As the scrum of agents and the Myerses entered WFO’s first floor for booking, I had my first up-close glimpse of Kendall and was surprised to see just how tall he was. Gwendolyn scowled irritably and snapped at the FBI agents when being fingerprinted. But Kendall was serene throughout. Both had immediately lawyered-up inside the hotel room when they were handcuffed; they were not talking. They were taking the Fifth, something not guaranteed by Cuba’s justice system. They would need it and every other constitutional amendment at their disposal to defend themselves.
Chapter Four
After the FBI’s initial processing at WFO, the pair was driven to the District of Columbia’s Correctional Treatment Facility, otherwise known as the DC Jail, where Kendall and Gwendolyn became numbers 323487 and 323475.
On June 5, arraignment was held in front of US Magistrate Judge John M. Facciola, the judge who had signed the arrest warrant, in the E. Barrett Prettyman United States Courthouse on Constitution Avenue. The eight-story-tall courthouse is constructed of limestone and studded with aluminum windows. It houses the US District Court for the District of Columbia, the US Court of Appeals for the District of Columbia, and the United States Foreign Intelligence Surveillance Court, the very same courtroom that authorized the electronic surveillance of the Myerses. The courtroom was half filled, with FBI and DS personnel gathered on the left side of the chamber and Myers family members seated on the right. About ten media representatives with notepads and gear were also assembled.
The judge walked into the courtroom, and the audience stood up; he took his seat, and the audience sat down. He began the proceedings. After a review of the charges, the judge asked the Myerses of their guilt or innocence, and they both pleaded not guilty to counts of conspiracy and wire fraud. The most important decision that day for Judge Facciola was whether or not to grant bail. The defense team thundered long and loud that the government’s conspiracy case was flimsy. One defense attorney proclaimed that since the conspiracy charge was weak at best and that the wire fraud charges were “somewhat embellished,” bail should be granted.
Thomas C. Green, Kendall’s and Gwendolyn’s attorney, recommended that the court impose a ruling of house arrest for the Myerses and require the indignity of wearing ankle monitoring bracelets. The government advised the court that bail and ankle bracelets were insufficient deterrents in preventing their possible flight from justice. The prosecutors noted that FBI agents found nautical charts in the couple’s home and that their Malmo sailboat had a GPS system containing coordinates for sailing to Cuba.
During one of the numerous courtroom breaks, I was approached by FBI supervisory special agent (SSA) “Tony” and asked if I would intervene in a delicate debate between the FBI and DOJ. The Cuban Interests Section, Havana’s legal diplomatic mission in Washington, DC., located at 2630 Sixteenth Street, NW, is within two miles of the Myerses’ home, and there was discussion between the FBI special agents and the DOJ lawyers concerning the distinct possibility that if Judge Facciola granted bail, Kendall and Gwendolyn might hightail it over to the Cuban diplomatic mission to seek political asylum, and, just like that, the prosecution would end. According to SSA Tony, some of the federal prosecutors were unfazed by that fact and told the FBI that if the Myerses did something as stupid as that, they would have the US Marshals retrieve them. SSA Tony told me that the FBI’s attempts to sensitize the prosecution team to the inviolability of diplomatic compounds had failed and asked if I would inject DS’s opinions into the fray at the next break. When the opportunity arose later, I discreetly approached AUSA Harvey outside the courtroom.
“Mike, could I talk to you for a moment in private?”
“Of course. What can I help you with?”
“You know that if Kendall and Gwendolyn flee to the Cuban Interests Section and ask for asylum, this prosecution is over.”
“What do you mean?”
“The Cuban mission grounds are inviolate, and the State Department will never authorize any attempts at having Kendall and Gwendolyn forcibly removed from the compound.”
