UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA DANILO CURBELO GARCIA, individually, MAYLEN TURRUELLAS, his wife, YUNIS CURBELO, their daughter, and CARLOS RAFAEL MENA PERDOMO, individually.

CASE NO. 12-cv-21891-CMA FIRST AMENDED COMPLAINT

Plaintiff, JURY TRIAL DEMANDED v. AROLDIS CHAPMAN a/k/a ALBERTIN AROLDIS CHAPMAN DE LA CRUZ, individually, and JUAN ALBERTO CHAPMAN BENETT. Defendants. ______________________________________/ Plaintiffs, by and through the undersigned counsel, the LAW OFFICES OF AVELINO J. GONZALEZ, P.A., complaining of the Defendants, respectfully allege upon information and belief as follows: INTRODUCTION This is an action seeking damages for prolonged arbitrary detention and torture of Plaintiffs, DANILO CURBELO GARCIA and CARLOS RAFAEL MENA PERDOMO, committed by defendants AROLDIS CHAPMAN a/k/a ALBERTIN AROLDIS CHAPMAN DE LA CRUZ (“CHAPMAN”) and JUAN ALBERTO CHAPMAN BENETT (“BENETT”), their officers, directors, agents, servants and employees, acting in concert with, aiding, abetting, facilitating, soliciting, directing, orchestrating and conspiring with the Cuban government and its collaborators in the commission of these acts, in violation of the Law of Nations, the laws of the United States of America and of the individual states, including but not limited to the State of Florida. JURISDICTION 1.

The Court has subject matter jurisdiction over this case under the Alien Tort

Claims Act (ATCA) 28 U.S.C. § 1350 and the Torture Victim Protection Act of 1991 (TVPA) 28 U.S.C. § 1350, note,§ 2(a) and 28 U.S.C. § 1331 (Federal Question Jurisdiction), and 28 U.S.C. §

1332 (diversity jurisdiction). Plaintiffs also invoke the supplemental jurisdiction of this Court with respect to claims based upon the laws of the State of Florida and/or any other applicable jurisdiction pursuant to 28 U.S.C. § 1367. 2.

Plaintiff DANILO CURBELO GARCIA (“CURBELO GARCIA”) is a citizen of

the Republic of Cuba and a legal Permanent Resident of the United States. 3.

Plaintiff MAYLEN TURRUELLAS MENDEZ (“TURRUELLAS”) is a citizen of

the Republic of Cuba, who was granted Adjustment by the United States Immigration Services and is a citizen of the United States residing in the Miami, Florida. 4.

Plaintiff YUNIS CURBELO (“CURBELO”) is a citizen of the Republic of Cuba,

who was granted Adjustment by the United States Immigration Services and is a citizen of the United States residing in the Miami, Florida. 5.

Plaintiff CARLOS RAFAEL MENA PERDOMO (“MENA PERDOMO”) is a

citizen of the Dominican Republic, who resides in Santiago de los Caballeros, Dominican Republic. 6.

Defendant CHAPMAN is a United States Permanent Resident, whose permanent

residence is 2390 S.W. 106th Terrace, Davie, Florida 33324. 7.

Defendant BENETT is a Cuban citizen, who permanently resides in El Polo,

Frank Pais municipality, Holguin, Cuba. 8.

The amount in controversy, both individually and collectively, exceeds $75,000. THE PARTIES

9.

Plaintiff CURBELO GARCIA is a Cuban citizen, who is serving a 10-year prison

sentence in Cuba, under inhumane conditions, for a crime he did not commit because of Defendants’ false victim’s denunciation to officials from the repressive Cuban Departamento de Seguridad del Estado, Department of State Security, (herein after “DCSE”) and because of the false testimony Defendants presented against Plaintiffs at a sham trial, which followed no rules of evidence or due process, and which was deliberately skewed against Plaintiffs. Plaintiffs’ treatment in prison is cruel, degrading, unsanitary, and tortuous.

2

10.

Plaintiff TURRUELLAS MENDEZ is a citizen of both Cuba and the United

States, living in Miami-Dade, Florida; she is married to Plaintiff CURBELO GARCIA and, as a result of Defendants’ tortious actions in contravention of the laws of nations, she has suffered loss of consortium as well as emotional distress. 11.

Plaintiff MENA PERDOMO is a citizen of the Dominican Republic, who resides

in Santiago de los Caballeros with his parents, who must now take care of him. MENA PERDOMO was condemned to an 9-year prison sentence in Cuba, under inhumane conditions, for a crime he did not commit because of Defendants’ false victim’s denunciation to officials from the repressive DCSE and because of the false testimony Defendants presented against Plaintiff at a sham trial, which followed no rules of evidence or due process, and which was deliberately skewed against Plaintiff. Plaintiff’s treatment in prison was cruel, degrading, unsanitary, and tortuous 12.

Plaintiff CURBELO is a citizen of both Cuba and the United States, living in

Miami-Dade, Florida, with her mother, Plaintiff TURRUELLAS MENDEZ. Her father is Plaintiff CURBELO GARCIA, and as a result of Defendants’ tortious actions in contravention of the laws of nations, she has suffered loss of parental consortium, as well as emotional distress. 13.

At all times hereinafter mentioned, CHAPMAN was and is an internationally

acclaimed baseball player, and a Cuban citizen, who filed sworn victim’s declarations to DCSE against CURBELO GARCIA and MENA PERDOMO, which led to the arrest, detention and torture of those Plaintiffs. CHAPMAN defected from Cuba in 2009, was subsequently retained by the Major League Baseball team, the Cincinnati Reds, to play in the position of pitcher, and maintains a permanent residence in Davie, Florida. 14.

At all times hereinafter mentioned, BENETT was and is CHAPMAN’s father and

a Cuban citizen, who resides in Cuba. BENNET accompanied his son to file CHAPMAN’s victim’s declarations against Plaintiffs and filed a sworn witness declarations in support of his son’s sworn statements against CURBELO GARCIA and MENA PERDOMO, which led to the arrest, detention and torture of those Plaintiffs. 15.

At all times relevant herein, CHAPMAN conspired with named and unnamed

agents of the repressive DCSE and with the Cuban government to violate the laws of nations by

3

committing arbitrary and prolonged detention and torture of Plaintiffs, CURBELO GARCIA and MENA PERDOMO. 16.

At all times relevant herein, BENETT conspired with his son, with named and

unnamed agents of the repressive DCSE and with the Cuban government to violate the laws of nations by committing arbitrary and prolonged detention and torture of Plaintiffs, CURBELO GARCIA and MENA PERDOMO. 17.

At all times relevant herein, CHAPMAN aided and abetted named and unnamed

agents of the repressive DCSE and with the Cuban government to violate the laws of nations by committing arbitrary and prolonged detention and torture of Plaintiffs, CURBELO GARCIA and MENA PERDOMO. 18.

At all times relevant herein, BENETT aided and abetted his son, named and

unnamed agents of the repressive DCSE and with the Cuban government to violate the laws of nations by committing arbitrary and prolonged detention and torture of Plaintiffs, CURBELO GARCIA and MENA PERDOMO. VENUE 19.

Venue is proper in the Southern District of Florida pursuant to 28 USC § 1391 (a)

and (b) in that this is the judicial district in which a substantial part of the events or omissions giving rise to the claim occurred and Defendant CHAPMAN maintains a permanent residence in the state of Florida. ALLEGATIONS OF FACT COMMON TO ALL COUNTS The following allegations of fact are derived from Cuban public documents, from the Defefendants’ sworn DCSE declarations and the court testimony of CHAPMAN and his father, BENETT, in Cuban court, from witness testimony given in Cuban court, and eye-witness accounts of the events as they occurred, and from filed Court documents in the Republic of Cuba. 20.

The Defendants tortiously, intentionally, willfully, wantonly, maliciously,

knowingly, recklessly and negligently caused and/or otherwise proximately caused the arbitrary and prolonged detention and torture of CURBELO GARCIA and MENA PERDOMO, and/or injuries to TURRUELLAS MENDEZ and to CURBELO.

4

21.

The Defendants aided and abetted the DCSE and the Cuban government in

tortiously, intentionally, willfully, wantonly, maliciously, knowingly, recklessly and negligently and/or otherwise proximately causing the arbitrary and prolonged detention and torture of CURBELO GARCIA and MENA PERDOMO, and/or injuries to TURRUELLAS MENDEZ and to CURBELO. 22.

The Defendants conspired with the DCSE and the Cuban government in

tortiously, intentionally, willfully, wantonly, maliciously, knowingly, recklessly and negligently and/or otherwise proximately causing the arbitrary and prolonged detention and torture of CURBELO GARCIA and MENA PERDOMO, and/or injuries to TURRUELLAS MENDEZ and to CURBELO. 23.

The Defendants ordered, directed, initiated, solicited and facilitated the arbitrary

and prolonged detention and torture of CURBELO GARCIA and MENA PERDOMO, and/or injuries to TURRUELLAS MENDEZ and to CURBELO. 24.

The Defendants acted with the intent to assist in the violations of international

law(s) by the DCSE and the Cuban government and initiated and cooperated with them to assist in said violations. 25.

The Defendants’ acts had a substantial effect upon the success of the acts of the

DCSE and the Cuban government and their violation of international law(s). 26.

The Defendants had actual and constructive knowledge that their acts assisted in

the violations of international law(s) by the DCSE and the Cuban government. 27.

On July 30, 2008 CURBELO GARCIA was arbitrarily arrested and detained by

DCSE, in conspiracy with, ordered, directed, aided, abetted, solicited, and facilitated by CHAPMAN, who made the initial accusation against the Plaintiff on July 29, 2008 and signed a sworn victim’s declaration against the Plaintiff (attached as “Exhibit A” with translation, demonstrating that CHAPMAN belonged to the Communist Youth Union, “UJC”, the Committee for the Defense of the Revolution, “CDR”, and the Militia of Territorial Troops, “MTT”), and by BENETT, who attested as an eye witness to CHAPMAN’s initial accusation and signed a sworn eye witness declaration against the Plaintiff (attached as “Exhibit B” with translation, demonstrating that BENETT belonged to the CDR, to the Cuban Communist Party,

5

“PCC”, the MTT, and the Cuban Workers Union, “CTC”, and worked for the INDER). CURBELO GARCIA was detained in prison without a hearing or trial for almost six (6) months. 28.

On January 21, 2009, CURBELO GARCIA was convicted for an 10-year prison

sentence by the Cuban government, in conspiracy with, ordered, directed, aided, abetted, solicited, and facilitated by CHAPMAN, who testified as a “victim” against Plaintiff at trial on January 21, 2009, and by BENETT, who testified as CHAPMAN’s eyewitness on January 21, 2009. CURBELO GARCIA has so far spent more than four (4) years in prison, undergoing torture while his health continues to deteriorate, and his family continues to suffer. He is still currently still in prison. 29.

On July 19, 2008, MENA PERDOMO was arbitrarily arrested and detained by

DCSE, in conspiracy with, ordered, directed, aided, abetted, solicited, and facilitated by CHAPMAN, who made the initial accusation against the Plaintiff on or about July 15, 2008, and by BENETT, who attested as an eye witness to CHAPMAN’s initial accusation on or about July 15, 2008. MENA PERDOMO was detained in prison without a hearing or trial for almost eleven (11) months. His imprisonment led to his torture and due to the unsanitary conditions in prison, he became ill and had to spend some time in the hospital to treat his illness. 30.

On June 3, 2009, MENA PERDOMO was convicted for an 9-year prison sentence

by the Cuban government, in conspiracy with, ordered, directed, aided, abetted, solicited, and facilitated by CHAPMAN, who testified as a “victim” against Plaintiff at trial on June 3, 2009, and by

BENETT, who testified as CHAPMAN’s eyewitness on June 3, 2009. MENA

PERDOMO spent four (4) years in prison, undergoing torture while his health continued to deteriorate to the point where he lost all vision in his right eye, most of the vision in his left eye, renal failure, diabetic neuropathy on both of his legs, and was in danger of losing his left foot. He was released early due to his worsening health. FACTS LEADING UP TO CURBELO GARCIA’S ARBITRARY ARREST 31.

In July 2008, CURBELO GARCIA was an expatriated Cuban Citizen, who was

living in the United States. He lived in Miami-Dade County and made his livelihood through the operation of a small farm that served the surrounding community (Farm lease attached as “Exhibit C”). He had no experience, connection or relationship with the sports industry, nor was

6

he associated with any corporation, entity or individual involved in or related to the sports industry. 32.

Curbelo Garcia traveled to Cuba on July 18, 2008 to visit his family, neighbors

and friends. From July 18, 2008 until the date of his arrest on July 30, 2008, CURBELO GARCIA had been staying in the home of his parents, mother Delsa Garcia Gomez and father Mauret Curbelo Diaz. During his stay, his family, friends and neighbors had enjoyed themselves, socializing and catching up. 33.

On July 25, 2008, during a mandatory party organized the Comité de Defensa de

la Revolución, Committee for the Defense of the Revolution, (hereinafter “CDR”) CURBELO, who was present accompanying his parents since they were required to attend, entered into conversation with a friend and neighbor named Alejandro Manuel Medina Aguilera (“MEDINA”). During their conversation, they chanced upon a discussion of CHAPMAN’s attempt to escape from Cuba some months before CURBELO GARCIA’s visit, and how CHAPMAN was barred from participating in the 2008 Olympic games at Beijing, China as a result. It was during this exchange that MEDINA informed CURBELO GARCIA that MEDINA knew CHAPMAN socially and could introduce him to CHAPMAN, to which CURBELO GARCIA happily agreed. 34.

MEDINA, whose nickname is “HABANA”, asked CURBELO GARCIA to drive

him to Frank Pais so that MEDINA could collect sixty Cuban pesos ($60) that a man named Magnolis owed him for a pair of shoes that MEDINA had sold Magnolis. MEDINA told CURBELO GARCIA that while they were in Frank Pais, they could pass by CHAPMAN’s home and CURBELO GARCIA would be able to meet him. 35.

CURBELO GARCIA drove MEDINA to Frank Pais, driving his father’s car, a

Moskvitch, a soviet era car, and to CHAPMAN’s house, where only MEDINA exited the car and went into the house, whereupon he spoke with CHAPMAN and his family, who were present in the house. They spoke inside the house for approximately half an hour; CHAPMAN informed him that he was already training to play baseball again, and MEDINA asked CHAPMAN if he knew a man named Magnolis, who owed him money for the shoes MEDINA sold him, and when CHAPMAN answered in the negative, MEDINA told him that he had to leave.

7

36.

MEDINA returned to the car without Chapman, who CURBELO GARCIA had

been waiting to meet, and, without knowing the whereabouts of Magnolis, they decided to return to Holguin, with CURBELO GARCIA stating that if he had known that he was not going to meet with the famed baseball player, he wouldn’t have wasted the trip to Frank Pais and just given MEDINA the sixty Cuban pesos ($60) that were owed to him. 37.

On the following day, July 29, 2008, CURBELO GARCIA rented an Audi A4

because he intended to drive to Havana the next day to visit his wife’s relatives. On that day, he and MEDINA used the Audi A4 to travel to the nearby municipality of Mayari, Cuba, where CURBELO GARCIA had some friends. During that visit, CURBELO GARCIA’s friends asked him if he could transport their friends, a woman and a young girl, to Frank Pais. He agreed and drove them there just as the sun was setting. 38.

In Frank Pais, after dropping off his passengers, the woman and the girl, near a

military committee office, MEDINA said he saw CHAPMAN riding on a bike, and suggested they go to the location he appeared to be heading so that CURBELO GARCIA could meet CHAPMAN. 39.

Failing to locate CHAPMAN, they were on their way back to the car to return to

Holguin when MEDINA again spotted CHAPMAN heading toward them on his bicycle. They met approximately one hundred feet from the police station in Frank Pais, where MEDINA introduced CHAPMAN to CURBELO GARCIA. 40.

CHAPMAN and CURBELO GARCIA spoke for a few minutes, when

CURBELO GARCIA asked the famous baseball player when he would be leaving the country, to which, CHAPMAN responded that he had learned his lesson from his earlier attempt to leave and that he never intended to leave Cuba. CURBELO GARCIA told him that in the United States major league baseball players, who were not as good as CHAPMAN, were making millions of dollars. At that point MEDINA told CURBELO GARCIA to stop “eating shit”, which effectively put an end to his conversation with CHAPMAN. 41.

MEDINA then continued to speak with CHAPMAN for a few more minutes

while CURBELO GARCIA walked some distance away.

8

42.

On the way out of Frank Pais, an officer from the Revolutionary Police for the

Department of Interior, acting on an earlier accusation by CHAPMAN against CURBELO GARCIA and MEDINA, signaled for CURBELO GARCIA and MEDINA to step out of the car and to search the vehicle and their persons and papers. Finding nothing of interest, they were allowed to continue to Holguin. 43.

On July 30, 2008, he was arrested and put into prison.

44.

On July 30, 2008, MEDINA was also arrested and put into prison.

CURBELO GARCIA’S ARBITRARY AND PROLONGED ARREST AND DETENTION 45.

On July 30, 2008 CURBELO GARCIA was in his home of Holguin, Cuba,

staying with his parents’, when officials from the DCSE, acting upon the accusations of CHAPMAN and BENETT, arrested him and took him away without informing him, his family, or anybody else where they were taking him or why he was being taken away. The government held him in prison in Holguin for 12 days, transferred him to Villa Marista prison in Havana without notice to him or his family for several more days to investigate Defendants’ allegations against CURBELO GARCIA, and then returned him in the Holguin prison without informing him of the charges against him. 46.

After returning from Villa Marista in Havana, Plaintiff pleaded with his parents to

find an attorney and discover the charges against him. His parents attempted to glean any information about their son’s case, even requesting a meeting with the Chief Prosecutor for the Province, Pedro Pablo Cutiño Diéguez, who replied to their repeated entreaties by stating in one of their many visits that “if the Five Heroes [referring to five Cuban nationals, Gerardo Hernández, Ramón Labañino, Antonio Guerrero, Fernando González and René González, who in 2001 were convicted of espionage in a U.S. federal court] were still waiting so many years, it was of no consequence that you should wait longer”. 47.

While in detention CURBELO GARCIA was interrogated at frequent and

sporadic intervals, at any time of the day or night, and was never advised that he could have an attorney present at such interrogations, nor was he allowed to meet with an attorney until the day of trial.

9

48.

In detention CURBELO GARCIA was kept in constant discomfort, never fully

being able to relax or to sleep, as guards would wake him when they saw him drift off. Officials did not give him any information about why he was being held, nor was he brought before a tribunal, judge or hearing officer or offered bail. 49.

After approximately 4 months of being held in prison without charges or any

information about his situation, Plaintiff CURBELO GARCIA’s father finally sent a letter written by CURBELO GARCIA to Havana, to which officials in that city replied that CURBELO GARCIA was still being investigated for the crime of human trafficking and that a trial against him would be held in the month of December in the municipality of Moa. 50.

The trial date in December was postponed, but neither CURBELO GARCIA nor

his family were informed of that change until the trial was upon them. 51.

The trial was finally held in Holguin on January 21, 2009, almost six months after

CURBELO GARCIA’s arrest, having never spoken with his attorney, nor having come before a judge nor having had formal charges brought against him before the date of trial. CURBELO GARCIA’S SHAM TRIAL 52.

