Discussion of the meaning of this court decision
(A range of viewpoints on the federal court decision.)
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Cuban 5: 11th Circuit Decision Text - Aug 9, 2005
 

Cuban Five Appeal
Decision of 11th Circuit Court of Appeals
Full Text, August 9, 2005

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This version has been re-formatted for ease of readability.
The 93-page original is posted to the court's website here:
http://www.ca11.uscourts.gov/opinions/ops/200117176.pdf 
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IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT ________________________
No. 01-17176 ________________________

District Court No. 98-00721-CR-JAL

UNITED STATES OF AMERICA, Plaintiff-Appellee,

versus

RUBEN CAMPA, a/k/a John Doe 3, etc.,
RENE GONZALEZ, a/k/a Iselin, etc.
GERARDO HERNANDEZ, a/k/a Giro, etc.
LUIS MEDINA, a/k/a Oso, etc.
ANTONIO GUERRERO, a/k/a Rolando Gonzalez-Diaz, etc.,

Defendants-Appellants.

________________________ No. 03-11087 ________________________ District Court No. 98-00721-CR-JAL

UNITED STATES OF AMERICA, Plaintiff-Appellee,

versus

GERARDO HERNANDEZ, a/k/a Giro, etc.,
LUIS MEDINA, a/k/a Oso, etc.,
RENE GONZALEZ, a/k/a Iselin, etc.,
ANTONIO GUERRERO, a/k/a Rolando Gonzalez-Diaz, etc.,
RUBEN CAMPA, a/k/a John Doe 3, etc.,

Defendants-Appellants.

________________________ Appeals from the United States District Court for the Southern District of Florida _________________________ (August 9, 2005)

Before BIRCH, KRAVITCH, and OAKES*, Circuit Judges.

* The Honorable James L. Oakes, United States Circuit Judge for the Second Circuit, sitting by designation.

PER CURIAM:

The defendant-appellants, Ruben Campa, Rene Gonzalez, Gerardo Hernandez, Luis Medina and Antonio Guerrero, were convicted and sentenced for offenses charging each of them with acting as unregistered Cuban intelligence agents working within the United States. Hernandez was also convicted of conspiracy to commit murder by supporting and implementing a plan to shoot down United States civilian aircraft outside of Cuban and United States airspace. They appeal their convictions, sentences, and the denial of their motion for new trial arguing, inter alia, that the pervasive community prejudice against Fidel Castro and the Cuban government and its agents and the publicity surrounding the trial and other community events combined to create a situation where they were unable to obtain a fair and impartial trial.1 We agree, and REVERSE their convictions and REMAND for a retrial.

Our consideration of a motion for change of venue requires a review of the totality of the circumstances surrounding the trial. Therefore, in Part I, we consider the Background: the indictments, the motions for change of venue, voir dire, the court's interactions with the media, general facts regarding the trial, the evidence presented at trial, jury conduct and concerns during the trial, and the motions for new trial. Our 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. This is so because the trial evidence itself created safety concerns for the jury which implicate venue considerations. In Part II, we discuss the law and our application of the law to the facts in this case. In Part III, we present our conclusion.

