United States v. Campa

[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 01-17176 ELEVENTH CIRCUIT
AUG 9, 2006
________________________
THOMAS K. KAHN
CLERK
D. C. Docket No. 98-00721-CR-JAL
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
RUBEN CAMPA,
a.k.a. John Doe 3,
a.k.a. Vicky,
a.k.a. Camilo,
a.k.a. Oscar,
RENE GONZALEZ,
a.k.a. Iselin,
a.k.a. Castor,
GERARDO HERNANDEZ,
a.k.a. Giro,
a.k.a. Manuel Viramontez,
a.k.a. John Doe 1,
a.k.a. Manuel Viramontes,
LUIS MEDINA,
a.k.a. Oso,
a.k.a. Johnny,
a.k.a. Allan,
a.k.a. John Doe 2,
ANTONIO GUERRERO,
a.k.a. Rolando Gonzalez-Diaz,
a.k.a. Lorient,
Defendants-Appellants.
________________________
No. 03-11087
_________________________
D. C. Docket No. 00721-CR-JAL
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
GERARDO HERNANDEZ,
a.k.a. Giro, a.k.a. Manuel Viramontez,
a.k.a. John Doe 1, a.k.a. Manuel Viramontes,
LUIS MEDINA,
a.k.a. Oso, a.k.a. Johnny, a.k.a. Allan,
a.k.a. John Doe 2,
RENE GONZALEZ,
a.k.a. Iselin, a.k.a. Castor,
ANTONIO GUERRERO,
a.k.a. Rolando Gonzalez-Diaz, a.k.a. Lorient,
RUBEN CAMPA,
a.k.a. John Doe 3, a.k.a. Vicky, a.k.a. Camilo, a.k.a. Oscar,
Defendants-Appellants.
________________________
Appeals from the United States District Court
for the Southern District of Florida
_________________________
(August 9, 2006)
Before EDMONDSON, Chief Judge, and TJOFLAT, BIRCH, DUBINA, BLACK,
CARNES, BARKETT, HULL, MARCUS, WILSON, PRYOR and KRAVITCH*,
Circuit Judges.
________________________
* Senior Circuit Judge Kravitch elected to participate in this decision pursuant to 28
U.S.C. § 46(c).
2
WILSON, Circuit Judge:
This case involves the Miami trial and conviction of five defendants for
acting and conspiring to act as unregistered Cuban intelligence agents working
within the United States and for conspiring to commit murder. The defendants,
Ruben Campa, Rene Gonzalez, Gerardo Hernandez, Luis Medina, and Antonio
Guerrero, appealed their convictions and sentences, arguing that the pervasive
community prejudice against the Cuban government and its agents and the
publicity surrounding the trial that existed in Miami prevented them from
obtaining a fair and impartial trial. We reviewed this case en banc to determine
whether the district court abused its discretion when it denied their multiple
motions for change of venue and for new trial. We now affirm.1
I. BACKGROUND
A. The Indictments
On September 12, 1998, the five defendants were arrested, and were
1
The defendants raised the following additional issues on appeal: prosecutorial
misconduct regarding the testimony of a government witness and during closing argument;
improper use of the Classified Information Procedures Act; improper denial of a motion to
suppress fruits of searches under the Foreign Intelligence Surveillance Act; Batson violations;
insufficiency of the evidence regarding the conspiracy to transmit national defense information to
Cuba, violations of the Foreign Services Registration Act, and conspiracy to commit murder;
improper denial of a motion to dismiss Count 3 based on Foreign Sovereign Immunities Act
jurisdictional grounds; improper denial of jury instructions regarding specific intent, necessity,
and justification; and sentencing errors. We remand this case to the panel for consideration of
these outstanding issues.
3
subsequently indicted on October 2, 1998, for acting and conspiring to act as
agents of the Republic of Cuba without prior notification to the Attorney General
of the United States in violation of 18 U.S.C. §§ 951(a) and 2 and 28 C.F.R. § 73.1et seq., and of defrauding the United States concerning its governmental functions,
in violation of 18 U.S.C. § 371.2 The indictment alleged:
[The defendants] function[ed] as covert spies serving the interests of
the government of the Republic of Cuba within the United States by
gathering and transmitting information to the Cuban government
concerning United States military installations, government functions
and private political activity; by infiltrating, informing on and
manipulating anti-Castro Cuban political groups in Miami-Dade
County; by sowing disinformation within these political groups and in
dealings with United States private and public institutions; and by
carrying out other operational directives of the Cuban government.3
Hernandez, Medina, and Guerrero were also charged with conspiring to deliver to
Cuba “information relating to the national defense of the United States, . . .
intending and having reason to believe that the [information] would be used to the
injury of the United States and to the advantage of [Cuba],” in violation of 18
U.S.C. §§ 794(a), (c), and 2.4 Hernandez was also indicted for conspiracy to
2
R1-224. The government filed a second superceding indictment on May 7, 1999. Id.3
Id. at 3-4.
4
Id. at 11-13.
4
perpetrate murder in the special maritime and territorial jurisdiction of the United
States, in violation of 18 U.S.C. §§ 1111 and 2, in connection with the Cuban
military’s shootdown of two United States-registered civilian aircraft on February
24, 1996, in violation of 18 U.S.C. §§ 1117 and 2.5 Hernandez, Medina, and
Campa were indicted for possession of a counterfeit United States passport, in
violation of 18 U.S.C. §§ 1546(a) and 2, and possession of fraudulent
identification documents in violation of 18 U.S.C. §§ 1028(a)(3), (b)(2)(B), (c)(3),
and 2.6 Medina was indicted for making a false statement to obtain a United States
passport, in violation of 18 U.S.C. §§ 1542 and 2.7 Hernandez, Medina, and
Campa were indicted for causing individuals they oversaw to act as unregistered
foreign agents without prior notification to the Attorney General, in violation of
18 U.S.C. §§ 951 and 2 and 28 C.F.R. § 73.1 et seq.8 Their trial was set to proceed
in the Southern District of Florida in Miami.
Shortly after the indictments were returned and upon the government’s
motion, on October 20, 1998, the court entered a gag order ordering all parties and
5
Id. at 13-16.
6
Id. at 16-22.
7
Id. at 20.
8
Id. at 23-31.
5
their attorneys to abide by Southern District of Florida Local Rule 77.2.9 The
parties and their attorneys were ordered to “refrain from releasing ‘information or
opinion which a reasonable person would expect to be disseminated by means of
public communication, in connection with pending or imminent criminal
litigation’ where ‘ such dissemination will interfere with a fair trial or otherwise
prejudice the due administration of justice.’”10
B. Pretrial Change of Venue Motions
On August 16, 1999, Medina filed a motion for authorization of funds to
conduct a survey of the Miami-Dade County community, as a predicate for a
motion for change of venue.11 Medina requested authorization to engage Florida
International University Psychology Professor Gary Patrick Moran for $9,500 to
conduct a poll of a representative sample of the population of Miami-Dade County
to determine whether it was a fair venue for the trial.12 Moran proposed a
“standard” telephone poll of 300 people.13 The district court granted Medina’s
9
2SR1-122 at 1.
10
Id. at 1-2 (quoting S.D. Fla. L.R. 77.2(A)(1)).
11
R1-275.
12
R1-280 at 3.
13
Id.6
motion.14
In January of 2000, Campa, Gonzalez, Guerrero, and Medina each moved
for a change of venue out of the Southern District of Florida.15 They argued that
they would be denied due process and a fair trial with an impartial jury as a result
of the pervasive community prejudice in Miami against anyone associated with the
Cuban government.16 In support of their motions, they submitted the results of
Professor Moran’s survey and numerous news articles.17
Moran’s survey consisted of 11 opinion and 21 demographic questions
designed “to examine prejudice against anyone alleged to have assisted the Castro
Cuban government in espionage activities.”18 Focus On Miami, a data collection
company located in Miami-Dade County, was retained to conduct the survey by
telephone.19 In Section 1 of the survey, the interviewer made a series of 11
statements and questions regarding the defendants’ alleged illegal conduct and
14
R2-303.
15
R2-317, 321, 324, 329, 334; R3-397, 455.
16
See id. Later, at oral argument on the motions, they agreed that they would be satisfied
with a transfer of the case within the Southern District of Florida from the Miami Division to the
Fort Lauderdale Division. R5-586 at 2, n.1.
17
See id.18
R2-321, Ex.A at 16.
19
Id. at Ex.C at 1.
7
general statements about Cuba and Castro to which the respondent was instructed
to answer either “agree strongly,” “agree,” “disagree,” “disagree strongly,” or
“don’t know.”20 In Section 2 of the survey, the interviewer asked a series of 21
demographic questions designed to gather information about the respondent’s
background, lifestyle, media exposure, and involvement in pro- or anti-Cuba
20
Id. at Ex.D at 1-3. The interviewer began each survey by stating, “We are conducting a
survey of south Florida voters to see how they feel about the upcoming trial of some people
charged in federal court with spying for Castro’s Cuba. Your house has been randomly selected
to provide a participant for this survey.” Id. at 1. The interviewer then asked whether the
interviewee was “aware of the case involving the alleged Cuban spies who were arrested in
Miami?” Id. The interview then proceeded with Section 1 of the survey, which included the
following statements and questions:
1. Cuban born persons carrying false identification documents and engaging in intelligence
gathering activities in south Florida are Castro spies.
2. These defendants are charged with setting up the ambush of the Brothers to the Rescue
planes in which four people were killed. This type of activity is characteristic of the
Castro regime.
3. The aim of Castro is to undermine legitimate Cuban exile organizations.
4. An aim of Castro is to infiltrate U.S. military bases in South Florida.
5. Castro’s agents have attempted to disrupt peaceful demonstrations such as the
Movimiento Democracia’s flotillas which honor fallen comrades.
6. Castro’s Cuba is an enemy of the United States.
7. Castro poses a real threat to the lives of Cuban [sic] exiles.
8. Castro’s spies should not be given a public trial if this threatened national security.
9. Because of my feelings and opinions about Castro’s government I would find it difficult
to be a fair and impartial juror in a trial of alleged Cuban spies.
10. You have told me that you would find it (difficult/not difficult) to be a fair and impartial
juror. Are there any circumstances that would change your opinion? If so, what?
11. Suppose your jury found these spy defendants not guilty. How worried would you be that
you might be criticized in your community?
Id. at 2-3.
8
groups.21
According to Professor Moran, the results of the survey indicated that 69%
(with a sampling error of 5.3%) of eligible jurors were prejudiced.22 Around 40%
of the respondents (60% of the Hispanic respondents) “indicate[d] that they would
find it difficult to be impartial.”23 Around 90% “would not change their minds
21
Id. at 3-5. Section 2 of the survey asked the following questions:
12. In what community do you live?
13. What is your zip code?
14. In what country were you born?
15. How long have you lived in South Florida?
16. Do you subscribe to, buy, or read a daily newspaper?
17. If you read a daily newspaper is it in English or Spanish?
18. Do you regularly listen to the news on the radio?
19. If you listen to the news on the radio is it in English or Spanish?
20. Do you regularly watch the news on the television?
21. If you watch the news on television is it in English or Spanish?
22. Do you have close friends or family members in Cuba now?
23. Are you an active member of any Pro-Cuba/Anti-Castro groups?
24. Do you donate money to Pro-Cuba/Anti-Castro groups or causes?
25. What is (was) your occupation?
26. What is your age today?
27. What is your marital status today? . . .
28. What is the highest level of education that you have COMPLETED? . . .
29. Aside from the political party with which you are registered, how would you describe
your current political views or beliefs? . . .
30. Which [ethnicity] best describes your background? . . .
31. Which [monetary range] best describes your total household annual income . . . .
32. Respondent’s sex.
Id.22
Id. at Ex.A at 16.
23
Id.9
under any circumstances.”24 Finally, approximately one-third of the respondents
were “at least somewhat worried about community criticism in the event of a ‘not
guilty’ verdict.”25 Based on these results, Professor Moran concluded the
following:
I conclude . . . to a reasonable scientific certitude that a change of
venue from the Miami Division of the Southern Federal District of
Florida is the only viable means of assuring the defendant a fair and
impartial jury. The results of the survey suggest that a jury chosen
from the District will hold firm opinions prejudicial to this defendant
that cannot be put aside. A reasonable likelihood of prejudice
endangering the right to a fair trial exists.26
Moran further noted that two prior surveys from the early 1980's and from 1997,
which also evaluated the Southern District of Florida, reached similar
conclusions.27 According to Moran, this suggested that prejudicial opinions in the
Southern District of Florida were “fixed” and “[could not] be set aside.”28
In addition to Moran’s survey, the defendants also submitted numerous
newspaper articles on their case and other Cuba-related issues.29 They argued that
24
Id.25
Id.26
Id.27
Id. at 8-11, 16.
28
Id. at 11.
29
R2-317, 321, 324, 329, 334; R3-397, 455.
10
these articles demonstrated that the community atmosphere is “so pervasively
inflamed” that “resort to questioning in the cool reflection of a courtroom is not
sufficient to cleanse the record.”30
The government opposed the defendants’ change of venue motion and
maintained that an extensive voir dire of prospective jurors would ensure a fair
and impartial jury.31 It disputed that pervasive community prejudice existed and
instead argued that the Miami-Dade population was “heterogenous” and “highly
diverse.”32 It further noted that many of the news articles that the defendants
submitted either did not relate to the instant case, or were accurate, objective, and
unemotional.33 The news coverage “pale[d] in comparison” with the biased
coverage and sensationalism found in the rare cases in which previous courts had
found presumed prejudice.34
The government further argued that Professor Moran’s survey was
unreliable due to numerous flaws in his procedures and conclusions.35 In
30
R2-317 at 3.
31
R3-443 at 3.
32
Id. at 11.
33
Id. at 5, n.3.
34
Id.35
Id. at 6-12.
11
particular, it disputed Professor Moran’s reliance on the two surveys that were
used in prior, unrelated cases, which concluded that a substantial prejudice existed
in the Southern District of Florida against defendants alleged to have helped the
Castro government.36 The first was the survey put forth in support of an
unsuccessful change of venue motion in United States v. Fuentes-Coba,37 a case
involving illegal shipments of goods in violation of the Trading with the Enemy
Act. We affirmed the district court’s refusal to change venue, after the court
reviewed the survey, determined no pervasive community prejudice had been
shown, and conducted a thorough voir dire, thus ensuring a fair and impartial
jury.38 The government argued here that the court should follow this course of
action by proceeding to voir dire to explore any potential jury bias.39 The second
survey that Moran relied on was the one he designed for United States v. Broder,40
another Trading with the Enemy Act case involving Cuba in which the district
court denied the defendants’ motion for change of venue. One of the Broder
defendants proceeded to trial and was acquitted of all charges, disproving Moran’s
36
Id. at 6-9.
37
738 F.2d 1191, 1194 (11th Cir. 1984).
38
Id. at 1195.
39
R3-443 at 7.
40
No. 97-267 (S.D. Fla. 1997).
12
conclusion that the Miami-Dade jury pool was hopelessly prejudiced against
defendants charged with associating with Castro’s Cuba.41 In other words, the
government argued that the very surveys which Moran relied upon in the instant
case discredited his theory and instead demonstrated that Miami-Dade jurors
would base their verdict on evidence, not prejudices.42
The government argued that Moran’s survey was not well-designed, did not
measure prejudice accurately, and engaged in broad, unsupported characterizations
of the South Florida community.43 For example, the government noted the near-
verbatim similarity between Moran’s Broder survey and affidavit and his survey
and affidavit in the present case, suggesting that Moran’s conclusions revealed
“the foreordained conclusions of a predisposed and partisan expert, who has not
even bothered to change the wording of his purportedly scientific results.”44 Many
41
R3-443 at 7.
42
Id.43
Id. at 8-9.
44
Id. at 8. The government noted the close similarity between the two surveys and the
“echo-like nature” of Moran’s affidavit by referencing the following example. Id. In Moran’s
1997 Broder affidavit, Moran concluded:
Inability to be Fair and Impartial
Finally, note item 14:
“Because of my feelings and opinions about the U.S. trade embargo on
Cuba, I would find it difficult to be a fair and impartial juror in a case
13
of the questions were ambiguous or were written in non-neutral terms, which
demonstrated Moran’s failure to follow scientific procedures.45 To further support
its position, the government submitted the affidavit and curriculum vitae of
Professor J. Daniel McKnight46 who opined that Professor Moran’s Broder survey
“lack[ed] empirical rigor, scientific validity and provide[d] no estimation of its
scientific reliability.”47 Although McKnight’s analysis was of the Broder survey
and affidavit, McKnight’s evaluation was germane to the instant case given the
about an alleged violation of the Cuban embargo.”
Circa 59% of the respondents are unable to agree that they can be
impartial. This is very unusual!
Id. at Ex.A at 15. By comparison, Moran’s affidavit in the present case uses similar language
and structure:
Inability to be Fair and Impartial
Finally, note item 9:
‘Because of my feelings and opinions about Castro’s government, I would
find it difficult to be a fair and impartial juror in a trial of alleged Cuban
spies.”
Circa 39.6% (57.4% of the Hispanic subsample) of the respondents are
unable to affirm that they would be impartial and fair. This is very
unusual!
R2-321, Ex.A at 12.
45
R4-443 at 9-11.
46
Id. at Ex.B at 1. Professor McKnight is a social psychologist specializing in social
perception, research methodology, and psychometrics. Id.
47
Id. at Ex. B at 2.
14
striking similarities between two sets of surveys and affidavits.48
Following extensive oral argument, on June 27, 2000, the district court
denied the defendants’ motion without prejudice, finding that they had failed to
present sufficient evidence “to raise a presumption of prejudice against [them] as
would impair their right to a fair trial by an impartial jury in Miami-Dade
County.”49 The court found that most of the news articles related to events other
than the defendants’ alleged activities, and that except for articles regarding the
codefendants’ sentences and one editorial noting the Brothers to the Rescue
shootdown anniversary, the articles about the shootdown were more than one year
old and were largely factual.50 Accordingly, the court found that pretrial publicity
was not sufficiently pervasive and inflammatory to raise a presumption of
prejudice.51
48
Id. at 9.
49
R5-586 at 16.
50
Id. at 11. Brothers to the Rescue is a Miami-based Cuban exile group founded in 1991
to rescue rafters fleeing Cuba in the Straits of Florida and to bring them to the United States. See
id. at 2; R80 at 8836-37. On February 24, 1996, three Brothers to the Rescue planes flew into the
Florida Straits, toward Cuba, in search of reported rafters. R83 at 9161-70. When the three
planes reached international airspace between the United States and Cuba, Cuban military ground
control authorized Cuban aircraft to fire on and destroy the Brothers to the Rescue planes. Id. at
9181-85; Govt. Ex. 483 at 8-16. The Cuban military aircraft shot down two of the planes, but
one escaped. Id.
51
R5-586 at 11.
15
The court also found Professor Moran’s survey and affidavit insufficient to
establish pervasive community prejudice for six reasons.52 The court faulted the
survey for: (1) including respondents who were completely unaware of this case in
quantifying alleged community prejudice against the defendants; (2) failing to
measure prejudice toward a particularized group of people, i.e., a “social target,”
making prejudice calculations “unreliable” and “without substantial support”; (3)
failing to use neutral terminology, contrary to standard scientific procedure; (4)
asking ambiguous questions; and (5) using an inadequate sample size,
representing only 0.003% of eligible Miami-Dade jurors.53 “[M]ost significantly,”
Professor Moran relied on the same study that we rejected in Fuentes-Coba to
bolster his conclusion that community prejudice existed in Miami-Dade.54 Under
these circumstances, the court was unwilling to afford the survey and Professor
Moran’s conclusion the weight attributed by the defendants.55 However, the court
promised a thorough voir dire and invited the defendants to renew their motions if
52
Id. at 13-15.
53
Id.
54
Id. at 15.
55
Id. at 13-14.
16
voir dire showed “that a fair and impartial jury [could not] be empaneled.”56
C. Voir Dire
The case proceeded to voir dire. The court held two status conferences to
develop the voir dire questions.57 Although the defendants stipulated to the
government’s proposed questions,58 the parties argued at length regarding the
terminology of the questions and made suggestions for revisions.59 The court
deliberated extensively and carefully over the questions, keeping in mind the
defendants’ unsuccessful motions for change of venue: “I promised you all and
56
Id. at 17. On September 15, 2000, Campa moved for reconsideration of the denial of
the motion for change of venue, arguing that the court failed to consider how the defendants’
theory of defense affected their ability to receive a fair trial in Miami. R5-656. The court denied
reconsideration without prejudice, stating that it had previously addressed the defendants’
arguments. R6-723 at 2. The court explained that it could explore any potential bias during voir
dire examination and carefully instruct the jurors during the trial. Id. The court again invited the
defendants to renew their motion for change of venue, if it determined after voir dire that a fair
and impartial jury could not be empaneled. Id. at 2-3.
57
1SR1; 1SR2.
58
1SR1 at 42.
59
1SR1; 1SR2. One of the most heated debates was whether and how the court should
question prospective jurors’ support of pro- or anti-Castro political groups, and whether the court
should specifically delineate nine of those groups, a question suggested by the defendants. 1SR2
at 63-74; 1SR1 at 48-55. Over the government’s objection that such a question improperly
implied an association between the Brothers to the Rescue and other historically violent groups,
the court decided to include the question. 1SR1 at 51-54. Another debate centered around
whether and how the court should question prospective jurors who formerly lived in Cuba
regarding how they came to live in the United States. 1SR1 at 29-36. The defendants suggested
that the court ask whether they had an exit visa because those who left Cuba illegally would have
a different outlook on the case than those who left the country legally. 1SR1 at 29-30, 35. The
government objected, arguing that such questions would make the prospective jurors feel
extremely uncomfortable, but the court decided to ask the question anyway. 1SR1 at 32-33, 35.
