Hecho en Miami

"There was a time when there was a big boom in cigar consumption, and people could sell just about anything," says Charles Grimes, Altadis U.S.A.'s trademark lawyer for 30 years. "Well, what happened was the cigar bubble burst. So, unable to sell their junk, they said — ooh, let's just rip off the other brands."

On July 18, 2005, Altadis approached Miami-Dade Police about a new target. Leora Hermann, a company lawyer, wrote to Detective David Sullivan of the Miami-Dade Economic Crimes Bureau. "Unlawful counterfeiting of these cigar brands is rampant in Miami-Dade County," she began. "We are now uniquely poised to decimate the long-standing cigar counterfeiting racket."

It went onto say that "former cigar distributor" Gutierrez had tracked down three major counterfeiters.

Over the next six months Altadis would provide cash for undercover buys, pay for trucks to haul away evidence, and offer "reimbursement of overtime and other manpower expenses." According to court documents, the firm paid truck rental and storage fees totaling some $3000.

Altadis also paid Gutierrez $81,500 in "consultant fees," as well as nearly $20,000 extra for "relocation expenses," presumably to get out of town after the bust. He must have felt like he had won the lottery again.

On the morning of December 15, 2005, Miami-Dade Police and detectives from the Economic Crimes Bureau raided warehouses and homes of eight suspected counterfeiters from Little Havana to Hialeah, and the heavily Cuban western reaches of Miami: Adalberto Cruz, Georgina Pacheco, Filiberto Marimon, Lauro Perez, Hugo Endemano-Portal, Michel Rodriguez, and Miguel Guerra were all charged with making and selling counterfeit materials. Five would face federal charges. Three would be released for various reasons.

When the cops arrived at Penton's warehouse, he was inside assembling boxes. There were at least a half-dozen officers, as well as a half-dozen lawyers from Altadis U.S.A. He's still furious remembering it. "It was just like in Cuba," he says, his eyes flashing rage. "It felt like I was back in Cuba." The police seized thousands of empty boxes and loaded them onto trucks waiting outside.

"When they were taking him outside, he kept saying, öWho's the victim, who's the victim?'" says Grimes, who was present at the arrest. "Penton is not somebody to be waxed poetically about — he's a thief."

Michael Gilfarb represented the United States Government in Penton's trial on October 10, 2006, at the James Lawrence King Federal Justice Building. "The evidence will show," the assistant U.S. attorney said in his opening statement, "that many of these families and their descendants fled Cuba with nothing but their name and their reputation. The families were resilient and they rebuilt ... they started to make quality cigars for sale in the United States using their reputations, their name, and their artwork — both being protected by the U.S. Government trademark laws."

"Nonetheless, here comes Juan Penton," Gilfarb continued, "and reaches where Castro cannot, right here into the United States Southern District of Florida, and takes the names of these premium cigars."

Gilfarb's argument was simple: Altadis, U.S.A. owns the American rights to certain cigars; Penton had copied those brands and was therefore guilty of counterfeiting.

"We've got a trademark, and there's certain protections you're afforded, and if someone violates you, you have a right to be protected," Charles Grimes says.

If the government's case was fairly straightforward, Penton's, as put forth by his attorney, Jose "Pepe" Herrera, was a convoluted indictment of the alleged victim, Altadis. "That Montecristo they make in the Dominican Republic, that's not my father's prerevolutionary Montecristo," said Herrera. "It doesn't even come close ... these slick [Altadis] businessmen bought these famous marks, marks that were made famous because of Cuban tobacco. This is the ultimate case of hypocrisy. The ultimate counterfeiters are the guys that are trying to use the legendary names."

Essentially Herrera's argued that Penton had been counterfeiting Cuban — not American — trademarks, which aren't recognized in the United States. Then he went after Altadis with an argument that had resonance in Miami. While Altadis, U.S.A. legally owned the American rights to its brands, its parent company had amassed its wealth upon the sale of the Cuban brands everywhere else in the world. By protecting the subsidiary, said Herrera, the United States was violating its own embargo.

Four days before Christmas the jury found Penton guilty on three counts of intentionally trafficking in counterfeit goods. He was acquitted on three counts of selling empty boxes. At his sentencing, the prosecution asked for five years' imprisonment, which Moreno promptly ridiculed. Then the prosecution — and the victim, Altadis — asked for damages in addition to the money that Penton "stole" in selling the counterfeits.

Gilfarb emphasized the amount of money Altadis had spent investigating Penton and the others. "It takes a certain amount of presenting it on a silver platter for the police department to take these matters under consideration," Gilfarb argued.

Moreno was unimpressed. "When the victim is paying for things that the government should pay for, it bothers me," he said. "Why am I uncomfortable with that? Otherwise we have two scales of justice, one for the rich and one for the poor. I am very uncomfortable with that. When you steal, you pay back what you stole."