Published Friday, August 13, 1999, in the Miami Herald

Brothers to the Rescue survivors given new lead on Cuban payment

Herald Staff Writer

While an appeals court denied families of three slain Brothers to the Rescue fliers about $6.2 million Wednesday, the court pointed the families toward a bigger pot of Cuban gold.

A footnote in the decision by the 11th Circuit Court of Appeals identified EMTELCUBA -- a former Cuban government telephone company -- as a potential source of funds. Victor Diaz, a lawyer representing the three families, said U.S. phone companies owe EMTELCUBA more than $115 million, which he will try to garnish.

``The court didn't have to do that,'' Diaz said. ``It went out of its way to point us in another direction. I guess they agreed with the end but wanted different means.''

In December 1997, Miami District Judge James Lawrence King awarded $187.6 million to the families of Armando Alejandre Jr., Carlos Costa and Mario de la Peña, who were shot down by Cuban MiGs over international waters in 1996.

The family of a fourth fallen flier, Pablo Morales, could not sue because he was not a U.S. citizen.

But the appeals court blocked the families' effort to collect from the millions that U.S. phone companies owe the Cuban company Empresa de Telecomunicaciones de Cuba, S.A., also known as ETECSA. It ruled that ETECSA is not a legal stand-in for the Cuban government.

Then, the appeals court offered an alternative.

Governmental entity

``The court gives us the green light to go after money owed to EMTELCUBA,'' Diaz said. ``It said you didn't give us enough evidence to prove ETECSA is an alter ego of the Republic of Cuba. But it's a different story with EMTELCUBA, because that's a wholly owned alter ego of the Cuban government.''

EMTELCUBA, established in 1976 and controlled by the Cuban government, dissolved in 1994 when ETECSA formed. ETECSA now has an exclusive concession to operate the Cuban telephone system.

ETECSA is owned 59 percent by companies owned by the Cuban government and 41 percent by foreign companies. The foreign stake is why the appeals court ruled that the company does not adequately represent the Cuban government.

Michael Krinsky, lawyer for ETECSA and EMTELCUBA, did not return calls to The Herald.

Wednesday's decision was the first in a round of many as the families search in the United States for pockets of money owed to Cuba.

Diaz said he has not decided whether he will appeal the decision to the Supreme Court.

Other money targeted

In addition to EMTELCUBA, Diaz said he will go after other Cuban money being held in the United States, including $150 million frozen in 1960 and being held by the U.S. Treasury Department.

Relatives of the fliers say they will not give up.

``This is about human rights and about justice. We seem to get bogged down in technicalities. But the families aren't going to stop,'' said Maggie Khuly, sister of Armando Alejandre. ``We do believe in the U.S. judicial system, and that eventually we will get justice.''
In a March ruling, U.S. District Judge James Lawrence King gave the families the go-ahead to garnish payments for long-distance calls owed to the Cuban telephone company by U.S. companies.

The $6.2 million denied to families Wednesday was to have come from payments for long-distance calls from U.S. telephone companies to ETECSA.

The largest payments, more than $4.1 million, would have come from AT&T, and about $1.05 million from MCI International.

Spokesmen for AT&T and MCI would not comment on the case.

In February, the Cuban telephone company stopped most direct service to the United States because U.S. phone companies had been withholding payments since Dec. 29, awaiting King's ruling.

But U.S. carriers then rerouted calls to Cuba, apparently through third countries or onto Sprint telephone lines, which were not affected. Interruptions were minimal.

Copyright 1999 Miami Herald