I also explained to AUSA Harvey that if the US government were to cut off the water supply or electricity to the Cuban Interests Section in a misguided attempt to force the Cubans to turn over the Myerses, our diplomats in Havana would suffer worse treatment at the hands of Castro. I really didn’t have the authority to say that, and while I didn’t have a copy of the Vienna Convention in my back pocket, it was true, and I knew it. It was a screwball idea, but how often had US government lawyers confronted such a possibility? The last such imbroglio occurred on November 21, 1985, when Israeli penetration agent Jonathan Jay Pollard tried to hide inside the Israeli embassy in DC before his arrest and eventual conviction for espionage. After a brief stand-off, an Israeli diplomat escorted Pollard off the compound into the waiting arms of the FBI. While the Israelis understood and were influenced by the diplomatic repercussions arising from a failure to cooperate, the Cubans could not care less.
“Mike,” I continued, “the State Department does not win many battles against DOJ, but I assure you the White House will back up State one hundred percent in this case, and the only losers here will be us. There will be no physical removal of the Myerses from the Cuba Interests Section. Period.”
He looked at me a moment and then nodded. “Thanks.”
Back in the courtroom twenty minutes later, as he was summarizing his reasons against granting bail, Harvey emphasized just how close the Cuban Interests Section was to the Myerses’ residence. He added that if the Myerses were assigned home detention, and given one slight slip in 24/7 electronic and physical surveillance, the two could sneak undetected into the Cuban mission and seek asylum. To Kendall and Gwendolyn Myers, both in their seventies, a lifetime inside a diplomatic mission would be an option far preferable to that of a federal prison. Life in a jail or life in a protected and privileged diplomatic compound? The choice is easy, as Cardinal Jósef Mindszenty demonstrated from November 1956 to September 1971 when he preferred to live inside the US diplomatic mission in Budapest instead of a communist gulag.
AUSA Harvey concluded by saying that the Myerses would be a “real and present danger to the United States” if they fled to Cuba or Cuban control.
At the conclusion of the prosecution and defense arguments, Judge Facciola said he would issue a written opinion within the week, but until then bail would be denied. Outside the courtroom, members of the press and the Myers family reviewed the thirty-six-page indictment. I recall the Myerses’ children leaning against the corridor walls and shaking their heads as they read the charges. I felt some compassion for them but certainly not for Kendall and Gwendolyn. The following week, Judge Facciola denied Kendall and Gwendolyn bail.
The next month, on July 24, 2009, I returned to the E. Barrett Prettyman Courthouse. I arrived at 1:27 p.m., minutes before the start of the next round of legal proceedings. Darting into Judge Reggie B. Walton’s Court Room 16, I was surprised to see how much had changed.
There were no crowds, no children, no press, and certainly no Cuban Interests Section personnel. On the left side of the courtroom were two DS and five FBI special agents. On the right were two unknown women and an unidentified female reporter. The courtroom, with six rows of hardwood benches, was largely empty.
A side door next to Judge Walton’s bench opened and out popped a smiling Gwendolyn followed by Kendall. Not exactly fashionable, they wore dark blue prison jumpers over white tee shirts. Gwendolyn had her shoulder-length hair pulled back in a lazy ponytail, and Kendall’s short and balding hair had a tousled look about it—maybe just a case of prison bed-head. The pair was directed by the US marshals to sit at the defense table located to the judge’s left.
Ten minutes later, Judge Walton entered the courtroom, carrying a stack of folders under his right arm that he deposited on the podium before taking his seat. Walton was mid-fifties, with close-cropped hair and a constantly severe expression—like a bird of prey about to pluck up a mouse. He playe
d football in college and in 2005, while driving his car in Washington, DC, spied an individual attacking a cab driver, leapt out of his vehicle, tackled the assailant, and held him until the police arrived. I don’t think I ever saw him blink.
On the judge’s right, AUSA Harvey addressed the court in his best basso profundo voice, asking the judge for a continuance given the significant number of documents the defense needed to review as part of the discovery process so the trial could go forward. The defense immediately agreed with the motion. Then Judge Walton asked both Kendall and Gwendolyn to stand and face the court.
He briefly discussed a couple of pro forma topics and asked once again if they were still willing to waive their rights to a speedy trial. In clear voices, they both agreed. Both prosecution and defense lawyers agreed to reconvene at 2:00 p.m. on September 25 to continue the hearing. The judge concurred and adjourned the court. Gwendolyn left the courtroom by the same door she entered while Kendall, in ankle shackles, followed behind. The courtroom spectators left by the rear doors.