Just before the trial commenced, a messenger reported to CURBELO GARCIA’s

mother that Miguel Diaz Canel Bermudez, who at that time was First Secretary of the Communist Party for Holguin Province and who was later promoted in April 2009 to Minister of Higher Education, stated, “This conviction cannot escape from our grasp.” 53.

The trial was attended by CURBELO GARCIA’s parents, his extended family,

and his neighbors. 54.

The Cuban government was trying CURBELO GARCIA for human trafficking

under Title 15, Article 347.2 of the Cuban Penal Code, which states that “the same penalty (imprisonment from seven to fifteen years) will be incurred by any person who, without being authorized to do so and for profit, organizes or promotes exit from the national territory of people who are in it to third countries. 55.

The only evidence produced by the prosecution against CURBELO GARCIA was

the testimony of CHAPMAN and that of his father, BENETT, whose own testimony

10

contradicted CHAPMAN’s, and whose information he openly claimed was derived from what CHAPMAN himself had told him. 56.

Both BENETT and CHAPMAN contradicted their earlier sworn declarations, as

well as each other’s testimonies and CHAPMAN emphatically declared in open court that he had no intention of ever leaving Cuba. CHAPMAN fled from Cuba a few months after the trial. 57.

CURBELO GARCIA, on the other hand, presented the testimony of various

witnesses in his defense, including that of Lieutenant Luis Quesada Parra (“PARRA”), the leading police investigator for the DCSE in charge of investigating the case. 58.

PARRA testified that no evidence had been found to corroborate CHAPMAN

and BENETT’s accusations against CURBELO GARCIA. 59.

PARRA testified that there was no evidence of any plans to leave the country

illegally, and that even if CHAPMAN had accepted any such offer, that no flight would have been effectuated because no plans had been put into place. 60.

PARRA testified that there was no evidence to indicate that MEDINA

(described by CHAPMAN as “HABANA”) had called CHAPMAN, as CHAPMAN claimed. 61.

PARRA testified that CURBELO GARCIA had always been consistent in all of

his interviews, and that he believed that CURBELO GARCIA had been sincere throughout the investigation. 62.

During the five-minute recess directly following PARRA’s testimony, the

prosecuting attorney, Kenia Perez, approached PARRA and threatened him by telling him to “mind the consequences.” 63.

The testimony of MEDINA, who was the only eye-witness present during

CHAPMAN’s conversation with CURBELO GARCIA, challenged the Defendants’ version of events. 64.

MEDINA testified that CURBELO GARCIA met CHAPMAN on the night of

July 29, 2008 in Frank Pais, where he spoke for approximately two minutes with CHAPMAN, and where CURBELO GARCIA asked CHAPMAN when he would leave the country, to which CHAPMAN replied in a manner that MEDINA thought sounded aggravated, at which point

11

MEDINA told CURBELO GARCIA to stop “eating shit”, which ended CURBELO GARCIA’s conversation with CHAPMAN. 65.

MEDINA’s testimony at trial described the visit to CHAPMAN’s house on July

28, 2008. MEDINA testified that he convinced CURBELO GARCIA to drive him to Frank Pais to collect some money that was owed to him by a man to whom he had sold a pair of shoes. MEDINA testified that he told CURBELO GARCIA that he would introduce him to CHAPMAN during that trip, but that when he arrived at CHAPMAN’s domicile, MEDINA went inside the house, and CURBELO GARCIA waited in the car at all times during that visit and did not meet CHAPMAN, who never approached the vehicle. MEDINA further testified that CURBELO GARCIA grumbled to him that if he had known that he was not going to meet CHAPMAN, he would have simply paid MEDINA the money that was owed to him. 66.

CURBELO GARCIA presented testimony in his own defense that was

substantially similar to MEDINA’s, stating that, while he went to CHAPMAN’s domicile on July 28, 2008, he waited inside the car, and did not meet CHAPMAN until the next night, July 29, 2008, in Frank Pais. CURBELO GARCIA further testified that he simply asked CHAPMAN when he intended to leave Cuba, and when CHAPMAN had told him that he had learned his lesson from a previous escape attempt and never intended to leave Cuba, CURBELO GARCIA told him that in the United States, there were major league baseball players, who were not as good as CHAPMAN, who were getting paid millions of dollars. At that point, MEDINA (described by CHAPMAN as HABANA) told him to stop “eating shit”, which put an end to his conversation with CHAPMAN. 67.

Once all of the testimony had been presented, CURBELO GARCIA’s attorney,

CARLOS MANUEL PEREZ LEYVA (“PEREZ”) summarized the Cuban government’s dearth of evidence in trying CURBELO GARCIA. The state had not produced any evidence as to any plan effectuated by CURBELO GARCIA to effectuate CHAPMAN’s exit from Cuba or had not produced any evidence as to any profit gained from such a plan, the lead investigator on the case believed that CURBELO GARCIA had not committed the crime, and the government’s two witnesses, CHAPMAN and BENETT, gave testimony that was inconsistent and contradictory. 68.

Once the parties had rested, PARRA and CURBELO GARCIA’s attorney,

PEREZ, congratulated him and told him that he was as good as free.

12

69.

When the tribunal returned, they rejected all of the evidence presented in

CURBELO GARCIA’s defense and unilaterally condemned him based solely on CHAPMAN and BENETT’s testimony, specifically citing CHAPMAN’s athletic ability and his position on the Cuban National baseball team. 70.

The trial and sentencing, which condemned CURBELO GARCIA to ten (10)

years in prison lasted half a day. 71.

Several witnesses, who will be referred to as Jane Doe 1, Jane Doe 2, and John

Doe 1 for their own protection, were present during CURBELO GARCIA’s trial, witnessed the entire proceeding, the sentences, and the testimonies of all those testified that day, including the testimonies of CHAPMAN and BENETT. Those witnesses have since immigrated to Miami, and afraid to disclose their identities for fear of retaliation. 72.

CURBELO filed an appeal, which was denied on December 9, 2009 for failure to

present any new evidence in the matter. 73.

There are no further appeals or legal recourses CURBELO can make inside Cuba

to redress his situation. TORTURE OF CURBELO GARCIA 74.

Because CURBELO GARCIA had expatriated, specifically to the United States,

the Cuban government has subjected CURBELO GARCIA to the treatment reserved for enemies of the state or dissidents, rather than those reserved for criminals condemned for crimes against state security or even for common criminals. 75.

From the outset, the government has treated CURBELO GARCIA as a Cuban

citizen when it was convenient and as a foreigner when it did not suit its purposes to treat him as a Cuban citizen. a. Like foreigners, he was forced to pay for his own attorney using United States’ dollars, rather than Cuban pesos as all citizens are allowed, which drastically increased the cost of his defense. b. Unlike foreigners, he was not allowed to visit a foreign consulate, nor is he allowed extradition.

13

c. Like foreigners, he was transferred without notice to a prison in Granma, which is outside of Holguin and far away from his family, unlike the customary treatment for Cuban citizens, which is to leave them in the province where their families reside. d. Unlike foreigners, he is held with general population, rather than the prisons designated for foreigners. 76.

In prison, CURBELO GARCIA has had to suffer the following: a. Random beatings b. Punishment of Solitary confinement in dank, windowless cells that he shares with

rats and roaches and which have no mattresses or blanket when family members have complained about his treatment, his living conditions, or his sudden transfers. c. Being fed food that is spoiled, rotting, and covered in maggots. d. Prolonged deprivation of sun and open air for up to six months at one time. e. Regularly confined for twenty three (23) hours a day in a 4 foot by 6 foot prison cell with up to five other prisoners to the point where his skin became mottled and blotchy. f. Unsanitary conditions, where four to six men share the same cramped hot cell, are fed rotting food, and must relieve their bowels and bladders in a hole on the ground of the cell. No toilet paper, sanitary napkins or even scraps of cloth are provided. g. Denied adequate medical care, despite being a very sick man. h. Allowed visitors for only one hour every month. i. Confiscation of food or treats brought to him by his family. j. Arbitrary transfers to a prison in a different prison away from his family, who are the only ones that supply him with whatever inadequate medication they can gather to treat his medical conditions. 77.

CURBELO GARCIA is a very sick man, who has hypertension and renal failure.

Since the prison does not have the ability or the inclination to treat his ailments, CURBELO GARCIA depends on his mother to bring him any medication that she is able to scavenge or barter for on the streets in order to treat his high blood pressure. Even though the medications

14

may not be adequate for his condition, they are the only thing keeping him from dying. At one point he had a sustained systolic blood pressure level of 270 for a week due to the lack of medication. 78.

More than a year and a half after his incarceration CURBELO GARCIA’s wife,

TURRUELLAS MENDEZ, was finally able to visit him in prison for an hour and fifteen minutes. She was shocked at his transformation. He had lost more than sixty (60) pounds, his hair had gone gray apparently overnight, his skin was stained and mottled, he had what appeared to be liver spots on his hands, his lips were dry and cracked, he had a sustained fever, which he had had for several days, and he shivered uncontrollably. 79.

It was only after TURRUELLAS MENDEZ complained loudly and threatened to

take this treatment to the International press that the prison officials admitted CURBELO GARCIA into the prison infirmary, where he remained for three days. 80.

On at least two (2) separate occasions, officials from the Ministry of the Interior

and the Department of Immigration have visited him in prison and have told him that his situation and treatment would vastly improve if he signed an agreement to repatriate, to which CURBELO GARCIA responded with an emphatic no and informed the authorities that the moment he was released from prison, he would leave Cuba and never return. 81.

At least two eye-witnesses, MENA PERDOMO and a man who will be referred to

as John Doe 2 for his own protection, were incarcerated with CURBELO GARCIA, witnessed the state of his health and witnessed some of the acts of torture conducted against him in prison. These witnesses, who were able to flee Cuba, are willing to testify in court to the truth of these allegations. FACTS LEADING UP TO MENA PERDOMO’S ARBITRARY ARREST 82.

In July 2008, MENA PERDOMO was Citizen of the Dominican Republic, who

was living in Santiago de los Caballeros. Since 1998, he owned a business in the Dominican Republic, selling Cuban tobaccos, which he would legally personally purchase from Cuba. During the high tourism season in the Dominican Republic, MENA PERDOMO would travel at least five (5) times a month to Cuba in order to purchase tobaccos. He traveled to and from Cuba more than one hundred (100) times.

15

83.

MENA PERDOMO had no experience, connection or relationship with the sports

industry, nor was he associated with any corporation, entity or individual involved in or related to the sports industry. 84.

During his extensive travel to Cuba, MENA PERDOMO met and married Maria

Magaña Rigñak, a Cuban citizen whose family lived Cayo Mambi, in the municipality of Frank Pais. During the course of their marriage, MENA PERDOMO and his wife visited Frank Pais more than ten (10) times for holidays such as Christmas, for mother’s days, and to visit the carnivals that took place there every July. Even after their divorce, MENA PERDOMO continued his relationship with his Cuban in-laws, and still visited them when he was in Cuba. 85.

On July 7, 2008, MENA PERDOMO went to Cuba to conduct business and to

visit his former in-laws for the July carnivals that took place yearly in Frank Pais and the nearby municipality of Sagua de Tanamo, where MENA PERDOMO’s then new girlfriend lived. 86.

As was his custom when he was staying in Frank Pais, he stayed in the home of

his former in-laws. MENA PERDOMO’S ARBITRARY AND PROLONGED ARREST AND DETENTION 87.

On July 16, 2008, MENA PERDOMO was arrested while eating at a Cupet, a gas

station and small convenience store at the entrance of Frank Pais. Two agents from Immigration asked him if the white tourist’s car parked outside was his. When he answered in the affirmative, they asked him for identification and proof of the rental agreement. When he provided the requested documents, they asked him to go with them to the immigration barracks nearby. They kept him at the barracks for twelve hours without asking him any questions, and then took him, still under guard to a hotel to sleep for the night. 88.

The next day the officials took him to the immigration office in Holguin, where

they asked him questions about his visit to Cuba and what he had been doing since he got there. He answered their questions, which they verified in their records. 89.

While at the immigration office, they were joined by a colonel of the DCSE

named “Carlos”, who announced that this was Plaintiff’s first visit to Frank Pais and that he had traveled there in order to recruit the baseball player, Aroldis Chapman. Plaintiff informed him that he didn’t even know who that man was, and that he had visited Frank Pais on many

16

occasions during the preceding ten years and that he had traveled to Cuba on business more than one hundred (100) times. When the immigration officers verified that information on their records, the colonel did not respond, but instead instructed the immigration officers to release MENA PERDOMO to his care. The DCSE colonel took him away from the immigration officers at approximately 3:00pm 90.

When the colonel took him to the DCSE office in Holguin, he subjected Plaintiff

to intense interrogation, with a volley or repetitive questions, insisting that MENA PERDOMO had never visited Frank Pais or Cuba before. When Plaintiff asked the colonel to call his contacts in Havana to verify his extensive, frequent and repetitive tobacco purchases, or to call his former wife’s family to verify that he had married their daughter ten (10) years prior to the arrest and had come to visit Frank Pais frequently, or to check with immigration about his traveling history, the colonel responded that he “was not interested in that”. 91.

During the interrogation, the colonel would leave him for several hours and then

return to questioning him with the same questions he had asked before. 92.

Plaintiff was never advised that he could have an attorney present at questioning

and was denied access to any when he asked for one. 93.

That evening they took him to a room with a bed at the DCSE office. He was

already beginning to feel the ill effects of not taking his medication or eating properly, and informed the officials that he was diabetic and that he needed to take his medication daily. As a result, DCSE arranged for a medical doctor to visit and examine him. During his inspection, Plaintiff informed the doctor that his condition was kept controlled by taking a prescription medication called Glicomet once a day and eating a very specific and balanced diet. 94.

After the female doctor completed her medical inspection of the Plaintiff, the

doctor switched his medication because they did not have that particular medication in Cuba and informed DCSE that MENA PERDOMO required a very specific diet, which she laid out for them. 95.

The DCSE did not follow the doctor’s instruction as to his diet and just gave him

whatever food they had on hand. As a result, MENA PERDOMO’s condition deteriorated and he felt weaker and more ill.

17

96.

The next day, a prosecutor from Holguin visited Plaintiff and informed him that

they were going to keep MENA PERDOMO in custody while the authorities conducted investigation. When MENA PERDOMO asked what they were investigated, the prosecutor did not inform him about the nature of the investigation. 97.

On July 19, 2008, after three days of eating poorly and having been taken off of

his prescription medications, Plaintiff was in terrible shape, barely able to rise from his bed. DCSE Lieutenant Colonel Camilo Alcolea, came to take a very debilitated MENA PERDOMO to Havana, where they could more properly monitor his condition. They remained in Holguin that evening and set out for Havana the next day. 98.

In Havana, they took him to the Carlos J. Finlay military hospital, where he

remained a month. 99.

When he was released from the hospital he was taken to 'La Condesa' prison, in

Guines Municipality, in the countryside of Havana, where he remained in the prison infirmary until March or April of the following year, when they transferred him to Holguin province to attend the trial. 100.

During the month he spent in the Carlos J. Finlay military hospital and the more

than seven (7) months he spent in the infirmary in La Condesa, MENA PERDOMO was never informed of the charges against him, nor of what offense he was being investigated. 101.

Meanwhile, Plaintiff’s condition was so tenuous, that doctors in Havana

diagnosed him as to frail to travel to Holguin in January 2009 to attend a trial that had been scheduled for his case, and was forced to endure in Havana, until he was well enough to travel. 102.

By the time he was transferred to the prison in Holguin on March or April of

2009, the diabetic neuropathy caused by the inadequate medical attention and food he was receiving had already taken its toll on his body. At that time, he had already lost most of the vision in his right eye, his lower extremities had already atrophied at an alarming rate, and he already had kidney disease due to the mistreatment of his illness. Plaintiff was transferred directly to the prison’s infirmary. 103.

It was in the prison infirmary that Plaintiff learned of the charges against him

through the word of mouth of other prisoners, which included RAUL MAGAÑA (“MAGAÑA”),

18

his former brother-in-law, who had been arrested on the same day for the same alleged crime of Human Trafficking for the claimed attempt to entice Cuban baseball player, Aroldis Chapman, to leave the country to play baseball abroad. 104.

MENA PERDOMO, who had never met, seen, or spoken to CHAPMAN, was

baffled, but could get no further information about the case against them because the authorities had not issued to him the formal charges, which detailed what he was being accused. 105.

In the Holguin prison, MENA PERDOMO learned that there were several other

people, including CURBELO GARCIA, who were serving convictions in prison because CHAPMAN had accused them of attempting to smuggle him out of the country, and that CHAPMAN had a well-known reputation for being a snitch for the DCSE. MENA PERDOMO’S TRIAL 106.

Because he could not afford a private attorney, Plaintiff was provided with a

Public Defender, who met MENA PERDOMO for the first time ten (10) minutes before the start of trial. 107.

MENA PERDOMO’s trial was held on June 3, 2009, despite never having seen

the charges against him, and despite having no opportunity to meet with counsel to prepare a defense. MAGAÑA was tried as a co-defendant. 108.

It was during the course of the trial the Plaintiff learned of the formal charges

against him and of what crime he was alleged to have committed. 109.

CHAPMAN had filed a victim’s denunciation against MENA PERDOMO and

MAGAÑA on or about July 15, claiming that MENA PERDOMO and MAGAÑA had offered him money to smuggle him out of Cuba so that he could play in the Dominican Republic. Chapman’s accusation was reinforced by the witness declaration from his father, BENETT. 110.

During CHAPMAN’s testimony he claimed that he had run across MAGAÑA

while he was at the Carnival at Frank Pais, and that CHAPMAN had noticed a man, who he presumed was MENA PERDOMO, waiting in a white tourist’s rental car. CHAPMAN claimed that MAGAÑA offered to smuggle him out of the country so that CHAPMAN could play baseball the Dominican Republic and get paid a millions of dollars.

19

111.

CHAPMAN acknowledged during his testimony that he had never seen, met or

talked to MENA PERDOMO, but stated that MAGAÑA was working as his intermediary in trying to smuggle him out of the country. CHAPMAN stated that he met MAGAÑA in the carnival at Frank Pais on or about July 15, 2008, which is where he propositioned him to leave the country in order to play in the Domincan Republic. He further testified that MAGAÑA was there with MENA PERDOMO, who was waiting in a white rented tourist vehicle, which CHAPMAN could see. 112.

When the prosecutor asked CHAPMAN how much money he was offered,

CHAPMAN said that he couldn’t remember if it was two (2) million or eight (8) million or ten (10) million. When the prosecutor asked him how it was possible that he could not remember the amount of money he was offered, CHAPMAN replied by saying “I’ve been here so many times to testify [against other Defendants] that I get confused”. 113.

BENETT testified that his son, CHAPMAN, had come home on the night that he

went to the carnival and told his mother of the interaction with MAGAÑA, who he claimed was acting as intermediary for MENA PERDOMO, and that she then told BENETT the same information, whereupon CHAPMAN and BENNET went to DCSE and filed denunciations against MAGAÑA and MENA PERDOMO. 114.

When MAGAÑA testified, he stated that he was in the Frank Pais carnival on his

own and with a beer in his hand when he ran into CHAPMAN who was also holding a beer in his hand. Recognizing the baseball player, MAGAÑA shouted out to him, “Hey, Aroldis as good as you are, why don’t you play baseball in the Domincan Republic?” CHAPMAN did not respond and there was no further interaction between them. MENA PERDOMO was not at the carnival. 115.

