To Tap Cuba Funds
Kin of Two Castro Casualties
Sought Justice for Years;
A Court's Award in Limbo
Company Presses Its Own Claim
By EVAN PEREZ
September 15, 2006; Page A1
In February, nearly 45 years after two American men were executed by Fidel Castro's government, their families were on the verge of collecting $88.5 million in damages from Cuba's long-frozen U.S. accounts.
Then the relatives of Howard Anderson and Thomas "Pete" Ray ran up against an unexpected obstacle: OfficeMax Inc.
The office-products giant, founded in 1988, didn't exist at the time of the Cuban revolution. But in 2003 the company was purchased by Boise Cascade Corp., a paper-products company that adopted the OfficeMax name. Through a 1960s acquisition, Boise Cascade took a majority stake in Cuban Electric Co., which owned most of Cuba's pre-Castro electricity systems. As a result, OfficeMax today controls the largest single U.S. claim against the Cuban government for property confiscated after the 1959 revolution.
The U.S. Foreign Claims Settlement Commission, an arm of the Justice Department, has certified nearly 6,000 U.S. claims for property seized by Cuba. Claimants hope that after the reign of Fidel Castro ends they can recover their homes, factories, beachfront land and sugar plantations believed to be valued at $6.7 billion today. To settle some claims, they also expect to gain access to more than $268 million in Cuban assets -- largely held in U.S. banks -- that were frozen under the Kennedy administration's Cuban embargo.
Most citizens and businesses will likely have to wait years to recoup any losses. In the mid-1990s, a coalition of U.S. companies, including OfficeMax's future parent, put pressure on the Clinton administration to settle its members' numerous claims with Cuba -- with no luck.
But thanks to special antiterrorism laws passed in 1996 and 2002, a few families have been able to leapfrog to the head of the line. The legislation helped permit relatives of Messrs. Anderson and Ray to seek, and ultimately win, wrongful-death judgments in Florida state courts, with a federal judge in January clearing the way to tap into the frozen Cuban funds.
OfficeMax wasn't pleased with the news. In March, the company filed court papers in New York U.S. District Court, Southern District, seeking to block the Ray and Anderson relatives from collecting.
Robert Muse, a Washington, D.C., lawyer who represents Cuban Electric and OfficeMax, says the dead men's families shouldn't be given first dibs on the accounts. "I'm not trying to be provocative," Mr. Muse says. "That money was sequestered for the purpose of paying [restitution] claims."
Janet Weininger, a daughter of Mr. Ray, says she is outraged at the latest roadblock to gaining justice for her father's execution. "I don't understand why a company like OfficeMax would act like this," she says.
An OfficeMax spokesman said the company doesn't comment on litigation. The Cuban Interests Section, the country's de facto embassy in Washington, didn't respond to requests for comment on the cases.
Fidel Castro's recent health troubles have sparked renewed interest in the property seized after Cuba's communist revolution. The battle between OfficeMax and the two families offers a taste of much larger struggles likely to come.
Mr. Castro's government has floated the idea of Americans returning and kicking residents out of their homes -- many of which were taken over to shelter multiple families. The issue is so sensitive that many Cuban-American community leaders and the White House say it is best left for a future democratic government in Cuba to resolve.
President George Bush's Commission for Assistance to a Free Cuba said in a report this year that the U.S. government "can reassure the Cuban people that the U.S. government will not support any arbitrary effort to evict them from their homes."
The Cuba claims case is unusual. Historically, the U.S. government has blocked access to frozen foreign funds -- including cases against Saddam Hussein-era Iraq. But a powerful Cuban-American voting block in Florida has managed to win preferential treatment under both the Clinton and Bush administrations.
In 1996, Congress swiftly passed the special law allowing U.S. citizens to file domestic lawsuits against foreign countries that commit terror attacks. The measure was introduced to benefit the families of three men who died that same year when Cuban military jets shot down civilian planes operated by a group called Brothers to the Rescue. Relatives of a fourth man who died couldn't benefit because he wasn't a U.S. citizen. Based in Miami, the activists were known for flying missions over the Florida Straits to spot refugees for rescue at sea.
After suing the Cuban government, the Brothers to the Rescue families won a federal court judgment to unlock some of the Cuban funds. From there, the group's attorneys subpoenaed various banks around the country in search of the dozens of frozen Cuban accounts. In 2001, they collected a total of about $97 million. Most of that sum was drawn from accounts at J.P. Morgan Chase & Co.
That successful outcome prompted lawyers for the Anderson and Ray families to seek to qualify under the same narrow provisions of the U.S. antiterrorism laws.
Mr. Anderson was on trial in April 1961 -- accused by the Castro government of smuggling guns to anti-Communist rebels -- when U.S.-backed expatriates launched the Bay of Pigs invasion. During the attack, Cuban antiaircraft guns brought down a bomber piloted by Mr. Ray, a 30-year-old Central Intelligence Agency contractor. Both men eventually were executed: a firing squad for Mr. Anderson; a single shot to the temple for Mr. Ray.
