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Trial begins of man accused of smuggling Cubans
By Elysa Batista

Wednesday, December 13, 2006

Why were three Cuban men who had been questioned by Collier County sheriff’s deputies on the same day that 20 Cuban migrants landed near Marco Island let go and not arrested?

That was one of the questions that defense attorney Joaquin Perez asked as the trial of Noel Lopez, one of the men accused of smuggling the Cuban migrants into Collier County in August, got under way in a Fort Myers federal courtroom Tuesday.

Perez questioned how authorities made the call to let the three men, who were in a nearly identical boat as the one Lopez was in, drive away without detaining them or dusting their boat for fingerprints.

Lopez’s trial began at 9:30 a.m., and a jury of five men and eight women was picked within about two hours. Assistant U.S. Attorney Jesus Casas, presenting opening arguments for the federal government, argued that the evidence will show that Lopez was part of the smuggling operation.

After 4½ hours of testimony from six witnesses for the prosecution, including two Collier County sheriff’s deputies, a former U.S. Customs and Border Patrol agent and the manufacturer of the boats, U.S. District Judge John E. Steele continued the trial until 9 a.m. today.

“We’re progressing as we expected,” Casas said afterward.

Joaquin Perez, Lopez’s attorney, didn’t want to comment.

“I don’t think that would be appropriate,” Perez said.

Lopez, 32, and Juan Gonzalez-Hernandez, 38, were arrested on Aug. 15 aboard a 25-foot boat after 20 Cuban nationals, including a pregnant woman and a 1-year-old boy, came ashore at the north end of the Judge S.S. Jolley Bridge at Marco Island.

They were charged with conspiracy to bring aliens into the United States. A subsequent indictment on Sept. 13 charged the men with “knowingly and willfully” bringing illegal aliens into the United States.

Each charge can carry a sentence of up to 10 years in prison per smuggled illegal alien and a $250,000 fine. At that time both men pleaded not guilty and posted $50,000 bail.

However, Gonzalez-Hernandez pleaded guilty to the charges on Nov. 27 after Steele upheld Magistrate Judge Sheri Polster Chappell’s recommendation to deny a defense motion seeking to dismiss statements he gave to U.S. Border Patrol agents at the Pembroke Pines Border Patrol station shortly after his arrest.

He still is out on bail and awaiting sentencing.

As a result, Lopez is being tried independently of Gonzalez-Hernandez and of any evidence found in that case.

So the “burden of proof” falls to the prosecution, Steele made that point with the jurors during the jury selection.

Steele said that just because a defendant has been indicted doesn’t mean that he did something wrong.

Documents show Lopez and Gonzalez-Hernandez arrived at the Border Patrol station in Pembroke Pines, where they were advised of their Miranda rights. Gonzalez-Hernandez waived his rights and made a statement without an attorney present. Lopez refused to make a statement.

Collier sheriff’s marine unit deputies boarded the boat and found about 15 life vests, a tarp used to cover the Cubans and “substantial food provisions.”

Documents show that during an initial interview with U.S. Border Patrol agents, Lopez and Gonzalez-Hernandez said they had just taken the boat out at approximately 6:30 a.m. on Aug. 15 and were going fishing but that their bait had fallen overboard.

Lopez said that a friend had dropped them off and was to return later with the trailer to pick them up. However, court records show, the Cuban nationals claimed their boat began to take on water when they were rescued by Lopez and Gonzalez-Hernandez, who happened to be in the area somewhere offshore on Aug. 14 around midday.

Those in the group said they were taken to shore around 4 a.m. on Aug. 15.

All 20 of the Cuban nationals stated that they were citizens and nationals of Cuba and that they had left the island nation on Aug. 13 on a homemade boat when they ran into bad weather.

The 20 Cuban migrants were released later that day after being processed and interviewed by Border Patrol agents and receiving the all-clear from the Florida Department of Health.

They were then referred to local volunteer agencies for resettlement help as part of the Department of Homeland Security’s Cuban Haitian Entrant Program.