MIAMI — An Arkansas man who claimed Cuban pirates hijacked and killed the crew of a boat he chartered last month was indicted on four counts of first-degree murder and kidnapping in Miami federal court Thursday.
The grand jury indictment comes a month after U.S. Coast Guard officials found Kirby Archer, 36, of Strawberry on a life raft near Cuba. With him was 19-year-old Guillermo Zarabozo, a former security guard from Hialeah, Fla., and a bag of $100 bills, blowgun darts and knives.
Federal prosecutors filed criminal complaints Oct. 10 accusing Archer and Zarabozo of murdering the crew, but the grand jury indictment Thursday outlined the nine counts against them, which included one count of robbery. The bodies of the boat's crew and the captain's wife have not been found.
Archer and Zarabozo could face the death penalty on the murder and kidnapping chargesand could go to trial as soon as January, Allan Kaiser, Archer's attorney, said outside the federal courthouse Thursday. The two men entered innocent pleas through their attorneys.
When found floating in the ocean on the morning of Sept. 24, Archer and Zarabozo told Coast Guard officials that pirates used a distress call to lure the Florida vessel to them. The hijackers, whom Archer and Zarabozo described differently, shot the 27-year-old captain immediately and then his wife after she became hysterical, according to criminal affidavits.
Zarabozo told investigators that the other two crew members were shot after they refused to push the bodies overboard. He complied with the hijackers request and threw all four bodies overboard, he said. After the Joe Cool ran out of gas, the hijackers left on another vessel, he said.
Archer's presence on the raft - taken from the Joe Cool, which he and Zarabozo chartered in Miami Beach on Sept. 22 - was the first that Arkansas law enforcement officials had heard of him since he left his Wal-Mart job unexpectedly Jan. 26.
Archer, was a customer service manager and was in the midst of a child-abuse investigation when Independence County sheriff's office investigators say he stole $92,000 from the Batesville Wal-Mart Supercenter and left the state.
Arkansas prosecutors said earlier this month that they had not started any extradition process for Archer and likely would not do so if he were convicted of the Florida charges and given a severe sentence.
Before Archer resurfaced late this summer, he lived quietly with a Cuban family in Hialeah under the name Kevin Porter, the Miami Herald reported last week. Members of the family said Archer helped cook and told them he was working as a private investigator. Archer, who met the family when he served in the military at Guantanamo Bay in the 1990s, told investigators and his attorney that he wasn't working. How he met Zarabozo, a 2006 high school graduate who had emigrated from Cuba in 1999, remains a mystery.
Florida prosecutors revealed no new information in the indictments handed down in Thursday's hearing. Without a gun or the bodies of the missing crew, federal prosecutors have based their case against Archer and Zarabozo on circumstantial evidence and inconsistent statements that the two gave investigators when they were plucked out of the ocean.
"This was a one-way trip out of the country that resulted in the elimination of witnesses to that flight," Assistant U.S. Attorney Michael Gilfarb said in a bond hearing Tuesday.
Prosecutors are using details that show that a gun must have been present on the vessel.
Even though the FBI hasn't found a gun in Zarabozo's name, investigators found a weapon lockbox when they searched the apartment that Zarabozo shared with his mother, sister and stepfather. The 20-year-old is licensed to carry a gun and to work as a security guard.
A February receipt shows that Zarabozo bought one Glock 9mm magazine and four boxes of 9mm bullets - the same kind of bullets as the four casings found aboard the Joe Cool. A September purchase put Zarabozo and Archer together at a gun store, where Zarabozo bought two firearms magazines.
Investigators also pointed out that Zarabozo gave a store clerk a false name when he bought a portable memory chip, which allows a person to use any cell phone to make calls while keeping the same phone number and identity. Zarabozo had trouble spelling the name "Michael Zoiou" for the clerk, said Richard Blais Jr., a Coast Guard investigator who testified in court Tuesday during the bond hearing for Archer and Zarabozo.
The two men also differed on how they met, what the hijackers wore, where the bodies were tossed from the boat and how they spent their time after the crew was killed.
Zarabozo told investigators that he cleaned up the boat and then slept for eight hours on a bench near Archer, who said he was forced to drive the boat. Archer, however, said Zarabozo had been awake the whole time and talking to him as he steered, according to the criminal complaints filed earlier this month.
Faith Mesnekoff, Zarabozo's attorney, denounced the circumstantial evidence that prosecutors offered Tuesday. Neither Coast Guard nor FBI investigators recorded the statements the two men gave after being rescued from the sea, she said.
"The government is grabbing at straws," she said Tuesday, adding that her client was on the life raft for more than 12 hours before the Coast Guard rescued him, and discrepancies that he uttered shouldn't be used against him.
"Between the sun, the lack of nutrition, the fear ofbeing out on the ocean ... all of that severely affects someone's mental condition," she said. Mesnekoff was not at court Thursday and previously said that public defenders could not comment on their cases.
Kaiser also shrugged off the information presented this week, saying Thursday that the magazines purchased in September had nothing to do with the casings found on the boat.
"They don't have a motive. They don't have a theory. Nothing has changed," Kaiser said, reiterating that he sees no physical or circumstantial evidence linking Archer to the slayings.
"There's no question the victims were murdered. I don't dispute that. But I don't see any circumstantial evidence that impacts my client," he said.
The bodies of Joe Cool Capt. Jake Branam and his 30-year-old wife, Kelley, along with Branam's half brother, 35-year-old Scott Gamble, and the boat's first mate, 27-year-old Samuel Kairy,have not been recovered.
Laboratory reports on the human blood found on the sport fishing yacht has not come back yet, Blais said Tuesday.
"I cannot present any evidence of any other vessel in the area at that time," he said during the bond hearing, after which U.S. Magistrate Judge Ted Bandstr ordered that Archer and Zarabozo remain in federal custody.
Also, the Coast Guard reportedly did not receive any distress calls from any vessels, including the Joe Cool, during the time of the murders.
When Branam's cousin couldn't reach him on a cell phone Sunday and the Joe Cool was more than seven hours late in returning to the Miami Beach Marina, Jon Branam called in the Coast Guard. Within two hours, the Coast Guard located the drifting and empty boat and found it in disarray. The next day, helicopters and boats searching for the crew andpassengers found Archer and Zarabozo several miles away on the life raft. Prosecutors say the two were possibly headed for Cuba.
Archer paid the boat charter company $4,000 in cash for a one-way trip to Bimini, wherethe two men said they had girlfriends waiting for them at a resort.
Archer said his girlfriend packed away his passport, so he couldn't fly. However, he told investigators later that he knew Arkansas authorities were looking for him, and neither man could give names of women waiting for them on the island.
Grand jury members hear evidence only from prosecutors and indict on the basis of whether there is probable cause. Later, during the actual trial, prosecutors must prove their case beyond a reasonable doubt.
"The forensic, historical and circumstantial evidence of premeditated murder compels us to bring this prosecution," U.S. Attorney R. Alexander Acosta said Thursday. "Although no legal proceeding can restore the lives that were tragically lost at sea, we hope that this prosecution brings some level of comfort to the families of those innocent victims."
Gamble's mother and girlfriend were in court Tuesday and Thursday for the hearings but declined to comment. The Branams left behind a 4-monthold son and 2-year-old daughter.
Front Section, Pages 1, 9 on 10/26/2007