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HavanaJournal.com: Cuba Politics

Travel to Cuba OFAC fine reduced 90% - with commentary

Posted January 15, 2005 by publisher in Cuba Politics.
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Center for International Policy

As you know, the Bush Administration initiated a process to judge and possibly fine American citizens who may have violated Treasury Department rules and traveled to Cuba on an unlicensed basis.

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 1999. The government originally sought a penalty of $7,530 for the trip.

The traveler relied on representations by ScubaCan, a Canadian tour operator, that his trip was a “fully hosted, completely legal dive.”

Richard Newcomb, former head of the U.S. Treasury Department’s unit charged with enforcing the travel restrictions to Cuba, said that operators outside the U.S. were attempting to lure innocent U.S. citizens into such travel.

Treasury is acting unfairly. While the Department targeted U.S. travelers, they were not trying to go after such travel agencies. Here’s another great example of why we should repeal the ban on travel to Cuba.

National Law Group

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 (1/11/05) 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 [url=http://www.nlg.org/cuba]http://www.nlg.org/cuba[/url] 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 and assisted in providing legal counsel in both of these cases, according to Heitzer.

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Art Heitzer
.(JavaScript must be enabled to view this email address)
Law Offices of Arthur Heitzer
633 W. Wisconsin Ave Suite 1410
Milwaukee, WI 53203
414-273-1040, ext. 12; fax 414-273-4859

Member Comments

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On January 15, 2005, publisher wrote:

Easy for me to sit here but still I have to say it:

DON’T PAY THE FINE.

Didn’t Ghandi refuse to pay some government fine. It caused such an uproar, he changed the government.


FIGHT TILL YOU GET SO MUCH PRESS AND SO POPULAR THAT YOU ARE TELLING YOUR STORY TO OPRAH!

OFAC would stop fining people and such a light would be cast on the Embargo that rational people would have to stand with you and against the Embargo.

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On January 16, 2005, waldo wrote:

RIGHT ON PUBLISHER! and thank you.

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On January 16, 2005, jesusp wrote:

One more thing to add to the publisher’ comment.

DON’T STOP TRAVELING TO CUBA.

Remember “Life is either a daring adventure, or nothing”

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On January 16, 2005, Summerwood wrote:

After 46 years, the US embargo has not effected any major change in the government of Cuba.  On the negative side it has only served to penalize Cuban and US citizens, and on the positive side it has strengthened the resilience and ingenuity of the Cuban people.  If the US government truly wanted to support the growth of democracy, it would end the embargo and allow the Cuban people, over time, to decide what THEY wanted. 

Canada, along with many other nations, maintains good relations with Cuba.  Perhaps it is time for the United States to do the same.  I doubt if the Cuban people want to return to a pre-1959 state, but I am sure that a prosperous and engaged Cuba can only benefit the western hemisphere and the world.

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On January 17, 2005, bernie wrote:

Republicans and democrats both voted for the embargo
on CUBA.
Next time you vote against the republicans and democrats.

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On January 17, 2005, Cubana wrote:

I don’t think you are totally right with that Ghandi statement publisher. India got its independence because the British people just after the Second World War ended elected a government with a policy to grant independence to its colonies, starting with India in 1947. However, it was certainly his stand of non-violent resistance that helped to sway British public opinion towards Britain giving up its colonies. I agree Mr Ostrem should refuse to pay a cent of his fine (easy for us to say) for doing something that I in Britain have the right to do, namely travel to Cuba any time I like, without requiring permission.

When are both your major parties going to understand that this embargo is counter-productive? It gives Castro the perfect excuse for all his regime’ economic failings by blaming everything on the big bully from the north. No other country has such an embargo with Cuba so how on earth is it going to work?

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On January 17, 2005, waldo wrote:

Yes bernie, but you would be wasting your vote since D. and R. are about the same and for over 200 years have had a monopoly of power. Lots of people believe it is all a secret alliance among their top leaders to pretend there is a real democracy and to deceive the people into playing their game at the voting and propaganda machines. Only one rich white party with two names (D and R). Could the easy surrender in the past two consecutive “elections” of Gore and Kerry reinforce this believe of a secret totalitarian regime playing the game of “Democracy”? If so, we would have to waite for the return of Jesus or for the economic collapse of the Empire to hope to see needed and overdue changes.