Noriega Defense Scoring Points

The Miami Review

NORIEGA DEFENSE SCORING POINTS
By Susan Postlewaite – Review Staff Writer

Frank Rubino finds weak spots in early government witnesses.

Frank Rubino makes mark in early going

If the first two weeks of Gen. Manuel Antonio Noriega’s trial, on this is clear: Prosecuting him is easier than arresting him was, but not by much.

As testimony progresses, lead defense lawyer Frank Rubino—the former Secret Service agent and race car driver now trying the biggest case of his career—is doing more than hold his own against the tag team of four, sometimes five or six, government lawyers trying to prove the 10 trafficking, money laundering and racketeering charges against the former ruler of Panama.

First, Rubino got the jury he wanted—a middle-aged, educated and largely black panel, weighted toward people who might be predisposed to treat government assurances with skepticism. Screening jurors in advance with a questionnaire, he got all but two Hispanics removed—a lopsided mix for a Miami jury, but a sensible precaution in view of likely evidence that his client had conducted cordial discussions with Fidel Castro, a man roundly detested in the city’s Latin émigré quarters.

With the trial well under way, Rubino has vigorously attacked the government’s first four witnesses, managing point-by-point to discredit large blocks of their evidence. He has cast doubt not just on the testimony of the government’s seediest witnesses but even of its innocuous lead-off expert—a political scientist from the University of Wyoming who had written a book about Panama, and whose only task was to sketch out for the jury some of Panama’s history and geography, pointing out the Panama Canal and the border with Colombia on a large map.

Under Rubino’s cross-examination, the professor, Stephen Ropp, acknowledged that his book had devoted only two sentences to Noriega and that he was not an expert on Panama in the 1980s; that he erred in his testimony about the country’s wealth; and he was confused as to the way the military of Panama was organized after Noriega took power in 1983. Rubino ended, perhaps in an appeal to the eight black jurors, by getting Ropp to say that Panama had traditionally been ruled by the elite, which Rubino referred to as “rich white people.”

In a trial expected to last four to six months, such victories are minor. But the government’s case that Noriega took $4.6 million in bribes from drug smugglers to allow cocaine to be processed in Panama and shipped through its airports is no stronger than the credibility of the prosecution witnesses.

What the defense’s case will be is still a closely held secret; neither Rubino nor co-counsel Jon May will discuss it. May has been in and out of the courtroom on various defense tasks, leaving the courtroom work to Rubino.

And certainly, Rubino is scoring all the points. He has repeatedly tried to ask questions about Noriega’s links to the CIA, but each time has been blocked by prosecution objections. U. S. District Judge William M. Hoeveler holds frequent sidebar conferences to deal with the objections, meaning a substantial portion of the proceedings is actually taking place in private. The contents of those sidebar conferences, which ordinarily would be part of the public transcript, are being deleted along with other information the government declares classified.

Because the judge has ruled that the circumstances of Noriega’s arrest, including the U. S. military invasion of Panama, are outside the scope of the drug indictment—and thus can’t be admitted at trial—the government has what it wanted; a drug case.

That gives Rubino an opportunity to excel. As in most drug cases, the prosecution rests on a procession of seedy characters—largely convicted drug dealers like Medellin cartel Kingpin Carlos Lehder, people cooperating with the government in hopes of getting out of jail sooner or keeping out of jail altogether.

THE LAUDERDALE SMUGGLER

Max Mermelstein, a convicted drug smuggler from Fort Lauderdale who testified after the professor, was savaged on cross-examination by Rubino.

For more than a day, Michael P. Sullivan, the assistant U. S. Attorney who heads the government’s team, questioned Mermelstein about his business, propping up enlarged photographs of dozens of drug dealers and drug equipment for the jury to ponder. Mermelstein, wearing suit and tie, discussed his connections to the Medellin cartel in a businesslike fashion—how he had visited drug lord Jorge Ochoa at a Colombian hacienda, which he described as “a beautiful property” with a chicken hut, paved runway and bullfighting ring. He testified that be brought “pretty close to 56 tons” of Colombian cocaine into the United States, and that a half-dozen other “flight groups” were in the smuggling business.

But he mentioned Noriega only once, saying that he had never met the former dictator but had once seen a general ledger of cartel drug business in 1983 that “had Noriega’s name on top of it.”

On cross-examination, Rubino—speaking forcefully and loudly—depicted Mermelstein as someone who has admitted committing worse crimes than those Noriega is charged with.

MURDER IN A VAN

Mermelstein—who spent just two years and 21 days in jail and received a $250,000 bonus for cooperating with the government on one drug case—acknowledged on the stand that he helped plan the contract murder of drug informant Barry Seal in Louisiana. Another time, a man whom he called his “compadre,” Rafael Cardona, murdered someone in his van, Mermelstein testified.

Rubino: “Why were you driving the van?”

Mermelstein: “Cardona had come over and said that they just come from a party and they were both a little bit on the tipsy side and he didn’t want to have any worry about being stopped by the police or anything. So he asked me to drive him home.”

Rubino: “Mr. Cardona, then, I assume, was concerned that he did not want to violate the law by driving under the influence of alcohol. Is that correct?”

Mermelstein: “No, sir. He just didn’t want any involvement with the police unless he absolutely had to.”