When MENA PERDOMO testified, he stated that he was not in the carnival at

Frank Pais and that he had not gone to the carnival that year because he had a love interest in the nearby municipality of Sagua de Tánamo, where they also had a carnival and where he would go every day to visit with his love interest. 116.

Despite the undisputed testimony that CHAPMAN had never met, seen, or talked

to MENA PERDOMO, the Cuban court found him guilty of the Crime of Human Trafficking and sentenced him to 9 years in prison.

20

TORTURE OF MENA PERDOMO 117.

Because MENA PERDOMO was a foreigner he carried out his sentence at La

Condessa prison in Havana, which is reserved for foreign prisoners. For that reason, MENA PERDOMO’s deprivasions were not as sever as that of CURBELO GARCIA, but they were sever enough to be categorized as torture. 118.

During his entire sentence, he was confined to the prison’s infirmary because he

was never well enough to join the general population. 119.

In prison, MENA PERDOMO has had to suffer the following:

a. Being fed food that is spoiled, rotting, and covered in maggots. b. Prolonged deprivation of sun and exercise. c. Inadequate or denied medical care, despite being a very sick man. d. Arbitrary deprivation of benefits, such as a cooler to maintain healthy food obtained for him by his family, which his family conferred to him to help treat his illness. 120.

MENA PERDOMO had diabetes, which he kept under control by the use of

medication. When the Cuban security arbitrarily arrested him, their doctors removed his regimen of treatment, and placed him on medication, which never properly controlled his illness. As a result of this neglect, MENA PERDOMO’s decline was steep. a. Within the first year, diabetic neuropathy made itself known by the sudden loss of eyesight in his right eye and his legs showed a marked atrophy and he had difficulty walking. b. By the time he was released on humanitarian basis in April 2012, the neuropathy had damaged his kidneys irreparably, the eyesight in his right eye was completely gone, the eyesight on his left eye was severely impaired, and both his legs had atrophied to the point that he could not walk without the aid of a walker. c. Since his release he has had to amputate all of the toes in his right foot in an attempt to save the foot itself. 121.

MENA PERDOMO entered Cuban custody as a diabetic, but robust man, and left

it less than four years later as a cripple with multiple organ failure, who has had to slowly amputate parts of his body in an attempt to save his life. 21

THE DEFENDANTS’ INITIAL ACCUSATIONS, DECLARATIONS, AND TESTIMONIES 122.

In Cuba, before a criminal investigation is underway, a citizen or some other

person must make a denuncia or denunciation, which is a reporting of a crime or the making of an accusation against the suspect. Please see “Exhibit D”, British Embassy, Havana Consular Section,

Information

for

British

Nationals

Imprisioned

in

Cuba,

available

at

ukincuba.fco.uk/resources/es/world/doc1/Pris-Con (last visited on July 31, 2012), p. 6 123.

On or about July 29, 2008, CHAPMAN called his official contact at DCSE and

reported that CURBELO GARCIA and MEDINA had attempted to smuggle him out of the country so that he could play for a Major League baseball team in the United States. Please see “Exhibit E”, the Cuban Court’s written decision and sentence in Curbelo Garcia’s case, which stated that officers attempted to effectuate an arrest on the night of July 29, 2008 at Frank Pais because of information they had received about the suspects; and please refer to Exhibit B, BENNET’S signed declaration stating that his son told him that he would call “the official, whose number he knew” to report MEDINA and CURBELO GARCIA. 124.

On July 31, 2008, both CHAPMAN and BENNET, after having accused

MEDINA and CURBELO GARCIA of the crime of Human Trafficking, they went to the local DCSE office to put their accusations in writing and to sign them. 125.

During his DCSE declaration CHAPMAN reported an elaborate plan, where he

claims that CURBELO GARCIA, after having sought a meeting with him over several days, finally met CHAPMAN for the first time on July 29, 2008 in the central plaza in the nearby city of Frank Pais, where he claims that CURBELO GARCIA offered to surreptitiously take CHAPMAN by car from Frank Pais to an undisclosed safe house outside of Holguin province, he would then transfer CHAPMAN to another house, from where they would drive by car to a beach in Havana, where, according to CHAPMAN, they would have to do much walking to reach a location on the beach, where a motorboat would take CHAPMAN out of the country. 126.

CHAPMAN’s declaration states that he first met CURBELO GARCIA on July

29, 2008 and described his physical appearance as that of a Caucasian man of medium height. 127.

CHAPMAN stated in his declaration that CURBELO GARCIA assured

CHAPMAN on July 29, 2008 that he had the entire thing planned out and that CHAPMAN

22

would be well paid by an uncertain dollar amount, while he, CURBELO GARCIA, would only get a percentage of whatever CHAPMAN was paid once CHAPMAN was contracted in the United States. 128.

CHAPMAN declared to DCSE that on the night before the meeting in Frank Pais,

a couple of men, one of who was an acquaintance of CHAPMAN, known as HABANA (referring to MEDINA), had visited him at his home for a social call before heading off to find another man, whose name CHAPMAN could not remember and to go buy a telephone. CHAPMAN declared that the men chatted with him inside the house for about fifteen (15) minutes, before he walked outside with them to stand on the porch and to chat a few more minutes. He declared that there was another man in the car parked at the curb, but that he could not identify him. He did not report that any offers were extended to him that night, nor did he indicate that anybody approached him about leaving the country 129.

While BENETT’s July 31, 2008 declaration concurs with that of his son’s as to

the visit by HABANA (referring to MEDINA) and his unnamed companion to the house, the rest of the declaration differs from CHAPMAN’s in various startling respects. 130.

BENETT declared to the DCSE that after his son returned inside their house after

having walked the men outside, CHAPMAN told his father that the man known as HABANA (referring to MEDINA) had offered “to leave the country [Cuba] together [with CHAPMAN], that everything had been planned out, that there was a man, who would come to pick him up and get him out and that he [HABANA] would leave also, that the contract for him [CHAPMAN] to play baseball was already guaranteed and that they would pay him well, that according to Aroldis [CHAPMAN] the man [HABANA a/k/a MEDINA] would come and pick him up on the following day, Tuesday.” This is totally at odds with CHAPMAN’s declaration, where he stated that he was not made any offers. 131.

In the declaration, BENETT describes the physical appearance the men, who

visited his son at his home. He described the man who was CHAPMAN’S acquaintance [HABANA a/k/a MEDINA] as a short, stocky, black man, and he described the other man as being a slightly taller, slightly thinner dark man.

23

132.

BENETT further declared that CHAPMAN told him on Monday July 28, 2008,

that CHAPMAN intended to “call the official [of the DCSE] whose number he knows the next morning to inform him of the situation.” 133.

BENETT offered his accounting to DCSE of how CHAPMAN described the

person, who was offering to smuggle him out of the country, after he met the man in Frank Pais on July 29, 2008, the day following the visit to the Chapman house. BENETT declared that CHAPMAN told him that the man who was offering to smuggle him out of the country [presumably CURBELO GARCIA] was a tall white man, by contrast to the ones who visited the night before. 134.

CHAPMAN and BENETT’S trial testimony contradicted both of their earlier

DCSE denunciations as well as each other’s trial testimony. 135.

At trial CHAPMAN spun a tale that was vastly different than the one he supplied

in his DCSE declaration, but which never-the-less implicated CURBELO GARCIA of attempting to smuggle CHAPMAN out of the country. 136.

Despite having specifically stated in his declaration that he had not met the person

waiting in the car, and despite stating specifically that he had not met CURBELO GARCIA until July 29, 2008 in Frank Pais, CHAPMAN contradicted his own declaration by claiming that he walked up to the car that HABANA (referring to MEDINA) had been riding in on July 28, 2008, the night he visited CHAPMAN’s house, and that CHAPMAN talked to CURBELO GARCIA, who, spoke with CHAPMAN about having the telephone number of Dayan Viciedo (“Viciedo”), a different Cuban baseball player, and that he wanted to call Viciedo from CHAPMAN’s house the next day, but that he never came to his house. According to his trial testimony CURBELO GARCIA did not offer to take CHAPMAN out of the country that night. 137.

At trial BENETT contradicted his earlier declaration by testifying that CURBELO

GARCIA, which is described in all police, court documents, and by CHAPMAN, as a white man, was the man who accompanied CHAPMAN’s acquaintance to visit CHAPMAN at his house the night before CHAPMAN met him in Frank Pais, despite having described in his own declaration that the man who accompanied HABANA was a dark man, and despite his earlier declaration that CHAPMAN had told him that the man he met in Frank Pais was a white man, and a different person than the one who visited his house. 24

138.

At trial, BENETT reiterated his earlier assertion, which contradicted

CHAPMAN’s testimony and declaration, that his son told him that the people who visited him on July 28, 2008 had offered to smuggle him out that very night. 139.

The declaration and testimony of BENETT, and the testimony of CURBELO

GARCIA and MEDINA (described by CHAPMAN as “HABANA”), the only eye witness to the one and only conversation CURBELO GARCIA had with CHAPMAN on July 29, 2008, contradicted CHAPMAN’s testimony. 140.

On or about July 15, 2008, CHAPMAN and BENETT filed a denunciation against

MAGAÑA and MENA PERDOMO, which accused them of attempting to smuggle CHAPMAN out of the country so that he may play baseball in the Dominican Republic. 141.

During their testimony at trial it was clear that CHAPMAN had never met, seen,

or spoken to MENA PERDOMO, but they testified, none the less, that it was MENA PERDOMO, through MAGAÑA, who offered to smuggle him out of the country for untold millions. CHAPMAN stated that he could not state how many millions were offered to him because he had been to court so many times to testify against other defendants that he became confused as to the amount. 142.

At trail, BENETT testified that it was actually CHAPMAN’s mother who had

actually heard directly from CHAPMAN of the alleged meeting at the carnival in Frank Pais. CHAPMAN’S DEFECTION 143.

CHAPMAN attempted to illegally flee Cuba in March 2008. He was stopped by

police in that country before he could carry out his plan. 144.

Athletes, who attempt to flee the island, are generally removed from the National

Team and suspended from the National Series for a period of two years. Other Cuban baseball superstars, like Yadel Marti and Yasser Gomez, were suspended from the National Team and the National Series when they tried to defect in November 2008, and extraordinary players like Orlando “El Duque” Hernandez (“El Duque”), received a lifetime suspension for simply accepting money from an American agent. El Duque had previously been suspended from both the National Team and National Series because his brother, Livan Hernandez (also a major league baseball player) had defected.

25

145.

But in CHAPMAN’s case, he was taken to his own home, before being escorted

to Havana in order to meet and speak with Raul Castro, the Cuban president, who miraculously gave CHAPMAN a conditional reprieve, by personally suspending CHAPMAN only for the remainder of the National Series season and removed him from the National team that was traveling to Beijing for the Olympics. Please see “Exhibit F” Jorge Arangure, Jr., New world of hope

awaits

Chapman,

August

6,

2009,

available

at

http://sports.espn.go.com/mlb/news/story?id=4381376 (last visited on August 13, 2012) and “Exhibit

G”,

Wikipedia.com,

Aroldis

Chapman,

available

at

http://en.wikipedia.org/wiki/Aroldis_Chapman (last visited August 13, 2012). 146.

Despite the alleged suspension personally handed down by President Castro,

CHAPMAN was allowed to return to the National Series team in August, shortly after his declarations against MENA PERDOMO and CURBELO GARCIA, and he rejoined the national team when Cuba announced the National roster in early January 2009 for the World Baseball Classic, which was held in Mexico and in which CHAPMAN pitched for Cuba in March 2009. 147.

CHAPMAN fled from Cuba while traveling to Holland with the Cuban National

Team to participate in the World Port Tournament on July 1, 2009, less than six (6) months after testifying in CURBELO GARCIA’s trial and less than one (1) month after having testified in MENA PERDOMO’s trial. 148.

Despite his court testimony about having no intention of leaving the country,

CHAPMAN told the international press in July 2009, right after his defection, that from the moment of his first failed escape attempt, he became more determined to leave the country and he made the conscience decision to do everything he could to escape, that he would remain loyal to the government until his perfect day arrived, and that “it was a plan that I had, a decision that I made”. Please refer to Exhibit F. 149.

His decision to leave the country led to his methodical subterfuge, which centered

on demonstrating his loyalty to the state, which he accomplished by becoming an informant for the DCSE, and falsely reporting and testifying against CURBELO GARCIA and MENA PERDOMO. Refer to Exhibit F. HUMAN TRAFFICKING IN CUBA

26

150.

Every year the United States’ Department of State produces an annual Trafficking

In Persons Report. Every year since 2003, the United States in its report publicly accuses Cuba of condoning, perpetuating, and profiting from the Trafficking of Persons. The 2008 report contained the fifth such accusation, but not the last, as Cuba is still considered to be a hub of human trafficking. See “Exhibit H”, U.S. Department of State, 2008 Trafficking in Persons Report , pp. 102-103, available at http://www.state.gov/documents/organization/105501.pdf. 151.

Cuba strongly condemned and continues to condemn the accusations contained in

the reports, and launched a verbal attack against the United States, accusing the United States of promoting smuggling of Cuban citizens. 152.

Cuba began a campaign of accusing and condemning American citizens and

residents, mostly Cuban-Americans, of committing an offense under Cuban Penal Code 347.2, Trafficking in Persons, which states in relevant part that “any person, who is not so authorized and with the purpose of making money, organizes or promotes the exiting of the national territories of persons who are in the country for a destination to third parties” is guilty of Trafficking in person and shall be liable to sentences of between seven (7) to fifteen (15) years. [emphasis added] 153.

The statute is so vaguely written as to apply to almost any interpretation, as the

word “promote” within the law has been loosely applied to meet almost any conversation in which an accused may engage, and the law itself has been applied as a panacea to any and all cases that lack any physical and sometimes even testimonial evidence, including the case of a Cuban-American man, Yamil Dominguez, who was accused and condemned to ten (10) years in a Cuban prison under this statute for allegedly seeking to smuggle his girlfriend out of Cuba, something which clearly does not fit the plain meaning of the statute as there would be no fiscal remuneration involved in attempting to smuggle out his own girlfriend. CUBAN POLICIES DEALING WITH CUBAN-AMERICANS 154.

According to the Department of State’s Bureau of Consular Affairs, Cuba

maintains a totalitarian state, which relies on repressive methods control over the population, including severe physical and electronic surveillance as well as arbitrary detentions and arrests.

27

155.

Cuba does not recognize the Dual Nationality or Residency of U.S. Citizens or

residents born in Cuba, and the Bureau of Consular Affairs warns Cuban-American citizens, who travel to Cuba, that the travelers will be treated as a Cuban citizens, subject to Cuban laws. 156.

The Bureau of Consular Affairs further warns Cuban-Americans that, as travelers

to Cuba, they may even have their passports confiscated, be forced to apply for permission to exit the country, or even be compelled by authorities to sign repatriation documents and will be denied U.S. consular services if arrested. Please see “Exhibit I”, Department of State’s Bureau of

Consular

Affairs,

Country-Specific

Information

for

Cuba,

available

at

http://travel.state.gov/travel/cis_pa_tw/cis/cis_1097.html (last visited on August 7, 2012). 157.

Cuban-Americans traveling to Cuba are subjected to inconsistent treatment, where

they reside in a legal limbo, exposed to the same kind subjugation as all other Cuban citizens, but denied any of the privileges other Cubans enjoy, such as free healthcare and attendance within the Cuban hospitals provided for its citizens. THE CUBAN GOVERNMENT’S PRACTICES OF ARRESTS AND IMPRISONMENT 158.

The Ministry of Interior is the principal entity of state security and totalitarian

control. Officers of the Revolutionary Armed Forces (FAR) have been assigned to the majority of key positions in the Ministry of Interior in the past several years. In addition to the routine law enforcement functions regulating migration, controlling the Border Guard, and the regular police forces, the Interior Ministry's Department of State Security investigates and actively suppresses political opposition and dissent. It maintains a pervasive system of surveillance through undercover agents, informants, rapid response brigades (“RRB”), and neighborhood-based Committees for the Defense of the Revolution (“CDR”). The Government traditionally uses the CDR's to mobilize citizens against "dissenters," impose ideological conformity, and root out "counterrevolutionary" behavior. Please see “Exhibit J”, US Department of State: Country Report

on

Human

Rights

Practices

2010,

April

8,

2011,

available

at

http://www.state.gov/documents/organization/160160.pdf. 159.

The lack of human rights in Cuba is universally known and amply chronicled. The 2010

edition of the Country Reports on Human Rights Practices, which was submitted to the Congress by the U.S. Department of State, describes the Cuban governments disregard for their own Constitutionally mandated rules of procedure in the course of criminal detention. As much as 64

28

percent of pretrial detainees have spent weeks, months and sometimes, years without having ever seen an attorney or being informed of the charges against them. Bail is rarely granted and detainees have been held for months or years in investigative detention, where detainees can be interrogated at any time and have no right to request the presence of counsel. See id. See also, “Exhibit K”, Cuban American Bar Association, Law of the State v. State of Law, 2011, p. 8, available

at

http://www.cabaonline.com/pdf/CABA%20Annual%20Human%20Rights%20in

%20Cuba%20Report.pdf. 160.

Judicial Tribunals also disregard the constitutionally mandated treatment of

accused persons by placing the burden on the defendant to prove innocence rather than on the prosecution to prove guilt, and in fact, Tribunals frequently find accused individuals guilty of “potential dangerousness”, which requires the commitment of no crime at all, but instead is determined to be a special proclivity to commit crimes, which is demonstrated by the accused’s conduct in manifest contradiction of socialist norms. Please refer to Exhibit J. 161.

The report illustrates the detainment facilities deplorable state as follows:

Prison conditions continued to be harsh and life threatening. Food shortages were widespread, available food was often spoiled or infested with vermin, and many prisoners relied on family parcels of up to 30 pounds of food and other basic supplies that were brought during each visit. Prison cells lacked adequate water, sanitation, space, light, ventilation, and temperature control. Running water was rare and, if available, generally ran only for a limited time. Water for drinking and bathing was foul and frequently contaminated with parasites. Many prisoners reported receiving only one small glass of water per day, even when confined to sweltering cells during the summer. Vermin and insect infestations were common, with inmates reporting rats, cockroaches, fleas, lice, bedbugs, stinging ants, flies, and mosquitoes. Prisoners reported that they lacked access to basic and emergency medical care, including dental care. Prison cells were overcrowded, requiring prisoners to sleep on the floor and limiting freedom of movement during the day. Prisoners, family members, and nongovernmental organizations (NGOs) reported inadequate health care, which led to or aggravated hypertension, diabetes, heart conditions, asthma, skin disease, infections, digestive disorders, and conjunctivitis, among other maladies. The Cuban Commission for Human Rights and National Reconciliation (CCDHRN) reported multiple prison deaths from heart attacks, asthma attacks, and other chronic medical conditions, as well as from suicide. pp. 3-4. 162.

According to Cuban law, police or any non-specified authority may carry out

warrantless arrests of anyone accused of a crime against state security or of a crime that "has

29

produced alarm or has been committed frequently in the municipal territory." Please refer to Cuaban Criminal Procedure Code, Article 243. 163.