I. BACKGROUND

A. The Indictments

Campa, Gonzalez, Guerrero, Hernandez, and Medina were arrested on a criminal complaint on 12 September 1998, and were subsequently indicted with nine codefendants for conspiring to act as agents of the Republic of Cuba without registering with the Attorney General of the United States and to defraud the United States, in violation of 18 U.S.C. § 951(a)2 and 28 C.F.R. §§ 73.01 et seq., and numerous overt acts, in violation of 18 U.S.C. § 371 (Count 1). They were alleged to have "function[ed] as covert spies... by gathering and transmitting information to Cuba[] concerning United States military installations, government functions, and private political activity; by infiltrating, informing on and manipulating anti-Castro political groups in Miami-Dade County [Florida]; by sowing disinformation" within these groups and in dealings with other private and public groups within the United States, "and by carrying out other operational directives of the Cuban government."3 Guerrero, Hernandez, and Medina were also charged with conspiring to deliver to Cuba information "relating to the national defense of the United States,"4 in violation of 18 U.S.C. §§ 794(a), (c), and 2 (Count 2).5 Gonzalez was charged with acting as an agent of the Republic of Cuba without prior notification to the Attorney General, and Hernandez and "John Doe 4 a/k/a Albert Manuel Ruiz" were charged with causing Gonzalez to act as an unregistered agent, in violation of 18 U.S.C. §§ 951 and 2 (Count 15).6 Guerrero was charged with acting as an agent of the Republic of Cuba without notification to the Attorney General, and Hernandez, Medina, and Campa were charged with causing Guerrero to act as an unregistered agent, in violation of 18 U.S.C. §§ 951 and 2 (Count 16).

Hernandez was charged with conspiracy to murder, in violation of 18 U.S.C. §§ 1111 and 2, and overt acts related to that conspiracy, in violation of 18 U.S.C. §§ 1117 and 2 (Count 3),7 possession of a counterfeit passport, in violation of 18 U.S.C. §§ 1546(a) and 2 (Count 4),8 possession of five or more fraudulent identification documents, in violation of 18 U.S.C. §§ 1028(a)(3) and 2 (Count 5), possession of a fraudulent identification document, in violation of 18 U.S.C. §§ 1546(a) and 2 (Count 6), acting as a foreign agent for the Republic of Cuba without notification was charged with possession of a counterfeit passport (Count 9) and possession of a passport obtained by use of a false statement (Count 11), in violation of 18 U.S.C. §§ 1546(a) and 2, making a false statement on his passport application, in violation of 18 U.S.C. §§ 1542 and 2 (Count 10), possession of fraudulent identification documents, in violation of 18 U.S.C. §§ 1028(a)(3), (b)(2)(B), and (c)(3), and 2 (Count 12), acting as an agent of the Republic of Cuba without notification to the Attorney General, in violation of 18 U.S.C. §§ 951 and 2 (Count 14), and having caused Joseph Santos (Count 25) and Amarylis Silverio Santos (Count 26) to have acted as unregistered agents.10 A gag order was subsequently entered governing the parties and their attorneys.11

B. Change of Venue

In August 1999, Medina's attorney moved to incur expenses under the Criminal Justice Act to poll the Miami-Dade County community to determine whether it was a fair and unbiased venue for the trial.12 Medina explained that the traditional methodology for addressing pretrial publicity was not appropriate and proposed that Florida International University Psychology Professor Gary Patrick Moran conduct a telephone poll with a "sample of 300 people."13 The district court granted the motion.14

In January 2000, Campa, Gonzalez, Guerrero, and Medina moved for a change of venue, arguing that they were unable to obtain an impartial trial in Miami as a result of pervasive prejudice against anyone associated with Castro's Cuban government.15 The motions for change of venue were based on pretrial publicity and "virulent anti-Castro sentiment" which had existed in Miami as "a dominant value... for four decades."16 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."17

The evidence submitted in support of the motions for change of venue was massive.18 In 2000, a prominent Cuban-American attorney in Miami explained that Cuban-related matters were "`hot-button issues'" as there were over 700,000 Cuban-Americans living in Miami.19 Of those Cuban-Americans, 500,000 remembered leaving their homeland, 10,000 had a relative murdered in Cuba, 50,000 had a relative tortured in Cuba, and thousands were former political prisoners.20 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.21 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."22 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.23 The respondents who indicated an inability to be a fair and impartial juror were also asked whether there were any circumstances that would change their opinion.24 Of those respondents, 91.4 percent of the Hispanic respondents and 84.1 percent of all respondents answered "no."25 Many of the articles submitted by the defendants also documented the community tensions and protests related to general anti-Castro sentiment, the conditions in Cuba, and other ongoing legal cases, including the Elian Gonzalez matter.26