Rubino: “And the reason he didn’t’ want any involvement with the police is because as you drive down the road in that van, Mr. Cardona pulled out a gun and in cold blood murdered Mr. Arles while you were driving the van. Is that not true?”

Mermelstein: “That is true.”

Rubino: “And then you pulled the van off to the side of the road, wherein the murder weapon was disposed of in a canal. Am I correct?”

Mermelstein: “Yes, sir. It was one of many stops.”

Rubino: “You stopped along the way to dispose of some of the bullets, too. Did you not?”

Mermelstein: “Yes sir.”

Rubino: “All the while you are driving with a dead body and blood all over the van, correct.”

Mermelstein: “Correct.”

Rubino: “Now, after you disposed of the bullets and disposed of the gun, what was the next thing you disposed of?”

At that point, Sullivan objected and the judge ordered the attorneys to a sidebar conference. Rubino apparently won: His final question on the subject was about the way Mermelstein disposed of the body.

THE FORMER BODYGUARD

Rubino scored again against the government’s third witness, Luis del Cid, the stocky former bodyguard and aide to Noriega for more than a decade. Del Cid was charged along with Noriega, but in December 1990, agreed to plead guilty to just one count.

Del Cid was a key witness for the government because of his close ties to Noriega. He was also the first witness the government presented who had even met Noriega and could link him to drugs and bribes. Describing himself as Noriega’s “errand boy” and testifying in his prison uniform, del Cid rarely gave an answer to assistant U. S. attorney Myles Malman that was more detailed than: “Correcto.”

At first Malman asked him to spell all the Spanish names, but when it became evident del Cid had difficulty spelling even his own name, Malman began providing the spelling himself.

Del Cid, with a simultaneous interpreter standing alongside the witness box, testified that in return for his agreeing “to tell the truth” the government offered him a maximum sentence of 10 years, instead of as much as 70 years.

On cross-examination, Rubino went after the plea agreement, catching del Cid in a discrepancy.

Rubino: “Did your lawyer—tell you that you could anticipate a sentence of approximately 30 months to three years?”

Del Cid: “No, he told me that that was up to his honor, the judge.”

Rubino let the matter drop, but returned to it the next day with a transcript of the December 1990 plea hearing in hand. It stated that the government would go along with a sentence of three years for del Cid.

Del Cid: “Now I remember that.”

Rubino: “Isn’t it true if you receive a three-year sentence you’d be better off than if you tried the case and won?”

Del Cid: “Correcto.”

Del Cid testified that he had lied to the attorney general of Panama about the 1980 crash of a plane in Panama that had been carrying arms to Nicaraguan contras. He lied, he said, on orders from his commanding officer.

Rubino confronted del Cid about is lying, eliciting this confused exchange:

Del Cid: “Well, see, the thing is that I had instructions and I was taken there by [the commanding officer] and I believed that when they take you there and they hold a gun to your head then you have to—declare what they tell you to.”

Rubino: “Tell the jury what kind of gun [the officer] was pointing at your head.”

Del Cid: “He wasn’t pointing a gun at my head, but he was packing a 9mm gun and those were the orders from the commander and when the commander gives an order, it has to be carried out to the letter.”

Rubino: “So, the statement you just made that they were holding a gun to your head is, in fact, not true?”

Del Cid: “Well, it is almost true because he was packing a gun in his holster, in his waistline, and I had to tell. I had to say what he was telling me was the truth.”

NO TRIP TO PARIS

Del Cid also testified that Noriega had flown from Paris to New York to Havana to meet with Fidel Castro to mediate a dispute over a May 1984 police raid on a cartel drug lab in Panama.

Rubino confronted him with Noriega’s passport and del Cid’s testimony began to crumble. Indeed, he could not have called Noriega in Paris to tell him of the drug raid, del Cid conceded; Noriega was in Panama at the time.

“It was a mistake,” he said.

Rubino cast further doubt on his credibility when he asked del Cid about his testimony that twice in 1983, Noriega sent him to pick up envelopes from pilot, Floyd Carlton that he said contained “drug money.”

On cross-examination, del Cid admitted that he didn’t see any money or even ask about it, and had never been told what the envelopes contained, but that “everyone knew he [Floyd Carlton] was into drugs.”

Government witness No. 4 was Eric Humberto Guerra, a money launderer who testified that his job was to meet airplanes carrying cash from the United States at the airport in Panama City. He testified for a third government prosecutor, assistant U. S. attorney Guy Lewis, that he met a jet every Tuesday in 1981 and ’82 that had flown in from Fort Lauderdale carrying $10 million to $15 million in cash. Panamanian Defense Force agents protected him as he delivered the money to banks and certain individuals, he said.

Rubino asked who, exactly, was getting the money, and Guerra responded he understood some payments went to ‘el jefe.” Who was “Jefe?” Rubino asked.

He responded, “el jefe maximo”—a common title for the head of state of Panama.

The problem? Noriega didn’t become the “maximum leader” of Panama until 1983—well after the period in which Guerra was making the airport pick-ups.

And Rubino had Guerra admit he’d never met Noriega. In fact, the strongest connection Guerra could make between Noriega and the money was that he once followed a courier carrying “el jefe’s money to Altos de Golf, Noriega’s neighborhood.

Rubino: “In truth and in fact, you don’t have the faintest idea where he [the courier] went, do you?”

Guerra: “Correcto.”