Cuba

He thought he was getting away with murder when he fled to Cuba. But in unusual legal twist, a Cuban court convicted him of the U.S. crime

Marcos Yanes Gutierrez was on the Palm Beach County Sheriff’s Department’s most wanted list.
Marcos Yanes Gutierrez was on the Palm Beach County Sheriff’s Department’s most wanted list. Palm Beach County Sheriff's Department

With the help of U.S. prosecutors, a young Cuban man accused of shooting a Palm Beach County doctor in the head in 2015 and fleeing to the island to escape the reach of the U.S. law has been convicted by a Cuban court of murder and sentenced to 20 years in prison.

The highly unusual tactic to get a conviction was undertaken because the Cuban government doesn’t extradite Cuban nationals to the United States for trial, and it is a sign of growing law enforcement cooperation between the two countries.

Marcos Yanes Gutierrez was tried in Cuba for the murder of Dr. Ronald Schwartz under Cuban law with evidence provided by Palm Beach County prosecutors, according to a U.S. Justice Department official. The Florida prosecutors agreed to transfer the prosecution to Cuba, and the trial — held in May — was public and open to U.S. and other observers.

“The defendant was provided the procedural and due process rights afforded to criminal defendants under Cuban law, to include the right to counsel and cross-examination, and to review the evidence against him,” said the Justice official. Yanes Gutierrez was convicted and sentenced to 20 years.

Two attorneys from the Palm Beach County State Attorney’s Office and an investigator made multiple trips to Cuba for the proceedings.

“That’s pretty incredible — trying one of their citizens for a crime committed outside their country. I don’t think any U.S. court would exercise jurisdiction over a U.S. national who committed a crime in another country,” said Marcos Jimenez, a former U.S. attorney in Miami. “Palm Beach prosecutors may have thought this was their only chance to get some sort of justice for the victim of the crime.

“Maybe the Cubans are doing this to curry favor with the U.S.,” he added.

“To me this is a product of diplomacy,” said Phil Horowitz, a Miami criminal defense attorney. “It also shows that in international cases when there is cooperation between governments justice can be done. The Cold War does occasionally thaw.”

The Cuban Embassy in Washington confirmed the Justice Department account on Monday. “This conviction was the result of the experience in bilateral cooperation on issues of common interest such as law enforcement and, particularly in this case, on issues related to judicial assistance,” the embassy said in response to a Herald query.

Yanes Gutierrez was 19 when he and a friend, Saul Retana Lopez, went to the Jupiter Farms home of Schwartz in July 2015 to see about Retana, a former employee, getting his old job back. When the men began to argue, Retana told police that Schwartz went for a revolver in his bedroom and shot him and slightly wounded him.

Retana, who was arrested and charged with first degree murder, said that then he pulled a handgun and shot Schwartz in the rib cage. Schwartz fell to the floor moaning in pain, and Yanes Gutierrez “picked up Schwartz’s firearm and shot him in the head,” the police report said.

The two men ransacked the house, taking with them a jewelry box, watches, currency and several firearms before they fled, police said. After telling an acquaintance that he “did something stupid in Jupiter,” police said, Yanes Gutierrez fled to the island.

In January 2016, a Palm Beach Sheriff’s spokesman told the Miami Herald that “detectives are currently working with federal authorities regarding extradition” of Yanes Gutierrez on charges of first degree murder with a firearm and robbery with a firearm.

But something appeared to happen with the case in February 2016. The docket entries stop on Feb. 24, 2016, with a notation that simply says “warrant returned.” A few days before there is a notation: “Do not docket on this case.”

The Palm Beach County State Attorney’s Office said Wednesday that it couldn’t comment at all on the Yanes Gutierrez case. But on Thursday morning, State Attorney Dave Aronberg tweeted he was “honored” to have played a role in the case.

<blockquote class="twitter-tweet" data-lang="en"><p lang="en" dir="ltr">Honored to help bring a measure of justice to the family of a murder victim in this unprecedented matter. <a href="https://t.co/RnCEaKbc8E">https://t.co/RnCEaKbc8E</a> <a href="https://twitter.com/hashtag/sayfie?src=hash&amp;ref_src=twsrc%5Etfw">#sayfie</a> <a href="https://twitter.com/hashtag/flapol?src=hash&amp;ref_src=twsrc%5Etfw">#flapol</a> <a href="https://twitter.com/HeraldMimi?ref_src=twsrc%5Etfw">@HeraldMimi</a> <a href="https://twitter.com/MiamiHerald?ref_src=twsrc%5Etfw">@MiamiHerald</a></p>&mdash; Dave Aronberg (@aronberg) <a href="https://twitter.com/aronberg/status/1030110977956691968?ref_src=twsrc%5Etfw">August 16, 2018</a></blockquote> <script async src="https://platform.twitter.com/widgets.js" charset="utf-8"></script>

Although there is an old extradition treaty between the two countries, it has fallen into disuse, and in practice Cuba does not extradite Cuban nationals to the United States.