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 businesses­those promoting commerce, travel, or humanitarian aid to Cuba­have been targeted by bombers."27

The government responded that the Miami-Dade Hispanic population was a "heterogeneous," "highly diverse, even contentious" "group" immune from the influences which would preclude a fair trial.28 Following oral arguments on 26 June 2000, the district court denied the 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.29 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 representative of the population of potential jurors in Miami-Dade County."30

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.31 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.32 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.33 He noted that the articles characterized the defendants as Cuban agents who would call Cuban officials and citizens to testify on their behalf.34 The district court denied reconsideration, stating that it had previously addressed the defendants' arguments.35 It again explained that it could explore any potential bias during a voir dire examination and carefully instruct the jurors during the trial. Moreover, the district court noted that if it determined "that a fair and impartial jury cannot be empaneled, Defendants may renew this Motion and the Court shall consider a potential change of venue at that time."36

The trial began with jury selection on 27 November 2000.37 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.38 In February 2001, Campa moved for a mistrial and renewed his motion for a change of venue based on the activities during the weekend of 24 February 2001, including the "commemorative flights marking the fifth anniversary of the shoot down of the Brothers to the Rescue aircraft and the number of television interviews and the number of newspaper articles concerning that event."39 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 CANF members discussing "at length" the facts of the trial.40 He maintained that "some news events are so great and are so explosive... that any amount of instructing the jury cannot cure the taint."41 The court reserved ruling pending supplementation of the record and then asked whether an inquiry of the jury was requested.42 Campa answered "[y]es" and, after the inquiry was discussed, the jury was subsequently questioned as to their exposure to the news articles.43 When none of the jurors responded in any way, the case proceeded.44

Two weeks later, on 1 March 2001, Campa, Gonzalez, Hernandez and Medina filed a joint motion for a mistrial and change of venue arguing that the events during the weekend of 24 February "received a great deal of publicity, all of which was biased against the defendants and consistent with the government's position at trial."45 They maintained that "[n]o amount of voir dire or instructions to the jury c[ould] cure the taint, whose ripple effects are difficult to measure."46 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."47 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 finding that

"the February 24th issues and events as well as the reporting of those events do not necessitate and did not necessitate a change of venue in this matter.... The 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 with that directive by the Court."48

C. Voir Dire

The court held two status conferences to work out a two-phase plan for voir dire.49 In phase one, 168 jurors were screened for problems such as language and hardship through a written questionnaire and oral voir dire questions.50 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.51

On the first day of voir dire, the district court addressed isolating the jurors following their exposure to a press conference held by the victims' families on the courthouse steps and their approach by members of the press.52 The trial judge instructed that she would no longer permit the victims' families to be present during voir dire "if there are efforts made to pollute the jury pool"53 and instructed the government to speak to the victims' families regarding their conduct.54 The court also noted that, because some of the potential jurors were approached by news media with cameras, she would question them regarding their discussions with the media and instruct the marshals to accompany the jury, with their juror tags removed, as they left the building.55 The district court then extended the gag order to cover the witnesses and the jurors.56

Later that same day, a copy of the Miami Herald which contained an article about the case was found in the jury assembly room.57 The next day, after Hernandez's attorney commented that the previous day's article was "disturbing," Guerrero's counsel mentioned that he had viewed one of the potential jurors reading the article while in the courtroom.58 The district judge responded that "the 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."59 As voir dire continued, a potential juror who evidenced substantial prejudice was isolated and removed from the venire so as to eliminate contact with other potential jurors.60