Cuba's Criminal Procedure Code allows the police and prosecutorial authorities to

hold a suspect for a week before any court reviews the legality of the detention. According to their written procedures, during the first week after an arrest, the police may detain the suspect for up to twenty-four hours (Cuban Criminal Procedure Code, Article 245). The prosecutorial investigator (instructor) then may keep the suspect in custody for an additional seventy-two hours, while deciding whether to pass custody of the suspect to the prosecutor (fiscal) or release him or her (Cuban Criminal Procedure Code, Article 246). The law grants the prosecutor an additional seventy-two hours to send the accused to jail, release him or her, or impose less-severe restrictions. Only if the prosecutor chooses to imprison the accused or impose other restrictions does a court review the legality of the detention (Cuban Criminal Procedure Code, Article 247). Please see “Exhibit L”, Human Rights Watch, Cuba’s Repressive Machinery Human Rights Forty Years After the Revolution, June 1999, Section III, p. 12-13, available at http://www.hrw.org/reports/1999/cuba/. 164.

Despite what is clearly written in its own code, however, in practice Cuban

officials often disregard their own legislative policies with impunity. Id., p. 2. 165.

The investigatory period, called the preparatory phase (fase preparatoria), begins

after the suspect has been arrested and officials begin to gather evidence to establish the facts of a particular incident. This phase is controlled by the Public Prosecution Service (PPS), but the enquiries may be carried out by the police inspector, the Department of State Security, or directly by the public prosecutor. Please refer to Exhibit D, p. 6. 166.

While the preparatory phase should not exceed 60 days, it may be extended to a

period of six months at the request of the inspector-in-chief. After six months, the case must be handed to the prosecutor, irrespective of progress, who may rule on a further period for completion of the preparatory phase. There may be no fixed limit for this extension and there is no right of appeal. The preparatory phase can take between 12 and 14 months to complete in serious cases. See id. 167.

Throughout the preparatory phase a suspect may be interrogated as often as

necessary and kept in a holding cell or prison as if he had been formally charged with a crime. 30

According to Cuban law, a suspect does not have the right to an attorney at this point of the proceedings because he or she has not been formally been charged with a crime because a centrual jurisdical assumption of the Cuban system is that no criminal case exists until the preparatory phase has demonstrated that a crime has been committed. Please see “Exhibit M”, Michalowski, R. and State University of New York at Albany, School of Criminal Justice, World Factbook

of

Criminal

Justice

Systems:

Cuba,

1997,

available

at

https://www.ncjrs.gov/pdffiles1/Digitization/169639NCJRS.pdf. 168.

Even if the Cuban authorities were to comply with their Rules of Procedure, the

Criminal Procedure Code grants judges broad latitude in determining whether to hold suspects in pretrial detention. Judges often abuse this authority with respect to government critics, such as the four members of the Internal Dissidents' Working Group who spent well over a year in pretrial detention without charge. Please refer to Exhibit L, Section III, pp 12-13. 169.

The law requires pretrial detentions when two vaguely defined circumstances

occur simultaneously: the judge is aware of "actions showing the existence of a deed that has the characteristics of a crime," and "sufficient reasons to suppose criminal responsibility for the crime by the accused, independent of the depth and quality of proof required." (Criminal Procedure Code, Article 252(1) and (2). Translation by Human Rights Watch). This provision sets a very low standard of proof for holding a suspect in pretrial detention. The law also fails to justify the deprivation of liberty on the grounds of the severity of the crime or the likelihood a suspect would flee, foregoing less severe measures that also would ensure that a suspect appears at trial. See Id. 170.

But arbitrary arrests and prolonged detentions are not the only violations of the

Criminal Procedural Code committed by the authorities. The authorities are also reported to frequently hold expedited trials, in which a suspect is arrested and tried and sentenced in a matter of days, sometimes in a matter of hours, without being provided with counsel and in close door trials. Please see “Exhibit N” The Inter-American Commission On Human Rights, 2011Annual Report, Chapter 5, p. 19, available at http://www.oas.org/en/iachr/docs/annual/2011/TOC.asp (last visited on August 13, 2012). 171.

In March and April of 2003 nearly 80 members of civil society were arrested.

They were tried and sentenced to very long prison terms ranging from 6 to 28 years. Those

31

arrested were tried in very short order - a few weeks, or even a few days, in trials that lasted less than a day and were not open to the public. Many defendants were not informed of the charges against them or allowed to see a lawyer until the day of the trial, as in the case of journalist Manuel Vázquez Portal. The accused were assisted by counsel who did not belong to an independent bar association. They were subsequently held in conditions affecting their physical and mental health. Please see “Exhibit O”, International Commission of Jurists, Country Report on

Cuba,

Attacks

on

Justice

2005,

July

11,

2008,

pp.

7-9,

available

at

www.unhcr.org/refworld/pdfid/48a9281a2.pdf; and “Exhibit P”, Situation of human rights in Cuba: Report submitted by the Personal Representative of the High Commission for Human Rights,

Christine

Chanet,

E/CN.4/2005/33,

4,

January

2005,

available

at

http://ap.ohchr.org/documents/sdpage_e.aspx?b=1&s=59&t=9. 172.

On April 2, 2003, eleven Cubans were arrested after having allegedly hijacked a

passenger ferry and forced the crew to sail towards the United States. Six days later on April 8, 2003, the Defendants were summarily tried and sentenced to death, life imprisonment or a range of prison terms. After the Defendants filed an appeal, the Supreme Court approved the Sentence, and the Council of State approved the sentence of the men scheduled for execution. Nine days after the initial arrest, on April 11, 2003, three of the accused were executed. Id. 173.

According to the Cuban Code of Criminal Procedure, the accused in these

circumstances should have benefited from a minimum of 20 working days to prepare their defense (art. 283) but, the trials were held, and all remedies exhausted, within the space of a week. Id. LACK OF REPRESENTATION AND IMPARTIALITY IN THE CUBAN LAW COURTS 174.

The Cuban legal system is run solely under the will and direction of the President

of Cuba, Raul Castro, and is based on the concept of socialist legality. Laws are interpreted and applied in whatever manner is required to achieve the socialist goals as defined by the Communist Party of Cuba (“PCC”). 175.

According to the Cuban Constitution of 1992, Articles 121, 122, the Judiciary is

subservient to the political branches of government and there are no independent courts to adjudicate issues of law and fact or to challenge government acts or the use of government power in any way. Laws are not enforced uniformly or at all, especially as they concern individual 32

rights available to Cubans. Please see “Exhibit Q”, Patallo Sánchez, Laura, Institute for Cuban and Cuban-American Studies, University of Miami, Establishing the Rule of Law in Cuba, 2003, pp.

3–6,

available

at

http://ctp.iccas.miami.edu/Research_Studies/LPatalloSanchez

RuleofLaw.pdf; See also, “Exhibit R”, a copy of the Cuban Constitution as translated by Cuba as translated by CUBANET.ORG, http://www.cubanet.org/ref/dis/const_92_e.htm (last visited on August 9, 2012). 176.

Article 121 specifically states that “The courts constitute a system of state bodies

which are set up with functional independence from all other systems and they are only subordinated to the National Assembly of People’s Power and the Council of State.” Please Refer to Exhibit R. 177.

Article 62 of the Cuban Constitution states in relevant part that “None of the

freedoms which are recognized for citizens can be exercised… contrary to the existence and objectives of the socialist state, or contrary to the decision of the Cuban people to build socialism and communism. Violations of this principle can be punished by law.” This amendment, in conjunction with Articles 121 and 122, effectively give the individual no guaranteed rights or indicate any specifically prohibited behavior since any behavior may be punished if it is deemed to run contrary to the Communist Party. Please refer to Exhibit R; See also, “Exhibit S” Human Rights Watch, New Castro, Same Cuba, November 2009, p. 32, available at http://www.hrw.org (last visited on August 13, 2012). 178.

Cuba currently rejects both separation of powers and judicial review and

concentrates virtually all power in the Council of State and the Council of Ministers. 179.

Additionally, the Law of Popular Tribunals (Law 82) states that courts “are

obligated to comply with … the instructions of a general nature originating from the Council of State,” which is Cuba’s 31-member executive body, which is presided over by President Raul Castro. Please see “Exhibit T”, Law of the Popular Tribunals, Gaceta Oficial de la Republica de Cuba, No. 82, 1997, http://www.gacetaoficial.cu/html/tribunes populares.html (last visited on August 9, 2012). 180.

Article 127 of the Cuban Constitution states that the Attorney General of the

Republic is:

33

the state body which has, as its fundamental objective, jurisdiction over the control and preservation of legality by ensuring that the Constitution, the law and other legal regulations are strictly obeyed by state agencies, economic and social entities and citizens; and representing the state in the promotion and exercise of public legal action. Refer to Exhibit R. 181.

Article 128 of the Cuban Constitution states that the Attorney General “is only

subordinated to the [National Assembly] and the Council of State” and that he or she “is given instructions directly from the Council of State.” Id 182.

Article 129 of the Cuban Constitution states that “the Attorney General of the

Republic and the assistant attorney generals are elected and subject to recall by the National Assembly of People’s Power.” Id. 183.

Article 130 of the Cuban Constitution states that “the Attorney General of the

Republic renders an account of his work to the [National Assembly] in the form and with the periodicity established by law.” Id. 184.

So, while the constitution grants the Attorney General that independent power to

oversee and guarantee the uniform enforcement of the constitution and the laws, those powers are necessarily voided by Articles 128, 129 and 130, which state Cuba’s highest legislative body, the National Assembly of People’s Power (“National Assembly”), has the authority to appoint and dismiss members of the Supreme Court, the attorney general, and all deputy attorneys general, and that the Council of the State, Cuba’s highest executive body and the center of all governmental power in that country, has the authority give the Attorney General, and by extension the entire juridicary, direct instructions. Refer to Exhibit S, p. 34. 185.

Under the constitution, judges and prosecutors must report at least once a year to

the National Assembly, which retains the authority to remove them at any time. Id. 186.

Similarly, municipal and provincial assemblies are empowered to receive reports

from the respective judiciaries and can appoint courts, and dismiss judges and prosecutors. Id. 187.

The process by which judges and prosecutors are appointed and removed

undermines the security of tenure as well as judicial and prosecutorial independence.

34

188.

As detailed in the Law on the Organization of the Judicial System “active

revolutionary involvement” is a pre-requisite for judicial appointment and only government supporters are selected as judges, which explains why a majority of the Supreme Court judges are members of the Cuban Communist Party. 189.

Under Article 4 in Title I - Principles And Warranties Of The Judicial System, of

the Law of Popular Tribunals (Law 82), among the principal objectives of judicial courts are to first “implement and enforce socialist legality;” to “safeguard the economic, social and political provisions of the Constitution;” to “prevent violations of law and antisocial behavior, suppress and reeducate those who engage in them and restore the rule of law when the rules have been violated;” to “raise the social legal consciousness in the sense of strict compliance with the law in their decisions by making the appropriate statements to educate citizens in the conscious and voluntary observance of their duty of loyalty to their country and respect the social rules.” Refer to Exhibit T. 190.

In short, the objectives of the courts, as established by Cuban law, is to enforce

the communist objectives of the state by implementing and enforcing “socialist legality”, by safeguarding the “political” provisions of the Constitution, by preventing violations of law and “antisocial behavior”, to “reeducate” those who have committed “antisocial behavior”, and to “educate” citizens in the observance of their “duty of loyalty to their country” 191.

Title I, Article 5 of the Law of Popular Tribunals (Law 82) states that in addition

to complying with the Constitution and other laws of Cuba, the courts “are obliged to obey…the general instructions from the Council of State, which is received through the Governing Council of the Supreme Court”. Id. 192.

With the above-listed objectives and directives, it is no surprise then that

Prosecutors are allowed to rely on hearsay evidence from members of the Committees for the Defense of the Revolution concerning the revolutionary background of defendants. Such evidence has been taken into account as an aggravating or mitigating factor during sentencing. Please refer to Exhibit J, p. 11; Exhibit L, Section VIII, p. 2-3, and; Exhibit W, attached below. 193.

According to Article 135 of the Cuban Constitution, the National Assembly is

determined by direct elections held every five years in which all Cuban citizens over the age of 18 have a right to be elected. Refer to Exhibit R. 35

194.

But the electoral process is undermined by a 1992 Electoral Law that requires that

the number of candidates on the ballot for the National Assembly equal the number of open positions. And to determine the candidates—one for each open position—a short list is drawn up by the National Commission for Candidacies, which made up of representatives from all of the major official mass organizations, such as the Cuban Workers Federation (CTC), the Federation of Cuban Women (FMC), Committee for the Defense of the Revolution (CDR), National Association of Small Farmers (ANAP), Federation of University Students, and Federation of Secondary School Students (FEEM). Please see “Exhibit U”, Jorge I. Dominguez, Government and

Politics

in

Cuba:

A

Country

Study,

2002,

p.

234,

available

at

http://www.people.fas.harvard.ehttp://www.people.fas.harvard.edu/~jidoming/images/jid_govern ment.pdfdu/~jidoming/images/jid_government.pdf. 195.

Since the final list of candidates equals the number of number of posts to be filled,

those nominated for candidacy are almost certain to be elected. 196.

The organizations responsible for drawing up the short list of nominees are those

who are approved and organized by the Communist Party and are an extension of the regime’s control. These organizations must receive official recognition from the Cuban government through the process expressed in the Law of Association (Law 54 of December 27, 1985); in accordance with Article 5 of the Cuban Constitution, which states that “the Communist Party of Cuba is the highest leading force of society and of the state, which organizes and guides the common effort toward the goals of the construction of socialism and the progress toward a communist society,” and; in accordance with Article 7 of the Cuban Constitution which states that

“the

Cuban

socialist

state

recognizes

and

stimulates

the

social

and

mass

organizations….These organizations gather in their midst the various sectors of the population, represent specific interests of the same and incorporate them to the tasks of the edification, consolidation and defense of the socialist society.” Please refer to Exhibit J, p. 17-18, and; Exhibit Q. 197.

But even if the membership of the National Assembly, which only meets for a

few days each year, was truly representative of a free and open election, that body does not hold any independent control, but acts merely as a figurehead of “representation”, which is subservient to the Council of State. Refer to Exhibit S, p. 35.

36

198.

The Council of State, a 31-member council that is headed by president Raul

Castro, is described by Article 89 of the Cuban Constitution as “the body of the [National Assembly] that represents it in the period between sessions, puts its resolutions into effect and complies with all the other duties assigned by the Constitution. It is collegiate and for national and international purposes it is the highest representative of the Cuban state.” Refer to Exhibit R. 199.

Article 90 of the Cuban Constitution lists the enumerated powers granted to the

31-member council as the power to: summon special sessions of the National Assembly of People’s Power; set the date for the elections for the periodic renovation of the National Assembly of People’s Power; issue decree-laws in the period between the sessions of the National Assembly; give existing laws a general and obligatory interpretation whenever necessary; exercise legislative initiative; make all the necessary arrangements for the holding of referendums called for by the National Assembly of People’s Power; decree a general mobilization whenever the defense of the country makes it necessary and assume the authority to declare war in the event of aggression or to approve peace treaties; replace, at the initiative of its president, the members of the Council of Ministers in the period between the sessions of the National Assembly of People’s Power; issue general instructions to the courts through the Governing Council of the People’s Supreme Court issue instructions to the Office of the Attorney General of the Republic; appoint and remove, at the initiative of its president, the diplomatic representatives of Cuba in others states; grant decorations and honorary titles; name commissions; grant pardons; ratify or denounce international treaties; grant or refuse recognition to diplomatic representatives of other states; suspend those provisions of the Council of Ministers and the resolutions and provisions of the Local Assemblies of People’s Power which run counter to the Constitution or the law or which run counter to the interests of other localities or to the general interests of the country, reporting on this action to the National Assembly of People’s Power in the first session held following the suspension agreed upon; revoke those resolutions and provisions of the local bodies of People’s Power which infringe the Constitution, the laws, the decree-laws, the decrees and other provisions issued by a higher body or when they are detrimental to the interests of other localities or to the general interests of the nation; approve its rules and regulations; it is also invested with the other powers conferred by the Constitution and laws or granted by the National Assembly of People’s Power. Id., Art 90-91.

37

200.

The president of the Council of State, which is the president of the Nation,

currently Raul Castro, is also the president of the Council of Ministers, which is Cuba’s main executive body, and essentially wields ultimate power over the executive legislative and judicial branches of government. Refer to Exhibit S, pp 35-36. 201.

There are no independent attorneys in Cuba. The legal profession in the island

consists mainly of lawyers who practice in state controlled law firms, prosecutors, and appointed judges who operate strictly within the parameters established by the governments. Lawyers do not operate independently as advocates, but rather, their mandated roles are to advance the goals of socialism as expressed in the socialist laws enacted by the government. Id. at 14. 202.

Persecutors are required to have “an extreme revolutionary sensibility” and apply

and enforce laws to achieve revolutionary goals” Id. 203.

In essence then, all legislative, executive and judicial power is held by Raul

Castro. He, along with the other 30 member of the Council of State, have the power to call the National Assembly, declare elections of the National Assembly, remove its members, pass laws, interpret laws, appoint Judges and prosecutors, and declare official organizations. CUBA’S PERVASIVE SNITCH NETWORK 204.

The first years after the Cuban revolution, were characterized with fear, violence,

and bloodshed. The new Castro regime set up an effective security network that consisted of both official and unofficial government agents, who would police the populace for anti-revolutionary crimes of deed, dissent, sentiment, or thought. Please refer to Exhibit L, Section VIII, pp. 2-3. 205.

While the police and other security officials would detain arrest, interrogate and

prosecute suspected “criminals”, the system depended on a larger and more pervasive snitch network throughout Cuba to provide the authorities with denunciations or accusations against individual citizens. Id. 206.

This revolutionary system revolved around the Committee for the Defense of the

Revolution (“CDR”), and turned neighbor against neighbor. Every community has a CDR, and every street in that community had at least one member of the CDR, whose duty it is to report the activities of his or her neighbors. These activities include the neighbors’ visitors, their comings and goings, their overheard conversations with others, their personal conversations with that

38

CDR member and their participation in communist activities. Please refer to Exhibit L, Section VIII, pp. 2-3.; Exhibit S, pp. 92-96; and Exhibit J, p. 13. 207.

The CDR is also responsible for organizing communist activities, gathering all of

the residents for pre-planned communist events, and becoming unofficial enforcers of the government’s policies, either by warning wayward residents about the consequences of their actions, or by carrying out acts of repudiation, which are public protests held outside the homes of perceived dissidents. As with all governmental acts, they are intended to humiliate and intimidate individuals and have repeatedly resulted in mob violence. Acts of repudiation last anywhere from several hours to a full day and the participants’ tactics include yelling insults and verbal threats, banging on pots and pans to create noise, throwing stones at homes and defacing them with insulting graffiti, illegally invading homes, and physically assaulting the inhabitants. Exhibit L, Section VIII, pp.2-3. Exhibit S at 92-96. See also, Exhibit J, p. 2. 208.

Even though such acts of repudiation are allegedly conducted by neighbors, many

of the participants are strangers, who arrive at the location of repudiation in state-owned vehicles, such as military trucks or public buses, which indicates that the groups are tightly aligned with the government and take their direction from the Communist party. Id. 209.

Many of these state-orchestrated "acts of repudiation" were directed against the

Ladies in White ("Damas de Blanco "), a group of mostly female relatives and supporters of political prisoners, many of those prisoners were arrested in the spring of 2003, later known as “Black Spring”. Please refer to Exhibit J, p. 2. 210.