The Department of Justice, the State Department and the State Attorney’s Office all declined to comment on how the case came to be transferred to Cuba and who suggested the novel solution to the legal dilemma.

However, Phil Peters, president of the Virginia-based Cuba Research Center, said Cuban officials told him and others during a trip to Havana that since the Cubans were unwilling to extradite Yanes Gutierrez, they had offered U.S. authorities the chance to try Yanes Gutierrez in Cuba.

“This is the first time the United States has put its faith in the Cuban court system and collaborated with Cuban prosecutors,” said Peters. “It’s certainly opened the door to the possibility that Medicare fraudsters could face the same process. I would not think they would be sleeping peacefully based on this case.”

Cuba has long been a popular escape route for Medicare fraud fugitives from South Florida. Over the past decade, dozens of defendants have sought safe haven in Cuba rather than face criminal charges in Miami.

Horowitz said he once represented a defendant in a drug trafficking case that has some parallels with the Yanes Gutierrez case — but in reverse. Cuban officials came to Miami in 1997 to help make a case against two Colombian drug traffickers who were being tried in federal court, he said. “Without the Cuban cooperation, the U.S. wouldn’t have been able to prosecute the case,” Horowitz said.

The U.S. Coast Guard interdicted a small boat “loaded to the gills with cocaine” in international waters off the Cuban coast. In an attempt to scuttle the craft, the chief engineer flooded the boat. It was left adrift and floated into Cuban waters before finally beaching itself on the Cuban coast. Cuban evidence helped convict the two traffickers, said Horowitz.

The U.S. State Department first made reference to the recent case in a July 10 media note after the United States and Cuba held a Law Enforcement Dialogue in Washington. It said that “the delegations reviewed recent progress in the law enforcement relationship, such as new bilateral cooperation that resulted in the conviction of a Cuban national who murdered an American citizen and who had fled prosecution in the United States.”

The State Department confirmed that the reference was to Yanes Gutierrez’s case but referred further questions to the Department of Justice, which to date has only provided bare-bones details on Yanes Gutierrez’s trial.

In another recent sign of growing law enforcement cooperation between the two countries, an accused U.S. eco-terrorism suspect linked to dozens of acts of arson and vandalism carried out in the Pacific Northwest and West by a group known as The Family was detained in Havana last week by Cuban authorities and put on a plane to the United States to face felony changes.

Joseph Mahmoud Dibee, 50, who had been on the run for 12 years, made an initial court appearance in Portland, Oregon, last Friday afternoon — a day after Cuba handed him over to U.S. authorities in Havana, preventing him from boarding a flight bound for Russia.

According to court records, Dibee, an American, was traveling in Central America when U.S. authorities learned he planned to travel to Russia with a planned stop in Cuba. Cuba’s Ministry of Foreign Affairs (Minrex) said Dibee entered Cuban national territory on July 31. He had been on an Interpol Red Alert list.

Minrex said it detained Dibee, who had been traveling the world to avoid capture, based on “Cuba’s strict compliance with its international legal obligations and existing bilateral agreements with the United States” as well as “the cooperation that both governments are developing on that front.’’

Late in the Obama administration, Cuba and the United States signed a memorandum of understanding in which the two countries stated their intention “to collaborate in the prevention, interdiction, monitoring, investigation and prosecution” of terrorist actions and other serious crimes.

Dibee fled the United States in December 2005 after he was indicted along with 11 co-conspirators from The Family who federal authorities said were linked to dozens of criminal acts between 1995 and 2001 that caused more than $45 million in damages, including a 1998 firebombing of a Vail ski resort that caused an estimated $26 million in damages.

The FBI said The Family carried out its violent acts in the name of the Animal Liberation Front and the Earth Liberation Front.

“Just because time passes doesn’t mean the FBI forgets,” said Special Agent Tim Suttles, who has been working on the investigation dubbed Operation Backfire since 2004. “We are very gratified to have Dibee in custody.”

Follow Mimi Whitefield on Twitter: @HeraldMimi

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