17
[e]specially the defendants when I denied your motions for change of venue, that I
would consider extensively your request for voir dire . . . .”60 Ultimately, the court
developed an exhaustive list of questions for a two-phase voir dire.61 The court
noted, “[m]ore questions are being asked of this jury as far as their background
than questions that are ever asked or have been asked of jurors that certainly have
appeared before me in cases; but I have agreed that this is a case that requires
additional inquiry and certainly there is additional inquiry here . . . .”62
Phase one would consist of the general questioning of the voir dire, which
was aimed at determining the jurors’ qualifications to serve in the case.63 During
this phase, panels of approximately 34 prospective jurors would be in the
courtroom at a time.64 The court would ask the group a set of 16 general
questions, and then each juror would read aloud to the court their answers to a 28-
question written questionnaire.65 It would ask additional, follow-up questions
60
1SR2 at 73-74.
61
1SR1 at 5.
62
1SR1 at 29.
63
Id. at 5.
64
Id. at 9.
65
Id. at 5; R6-766.
18
when necessary.66 The court rejected the parties’ requests for attorney-conducted
voir dire, and determined that it would ask all of the questions during both phases
of the voir dire.67 The court did, however, promise to inquire whether there were
any additional questions that the parties wished the court to ask any individual
juror, or the panel as a whole, after the completion of the general questions and the
questionnaires.68 The parties would then exercise challenges for cause and
hardship for each panel.69
Once the court had questioned several venire panels of 34 prospective
jurors, it would proceed to phase two with the remaining jurors who had not been
challenged for cause or for hardship.70 During phase two, small groups of
approximately ten jurors would be instructed to be present in the lobby of the
courtroom at staggered times throughout the day, and one-by-one the jurors would
enter the courtroom for individual questioning.71 The court would individually
66
1SR1 at 5.
67
Id. at 4.
68
Id.
69
Id. at 5.
70
Id.
71
Id. at 7.
19
pose a set of 20 “community impact” questions72 and 7
72
The “community impact” questions consisted of the following:
1. The charges in this case include allegations that the defendants were agents acting on
behalf of the Republic of Cuba. Is there anything about that proposition that would affect
your ability fairly and impartially to consider the evidence in this case and the court’s
instructions?
2. Witnesses may be called in this case who have admitted to spying as agents for Cuba or
who are members of the Cuban military or government. Would you automatically
disbelieve such a witness regardless of their testimony or without comparing it with other
witnesses or physical evidence in this case?
3. Do you know of any reason why you may be prejudiced for or against the United States or
the defendants because of the nature of the charges? Or because of any other reason?
4. Have you ever lived in Cuba? Under what circumstances did you come to the United
States? When did you leave? Did you have an exit visa?
5. Have any of your family members or close friends lived in Cuba? Under what
circumstances did they come to the United States?
6. Do you have family or close friends living in Cuba at this time?
7. Do you have any relatives or close friends who were ever politically involved in Cuba?
When? What did they do?
8. Have you, a member of your family, or a close friend traveled to Cuba?
9. If you are chosen as a juror in this case, would you be concerned about returning a verdict
of guilty or not guilty because of how other members of your community might view
you?
10. Can you return a verdict in this case based only on the evidence and the court’s
instructions, without being concerned over the impact the verdict might have on any
individuals or community, in the United States, in Cuba, or anywhere?
11. Do you have an opinion about the current government of Cuba? What is that opinion?
How strong is that opinion? Will that opinion affect your ability to weigh the evidence
and the court’s instructions in this case fairly and with an open mind?
12. Do you have an opinion about the way the United States handles its relations with Cuba?
(for example the embargo against Cuba, the immigration policy or diplomatic relations)
What is that opinion? How strong is that opinion? Will that opinion affect your ability to
weigh the evidence and the court’s instructions in this case fairly and with an open mind?
13. Are you or a relative or close friend a member of a group whose principal purpose is to
advocate a position about Cuba or American policy towards Cuba? What group? Have
you ever contributed money or time to this group?
14. Have you contributed money or time or do you support any of the following groups:
P.U.N.D.
Antonio Maceo Brigade
Alpha 66
Cuban Workers Alliance
20
“pretrial publicity” questions73 to each juror. These questions centered around
Omega 7
Miami Committee for Lifting the Cuban Embargo
The Democracy Movement
Brothers to the Rescue
Cuban American National Foundation
15. Do you have an opinion about the Cuban exile community in the United States? What is
that opinion? How strong is that opinion? Will that opinion affect your ability to weigh
the evidence and the court’s instructions in this case fairly and with an open mind?
16. Do you have an opinion about the Elian Gonzalez case? What is that opinion? How
strong is that opinion? Will that opinion affect your ability to weigh the evidence and the
court’s instructions in this case fairly and with an open mind? Do you understand that the
facts in that case have nothing to do with the facts in this case?
17. As a result of the Elian Gonzalez matter, certain members of the South Florida
community, including some elected officials, publicly voiced their displeasure with the
United States government’s actions in that case. Will those statements, or your own
feelings about the case, affect your ability to give either the defendants or the United
States a fair trial in this case? If so, how?
18. Can you listen to and fairly evaluate the testimony of an individual who is or was closely
allied with the current government of Cuba? Or who perhaps is or was a member of the
communist party in Cuba?
19. If you have negative feelings about any of these issues, can you put those feelings aside
and decide this case based on the evidence presented and the instructions of law as given
by the court?
20. If you were the United States Attorney prosecuting this case, or if you were any of the
defendants, or their counsel, do you know of any reason why you should not select
yourself as a juror?
Gov’t Br. at App. G.
73
The “pretrial publicity” questions consisted of the following:
1. What do you remember hearing, reading or seeing about this case in the news media?
2. What was the source of the information? Which newspaper/radio station/tv station[?]
3. Has anyone ever talked to you about the facts of this case? What additional information
did you get from this source?
4. Based on what you have heard or seen, have you formed any opinion as to whether the
defendants are guilty or not guilty? What is that opinion? Have you ever expressed an
opinion as to the guilt or non-guilt of the defendants? To whom?
5. A jury in a criminal case must base its verdict solely on the evidence presented at trial,
and the instructions provided by the Court. Can you put whatever statements you may
have seen, heard or read out of your mind, and consider this case with an open mind,
21
more sensitive subjects, such as the jurors’ media exposure, knowledge and
opinions of the case, connections to Cuba, the United States policy toward Cuba,
and the Cuban exile community in the United States.74 After the individual
questioning, the parties would be permitted to exercise additional challenges for
cause and hardship, if there were any, and peremptory challenges.75
On November 27, 2000, the trial began, and the voir dire proceeded as
planned.76 During phase one, the court questioned 168 jurors through the oral voir
dire and the written questionnaire to screen for language, hardship, and scheduling
problems.77 The court questioned whether the jurors knew any of the parties,
attorneys, or witnesses in the case, and questioned the jurors on their ability to
based solely on the evidence presented at trial and the instructions provided by the Court?
6. Jurors in this case will be instructed that they must not read, listen to or otherwise allow
themselves to be exposed to any information, news reports, or public or private
discussions about this case, unless and until they have been permanently discharged by
Judge Lenard from serving on the jury. Will you be able to follow such an instruction?
7. If you are chosen as a juror in this case will you be able to return a verdict of guilty or not
guilty unaffected by the possibility that any verdict would receive news media attention?
Id.
74
See id.
75
1SR1 at 7.
76
See R21.
77
R21–R24.
22
reach a verdict based solely on the evidence and the court’s instructions.78 Based
on these generalized questions, the court struck 49 jurors for cause; 10 due to the
court’s concern over their ability to be fair and impartial because of their opinions
regarding Cuba or their acquaintance with persons involved in the case, and the
remaining 39 for hardship, health, or language problems.79
In phase two, the court individually questioned 82 prospective jurors.80
Jurors who had heard media accounts about the case were asked to provide details
regarding their exposure.81 The court asked probing questions to potential jury
members who acknowledged having opinions about Cuba to determine whether
those opinions would affect their ability to weigh the evidence and follow the
court’s instructions.82 As promised, the court asked additional, follow-up
questions sua sponte and when the parties requested.83 At the conclusion of phase
two, the court struck an additional 30 potential jurors for cause: 22 were struck for
Cuba-related animus and the remaining 8 were dismissed for reasons unrelated to
78
Id.
79
Id.
80
R25-28.
81
Id.
82
Id.
83
Id.
23
attitudes about Cuba or the defendants.84
The court and the parties then proceeded to peremptory challenges. The
court twice granted the defendants’ requests for additional peremptory challenges,
giving the defendants a total of 18 and the government 11, and 2 each for
alternates.85 However, the defendants exercised only 15 of their 18 challenges to
the jury pool, as well as their two allotted alternate challenges, to excuse jurors
whose answers revealed biases against them.86 The defendants struck every
Cuban-American prospective juror, notwithstanding the government’s reverse-
Batson objection.87
The voir dire lasted seven days. On each day of the voir dire, before every
recess, and at the end of every day, the court admonished prospective jurors not to
discuss the case amongst themselves or with others, not to have contact with
anyone associated with the trial, and not to expose themselves, read, or listen to
anything related to the case.88
During the lunch break on the first day of voir dire, the court observed that
84
Id.
85
1SR2 at 75; 1SR1 at 5-6, 11; R27 at 1382.
86
R28 at 1513.
87
Id. at 1508-11.
88
See R21-28.
24
the family members of the victims of the Brothers to the Rescue shootdown were
congregated in front of the press, immediately outside the courthouse.89 The
family members’ statements were “fairly innocuous” in that they merely
commented that “they were looking forward to the jury process going forward.”90
Some of the jurors were approached by the media as they were leaving the
courthouse,91 but they were not interviewed.92 Regardless, the court instructed that
it would no longer permit the victims’ families to be present during voir dire “if
there are efforts made to pollute the jury pool”93 and instructed the government to
speak to the victims’ families regarding their conduct.94 The court entered a
sequestration order precluding witnesses from speaking with each other and with
the media about the case.95 It also extended the gag order to “all [trial]
participants, lawyers, witnesses, family members of the victims” and clarified that
it covered all “statements or information which is intended to influence public
89
R7-978 at 3.
90
R23 at 194.
91
R21 at 111-12; R62 at 6575-76.
92
R23 at 194.
93
R21 at 113.
94
Id.
95
Id. at 117-19.
25
opinion or the jury regarding the merits of the case.”96 The court thereafter
instructed the jurors to remove their juror tags as they left the courtroom, and
instructed the marshals to accompany the jurors out of the building.97 The court
sealed the voir dire questions during the jury selection so as to prevent the media
from accessing them.98
Later that day, when a copy of the Miami Herald, which contained an article
about the case, was found in the jury assembly room, the court ordered the
newspaper removed.99 The following day, Guerrero’s counsel reported that he had
viewed one of the potential jurors reading the article while in the courtroom.100
The district court responded that “[t]he issue is not whether [venire] persons have
read or been exposed to publicity about the case of the defendants, but whether
they have formed an opinion based upon what they have read. We will go into all
of this as we go through individual voir dires.”101 Later, a potential juror who
96
R7-978 at 3, 7; R64 at 6759-60.
97
R21 at 112.
98
R24 at 625-26.
99
R21 at 171.
100
R23 at 195-97. This juror was later stricken for cause as a result of his personal
knowledge of Jose Basulto, a Brothers to the Rescue pilot and witness in this case. R24 at 537-
40.
101
R23 at 197.
26
evidenced prejudice was isolated and removed from the venire so as to eliminate
contact with other potential jurors.102
The court also issued assigned seating in the courtroom.103 The government
agents were assigned to the first row, the victims’ families were seated in the
second row and were removed from the government attorneys, the defendants’
families were seated in the third row, and the back row was designated for the
media.104
At the conclusion of voir dire, the district court empaneled the jury without
objection.105 The defendants did not renew their motions for change of venue,
despite the court’s prior invitations.106 Instead, Medina’s counsel complimented
the manner in which the court conducted the voir dire stating, “The Court’s
conduct of this voir dire both in terms of its planning and its execution has been
extraordinary. What we have accomplished here in the last seven days or six days
has been more than I think the defense anticipated we would be able to do.”107 He
102
Id. at 300-10.
103
R25 at 717.
104
Id.
105
R29 at 1564.
106
R5-586 at 17; R6-723 at 2-3.
107
R27 at 1373.
27
added, “quite frankly, if Professor Moran could interrogate his pool members the
way this Court has interrogated some of the prospective jurors, the social sciences
wouldn’t be soft sciences, they would be hard sciences.”108 He admitted,
“[g]enerally . . . the people who prejudged or who had strong opinions were candid
about them.”109 Later in the trial, when faced with the prospect of a juror being
dismissed due to scheduling problems, the defendants vigorously objected without
even knowing the juror’s identity.110 The court retained the juror at the
defendants’ insistence.111 The defendants reiterated their satisfaction with the voir
dire stating, “[w]e worked very hard to pick this jury and we got a jury we are very
happy with.”112
D. The Trial
At trial, the government presented evidence113 that revealed that the
108
Id. at 1374.
109
Id. at 1375.
110
R104 at 12094.
111
Id.
112
Id. at 12092.
113
The original panel of this court will consider the remaining issues on appeal, including
whether the government presented sufficient evidence to support the defendants’ convictions.
This brief discussion of the evidence is only meant to aid in the discussion of the change of
venue and new trial issues.
28
Directorate of Intelligence, Cuba’s primary intelligence collection agency,
maintained a spy operation in South Florida known as “La Red Avispa,” or the
“The Wasp Network.”114 Campa, Hernandez, and Medina were illegal intelligence
officers of the operation and supervised agents, including agents Gonzalez and
Guerrero.115 The Wasp Network reported information to Cuba on the activities of
anti-Castro organizations in Miami-Dade County,116 the operation of United States
military installations,117 and United States political and law enforcement
activities.118 The operation was also directed to intimidate Cuban-American
individuals and organizations with anonymous letters and threatening telephone
calls;119 to penetrate United States Congressional election activity;120 to scout and
assess potential sources of information and possible new recruits;121 and to carry
communications, cash, and other items between Miami and other United States-
114
R44 at 3703-07.
115
Id. at 3711-13, 3719-23.
116
R45 at 3870-71.
117
R74 at 7910, 7920-21; R46 at 4009-10.
118
R103 at 11907-08, 11911-13.
119
R45 at 3793-99.
120
Govt. Ex. HF 143.
121
Govt. Exs. DG 141 at 6-7; DAV 118 at 14-19.
29
based Directorate of Intelligence officers and agents.122 None of the defendants
notified the United States Attorney General that they were acting as agents of the
Cuban government.123
During the defendants’ case, Hernandez called as a hostile witness Jose
Basulto, founder of Brothers to the Rescue and the pilot of the only plane that
escaped the February, 24, 1996, shootdown.124 After a series of questions about
Basulto’s travel outside of the United States, in which Hernandez’s counsel
suggested that Basulto had attempted to smuggle weapons into Cuba,125 Basulto
retorted, “Are you doing the work of the intelligence government of Cuba [?]”126
Campa’s attorney argued that Basulto’s insinuation was “precisely the kind[] of
problem[] that we were afraid of when we filed our motions for a change of venue
. . . .”127 He argued, “This red baiting is absolutely intolerable, to accuse
[Hernandez’s attorney] because he is doing his job, of being a communist . . . .
These jurors have to be concerned unless they convict these men of every count
122
Govt. Exs. 384, 865.
123
R61 at 6404-15.
124
R80 at 8836-37.
125
R81 at 8944-45.
126
Id. at 8945.
127
Id. at 8947.
30
lodged against them, people like Mr. Basulto who hold positions of authority in
this community . . . are going to . . . accuse them of being Castro sympathizers . . .
.”128 The court struck Basulto’s remark, admonished him, and instructed the jury
to disregard the comment, noting that the remark was “inappropriate and
unfounded” and that Hernandez’s counsel was properly providing “a vigorous
defense for his client.”129
Throughout the trial, the defendants twice renewed their motions for change
of venue through motions for a mistrial based on community events and trial
publicity.130 In February 2001, Campa moved for a mistrial based on activities
during the weekend of February 24, 2001, to honor the fifth anniversary of the
Brothers to the Rescue shootdown, including commemorative flights, as well as
television interviews and newspaper articles regarding that event.131 He argued
that “some news events . . . are so great and are so explosive . . . that any amount
of instructing the jury cannot cure the taint.”132 The government objected, noting
that there was nothing in the record to indicate that the jury had ignored the court’s
128
Id. at 8947-48.
129
Id. at 8945-46, 8955.
130
R70 at 7130-36; R8-1009.
131
R70 at 7130.
132
Id. at 7131.
31
repeated admonitions that they not read or view case-related news accounts.133
The court granted the defendants’ request for a juror inquiry, and asked if any one
of them had seen, heard, read, or been spoken to about any media accounts related
to this case, seeking a show of hands.134 The trial continued after no juror
responded affirmatively.135
On May 24, 2001, the district court denied the pending motions on the basis
of its earlier orders denying a change of venue and finding that “the February 24th
issues and events as well as the reporting of these events do not necessitate and
did not necessitate a change of venue . . . .”136 The court noted that “[t]he jurors
were instructed each and every day . . . at each and every break and at the
conclusion of the day . . . not to read or listen or see anything reflecting on this
matter in any way and there has been no indication that the jurors did not comply
133
Id.
134
Id. at 7136.
135
Id. Two weeks later, on March 1, 2001, the defendants again filed a joint motion for a
mistrial and change of venue, arguing that the events surrounding the anniversary of the Brothers
to the Rescue shootdown “received a great deal of publicity, all of which was biased against the
defendants and consistent with the government’s position at trial.” R8-1009 at 2. They
maintained that “[n]o amount of voir dire or instructions to the jury [could] cure the taint, whose
ripple effects are difficult to measure.” Id. at 5. They also requested a mistrial “so that their trial
can be conducted in a venue where community prejudices against the defendants are not so
deeply embedded and fanned by the local media.” Id.
136
R120 at 13894-95.
32
with that directive by the Court. . . .”137
During closing arguments, the government commented that Hernandez’s
attorney called the Brothers to the Rescue shootdown “the final solution” and
noted that such terminology had been “heard . . . before in the history of
mankind.”138 It argued that the defendants were “bent on destroying the United
States” and were “paid for by the American taxpayer.”139 It summarized that the
defendants had joined a “hostile intelligence bureau . . . that sees the United States
of America as its prime and main enemy” and that the jury was “not operating
under the rule of Cuba, thank God.”140 The defense objections throughout the
closing arguments were sustained.141 The district court instructed the jury to
consider only the evidence admitted during the trial, and to remember that the
lawyers’ comments were not evidence.142
For deliberations, the jury was moved to another floor of the courthouse
137
Id. at 13895.
138
R124 at 14474.
139
Id. at 14482.
140
Id. at 14475.
141
Id. at 14482, 14483, 14493.
142
R125 at 14583.
33
with controlled access.143 No one but the court staff was permitted on the floor.144
The court also denied the media’s request for the names of the twelve jurors.145
When the jurors were filmed leaving the courthouse one day during deliberations,
the court modified the jurors’ entry and their exit from the courthouse to prevent
further exposure to the media.146 The court provided the jurors transportation to
and from their vehicles or mass transit and brought them up to their secured floor
through the courthouse garage.147 The jury deliberated for five days.148 The
defendants were convicted on June 8, 2001.149
E. Post-Trial Motions for Change of Venue and for New Trial
In July and August of 2001, the defendants reasserted their claims of
improper venue in post-trial motions for judgment of acquittal and for new trial.150
They argued a new trial was merited “in the interest of justice” because of the
143
R124 at 14546-47; R125 at 14624.
144
R125 at 14624.
145
R126 at 14643-44.
146
Id. at 14645-47.
147
Id. at 14647.
148
R125-R126.
149
R126 at 14668-69.
150
R12–1338, 1342, 1343, 1347.
34
prejudice inured to them from the venue and the prosecution’s misconduct.151
Guerrero argued that, although he did “not seek to criticize the Court’s voir dire
procedure nor could he,” the jurors’ responses in voir dire were “‘politically
correct,’” in that they “all agreed that they would be fair and impartial.”152 Medina
similarly argued that, “[d]espite the extraordinary care this Court exercised in the
jury selection process,” a fair and impartial jury could not be seated in Miami-
Dade County.153 Campa and Gonzalez argued that witness Jose Basulto’s remarks
were highly prejudicial because they implied that Defendant Hernandez’s counsel
was a spy for the Cuban government.154 Campa also asserted that the jury’s quick
verdicts without asking a single question in the complex, almost seven-month trial
indicated that the jury was subject to community pressure and prejudice.155 He
further argued that the government prejudiced the defendants by stating in closing
argument that they “were ‘people bent on destroying the United States’ whose
defense had been ‘paid for by the American taxpayer.’”156
151
R12-1338 at 2-3.
152
Id. at 2.
153
R12–1347 at 1.
154
R12–1342 at 3; R12–1343 at 3-4.
155
R12–1343 at 1-3.
156
Id. at 8.
35
On November 28, 2001, the district court denied the motions for new trial in
a detailed written order.157 It referenced its prior orders denying a change of venue
and denying reconsideration of the denial of the change of venue, and stated that
because it was “[a]ware of the impassioned Cuban exile-community residing
within this venue, the Court implemented a series of measures to guarantee the
Defendants’ right to a fair trial.”158 These efforts included a searching, seven-day
voir dire process, daily instructions to the jury not to speak with the media about
the case or to read or listen to any reports about the case, and gag orders on all trial
participants.159 The court also struck witness Jose Basulto’s statement and
instructed the jury to disregard it.160 The court found that the jury’s prompt,
inquiry-free verdict at most was speculative, circumstantial evidence of the
venue’s impact on the jury.161 The court concluded that “any potential for
prejudice . . . was cured” “through the Court’s methodical, active pursuit of a fair
trial from voir dire, to the presentation of evidence, to argument, and concluding
157
R13–1392.
158
Id. at 14.
159
Id.
160
Id.
161
Id. at 15.