During voir dire, the venire members were questioned about their political opinions and beliefs. Some venire members were clearly biased against Castro and the Cuban government. Peggy Beltran was excused for cause after stating that she would not believe any witness who admitted that he had been a Cuban spy.61 When asked about the impact any verdict in the case might have, David Cuevas stated 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 Cuba­anything dealing with communism they are against," he would suspect that "they would have a strong opinion" on the trial.62 He explained that he probably would have a great deal of difficulty dealing with listening to the testimony. I would probably be a nervous wreck, if you want to know the honest truth. I could try to be as objective as possible and be as open minded as possible, but I would have some trouble dealing with the case. I guess I 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.63

James E. Howe, Jr. 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."64 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."65 Jess Lawhorn, Jr., 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."66 Potential juror Luis Mazza 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.67 Jenine Silverman believed that "Fidel Castro is a dictator" and that there were "things going on in Cuba that the people are not happy about."68 Jose Teijeiro thought that Castro had "messed up" Cuba which was "a very bad government... perhaps one of the worst governments that exist... on the planet."69

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. Belkis Briceno-Simmons 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.70 Ileana Briganti thought she could be impartial, but admitted that "it would be difficult" and that she did not know if she "could be fair."71 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."72 David Buker 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."73 Haydee Duarte, 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 Mariel boat lift74 to rescue his sister and her family from Cuba.75 Although she stated that she would be impartial, she said that she saw "Castro as a dictator."76 Maria Gonzalez, a Cuban immigrant, said that she did "not approve of the regime... in Cuba" and was "against communism" but believed she could serve impartially.77 She remembered the news from the television and the Miami Herald about the planes being shot down.78 Rosa Hernandez 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.79 Sister Susan Kuk was the principal of the predominantly (90 percent) Cuban high school attended by the daughter of one of the killed BTTR pilots.80 She visited the pilot's home and attended his funeral.81 Despite her relationship with the pilot's daughter, Kuk thought she "could be fair" although "it would be a little difficult."82 Lilliam Lopez, 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.83 She had a problem with the case because it involved "espionage against the U.S." but indicated that she could set aside her feelings to serve on the jury.84 John McGlamery 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."85 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."86 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.87 His opinion about the Cuban government was "not favorable" as it was "not a democracy" and was "guilty of assorted [human rights] crimes."88 Hans Morgenstern 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."89 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."90 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.91 He believed the case to be "a high profile case" and that he had been videotaped by the media when leaving the courthouse.92 Angel De La O, 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.93 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.94 He also said that he had "heard a lot about the case... on the news [and from] people talking about" it.95 Connie Palmer 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."96 Palmer had known Sylvia Iriondo, who had been a passenger in Basulto's airplane on the day of the shoot-down and who was named as a government witness, for about eight years.97 She also knew that Iriondo was "very involved with the Brothers to the Rescue and very strongly keeping the Cuban community together in Miami."98 Joseph Paolercio 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.99 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.100 Barbara Pareira had "many close Cuban friends," including her husband's business partner who was a member of a group that rescued Cubans fleeing the island.101 She believed that she could be impartial but had concerns about returning a verdict in Miami "because of the Cuban population here."102 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."103 She strongly believed that the Cuban government was an oppressive dictatorship.104 Pareira 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.105 Sonia Portalatin had a "strong" opinion about the Cuban government because she was "against communism."106 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.107 Eugene Yagle admitted having "a strong opinion" about the Cuban government as he could not "reconcile [him]self to that form of Government."108

Finally, other venire members espoused indifference toward Castro or the Cuban government. John Gomez 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 reasons why he should not serve on the jury.109 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.110 Luis Hernandez, 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.111 Miguel Hernandez's parents and grandparents had immigrated from Cuba and he had distant relatives who remained in Cuba but he had no opinions regarding the Cuban government, the trial, or the publicity surrounding it.112 Florentina McCain felt sympathy for the people living in Cuba but believed that she would be impartial as a juror.113 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.114 Michelle Peterson also 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."115