On the week leading up to March 18, 2010, the seventh anniversary of the 2003

arrests against the political prisoners of Black Spring, the Ladies in White held daily marches to commemorate the anniversary. On March 16, the government bused in approximately 100 counter-demonstrators who surrounded the Damas and shouted insults and progovernment slogans. On March 17, the Ladies attempted to march through a neighborhood on the outskirts of Havana, but as the march progressed, approximately 300 progovernment counter demonstrators arrived on government buses, surrounded the Ladies, shouted insults, and physically assaulted the marchers. State security officers were observed coordinating with mob leaders. Eventually, the mob completely blocked the path of the Ladies, and police dragged the marchers, the Ladies, onto a waiting bus. Foreign diplomats also observed state security officials drag a male relative

39

of one of the marchers away, then repeatedly kick and punch him. All participants in the march, the Ladies, were detained briefly and then released without charges. Id. at pp 2 - 3. 211.

During the first half of 2010, the government also tried to prevent the Ladies from

staging their weekly march after Sunday Mass, which they had been doing since their spouses were arrested in 2003. Over the subsequent weeks the crowd of counterdemonstrators swelled in numbers and intensity and police prevented all but a handful of Ladies from reaching the church. a. On April 18, progovernment forces surrounded the Ladies as they left the church and prevented them from marching, screaming insults and obscenities while banging on pots and pans. b. On April 25, they again were surrounded after leaving church, forced into a nearby public park where they were assaulted, taunted, and prevented from moving for more than seven hours until state security officials finally put a halt to the attack and forced the Ladies onto a public bus. c. The standoffs only ended the following week, when Catholic Cardinal Jaime Ortega received assurances from President Castro that the Ladies would be allowed to resume their Sunday marches, indicating that the Castro regime had a hand in these “counter demonstrations”. Id. at p 3. 212.

While the CDR is the most visible civilian arm of the government’s snitch

network, it is not the only human means of surveillance and control of the populace. The Cuban government has also used informants to spy on their neighbors or to pose as dissidents to spy on the activities of unofficial groups that are critical of the state. Please refer to Exhibit L, Section VIII, pp. 2-3; Exhibit S, pp. 92-96, and: Exhibit J, p. 13. 213.

In the trials of the 75 dissidents in 2003, state prosecutors relied on the testimony

of infiltrators who had posed as opponents of the government to testify to the counterrevolutionary activities of their former colleagues. Several of the informants had been working clandestinely alongside dissidents for decades and had earned their utmost confidence. In the trials of ten dissidents in April 2004, a man who had been posing as a journalist, Manuel David Orrio, revealed himself as a government agent and testified against other nonviolent political activists. Id.

40

214.

Individual citizens, such as teachers, professionals, and sports figures are

undercover informants for the government. Please refer to Exhibit L, Section VIII, pp. 2-3. 215.

All official sporting activities in the municipal, provincial, and national levels, be

they in schools, for minors or in “amateur” teams for any and all sports are organized by the National Institute of Sports, Physical Education and Recreation (Instituto Nacional De Deportes, Educación Fisica, y Recreación) (“INDER”). 216.

The INDER works closely with DCSE and national security. The DCSE

maintained a snitch network of athletes, in every team, at every level, in each individual sport. These snitches would report to their individual handlers any tidbit of information they found suspicious. 217.

Only the official to whom the athlete reports knows which athletes act as snitches.

218.

Becoming a snitch for the government is not compulsory, it is voluntary and the

benefits for athletes are undisputed. A proven snitch, who actively reports on other players, other citizens, or foreigners within Cuba is classified by the Cuban security as “trustworthy” or “of confidence”, and that player will then be watched less closely and allowed to travel. Players who are not “trustworthy” or are not “of confidence” are not allowed to travel. Please see “Exhibit V” Affidavit of Gregorio Miguel Calleiro, former Director of INDER. 219.

Cuba does not prosecute or imprison athletes who attempt to flee the island.

Instead, they are removed from the National Team and suspended from the National Series for a period of at least two years or they are suspended or banned from whichever in which they engage. a. Orlando “El Duque” Hernandez (“El Duque”), received a lifetime suspension for simply accepting money from an American agent. El Duque had previously been suspended from both the National Team and National Series because his brother, Livan Hernandez (also a major league baseball player) had defected. El Duque was never prosecuted or imprisoned, but was never allowed to play in Cuban baseball again. He fled the island in December 2007, fourteen months after his ban had been issued. b. Along with El Duque, Alberto Hernandez, a catcher in the Cuban National League, received a lifetime ban from playing baseball in October 1996 after allegedly

41

accepting money from an American Agent. He was never prosecuted or imprisoned, but was never allowed to play Cuban baseball again. He fled Cuba with El Duque in December 2007, fourteen months into his ban. c. German "El Imán" Mesa, former shortstop for the Industriales of the Cuban National League and for the Cuba national baseball team, was banned from Cuban baseball in October 1996 along with El Duque and Hernandez, for allegedly taking money from an American sports agent. He was never prosecuted or imprisoned. His ban was eventually lifted, but only after he had been suspended for two playing seasons. d. Yadel Marti, a pitcher for the Cuba national baseball team and the Industriales of the Cuban National Series, was suspended from the National Team and the National Series when he tried to defect in November 2008. He was not prosecuted or imprisoned, but received a lifetime ban. He successfully defected from the island in December 2009. e. Along with Marti, Yasser Gomez, a midfielder from the Cuba national baseball team, was suspended from the National Team when he tried to defect in November 2008. He was not prosecuted or imprisoned, but received a lifetime ban. He, along with Gomez, successfully fled the island in December 2009. f. On July 22, 2007, Guillermo Rigondeaux Ortiz, a Cuban bantamweight boxer, attempted to defect from Cuba during the the Pan American Games in Brazil. However, on August 2, 2007, Rigondeaux was taken into police custody and returned to Cuba, where Fidel Castro declares him to be a traitor and bans him for life from boxing. He was not prosecuted or imprisoned, but was not allowed to participate in the sport. On February 2009, 18 months after his ban from the sport, Rigondeaux escaped from the island with smugglers to Mexico City. g. On July 22, 2007, in the company of Rigondeaux, Erislandy Lara Santoya, a Cuban welterweight boxer, attempted to defect from Cuba during the the Pan American Games in Brazil. However, on August 2, 2007, he was taken into police custody and returned to Cuba, where the government sentenced him a lifetime ban from boxing. He was not prosecuted or imprisoned, but was not allowed to participate in the sport, which led him to a second defection attempt in March 2008, this one successful, this one using speedboats from the island, which took him to Mexico. 42

220.

By contrast, CHAPMAN was banned from the baseball for a mere five months

before being allowed back on both the National Series team and the national team, and in January was already listed on the roster to play at the World Baseball Classic in Mexico. He was able to accomplish this miraculous feat by becoming a competent informant for the government. 221.

When CHAPMAN was captured attempting to flee the island on March 2008, he

was automatically considered untrustworthy by government officials. As was the custom, Chapman was not prosecuted or imprisoned. Instead was taken to meet with President Raul Castro. It was at that time that CHAPMAN became an informant for the state in order to recuperate his standing as trustworthy or “of confidence” with state security so that he could attain his ultimate goal of escaping from Cuba. PRISON CONDITIONS IN CUBA 222.

The subhuman conditions endured by CURBELO GARCIA are not unique to his

prison, although the worst punishments are generally reserved for dissidents expatriated Cubans, those who refuse to sign repatriation documents or those who to accept the Cuban governments attempts at indoctrination or retraining. 223.

The conditions of Cuban prisons are deplorable for all inmates, but they are

particularly harsh for those inmates who are considered dissidents, those who criticize the government, those who complain of their treatment, or those who refuse to engage reeducation. 224.

Many of the human rights abuses that occur in Cuban prisons are tantamount to

torture. Please refer to Exhibit J, pp. 3-6; Exhibit L, and; Section VI; Exhibit W. 225.

All prisoners are subjected to malnourishment, scarcity of food, inadequate

medical care, overcrowded four foot by six foot cells with no airconditioning or heat, where they stuff anywhere from four to six men to a cell, where they must share a common toilet that is no more than a hole on the floor and for which there is not toilet paper. Please refer to Exhibit J, pp. 3-6; Exhibit L, Section VI, and; Exhibit S, p. 6. 226.

But special horrors are reserved for prisoners like CURBELO GARCIA, who is

treated like a dissident, because he is an expatriate, who refuses to sign repatriation papers, speaks badly of the regime, complains about the conditions of his confinement, and refuses to engage in reeducation.

43

227.

Prisoners like CURBELO GARCIA are punished for their dissent by being kept

imprisoned in their cells for 23 out of 24 hours a day, by beatings, by arbitrary prison transfers to locations far from his family, by being served food that is spoiled, rotting, and covered in maggots, by being deprived of sunlight for up to six months out of a year, and by being placed in solitary confinement in a dank windowless concrete cell with no mattress or even a blanket when he or his family complain to the authorities about his treatment. 228.

For CURBELO GARCIA the torture is magnified because he is a severly ill man,

who suffers from sever hypertension and renal failure. He does not receive medical treatment in prison, but must depend on the medication his mother can get for him on the street and what food she can bring him when she visits. In light of his absolute reliance on his mother to bring him what he needs, the arbitrary prison transfers away from his family are an additional unnecessary display of cruelty and control. 229.

Prison guards or groups of common prisoners known as prisoners' councils, which

act under the orders or with the acquiescence of prison authorities, punish outspoken Cuban political prisoners with beatings. Refer to Exhibit L. 230.

The conditions described above are well known by the Cuban community at large,

as evidenced by news articles published about it inside Cuba, and through well-publicized testimony from prisoners’ families, who are left to provide all of the prisoners’ necessities any way they can. THE CUBAN GOVERNMENTS DOCUMENTED CASES OF ARBITRARY ARREST AND PROLONGED DETENTION, SHAM TRIALS, AND TORTURE IN PRISON 231.

As has been amply documented by credible organizations such as Human Rights

Watch, Amnesty International, the United Nations, The Inter-American Commission on Human Rights, and the United States Department of State, Cuba has consistently violated Human Rights norms and has subjected thousands of individuals to inhumane treatment, arbitrary deprivation of freedom through warrantless arrests, prolonged detentions without charges and sham trials. In detention, both before and after conviction, the prisoners must endure torture. 232.

On July 16, 1997, police arrested Martha Beatriz Roque Cabello, René Gómez

Manzano, Félix Bonne Carcassés, and Vladimiro Roca Antúnez four leaders of the Internal Dissidents' Working Group (Grupo de Trabajo de la Disidencia Interna, GTDI) for encouraging a

44

boycott of elections planned for late 1997 during a press conference they held on May 5, 1997. The government sent the leaders to four separate prisons, where they were held with violent criminals. Cuba only charged the four leaders with a crime in September 1998, after they had spent more than a year in prison. 233.

On May 8, 1997, the Cuban government arrested Reynaldo Alfaro García, the

vice-president of the Association for the Struggle Against National Injustice and also a member of the Democratic Solidarity Party, and detained him without trial for more than a year, much of that time in the Valle Grande Prison in Havana province. On August 28, 1998, a Havana court sentenced Alfaro García to three years for spreading false information against international peace, a state security crime in Cuba's Criminal Code, because he read a letter he helped compose that denounced the beating of prisoners and called upon the National Assembly to free prisoners held for crimes against state security for a Radio Martí transmission on May 7, 1997. 234.

On 4 March 2002, Juan Carlos González Leiva, a blind human rights lawyer

involved with a number of civil society organizations, was arrested during a peaceful demonstration. He was detained without charge for 25 months until his trial on April 10, 2004, where he was found guilty of Restricted Freedom. During his detainment, he was denied medical care for his blindness, he was beaten, and his health deteriorated. 235.

On July 22, 2005, Rene Gomez Manzano, a lawyer by trade whose license was

not renewed after he became active in unofficial groups critical of the government, was arrested for participating in a small, peaceful protest. Although he was never formally charged with a crime, nor taken to trial, Gomez spent more than a year and a half in prison with convicted prisoners until his release on February 8, 2007. 236.

In December 2007, Vladimir Alejo Miranda, a human rights activist in Havana,

was detained after carrying a sign in public demanding the release of political prisoners. He was held with convicted prisoners in Aguica prison in Matanzas until October 23, 2009, when he was released after 22 months. He was never taken to trial. 237.

Dr. Darsi Ferrer Ramirez, a human rights activist in Havana, was arrested on July

21, 2009 and sent to Valle Grande prison in Havana. He did not receive a trial until June 22, 2010, 11 months after his arrest, on trumped up charges of "receiving stolen property," for

45

allegedly buying some cement to make repairs to his home. Amnesty International adopted Dr. Ferrer as a prisoner of conscience. 238.

On July 10, 1997, Cuban authorities detained Lorenzo Paez Núñez, a journalist

with the Independent Press Bureau of Cuba and the president of the José de la Luz y Caballero Nongovernmental Human Rights Center, and Dagoberto Vega Jaime. On July 11, only six days after they were detained, the Municipal Tribunal in Artemisa found both guilty of defaming the police and contempt for authority. The court sentenced Paez Núñez to eighteen months and Vega Jaime to one year in prison. The government did not permit either defendant to name a defense attorney. The court found both defendants guilty of defaming a former Interior Ministry official by alleging that he beat several youths. In rendering this decision, the court ignored testimony the youths reportedly provided confirming the defendants' allegations. The contempt of authority charge reportedly arose after Paez Núñez described an ongoing police search to a contact in Miami who later broadcast his interview on a radio station accessible to Cubans. Even though Vega Jaime appeared to have no role in this incident, the tribunal found him found him guilty of contempt. A Havana tribunal ratified the sentence on July 24. 239.

In November 1997, a Cuban court in Cienfuegos sentenced Bernardo Arévalo

Padrón, a journalist with the Linea Sur Agency, to six years in prison for contempt for the authority of Fidel Castro and Carlos Lage, a member of the Cuban Council of State, because of comments Arévalo Padrón made during an interview at a Miami radio station, where he accused Castro and Lage of lying due to the Cuban government's failure to uphold the Viña del Mar Declaration, a document signed by Castro at the Sixth Ibero-American Summit, which was held in Viña del Mar Chile in November 1996. During his imprisonment, prison guards beatArévalo Padrón, held him in an isolation cells, and refused to provide him with medicine brought by his family members. Id. 240.

On December 10, 1998 Cuban police arrested Lazaro Constantin Duran, the

leader of the Friends Club of the Collect of Independent Teachers, when he was participating in a celebration of the fiftieth anniversary of the Universal Declaration of Human Rights in the Butrari Park in Havana. Six days later, on December 16, 1998, a Havana tribunal sentenced Constantin Duran to a four-year prison term for “dangerousness”. Id.

46

241.

On August 7, 1997, Cuban police detained Daula Carpio Mata, the leader of the

Villa Clara branch of the Pro Human Rights Party, charging her with assault, apparently based on her having spoken out at an earlier trial of a PPDH colleague, Israel Feliciano García. The police released Carpio Mata but arrested her again on October 9, 1997. At trial on October 29, the Santa Clara court sentenced Carpio Mata to sixteen months internment in a work camp. Carpio Mata protested the sentence, refused to report to the work camp, and commenced a hunger strike. In December, Cuban police arrested her and imprisoned her in the women's section of the Guamajal Prison. Id. 242.

On October 23, 1997, a Santa Clara court convicted ten members of the PPDH of

"association to commit criminal acts" and "disobedience," because several other members of the Villa Clara branch of the PPDH initiated a hunger strike to protest Carpio Mata’s detention. The sentences ranged from one year of house arrest for María Felicia Mata Machada to one and onehalf years in prison or at a prison work camp for José Antonio Alvarado Almeida, Ileana Peñalver Duque, Roxana Alina Carpio Mata, Lilian Meneses Martínez, Arélis Fleites Méndez, Iván Lema Romero, Danilo Santos Méndez, Vicente García Ramos, and José Manuel Yera Benítez. The judge allowed the defense attorney less than ten minutes to present its case, including the testimonies from all of the defendants. Id. 243.

In 1998, in retaliation for the PPDH activists having undertaken prolonged hunger

strikes and garnering the attention of the international press covering Pope John Paul II's Cuba pilgrimage, the Cuban government re-imprisoned several of the activists who previously had received lighter sentences. Cuban authorities incarcerated SantosMéndez and García Ramos at the "Nieves de Morejón" Prison in Sancti Espiritu; Yera Benítez at the Manacas Prison in Villa Clara; Lema Romero in the Villa Clara Provincial Prison, known as "El Pre"; Peñalver Duque and Fleites Méndez in El Pre's women's section; Meneses Martínez in the women's section of the Guamajal Prison in Santa Clara (where Daula Carpio Mata remained); and Alvarado Almeida in the Guamajal Prison's men's section. 244.

On June 25, 1997 Cuban state security agents arrested Dr. Dessy Mendoza Rivero

because Dr. Mendoza, the founder and president of the Independent Medical College of Santiago de Cuba, alerted the international press of a dengue fever epidemic in Santiago. Even though large numbers of people had fallen ill from the disease, the state-controlled Cuban press had not

47

reported on the severity of the crisis so between June 15 and June 18, 1997, Dr. Mendoza granted interviews to several international news outlets, including Radio Martí (the U.S.-government sponsored station broadcasting to Cuba), the Spanish news service ABC, Radio Netherlands, and the Mexican newspaper La Reforma. Prosecutors charged him with illicit association, based on his activities with the doctors' group and with the Pacifist Pro Human Rights Movement of Santiago, and with enemy propaganda based on his public discussion of the dengue outbreak. On November 18, 1997, a Santiago tribunal tried him and found him guilty of enemy propaganda. Yet, the court document justifying his sentence also cited government evidence of a dengue epidemic in the region. The same document referred to Dr. Mendoza as a "counterrevolutionary" for his activities with his medical colleagues and with human rights activists, but did not judge him guilty of illicit association. The tribunal sentenced him to eight years, of which he served over one and one-half years in the maximum-security Boniato prison in Santiago. In November 1998, Cuba released Dr. Mendoza on the condition that he abandon Cuba for Spain. 245.

In July 1997 Cuban police arrested Orestes Rodríguez Horruitiner after searching

his home and seizing several books from it, apparently including books by José Martí, Máximo Gómez, and Antonio Maceo, and books printed outside Cuba. On November 11, 1997, a Santiago tribunal found him guilty of enemy propaganda and sentenced him to four years in prison. At trial, the books they seized served as the foundation for the prosecution's enemy propaganda charge because, prosecutors argued, that any book edited outside of Cuba contained ideological diversions. The prosecutors also expressed dissatisfaction with Rodríguez Horruitiner's activities with nongovernmental organizations. Cuban authorities detained Rodríguez Horruitiner in the La Caoba Prison in Santiago Province. While imprisoned, his high blood pressure worsened, leading to his prolonged hospitalization at the Boniato Prison hospital. Prison authorities only allowed him visits with two members of his immediate family once every two months for two hours. 246.

From March 1994 until February 1998, Edelberto Del Toro Argota, was a

prisoner at the Provincial Prison of Holguín. Del Toro reported that his four-year incarceration in the prison his daily food ration would fit into one small cup. 247.

Víctor Reynaldo Infante Estrada, a prisoner in Aguica Prison, in Matanzas

province reported that during his six years in Cuban prisons, his food rations included a total of

48

six eggs and "never a single piece of chicken." For breakfast, he typically received a cup of water with some sugar and for lunch, four or five spoonfuls of rice and a small bowl of unidentifiable soup He depended on his family's persistent deliveries of food for his survival. 248.

