In First Cuba Travel Decision, Judge Cuts Penalty 90%

In the first final decision issued in a Cuba travel case, Administrative Law Judge Robert Barton on Tuesday ordered a sharply reduced fine of only $780 against a Minnesota traveler who went to Cuba on a scuba diving trip in January and February 1999. The government had originally sought a penalty of $7,530 for the trip and bringing back rum, candy and artwork for personal use, but at the October 12, 2004 hearing, prosecutors reduced its claim to $6,777, based on alleged aggravating and mitigating circumstances.

The Judge, however, rejected each of the government's claims of aggravating circumstances, and found that the traveler, Craig Ostrem of Edina, MN, was entitled to a 90% reduction in the proposed penalty based on numerous mitigating factors. These included "an extraordinary mitigating factor" because Ostrem relied on the representations of ScubaCan, a Canadian tour operator, that his trip was a "fully hosted, completely legal dive." Ostrem's attorney, Mathew Armbrecht from Minneapolis, presented the prior congressional testimony of Richard Newcomb, as head of the U. S. Treasury Department's unit charged with enforcing the travel restrictions to Cuba, in which Newcomb said that operators outside the U.S. were attempting to lure innocent U.S. citizens into such travel, and that such reliance would be an "extraordinary" mitigating factor.

Ostrem also asserted that the Treasury Department targeted U.S. travelers, while not trying to go after such travel agencies. However, the Judge declined to criticize the government's failure to protect U.S. consumers by seeking action against tour operators such as ScubaCan, whose actions allegedly undermine U.S. foreign policy, while expending limited government resources to target good-faith travelers such as Mr. Ostrem in the name of national security.

Atty. Armbrecht further argued that the Treasury Department's own guidelines reveal that it has not treated alleged offenders equally, since Cuban Americans visiting relatives in Cuba and institutions illegally wiring funds to Cuba may be given only a "warning letter" for a first offense, compared to a proposed penalty of $7,500 which the government seeks from other individual U.S. travelers for a first offense. Judge Barton did not address those arguments.

Judge Barton did rely on Newcomb's testimony in finding that between 150,000 and 200,000 Americans visited Cuba in 2000, approximately one third of them unlawfully. Only a small percentage of them have been prosecuted by the U.S., according to Atty. Arthur Heitzer, of the National Lawyers Guild's Cuba Subcommittee, which has organized a network of lawyers to assist US travelers to Cuba, and may reached at (414) 273-1040 or www.nlg.org/cuba . Heitzer noted that one other such decision is pending before an administrative judge, in the case of Michael and Andrea McCarthy, Catholic activists from Port Huron, Michigan, who went to Cuba on a humanitarian and religious mission to work with the Passionist order of nuns. The network, organized by the NLG and the Center for Constitutional Rights, is monitoring the hearing process, according to Heitzer.

[END; A copy of the decision is attached -- A.H.]

Art Heitzer aheitzer@igc.org Law Offices of Arthur Heitzer 633 W. Wisconsin Ave Suite 1410 Milwaukee, WI 53203 414-273-1040, ext. 12; fax 414-273-4859