Outside Court Room 16, FBI and DS special agents conferred with the prosecution lawyers concerning some technical points involving the use of classified documents in the upcoming trial. I spoke with AUSA Harvey about a specific department administrative issue that might require DS intervention, and he readily agreed to call us if he encountered any pushback from the State Department’s hopelessly clueless legal office, which so far had been mercifully excluded from any involvement in the investigation and prosecution. SAs Stowell and Alleman and I shook hands and wished each other a good weekend.
Suddenly and without fanfare, Kendall and Gwendolyn’s defense team agreed that they would plead guilty to the charges of conspiracy to commit espionage and wire fraud. The DS and FBI SAs were elated because as part of the plea agreement, Kendall agreed to be debriefed by elements of the IC, including DS. His commitment to be interviewed by DS and FBI interrogation teams was a crucial component of the plea bargain agreement, and the level of his cooperation would be taken into consideration when Judge Walton passed his final sentence on Kendall and Gwendolyn.
Fast forward to November 20, 2009. It was a clear yet chilly Friday in Washington, DC, and Judge Walton’s afternoon schedule for Courtroom 16 was full, including a closed hearing concerning Guantanamo Bay detainees. I had arrived very early for the scheduled 3:00 p.m. US v. Myers proceedings so that I could be sure to find an empty seat. I need not have worried. Four of my fellow DS/CI colleagues accompanied me into the empty courtroom, and we all took seats on the front bench. Over the course of the next twenty minutes, a number of FBI special agents and analysts trickled into the room followed by a small number of journalists and interested members of the public.
As the clock ticked down to 3:00 p.m., AUSA Harvey and Senior Trial Attorney Clifford I. Rones, Counterespionage Section of the Department of Justice’s National Security Division, took their places at the left side conference table located in the courtroom well while their defense counterparts, Thomas C. Green, Bradford Berenson, and Judy Gallagher, occupied the jet-black swivel chairs surrounding the conference table on the left side of Judge Walton’s podium.
At 3:02 p.m., two beefy US marshals, dressed in a clashing collage of shirts, ties, pants, and jackets, opened a wood-paneled door to the left of the judge’s seating area and escorted Kendall and Gwendolyn into the courtroom. As Kendall walked over to the defense counsel’s table, he smiled and raised his eyebrows in quiet recognition of those members of the public seated to the right of the courtroom—one of whom looked as if he could be a brother.
Gwendolyn, stoic and wearing an orange prison ID card affixed to her ocean blue jumpsuit, stared straight ahead as she quickly sat across from her lawyers. Her hair was graying, and she looked tired, though serious as always. Once seated, Kendall examined a number of documents arranged in front of him, all the while enjoying a low-key conversation with his wife of over twenty years. After a few minutes, they both leaned across the conference table and talked quietly with Berenson and Gallagher.
At 3:14 p.m., Judge Walton strode into the courtroom and assumed his place on the bench at center stage. His robes were stiffly starched, and he looked ready to throw the gavel at someone. Wasting little time or words, the judge swiftly instructed Kendall and Gwendolyn to stand before him at the podium. He was about to brace them with an extensive list of prepared questions that would be administered under oath.
For the next ninety minutes, Judge Walton conducted his “Rule 11” colloquy with the defendants so that Kendall and Gwendolyn fully understood the consequences of their agreeing to a plea bargain with the US government.
“Do you understand your sentencing options?” Judge Walton asked. “Yes,” they both replied.
Staring directly at Kendall, Judge Walton said, “Do you understand that your possible sentence could be life without parole?”
Kendall cleared his throat before answering. “Yes.”
Turning to Gwendolyn, Judge Walton said, “Do you realize that in consideration for your cooperation you could still receive a sentence of six to nine years?
“Yes,” she replied quietly.
“Do you both understand that by consenting to the plea agreements’ provisos you are waiving your constitutional rights to a trial by jury?”
“Yes,” Kendall said.
“I do,” Gwendolyn said.
