U.S. v. Arocena, 99
Decision Date | 03 December 1985 |
Docket Number | No. 99,D,99 |
Citation | 778 F.2d 943 |
Parties | UNITED STATES of America, Appellee, v. Eduardo AROCENA, a/k/a "Omar," "Napoleon," "Andres," "Alejandro Medina," "Victor," Defendant-Appellant. ocket 84-1390. |
Court | U.S. Court of Appeals — Second Circuit |
Michael L. Tabak, Asst. U.S. Atty., New York City (Rudolph W. Giuliani, U.S. Atty., S.D.N.Y., Stuart E. Abrams, Asst. U.S. Atty., New York City, of counsel), for appellee.
Richard B. Lind, New York City, for defendant-appellant.
Before LUMBARD, OAKES and NEWMAN, Circuit Judges.
Eduardo Arocena appeals from a judgment of conviction in the Southern District on September 22, 1984, after a six-week jury trial. The jury found Arocena guilty on twenty-five counts, including first degree murder of a diplomat; two conspiracies to murder diplomats; malicious damage by explosives to property used in commerce, with personal injury resulting; six counts of possession of unregistered bombs; two counts of conspiracy; and perjury before the Grand Jury. 1 Judge Robert J. Ward sentenced Arocena on November 9, 1984, to serve consecutive sentences of life imprisonment and thirty-five years' imprisonment; Arocena is presently serving these sentences. Arocena argues on appeal that (1) he is entitled to a new trial on the murder-related counts of the indictment because of an allegedly defective jury instruction on the defense of withdrawal, (2) he was unfairly prejudiced by the joinder of Count 21 of the indictment, which charged him with violating RICO, and (3) the evidence was insufficient to convict him of three of the counts of the indictment, relating to the bombing of an Aeroflot Airlines ticket office in New York City. We find that Arocena's arguments are entirely devoid of merit.
Although this lengthy record of the criminal activities of the leader of a terrorist group raises no questions serious enough to require much discussion, the unusual nature and extent of the activities merit a published account. Arocena, an escapee from Castro's Cuba, was the kingpin in a secret terrorist organization comprised of exiles and emigres dedicated to overthrowing the Castro regime. This group, called "Omega 7," sought to carry out their mission through bombings and murders, crimes that they financed by assisting drug traffickers and through extortion. The Omega 7 activities were directed primarily by Arocena, as he detailed in his lengthy confessions to the FBI. Although Arocena repudiated these confessions at trial, and instead advanced fantastic stories of his alleged mistreatment by the Government, the case against him was heavily supported by tape-recorded conversations between Arocena and an FBI agent, by the testimony of eighty-five witnesses, and by other physical and forensic evidence.
From 1975 to 1982, Omega 7 conducted a series of bombings in the New York metropolitan area that injured bystanders and damaged homes, businesses, and a church. The bombsites included Avery Fisher Hall, Madison Square Garden, JFK Airport, the ticket office of Aeroflot (the Soviet airline), and the Cuban Mission to the United Nations. Omega 7 also engineered the machine-gun murders of Cuban exile Eulalio Jose Negrin and Felix Garcia, a Cuban diplomat, and attempted a car-bombing murder of Raul Roa, another Cuban diplomat.
The FBI's first clue regarding the identities of the Omega 7 members came in 1980 when, within hours of an attempted bombing at the Cuban Consulate in Montreal, two Cuban exiles--Pedro Remon and Ramon Sanchez--were caught attempting to run the border back into the United States. The FBI knew Sanchez as an anti-Castro demonstrator from Miami. Upon investigation of Remon, the FBI learned that he had been arrested in New Jersey trying to break into a car and that he had shortly thereafter moved to Florida. Analysis of telephone records linked Remon with a longshoreman named Eduardo Arocena, who had also moved to Florida soon after the incident in New Jersey.
The FBI discovered that Arocena and Remon had rented cars at Newark Airport shortly before certain Omega 7 crimes, and that one of Arocena's cars had received a parking ticket across from the Cuban Mission on the day that Omega 7 murdered diplomat Felix Garcia. The FBI began physical surveillance of Remon, Arocena, and others, and also began court-authorized electronic surveillance of Arocena's home telephone and of Remon's car.
In September, 1981, Omega 7 bombed the Mexican Consulate in Manhattan. Arocena had rented a car at Newark Airport and had exchanged it shortly after the bombing, claiming that its brakes were defective. The FBI staked out the rental booth and saw Arocena return the replacement car and board the shuttle bus for the terminal. An FBI agent saw Arocena approach the ticket counter at Eastern Airlines and identify himself as "A. Medina," the alias used on his ticket.
