanos, Ardinger, or Perry would retort “this is just for purposes of the record.” In addition to engaging in fraud, deceit, and trickery, this Court finds the Government’s tactics in this case are so grossly shocking and so outrageous as to violate the universal sense of justice. As a result, this Court is left with no choice but to dismiss the indictment.

III. CONCLUSION
The realm of this case is not, as some have suggested, terrorism. It is immigration fraud. Terrorism, and the determination of whether or not to classify an individual as a terrorist, lies within the sound discretion of the executive branch. It does not lie with this Court.

In 2006, the Western District of Texas saw 2,441 new criminal cases filed, a great number of which involve immigration charges. This Court, in particular, has been noted as having one of the heaviest criminal immigration dockets in the entire nation. As such, the issues with which this Court is currently faced are ordinary, not extraordinary. The Court routinely presides over trials and formulates sentences for defendants facing the same charges as those faced by the Defendant in this case. For example, a typical defendant convicted of all seven counts with which Defendant is currently charged would receive a maximum sentence of six to twelve months under the United States Sentencing Guidelines. In addition, any time that such defendant served in federal incarceration would more likely than not qualify such defendant for time served, or at the very least, probation.

As with each and every defendant who comes before this Court, Defendant in this case is entitled to certain rights under the United States Constitution. This Court will not set aside such rights nor overlook Government misconduct because Defendant is a political hot potato. This Court’s concern is not politics; it is the preservation of criminal justice.

For the reasons set forth above, Defendant’s Motion to Exclude Tapes and Transcripts (Doc. No. 82) is GRANTED and the transcript, interpretation, and testimony from the hearing are hereby excluded. Defendant’s Motion to Suppress Evidence (Doc. No. 80) is GRANTED and any and all statements that Defendant uttered during the course of his naturalization interview are hereby suppressed. Finally, the indictment is hereby DISMISSED. All remaining motions shall be DENIED as moot.

SO ORDERED.
SIGNED on this 8th day of May 2007.

KATHLEEN CARDONE
UNITED STATES DISTRICT JUDGE

2 comments:

Srcohiba said...

Again, despite what anyone says, the rule of law has been followed. Now I wonder what the liberals will say about this. The same folks who told us to accept the rule of law in decisions that went against us....

Lori said...

Henry I particularly love where she quotes the 5th Circuit Court's langauge used in United States v. Tweel
It starts at the bottom of Pg 28 and continues on Pg29;

Decency, security, and liberty alike demand that government officials shall be subjected to the same rules of conduct that are commands to the citizen. In a government of laws, existance of the government will be imperiled if it fails to observe the law scrupulously. Our Government is the potent, the omnipresent teacher. For good or for ill, it teaches the whole people by its example. Crime is contagious. if the Government becomes a lawabreaker, it breeds contempt for law; it invites every man to become a law unto himself; it invites anarchy. To declare that in the administration of the criminal law the end justifies the means[,] to declare that the Government may commit crimes in order to secure the conviction of a private criminal [,] would bring terrible retribution. Against that pernicious doctrine this Court should resolutely set its face.

The government broke the law and violated a person's rights guaranteed in our country. We'd be no better than Cuba, if the judge had allowed that.