36
with deliberations and the return of verdict.”162 As to the defendants’ claims of
prosecutorial misconduct, the court found that it upheld each of defense counsel’s
objections and specially instructed the jury that it was to disregard the improper
statements.163 In light of the entire record, the interests of justice did not merit a
new trial.164
On November 12, 2002, the defendants renewed their motion for a new trial
on two grounds: newly discovered evidence and the interests of justice.165 They
argued that they were entitled to a new trial based on the government’s motion for
change of venue filed June 25, 2002, in the case of Ramirez v. Ashcroft,166 a Title
VII action brought by a Hispanic employee of the INS.167 Ramirez alleged he was
subjected to a hostile work environment, unlawful retaliation, and intimidation by
his employer as a result of the INS’s removal of Elian Gonzalez from the United
162
Id.
163
Id. at 15-16.
164
Id. at 17. In December 2001, Guerrero, Hernandez, and Medina were sentenced to life,
Campa was sentenced to 228 months, and Gonzalez was sentenced to 15 years. R14-1430, 1435,
1437, 1439, 1445. After sentencing, the defendants appealed.
165
R15–1635, 1638, 1644, 1647, 1650, 1651.
166
No. 01-4835 (S.D. Fla. June 25, 2002).
167
R15-1635 at 8-11.
37
States and his return to his father in Cuba on April 22, 2000.168 According to the
defendants, the government’s decision to seek a change of venue in Ramirez,
based upon the alleged prejudicial effect of the pervasive community sentiment
following the custody battle over Elian Gonzalez, constituted newly discovered
evidence of prosecutorial misconduct because the same United States Attorney
opposed the defendants’ repeated motions for change of venue in the instant case
and misrepresented the pervasive community prejudice in the Miami
community.169 In support of this argument, the defendants filed the government’s
Ramirez motion for change of venue, in which it argued that “the Miami-Dade
community has developed and maintains strong emotional feelings and opinions
regarding the handling of the Elian Gonzalez affair by INS and the Attorney
General’s office.”170 The government asserted, “it is extremely unlikely that a
venire from Miami-Dade County would be able to put aside such deeply held
opinions and feelings and afford the [government] a fair trial . . . .”171
The defendants further argued that a new trial should be granted in the
168
R15-1636 at Ex.2 at 1-2.
169
R15-1635 at 8-11.
170
R15–1636 at Ex. 2 at 16.
171
Id.
38
interests of justice.172 They argued that surveys of the Miami-Dade community,
the responses given by prospective jurors during voir dire, and the atmosphere
surrounding the voir dire demonstrated that a fair and impartial jury could not be
selected in this case.173 In support, they filed an affidavit by legal psychologist Dr.
Kendra Brennan and a study by Florida International University’s Professor of
Sociology and Anthropology Dr. Lisandro Pérez.174 Dr. Brennan evaluated
Professor Moran’s survey and concluded that it “accurately reflect[ed] profound
existing bias against those associated with the Cuban government in Miami-Dade
County.”175 Dr. Pérez concluded that “the possibility of selecting twelve citizens
of Miami-Dade County who can be impartial in a case involving acknowledged
agents of the Cuban government is virtually zero.”176 The defendants also
supported their interests of justice argument with news articles and reports by
Human Rights Watch, which addressed the harassment, intimidation, and violence
that Miami Cuban exiles suffered for expressing moderate political views toward
172
R15–1635 at 12-32.
173
Id.
174
R15-1636 at Exs. 4,5.
175
Id. at Ex. 4 at 8.
176
Id. at Ex. 5 at 2-3.
39
Castro or Cuban relations.177
The district court denied the renewed motion for new trial holding that the
government’s decision to move for a change of venue in Ramirez did not
constitute newly discovered evidence of prosecutorial misconduct with respect to
the government’s opposition to the defendants’ motions for change of venue in
this case.178 The court reasoned that Ramirez differed from this case in that it
“related directly to the INS’s handling of the removal of Elian Gonzalez from his
uncle’s home, an event which, it is arguable, garnered much more attention here in
Miami and worldwide than this case.”179 The government’s position in Ramirez
“was premised specifically upon the facts of that case,” including the fact that
Ramirez “had stirred up extensive publicity in the local media focusing directly on
the facts he alleged in the lawsuit . . . .”180 The court also ruled that it lacked
jurisdiction to grant a new trial based on the defendants’ interests of justice
argument because such a motion must be filed within seven days after the guilty
verdict, or within an extension of time granted by the trial judge.181 This time
177
Id. at Exs. 7-10, 12.
178
R15–1678 at 8.
179
Id. at 8-9.
180
Id. at 9.
181
Id. at 5.
40
period had expired more than 19 months before the motion was filed, and
therefore, the court declined to consider that argument, or any of its supporting
exhibits.182
In a published opinion addressing only the motions for change of venue and
motions for a new trial, a panel of this court concluded that the defendants were
entitled to a pretrial change of venue and were denied a fair trial because of the
“perfect storm” created by the pretrial publicity surrounding this case, the
pervasive community sentiment, and the government’s closing arguments.183 We
vacated the panel opinion and granted the government’s petition for rehearing en
banc to consider whether the defendants were denied a fair and impartial trial.184
II. DISCUSSION
On appeal, we first consider whether the district court abused its discretion
in denying the defendants’ Rule 21 motion for change of venue for failure to make
a sufficient showing of prejudice due to either pretrial publicity or pervasive
community prejudice. The second issue we consider is whether the court abused
its discretion in denying their Rule 33 motions for new trial based on newly
182
Id. at 6.
183
United States v. Campa, 419 F.3d 1219 (11th Cir.) (per curiam), reh’g granted,
vacated, 429 F.3d 1011 (11th Cir. 2005) (per curiam).
184
Id.41
discovered evidence and the interests of justice.
A. Denial of Motions for Change of Venue
We review a district court’s denial of a Rule 21 motion for change of venue
for an abuse of discretion.185 Rule 21 provides that, “[u]pon the defendant’s
motion, the court must transfer the proceeding . . . to another district if the court is
satisfied that so great a prejudice against the defendant exists in the transferring
district that the defendant cannot obtain a fair and impartial trial there.”186 A
defendant can establish that prejudice against him prevented him from receiving a
fair trial and necessitated a change of venue by two methods. He can demonstrate
that a fair trial was impossible because the jury was actually prejudiced against
him.187 Or, he can show that juror prejudice should have been presumed from
prejudice in the community and pretrial publicity.188 Here, the defendants argue
that a presumption of prejudice was warranted because of the pervasive
community prejudice against the Cuban government and its agents and the pretrial
publicity that existed in Miami.
185
United States v. Smith, 918 F.2d 1551, 1556 (11th Cir. 1990).
186
Fed. R. Crim. P. 21(a).
187
Irvin v. Dowd, 366 U.S. 717, 727, 81 S. Ct. 1639, 1645, 6 L. Ed. 2d 751 (1961).
188
Rideau v. Louisiana, 373 U.S. 723, 726-27, 83 S. Ct. 1417, 1419-20, 10 L. Ed. 2d 663(1963).
42
A district court must presume that so great a prejudice exists against the
defendant as to require a change of venue under Rule 21 if the defendant shows:
(1) that widespread, pervasive prejudice against him and prejudicial pretrial
publicity saturates the community where he is to be tried and (2) that there is a
reasonable certainty that such prejudice will prevent him from obtaining a fair trial
by an impartial jury.189 The presumed prejudice principle is “‘rarely’ applicable”
and is reserved for an “extreme situation.”190 “[T]he burden placed upon the
[defendant] to show that pretrial publicity deprived him of his right to a fair trial
before an impartial jury is an extremely heavy one.”191 Once the defendant puts
forth evidence of the pervasive prejudice against him, the government can rebut
any presumption of juror prejudice by demonstrating that the district court’s
careful and thorough voir dire, as well as its use of prophylactic measures to
insulate the jury from outside influences, ensured that the defendant received a fair
189
See Sheppard v. Maxwell, 384 U.S. 333, 363, 86 S. Ct. 1507, 1522, 16 L. Ed. 2d 600(1966) (“[W]here there is a reasonable likelihood that prejudicial news prior to trial will prevent
a fair trial, the judge should continue the case until the threat abates, or transfer it to another
county not so permeated with publicity.”); Pamplin v. Mason, 364 F.2d 1, 5 (5th Cir. 1966)
(“Where outside influences affecting the community’s climate of opinion as to a defendant are
inherently suspect, the resulting probability of unfairness requires suitable procedural safeguards,
such as a change of venue, to assure a fair and impartial trial.”).
190
Mayola v. Alabama, 623 F.2d 992, 997 (5th Cir. 1980) (citing Neb. Press Ass’n v.
Stuart, 427 U.S. 539, 554, 96 S. Ct. 2791, 2800, 49 L. Ed. 2d 683, 694 (1976), Hale v. United
States, 435 F.2d 737, 747 (5th Cir. 1970)).
191
Coleman v. Kemp, 778 F.2d 1487, 1537 (11th Cir. 1985).
43
trial by an impartial jury.192
1. The News Articles
Here, the district court concluded that the defendants failed to present
evidence sufficient to raise a presumption of prejudice against them that would
impair their right to a fair trial by an impartial jury.193 In support of their motion
for change of venue, the defendants first relied on numerous news articles, which
they argued demonstrated that the community atmosphere was “so pervasively
inflamed” that it would impair any juror’s ability to reach a fair verdict.194
The district court did not abuse its discretion in finding that the pretrial
publicity was not “‘so inflammatory and pervasive as to raise a presumption of
prejudice.’”195 Prejudice against a defendant cannot be presumed from pretrial
publicity regarding peripheral matters that do not relate directly to the defendant’s
guilt for the crime charged.196 In fact, we are not aware of any case in which any
192
See id. at 1541, n.25; Mayola, 623 F.3d at 1000-01.
193
R5-586 at 16.
194
R2-317 at 3.
195
R5-586 at 11 (quoting Ross v. Hopper, 716 F.2d 1528, 1541 (11th Cir. 1983)).
196
See United States v. Awan, 966 F.2d 1415, 1428 (11th Cir. 1992); see also Meeks v.
Moore, 216 F.3d 951, 963 n.19, 967 (11th Cir. 2000) (ruling that only media reports linked
directly to the defendant had “evidentiary value” in assessing his presumed prejudice claim,
which failed absent a showing that “bias played any part in his convictions”).
44
court has ever held that prejudice can be presumed from pretrial publicity about
issues other than the guilt or innocence of the defendant.197
Moreover, the Supreme Court has ruled that we cannot presume prejudice in
the absence of a “trial atmosphere . . . utterly corrupted by press coverage.”198 The
Court distinguished between publicity that is “largely factual publicity” and “that
which is invidious or inflammatory,” in Murphy v. Florida,199 a case in which the
Court ruled that the defendant was not denied due process when he was denied a
change of venue, despite extensive publicity about the defendant’s crime and
criminal history. The Court found that there was no inflamed community
atmosphere because the news articles appeared seven to twenty months before the
jury was selected and the articles were largely factual in nature.200 The Court also
197
See Awan, 966 F.2d at 1428.
198
Dobbert v. Florida, 432 U.S. 282, 303, 97 S. Ct. 2290, 2303, 53 L. Ed. 2d 344, 362
(1977) (alteration in original) (internal quotation marks omitted) (quoting Murphy v. Florida, 421
U.S. 794, 798, 95 S. Ct. 2031, 2035, 44 L. Ed. 2d 589 (1975)).
199
421 U.S. 794, 800 n.4, 95 S. Ct. 2031, 2036 n.4.
200
Id. at 802, 95 S. Ct. at 2037; see also Spivey v. Head, 207 F.3d 1263, 1270-71 (11th
Cir. 2000) (ruling that the defendant failed to establish that pretrial publicity was sufficiently
prejudicial or inflammatory to require a change of venue because the numerous newspaper
articles that the defendant put forth were either published years before the trial or only obliquely
mentioned his case, and because the prejudicial articles were not typical or widespread); United
States v. De La Vega, 913 F.2d 861, 865 (11th Cir. 1990) (ruling that the 330 articles submitted
by the defendants were largely factual and could not have created an inflamed community
atmosphere sufficient to presume prejudice in the Miami-Dade community of 1.8 million
people).
45
distinguished between jurors’ “mere familiarity [with the defendant and his past
crimes] and an actual predisposition against him.”201 Some of the jurors had a
vague recollection of the alleged crime, but none believed that the defendant’s past
crimes were connected to the present case, nor did the voir dire indicate that the
jurors were prejudiced against him.202 Therefore, the defendant failed to show that
the trial was “inherently prejudicial” or that the jury selection process permitted an
“inference of actual prejudice.”203
Here, the news materials submitted by the defendants fall far short of the
volume, saturation, and invidiousness of news coverage sufficient to presume
prejudice. Of the numerous articles submitted, very few related directly to the
defendants and their indictments.204 The articles primarily concerned subjects
such as the community tensions and protests related to general anti-Castro
sentiment, the conditions in Cuba, and other ongoing legal cases, such as the Elian
Gonzalez matter.205 Of the articles about the Brothers to the Rescue shootdown,
most were published approximately one year before the court first ruled on the
201
Murphy, 421 U.S. at 800 n.4, 95 S. Ct. at 2036 n.4.
202
Id. at 800-01, 95 S. Ct. at 2036.
203
Id. at 803, 95 S. Ct. at 2037.
204
See R2-317, 321, 324, 334, 329; R3-397, 455.
205
See id.46
change of venue motion.206 Therefore, the few articles that did relate to the
defendants and their alleged activities in particular were too factual and too old to
be inflammatory or prejudicial. Moreover, the record reflects that not a single
juror who deliberated on this case indicated that he or she was in any way
influenced by news coverage of the case.207 Nor does the record reflect that any
one of them had formed an opinion about the guilt or innocence of the defendants
before the trial began.208 In fact, most of the venire revealed that they were either
entirely unaware of the case, or had only a vague recollection of it.209 “To ignore
the real differences in the potential for prejudice would not advance the cause of
fundamental fairness, but only make impossible the timely prosecution of persons
who are well known in the community, whether they be notorious or merely
prominent.”210 Accordingly, the defendants have failed to demonstrate that this
trial was “utterly corrupted by press coverage.”211
2. The Moran Survey
206
See id.207
See R21-28.
208
See id.209
See id.210
Murphy, 421 U.S. at 800 n.4, 95 S. Ct. at 2036 n.4.
211
See id. at 798, 95 S. Ct. at 2035.
47
The district court also considered the results of the random survey of 300
registered Miami-Dade voters conducted by Professor Moran, which was
purportedly designed to examine prejudice against anyone alleged to have assisted
the Cuban government in espionage activities.212 According to Professor Moran,
the survey indicated that “the only viable means of assuring the defendant a fair
and impartial jury” was to transfer the case out of the Miami District of the
Southern District of Florida.213 The court declined to afford the survey and
Professor Moran’s conclusions substantial weight in determining whether to
change the venue, but invited the defendants to renew their motions for change of
venue if the voir dire showed that an impartial jury could not be empaneled.214
It was entirely within the district court’s prerogative to reject outright
Professor Moran’s survey as a basis upon which to grant a motion to change
venue. The record reflects that the district court carefully considered the survey
and Professor Moran’s conclusions, finding six specific reasons why the survey
was unpersuasive.215 The strongest support for the court’s conclusion was the fact
212
R5-586 at 13-15.
213
R2-321 at Ex. A at 16.
214
R5-586 at 13-15.
215
Id.48
that Moran relied on the very same survey that we previously rejected in Fuentes-
Coba as a basis for his conclusion that a substantial prejudice existed in the
Southern District of Florida against defendants alleged to have helped the Castro
government.216 Moreover, the survey was riddled with non-neutral questions, such
as the question that asked the respondent to agree or disagree whether “Castro’s
agents have attempted to disrupt peaceful demonstrations such as the Movimiento
Democracia’s flotillas which honor fallen comrades.”217 The survey was too
ambiguous to be reliable. For example, it asked if there are “any circumstances”
that would change the respondent’s “opinion,” but it did not clarify to which
“opinion” the question refers.218 Moreover, only two questions in the entire survey
directly referenced the defendants.219
Our deferential standard of review requires us to affirm the district court’s
216
Id.217
Id.218
Id.219
See R2-321 at Ex. D. The dissent argues that the district court focused its analysis
solely on prejudicial publicity and failed to make any findings regarding prejudice within the
community. We disagree with this characterization of the district court’s ruling. The court
“construe[d] [the] [d]efendants’ Motions [for change of venue] as directed primarily toward the
issue of ‘pervasive community prejudice’ . . . .” R5-586 at 10, n.2 (emphasis added). And, while
the court did not go so far as to find the community was “heterogenous” and “highly diverse,” as
the government argued, R3-443 at 3, the court did make a specific finding as to prejudice in the
community: that the defendants’ evidence did not demonstrate that community prejudice
warranted a change of venue under Rule 21. R5-586 at 16.
49
conclusion that the Moran survey was not sufficiently persuasive to support a
motion for change of venue. “The well established rule vests substantial
discretion in the district court as to the granting or denying of a motion for transfer
. . . .”220 “The trial court is necessarily the first and best judge of community
sentiment and the indifference of the prospective juror. Appellate courts . . . will
interfere only upon a showing of manifest probability of prejudice.”221
Furthermore, the court’s decision to deny the defendants’ pretrial change of
venue motions without prejudice in favor of proceeding to voir dire was a well-
supported exercise of discretion. When a defendant alleges that prejudicial
pretrial publicity would prevent him from receiving a fair trial, it is within the
district court’s broad discretion to proceed to voir dire to ascertain whether the
prospective jurors have, in fact, been influenced by pretrial publicity.222 Once the
court has conducted an appropriate voir dire examination, it also has the broad
discretion to rule whether prejudice resulted from the pretrial publicity such that
the defendant would be denied a fair trial.223 Indeed, we have ruled that a trial
220
United States v. Williams, 523 F.2d 1203, 1208 (5th Cir. 1975).
221
Bishop v. Wainwright, 511 F.2d 664, 666 (5th Cir. 1975).
222
See United States v. Nix, 465 F.2d 90, 96 (5th Cir. 1972).
223
See id.50
court’s method of holding its decision on a Rule 21 motion for change of venue in
abeyance until the conclusion of the voir dire “is clearly the preferable
procedure.”224 Even the defendants themselves admitted that the district court’s
voir dire more thoroughly evaluated the sentiment of the Miami-Dade community.
They admitted, “quite frankly, if Professor Moran could interrogate his pool
members the way this Court has interrogated some of the prospective jurors, the
social sciences wouldn’t be soft sciences, they would be hard sciences.”225
3. The Voir Dire
The voir dire in this case was a model voir dire for a high profile case. The
court conducted a meticulous two-phase voir dire stretching over seven days.226 In
contrast to the generalized, pre-fabricated, and sometimes leading questions of
Professor Moran’s survey were the detailed and neutral voir dire questions that the
court carefully crafted with the parties’ assistance.227 In the first phase of voir dire,
the court screened 168 prospective jurors for hardship and their ability to reach a
verdict based solely on the evidence.228 In the second phase, the court extensively
224
Williams, 523 F.2d at 1209 n.10.
225
R27 at 1374.
226
R21-28.
227
Gov’t Br. at App. G.
228
R6-766; R21-R24.
51
and individually questioned 82 prospective jurors outside the venire’s presence
regarding sensitive subjects, such as involvement in pro- and anti-Castro political
groups and immigration into the United States from Cuba.229 Phase two
questioning revealed that most of the prospective jurors, and all of the empaneled
jurors, had been exposed to little or no media coverage of the case.230 Those who
had been exposed to media coverage of the case vaguely recalled a “shootdown,”
but little else.231 Ultimately, the court struck 32 out of 168 potential jurors (19%)
for Cuba-related animus, which was well within an acceptable range.232 Qualified
jurors need not be totally ignorant of the facts and issues involved:
To hold that the mere existence of any preconceived notion as to the
guilt or innocence of an accused, without more, is sufficient to rebut
the presumption of a prospective juror’s impartiality would be to
establish an impossible standard. It is sufficient if the juror can lay
229
R25-28.
230
See id.231
See id.232
Compare Patton v. Yount, 467 U.S. 1025, 1029, 1035, 104 S. Ct. 2885, 2888, 2891, 81
L. Ed. 2d 847, 853, 856 (1984) (holding that the trial court did not err in finding that the jury was
impartial, even though “77% [of the venire] admitted they would carry an opinion in to the jury
box,” because the “relevant question is not whether the community remembered the case, but
whether the jurors . . . had such fixed opinions that they could not judge impartially”), and
Murphy, 421 U.S. at 803, 95 S. Ct. at 2038 (holding that excusing 20 out of 78 prospective jurors
[or, 26%] “by no means suggests a community with sentiment so poisoned against [the
defendant] as to impeach the indifference of jurors who displayed no animus of their own”), with
Irvin, 366 U.S. at 727, 81 S. Ct. at 1645 (reversing the defendant’s conviction because 268 of the
430 venirepersons, or 62%, had fixed opinions regarding the defendant’s guilt).
52
aside his impression or opinion and render a verdict based on the
evidence presented in court.233
At the conclusion of the voir dire, the defendants failed to express any
dissatisfaction with the selected jurors in terms of their ability to serve fairly and
impartially,234 and even complimented the court’s voir dire as “extraordinary”235
and stated that they were “very happy with” the jury.236 The court’s voir dire was
so effective in screening potential jurors that the defendants did not exercise all of
their peremptory challenges.237 We have ruled that a defendant’s failure to use all
peremptory challenges “indicates the absence of juror prejudice.”238 Moreover, the
defendants failed to renew their change of venue motions at the end of the voir
dire, despite the court’s invitation to do so, further indicating their satisfaction
with the jury and a lack of juror prejudice.239 Accordingly, the court’s careful and
thorough voir dire rebutted any presumption of jury prejudice.240
233
Irvin, 366 U.S. at 722-23, 81 S. Ct. at 1642-43.
234
R29 at 1564.
235
R27 at 1373.
236
R104 at 12092.
237
R28 at 1513.
238
United States v. Alvarez, 755 F.2d 830, 859 (11th Cir. 1985).