In September 1998, Cuba charged the four leaders of the Internal Dissidents'

Working Group with a crime, after they had spent fifteen months in detention. During their pretrial detention, Cuba held Vladimiro Roca Antúnez, Martha Beatriz Roque Cabello, Félix Bonne Carcassés, and René Gómez Manzano in maximum-security prisons. a. Roque Cabello spent some periods in the prison ward of a Havana hospital. During that period, Roca spent several months in an isolation cell where he had no contact with other prisoners and no access to sunlight. His punishment cell had one bare light bulb that guards kept illuminated day and night. He depended on his wife to supply him with medicine for his high blood pressure. Prison guards restricted his visits to one two-hour visit every three weeks, which only two family members could attend. b. Cuban authorities were holding Bonne Carcassés in similar conditions at the Guanajay Prison in Havana province. From the time of his incarceration, Bonne Carcassés, who suffers from diabetes, was not provided with an appropriate diet and received insufficient medicine. The twenty-four-hour illumination in his cell reportedly contributed to vision loss. 249.

On October 11, 1992, state security agents in Bayamo in Granma Province

arrested brothers José Antonio and José Manuel Rodríguez Santana, detaining them at Bayamo's state security headquarters. The officials confined the brothers, who both suffer from asthma, for four months in sealed cells, where they could see no sign of night or day and had minimal ventilation. Although family members tried to bring the brothers asthma medication, the officials did not always deliver it and in the sweltering, airless conditions, they suffered several severe asthma attacks. During this period, the state security agents interrogated the brothers several times. a. After four months, Cuban authorities transferred José Antonio and José Manuel to the maximum security Las Mangas Prison in Granma, where each was assigned to a cell with ten or eleven common prisoners held for violent crimes. The common prisoners harassed and beat them and provided state security agents with false information about them that later led 49

to difficult interrogations. When the brothers protested their treatment and human rights conditions in the prison, they were harassed further. At a closed trial in August 1993, both brothers received ten-year sentences for rebellion and enemy propaganda. Cuba released José Antonio on the condition he go into exile in Canada in April 1998. 250.

In July 1993, a court in Santiago convicted Guillermo Ismael Sambra Ferrándiz,

Luis Alberto Ferrándiz Alfaro, and Xiomara Aliat Collado, who are exiled in Canada, of enemy propaganda and rebellion, along with six other co-defendants. Cuban state security agents arrested all of the co-defendants in January 1993 and first detained them in the Santiago state security headquarters, known as Versalles. a. On January 13, 1993, when Sambra Ferrándiz challenging the police searching his house to present him with a warrant, they arrested him and took him to an isolation cell at Versalles, where he was detained for three months. The cell was two meters by two meters and completely closed except for a very narrow, deep space, "like a canal," that allowed some air in. A hole in the floor served as his toilet. An incandescent 100 watt bulb remained lit twenty-four hours a day, heating the stuffy cell like an oven. When night fell, swarms of mosquitoes emerged and kept him awake through the night. Captain Seriocha, state security investigators, informed him that "the mosquitoes are our principal allies." Sambra Ferrándiz spent fifteen days in incommunicado detention before seeing his family. He said that they wept when they first saw him because he was so swollen from mosquito bites. State security agents began interrogating him on January 14, usually in very heavily air-conditioned offices, after he had emerged from the stifling heat of his closed cell. When he or his co-defendants arrived for questioning, the agents would shut him in the cold office for between thirty minutes and one hour before the interrogation began, leaving him shivering from the cold. He recalled an investigator, who had an overcoat in his arms, asking him several times if he was cold, yet refusing to give it to him. While going to and from the interrogations, guards required him always to face the wall, with his hands at his back, and not to look at his surroundings. From Versalles, state security agents moved Sambra Ferrándiz to the maximum security Mar Verde Prison in Santiago. A Santiago court convicted him of enemy propaganda and rebellion and sentenced him to twelve years in prison in July 1993.

50

b. State security agents also detained Luis Alberto Ferrándiz Alfaro and his wife, Xiomara Aliat Collado, in Versalles. Aliat Collado said that during her forty-five-day detention in Versailles, state security agents tormented her psychologically,telling her that her then five-year-old son – who suffers from asthma and had been left alone with his fourteen-year-old sister following their parents' arrest – was sick and that he would not receive medical treatment and might die if she did not talk. Aliat Collado received a sevenyear sentence. c. Cuban officials transferred Ferrándiz Alfaro to the maximum security Boniato Prison in May 1993, where guards detained him for three months with another prisoner in a closed cell, measuring six feet by six feet, with no light and minimal ventilation, that was full of insects. He said, "they did not explain why I was being held in that cell. I'd never been in prison before." During this period, a Santiago court sentenced him to twelve years for enemy propaganda and rebellion 251.

On August 3, 1992, a Cuban military tribunal found Víctor Reynaldo Infante

Estrada and Dr. Omar del Pozo Marrero guilty of revealing state security secrets and sentenced them, respectively, to thirteen and fifteen years. The Cuban government released Infante Estrada and Del Pozo Marrero into exile in Canada in 1998 and Arias Iglesias into exile in the United States in 1997. a. Their trial also followed harsh pretrial detentions. In April 1992, state security agents arrested Infante Estrada and Del Pozo Marrero and confined them in sealed cells in their Havana headquarters, known as Villa Marista. During the seventy-five days that state security agents held Infante Estrada in solitary confinement in Villa Marista, they repeatedly interrogated him about his human rights and opposition activities. He recalled that he could not tell day from night in his cell and he tried to mark the passage of time by listening for birds singing outside. b. Del Pozo Marrero spent eighty days in a cell that was approximately three-byseven feet. He said that the guards never used his name, but only referred to him by a number. 252.

Police arrested Adriano González Marichal in January 1992 for putting up anti-

government posters, denouncing human rights violations, and participating in a September 1991 51

rally in front of the Villa Marista state security headquarters calling for the release of political prisoners. He spent almost two years in prison before his December 1993 trial. In March 1992, he was sent to the maximum security Quivicán Prison in Havana, where several guards and common prisoners beat him and sent him to a punishment cell for two months. The cell was approximately four feet by nine feet, with no lights. In July of the next year, still in pretrial detention, prison authorities moved him to the maximum security Combinado del Este Prison in Havana. Guards delivered him to the punishment section of the prison, a group of cells known as "forty-seven" and the "rectangle of death," a unit with about ninety cells in three hallways. At the entrance, he remembered a large sign listing the rules, which include no speaking and no lying in bed from 5:00 a.m. until 10:00 p.m. The prison officials took his clothes, dressed him in a black uniform, took all his belongings, and handcuffed him for several hours. Each time prisoners entered or left the unit, guards forced them to face the wall with their hands behind their heads and their legs spread, or the guards would push their legs apart. Guards often beat prisoners who fell down. He spent twenty-one days in the isolation cells in that unit. 253.

René Portelles was arrest in September 1993 and detained him in an isolation cell

in the Pedernal State Security Offices in Holguín for several months. In 1994, an Holguín court sentenced him to seven years for enemy propaganda, apparently because he had served as the local president of the Social Democratic Party. a. After his conviction, prison guards held Portelles in isolation cells in the Holguín Provincial Prison and the Holguín State Security Headquarters because he had organized hunger strikes to protest prison conditions. The agents also beat Portelles several times, in one case breaking a rib, to punish him for his criticisms. Portelles spent thirteen months in an isolation cell in 1995 and 1996 at the Canaleta Prison in Ciego de Avila. In early 1996, he undertook a hunger strike at the Ariza Prison in Cienfuegos. On February 29, guards attempting to end the strike beat several prisoners, including Portelles. The authorities sent Portelles to a punishment cell for one additional month in retaliation. b. In March 1996, guards transferred Portelles to the Valle Grande Prison in Havana, where they sent him to isolation cells on five separate occasions due to his defense of other prisoners' rights.

52

c. In April 1997, prison authorities transferred him to the "punishment company", the section of the prison where officials punish prisoners with isolation and other deprivations, of the Boniato Prison in Santiago de Cuba. d. After only a month, prison authorities transferred Portelles again, to the Combinado de Guantánamo Prison, where he spent three separate periods ranging from twenty days to three months in punishment cells in late 1997. Prison authorities imposed the three-month isolation period after granting Portelles a several day temporary release in August 1997 with orders that he solicit a visa to the United States. While at the United States Interests Section in Havana, Portelles denounced human rights violations at the Guantánamo prison. When he returned to prison, guards beat him for his denunciations and for shouting "Down with Communist Slogans!" and "Down with the Communist Dictatorship!" e. In November 1997, prison authorities transferred Portelles to an isolation cell in the "rectangle of death," the punishment section of the Combinado del Este Prison in Havana. f. In late 1997, prison authorities transferred him across the country, detaining him in a tightly-sealed cell of the state security headquarters at the Combinado de Guantánamo Prison. To protest, he started a hunger strike. On January 14, 1998, state security agents beat him after he had shouted "Long live Pope John Paul II!" and "Long live the Social Democratic Party!" g. Shortly afterwards, Cuban authorities transferred Portelles again, to Villa Marista, prior to forcing him into exile in Canada in May 1998. Twice, state security agents in Villa Marista tied him up and left him on the floor of his isolation cell for a few hours. Portelles said that state security agents at Villa Marista deceived him on five occasions, telling him to get ready for his "imminent" departure. h. The frequent transfers were an additional punishment to Portelles, whose family and friends would find it difficult to either locate him, visit him, or send him provisions from which he could live. 254.

In December 1997, authorities at the Las Mangas Prison in Granma transferred

José Antonio Rodríguez Santana, who was serving ten years for enemy propaganda and rebellion, to a punishment cell at the state security headquarters in Bayamo, Granma. The

53

transfer followed Rodríguez Santana's denunciation of serious physical abuse in the prison. Capt. Leonardo Miranda, the commander of the state security post, ordered Rodríguez Santana confined to the completely closed cell for seventeen days. The confinement provoked several asthma attacks. 255.

From March 1995 until December 1996, one year and ten months, Cuban

authorities kept Raúl Ayarde Herrera, who was serving a ten-year sentence for espionage, in a completely dark isolation cell in the maximum security Guantánamo Provincial Prison. The cell measured three feet by seven feet. Prison guards took all of his belongings, leaving him only with some clothes. On several occasions when he asked for medical assistance, the guards punished him by leaving him naked for twenty-one-day periods. In December 1996, prison authorities transferred him to the maximum security Pitirre Prison in Havana, known as 1580, where they held him in a sealed punishment cell for two months. From April 1997 until February 1998, guards at the Kilo 5½ Provincial Prison in Pinar del Río confined him in an isolation cell. The Cuban government forced Ayarde Herrera into exile in Canada in April 1998. 256.

From August 1997 until February 1998 Cuba imprisoned in the Las Tunas

Provincial Prison Armando Alonso Romero, who was serving a twelve-year sentence for "other acts against the security of the state". Throughout this period, prison guards confined him in a punishment cell that measured approximately four feet by six feet and was almost completely sealed, allowing little daylight to enter. From the time of his arrest in September 1993 until his April 1998 release, Alonso Romero spent over four years in isolation cells. 257.

Marcos Antonio Hernández García, who was arrested in April 1990, convicted of

enemy propaganda, espionage, and sabotage in 1991, and sentenced to twenty years, also was confined in the Las Tunas Prison from August 1997 until February 1998. Guards confined him in an isolation cell during the entire period. The guards also placed him on a regimen they called the "harassment plan," under which they pulled him out of his cell at ten to fifteen minute intervals from 10:00 p.m. until 6:00 a.m. every night. 258.

From December 1996 until March 1998, guards at the Cerámica Roja Prison in

Camagüey held José Miranda Acosta in an isolation cell. Miranda Acosta, a member of the Christian Liberation Movement, was arrested in 1993 and charged with being the intended recipient of a box containing a grenade. He never received such a box, nor affirmed that it had

54

ever existed. When he first arrived at the prison in September 1996, guards beat him several times. 259.

Víctor Reynaldo Infante Estrada spent the majority of his almost six years in

prison in solitary confinement. Prison authorities placed him in punishment cells at the Toledo Prison in Havana, the Agüica Prison in Matanzas (in an area with sixteen isolation cells known as "La Polaca"), and the Combinado del Sur Prison in Matanzas (from early 1994 until December 1996). In La Polaca, where prison guards detained him in 1993 and again from December 1996 until April 1997, Infante Estrada's cell was completely dark at all hours of the day and night and for various periods guards seized his mattress and all his belongings. The guards did not permit him access to a nearby closed patio, where he said the sun entered directly only in July and August. At the Combinado del Sur Prison in Matanzas, where Infante Estrada spent almost two years in solitary confinement, the chief of internal order, Lt. Juan Araño, warned him to cease his denunciations of humanrights abuses in the prison. Infante Estrada recalled Araño telling him, "if you are a lion, then you have to be caged" (si eres leon, tienes que estar enjaulado). 260.

In September 1995, Guillermo Ismael Sambra Ferrándiz commenced a seven-

month period of incommunicado detention in a four foot by six foot cell in the Bahia Larga Prison in Santiago. Prison authorities ordered his punishment there because he had refused to stand at attention for the visit of a general to the prison and had refused to cut his hair and shave. Also in 1995, Omar del Pozo Marrero spent eight months in a punishment cell at the Guanajay Prison in Havana. While the guards called this step a "security measure" (medida de seguridad), they provided no evidence to justify this claim. During the same period, prison authorities also psychologically pressured him with threats to end his visits, beat him, and cause his family members to lose their jobs. 261.

In the first half of 1998, Guantánamo Provincial Prison authorities reportedly

ordered beatings of political prisoners who denounced prison conditions, including Néstor Rodríguez Lobaina, Jorge Luis García Pérez, also known as Antúnez, Francisco Herodes Díaz Echemendía, and Orosman Betancourt Dexidor. 262.

In September 1997, Guantánamo prison guards beat Antúnez, Francisco Díaz

Echemendia, and Nestor Rodríguez Lobaina.

55

263.

In 1992 Prison guards at the Kilo 8 Prison in Camagüey repeatedly beat Jesús

Chamber Ramírez, who was sentenced to ten years for enemy propaganda. He suffered deteriorating health due to the beatings, periods spent in punishment cells, insufficient medical attention, poor nutrition, and denial of access to sunlight for months at a time. In November 1998, Cuba announced that it would release Chamber Ramírez on the condition that he go into exile in Spain. Upon his arrival there in December, he stated, "I've been through everything: I had my head cracked open, my legs smashed up and they put me in a corridor for six months to try to drive me mad. 264.

On April 11, 1998, two state security agents, Capt. Hermes Hernández and Lt.

René Orlando, reportedly beat Bernardo Arévalo Padrón, a journalist serving a six-year sentence for contempt of authority at the Ariza prison in Cienfuegos. The officers, who apparently were angered after finding anti-government materials inside the prison, reportedly beat him with a wooden baton on the head, neck, and abdomen, while shouting at him and calling him a "worm" or traitor. Arevalo Padrón remained in an isolation cell, where prison guards confined him shortly after the beating, until September. His familymembers alleged that Lieutenant Orlando had refused to allow them to leave medicine for him, despite his complaints of severe stomach problems. 265.

On April 5, 1998, common prisoners at the Canaleta Prison in Matanzas

reportedly beat Jorge Luis Cruz Arencibia. Prison authorities refused to provide Cruz Arencibia with medical care for his injuries. 266.

On November 9, 1997, the reeducator at the Kilo 5½ Prison in Pinar del Río,

known as Osiri, and a state security official at the prison, Lt. Mario Medina, reportedly beat Raúl Ayarde Herrera because he had commenced a hunger strike to protest prison conditions. During his transfer to the Pinar del Río Prison from the Pitirre Prison in Havana, on April 30, 1997, two state security officials, Col. Wilfredo Velásquez and one with the last name of Vargas, beat Ayarde Herrera throughout the trip. They also threw all of his belongings and clothes out of the car window. Three days after his arrival, a common prisoner known as Veltoldo also reportedly beat him. The prisoner known as Veltoldo later approached Ayarde Herrera him and said, "Damn, political prisoner. Forgive me. I had to do it." Veltoldo explained that Lt. Mario Medina

56

had ordered Veltoldo to beat Ayarde or risk losing his right to be transferred from the maximum security prison to a work camp. 267.

On several occasions, prison guards beat Víctor Reynaldo Infante Estrada.

a. In June 1997, several prison guards entered Infante Estrada's isolation cell to cut his hair and beard, as they had done several times in the prior months because he had let his hair grow to protest his prolonged detentions in punishment cells and other human rights violations. Led by the prison's chief of internal order, Sec. Lt. Emilio Villacruz, several guards pinned down Infante Estrada, forcibly removed his clothes, buzz-cut his hair, and shaved his beard. When Infante Estrada tried to stop them, the guards beat his back with their batons. b. On July 13, 1997,Maj. Pedro López, a member of the state security political unit at the Agüica Prison, waved his pistol at Infante Estrada and, referring to a string of recent hotel bombings, said, "If anything else like this happens inside Cuba, I will come here to your cell and kill you myself." Before leaving, he accused Infante Estrada of being responsible for the bombings, called him a counterrevolutionary, and smacked him. 268.

In April 1997, the chief of internal order at the prison, Major Abreu, ordered

Omar del Pozo Marrero out of his cell so that guards could search it for knives and drugs. Del Pozo Marrero refused, explaining that he was a political prisoner. Guards pulled him out of his cell and dragged him for about fifty meters while beating him. In May 1997, Lieutenant Carrales at the Combinado del Este Prison in Havana handcuffed del Pozo Marrero and threw him on the ground because he did not want the official to search his prison cell. 269.

In September 1996 a Camagüey tribunal convicted Jesús Chamber Ramírez, who

already was serving ten years for enemy propaganda at the Kilo 8 Prison, of contempt for the authority of the commander-in-chief and sentenced him to four more years. Chamber Ramírez, whom prison guards had repeatedly beaten, had shouted "Down with Fidel" and denounced human rights abuses in the prison. 270.

On December 10, 1996, a Matanzas court sentenced Víctor Reynaldo Infante

Estrada, mentioned above, to an additional year in prison for contempt for the authority of a prison guard. The trial arose from Infante Estrada's November 1996 denunciation of a

57

Combinado del Sur prison official, Lt. Juan Araña, for beating a common prisoner who later was found hanging dead in his cell. Infante Estrada recalled having told Araña, "I don't respect assassins, and I don't respect your authority." After the trial, Infante Estrada closed himself in his cell and commenced a hunger strike. Araña threatened him, saying "you could wake up hanging, too." a. In April 1997 Infante Estrada protested the prison's failure to treat his high blood pressure by writing anti-government slogans on many sheets of paper (including "Down with Fidel" and "Down with the Dictatorship"), attaching them to the end of a broomstick and waving it out of his isolation cell so that the sheets flew onto the prison grounds. Shortly afterwards, a state security official at the prison, Lt. Fidel Relovu, threatened to beat him and notified him that he had enemy propaganda charges pending against him. He recalled that Relovu said "against the Commander [Fidel], you cannot do this." Guards ordered Infante Estrada held twenty-one additional days in his punishment cell, removed the mattress, and seized all of his belongings. b. In June 1997 several Agüica Prison authorities beat Infante Estrada. His effort to defend himself from the guards' rough handling resulted in Infante Estrada's being charged with "resistance."89 When Cuba forced Infante Estrada into exilein Canada in early 1998, telling him it was his only option if he hoped to get out of prison, these charges were pending against him. 271.