After one potential juror was excused for cause because he had attended the funeral for a victim of the shoot-down, Hernandez moved to have another potential juror, Sister Kuk, excused for the same reason. The government opposed this request to strike,116 maintaining that Sister Kuk attended the service as a professional, and that "[t]here were masses after the shoot-down all over town and numerous people attended."117

Many of the potential jurors who had personal contact with the victims, their family members, and BTTR were not questioned during Phase II or were excused for cause.118 For example: potential juror Jessica de Arcos knew Rita and Jose Basulto;119 potential juror Daniel Fernandez knew Jose Basulto;120 potential juror Tim Heatly knew Jose Basulto;121 potential juror Sister Kuk knew government witness Marlene Alejandre, the widow of one of the killed BTTR pilots;122 potential juror Caroline Rodriguez knew Marlene Diaz, the daughter of one of the BTTR victims.123 The defendants also used a peremptory challenge to excuse Lazaro Barreiro, a former national bank examiner, who had assisted the United States Attorney's office in Miami for three years during a grand jury investigation.124 Potential juror Placencia knew many of the named witnesses, and had helped raise money for BTTR while working for one of the local Cuban radio stations.125 The district court granted the defendants additional peremptory challenges, for a total of 18, due to the "number of very close decisions made by the Court" on challenges for cause on jurors whose claims of impartiality were difficult to believe.126 The defendants used 16 of their peremptory challenges to excuse jurors whose answers revealed biases against them.127 The government exercised its peremptory challenges as to the three prospective jurors who failed to express negative views toward Cuba.128 Each of the Cuban-American prospective jurors was eliminated, despite the government's reverse Batson challenge.129 Following voir dire, although complimenting the district court on the conduct of voir dire, Medina's attorney indicated his concern 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.130

From the beginning of voir dire until the completion of the trial, the prospective and actual jurors131 were admonished not to discuss the case with anyone and to have no contact with media accounts or anything else related to the case.132 The jurors were also instructed about the presumption of innocence.133

D. The Media

Throughout the trial, the district court worked at controlling media access. During a discovery hearing, the district court reminded the parties and their attorneys that they were to refrain from releasing information or opinions which could interfere with a fair trial or prejudice the administration of justice.134 The 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."135 In particular, she commented that an article about 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."136 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.137 She directed that "[t]his case... not... get advertised anywhere in the media for any reason whatsoever."138

As the case proceeded to trial, media attention expanded. On the first day of voir dire, the district court observed that one of the victims' families conducted a press conference which was filmed outside of the courthouse during the lunch break and that some of the jurors were approached by the media.139 She then acknowledged that "[t]here is a tremendous amount of media attention for this case."140

The district court extended the sequestration order to cover the jury and witnesses to ensure that they had no contact with the media,141 sealed voir dire questions during the jury selection,142 and limited the sketching of witnesses for their protection.143 It permitted, however, the media "access to all the evidence admitted into the trial record."144

E. The Trial

The case proceeded to a jury trial on 27 November 2000. On 30 November, Hernandez's attorney raised the issue of the seating in the courtroom, specifically, the prejudice resulting from the assigned seating of the victims' families and the lack of seating available for the defendants' families.145 He argued that, as witnesses, the victims' families should not be seated behind the government.146 The district court then reassigned the seating, so that the victims' families were seated in a row removed from the government and the defendants' families were given assigned seats.147

Defense witness Jose Basulto, a Cuban-American who had worked with the Central Intelligence Agency to infiltrate the Cuban government, testified that he was "dedicated to promot[ing] democracy in Cuba."148 When questioned about his activities during 1995, he responded by asking Hernandez's defense counsel whether he was "doing the work" of the Cuban intelligence community.149 At the request of Hernandez's attorney, the trial judge struck the comment and the jury was instructed to disregard the comment.150 Following a recess, Campa's counsel 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, 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."151

He asked that the court consider this event and the other events in its consideration of the pending motion for change of venue.152