239
United States v. Yousef, 327 F.3d 56, 155 (2d Cir. 2003).
240
See Coleman, 778 F.2d at 1541 n.25; Mayola, 623 F.2d at 1000-01.
53
“A trial court’s finding of juror impartiality may ‘be overturned only for
manifest error.’”241 We owe the district court “wide discretion” in “conducting
voir dire in the area of pretrial publicity and in other areas that might tend to show
juror bias.”242 “The judge of that court sits in the locale where the publicity is said
to have had its effect and brings to his evaluation any of such claim his own
perception of the depth and extent of news stories that might influence a juror.”243
In sum, the record in this case amply demonstrates that the district court
took extraordinary measures to carefully select a fair and impartial jury. The court
extensively and individually questioned the prospective jurors, repeatedly
cautioned them not to read anything or talk to anyone about the case, insulated the
jurors from media publicity, provided the defendants with extra peremptory
challenges, struck 32 persons for cause, and struck all of the Cuban-Americans
241
Mu’Min v. Virginia, 500 U.S. 415, 428, 111 S. Ct. 1899, 1907, 114 L. Ed. 2d 493, 508
(1991) (quoting Patton, 467 U.S. at 1031, 104 S. Ct. at 2889).
242
Id. at 427, 111 S. Ct. at 1906.
243
Id. The dissent suggests that the “plethora of media” and “ubiquitous electronic
communications devices” that characterize this “high-tech age” spread community prejudice
across the district, necessitating a change in venue. We think, however, that such advances in
communication technology support the opposite conclusion. If prejudice could be spread
through multiple forms of media, the spread of such prejudice would not stop at district lines, but
would extend across the state of Florida. Following that rationale, the district court should have
refused to change venue because a district outside Miami-Dade would have been no more
capable of producing a panel of impartial jurors than Miami-Dade itself. This is why we afford
deference to the district court’s assessment of juror credibility and impartiality.
54
over the government’s Batson objection.244 Under these circumstances, we will
not disturb the district court’s broad discretion in assessing the jurors’ credibility
and impartiality.
4. The Trial
A review of the record reveals that this trial “comported with the highest
standards of fairness and professionalism.”245 The court maintained strict control
over the proceedings by employing various curative measures to insulate the jury
from any outside influence, from the beginning of the trial to the jury’s verdict.
From the commencement of the case, the parties, counsel, and witnesses were
under a strict gag order, as well as a sequestration order, which prohibited them
from releasing information or opinion that would interfere with the trial or
otherwise prejudice the defendants.246 On each day of the trial, before every
recess, and at the end of every day, the court admonished the jurors not to discuss
the case amongst themselves or with others, not to have contact with anyone
244
The government objected to the striking of all Cuban-Americans, the district court
denied the Batson challenge, and the government has not raised that issue in any way.
Accordingly, we have no opportunity to review the propriety of striking all the members of a
particular nationality. We simply note that although the defendants challenge their convictions
based on an alleged pervasive anti-Cuban sentiment in the Southern District of Florida, every
Cuban-American was struck from the venire.
245
Alvarez, 755 F.2d at 859.
246
2SR1-122 at 1; R21 at 117-19; R7-978 at 3, 7; R64 at 6759-60.
55
associated with the trial, and not to expose themselves, read, or listen to anything
related to the case.247 The court maintained control over the seating in the
courtroom as well, designating certain rows to certain groups and requiring the
media to sit in the back row.248 The court prevented the media from accessing the
voir dire questions by sealing them during jury selection.249
The court fiercely guarded the jury from outside intrusions. From the first
day of trial, the court instructed the marshals to accompany the jury, with their
juror tags removed, as they left the building.250 The court rejected the media’s
request for the twelve jurors’ names.251 The court took extra steps to insulate the
jurors during their deliberations, arranging for them to enter the courthouse by a
private entrance and providing them with transportation to their vehicles or mass
transit.252
5. Supreme Court Precedent
This case was nothing like the cases in which the Supreme Court has
247
See R21-28.
248
R25 at 717.
249
R24 at 625-26.
250
R21 at 112.
251
R126 at 14643-44.
252
Id. at 14645-47.
56
previously found that defendants were denied a fair trial by an impartial jury
because of pretrial publicity or pervasive community prejudice. The record
reflects that the pretrial community atmosphere in this case was unlike that which
existed in Irvin v. Dowd. In that case, the rural, Indiana community of 30,000
where the defendant was tried was subjected to a barrage of inflammatory
publicity immediately before trial, including information on the defendant’s prior
convictions, his confession to 24 burglaries and six murders, including the one for
which he was tried, and his unaccepted offer to plead guilty in order to avoid the
death sentence.253 The Supreme Court ruled that the defendant was entitled to a
change of venue because the prejudice against him was “clear and convincing,” as
reflected by the fact that eight of the twelve jurors had formed an opinion that he
was guilty before the trial began.254
Also distinguishable from this case is Rideau v. Louisiana,255 a case in
which the police illegally obtained a confession from the defendant, which a local
television station filmed and broadcast three times in the community where the
crime and the trial occurred. “[W]ithout pausing to examine a particularized
253
Irvin, 366 U.S. at 725-27, 81 S. Ct. at 1644-45.
254
Id.255
373 U.S. at 724, 83 S. Ct. at 1418.
57
transcript of the voir dire examination of members of the jury,” the Supreme Court
overturned the conviction, holding that the widespread dissemination of this
highly damaging material rendered the defendant’s trial nothing more than “a
hollow formality.”256 The Court ruled that the “kangaroo court proceedings”
deprived the defendant of due process.257
The district court’s implementation of numerous curative measures to
insulate the jury from disruptive influences in this case also sits in stark contrast to
the “carnival atmosphere” that warranted a reversal of the defendant’s conviction
in Sheppard v. Maxwell.258 In Sheppard, the judge did not adequately direct the
jury not to read or listen to anything concerning the case, but merely suggested
that the jury not expose themselves to media reports.259 The jurors were “thrust
into the role of celebrities by the judge’s failure to insulate them from the reporters
and photographers,” when numerous pictures of the jurors and their addresses
appeared in the newspaper.260 Likewise, in Estes v. Texas,261 the defendant was
256
Id. at 726-27, 83 S. Ct. at 1419-20.
257
Id. at 726, 83 S. Ct. at 1419.
258
384 U.S. 333, 358, 86 S. Ct. 1507, 1520, 16 L. Ed. 2d 600 (1966).
259
Id. at 353, 86 S. Ct. at 1517.
260
Id.261
381 U.S. 532, 550, 85 S. Ct. 1628, 1636, 14 L. Ed. 2d 543, 554 (1965).
58
denied his due process rights because the courtroom was a “mass of wires,
television cameras, microphones, and photographers.” At least twelve cameramen
were allowed to photograph the proceedings, “[c]ables and wires were snaked
across the courtroom floor, three microphones were on the judge’s bench and
others were beamed at the jury box and the counsel table.”262
The rare instances in which the Supreme Court has presumed prejudice to
overturn a defendant’s conviction are far different from this case. In those cases,
the “kangaroo court proceedings” in combination with the “circus atmosphere”
generated by sensational pretrial publicity deprived the defendant of a fair trial.
Here, the district court carefully and meticulously evaluated the defendants’
evidence of pretrial publicity and then made specific factual findings to discount
that evidence. At trial, the court used numerous curative measures to prevent any
publicity from affecting the jury’s deliberations.
In sum, to establish a presumption of juror prejudice necessitating Rule 21
change of venue, a defendant must demonstrate that (1) widespread, pervasive
prejudice and prejudicial pretrial publicity saturates the community, and (2) there
is a reasonable certainty that the prejudice prevents the defendant from obtaining a
fair trial. We find that the defendants in this case failed to meet this two-pronged
262
Id. at 536, 85 S. Ct. at 1629.
59
test. They failed to show that so great a prejudice existed against them as to
require a change of venue under Rule 21, in light of the court’s effective use of
prophylactic measures to carefully manage individual voir dire examination of
each and every panel member and its successful steps to isolate the jury from
every extrinsic influence. Under these circumstances, we will not disturb the
district court’s broad discretion in ruling that this is not one of those rare cases in
which juror prejudice can be presumed.
B. Denial of Motions for New Trial
We review a district court’s denial of a motion for new trial for abuse of
discretion.263 Rule 33 of the Federal Rules of Criminal Procedure provides:
(a) Defendant’s Motion. Upon the defendant’s motion, the court may
vacate any judgment and grant a new trial if the interest of justice so
requires. If the case was tried without a jury, the court may take
additional testimony and enter a new judgment.
(b) Time to File.
(1) Newly Discovered Evidence. Any motion for a new trial
grounded on newly discovered evidence must be filed within 3 years
after the verdict or finding of guilty. If an appeal is pending, the
court may not grant a motion for a new trial until the appellate court
remands the case.
(2) Other Grounds. Any motion for a new trial grounded on any
reason other than newly discovered evidence must be filed within 7
days after the verdict or finding of guilty.264
263
United States v. Vallejo, 297 F.3d 1154, 1163 (11th Cir. 2002).
264
Fed. R. Crim. P. 33. Rule 33 was amended December 1, 2002, “as a part of the general
restyling of the Criminal Rules to make them more easily understood and to make style and
60
Thus, there are two grounds upon which a court may grant a motion for new trial:
one based on newly discovered evidence, which must be filed within three years of
the verdict pursuant to Rule 33(b)(1); and the other based on any other reason,
typically the interest of justice, which must be filed within seven days of the
verdict, pursuant to Rule 33(b)(2).265
“Motions for a new trial based on newly discovered evidence are highly
disfavored in the Eleventh Circuit and should be granted only with great caution.
Indeed, the defendant bears the burden of justifying a new trial.”266 Newly
discovered evidence need not relate directly to the issue of guilt or innocence to
justify a new trial, “but may be probative of another issue of law.”267 For instance,
the existence of a Brady violation, as well as questions regarding the fairness or
impartiality of a jury, may be grounds for a new trial.268
terminology consistent throughout the rules. These changes [were] intended to be stylistic only.”
See Fed. R. Crim. P. 33 advisory committee’s note 2002. We apply the current version of Rule
33, even though the defendants’ new trial motions were filed before the 2002 amendments were
effective.
265
See Fed. R. Crim. P. 33; United States v. Devila, 216 F.3d 1009, 1015 (11th Cir. 2000)
(per curiam) vacated in part on other grounds, 242 F.3d 995, 996 (2001) (per curiam).
266
Devila, 216 F.3d at 1015-16 (quotations and citations omitted).
267
United States v. Beasley, 582 F.2d 337, 339 (5th Cir. 1978) (per curiam).
268
Id. at 339; United States v. Williams, 613 F.2d 573, 575 (5th Cir. 1980) (stating that a
motion for new trial is appropriate if the newly discovered evidence “afford[ed] reasonable
61
The defendants are not entitled to a new trial on the basis of newly
discovered evidence under Rule 33(b)(1) because the government’s decision to
move for a change of venue in Ramirez does not constitute newly discovered
evidence of prosecutorial misconduct with respect to the government’s earlier
opposition to the defendants’ motions for change of venue in this case. Ramirez
was entirely different from this case in that it was a Title VII employment
discrimination case arising out of the INS’s role in the removal of Elian Gonzalez
from his uncle’s home, whereas this case involved agents of the government of
Cuba operating unlawfully in the United States and conspiring to commit
espionage and murder.269 Moreover, Ramirez’s conduct in procuring and
exploiting partisan media coverage of the evidence and the issues in his case
distinguished Ramirez from the instant case. On the day Ramirez filed his lawsuit,
he held a press conference on the steps of the courthouse, during which he
displayed one of the items featured in his complaint, an example of a cup holder
with a picture of the Cuban flag and the international “no symbol.”270 The Miami
grounds to question the fairness of the trial or the integrity of the verdict,” but affirming the
denial of a new trial because there was no reasonable likelihood that a juror’s ex parte contact
with the district judge impugned the integrity of the jury’s verdict (citing S. Pac. Co. v. Francois,
411 F.2d 778, 780 (5th Cir. 1969))).
269
R15-1660 at 7-8.
270
Id. at 10.
62
Herald quoted Ramirez saying that the INS was “the most corrupt agency in the
country” with a “deep hatred toward Hispanics.”271 He appeared on several radio
and television shows, local rallies, and protests, and his photograph appeared on
banners carried by protestors demonstrating outside of the INS building.272 On
one television show, Ramirez disclosed a document produced during a videotaped
deposition taken during discovery and caused the deposition itself to be broadcast
on the show, in violation of Local Rule 77.2.273
The defendants’ argument that the government’s subsequent legal position
in the Ramirez case constituted prosecutorial misconduct that warrants a new trial
is essentially a claim of judicial estoppel. Judicial estoppel bars a party from
asserting a position in a legal proceeding that is inconsistent with its position in a
previous, related proceeding.274 It “is designed to prevent parties from making a
mockery of justice by inconsistent pleadings.”275 Courts consider two factors in
271
Id.
272
Id. at 11.
273
Id.
274
New Hampshire v. Maine, 532 U.S. 742, 749, 121 S. Ct. 1808, 1814, 149 L. Ed. 2d
968, 977 (2001).
275
Burnes v. Pemco Aeroplex, Inc., 291 F.3d 1282, 1285 (11th Cir. 2002) (internal
quotation marks omitted) (quoting Am. Nat’l Bank of Jacksonville v. Fed. Deposit Ins. Corp.,
710 F.2d 1528, 1536 (11th Cir. 1983)).
63
determining whether to apply the doctrine: whether the “allegedly inconsistent
positions were made under oath in a prior proceeding” and whether such
inconsistencies were “calculated to make a mockery of the judicial system.”276
Judicial estoppel is not applicable here because Ramirez was not a related
proceeding, but rather an employment discrimination lawsuit. Moreover, the
position that the government took in Ramirez occurred subsequent to–not
before–its position in this case. The government filed its motion for change of
venue in Ramirez on June 25, 2002, more than one year after the defendants were
convicted.277 Therefore, the defendants’ argument that the government should
have been estopped from opposing its change of venue motions in a prior
proceeding is chronologically unsound, and the court did not abuse its discretion
in denying the defendants’ motion for new trial based on newly discovered
evidence.
Nor are the defendants entitled to a new trial in the interests of justice under
Rule 33(b)(2). The defendants timely filed their initial motion by the court-
extended August 1, 2001, deadline278 for filing post-trial motions, arguing that a
276
Id. at 1285 (quotations and citations omitted).
277
R15-1636 at Ex. 2.
278
R126 at 14672. The district court extended the seven-day time period within which the
defendants could file post-trial motions, including a Rule 33 interests of justice motion, to
64
new trial was warranted in the interests of justice due to the prejudice inured to
them from the venue and the prosecution’s misconduct at trial.279 The district
court denied the motion, citing the numerous curative measures it implemented to
guarantee the defendants’ right to a fair trial.280 The record reflects that any
potential for prejudice against the defendants was cured by the court’s methodical
pursuit of a fair trial. Basulto’s comment that Hernandez’s counsel was a spy for
Cuba did not prejudice the defendants because it was merely a single remark
during a seven-month trial by the defense’s own witness, which the court struck
and instructed the jury to disregard.281 Moreover, the prosecution’s closing
arguments did not prejudice the defendants because the court granted the
defendants’ objections and specifically instructed the jury to disregard the
improper statements.282 These alleged incidents of government misconduct “were
so minor that they could not possibly have affected the outcome of the trial.”283
August 1, 2001, in accordance with the version of Rule 33 in effect at the time, which permitted
the court to grant a motion filed “within such further time as the court sets during the 7-day
period.” See Fed. R. Crim. P. 33 advisory committee’s note 2005.
279
R12-1338, 1342, 1343, 1347.
280
R13-1392.
281
R81 at 8945-46, 8955.
282
R124 at 14482, 14483, 14493.
283
Alvarez, 755 F.2d at 859.
65
Thereafter, in November 2002, the defendants filed a renewed motion for
new trial on both newly discovered evidence and interest of justice grounds.284
The defendants based their renewed motion almost entirely on the interests of
justice argument, devoting 20 of the 32 pages of the motion and 7 of the 12
supporting exhibits to that issue.285 The defendants filed an affidavit and a survey
from two new experts, an additional affidavit from Professor Moran defending his
survey, and additional news articles and reports by the Human Rights Watch.286
None of these materials were presented to the district court for consideration with
the initial new trial motions. The district court declined to consider the
defendants’ renewed interests of justice argument and supporting materials, ruling
that because “the seven-day period . . . expired more than nineteen months ago,” it
lacked jurisdiction to grant the motion on that basis.287
284
R15-1635, 1638, 1644, 1647, 1650, 1651.
285
R15-1635, R15-1636.
286
R15-1636 at Exs. 4, 5, 7-10, 12.
287
R15-1678 at 5. The district court relied on our precedent that states that “[t]here is no
question that the seven-day time limit provided for in Rule 33 is jurisdictional.” United States v.
Renick, 273 F.3d 1009, 1019 (11th Cir. 2001) (per curiam). The court did not have the benefit of
Eberhart v. United States, __ U.S. __, 126 S. Ct. 403, 403, 163 L. Ed. 2d 14, 17 (2005) (per
curiam) (internal quotation marks omitted), which clarified that Rule 33 is “an inflexible claim-
processing rule,” rather than a rule “governing subject-matter jurisdiction.” The Court noted that
this “is an error shared among the circuits . . . . caused in large part by imprecision in [the
Supreme Court’s] prior cases.” Id. at 407. Here, any error by the district court in characterizing
Rule 33 new trial motions as jurisdictional was harmless.
66
The district court did not abuse its discretion in refusing to consider the
defendants’ renewed motion based on the interests of justice. A court may not
consider motions for new trial based on any other argument than newly discovered
evidence outside the 7-day period.288 “This deadline is rigid. . . . [C]ourts ‘may not
extend the time to take any action under [Rule 33], except as stated’ in Rule 33
itself.”289 Nor does a district court have the power to regard an untimely motion
for new trial as a supplement to a timely motion.290 The time for the defendants to
present the entirety of their interests of justice argument was when they initially
filed it in July and August of 2001, within the court-extended August 1st deadline.
The defendants’ renewed motion for new trial based on the interests of justice was
essentially the defendants’ attempt to relitigate the merits of the venue issue that
the court had previously considered four times. The defendants could have
commissioned Drs. Brennan and Pérez to provide affidavits in support of their
position during any one of those times when the court previously considered the
issue. We will not permit, nor does Rule 33 permit, the defendants to take a
288
See Fed. R. Crim. P. 33(b)(2).
289
Eberhart, 126 S. Ct. at 403 (quoting Fed. R. Crim. P. 45(b)(2)).
290
United States v. Hall, 854 F.2d 1269, 1271 (11th Cir. 1988).
67
second–or fifth–“bite at the apple.”291 Because the defendants’ renewed interest of
justice motion was filed outside the extended time period during which a court
may consider new trial motions, and because the government preserved its
argument that the claim was untimely,292 the court did not abuse its discretion in
declining to consider the issue.
Accordingly, because neither newly discovered evidence nor the interests of
justice warrant a new trial, we affirm the court’s decision to deny the defendants’
motions for new trial.
III. CONCLUSION
Based on our thorough review of this case, we rely on the trial judge’s
judgment in assessing juror credibility and impartiality. The trial judge, as a
member of the community, can better evaluate whether there is a reasonable
certainty that prejudice against the defendant will prevent him from obtaining a
fair trial. The judge brings to the courtroom her own perception of the depth and
extent of community prejudice and pretrial publicity that might influence a juror.
Miami-Dade County is a widely diverse, multi-racial community of more
291
United States v. Geders, 625 F.2d 31, 33 (5th Cir. 1980).
292
Eberhart, 126 S. Ct. at 406 (ruling that the government forfeits its defense of
untimeliness if it fails to raise the defense before the district court reaches the merits of the Rule
33 motion).
68
than two million people. Nothing in the trial record suggests that twelve fair and
impartial jurors could not be assembled by the trial judge to try the defendants
impartially and fairly. The broad discretion the law reposes in the trial judge to
make the complex calibrations necessary to determine whether an impartial jury
can be drawn from a cross-section of the community to ensure a fair trial was not
abused in this case. Although it is conceivable that, under a certain set of facts, a
court might have to change venue to ensure a fair trial, the threshold for such a
change is rightfully a high one. The defendants have not satisfied it.
For the reasons given, we AFFIRM the district court’s denial of the
defendants’ motions for change of venue and for new trial. Having decided these
issues upon which we granted en banc review, we REMAND this case to the
panel for consideration of the remaining issues.
69
BIRCH, Circuit Judge dissenting in which KRAVITCH, Circuit Judge, joins:
I respectfully dissent. I remain convinced that this case is one of those rare,
exceptional cases that warrants a change of venue because of pervasive
community prejudice making it impossible to empanel an unbiased jury. The
defendants, as admitted agents of the Cuban government of Fidel Castro, were
unable to obtain a fair and impartial trial in a community of pervasive prejudice
against agents of Castro’s Cuban government, whose prejudice was fueled by
publicity regarding the trial and other local events. Accordingly, I would reverse
their convictions and remand for a new trial.
I am convinced that, based on circuit precedent, our consideration of the
denial of a motion for change of venue requires an independent review of the
totality of the circumstances surrounding the trial. Therefore, in Part I, I consider
in the “Background” the facts (omitted from the en banc opinion) that I conclude
are essential to an understanding of the intense community pressures in this case.
My review of the evidence at trial is more extensive than is typical for
consideration of an appeal involving the denial of a motion for change of venue
because I conclude that the trial evidence itself created safety concerns for the jury
which mandate venue considerations. In Part II, I discuss the law and the
application of the law to the facts in this case. In Part III, I present my
70
conclusion. Moreover, in this media-driven environment in which we live,
characterized by the ubiquitous electronic communications devices possessed by
even children (e.g., the cell phone, the I-pod, the laptop, etc.), this case presents a
timely opportunity for the Supreme Court to clarify the right of an accused to an
impartial jury in the high-tech age. Given the multiple resources for almost
instantaneous communication and the plethora of media extant today, the
considerations embraced by the Court in earlier times fail to address these
developments.