“Do you both understand you are waiving your right to confront witnesses?” They did.
“Do you both understand that you must be proven guilty beyond a reasonable doubt?” Again, both said, “Yes.”
And the questioning continued.
Rule 11 was the government’s ace in the hole should the Myerses ever attempt to appeal their sentence by citing insufficiency of counsel or a lack of understanding of the full implications of the plea agreement. If they chose to pursue either of those options, the Justice Department would simply introduce the Rule 11 colloquy transcripts to demonstrate that the Myerses were fully cognizant of the consequences of their plea deal.
Gwendolyn’s stipulation to the facts was sixteen pages long, while Kendall’s filled seventeen pages. The judge slowly and in excruciating detail outlined the legal protections and guarantees both were waiving. Throughout the questioning, Gwendolyn and Kendall stood shoulder-to-shoulder and answered the judge with curt “Yes,” “No,” and “I do” answers. At one point, Gwendolyn quietly complained that standing at attention for so long was uncomfortable.
“Are you pleading guilty to the charge of conspiring to gather and transmit national defense information in violation of 18 USC 793 g. because the government could prove you guilty of the charge?” Judge Walton asked.
“Yes,” Gwendolyn said softly.
“Are you pleading guilty because you in fact are guilty?”
“Yes.”
Judge Walton turned his attention to Kendall. “Are you pleading guilty to the charge of one count of 18 USC 793 a. and c. espionage charges and two counts of 18 USC 1343 wire fraud because the government could prove you guilty of those charges?”
“Yes,” Kendall said.
“Are you pleading guilty because you in fact are guilty?”
“Yes.”
At 4:33 p.m., I walked out of the courtroom and hugged FBI analysts “Donna” and “Rachel” and shook the hands of numerous FBI special agents who had worked as a team with SA Stowell and me in identifying, investigating, and successfully prosecuting the Myerses. I had brought five cigars to the proceedings—No. 4 Montecristos, handmade in Havana, of course. In the hallway outside the courtroom, I unwrapped the pale yellow and crimson box and offered a cigar to FBI SSA Tony, one to lead FBI case agent Matt, and one apiece to FBI analysts Donna and Rachel. I then walked over to AUSA Michael Harvey and proffered the final cigar. The look on his face was priceless.
AUSA Harvey lowered his head, grinned expansively, and took the gift. He gingerly put the contraband inside his suit pocket without saying a word. He did not have to. H
is novel “fraud by wire” charge against Kendall was a precedent worthy of future emulation by the Justice Department whenever US government employees are tempted to spy against their country. In simple terms, Kendall’s fraudulent scheme was that he accepted his department salary, sent electronically to his bank, while at the same time he was willingly and knowingly not faithfully discharging his State Department duties. It was a time of celebration, but one thing remained—sentencing.
The three-person DS interview team assigned to debrief Kendall prior to sentencing included SA Stowell, DS/CI analyst Mark Evans, and me. The goal was to question Kendall about his espionage activities and identify department counterintelligence vulnerabilities. Kendall and I hit it off famously, much to the amusement of my FBI colleagues who were witnesses to five sessions that the DS interview team had with Kendall conducted at WFO. The interviews were all professionally videotaped and audio recorded by DS’s Training Center staff.
Kendall was fiercely proud of his espionage accomplishments and unrepentant for his culpability in compromising US diplomatic initiatives and the identities of foreign allies, not to mention hundreds of millions of dollars of technical operations. He would explain his motivation during the sentencing proceedings in July 2010. His goal was to protect the Cuban revolultion from adverse interference, manipulation, or pressure emanating from the US government influenced by anti-Castro groups resident in America.
On July 16, 2010, I made my way back to the US District Courthouse once again. This time every seat in Room 16 was occupied by 9:45 a.m. while other spectators waited eagerly in the hallway, and ultimately in vain, in case someone left the courtroom early. Everyone was waiting for Judge Walton to enter and pronounce sentence on Kendall and Gwendolyn for their admitted crimes.
State Department Counterintelligence: Leaks, Spies, and Lies Page 7