In September, 1982, Arocena and other Omega 7 members were subpoenaed to testify before a Federal Grand Jury in the Southern District. None of the suspects was offered immunity, and all but Arocena pled the fifth amendment. Arocena, although he was repeatedly reminded of the penalties for perjury, denied throughout that he had used the alias "Alejandro Medina," that he had any connection with Omega 7, and that he had any knowledge of Omega 7 other than what he had read in the newspapers.
Following Arocena's Grand Jury appearance, the FBI urged him to cooperate with the Government, emphasizing that he could have serious problems if he declined. Arocena finally agreed, and on September 24, 1982, he had the first of several meetings with the FBI. After being advised of his constitutional rights, Arocena began to explain that he was Omega 7's founder, commander-in-chief, and bomb-maker. He said that he had organized Omega 7 in 1974, when he decided that the anti-Castro movement in the United States was all talk; he believed that the Castro regime must be violently overthrown.
In his meetings with the FBI over the following days, Arocena displayed an encyclopedic knowledge of the Omega 7 bombings. He told the agents that the New Jersey branch of Omega 7 had disintegrated as a result of a falling-out between Arocena and Remon, and that Remon, Sanchez, and others had formed a new group in Miami. Arocena said that the Miami group had access to 600-800 pounds of high explosives, and that he wanted to help the FBI stop the bombings that were certain to occur. Justice Department officials decided not to arrest Arocena until after he had gone to Miami to try to locate the explosives. On September 27, 1982, Arocena and the agents went to Miami on separate planes, and over the next few days Arocena made additional admissions.
Among the crimes Arocena admitted was the murder of Eulalio Jose Negrin, a member of the "Committee of 75," which had negotiated the release of political prisoners from Cuba. Because Arocena opposed any kind of diplomatic dealings with Cuba, in November, 1979, he directed Remon to murder Negrin, which Remon did--with a machine gun, in broad daylight, and in front of Negrin's thirteen-year-old son. Arocena also planned, in March, 1980, to murder Raul Roa, Cuba's Ambassador to the United Nations, by detonating a remote-controlled car bomb while Roa's car was on the FDR Drive. This plan failed, however, because the bomb fell off the car while Roa's chauffeur was parking.
Arocena also admitted having planned the September, 1980 murder of Felix Garcia, a diplomatic attache at the Cuban Mission. The plan called for Remon to drive a stolen car to the Mission and to execute Garcia and other diplomats, using the same machine gun he had used to kill Negrin. Arocena was to act as a back-up, riding in a rental car; he was supposed to pick up Remon after the murder was accomplished. Arocena claimed that he had attempted to call off this murder when Garcia arrived at the Mission without any other diplomats, and to this end had given Remon a "thumbs-down" signal from his car. According to Arocena, Remon gave him a contradictory "thumbs-up" signal, and drove away from Arocena's car. Later on that day, Remon machine-gunned Garcia to death.
Arocena told the FBI that, after the Garcia murder, Omega 7 planned the murder of Ramon Sanchez-Parodi, head of the Cuban Interests Section in Washington, D.C. On September 24, 1980, Arocena, Remon, and Eduardo Losada-Fernandez went to Belleville, New Jersey, to steal a car to use in the execution. Remon and Losada-Fernandez were caught stealing the car, however, and Arocena drove away to avoid arrest.
Arocena also admitted that he had committed numerous bombings. At midnight on December 28-29, 1978, he bombed Avery Fisher Hall to protest the booking of a Cuban performer. On March 25, 1979, Arocena and Remon placed a high-level explosive in a briefcase that they attempted to check aboard a TWA flight from JFK Airport to Los Angeles. Although Arocena claimed that this was merely a "scare tactic" to protest TWA's announcement of flight service to Cuba, the bomb did in fact explode on a baggage cart, causing extensive damage. On December 11, 1979, Arocena and other members of Omega 7 bombed the Soviet Mission to the United Nations, again causing substantial damage.
Arocena confessed that on January 13, 1980, he bombed the Padron Tobacco Company in Miami; on the same day, he ordered Remon and another Omega 7 member to place, at Aeroflot's 545 Fifth Avenue ticket office, a time-bomb that Arocena had built. Although Arocena approved of the execution of the Aeroflot bombing, he claimed to be upset that Remon had shot at a policeman who had given chase after the bomb exploded. On September 11, 1981, Arocena planted a bomb at the Mexican Consulate on 41st Street in Manhattan, while at the same time other Omega 7 members planted one of Arocena's home-made bombs at the Mexican Consulate in Miami.
Finally, Arocena admitted to the FBI agents that he...
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