I. BACKGROUND
Included in with the charges forming the basis for the defendants-
appellants’ arrests and subsequent indictments were allegations that they, as agents
of the Republic of Cuba, had infiltrated the United States military and reported on
United States military activities, and that one of them, Gerardo Hernandez, had
conspired to commit murder by supporting and implementing a plan in 1996 to
shoot down United States civilian aircraft outside of Cuban and United States
airspace.
The 1996 shootdown involved planes piloted by and carrying members of
the Brothers to the Rescue (“BTTR”), a Cuban-exile group headquartered in
Miami-Dade County. As a result of the Cuban government’s military shootdown
71
of two United States-registered civilian aircraft, four members of BTTR died.1
Their deaths were condemned as murders by the international community.
Statements deploring Cuba’s excessive use of force were issued by the United
Nations and other international organizations and legislation was passed in the
United States “strongly” condemning the shootdown as an “act of terrorism by the
Castro regime.”2 The deceased were heralded as martyrs and their funerals were
attended by numerous people within the community. Memorials were
subsequently erected in their honor, and streets within the Miami-Dade County
community were renamed for them.
The defendants’ arrests, therefore, generated intense interest within the
community. Shortly after the arrests, the district court entered a gag order
governing the parties and their attorneys.3 That order, however, did not prevent
leakage. In the early fall of 1999, the district court reminded the parties and their
attorneys that they were to refrain from releasing information or opinions that
could interfere with a fair trial or prejudice the administration of justice.4 The
1
United States v. Hernandez, 106 F. Supp. 2d 1317, 1318 (S.D. Fla. 2000).
2
Alejandre v. Republic of Cuba, 996 F. Supp. 1239, 1247 (S.D. Fla. 1997); 22 U.S.C.
§6046(1).
3
R7-978 at 3; R21 at 117.
4
R18 at 14.
72
district judge stated that she was “increasingly concerned” that various persons
connected with the case were not following her order based on the “parade of
articles appearing in the media about this case.”5 In particular, she commented
that an article about defendant Medina’s pending motion to incur expenses to poll
the community “was the lead story in the local section on Saturday in the Miami
Herald.”6 She warned all counsel and agents associated with the case that
appropriate action would be taken and that the U.S. Attorney’s Office would be
held responsible.7 She directed that “[t]his case . . . not . . . get advertised
anywhere in the media for any reason whatsoever.”8 The motion to incur expenses
was filed in August 1999 and was subsequently granted by the district court.9
A. Motion for Change of Venue
As the en banc opinion notes, Campa, Gonzalez, Guerrero, and Medina
moved for a change of venue in January 2000, arguing that they were unable to
obtain an impartial trial in Miami as a result of pervasive prejudice against anyone
5
Id.6
Id. at 15.
7
Id. at 14-15.
8
Id. at 17.
9
R1-280 at 2-3; R2-303; R18 at 11-12.
73
associated with Castro’s Cuban government.10 The motions for change of venue
were based on both the pretrial publicity and on the “virulent anti-Castro
sentiment” which had existed in Miami as “a dominant value . . . for four
decades.”11 The motions were supported by news articles and Moran’s poll to
substantiate “an atmosphere of great hostility towards any person associated with
the Castro regime” and “the extent and fervor of the local sentiment against the
Castro government and its suspected allies.”12
The evidence submitted in support of the motions for change of venue was
massive. At that time, there were more than 700,000 Cuban-Americans living in
Miami.13 Of those Cuban-Americans, 500,000 remembered leaving their
10
R2-317 (Guerrero), 321 (Medina), 324 (Gonzalez), 329 (Campa); R3-397 (Campa).
Medina requested a change of venue “in light of evidence of pervasive community prejudice
against the accused” as documented by Professor Gary Moran’s survey which showed “public
sentiment against persons alleged to be agents of Fidel Castro’s Communist government in
Cuba.” R2-321 at 1-2. Moran concluded that, while there had been “several bursts of newspaper
articles . . . and other media attention” surrounding the Cuban spies’ arrests, the basis for the
motion was the “[v]irulent anti-Castro sentiment” in the community. Id. at 3.
Although Campa, Gonzalez, Guerrero, and Medina had originally argued that the case
should be moved to another judicial district, during oral argument on the motions, they agreed
that they would be satisfied with a transfer of the case within the district from the Miami division
to the Fort Lauderdale division. R5-586 at 2 n.1.
11
R2-321 at 3; R2-316 at 2; R2-317 at 2; R2-324 at 1; R2-329 at 1; R2-334 (containing
news articles which detail the history of anti-Castro sentiment in Miami); R3-397 at 1; R3-453 at
1-2; R3-455 at 2; R3-461 at 2-3.
12
R2-329 at 1, 3; R2-334; R3-397; R3-455.
13
R15-1636, Ex. 9.
74
homeland, 10,000 had a relative murdered in Cuba, 50,000 had a relative tortured
in Cuba, and thousands were former political prisoners.14 These Cuban-Americans
considered Cuban-related matters “‘hot-button issues.’”15
Professor Moran’s survey results showed that 69 percent of all respondents
and 74 percent of Hispanic respondents were prejudiced against persons charged
with engaging in the activities named in the indictment.16 A significant number,
57 percent of the Hispanic respondents and 39.6 percent of all respondents,
indicated that, “[b]ecause of [their] feelings and opinions about Castro’s
government,” they “would find it difficult to be a fair and impartial juror in a trial
of alleged Cuban spies.”17 Over one-third of the respondents, 35.6 percent, said
that they would be worried about criticism by the community if they served on a
jury that reached a not-guilty verdict in a Cuban spy case.18 The respondents who
indicated an inability to be fair and impartial jurors were also asked whether there
were any circumstances that would change their opinion.19 Of those respondents,
14
Id.15
R15-1636, Exh. 9.
16
R2-321, Ex. A at 10.
17
Id. at Ex. A at 12; see id. at Ex. E at 3.
18
Id. at Ex. A at 11-12.
19
Id. at Ex. A at 13; id. at Ex. E at 3.
75
91.4 percent of the Hispanics and 84.1 percent of the others answered “no.”20
The articles submitted by the defendants included articles that related
directly to the charged crimes and to the defendants and their codefendants.21
20
Id. at Ex. A at 13.
21
The following articles specifically addressing the conspiracy and the indicted
defendants were attached as exhibits in support of the motions for change of venue: George
Gedda, Federal officials say 10 arrested, accused of spying for Cuba, MIAMI HERALD , Sept. 14,
1998, R2-334, Ex.; Manny Garcia, Cynthia Corzo, Ivonne Perez, Spies among us: Suspects
attempted to blend in, Miami, MIAMI HERALD , Sept. 15, 1998, at A1, R2-334; David Lyons,
Carol Rosenberg, Spies among us: U.S. cracks alleged Cuban ring, arrests 10, MIAMI HERALD ,
Sept. 15, 1998, at A1, R2-329, Ex. A; R2-334, Ex.; Spies among us, MIAMI HERALD , Sept. 15,
1998, at 14A, R2-329, Ex. F; Fabiola Santiago, Big news saddens, angers exile community,
MIAMI HERALD , Sept. 15, 1998, R2-334, Exh.; Juan O. Tamayo, Arrest of spy suspects may be
switch in tactics, MIAMI HERALD , Sept. 15, 1998, R2-334, Exh.; Javier Lyonnet, Olance
Nogueras, Cae red de espionaje de Cuba/FBI viro´ al revés casa de supuesto cabecilla and Pablo
Alfons, Rui Ferreira, Cae red de espionaje de Cuba/Arrestan a 10 en Miami, NUEVO HERALD ,
Sept. 15, 1998, at A1, R2-329, Exh. B; La Habana Contra El Pentagono(“Havana versus the
Pentagon”)/Estructura de la Red de Espionaje, NUEVO HERALD , Sept. 15, 1998, R2-329, Exh. C;
Arrest of alleged Cuban spies demands vigorous prosecution, SUN -SENTINEL, Sept. 16, 1998, at
30A, R2-329, Exh. G; Juan O. Tamayo, Miscues blamed on military’s takeover of Cuban spy
agency, MIAMI HERALD , Sept. 17, 1998, at 13A, R2-334, Exh.; David Kidwell, Motion could
delay trials of alleged 10 Cuban spies, MIAMI HERALD , Oct. 6, 1998, at B1, R2-334, Exh.; David
Lyons, Cuban couple pleads guilty in spying case, MIAMI HERALD , Oct. 8, 1998, at A1, R2-334,
Exh.; David Kidwell, Three more accused spies agree to plead guilty, MIAMI HERALD , Oct. 9,
1998, at 4B, R2-329, Exh. H; R2-334, Exh.; Carol Rosenburg, Couple admits role in Cuban spy
ring, MIAMI HERALD , Oct. 22, 1998, at 5B, R2-329, Exh. H; Juan O. Tamayo, U.S.-Cuba spy
agency contacts began a decade ago, MIAMI HERALD , Oct. 31, 1998, R2-334, Exh.; David
Kidwell, U.S. tries to tie espionage case to planes’ downing, MIAMI HERALD , Nov. 13, 1998, at
A1, R2-334, Exh.; Carol Rosenberg, Identities of 3 alleged spies still unknown, Nov. 14, 1998,
at B1, R2-334, Exh.; Juan O. Tamayo, Spies Among Us/Castro Agents Keep Eye on Exiles,
MIAMI HERALD , Apr. 11, 1999, R2-329, Exh. D; R2-334, Exh.; Carol Rosenberg, Shadowing of
Cubans a classic spy tale, MIAMI HERALD , Apr. 16, 1999, at A1, R2-329, Exh. E; R2-334, Exh.;
Cuban spy indictment/Charges filed in downing of exile fliers/The Brothers to the Rescue
Shootdown: David Lyons, Castro agent in Miami cited by U.S. grand jury, Juan O. Tamayo,
Brothers to the Rescue Shootdown/Top spy planned Brothers ambush, and Elaine de Valle,
Relatives: Charges fall short, MIAMI HERALD , May 8, 1999, R2-334, Exh.; Confessed Cuban spy
receives seven years, MIAMI HERALD , Jan. 29, 2000, at B1, R2-355 at C-2; Contrite Cuban spy
couple sentenced, MIAMI HERALD , Feb. 3, 2000, at B5, R3-355 at D-2; Miami Spy-Hunting,
76
Other articles documented community tensions and protests related to general anti-
Castro sentiment, the conditions in Cuba, and other ongoing legal cases in which
Cuban-American issues were involved, including the Elian Gonzalez matter.22
MIAMI HERALD , Feb. 19, 2000, at 21A, R3-397, Exh. G-1; Carol Rosenberg, Confessed Cuban
spies sentenced to seven years, MIAMI HERALD , Feb. 24, 2000, at 1B, R3-397, Exh. I-1;
Terrorism must not win in Brothers to the Rescue shoot-down, MIAMI HERALD , Feb. 24, 2000, at
8B, R3-397, Exh. J-1 (“More than compensation, the families want the moral sting of a U.S.
criminal prosecution in federal court. So far there is only one indictment: Gerardo Hernandez,
alleged Cuban spy-ring leader, charged last year with conspiracy to murder in connection to the
shoot down.”); Brothers Pilots Remembered (photo), MIAMI HERALD , Feb. 25, 2000, at B1, R3-
397, Exh. K-1; Marika Lynch, Shot-down Brothers remembered, MIAMI HERALD , Feb. 25, 2000,
at 2B, R3-397, Exh. L-1.
22
R3-397, Exs.; R4-483, Exs.; R4-498, Exs.
During the same period of time in which the motions for change of venue were pending,
and ultimately the trial was conducted, there was a substantial amount of publicity regarding
other matters of interest in the Cuban community including the conditions in Cuba and high
profile legal events occurring in Miami: the Elian Gonzalez matter; the arrest of an United States
immigration agent, Mariano Faget, who was accused of spying for Cuba; and a city-county ban
on doing business with Cuba.
As to the general anti-Castro sentiments and the conditions in Cuba: Juan O. Tamayo,
Former U.S. Pows Detail Torture by Cubans in Vietnam/Savage beatings bent captives to will of
man dubbed ‘Fidel’, MIAMI HERALD , Aug. 22, 1999, at A1, R2-329, Ex. I; Juan O. Tamayo,
Cuba toughens crackdown/‘Biggest wave of repression so far this year’, MIAMI HERALD , Nov.
11, 1999, at A1, R2-329, Ex. K; Juan O. Tamayo, Witnesses link Castro, drugs, MIAMI HERALD ,
Jan. 4, 2000, at B3, R2-329, Ex. J; Marika Lynch, Castro-challenging pilot is offered parade,
honors, Jan. 4, 2000, at B1, R2-329, Ex. M; Jim Morin, Cuba: I cannot speak my mind (cartoon),
MIAMI HERALD , Jan. 20, 2000, R2-329, Ex. P.
As to Elian Gonzalez: Juan O. Tamayo, Castro Ultimatum/Return boy in 72 hours or
migration talks at risk, MIAMI HERALD , Dec. 6, 1999, at 1A, R2-329, Ex. N; Sara Olkon, Gail
Epstein Nieves, Martin Merzer, The Saga of Elian Gonzalez/Protest and Passion Spread to the
Streets/Sit-ins block intersections and disrupt Dade traffic and Politicians, lawyers work to halt
6-year-old’s return, MIAMI HERALD , Jan. 7, 2000, 1A, I see no basis for reversing decision, Reno
says and Sara Olkon, Anabelle de Gale, Marika Lynch, Pained Cuban exiles disagree on what’s
best for Elian, MIAMI HERALD , Jan. 7, 2000, at 17A, U.S. Preparations for boy’s return start
slowly, The Miami Herald, Jan. 7, 2000, at 18A, R2-329, Ex. O; Peaceful Rally (photo), MIAMI
77
HERALD , Jan. 9, 2000, at 1A, R2-329, Ex. N; Jay Weaver, 3rd judge gets high profile in Elian
case, MIAMI HERALD , Feb. 23, 2000, at 1B, R3-397, Ex. A-1; Sandra Marquez Garcia, Mary
‘appears’ near Elian, MIAMI HERALD , Mar. 26, 2000, at 1B, R4-483, Ex. E-3; Alfonso Chardy,
Authorities keep watch on exile groups, MIAMI HERALD , Mar. 29, 2000, at 10A, R4-483, Ex. C-
3; Vigilant protestors, MIAMI HERALD , Mar. 29, 2000, at 10A, R4-483, Ex. I-3; Andres Viglucci,
Jay Weaver, and Frank Davies, Dad gets visa, but no guarantees for Elian’s transfer, MIAMI
HERALD , Apr. 5, 2000, at 1A, R4-483, Ex. D-3; Elaine de Valle, Media watch events closely–and
get watched in return/Hot words on radio scrutinized, and Terry Jackson, Media watch events
closely–and get watched in return/TV talk, news shows flocking to South Florida, MIAMI
HERALD , Apr. 5, 2000 at 15A, R4-483, Ex. B-3; Karen Branch, Crowds target Reno’s home,
MIAMI HERALD , Apr. 6, 2000, at 2B, R4-483, Ex. A-3; The saga of Elian/Reno wants Elian
today/Boy must be at airport by 2 P.M./Defiant family refusing to comply: Andres Viglucci, Jay
Weaver, and Ana Acle, Great-uncle challenges U.S. to take boy ‘by force’, and Carol Rosenberg,
The Attorney general followed ‘instinct’ as final mediator, MIAMI HERALD , Apr.13, 2000, at 1A,
R4-483, Ex. F-3; The saga of Elian/Family defies order/Crowd swells at Little Havana
home/Judge dismisses family’s custody case/Panel will weigh request for a stay/U.S. takes no
action to remove Elian: Ana Acle, In a show of solidarity, VIPs flock to visit boy, and Andres
Viglucci and Jay Weaver, Reno: U.S. will explore all peaceful solutions, MIAMI HERALD , Apr.
14, 2000, at 1A, R4-483, Ex. G-3; Saga of Elian/Standoff over custody/A show of
solidarity(photo), MIAMI HERALD , Apr, 14, 2000, at 20A, R4-483, Ex. H-3; Karl Ross, W. Dade
home of attorney general on alert, and Police say an anonymous caller phoned in bomb threat
April 13, MIAMI HERALD , Apr. 16, 2000, R4-498, Ex. A-4; Raid’s Prelude: How talks
failed/Missed signals helped doom deal and Sara Olkon, Diana Marrero, and Elaine de Valle,
Thousands protest seizure/Separate rally backs Reno’s actions, MIAMI HERALD , Apr. 30, 2000, at
1A, R4-498, Exh. C-4; Carol Rosenberg, INS agent targeted by death threats, MIAMI HERALD ,
May 6, 2000, R4-498, Exh. B-4; and In memory of mothers who died at sea (photo), MIAMI
HERALD , R4-498, Exh. D-4.
As to Mariano Faget: Elaine de Valle, Fabiola Santiago, and Marika Lynch, FBI: Official
in INS spied for Cuba, MIAMI HERALD , Feb. 18, 2000, at A1, R3-397 at C-1; Amy Driscoll, Juan
Tamayo, Spy bait taken instantly/Alleged Cuban agent phoned contact after receiving false FBI
information, Fabiola Santiago, Aloof suspect with high clearance was ideally positioned to do
harm, and Tracking Faget (photos), MIAMI HERALD , Feb. 19, 2000, at A1, R3-397 at B-1; Don
Bohning, Faget’s father was a brutal Batista official, MIAMI HERALD , Feb. 19, 2000, at 21A, R3-
397, Exh. G-1; Frank Davies, Cuba, U.S. still fight Cold War, MIAMI HERALD , Feb. 19, 2000, at
21A, R3-397, Exh. H-1; Juan O. Tamayo, Cuban diplomat expelled over spy link, MIAMI
HERALD , Feb. 20, 2000, at A1, R3-397, at D-1; Liz Balmaseda, Spy case boosts worst suspicions,
MIAMI HERALD , Feb. 21, 2000, at B1, R3-397, at F-1; Juan O. Tamayo, Cuban diplomat linked
to Elian, INS spy case, MIAMI HERALD , Feb. 22, 2000, at A1, R3-397, at E-1; Juan O. Tamayo,
More exiles maneuvering for business with Cuba, MIAMI HERALD , Mar. 5, 2000, at A-1, R3-455
at A-2; Ana Radelat and Jan O. Tamayo, FBI agents expel defiant Cuban envoy, MIAMI HERALD ,
at A-1, R3-455 at B-2.
78
One of the articles, which addressed a bomb threat against the Attorney General of
the United States following a collapse of talks in the Elian Gonzalez case, recited a
history of anti-Castro exile group violence in the Miami-Dade community:
Scores of bomb threats and actual bombings have been
attributed to anti-Castro exile groups dating back to the 1974
bombings of a Spanish-language publication, Replica. Two years
later, radio journalist Emilio Millan’s legs were blown off in a car
bomb after he spoke out against exile violence.
In the early 1980s, the Mexican and Venezuelan consular
offices were bombed in retaliation for their government’s establishing
relations with Cuba.
Since then, numerous small businesses–those promoting commerce,
travel, or humanitarian aid to Cuba–have been targeted by bombers.23
The government responded to the change of venue motions that the Miami-
Dade Hispanic population was a “heterogeneous,” “highly diverse, even
contentious” “group” immune from the influences which would preclude a fair
trial.24 Following oral arguments on 26 June 2000, the district court denied the
As to the business ban: Marika Lynch, Fernando Almanzar, Protest, taping set to follow
Van Van show, MIAMI HERALD , Sept. 28, 1999, at 3B, and Tyler Bridges, Andres Viglucci,
Miami may bar Van Van next time/County’s Penelas also opposed, MIAMI HERALD , Oct. 13,
1999, at B1, R2-329, Exh. L; Don Finefrock, Ban on business with Cuba tightened, MIAMI
HERALD , Feb. 25, 2000, at 2A, R3-397, Exh. M-1; Jordan Levin, Miami-Dade threatens to cancel
film fest grant/Cuban movie collides with county law, MIAMI HERALD , Feb. 25, 2000, at 1A, R3-
397, Exh. N-1; Jordan Levin, Groups ‘warned’ on Cuba resolution, MIAMI HERALD , May 15,
2000, at 1B, R4-498, Exh. E-4; Decenas De exiliados se congregaron ante la Corte Federal para
reclamar el derecho de Elian Gonzalez a permanecer en EU, R3-455, Exh. E-2.
23
R4-498, Ex. A-4.
24
R3-443 at 11.
79
motion without prejudice, finding that the defendants had failed to demonstrate
that a change of venue was necessary to provide them with a fair trial by an
impartial jury.25 The district court “construed” the motions “as directed primarily
toward the issue of ‘pervasive community prejudice’” and focused its analysis on
“the third inquiry set forth in” Ross v. Hopper, 716 F.2d 1528, 1541 (11th Cir.
1983).26 This third inquiry was defined as “sufficient evidence that the pretrial
publicity has been ‘so inflammatory and prejudicial and so pervasive or saturating
the community as to render virtually impossible a fair trial by an impartial jury,
thus raising a presumption of prejudice.’”27 The court “decline[d] to afford the
survey and Professor Moran’s conclusions the weight attributed by Defendants”
finding, inter alia, that the “size of the statistical sample . . . [wa]s too small to be
25
Hernandez, 106 F. Supp. 2d at 1317-18; R5-586.
26
Id. at 1321 n.2.
27
Id. at 1323-24. By limiting its analysis to the third inquiry of Ross, the district court
necessarily limited its review of the defendants’ evidence to consideration of whether that
evidence demonstrated the prejudicial effect of pretrial publicity. See Ross, 716 F.2d at 1540.
Further, as the en banc opinion states, the district court rejected the defendants’ community
survey and thus focused its analysis solely on the submitted articles. Contrary to the en banc
opinion’s statement in n. 219 that the district court made a specific finding as to prejudice in the
community, this finding was limited to its prior finding that the defendants’ evidence
demonstrated “that the pretrial publicity has not been ‘so inflammatory and pervasive as to raise
a presumption of prejudice’ among the potential jury venire in the case.” Hernandez, 106 F.