On February 19, 1997, Aurelio Ricart Hernández died in the Micro 4 Prison in

Havana. He was serving a fifteen-year sentence for enemy propaganda and espionage. Marcos Antonio Hernández García, who was imprisoned with him, recalled that he had been sick with a liver ailment for a long time and that his skin had turned yellow. He was hospitalized on February 15, when he began vomiting blood. Hernández García said that the prison doctors had said many times that they would treat Ricart Hernández "next week." 272.

Cuban authorities released Pedro Armenteros Laza, who had been condemned to

six years for enemy propaganda, on July 12, 1996, when he was in a coma. He died shortly afterward. 273.

Cuba released Sebastian Arcos Bergnes, the vice-president of the Cuban

Committee for Human Rights who had been serving a four-year, eight-month sentence for enemy 58

propaganda, in May 1995. When he was examined in Miami in September 1995, his physician noted that he had a sizable rectal tumor that had been growing for well over a year that would have been detected by a standard medical exam for men his age. Due to the failure of Cuban prison doctors to treat Arcos Bergnes, his cancer only was detected in a terminal, untreatable stage. Sebastian Arcos Bergnes died on December 22, 1997. 274.

In June and July 1998, Cuban authorities detained Martha Beatriz Roque Cabello

in a prison section of the Carlos J. Finlay Hospital, where doctors examining her determined that she had a gastric ulcer. Apparently, they failed to treat her initial complaint of lumps in her breasts. Her hospital stay reportedly proved particularly stressful due to the fact that she was forced to share a hospital room with another detainee who suffered from serious psychological problems. The detainee reportedly attempted suicide while confined with Roque Cabello, adding to Roque Cabello's stress. 275.

Dr. Dessy Mendoza remained in the Boniato Prison in Santiago serving an eight-

year sentence for enemy propaganda until November 1998, when he was released from prison on the condition that he go into exile in Spain. Dr. Mendoza suffered from severe high blood pressure and heart disease and that his condition has worsened since his imprisonment. His heart disease was often symptomatic, causing pain and weakness. Cuban prison authorities raised his stress levels by placing him in a cell with a man convicted of homicide in an area of the prison reserved for 119 common prisoners. Due to his worsening condition, prison authorities hospitalized him for four days in April. Yet, the government failed to provide him with appropriate medicines, and his health slipped further due to the poor prison diet and difficult physical conditions. Like many other Cuban prisoners, Dr. Mendoza survived on the food and medicine that his wife provided him. a. Boniato Prison authorities placed Dr. Mendoza on the prison's "severe regime," only allowing him one two-hour visit every two months from no more than two immediate family members. Due to these extremely restricted opportunities for visiting, Dr. Mendoza's children only saw him a handful of times after his arrest. His wife said that their one-year-old son, who was born shortly before his father's detention, mistakenly called his thirteen-yearold brother "Daddy."

59

276.

In May 1998 Boniato prison doctors' continued refusal to treat Marcelo Diosdado

Amelo Rodríguez apparently resulted in his reaching a critical state. Amelo Rodríguez, the president of the Gerardo González Ex-Political Prisoners Club serving an eight-year sentence for rebellion, suffered from high blood pressure, poor circulation, and vision loss, and apparently risked the amputation of his left leg. His wife, Raisa Lora Gaquín, provided prison authorities with medications and vitamins for her husband, but they had refused to give them to him. The prison guards also insisted on Amelo Rodríguez's continued detention in a punishment cell, where they had first confined him in July 1997. The same month, authorities at the Manguito Prison in Santiago refused to treat Orestes Rodríguez for four days, despite his complaints of severe pain in his shoulder that prevented him from sleeping. 277.

Francisco Pastor Chaviano González, who is serving a fifteen-year term in the

Combinado del Este Prison in Havana for revealing secrets concerning state security, had been denied medical treatment for his high blood pressure. The hostile conditions of his confinement, where he receives minimal food and brief visits only every two months, aggravated his illness. 278.

Dr. Omar Del Pozo Marrero suffered severe hypertension during his prison term,

due to poor prison conditions and the failure to provide him with medical treatment. In response to an international outcry about his declining health, he said that Cuba minimized his ailments and misrepresented the medical treatment he received. In May 1995, a delegation led by the French organization France-Libertés and joined by Human Rights Watch examined Dr. del Pozo Marrero at the Combinado del Este prison. After that examination, Cuba promised to provide him with medical treatment. But Dr. del Pozo Marrero said that his "treatment" consisted of one month of examinations at the Carlos J. Finlay Hospital that concluded by minimizing his ailments. His health concerns included high blood pressure, kidney stones, a duodenal ulcer, and an abnormal prostate. He also had gone from 140 pounds to between 105 and 110 pounds during his confinement. Dr. del Pozo Marrero said that the doctors were treating him "politically and not medically". 279.

In September 1997 Marcos Antonio Hernández García complained to the Las

Tunas Provincial Prison authorities that he felt severe pain from a hernia. The prison's medical staff told him he did not feel any pain and refused him pain medication. When he continued to complain of severe pain and swelling, the prison authorities allowed him to see a urologist. He

60

said that when the doctor learned that he was a "counterrevolutionary," he refused to treat him. Prison guards allowed his family to provide him with some pain medication. On February 2, 1998, the prison authorities permitted him to have the hernia surgically corrected. 280.

Guillermo Ismael Sambra Ferrándiz, who did not receive sufficient treatment for

his digestive problems, vomiting, and ulcer throughout his prison term, said that the prison doctors were "more soldiers than doctors. Raúl Ayarde Herrera recalled asking for medical assistance at the Pinar del Río Prison in 1997 for pain due to an intestinal blockage. Maj. Inocente Delgado, known as El Chino, told him that for counter-revolutionaries, there was no medical assistance. 281.

On December 10, 1997, a prisoner at the Combinado de Guantánamo Prison,

Alberto Joaquím Aguilera Guevara, also known as Carlos, who was serving a fifteen-year sentence for enemy propaganda, contempt for authority, and assault, went on a one-day hunger strike to honor international human rights day. In retaliation, when his mother arrived three days later for her end-of-the-year visit, the prison guards denied her entry and refused to let her leave him a fifty-pound sack of food. 282.

Prison authorities only permitted Víctor Reynaldo Infante Estrada one two-hour

visit every two months with immediate family members. Infante Estrada, who was forced into exile in Canada when the Cuban government offered him no other way to avoid serving his full prison term, said, "There are several family members, my aunts and uncles and cousins, that I never saw again." 283.

From June 1996 until February 1997, Micro 4 Prison authorities denied Yonaikel

Baney Hernández Menéndez the right to visit her father, Marcos Antonio Hernández García. 284.

When Guillermo Ismael Sambra Ferrándiz was detained in the Bahia Larga Prison

in Santiago, he refused to wear a prison uniform so he would not be mistaken for "onemore rapist." In response, on November 24, 1994, prison authorities suspended all of his visits for two years. 285.

Nelson Alberto Aguiar Ramírez of the Partido Ortodoxo de Cuba, was arrested on

March 20, 2003 as he was fasting with other activists for the release of political prisoners. He was convicted and sentenced to 13 years in prison. He was held in solitary confinement until

61

September 2004, whereupon he was incorporated into the general population at the prison. He is suffered from multiple complications, such as high blood pressure, hypoglycemia and diabetes and he has no access to medical care of any kind. In October 2004, he was severely beaten by a prison officer after asking for medical attention. He was also being denied access to the telephone and other ways of communicating with his wife and family. 286.

On July 26, 2006, guards at the Holguin provincial prison directed a group of

hardened convicts to attack prisoners who refused to watch a reeducation program. Please see “Exhibit W” US Department of State, Bureau of Democracy, Human Rights and Labor, Country Report on Cuba, March 6, 2007, available at www.state.gov (last visited on August 2, 2012). 287.

On February 3, 2006 guards at Kilo 5 ½ prison in Pinar del Rio beat Iraudy

Casero Basilet unconscious after he demanded medical attention. 288.

In November 2006, guards at Kilo 5 ½ prison in Pinar del Rio sent political

prisoner Diosdado Gonzalez Marrero to a punishment cell for five days after he requested greater access to fresh air. 289.

On July 22, 2006 five guards at the Holguin provincial prison beat inmates Carlos

Hernandez Infante after he demanded medical attention. 290.

During the first seven months of 2006, at least two inmates committed suicide at

Quivican prison in Havana Province, which were attributed to the harsh conditions at the prison. On January 1, 2006, Inmate Roberto Alfonso Arteaga asphyxiated himself at Villa Clara Youth Prison, and on January 5, 2006, at Kilo 5 ½ prison in Pinar del Rio, inmate Arami Monet Cbrera hanged himself. 291.

On July 4, 2006 a court in the Holguin city of Gibara convicted Alexander Santos

Hernandez, of the Cuban Liberal Movement, of dangerousness and sentenced him to four years in prison. Stantos was arrested, tried, convicted and sentenced in less than 24 hours. 292.

On March 28, 2011 Raul Castellanos Lage, cousin of the former president of the

Council of Ministers, Carlos Lage, was released after being held for two years without charge. No explanations were given for his arrest or his release. 293.

On March 9, 2011, Peruvian citizen Cleida Quevedo Balmaseda was held for

more than one month for entering the country with $90,000 dollars to open a private restaurant.

62

294.

On March 26, 2011 Mexican fisherman Carlos Joaquin Morales Tec, whose boat

had run off course due to a storm, was finally released after serving six (6) years of a 10 year sentence for human trafficking. 295.

On July 2010 former Spanish journalist Sebastian Martinez was arrested when he

landed in Cuba for a business trip. He was convicted on August 10, 2011, a full 13 months after his arrest, for “corruption of minors”. He was sentenced to seven years in prison for having produced a television documentary on child prostitution on the island in 2008, which was broadcast by the Spanish television netork Antena 3. The documentary showed no images of underage sexual acts or pedophelia, but uncovers public opinion about the food chain of prostitution on the Island, particularly in Havana, where young girls are sold to the highest bidder. For at least the first 11 months of his imprisonment, government officials denied his family the right to visit him. 296.

On May 8, 2011, Juan Wilfredo Soto Garcia died in a Santa Clara hospital, after

having been severely beaten and in Leoncio Vidal Park. The official cause of death was “pancreatitis.” None of the police officers who arrested him were investigated or suspended, in spite of the fact that one of the officers who participated in the beating, Alexis Herrera Machado, had a record of violence and brutality against citizens. 297.

On August 8, 2011, Activist Ernesto Carrera Moreno was the victim of a violent

machete attach by William Valverde, member of the neighborhood watch division of the Municipal Committees for the Defense of the Revolution (CDR), and his nephew. Carrera Moreno suffered a fractured skull and dislocated jaw, requiring emergency surgery at the Santiago de Cuba Provincial Hospital. Neither of the two attackers has been prosecuted. DEFENDANTS’ SYMBIOTIC RELATIONSHIP WITH, CONSPIRACY WITH AND AIDING AND ABETTING OF THE CUBAN GOVERNMENT 298.

Heretofore and at the time of the occurrences herein, Defendants had entered into

a conspiracy and a joint plan with the Cuban government to effectuate a variety of purposes that were of mutual benefit to DEFENDANTS and the Cuban Government. 299.

As indicated above, CHAPMAN, a Cuban baseball star, who was never punished

after he had been apprehended by authorities trying to flee the country in March 2008, met with Raul Castro subsequent to the attempt, and had a private meeting with him.

63

300.

CHAPMAN walked away from that meeting miraculously unscathed and, as he

later stated in various interviews, with a new found determination to escape the island, to keep his escape plans secret, and to prove his loyalty to his country to draw off suspicion from himself. 301.

In that meeting, CHAPMAN entered into an agreement with Castro to prove his

loyalty to the government by becoming an agent of the government, thereby drawing suspicion from himself. His goal was to become a “trustworthy” person or a person of “confidence” so that he would be allowed back on the national team and be allowed to travel. 302.

The Cuban government received what appeared to be a competent and prolific

snitch in CHAPMAN, who accused of Human Trafficking MEDINA, CURBELO GARCIA, MAGAÑA, MENA PERDOMO and several others, who are currently serving time in Cuban prisons for allegedly trying to smuggle him out of the country. 303.

CHAPMAN and BENETT’S established a symbiotic relationship with the

government, where both sides benefited. 304.

CHAPMAN benefited from the conspiracy by drawing suspicion away from

himself, which permitted him to again be allowed on the Cuban National team and escape in a foreign land. 305.

BENETT benefited from the conspiracy by helping to occasion his son’s escape,

which materially benefits him and his family in Cuba. 306.

Pursuant to the conspiracy, CHAPMAN accused several individuals, one a man

known as “Lisandro”, of offering to smuggle him out of the country, and those individuals are currently serving prison sentences in Cuba. 307.

Pursuant to the conspiracy, CHAPMAN called the DCSE on or about July 15,

2008 to provide false information about MENA PERDOMO. 308.

In furtherance of that conspiracy, CHAPMAN and BENETT made false and

conflicting declarations to the DCSE investigators, and provided further conflicting testimony at MENA PERDOMO’s trial. 309.

Pursuant to the conspiracy, CHAPMAN called the DCSE on or about July 29,

2008 to provide false information about CURBELO GARCIA. 64

310.

In furtherance of that conspiracy, CHAPMAN and BENETT made false and

conflicting declarations to the DCSE investigators, and provided further conflicting testimony at CURBELO GARCIA’s trial. 311.

At all times CHAPMAN and BENETT knew the CURBELO GARCIA was a

resident of the United States and lived in Florida with his family. 312.

At all times CHAPMAN and BENETT knew that CURBELO GARCIA would

not be afforded the rights of a foreigner, but, as an exile, living in Miami, would be treated as a dissident. 313.

At all times CHAPMAN and BENETT knew that the sentence for smuggling

citizens out of Cuba was a deprivation of liberty in Cuban prison for a period of between seven (7) years to fifteen (15) years. 314.

At all times CHAPMAN and BENETT knew of Cuba’s disregard for the rules of

procedure or prisoner’s rights, and that that country’s judicial system often leaves prisoners for many months without charges or trial, and that when any trial is granted, those trial rarely adopt any semblance of fairness. 315.

At all times CHAPMAN and BENETT were aware of the continued

“investigation” of the case and that CURBELO GARCIA remained in detention throughout the many months, and that he had not been released from detention before the sham trial, which took place six (6) months after his detention. 316.

At all times CHAPMAN and BENETT were aware of the continued

“investigation” of the case and that MENA PERDOMO remained in detention throughout the many months, and that he had not been released from detention before the sham trial, which took place almost one year after his detention. Two previous trials for MENA PERDOMO had to be canceled, one because MENA PERDOMO was too ill to travel, and the second because CHAPMAN had to travel for a baseball game. 317.

At all times CHAPMAN and BENETT knew of Cuba’s notorious prison

conditions, with treatment that is no different than torture and often result in the crippling or death of the inmates.

65

318.

CHAPMAN and BENNET conspired with the Cuban government to secure

CURBELO GARCIA’s arbitrary and prolonged detention and torture, acting as catalysts for his arbitrary arrest and impetus for his continued detention and torture in contravention of the laws of nations. 319.

CHAPMAN and BENNET conspired with the Cuban government to secure

MENA PERDOMO’s arbitrary and prolonged detention and torture, acting as catalysts for his arbitrary arrest and impetus for his continued detention and torture in contravention of the laws of nations. 320.

CHAPMAN and BENETT were the catalysts for and aided and abetted the Cuban

government in its arbitrary and prolonged detention and its torture of CURBELO GARCIA, becoming the sole source for the government’s illegal actions in contravention of the laws of nations. 321.

CHAPMAN and BENNET were the catalysts for and aided and abetted the Cuban

government in its arbitrary and prolonged detention and its torture of MENA PERDOMO, becoming the sole source for the government’s illegal actions in contravention of the laws of nations. 322.

CHAPMAN and BENETT at all times entered into the conspiracy with the intent

or purpose of facilitating the Cuban government to commit arbitrary arrest, prolonged detention, and torture in contravention to the laws of nations, and the Cuban government did, in fact, commit those violations in the case of CURBELO GARCIA and several other individuals currently residing in Cuban prisons. 323.

CHAPMAN and BENNET at all times entered into the conspiracy with the intent

or purpose of facilitating the Cuban government to commit arbitrary arrest, prolonged detention, and torture in contravention to the laws of nations, and the Cuban government did, in fact, commit those violations in the case of MENA PERDOMO and several other individuals currently residing in Cuban prisons. 324.

CHAPMAN and BENETT at all times aided and abetted the Cuban government

to commit arbitrary arrest, prolonged detention and torture of CURBELO GARCIA and others in contravention to the laws of nations. The Defendants’ assistance was indispensable to the Cuban

66

government’s commission of the international law violations and were provided to the government willingly and for the purpose of advancing that government’s illegal goals. 325.

CHAPMAN and BENNET at all times aided and abetted the Cuban government

to commit arbitrary arrest, prolonged detention and torture of MENA PERDOMO and others in contravention to the laws of nations. The Defendants’ assistance was indispensable to the Cuban government’s commission of the international law violations and were provided to the government willingly and for the purpose of advancing that government’s illegal goals. COUNT I ARBITRARY AND PROLONGED DETENTION IN VIOLATION OF ATCA (Against both Defendants) Plaintiffs repeat and re-allege all of the previous allegations set forth in Paragraphs 1-325 of this complaint with the same force and effect as if fully set forth again. 326.

At all times relevant hereto CURBELO GARCIA was a citizen of Cuba.

327.

CURBELO GARCIA was arbitrarily arrested and was subjected to prolonged

detention in violation to the established norms of international law. 328.

During CURBELO GARCIA’s detention, he was interrogated at frequent and

sporadic intervals without being provided with an opportunity to have an attorney present, was held in detention for six (6) months without the benefit of appearing before a judge, a tribunal, or a hearing officer, being offered a chance to provide bail or being informed of the charges against him in contravention of international law. 329.

At trial, the tribunal ignored the lack of physical evidence against CURBELO

GARCIA, ignored the testimony in Plaintiff’s favor provided by MEDINA and PARRA, the lead police investigator, ignored the legal standard demanded by the statute, and decided against CURBELO GARCIA based solely on the false testimony of the Defendants. 330.

Defendants (a) knowingly and substantially assisted the Cuban government in the

arbitrary arrest and prolonged detention in violation of clearly established international law norms, and they (b) facilitated the commission of international law violations by providing the violators with false accusations against CURBELO GARCIA, occasioning his arrest and his prolonged detention for the six month period leading up to the sham trial and securing CURBELO GARCIA’s continued detention and torture by falsely testifying against him in court. 67

331.

Defendants acted with the intent to assist in the violation of international law.

332.

Defendants were aware that their acts and omissions assisted in the violation of

international law 333.

Plaintiffs have no alternative remedy to redress their injuries other than to file this

action. Legal action by Plaintiffs in Cuba would be futile, as that country has already demonstrated that CURBELO GARCIA has no rights at all there—his appeal was denied, and the Plaintiff and his family’s claims that Defendants had lied have been ignored. In addition, CHAPMAN has left that country for the United States and Cuba has no jurisdiction over him. 334.

Further, Legal action by Plaintiffs in Cuba could also result in serious reprisals.

CURBELO GARCIA has already experienced such vengeance from the prison guards when his family complained about his treatment there. 335.

