In U.S. v. Arias-Izquierdo, No. 04-12034 (May 22, 2006), the Court affirmed aircraft piracy convictions for six Cuban defendants who diverted an aircraft bound for Havana to Key West, Florida, rejecting each of the defendants’ separate challenge.
As to one defendant, the Court rejected the argument that there was insufficient evidence to support his conviction for aiding and abetting the hijacking, pointing to the testimony that this defendant walked through the aircraft holding a knife or an axe, and exclaimed to passengers during the flight that they should remain seated and quiet.
As to a second defendant, the Court rejected the argument that the district court abused its discretion in refusing to allow cross-examination of government witnesses about their membership in the Communist Party in Cuba. The district court disallowed these questions because it concluded that their purpose was to prejudice anti-Communist members of the jury. The Court noted that the defendant was allowed to question witnesses, inter alia, about whether they received benefits from the Cuban government for their testimony. The Court also noted that questions about Communist Party affiliation would not have been probative of their truthfulness. The Court found no abuse of discretion.
As to a third defendant, the Court rejected the argument that he was not guilty of aircraft piracy because he only acted to secure the aircraft steward, not the pilot. The government proved that he used intimidation and threats of violence to maintain control over the passenger cabin of the aircraft, in a manner meant to influence the flight plan and the pilot. This sufficed to sustain the conviction.
The Court agreed with the defendant that a summary of flight information, prepared by an employee of Cubana Airlines for the prosecution, was not admissible as a "business record" under FRE 803(6). The document was not prepared at or near the time of the event it recorded. The Court also noted that the government did not satisfy FRE 1006, because the underlying records supporting the summary were not provided to the defense. Thus, the district court erred in allowing the document to be admitted. However, in light of the strength of the government’s other evidence, the error was harmless.
The Court rejected the argument that the district court should have instructed the jury that two of the counts charged in the indictment were "lesser included offenses." The Court instruced the jury to consider each count separately. The jury’s verdict showed that it followed this instruction, as it did not convict all defendants on all counts. Thus, the requested instruction was properly denied.
The Court rejected the argument that 20-year sentence was "cruel and unusual punishment." "The hijacking of an aircraft is an extraordinarily dangerous undertaking," the Court noted. Further, the fact that the defendant was fleeing a repressive Cuban government was not a consideration.
As to a fifth defendant, the Court rejected the argument that the jury should have been instructed that "knowingly" meant "not because of . . . [an] innocent reason." The Court found that this language would have misled the jury into thinking that a desire to leave Cuba is an innocent reason for hijacking an aircraft.
The Court found no error in denying post-trial discovery of a Cuban government witness who defected to the United States shortly after the trial. The Court noted that the defense did not show that the witness would have changed his story.
Finally, the Court found Booker error in the district court’s imposition of a two-level obstruction of justice enhancement under a mandatory Guidelines regime. The Court pointed out that the district court at sentencing said it was "reluctant" to impose the enhancement. This indicated a probability of a different result on resentencing, and justified a remand.