Supp. 2d at 1322, 1324.
80
representative of the population of potential jurors in Miami-Dade County.”28
In September 2000, Campa moved for reconsideration of the denial of the
motion for change of venue. In support of the reconsideration motion, he
submitted news articles containing information that he provided the court both
during an ex parte sidebar within the change of venue motion hearing and in his
motion for leave to file his motions for foreign witness depositions ex parte.29 He
explained in the reconsideration motion that the information had been previously
provided to the court ex parte because it disclosed the defendants’ theory of
defense and that he sought the foreign witnesses to support that theory.30 He
argued that the news articles discussing “the defendants’ tacit admission that they
were keeping an eye on several extremist anti-Castro groups on behalf of the
Cuban government, and that Cuban citizens and officials [we]re prepared to testify
on behalf of the defendants” had aggravated the prejudice in the Miami
community.31 He noted that the articles characterized the defendants as Cuban
28
Id.29
R5-656 at 2-3.
30
Id. at 2.
31
Id. at 3 (internal punctuation omitted).
81
agents who would call Cuban officials and citizens to testify on their behalf.32 The
district court denied reconsideration and invited the defendants to renew their
motion after voir dire.33
B. Voir Dire
The trial began with jury selection on 27 November 2000.34 In phase one,
168 jurors were screened for problems such as language and hardship through a
written questionnaire and oral voir dire questions.35 In phase two, the 82
remaining prospective jurors were individually questioned regarding media
exposure, knowledge and opinions of the case, the Castro government, the United
States policy toward Cuba, the Elian Gonzalez case, the Cuban exile community
and its reaction to the case, including a possible acquittal.36
32
Id. The following articles were included as exhibits: Rui Ferreira, Cuba helps defense
at spy trial, MIAMI HERALD , Aug. 18, 2000, at 1B, R5-656, Ex. A; Rui Ferreira, Funcionarios
cubanos irán al juicio de los espias, NUEVO HERALD , Aug. 18, 2000, at 17A, R5-656, Exh. B;
Cuba colaborará en juicio por espionaje, NUEVO DIARIO , Aug. 19, 2000, at 61, R5-656, Exh. C;
Rui Ferreira, Un misterioso coronel cubano se suma al caso de los espias, NUEVO HERALD , Aug.
21, 2000, at 21A, R5-656, Exh. D; To the point/Mr. President, define “handshake”, MIAMI
HERALD , Sept. 11, 2000, at 6B, R5-656, Exh. F; and Accused spy seeks release of U.S.
documents, MIAMI HERALD , Sept. 12, 2000, at 33, R5-656, Exh. E.
33
R6-723 at 2-3.
34
R6-765.
35
R6-766; R22.
36
The district court disqualified 79 of the 168 venire persons for cause, 32 (19%) in
Phase 1 and 22 (27%) in Phase 2 for Cuba-related animus.
82
The district court’s concern for the media attention became an issue on the
first day of voir dire. After learning that the jurors were exposed to a press
conference held by the victims’ families on the courthouse steps during the lunch
break and that some of the jurors were approached by members of the press, the
district court addressed isolating the jurors.37 Acknowledging that there was a
“tremendous amount of media attention” in the case, the district judge instituted a
number of protections for the jury including instructing the government to speak
to the victims’ families about their conduct, extending the gag order to cover the
witnesses and jurors, instructing the marshals to accompany the jurors as they left
the building, and sealing the voir dire questions.38
Some venire members were clearly biased against Castro and the Cuban
government and were excused for cause.39
37
R22 at 111-16; R62 at 6575-76.
38
R7-978 at 2-3, 7; R21 at 111-113, 117-19; R22 at 115, 119; R64 at 6459-60.
39
See R25 at 782, 789 (potential juror stated that she would not believe any witness who
admitted that he had been a Cuban spy); R26 at 1068-70 (potential juror admitted that he “would
feel a little bit intimidated and maybe a little fearful for my own safety if I didn’t come back with
a verdict that was in agreement with what the Cuban community feels, how they think the verdict
should be,” and that, “based on my own contact with other Cubans and how they feel about
issues dealing with Cuba–anything dealing with communism they are against,” he would suspect
that “they would have a strong opinion” on the trial. He explained that he “probably would have
a great deal of difficulty dealing with listening to the testimony. . . . would probably be a nervous
wreck, . . . and would have some trouble dealing with the case.” He said that he “would be a
little bit nervous and have some fear, actually fear for my own safety if I didn’t come back with a
verdict that was in agreement with the Cuban community at large.”); R27 at 1277 (potential juror
83
Other venire members indicated negative beliefs regarding Castro or the
Cuban government but believed that they could set those beliefs aside to serve on
the jury.40 Three of these jurors ended up seated on the jury, and one served as
expressed concern that, “no matter what the decision in this case, it is going to have a profound
effect on lives both here and in Cuba.” He believed that the Cuban government was “a
repressive regime that needs to be overturned,” was “very committed to the security of the United
States,” and “would certainly have some doubt about how much control [a member of the Cuban
military] would have over what they would say [on the witness stand] without some tremendous
concern for their own welfare.”); R26 at 1057, 1059, 1073 (a potential juror who was a banker
and senior vice president in charge of housing loans was “concern[ed] how . . . public opinion
might affect [his] ability to do his job” because he dealt with a lot of developers in the Hispanic
community and knew that the case was “high profile enough that there may be strong opinions”
which could “affect his ability to generate loans.”); R27 at 1166, 1168 (potential juror said that
he did not like the Cuban government and asked “how could you believe” the testimony of an
individual connected with the current Cuban government); R28 at 1452-53 (potential juror
believed that “Fidel Castro is a dictator” and that there were “things going on in Cuba that the
people are not happy about.”); R26 at 1001-02 (potential juror thought that Castro had “messed
up” Cuba which was “a very bad government . . . perhaps one of the worst governments that exist
. . . on the planet.”)
40
See R25 at 880 (potential juror said she held a “[v]ery strong” opinion and did not
believe in the Cuban system of government but did not feel that it would affect her ability to
render a verdict); R25 at 829-31, 51-52 (potential juror thought she could be impartial, but
admitted that “it would be difficult” and that she did not know if she “could be fair.” She said
that the case was discussed “every time my [Cuban born] parents have visitors over” and that she
knew she would be “a little biased” in favor of the United States as she did not agree with
“communism.”); R27 at 1240-47 (potential juror, who was born in Cuba and immigrated to the
United States with her family in the late 1950s-early 1960s, had three relatives who were
involved in the Bay of Pigs invasion and her husband had participated in the 1980 Mariel boat lift
to rescue his sister and her family from Cuba. Although she stated that she would be impartial,
she said that she saw “Castro as a dictator.”); R25 at 790-96 (potential juror, a Cuban immigrant,
said that she did “not approve of the regime . . . in Cuba” and was “against communism” but
believed she could serve impartially. She remembered the news from the television and the
Miami Herald about the planes being shot down); R27 at 1227-32 (potential juror said that,
although her father left Cuba because of communism and she believed that the Cuban
government was “oppressive,” she believed that she would not be prejudiced); R27 at 1148-50
(potential juror who was born in Cuba and immigrated to the United States with her family stated
that she was “always for the U.S.” and “against the Republic of Cuba,” did not like Cuba being a
communist country, and had relatives living in Cuba. She had a problem with the case because it
84
involved “espionage against the U.S.” but indicated that she could set aside her feelings to serve
on the jury); R26 at 1011-13, 1018-19 (potential juror commented that he had “no prejudices”
but “live[d] in a neighborhood where there [we]re a lot of Cubans” and was “acquainted with
people that come from Cuba. That is universal in Dade County.” When asked whether he would
be concerned about community sentiment if he were chosen as a juror, he “answer[ed] . . . with
some care. . . . [i]f the case were to get a lot of publicity, it could become quite volatile and . . .
people in the community would probably have things to say about it.” He stated that “it would
be difficult given the community in which we live” “to avoid hearing somebody express an
opinion” on the case and to follow a court’s instruction to not read, listen to, or otherwise expose
himself to information about the case. His opinion about the Cuban government was “not
favorable” as it was “not a democracy” and was “guilty of assorted [human rights] crimes.”); R26
at 1021-28, 1030, 10323223, (potential juror initially said that he did not “think he would have
any sort of prejudice[]” against defendants who were agents of the Cuban government but could
not say for certain because of “[t]he environment that we are in. This being Miami. There is so
much talk about Cuba here. So many strong opinions either way.” He later, however, admitted
to having biases against the Cuban government, which he believed was “anti-American” and
“tyrannical,” and to having “an obvious mistrust . . . of those affiliated with the [Cuban]
government.” He also indicated that he would be concerned about returning a not guilty verdict
because “a lot of the people [in Miami] are so right wing fascist,” because he would face
“personal criticism” and media coverage, and because he had concerns for what might happen
after a verdict was returned. He believed the case to be “a high profile case” and that he had been
videotaped by the media when leaving the courthouse.); R27 at 1139-48 (potential juror who was
born in Cuba and immigrated to the United States with his parents initially stated that he did not
think he “could make a fair judgment” in the case and would be prejudiced because he had “a lot
of family ties in Cuba” including uncles, aunts, and cousins but later answered that he could set
aside his concerns if selected for the jury. He was troubled about returning a verdict in the case
based on his concern for something happening to his “family . . . in Cuba” and the notoriety of
the case in Miami. He also said that he had “heard a lot about the case . . . on the news [and
from] people talking about” it); R28 at 1424-25, 1433 (potential juror believed that Castro was “a
very bad person” and, when asked whether her opinion regarding the Cuban government would
affect her ability to fairly weigh the evidence, answered “I don’t think so. . . . I don’t know. I
have lived in South Florida for 36 years and I have seen many changes.” She had known one of
the passengers in one of the BTTR planes on the day of the shoot-down and who was named as a
government witness, for about eight years. She also knew that the witness was “very involved
with the Brothers to the Rescue and very strongly keeping the Cuban community together in
Miami.”); R25 at 818-22 (potential juror did not think that it would affect his ability to be
impartial but he “was not happy” with United States-Cuban relations following the Mariel boat
lift. He did not like the freedom that Cubans had to immigrate to the United States because
immigrants from other countries were treated differently and “sometimes [he felt like] a stranger
in [his] own country” when he needed to ask someone to speak English instead of Spanish); R27
at 1118-28, 1175-77 (potential juror had “many close Cuban friends,” including her husband’s
business partner who was a member of a group that rescued Cubans fleeing the island. She
85
the foreperson.41 The district court denied the defendants’ request to excuse one
potential juror, who admitted that she knew the daughter of one of the downed
pilots, had visited the pilot’s home, and had attended his funeral.42
Finally, other venire members espoused indifference toward Castro or the
Cuban government.43
believed that she could be impartial but had concerns about returning a verdict in Miami
“because of the Cuban population here.” She “was a little distressed with the way that the
[Cuban] exile community handled” the Elian Gonzalez matter because she did not “like the
crowd mentality, the mob mentality that interferes with what I feel is a working system.” She
strongly believed that the Cuban government was an oppressive dictatorship. She remembered
news reports regarding “the planes being shot down” and several men dying, and that it was a
“very bad situation” and frightening because of the possibility of military action. Leilani Triana
testified that, although her parents were from Cuba and her grandfather had been politically
involved in Cuba before Castro, she could be impartial.
41
See R24 at 555, 561-62, 571, 590; R25 at 741-49. David Buker, who served as jury
foreperson, stated that he believed that “Castro is a communist dictator and I am opposed to
communism so I would like to see him gone and a democracy established in Cuba.” Although
the government notes that Campa’s attorney commented that Buker was “uninvolved or
personally disconnected from the experience [of a Cuban] and that his “general philosophical
problem with communism” was “perfectly okay,” Campa’s attorney’s comment was made in the
context of his argument concerning striking for cause another juror whose responses were
“rooted in personal experience.” R25 at 851.
Both Sonia Portalatin, who had a “strong” opinion about the Cuban government because
she was “against communism,” R24 at 619; R25 at 858-65, and Eugene Yagle, who admitted
having “a strong opinion” about the Cuban government as he could not “reconcile [him]self to
that form of Government,” R22 at 144, 165-67; R27 at 1294-1300; R28 at 1517-20; R29 at 1553-
57, 1601-02, 1638, were seated on the jury.
42
R24 at 519-22, 534-36. The potential juror was the principal of the predominantly (90
percent) Cuban high school attended by the daughter of one of the killed BTTR pilots. She
visited the pilot’s home and attended his funeral. Despite her relationship with the pilot’s
daughter, she thought she “could be fair” although “it would be a little difficult.”
43
See R25 at 841-43, 846 (potential juror had traveled to Cuba with his family “to take
goods” and medicines to friends and had friends who frequently traveled to Cuba; he knew of no
86
Some of the potential jurors who had personal contact with the victims, their
family members, BTTR, government witnesses, or the parties were not questioned
during Phase II or were excused for cause.44 Following voir dire, Medina’s
attorney complimented the district court on the conduct of voir dire but indicated
his concerns that there were three women seated on the jury who exemplified
Professor Moran’s opinion that certain community members who were subjected
to community pressures were unable to admit their underlying prejudices.45
From the beginning of voir dire until the completion of the trial, the
reasons why he should not serve on the jury. He remembered hearing or reading “years back”
“something about Brothers to the Rescue” and someone in the group who was a spy for the
Cuban government); R27 at 1300-08 (potential juror who had family in Cuba thought he could
be fair, but was unable to say whether he would be able to believe a witness who was a member
of the communist party in Cuba); R27 at 1134-39 (potential juror whose parents and
grandparents had immigrated from Cuba and who had distant relatives who remained in Cuba but
he had no opinions regarding the Cuban government, the trial, or the publicity surrounding it);
R26 at 990-06 (potential juror felt sympathy for the people living in Cuba but believed that she
would be impartial as a juror. She knew from the media that “airplanes were shot down in Cuba
a couple of years ago” and that “some families . . . gathered to remember the anniversary of the
incident” a few weeks before voir dire); R26 at 938, 945 (potential juror had concerns about
community reaction to a verdict because she did not “want rioting and stuff to happen like what
happened with the Elian case. I thought that got out of hand.”).
44
See R21 at 139; R23 at 251, 254; R24 at 373, 385-86, 458, 508-10 (three potential
jurors knew government witness Jose Basulto, another knew a widow of one of the killed BTTR
pilots, and a third knew the daughter of one of the BTTR victims); R25 at 776-70, 809-12; R26
at 937-41 (potential juror who was a former national bank examiner had assisted the United
States Attorney’s office in Miami for three years during a grand jury investigation); R25 at 655,
690, 709 (potential juror knew knew many of the named witnesses, and had helped raise money
for BTTR while working for one of the local Cuban radio stations).
45
R27 at 1373-76.
87
prospective and actual jurors were admonished not to discuss the case with anyone
and to have no contact with media accounts or anything else related to the case.46
The jurors were also instructed about the presumption of innocence.47 The district
court limited the sketching of witnesses for their protection.48 It permitted,
however, the media “access to all the evidence admitted into the trial record.”49
C. The Evidence at Trial
As the en banc opinion states, the defendants were members of a Cuban
government intelligence operation that maintained a spy operation in South
Florida. Campa, Hernandez, and Medina falsely identified themselves through
elaborate “legends,” or biographies, and back-up or “reserve” identities when they
dealt with United States border and law enforcement personnel and when they
obtained driver licenses, passports, and other identification.50 Some of their
46
R21 at 44-45; R22 at 119; R116 at 13492-93.
47
R21 at 26.
48
R9-1126.
49
Hernandez, 124 F. Supp. 2d 698, 704 (S.D. Fla. 2000); R7-808.
50
R33 at 2145; R34 at 2321-40; R44 at 3724-26; R49 at 4677-78; R66 at 6833-35; R69
at 6981-7016 Govt. Exs. 4; 5-1; 5-2; 5-3; 5-4; 5-6; 6; 7; 9; 8-1; 8-3; 8-4; 11; 12-3; 12-4; 12-5; 12-
8; DAV 110 at 2, 118 at 7-14; DG 105 at 2-16; DG 125; DG 126 at 9-10; DG 135 at 3-11; DG
136; SF 14; SF 15; SG 34; SG 53. Under their false identities, Campa was also known as
Fernando Gonzalez Llort, Oscar, or Vicky, R101 at 11714; Gonzalez was known as Agent
Castor; Guerrero was known as Lorient, Govt. Exs. DAV 102 at 1; DAV 129 at 2; Hernandez
was known as Girardo, Giro, or Manuel; and Medina was known as Allan or Ramon Labanino;
R101 at 11721-23.
88
assigned duties included infiltrating, monitoring, and disrupting the work of
certain militant Cuban exiles in South Florida, reporting on anti-Castro
organizations in Miami-Dade County, and infiltrating United States military and
government agencies and reporting on operations at certain United States military
installations.51
The Cuban exile groups of concern to the Cuban government included
Alpha 66,52 Brigade 2506, BTTR , Independent and Democratic Cuba (“CID”),
51
R45 at 3870-71; Govt. Exs. DAV 109 at 6-7; DG 101 at 2; DG 102 at 30; DG 107 at
12-20, 58-67; DG 108 at 2-3; DG 117; DG 129; DG 137 at 2; HF 103. The Cuban government
maintains the following intelligence operations: the Directorate of Military Intelligence (“DIM”)
under the Ministry of Revolutionary Armed Forces, and the Directorate of Intelligence (“DI”)
and the Directorate of Counterintelligence (“DCI”) under the Ministry of the Interior. R44 at
3700-05, 3707. The DI collects intelligence outside of Cuba, focusing primarily on the United
States; the DCI is responsible for intelligence regarding counter-revolutionary activities inside of
Cuba. R44 at 3704, 3707. The DI is organized into many operational components, including M-
I which handles non-military United States government agency intelligence, M-III which handles
the collecting, correlating, and reporting of gathered information, M-V which handles the
operation and support of “illegal” intelligence officers (“IO”s) who enter the United States
illegally with a false identity and identification, M-XIX which handles counter-revolutionary
individuals and organizations outside of Cuba. R44 at 3708-11, 3713; R46 at 3957.
52
Orlando Suarez Pineiro, a Cuban-born permanent resident of the United States, served
as a captain in Alpha 66 for about six years. R90 at 10373-74. On 20 May 1993, he and other
Alpha 66 members were arrested while on board a boat with weapons in the Florida Keys. Id. at
10391-92, 10397-401, 10415-16. The weapons included pistols with magazines and
ammunition, 50 caliber machine guns with ammunition, rifles with clips, and an RK. Id. at
10397-400. Pineiro was tried and found not guilty of possession of a Norinko AK 47 rifle and
two pipe bombs. Id. at 10424. Pineiro and other Alpha 66 members were also stopped and
released while on board a boat on 10 June 1994, but their weapons and boat were seized. Id. at
10409, 10411-14. The seized weapons included a machine gun and AK 47s. Id. at 10411-14.
United States Customs Agent Ray Crump testified that, on 20 May 1993, he participated
in the arrest of several men whose boat was moored at a marina in Marathon, Florida. Id. at
10429. The boat held: several handguns; automatic rifles, including one fully automatic rifle;
89
Comandos F4,53 Commandos L, CANF,54 the Cuban American Military Council
four grenades; two pipe bombs; a 40 millimeter grenade launcher; a 50 caliber Baretta
semiautomatic rifle; and a bottle printed with “Alpha 66" which contained “Hispanic propaganda
. . . , . . . crayons, razors, stuff of that nature.” Id. at 10431-33, 10434. He also participated in an
investigation of a vessel south of Little Torch Key, about ten miles south of Marathon, Florida,
on 11 July 1993. Id. at 10433-34. The vessel was carrying four men, numerous weapons, and
“Alpha 66 type propaganda.” Id. at 10434. The weapons on the vessel included an AR 15, two
7.6 millimeter rifles and ammunition magazines. Id. at 10438. Following this investigation, the
men were not arrested, and the weapons and vessel were not seized. Id. at 10438-39.
United States Customs Agent Rocco Marco said that he encountered four anti-Castro
militants on 27 October 1997, after their vessel, the “Esperanza”, was stopped in waters off
Puerto Rico. R90-10449. He explained that U.S. Coast Guard officers searched the vessel and
found weapons and ammunition “hidden in a false compartment underneath the stairwell leading
to the lower deck.” The officers found food, water bottles, camouflage military apparel, night
vision goggles, communications equipment, binoculars, two Biretta 50 caliber semiautomatic
rifle with 70 rounds of ammunition, ten rounds of 357 hand gun ammunition, and magazines and
clips for the firearms. R90 at 10453-59. The leader of the group, Angel Manuel Alfonso of
Alpha 66, confessed to Rocco that they were on their way to assassinate Castro at ILA
Marguarita, where he was scheduled to give a speech. Id. at 10452, 10467. Alfonso explained to
Rocco that “his purpose in life was to kill [Castro]” and that it did not “matter if he went to jail
or not. He would come back and accomplish the mission.” Id. at 10468.
Debbie McMullen, the chief investigator with the Federal Public Defender’s Office,
testified that Ruben Dario Lopez-Castro was an individual associated with a number of anti-
Castro organizations, including PUND and Alpha 66. R97 at 11267. Lopez and Orlando Bosch
planned to ship weapons into Cuba for an assassination attempt on Castro. Id. at 11254. Bosch
had a long history of terrorist acts against Cuba, and prosecutions and convictions for terrorist-
related activities in the United States and in other countries. Campa Exh. R77 at 18-35.
53
Rodolfo Frometa testified that, although he was born in Cuba, he was a citizen of the
United States. R91 at 10531. He explained that he was a United States representative of a
Cuban organization called Comandos F4, which was organized “to bring about political change
in a peaceful way in Cuba” and included members both inside of and exiled from Cuban. Id. at
10532. He identified himself as the Commandate Jefe, or commander-in-chief, of F4 in the
United States. Id. at 10534. He stated that, since 1994, all F4 members must sign a pledge that
they will “respect the United States laws” and not violate either Florida or federal law. Id. at
10535.