That by reason of the arbitrary and prolonged detention of CURBELO GARCIA

has been deprived of his freedom without the benefit of legal procedure, has suffered both physical and mental conscious pain and suffering, and all Plaintiffs have suffered pecuniary and economic damages, loss of support, loss of nurture care and guidance, grief, anguish, loss of society, loss of services and other injuries, and accordingly, the plaintiffs claim all damages allowed by law, including compensatory and punitive damages. COUNT II TORTURE IN VIOLATION OF TVPA (Against both Defendants) Plaintiffs repeat and re-allege all of the previous allegations set forth in Paragraphs 1-335 of this complaint with the same force and effect as if fully set forth again. 336.

The treatment of CURBELO GARCIA in prison was torture in violation of the

337.

The deliberate and frequent acts of torture administered on CURBELO GARCIA

TVPA.

were conducted under color of law. Although CURBELO GARCIA was not afforded all the judicial guarantees which are recognized as indispensable by civilized peoples, the acts of torture were authorized by a Cuban tribunal, and were conducted by government officials, prison guards, and DCSE investigators.

68

338.

Defendants knowingly and substantially assisted the government actors to commit

acts that violate clearly established international law norms, and (b) facilitated the commission of international law violations by providing the violators with false accusations against CURBELO GARCIA, occasioning his arrest, prolonged detention, and torture for the six month period leading up to the sham trial and securing CURBELO GARCIA’s continued detention and torture by falsely testifying against him in court. 339.

Defendants acted with the intent to assist in the violations of international law.

340.

Defendants were aware that their acts and omissions assisted in the violations of

international law 341.

Plaintiffs have no alternative remedy to redress their injuries other than to file this

action. Legal action by Plaintiffs in Cuba would be futile, as that country as already demonstrated that CURBELO GARCIA has no rights at all in that country and it has ignored CURBELO GARCIA’s claims that Defendants had lied. In addition, CHAPMAN has left that country for the United States and Cuba has not jurisdiction over him. 342.

Further, Legal action by Plaintiffs in Cuba could also result in serious reprisals.

Individuals who seek redress for the tortuous prison conditions and actions committed against them in prison are subjected to further violence or aggravated conditions in retribution, and CURBELO GARCIA has already experienced such vengeance from the prison guards when his family complained about his treatment there. This system has been well-documented in credible human rights reports by the U.S. Department of State, Human Rights Watch and Amnesty International. 343.

By reason of the torture conducted upon CURBELO GARCIA has suffered both

physical and mental conscious pain and suffering and all Plaintiffs have suffered pecuniary and economic damages, loss of support, loss of nurture care and guidance, grief, anguish, loss of society, loss of services and other injuries, and accordingly, the plaintiffs claim all damages allowed by law, including compensatory and punitive damages. COUNT III LOSS OF CONSORTIUM UNDER THE LAW OF FLORIDA (Against both Defendants)

69

Plaintiffs repeat and re-allege all of the previous allegations set forth in Paragraphs 1-343 of this complaint with the same force and effect as if fully set forth again. 344.

At all times relevant hereto, TURRUELLAS was and is lawfully married to

CURBELO GARCIA. 345.

CURBELO GARCIA provided the bulk of the economic support for his family by

the operation of his farm in Hialeah, Florida. 346.

CURBELO GARCIA also organized the family’s documentary affairs, including

all financial accounts, taxes, properties, and, importantly, the mortgage. 347.

Since his arbitrary arrest and prolonged detention in Cuba, the family has lost the

farm and the income that came from that business, TURRUELLAS has been unable to transfer title of the family car, which was under his name, to her own name and she is losing the family home because the mortgage is solely under his name and she is therefore unable to refinance the loan, a solution that would be available to her under other circumstance. 348.

CURBELO GARCIA’s arbitrary arrest and prolonged and continued detention in

Cuba was caused by Defendants’ deliberate actions, conducted with reckless disregard for Plaintiff’s well-being, and in furtherance of their conspiracy with the Cuban government to violate international law. 349.

As a result of Defendants’ deliberate, malicious, and reckless actions,

TURRUELLAS has suffered loss of consortium, loss of services, loss of society, mental anguish, and loss of capacity for enjoyment of life and accordingly, the plaintiffs claim all damages allowed by law, including compensatory and punitive damages. COUNT IV LOSS OF PARENTAL CONSORTIUM UNDER THE LAW OF FLORIDA (Against both Defendants) Plaintiffs repeat and re-allege all of the previous allegations set forth in Paragraphs 1-349 of this complaint with the same force and effect as if fully set forth again. 350.

At all times relevant hereto, CURBELO was and is the natural child of

CURBELO GARCIA and TURRUELLAS. 70

351.

At all times relevant hereto, CURBELO was and is unmarried and dependent on

her parents. 352.

At the time of CURBELO GARCIA’s arrest, she was sixteen (16) years of age

and attending of high school. 353.

CURBELO GARCIA provided the bulk of the economic support for his family by

the operation of his farm in Hialeah, Florida. 354.

CURBELO GARCIA also organized the family’s documentary affairs, including

all financial accounts, taxes, properties, and, importantly, the mortgage. 355.

Since his arbitrary arrest and prolonged detention in Cuba, the family has lost the

farm and the income that came from that business, CURBELO was forced to find a job at a pizza parlor in order to help her mother pay the bills, was forced to take a loan to attend school parttime rather than full-time as was the family’s plan, and she and her mother are losing the family home because the mortgage is solely under CURBELO GARCIA’s name and the family is therefore unable to refinance the loan, a solution that would otherwise be available to them. 356.

CURBELO GARCIA’s arbitrary arrest and prolonged and continued detention in

Cuba was caused by Defendants’ deliberate actions, conducted with reckless disregard for Plaintiff’s well-being, and in furtherance of their conspiracy with the Cuban government to violate international law. 357.

As a result of Defendants’ deliberate, malicious, and reckless actions, CURBELO

has suffered loss of consortium, loss of services, loss of society, mental anguish, and loss of capacity for enjoyment of life and accordingly, the plaintiffs claim all damages allowed by law, including compensatory and punitive damages. COUNT V ARBITRARY AND PROLONGED DETENTION IN VIOLATION OF ATCA (Against both Defendants) Plaintiffs repeat and re-allege all of the previous allegations set forth in Paragraphs 1-325 of this complaint with the same force and effect as if fully set forth again. 358.

At all times relevant hereto MENA PERDOMO was a citizen of the Dominican

Republic.

71

359.

MENA PERDOMO was arbitrarily arrested and was subjected to prolonged

detention in violation to the established norms of international law. 360.

During MENA PERDOMO’s detention, he was interrogated at frequent and

sporadic intervals without being provided with an opportunity to have an attorney present, was held in detention for eleven (11) months without the benefit of appearing before a judge, a tribunal, or a hearing officer, being offered a chance to provide bail or being informed of the charges against him in contravention of international law. 361.

At trial, the tribunal ignored the lack of physical evidence against MENA

PERDOMO, ignored the testimony in Plaintiff’s favor provided by MAGANA, the only true eyewitness to CHAPMAN’s claims as the person who actually spoke with CHAPMAN, ignored the legal standard demanded by the statute, and decided against MENA PERDOMO based solely on the false testimony of the Defendants. 362.

Defendants (a) knowingly and substantially assisted the Cuban government in the

arbitrary arrest and prolonged detention in violation of clearly established international law norms, and they (b) facilitated the commission of international law violations by providing the violators with false accusations against MENA PERDOMO, occasioning his arrest and his prolonged detention for the eleven month period leading up to the sham trial and securing MENA PERDOMO’s continued detention and torture by falsely testifying against him in court. 363.

Defendants acted with the intent to assist in the violation of international law.

364.

Defendants were aware that their acts and omissions assisted in the violation of

international law 365.

Plaintiff has no alternative remedy to redress their injuries other than to file this

action. Legal action by Plaintiffs in Cuba would be futile, as that country has already demonstrated that MENA PERDOMO has no rights at all there—his appeal was denied, and the Plaintiff and his family’s claims that Defendants had lied have been ignored. In addition, CHAPMAN has left that country for the United States and Cuba has no jurisdiction over him. 366.

That by reason of the arbitrary and prolonged detention of MENA PERDOMO

has been deprived of his freedom without the benefit of legal procedure, has suffered both physical and mental conscious pain and suffering, and permanently deprived of his sight, his

72

ability to walk, and his health, the plaintiff claims all damages allowed by law, including compensatory and punitive damages.

COUNT VI TORTURE IN VIOLATION OF TVPA (Against both Defendants) Plaintiffs repeat and re-allege all of the previous allegations set forth in Paragraphs 1-366 of this complaint with the same force and effect as if fully set forth again. 367.

The treatment of MENA PERDOMO in prison was torture in violation of the

368.

The deliberate and frequent acts of torture administered on MENA PERDOMO

TVPA.

were conducted under color of law. Although MENA PERDOMO was not afforded all the judicial guarantees which are recognized as indispensable by civilized peoples, the acts of torture were authorized by a Cuban tribunal, and were conducted by government officials, prison guards, and DCSE investigators. 369.

Defendants knowingly and substantially assisted the government actors to commit

acts that violate clearly established international law norms, and (b) facilitated the commission of international law violations by providing the violators with false accusations against MENA PERDOMO, occasioning his arrest, prolonged detention, and torture for the eleven month period leading up to the sham trial and securing MENA PERDOMO’s continued detention and torture by falsely testifying against him in court. 370.

Defendants acted with the intent to assist in the violations of international law.

371.

Defendants were aware that their acts and omissions assisted in the violations of

international law 372.

Plaintiffs have no alternative remedy to redress their injuries other than to file this

action. Legal action by Plaintiffs in Cuba would be futile, as that country as already demonstrated that MENA PERDOMO has no rights at all in that country and it has ignored MENA PERDOMO’s claims that Defendants had lied. In addition, CHAPMAN has left that country for the United States and Cuba has not jurisdiction over him.

73

373.

By reason of the torture conducted upon MENA PERDOMO has suffered both

physical and mental conscious pain and suffering and all Plaintiffs have suffered pecuniary and economic damages, loss of support, loss of nurture care and guidance, grief, anguish, loss of society, loss of services and other injuries, and accordingly, the plaintiffs claim all damages allowed by law, including compensatory and punitive damages. WHEREFORE, Plaintiffs demand judgment against Defendants, jointly and severally, on each and all causes of action in this Complaint on behalf of each and all Plaintiffs against each and all Defendants, jointly and severally, for compensatory damages in the sum of $3 million for each individual plaintiff, totaling $12 million (TWELVE MILLION DOLLARS) in compensatory damages, and punitive damages in the sum of $3 million for each individual plaintiff, totaling $12 million (TWELVE MILLION DOLLARS) in punitive damages, making in all the sum of $24,000,000.00 (TWENTY-FOUR MILLION DOLLARS), along with interest, costs and disbursements. JURY DEMAND Plaintiffs hereby demand a trial by jury on all causes of action. REQUEST FOR JUDICIAL NOTICE Pursuant to Rule 44 and 44.1 of the Federal Rules of Civil Procedure and Rule 201 of the Federal Rules of Evidence, Plaintiffs respectfully request that this Court take judicial notice of the following: 374.

Plaintiffs respectfully request that the Court take judicial notice of the signed

Declaration of AROLDIS CHAPMAN to the Cuban Security against Danilo Curbelo Garcia, a certified copy and translation of which was attached as Exhibit A filed concurrently herewith. 375.

Plaintiffs respectfully request that the Court take judicial notice of the signed

Declaration of JUAN ALBERTO CHAPMAN BENETT to the Cuban Security against Danilo Curbelo Garcia, a certified copy and translation of which was attached as Exhibit B filed concurrently herewith. 376.

Plaintiffs respectfully request that the Court take judicial notice of the Cuban

Court’s decision and sentence of DANILO CURBELO GARCIA, a certified copy and translation of which was attached as Exhibit E filed concurrently herewith.

74

377.

Plaintiffs respectfully request that the Court take judicial notice of British

Embassy, Havana Consular Section, Information for British Nationals Imprisioned in Cuba, at ukincuba.fco.uk/resources/es/world/doc1/Pris-Con (last visited on July 31, 2012), which states the process for arrest and detainment in Cuba, a copy of which was attached as Exhibit D filed concurrently herewith. 378.

Plaintiffs respectfully request that the Court take judicial notice of U.S.

Department of State, 2008 Trafficking in Persons Report, pp. 102-103, where the Department of State identifies Cuba as a country that supports human trafficking, a copy of which was attached as Exhibit H filed concurrently herewith. 379.

Plaintiffs respectfully request that the Court take judicial notice of Department of

State’s Bureau of Consular Affairs, Country-Specific Information for Cuba, provided by the (printed on August 7, 2012, from travel.state.gov/travel (last visited on August 7, 2012), which details the repressive manner in which Cuban-American’s are treated in Cuba, a copy of which was attached as Exhibit I filed concurrently herewith. 380.

Plaintiffs respectfully request that the Court take judicial notice of US Department

of State: Country Report on Human Rights Practices 2010, 08 April, which describes Cuba’s practice of citizen-on-citizen surveillance, Cuba’s unsanitary and inhumane prison conditions, Cuba’s practice of expedited or summary trials, Cuba’s lack of compliance with due process in their legals system, and the torture that takes place in Cuban prisons, a copy of which was attached as Exhibit J filed concurrently herewith. 381.

Plaintiffs respectfully request that the Court take judicial notice of Human Rights

Watch, Cuba’s Repressive Machinery, which describes in detail Cuba’s citizen-on-citizen surveillance, Cuba’s unsanitary and inhumane prison conditions, Cuba’s practice of expedited or summary trials, Cuba’s lack of compliance with due process in their legal system, a copy of which was attached as Exhibit L filed concurrently herewith. 382.

Plaintiffs respectfully request that the Court take judicial notice of Human Rights

Watch, New Castro, Same Cuba, which describes in detail Cuba’s citizen-on-citizen surveillance, Cuba’s unsanitary and inhumane prison conditions, Cuba’s practice of expedited or summary trials and extended pretrial detention, Cuba’s lack of compliance with due process in

75

their legal system, Cuba’s unfair sham trial, and Cuba’s torture of prisoners, a copy of which was attached as Exhibit S filed concurrently herewith. 383.

Plaintiffs respectfully request that the Court take judicial notice of U.S.

Department of State, Bureau of Democracy, Human Rights and Labor, Country Report on Cuba, which describes in detail Cuba’s citizen-on-citizen surveillance, Cuba’s unsanitary and inhumane prison conditions, Cuba’s practice of expedited or summary trials and extended pretrial detention, Cuba’s lack of compliance with due process in their legal system, Cuba’s unfair sham trial, and Cuba’s torture of prisoners, a copy of which was attached as Exhibit W filed concurrently herewith. 384.

Plaintiffs respectfully request that the Court take judicial notice of Senate

Resolution .354, 112th Congress, 2nd Session, January 26, 2012, which acknowledges Cuba’s expedited trial procedure and the denial of attorney representation and unfair “sham” trials, a copy of which was attached as Exhibit X filed concurrently herewith. 385.

Plaintiffs respectfully request that the Court take judicial notice of Saludes v.

Republic of Cuba, 655 F.Supp.2d 1290 (S.D. Fla. 2009), in which the court held that the treatment of Plaintiff, Omar Rodriguez Saludes, which included solitary confinement, prison transfers far from his family, prolonged periods of confinement up to 23 hours a day without sunlight or fresh air, being fed food that was insufficient, spoiled, rotten or contained insects, animal parts and vermin, being denied proper medical attention, and living in unhygienic conditions with improper toilet facilities, was torture. A copy of the opinion is attached as “Exhibit Y” is filed concurrently herewith. This Request is made in part under Rule 44 of the Federal Rules of Civil Procedure provides a means for proving an official records, stating, that “each of the following evidences a foreign official record—or an entry in it—that is otherwise admissible: (i) an official publication of the record; or(ii) the record—or a copy—that is attested by an authorized person and is accompanied either by a final certification of genuineness or by a certification under a treaty or convention to which the United States and the country where the record is located are parties.” Fed. R. Civ. P. 44(a)(2). This Request is made in part under Rule 44.1 of the Federal Rules of Civil Procedure. “In determining foreign law, the court may consider any relevant material or source, including 76

testimony, whether or not submitted by a party or admissible under the Federal Rules of Evidence. The court’s determination must be treated as a ruling on a question of law.” Fed. R. Civ. P. 44.1. A federal court may take judicial notice of foreign law under this rule. See MCA, Inc. v. United States, 685 F.2d 1099, 1104 n.12 (9th Cir. 1982) (“Under Fed. R. Civ. P. 44.1, when the parties have given written notice of intent to raise an issue of foreign law, a federal court may take judicial notice of the laws of a foreign country.”). This request is also made pursuant to Rule 201 of the Federal Rules of Evidence. The Court may take judicial notice of any document “capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned.” Under Rule 201, courts may take judicial notice of matters of public record, including court records. See Lee v. Los Angeles, 250 F.3d 668, 689 (9th Cir. 2001); Reyn's Pasta Bella, LLC v. Visa USA, Inc., 442 F.3d 741, 746 n.6 (9th Cir. 2006) (“We may take judicial notice of court filings and other matters of public record.”). Inasmuch as Claimants have supplied the necessary information to demonstrate accuracy, the Court should take judicial notice. See Fed. R. Evid. 201(c)(2). Specifically, a Court may take judicial notice of facts contained in international treaties, reports from the U.S. Department of State, United Nations policies and publications, government websites, and the Federal Register, which are all considered accurate sources that are readily available to the public. See Munich Reinsurance Co. v. First Reinsurance Co. of Hartford, 6 F.2d 742 (2nd Cir. 1925) (stating that the court is “entitled” to take judicial notice of a treaty); Dobrota v. I.N.S., 195 F.3d 970 (7th Cir. 1999) (taking judicial notice of the State Department’s report on Romanian human rights practices); U.S. v. Piedrahita-Santiago, 931 F.2d 127 (1st Cir. 1991) (taking judicial notice of facts contained in a United Nations publication on conditions for registration of ships); Morgan Guar. Trust Co. of New York v. Rep. of Palau, 924 F.2d 1237 (2nd Cir. 1991) (taking judicial notice of action taken by the United Nations Security Council regarding termination of trustee arrangement with other nations); Full Circle Dairy, LLC v. McKinney, 467 F. Supp. 2d 1342, 1347 n.6 (M.D. Fla. 2006) (taking judicial notice of the contents of an FAQ web page located on the State of Florida website); see also, O’Toole v. Northrop Grumman Corp., 499 F.2d 1218, 2007 WL\

77

WHEREFORE, the Plaintiffs respectfully request that the court take judicial notice of Exhibits A, B, D, E, H, I, J, L, S, W, X, and Y. By: s/Avelino J. Gonzalez _ Avelino J. Gonzalez, Esq., FBN 75530 Kenia Bravo, Esq., FBN 68296 Law Offices of Avelino J. Gonzalez, P.A. 6780 Coral Way, Miami, Florida 33155 Ph: 305-668-3535; Fax: 305-668-3545 E-mail: [email protected] CERTIFICATE OF SERVICE I HEREBY CERTIFY that on August 14, 2012, I electronically filed the foregoing with the Clerk of the Court by using the CM/ECF system. By: s/Avelino J. Gonzalez _ Avelino J. Gonzalez, Esq., FBN 75530 Kenia Bravo, Esq., FBN 68296 Law Offices of Avelino J. Gonzalez, P.A. 6780 Coral Way, Miami, Florida 33155 Ph: 305-668-3535; Fax: 305-668-3545 E-mail: [email protected]

78