For years after Mr. Ray's execution, U.S. and Cuban authorities revealed little about what had happened to him. Beginning at age 15, in 1970, Ms. Weininger says she wrote monthly letters to Mr. Castro seeking information about her father's body. She says she wrote repeatedly for nine years without receiving a response.
Mr. Ray's family later found out that his corpse was being kept frozen at a Havana morgue and, according to the family, periodically exhibited as a war trophy. It wasn't until 1979, after some diplomatic wrangling, that a black wooden coffin containing Mr. Ray's remains were returned for burial in Alabama.
Dorothy Anderson McCarthy, Mr. Anderson's 84-year-old widow who later remarried, wishes to see the Cuban government pay for her husband's death before she dies.
Tall and athletic, Mr. Anderson was stationed in Havana during World War II, where he met and married Dorothy, the 20-year-old daughter of American parents who lived in Cuba. The couple led a well-to-do life, raising four children. In the aftermath of the 1959 revolution, Mr. Anderson evacuated his family, along with his mother, to Miami. Mrs. McCarthy says she left Cuba "with a $5 bill, one suitcase and one watch."
The family acknowledges that Mr. Anderson, 41 at the time of his death, carried CIA messages to anti-Castro groups in Havana. He wasn't a paid American intelligence agent, they say, but he did take radios to the island to help support an underground anti-Castro movement. His family further asserts that at the time of his arrest, he was in Cuba only to attempt to prevent the expropriation of his family's small chain of gas stations and other businesses.
In his last letter to his wife from a jail cell in Cuba's Pinar del Rio province, Mr. Anderson said his fate was sealed. As his trial began, air-raid sirens could be heard outside the courtroom -- the opening salvos of the 1961 Bay of Pigs invasion during which 1,500 CIA-trained Cuban exiles unsuccessfully tried to foment rebellion against Mr. Castro's government.
"It is unfortunate that this invasion took place, as under normal circumstances I am sure that the tribunal would not have been ruled by passion but by their own revolutionary laws," Mr. Anderson wrote in neat, square letters. "I hope and pray that you and mother will forgive me for the troubles that I have caused...especially this present big one." He was executed four hours later.
Now living in a retirement apartment complex in Florida, Mrs. McCarthy can recite from memory the transcribed words of the prosecutor who tried her husband in April 1961: "This American will die for everything that he has done. He doesn't deserve the death penalty, but he will receive it because perhaps from his blood something better will grow."
Mrs. McCarthy sued Mr. Castro's government in 2001, and Ms. Weininger followed in 2003, both in Florida state courts in Miami. Lawyers for the families argued that the Cuban government was liable for the torture and wrongful deaths of their relatives.
In emotional testimony, family members described brutal executions suffered by their loved ones. Across the courtroom, the table typically reserved for defendants -- in this case the Cuban government -- sat empty. As has been its practice in recent years, the Cuban government ignored the lawsuits.
State courts in Miami issued compensatory default judgments of $67 million for Mrs. McCarthy in 2003, and a year later $21.5 million for Ms. Weininger. Ms. Weininger won an additional $65 million in punitive damages, which under current laws are much more difficult to collect.
With judgments in hand, lawyers for the families filed claims in federal courts to access Cuban government funds anywhere in the U.S. They ended up in U.S. District Court in New York, where accounts at J.P. Morgan Chase still hold the bulk of the Cuban funds. The bank asked the court to rule that it wouldn't have any liability if it complied with court orders to pay the claims. A spokesman for J.P. Morgan Chase, which is named in the suit, declined to comment on the case.
This year, federal Judge Victor Marrero joined the two cases and asked for any final objections from the Cuban and U.S. governments, as well as from any claimants believing they had rights to the blocked funds. The Cuban government didn't respond and the U.S. government declined to intervene -- effectively signaling no objection to the payments.
That is when OfficeMax entered the picture. Cuban Electric, the corporate name by which OfficeMax identifies itself in court papers, argued that at the time of the executions of Messrs. Anderson and Ray, Cuba wasn't on the U.S. government's list of state sponsors of terrorism. The State Department added Cuba to the terror list in 1982, after the U.S. accused the Castro government of aiding Colombian guerrillas.
In his "friend of the court" brief filed in March, the attorney Mr. Muse argued that the relatives of Messrs. Anderson and Ray "were never entitled to the Florida state court judgments" they won.
Joseph DeMaria, Mrs. McCarthy's attorney in Miami, says only the Cuban government -- not OfficeMax -- can challenge the judgments in the case. He disputes OfficeMax's assertion that the frozen Cuban assets were intended to settle expropriation claims. Leon Patricios, attorney for Ms. Weininger, says the company "should have properly intervened in this case when it was filed."
A ruling from the federal judge in New York assigned to the families' case is expected soon.
When news broke in August of Mr. Castro's illness, Gary Anderson, the eldest son of Howard Anderson, was worried Mr. Castro might die.
"I honestly hope Fidel is OK, because I would like our case to come to some sort of conclusion while he is still alive," says Mr. Anderson, who owns an industrial supply company in Houston. "I would like Fidel to know that he's paying."
Write to Evan Perez at email@example.com
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