Frometa stated that, before Comandos F4, he was involved with Alpha 66, another
organization supporting political change in Cuba, from 1968 to 1994 and served as their
commander “because of his firm and staunch position . . . against Castro.” R91 at 10541-42. As
90
a member of Alpha 66, Frometa was stopped by police officers and questioned regarding his
possession of weapons. He was first stopped on 19 October 1993, while in a boat which had
been towed to Marathon, Florida, and was questioned regarding the onboard weapons. Id. at
10564-66. The weapons included seven semi-automatic Chinese AK assault rifles and one Ruger
semi-automatic mini 14 rifle caliber 223 with a scope. Id. at 10564-66. On 23 October 1993, he
was again stopped while he and others were driving a truck which was pulling a boat toward the
Florida Keys. Id. at 10542-44. Frometa explained that they were carrying weapons to conduct a
military training exercise in order to prepare for political changes in Cuba or in the case of a
Cuban attack on the United States, and once the officers determined that their activities were
legal, they were sent on their way. Id. at 10544-48, 10563. The weapons were semi-automatic
and included an R15, an AK 47, and a 50 caliber machine gun. Id. at 10545-47. Frometa and
several other Alpha 66 members were once more stopped and released on 7 February 1994 for
having weapons on board his boat. Because a photograph of the group was “published in the
newspapers” “[e]verybody in Miami” knew that they were released. Id. at 10569. On 2 June
1994, Frometa, by then a member of F4, was arrested after attempting to purchase C4 explosives
and a “Stinger antiaircraft missile” in order to kill Castro and his close associates in Cuba. Id. at
10571-72, 10574-76, 10579-80. Frometa acknowledged that the use of the C4 explosive could
have injured Cubans who worked at a military installation, id. at 10579, but that they had caused
the “death of four U.S. citizens, the 41 people including 20 or 21 children who died; the mother
of the child Elian, plus thousands and thousands who have died in the Straits of Florida.” Id. at
91-10581.
54
Percy Francisco Alvarado Godoy and Juan Francisco Fernandez Gomez testified by
deposition. R95 at 11012; R99 at 11558-59. Godoy, a Guatemalan citizen residing in Cuba,
described attempts between 1993 and 1997 by affiliates of the CANF to recruit him to engage in
violent activities against several Cuban targets. 2SR-708, Att. 2 at 10-13, 21-24, 27-28, 33-34,
44-46, 61, 63-64. He said that, beginning in September 1994, he was asked to place a bomb at
the Caberet Tropicana, a popular Havana nightclub and tourist attraction. Id. at 44-46. In
connection with the same plot, he flew to Guatemala in November 1994 to obtain the explosives
and detonators to be used and met with, among others, Luis Posada Carriles, a Cuban exile with a
long history of violent acts against Cuba. Id. at 49, 52, 56-58. Unknown to the CANF members,
Godoy was cooperating with the Cuban authorities, denounced their plans, and later testified at
the trial of one of the conspirators in Cuba. Id. at 22, 24, 26, 31, 58-59, 65, 70, 76, 81-82, 86, 90,
109.
Gomez, a citizen and resident of Cuba, described numerous attempts between 1993 and
1997 by persons associated with the CANF to recruit him to engage in violent activities against
several Cuban targets. Gomez also testified that, beginning in September 1994, he was asked to
place a bomb at the Caberet Tropicana, a popular Havana nightclub and tourist attraction. In
1996 and 1998, Gomez was approached by Borges Paz of the anti-Castro organization the Ex
Club, 2SR-708, Att. 1 at 9, 12-14, 20, 39; Gomez said that Paz invited him to join their
organization to build and place bombs at tourist hotels and at the Che Guevara Memorial in
91
(“CAMCO”), the Ex Club, Partido de Unidad Nacional Democratica (“PUND”) or
the National Democratic Unity Party (“NDUP”), and United Command for
Liberation (“CLU”).55 Alpha-66 ran a paramilitary camp training participants for
an invasion of Cuba, had been involved in terrorist attacks on Cuban hotels in
1992, 1994, and 1995, had attempted to smuggle hand grenades into Cuba in
March 1993, and had issued threats against Cuban tourists and installations in
November 1993. Alpha-66 members were intercepted on their way to assassinate
Castro in 1997. Brigade 2506 ran a youth paramilitary camp.56 BTTR flew into
Cuban air space from 1994 to 1996 to drop messages and leaflets promoting the
overthrow of Castro’s government. CID was suspected of involvement with an
assassination attempt against Castro. Comandos F4 was involved in an
assassination attempt against Castro. Commandos L claimed responsibility for a
terrorist attack in 1992 at a hotel in Havana. CANF planned to bomb a nightclub
Santa Clara, Cuba. Id. at 16, 19, 22. After returning to Cuba, Gomez informed the Cuban
authorities of the Ex Club’s plans. Id. at 20, 35-36. As a result of his work for the United States
government, Gomez said that he was estranged from his family in the United States, including a
daughter in Florida, and had received threatening phone calls. Id. at 64-66.
55
R83 at 9162, 9165-67; R90 at 10373-74, 10391-92, 10397-10401, 10409, 10411-14,
10415-16, 10429, 10431-34, 10449, 10452-59, 10467-68; R91 at 10541-42, 10544-48, 10563-66,
10571-72, 10574-76, 10579-80; R97 at 11267, 11291-97; 2SR-708, Att. 1 at 9, 12-14, 16, 19-20,
22, 35-36, 39; Att. 2 at 10-13, 21-24, 27-28, 33-34, 44-46, 61, 63-64; Campa Exs. R-29D, R-29F,
R-29G, R-29H.
56
R97 at 11296-97.
92
in Cuba. The Ex Club planned to bomb tourist hotels and a memorial. PUND
planned to ship weapons for an assassination attempt on Castro. Following each
attack, Cuba had advised the United States of its investigations and had asked the
United States’ authorities to take action against the groups operating from inside
the United States.57
The BTTR’s flights over Cuba were of particular concern to the Cuban
government, and the Cuban government had communicated that concern and its
plan to use force to interrupt the flights to the Federal Aviation Administration
(“FAA”), which shared that information with BTTR.58 BTTR’s flights, however,
continued until the shootdown in February 1996.59 The downing of the two
BTTR planes was observed both by occupants of a fishing boat and by the crew
and passengers onboard a cruise ship.60 The bodies of the people in the aircraft,
three of whom were United States citizens, were never recovered. Both planes
57
Campa Exs. R-29C; R-29F; R-29H; GH Exs. 16C, 24.
58
R76 at 8198-99, 8203-05; R83 at 9166-67; GH Exs. 18E, 18F.
59
R58 at 5919, 5922-23; R83 at 9161-65, 9167-70, 9181-83; GH Exs. 18E, 37 at 2-4, 6-
8; Govt. Exs. 475A at 2-3, 478, 479, 483 at 8-11, 14-16; HF 108 at G-3, 113 at G-3.
60
R53 at 5109-14, 5117-18; Govt. Ex. 483 at 5-7, 11, 13, 17-18, 20. The cruise ship was
Royal Caribbean’s “Majesty of the Seas” with about 2,600 passengers and 800 crew. R53 at
5084-86. The first officer on the ship explained that they were on the last leg of a weekly cruise
about 24 nautical miles off the north coast of Cuba during the shootdowns. Id. at 5087-89, 5109-
14. A videotape of the shootdowns made by a cruise ship passenger was apparently “played on
TV many times.” Id. at 5124.
93
were in international airspace, flying away from Cuba, when they were shot down;
they had not entered Cuban airspace.61
Lieutenant Colonel Roberto Hernandez Caballero, of the Ministry of Cuba
Department of State Security, testified that he investigated a number of terrorist
acts in Havana and in other locations at Cuban-owned facilities during 1997.62 He
advised Medina of the attacks in April and directed that he search for any
connection between the attacks and CAMCO.63 In September, Hernandez notified
the Cuban authorities that he had received information that one of the perpetrators
of one of the bombings was available to meet for lunch and that he understood that
61
R53 at 5113-21, 5131-33; Govt Exs. 440, 469B, 484.
62
R93 at 10750-51, 10754-55, 10783-832. The acts included an explosion on 12 April
1997 which destroyed the bathroom and dance floor at the discotheque Ache in the Media
Cohiba Hotel, id. at 10755, 10757, 10759; a bombing on 25 April 1997 at the Cubanacan offices
in Mexico, R97 at 11318-19; the 30 April 1997 explosive device found on the 15th floor of the
Cohiba Hotel, R93 at 10766-69, 10771; the 12 July 1997 explosions at the Hotel Nacional and
Hotel Capri, both of which created “craters” in the hotel lobbies and did significant damage
inside the hotels, id. at 10786-88, 10795-801; the 4 August 1997 explosion at the Cohiba Hotel
which created a crater in the lobby and destroyed furniture; id. at 10802-05; explosions on 4
September 1997 at the Triton Hotel, the Copacabana Hotel, the Chateau Miramar Hotel, and the
Bodequita del Medio Restaurant, id. at 10807-09, 10820; and, the discovery of explosive devices
at the San Jose Marti International Airport in a tourist van in the taxi dispatch area on 19 October
1997 and underneath a kiosk on 30 October 1997, id. at 10824-30. The explosions on 4
September killed an Italian tourist at the Copacabana Hotel, injured people at the Chateau
Miramar Hotel, the Copacabana Hotel, and at the Bodequita del Medio Restaurant, and caused
property damage at all locations. Id. at 10809-13, 10815-20, 10822-23.
63
R97 at 11316-18; Campa Exs. R57(a), R57(b) at 2, 59.
94
another large building in Cuba was targeted for the next week.64 Hernandez’s
contact was instructed to elaborate on the information that he had obtained.65 As a
result of the investigations, Caballero said that the Cuban Department of State
Security arrested some individuals, but that they believed some of the individuals
responsible for financing, planning, and organizing the explosions lived in the
United States and had not been arrested.66 He explained that he provided FBI
agents with documentation and investigation materials regarding the terrorist acts
between 1990 and 1998, and received the FBI’s findings in March 1999.
During the trial, the government described the Cuban intelligence operations as
“an intelligence pyramid” headed by Fidel Castro.67 It suggested that the Cuban
government applied the death penalty for throwing things out of airplane
windows,68 and was “repressive”69 and a “dictatorship.”70
64
R97 at 11320-21.
65
Id. at 11321; Campa Ex. R63 at 1.
66
R93 at 10832, 10839, 10842.
67
R44 at 3699-700. The U.S. Attorney asked government witness Stuart Hoyt to
describe the structure of the Cuban intelligence system by questioning “who is at the top of the
Cuban intelligence system.” R44 at 3699. Hoyt responded by stating that “Fidel Castro” was at
the top as “Commander-in-Chief”, “[P]resident”, “Council Minister”, and “head of the Cuban
Communist Party.” Id.
68
R73 at 7806-07.
69
R80 at 8748. After a defense witness explained on cross-examination that the tone of
the dissenters within Cuba was “more respectful” than that of Cuban exile organizations located
95
D. Renewed Motions for Change of Venue
During the trial, the motions for change of venue were renewed through
motions for a mistrial based on community events and trial publicity and a
government witness’s insinuation that a defense attorney was a spy or a
communist.71 In February 2001, Campa moved for a mistrial and renewed his
motion for a change of venue based on the commemorative flights honoring the
fifth anniversary of the shootdown and the related television interviews and
newspaper articles during the weekend of 24 February 2001.72 He argued that the
newspapers included “an editorial by the Miami Herald that flatly condemns the
Cuban government for this terrorist act” and articles including quotations from
outside of Cuba, the government attorney asked whether such an answer was relevant when it
was a “[p]articularly repressive government.” R80 at 8748. Late, after the witness stated that, if
he had been a dictator, he would have tried to stop the BTTR flight, the government attorney
questioned whether “[w]e live in a dictatorship.” Id. at 8754. After the witness replied
“Fortunately we don’t,”
the government attorney commented, “And people do have that freedom of choice.” Id.
70
Id. at 8754.
71
R70 at 7130-36; R81 at 8947-49. Although the district court did not overtly deny
these motions, the motion based on community events and publicity was apparently resolved by
“no response” to an inquiry to the jury as to whether they had “seen, heard, read, or [spoken to
anyone] about any media accounts related” to the case following the trial’s last recess. R70 at
7136. The motion based on the witness’s insinuation was resolved by an instruction to the jury
that the defense attorney’s “job [wa]s to provide a vigorous defense for his client.” R81 at 8955.
“[The witness]’s statement regarding [the defense attorney] was inappropriate and unfounded.”
Id. at 8949.
72
R70 at 7130.
96
CANF members discussing “at length” the facts of the trial.73 He maintained that
a jury instruction would not cure the taint of these events and publicity.74 The
court reserved ruling pending supplementation of the record and then, upon the
defendants’ request, questioned the jury as to their exposure to the news articles.75
When none of the jurors responded in any way, the case proceeded.76
Two weeks later, Campa, Gonzalez, Hernandez, and Medina filed a joint
motion for a mistrial and change of venue arguing that the 24 February weekend
events were so prejudicial that it could not be cured by voir dire or instructions77
Defense witness Basulto responded to questioning by asking Hernandez’s
defense counsel whether he was “doing the work” of the Cuban intelligence
community.78 At the request of Hernandez’s attorney, the trial judge struck the
comment and the jury was instructed to disregard the comment.79 Following a
recess, Campa’s counsel argued that Basulto’s insinuation was
73
Id. at 7130-31.
74
Id. at 7131.
75
Id. at 7134-36.
76
Id. at 7136.
77
Id. at 5.
78
R81 at 8945.
79
Id.
97
precisely the kind[] of problem[] that we were afraid of when we filed
our motions for a change of venue, and . . . in the aftermath of the
events of February 24, 2001, we renewed our motion for . . . a change
of venue based on the pretrial publicity, the publicity that has been
generated during the course of the trial and our concern with our
ability to obtain a fair trial in this community given that background.
This red baiting is absolutely intolerable, to accuse
[Hernandez’s attorney] because he is doing his job, of being a
communist. It is unfortunate, it is the type of red baiting we have
seen in this community before and we are concerned how it affects
the jury. Here we are asking the jury to make a decision based on the
evidence and only based on testimony and we are left and they are left
with wondering what will they be accused. These jurors have to be
concerned unless they convict these men of every count lodged
against them, people like Mr. Basulto who hold positions of authority
in this community, who have access to the media, are going to call
them of being Castro sympathizers, accuse them of being Castro
sympathizers, accuse them of being spies and this is not the kind of
burden this jury can shoulder when it is asked to try and decide those
issues based on the evidence at trial.
When someone can on the stand gratuitously and maliciously
accuse [Hernandez’s attorney] of being a spy[, it] sends a message to
these ladies and gentlemen if they don’t do what is correct, they will
be accused of being communists too. These people have to go back
to their homes, their jobs, their community and you can’t function in
this town if you have been labeled a communist, specially by
someone of Mr. Basulto’s stature.80
He asked that the court consider this event and the other events in its consideration
80
Id. at 8947-49 (emphasis added). Basulto, the founder, president, and director of
BTTR, was a Cuban-American who had worked with the Central Intelligence Agency to infiltrate
the Cuban government. He was a prominent person in Miami, and made frequent appearances in
Spanish-language media. During the trial, he testified that his work for the CIA was “dedicated
to promot[ing] democracy in Cuba.” R80 at 8822, 8825.
98
of the pending motion for change of venue.81
In May 2001, the district court denied the pending motions for change of
venue on the basis of its earlier orders denying a change of venue and upon its
finding that the 24 February events and the publicity surrounding it did not
necessitate a change of venue because of its instructions to the jury.82
During closing arguments, the government made a number of comments to
which the defendants objected. It stated that “the Cuban government” had a
“huge” stake in the outcome of the case and that the jurors would be abandoning
their community unless they convicted the “Cuban sp[ies] sent to . . . destroy the
United States.”83 It maintained that the Cuban government sponsored “book
bombs,” “telephone threats of car bombs,” and “sabotage,” and “killed four
innocent people.”84 It suggested that the Cuban government used “goon squads”
81
Id. at 8949. In the alternative, counsel for Campa and Hernandez requested a jury
instruction addressing Basulto’s attack on Hernandez’s counsel’s credibility. R81 at 8949-53.
The court found that the statements could affect “how the jurors view” Hernandez’s counsel and
instructed the jury that Hernandez’s attorney’s “job is to provide a vigorous defense for his client.
Mr. Basulto’s statement regarding [Hernandez’s counsel] was inappropriate and unfounded.” Id.
at 8955.
82
R120 at 13894-95.
83
Id. at 14532, 14481.
84
Id. at 14480.
99
to torture its critics.85 It asserted that the Cuban government had their agents
falsify their identities by using the identification of “dead babies” and “stealing the
memories of families.”86 It contended that the defense argument that the agents
were in the United States to keep an eye on the Cuban exile groups was false
because they were on United States military bases, spying on United States
military, the FBI, and Congress.87 The government implied that the government
of Cuba was not cooperating with the FBI.88 It commented that Cuba “was not
alone” in shooting down civilian aircraft as they “are friends with our enemies,”
including “the Chinese and the Russians,” and compared the BTTR shootdown to
the 1986 Libyan shootdown of a civilian aircraft.89 It maintained that the
government of Cuba did not care about the occupants of the planes, and that it shot
down the planes even though they could have forced Basulto’s plane to land.90 It
argued that Cuba was a “repressive regime [that] doesn’t believe in any [human]
85
Id. at 14495.
86
Id. at 14480-81.
87
Id. at 14483-85, 14488.
88
Id. at 14493.
89
Id. at 14512-13.
90
Id. at 14513.
100
rights.”91 It summarized that the defendants had joined an “intelligence bureau . . .
that sees the United States of America as its prime and main enemy” and that the
jury was “not operating under the rule of Cuba, thank God.”92 The defendants’
objections were sustained, and the jury was instructed to consider only the
evidence admitted during the trial and to remember that the lawyers’ comments
were not evidence.93
F. Jury Conduct and Concerns During the Trial
Five months into the trial, when one seated juror had a two-day conflict, the
court discussed the possibility of removing that juror and seating one of the
alternates.94 Hernandez’s attorney requested a recess, arguing that the parties and
the court had worked very hard to select “a jury we are very happy with” and
maintained that it would be unreasonable to refuse to accommodate the juror after
her length of service and her request to complete the trial.95 The district court
granted the recess.96
91
Id. at 14519.
92
Id. at 14475.
93
Id. at 14482, 14483, 14493; R125 at 14583.
94
R104 at 12091-92.
95
Id. at 12091-94.
96
Id. at 12094-95.
101
In early February 2001, a small protest related to the trial was held outside
of the courthouse, but the jury was protected from contact with the protestors and
from exposure to the demonstration.97 On 13 March 2001, the court noted that the
day before, cameras were focused on the jurors as they left the building.98 Despite
the court’s arrangements to prevent exposure to the media, jurors were again
filmed entering and leaving the courthouse during the deliberations and that
footage was televised.99 Some of the jurors indicated that they felt pressured;
therefore, the district court again modified the jurors’ entry and their exit from the
courthouse and transportation.100 However, the Metrorail Center, where the jurors
using public transportation were taken, is the site of a prominently displayed
monument to the shootdown victims.
As the en banc opinion states, the jurors were again filmed entering and
leaving the courthouse “all the way to their cars” during the deliberations.101 The
district judge arranged for their entrance into the courthouse by private entrance
97
R59 at 6096-108, 6145-49. The 20 protestors carried signs stating “take Castro
down,” “[f]air trial wanted,” and “spies to be killed.” Id. at 6145.
98
R81 at 9005.
99
R126 at 14644-47.
100
Id. at 14645-47.
101
R126 at 14643-46.
102
and guarded transportation to their vehicles or to mass transit. The electronic eyes
of the community were focused upon them and the jury could not help but
understand that focus.
G. Post-Trial Motions for New Trial
Following the trial, in late July and early August 2001, Campa, Gonzalez,
Guerrero, and Medina moved for a new trial and renewed their motions for a
change of venue, arguing that their fears of presumed prejudice remained.102 The
district court denied the motions, concluding that “any potential for prejudice was
cured” “through the Court’s methodical, active pursuit of a fair trial from voir dire
. . . to . . . the return of verdict.”103
In November 2002, Guerrero renewed his motion for a new trial based on
newly discovered evidence and in the interests of justice; the motion was adopted
by Campa, Gonzalez, Hernandez, and Medina.104 Guerrero argued that a new trial
was warranted because of “misrepresentations of fact and law made by the United
States Attorney in opposing the . . . motion for change of venue” and that the
102
R12-1338 at 2-3; R12-1342 at 2-3; R12-1343 at 1-4; R12-1347 at 1-2.
103
Id. at 15.
104
R15-1635, 1638, 1644, 1647, 1650, 1651. The National Jury Project, the National
Lawyers Guild, the International Association of Democratic Lawyers sought and were granted
leave to file briefs as amicus curiae in support of this motion. R15-1640, 1653, 1654, 1655,
1677.
103
government’s position regarding change of venue was contradicted by its position
in a motion for change of venue which the government filed in Ramirez v.
Ashcroft, No. 01-4835-Civ-Huck (S.D. Fla.) on 25 June 2002. In the Ramirez
motion, the government argued that:
the Elian Gonzalez matter was an incident which highly aroused the
passions of the community and resulted in numerous demonstrations .
...
5. While the Elian Gonzalez affair has received national
attention[,] the exposure in Miami-Dade County has been continuous
and pervasive. Indeed, even now, more than a year after the return of
Elian to his father [in April 2000], there continues to be extensive
publicity . . . which will arouse and inflame the passions of the
Miami-Dade community.
...
