Miami Herald, The (FL)-September 30, 1993
Author: TOM DUBOCQ Herald Staff Writer
The Justice Department announced Wednesday that it won't prosecute the Cuban airline pilot who diverted his passenger jet to Miami. The decision comes despite concern that it might inspire air piracies.
Carlos Cancio Porcel, who became a cause celebre in Miami's exile community after a grand jury began investigating him, won't be indicted because of the "unique facts" surrounding the flight, U.S. Attorney Roberto Martinez said.
Prosecutors agreed with Cancio's attorneys, who contended that federal air piracy law is vague on a central issue: Can a plane be hijacked by its own pilot?
Justice officials in Washington, sensitive to political pressure in Miami, agreed the case was too risky to pursue, that the odds of losing were too great. Still, they worried about the potential consequences.
"Today's decision should not be viewed as condoning the forceful or violent seizure of aircraft," Martinez said in a prepared statement. "The federal government will aggressively and thoroughly investigate, and prosecute violations involving the use of force or violence to seize an aircraft."
Cancio's attorney, Jose Quinon, said the pilot and assisting passengers did everything possible to keep the plane safe. Ultimately, he said, the end justifies the means.
"This is not only good for Mr. Cancio, but for other individuals seeking to leave the island," Quinon said. "Is there a danger for escalating danger or violence? Yes, there are some chances that have to be taken. People are desperate to leave Cuba."
In an interview after a news conference at the Cuban American National Foundation,
Cancio called the government's decision "a great victory that shows that, indeed, there is justice in this land of freedom. It vindicated me in that I did nothing wrong. I simply flew people to freedom."
Cuban exile leaders also voiced satisfaction.
"We salute this decision not to prosecute Mr. Cancio," said Roberto Rodriguez Aragon, president of the Cuban Patriotic Junta, an umbrella exile organization. "Justice was done. Also this opens the door for other Cuban pilots and ship captains who serve the tyranny to escape to the United States."
But while the decision was cheered by Cancio and his supporters, others wondered about air safety implications.
"On the one hand, the United States is one of the leading proponents of strongly enforcing aircraft piracy laws," said Jim
Casey, an attorney or the Air Transport Association, an airline industry group. "On the other hand, the government has a long history of opposing communist regimes. When these types of incidents occur, it creates a dilemma."
Last December, Cancio took off from Havana in an AeroCaribe aircraft on a flight to
Varadero, a popular Cuban beach. Instead, the co-pilot was lured into the passenger cabin, overpowered and manacled. An armed state security agent was knocked out with an ether-laced handkerchief. Cancio, with a passenger in the co-pilot's seat, turned the plane toward Florida.
After landing at Miami International Airport, Cancio and 47 passengers asked for asylum.
But five others aboard said they had been taken to Miami against their will: the co-pilot, his wife and child, the security guard and a flight attendant.
Investigators considered charging Cancio and the assisting passengers with a number of federal crimes: air piracy, interfering with a flight crew, kidnapping and interstate transport of stolen property.
The investigation infuriated some political exiles, including the politically influential Cuban American National Foundation. Some 300 protesters picketed Miami's federal courthouse in August after learning that witnesses secretly flown from Cuba were testifying against Cancio before a grand jury.
The handling of Cancio's case also drew the ire of Haitian activists, who complained of a racist, double standard.
Two months after Cancio arrived, Haitian Woody Marc Edouard hijacked a plane to Miami. Edouard's .38-caliber revolver fired accidentally during his hijacking, and he was charged with air piracy. His trial is scheduled for next May; if convicted, he faces 20 years to life in prison.
Prosecutors said the cases are different because Cancio was the pilot, and Edouard a commandeer. Steve Forester, attorney for the Haitian Refugee Center, says the cases only differ politically.
"We had a Haitian hijacker and they threw the book at him," Forester said. "It's hard to imagine that this decision (on Cancio) was made without regard to the larger context: Different groups are treated differently for political reasons."
The political implications were not lost on the U.S. Attorney's Office -- especially the Cuban-born Martinez, who is leaving office at the end of this week. Martinez, however, repeatedly has insisted that politics had nothing to do with how the case was handled.
The case was examined for months before prosecutors decided this: As commander of the plane, Cancio exercised legal authority when he winged it to Miami. The U.S. Anti-Hijacking Act of 1974 doesn't apply, they reasoned, because a pilot can't hijack a plane. They also took it a step further: As pilot, Cancio was within his rights to subdue the co-pilot and security guard to assure the safety of his passengers.
Without those elements, the case against Cancio evaporated. He is now supporting his family as a lunch-truck driver. color photo: Pilot Carlos Cancio Porcel (REFUGEE CUBAN)
Edition: FINAL
Section: FRONT
Page: 1A
Index Terms: CUBAN DECISION
Record Number: 9303050717
Copyright (c) 1993 The Miami Herald
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