8. Historically, media articles relating to Elian Gonzalez and
the handling of his return to his father have persisted from November
1999 to the present [June 2002].105
The government, borrowing arguments advanced by the defendants in this
case, declared that
[i]t cannot be disputed that the return of Elian Gonzalez
to his father in Cuba created a serious rift in this
community, a rift which continues to the present. This
rift exists not only between Hispanics and non-
Hispanics, but also between Cubans a[n]d non-Cubans
and within the Cuban community itself. It is beyond
dispute that virtually every person in Miami-Dade county
[sic] has a strong opinion, one way or another, regarding
the INS and the U.S. Attorney General’s Office, and the
105
R15-1636, Ex. 2 at 2-3, 11.
104
manner in which the Elian Gonzalez matter was handled.
The effect of the media coverage . . . serves to foment
and revive these feelings on an ongoing basis. . . . As
such the media accounts cannot do anything other than
create the general state of mind where the inhabitants of
Miami-Dade County are so infected by knowledge of the
incident and accompanying prejudice, bias, and
preconceived opinions that jurors could not possibly put
these matters out of their minds and try the instant case
solely on the evidence presented in the courtroom. . . .
Under such circumstances and strongly held emotions,
and in light of the media coverage . . . , it will be
virtually impossible to ensure that the defendants will
receive a fair trial if the trial is held in Miami-Dade
County.106
The government requested “a change in the location/venue” “outside of
Miami Dade County to ensure that the Defendant . . . receive a fair and impartial
trial on the merits of the case.”107 They noted that, “[w]hile not requested,” the
court also had the discretion to transfer the trial to another judicial district.108 The
government orally argued that there were no incidents “since 1985 that so
polarized the community. That so affected every individual in the community as
the Elian Gonzalez affair.”109 When the district court asked whether a transfer of
106
Id. at 14-15.
107
Id. at 17, 16.
108
Id. at 16 n.1.
109
R15-1636, Ex. 3 at 24. I note that the Elian Gonzalez matters occurred between the
1998 indictment of the defendants in this case and the beginning of their trial in 2000. The first
anniversary protests of Elian Gonzalez’s return to Cuba occurred during these defendants’ trial.
105
the case to the Fort Lauderdale division courthouse would be sufficient, the
government responded that “[t]he demonstrations occurred in Miami. They are
predominantly conducted by citizens of Miami Dade county [sic]. As you move
the case out of Miami Dade you have less likelihood there are going to be deep-
seated feelings and deep-seated prejudices in the case.”110
In support of the interests of justice argument, the defendants included an
affidavit by Professor Moran, news articles, reports by Human Rights Watch
regarding threats to the freedom of expression within the Miami Cuban exile
community, a public opinion survey conducted by legal psychologist Dr. Kendra
Brennan, and a study by Florida International University’s Professor of Sociology
and Director of the Cuban Research Institute Dr. Lisandro Pérez.111
The district court denied the motion, improperly finding that the
government’s position in Ramirez was not newly discovered evidence and that it
lacked jurisdiction to consider the interests of justice argument. It did not,
therefore, consider any of the exhibits attached to the motion.112
II. DISCUSSION
110
Id. at 25.
111
R15-1636, Exs. 4, 5, 7-10, 12.
112
R15-1678 at 5, 6 n.3, 8.
106
A. Denial of Motion for Change of Venue
This case presents the opportunity to clarify circuit law to conform with
Supreme Court precedent. The district court misfocused its inquiry under Federal
Rule of Criminal Procedure 21(a).
Our review of the denial of a motion for change of venue is multi-level. We
review the district court’s interpretation of the Federal Rules of Criminal
Procedure de novo113 and its application of Rule 21(a) for an abuse of discretion.114
Under an abuse of discretion standard, we will not disturb a decision which was
made within the “range of possible conclusions” available to the district court, was
not an error of judgment, or was not the misapplication of law.115 A district court
abuses its discretion when it (1) fails to afford consideration to relevant factors
that were due significant weight, (2) gives significant weight to an improper or
irrelevant factor, or (3) commits a clear error of judgment in considering the
proper factors.116 “When a criminal defendant alleges that pretrial publicity
113
See United States v. Noel, 231 F.3d 833, 836 (11th Cir. 2000) (per curiam).
114
See United States v. Williams, 523 F.2d 1203, 1208 (5th Cir. 1975). In Bonner v.
City of Pritchard, Ala., 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), we adopted as binding
precedent all decisions of the former Fifth Circuit handed down prior to 1 October 1981.
115
United States v. Frazier, 387 F.3d 1244, 1259 (11th Cir. 2004) (en banc) (internal
citation omitted).
116
Ameritas Variable Life Ins. Co. v. Roach, 411 F.3d 1328, 1330 (11th Cir. 2005) (per
curiam).
107
precluded a trial consistent with the standards of due process, it is the duty of a
reviewing court to undertake an independent evaluation of the facts established in
support of such an allegation.”117
A district court’s consideration of a federal criminal defendant’s motion for
change of venue is guided by Rule 21(a), which directs that the court must transfer
the proceedings “if the court is satisfied that so great a prejudice against the
defendant exists . . . that the defendant cannot obtain a fair and impartial trial.”118
To show presumed, rather than actual prejudice, the defendant must show that
“outside influences affecting the community’s climate of opinion as to a defendant
are inherently suspect” and that “the resulting probability of unfairness requires
suitable procedural safeguards, such as a change of venue.”119 In reviewing
whether the outside influences operated to deprive the defendants of a fair trial, we
may “widen our breadth of consideration” and may consider the combined effect
of various factors.120 Courts, therefore, look at not only the pretrial publicity, but
117
Williams, 523 F.2d at 1208; Sheppard v. Maxwell, 384 U.S. 333, 362, 86 S. Ct. 1507,
1522 (1966) (“Appellate tribunals have the duty to make an independent evaluation of the
circumstances.”).
118
Fed. R. Crim. P. 21(a).
119
Pamplin v. Mason, 364 F.2d 1, 5 (5th Cir. 1966); See also Sheppard, 384 U.S. at 362,
86 S. Ct. at 1522 (“Due process requires that the accused receive a trial by an impartial jury free
from outside influences.”)
120
Williams, 523 F.2d at 1209.
108
will also consider “inherent community prejudice,”121 the government’s closing
argument,122 an “inflamed community atmosphere,”123 the connection between the
community prejudice and the trials,124 the interplay between the crime and the
economic life of the community,125 and a familiarity with unpopular or ill-reputed
groups with whom the defendant was associated.126 In cases alleging pervasive
community prejudice, publicity or intense media coverage evidence is not the
focus; it is one form of evidence proffered to show the prejudice within the
community.127 “[P]ervasive [community] prejudice may not be presumed simply
121
Jordan v. Lippman, 763 F.2d 1265, 1266, 1267, 1269, 1279 (11th Cir. 1985) (finding
that, in a state habeas corpus proceeding, a new trial based on a change of venue was required
when “extensive publicity” was coupled with the community’s “long history of racial turbulence”
and the involved institution’s “economic and social impact” on community).
122
Williams, 523 F.2d at 1209.
123
Coleman v. Kemp, 778 F.2d 1487, 1489 (11th 1985).
124
Meeks v. Moore, 216 F.3d 951, 967 (11th Cir. 2000).
125
United States v. Farries, 459 F.2d 1057, 1061 (3rd Cir. 1972).
126
United States v. Angiulo, 897 F.2d 1169, 1181-82 (1st Cir. 1990). Other courts have
considered how the charged crime reinforced “deeply-rooted passions” and “deeply-held
prejudice” within the community, United States v. Holder, 399 F. Supp. 220, 227-28 (D.S.D.
1975), how the charged crimes related to the community reputation, United States v. Wheaton,
463 F. Supp. 1073, 1078 (S.D.N.Y. 1979), the defendants’ state citizenship and community racial
bias, United States v. Washington, 813 F. Supp. 269, 274, 275 (D. Vt. 1993), “extreme
community hostility,” the defendant’s prominence in the community, the victim’s position as a
public servant, and the defendant’s position as a community “outsider.” New Jersey v.
Koedatich, 548 A.2d 939, 963 (N.J. 1988).
127
United States v. Capo, 595 F.2d 1086, 1090 (5th Cir. 1979).
109
from the context of [news] articles alone” but must be supported by evidence of
the influence of that publicity.128
We review the “special facts” of each case alleging prejudicial publicity129
and the totality of the circumstances of cases alleging presumed prejudice.130 The
totality of the circumstances includes all of the circumstances and events occurring
before and during the trial and their cumulative effect,131 including an extensive
voir dire.132 Where the community sentiment is strong, courts should place
“emphasis on the feeling in the community rather than the transcript of voir dire,”
which may not “reveal the shades of prejudice that may influence a verdict.”133 A
court does not undertake a totality of the circumstances’ review by confining itself
to community publicity which relates only to the guilt or innocence of the
defendant. It may, therefore, consider the effect of the publicity and the timing of
128
Mayola v. Alabama, 623 F.3d 992, 999 (5th Cir. 1980).
129
Marshall v. United States, 360 U.S. 310, 312, 79 S. Ct. 1171, 1173 (1959) (per
curiam).
130
See Murphy v. Florida, 421 U.S. 794, 798-99, 95 S. Ct. 2031, 2035-36 (1975).
131
See Williams, 523 F.2d at 1206 n.7.
132
See Patton v. Yount, 467 U.S. 1025, 1029, 1034, 104 S. Ct. 2885, 2888, 2890 (1984).
133
Pamplin, 364 F.2d at 7.
110
the trial during a hotly contested election involving the prosecutor and judge,134
publicity during a Presidential election in which a similar crime was a subject of
debate,135 the extent of the dissemination of the publicity,136 the character of that
publicity,137 the proximity in time of the publicity to the trial,138 the familiarity of
the jury with the charged crime,139 and the setting and kind of community in which
the coverage and trial took place.140 I recognize that publicity which is unrelated
to the defendant or to the matters at trial may not have the evidentiary weight
necessary to establish prejudicial pretrial publicity, but also note that publicity that
does not “directly relate” to the defendant or the charge offense may be significant
134
Sheppard, 384 U.S. at 352, 354, 86 S. Ct. at 1517-18.
135
Mu’Min v. Virginia, 500 U.S. 415, 429, 111 S. Ct. 1899, 1907 (1991).
136
Williams, 523 F.2d at 1209.
137
Id. at 1209; Murphy, 421 U.S. at 802, 95 S. Ct. at 2037.
138
Murphy, 421 U.S. at 802, 95 S. Ct. at 2037; Williams, 523 F.2d at 1210.
139
Murphy, 421 U.S. at 800, 95 S. Ct. at 2036; Williams, 523 F.2d at 1210. As the en
banc opinion correctly notes, the defendants used only 15 of their 18 challenges to the jury pool
to excuse jurors whose answers revealed their potential bias against them. Although a
defendant’s failure to use all available preemptory challenges may indicate a lack of juror
prejudice, United States v. Alvarez,755 F.2d 830, 859 (11th Cir. 1985), such a fact is merely one
factor to be considered in the totality of the circumstances determination. United States v. Gorel,
622 F.2d 100, 103-04 (5th Cir. 1979); Dobbert v. Florida, 432 U.S. 282, 302-03, 97 S. Ct. 2290,
2303 (1977).
140
See Sheppard, 384 U.S. at 354-55, 86 S. Ct. at 1518; Mu’Min, 500 U.S. at 429, 111
S. Ct. at 1907.
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to the trial.141
In this case, however, the district court focused solely on the prejudicial
publicity prong of the analysis.142 It made no findings regarding the prejudice
within the community. In denying a change of venue, the district court ignored its
own recognition of the substantial likelihood of prejudice as a result of witnesses’
press events and the unsequestered jury’s exposure,143 the community events and
memorials honoring the victims of the shootdown, and the fear created in the
minds of the jurors from the evidence of spies and weapons in their
neighborhoods, and the history of violence practiced by some members of the
Cuban-exile community.
Despite the district court’s numerous efforts to ensure an impartial jury in
141
Jordan, 763 F.2d at 1279 (“[E]ven to the extent that the publicity did not directly
relate to the [defendant’s] case, it would be naive to underestimate its significance in the context
of the trial . . . . [W]e cannot blind ourselves to the significant [prejudicial] overtones in the
news media coverage” of community events.).
142
Hernandez, 106 F. Supp. 2d at 1319, 1321 n.2, 1322. Further, there is no indication
that the district court considered the community and the events ongoing in the community within
a totality of the circumstances analysis in either the rulings on the a change of venue or the
motions for a new trial.
143
R7-978 at 9 n. 5 (“Articles about this case have appeared daily in the Miami Herald
and El Nuevo Herald[,] weekly in the national and international press [and that] local televised
news programs, particularly those affiliated with the Spanish-speaking channels, have featured
coverage of the trial since it began.”); id. at 15, 17 (finding “significant” “local and national
media coverage” since the indictment that had “only intensified as the trial has progressed . . .
and that “[s]ince the trial began, this case has been the daily bread for the local press and
media”).
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this case, I am not convinced that empaneling such a jury in this community was
possible because of pervasive community prejudice. The entire community is
sensitive to and permeated by concerns for the Cuban exile population in Miami.
Waves of public passion, as evidenced by the public opinion polls and
multitudinous newspaper articles submitted with the motions for change of
venue–some of which focused on the defendants in this case and the government
for whom they worked but others which focused on relationships between the
United States and Cuba--flooded Miami both before and during this trial.144 The
trial required consideration of the BTTR shootdown and the martyrdom of those
persons on the flights. During the trial, there were both “commemorative flights”
and public ceremonies to mark the anniversary of the shootdown. Moreover, the
Elian Gonzalez matter, which was ongoing at the time of the change of venue
motion, concerned these relationships between the United States and Cuba and
necessarily raised the community’s awareness of the intense and emotional
concerns of the Cuban exile community. It is uncontested that the publicity
concerning Elian Gonzalez continued during the trial, “arous[ing] and inflam[ing]”
passions within the Miami-Dade community.145 Despite the district court’s
144
Without determining the validity of Professor Moran’s poll, I note that the district
court approved the expenditures related to the poll, including the size of the statistical sample.
145
R15-1636, Exh. 2 at 2-3.
113
thorough and extensive voir dire and its many efforts aimed at protecting the
jurors’ privacy, voir dire highlighted the community’s awareness of this case and
also that of Elian Gonzalez. The district court’s gag order failed to restrain the
widespread publicity of the shootdown anniversary memorials and demonstrations.
The jurors continued to be concerned about their exposure to the press into their
deliberations. With the emotional intensity of the events in the community and the
publicity of those events, which relate both directly and indirectly to these
defendants, the “jurors may well have been affected even if they were attempting
to follow the court’s instructions.”146 In this instance, there was no reasonable
means of assuring a fair trial by the use of a continuance or voir dire; thus, a
change of venue was mandated. The evidence at trial validated the media’s
publicity regarding the “Spies Among Us” by disclosing the clandestine activities
of not only the defendants but also of the various Cuban exile groups and their
paramilitary camps that continue to operate in the Miami area. The perception that
these groups could harm jurors that rendered a verdict unfavorable to their views
was palpable. Further, the government witness’s reference to a defense counsel’s
allegiance with Castro and the government’s arguments regarding the evils of
Cuba and Cuba’s threat to the sanctity of American life only served to add fuel to
146
Jordan, 763 F.2d at 1279.
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the inflamed community passions. “[I]t would be blinking reality not to recognize
the extreme prejudice inherent” in this unique circumstance.147
B. Denial of New Trial
A district court is authorized to grant a new trial on the basis of newly
discovered evidence if a motion for new trial is filed within three years of the
verdict.148 The newly discovered evidence must satisfy a five-part test: (1) the
evidence was newly discovered after the trial; (2) the movant shows due diligence
in discovering the evidence; (3) the evidence is not merely cumulative or
impeaching; (4) the evidence is material to issues before the court; and (5) the
evidence is of such a nature that a new trial would reasonably produce a new
result.149 Newly discovered evidence is not limited to just the question of the
defendant’s innocence but can include other issues of law,150 including questions
of the fairness of the trial.151
The government’s motion in Ramirez meets these criteria. Although the
facts in Ramirez differ from the facts in this case, there are remarkable similarities,
147
Turner v. Louisiana, 379 U.S. 466, 473, 85 S. Ct. 546, 550 (1965).
148
See Fed. R. Crim. P. 33(a) and (b)(1).
149
See United States v. DiBernardo, 880 F.2d 1216, 1224 (11th Cir. 1989).
150
See United States v. Beasley, 582 F.2d 337, 339 (5th Cir. 1978) (per curiam).
151
See United States v. Williams, 613 F.2d 573, 575 (5th Cir. 1980).
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including the plaintiff’s [or, in this case, the government’s witnesses] exploitation
of the media’s coverage of the evidence and the issues at trial. In Ramirez, a civil
employment discrimination case, the government was defending the INS against a
Hispanic plaintiff. More significant, however, is that the underlying facts for the
government’s motion in Ramirez regarding the pervasive community prejudice
were based on publicity and events that occurred before and during the trial of this
case, “November 1999 to the present [June 2002],”152 and which were much closer
in temporal proximity. The newly discovered evidence, therefore, was not the
facts on which the government’s Ramirez motion was based but was the
government’s position on the events which were occurring during the trial of these
defendants and its legal position as to the applicability of Pamplin.153
Attorneys representing the United States are burdened both with an
obligation to zealously represent the government and, as a “representative of a
government dedicated to fairness and equal justice to all,” an “overriding
obligation of fairness” to defendants.154 That obligation includes a “duty to refrain
152
R15-1636, Exh. 2 at 1-2.
153
In response to the defendants’ motion for a change of venue in this case, the
government had argued that Pamplin did not apply where the alleged prejudice was the
“community’s internal attitudes” as opposed to an outside influence. R3-443 at 6.
154
United States v. Wilson, 149 F.3d 1298, 1303 (11th Cir. 1998).
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from improper methods calculated to produce a wrongful conviction.”155 A trial
may be rendered fundamentally unfair by the prosecution’s use of factually
contradictory theories.156 A prosecutor’s reliance on a legal position despite
“knowing full well” that it is wrong is “reprehensible” in light of his duty “by
virtue of his oath of office.”157 Further, when the government has sought to
foreclose the submission of evidence, an evidentiary hearing is warranted on a
motion for new trial when the newly discovered evidence “might likely lead” to a
new trial.158
We do not know when the government changed its position regarding both
155
United States v. Crutchfield, 26 F.3d 1098, 1103 (11th Cir. 1994) (internal citation
omitted).
156
See Smith v. Groose, 205 F.3d 1045, 1051-52 (8th Cir. 2000) (holding that the
prosecution’s use of contradictory theories for different defendants in a murder trial violated due
process). Our adversary system is “poorly served when a prosecutor, the state’s own instrument
of justice, stacks the decks in his favor.” Id. at 1051.
I recognize that that judicial equitable estoppel generally bars a party from asserting a
position in a legal proceeding that is inconsistent with its position in a previous, related
proceeding. See New Hampshire v. Maine, 532 U.S. 742, 749, 121 S. Ct. 1808, 1814 (2001).
Judicial equitable estoppel, however, is not applicable here because Ramirez, a civil case, was
unrelated to this criminal prosecution. However, because the doctrine seeks to prevent a “party
from ‘playing fast and loose’” with the courts, the guidance that it provides may be helpful to
parties considering a change in their subsequent position in unrelated litigation based upon the
same set of facts. See 18B Charles Alan Wright, Arthur R. Miller & Edward H. Cooper, Federal
Practice and Procedure § 4477 (2d ed. 2002).
157
United States v. Masters, 118 F.3d 1524, 1525 & n.4 (11th Cir. 1997) (per curiam).
158
United States v. Espinosa-Hernandez, 918 F.2d 911, 914 (11th Cir. 1990) (per
curiam).
117
the application of Pamplin and the pervasive community prejudice in Miami-Dade
County because there was no evidentiary hearing. Because the government’s
timing on its change of position might lead to a new trial, an evidentiary hearing
was warranted.
Here, a new trial was mandated by the perfect storm created when the surge
of pervasive community sentiment, and extensive publicity both before and during
the trial, merged with the prosecutor’s improper prosecutorial references and
position regarding a change of venue. Moreover, the evidence at trial strongly
suggested not only adverse economic consequences for jurors voting for acquittal,
but the prospect of violence from an already impassioned and emotional
community possessed of firearms and bombs. The district court’s instructions to
the jury only generally reminded the jury that statements by the attorneys were not
evidence to be considered. The community’s displeasure with the Elian Gonzalez
controversy paled in comparison with its revulsion toward the BTTR shootdown.
In a civil case which arose out of the same facts as this criminal prosecution, the
BTTR shootdown was described as an “outrageous contempt for international law
and basic human rights” perpetrated by the Cuban government in murdering “four
human beings” who were “Brothers to the Rescue pilots, flying two civilian,
unarmed planes on a routine humanitarian mission, searching for rafters in the
118
waters between Cuba and the Florida Keys.”159 In Ramirez, the government not
only recognized the effect of the Elian Gonzalez matter on the community but also
argued that the publicity continued through 2002. If the effect of those inflamed
passions is clear in an employment discrimination action against the agency that
contributed to Elian Gonzalez’s removal and that failed to support the Cuban
exiles’ position, it is manifest in a criminal case against admitted Cuban spies who
were alleged to have contributed to the murder of “humanitarians” working to
rescue rafters such as Elian Gonzalez.
III. CONCLUSION
In light of the foregoing discussion, I can only conclude that the defendants’
convictions should be reversed and the case should be remanded for a new trial.
I am aware that, for many of the same reasons discussed above, the
reversal of these convictions would be unpopular and even offensive to many
citizens. However, I am equally mindful that those same citizens cherish and
support the freedoms they enjoy in this country that are unavailable to residents of
Cuba. One of our most sacred freedoms is the right to be tried fairly in a
noncoercive atmosphere and thus be afforded a fair trial. In the final analysis, we
are a nation of laws in which every defendant, no matter how unpopular, must be
159
Alejandre, 996 F. Supp. at 1242.
119
treated fairly–a concept many consider alien to the current Cuban regime. Our
Constitution requires no less.
120