F. The Evidence at Trial

Campa, Gonzalez, Guerrero, Hernandez, and Medina, as well as others, were members of a Cuban government intelligence operation identified as "La Red Avispa," or the Wasp Network, which was charged with infiltrating, monitoring, and disrupting the work of certain militant Cuban exiles in South Florida.153 Directorate Intelligence ("DI") Officers Hernandez, Medina, and Campa supervised agents, including agents Gonzalez and Guerrero.154 The Wasp Network reported information to Cuba on: (1) the activities of anti-Castro organizations in Miami-Dade County;155 (2) the operation of United States military installations including those at Boca Chica Naval Air Station ("NAS"),156 MacDill Air Force Base ("MacDill"), Barksdale Air Force Base ("Barksdale"), and the United States Southern Command ("SouthCom");157 and (3) United States political and law enforcement activities.158 The group was also charged with intimidating Cuban-American individuals and organizations with threatening letters and telephone calls;159 penetrating United States Congressional election activities;160 scouting and assessing potential sources of information and possible new recruits;161 and carrying communications, cash, and other items between Miami and other United States-based DI officers and agents.162 None of the Wasp Network members notified the United States Attorney General that they were acting as agents of the Cuban government.163 Members of the Wasp Network and the DI frequently communicated and delivered items through the Cuban delegations' diplomatic cover.164

The Wasp Network members evaded detection through the use of false identities and code names, counter surveillance for contacts and communications, and DI decrypted written and broadcast communications.165 Campa, Hernandez, and Medina falsely identified themselves through elaborate "legends," or biographies, which were supported by documents provided by the DI, and used these documents when they dealt with United States border and law enforcement personnel and when they obtained drivers licenses, passports, and other identification.166 They also had back-up, or "reserve," false identities in which the agents used the names and other identification of United States citizens who had visited Cuba. The agents used these back-up identities when they traveled or if their primary "legend" was compromised.167

The Cuban exile groups of concern to the Cuban government included Alpha 66,168 Brigade 2506, BTTR, Independent and Democratic Cuba ("CID"), Comandos F4,169 Commandos L, CANF,170 the Cuban American Military Council ("CAMCO"), the Ex Club, Partido de Unidad Nacional Democratica (PUND) or the National Democratic Unity Party (NDUP), and United Command for Liberation (CLU).171 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.172 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 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.173

The BTTR's flights over Cuba were of particular concern to the Cuban government. Sometime after 13 July 1995, the Federal Aviation Administration ("FAA") conveyed the Cuban government's threats to the BTTR that unauthorized planes flying into Cuban airspace would be forced to land or shot down.174 On 9 and 13 January 1996, BTTR dropped thousands of leaflets into Cuba, which were printed with portions of the United Nations' Universal Declaration of Human Rights and which encouraged Cubans to fight for their rights.175 In January 1996, BTTR President and Director Jose Basulto appeared on a United States-controlled Radio Marti program broadcast into Cuba claiming responsibility for dropping leaflets earlier that month and stating that BTTR advocated the use of civil disobedience.176 The Cuban government protested to the United States about the airspace violations, complained that the measures used by the FAA to impede such flights were insufficient, and noted that unauthorized flights would be interrupted by force.177

On 22 January 1996, the FAA's liaison to the State Department wrote the regional FAA office in Miami regarding these Cuban airspace violations. She stated that she had been advised of another unauthorized flight on 20 January, and that this latest overflight can only be seen as further taunting of the Cuban Government. State is increasingly concerned about Cuban reaction to these flagrant violations. They are also asking from the FAA what is this agency doing to prevent/deter these actions... [and] our case against Basulto. Worst case scenario is that one of these days the Cubans will shoot down one of these planes and the FAA better have all its ducks in a row.178

In early February 1996, a member of a delegation reviewing Cuban military activities was advised by the Cuban military that it was frustrated by the lack of a favorable response from the United States considering its repeated protests regarding the light civilian airplane flights from Florida which were violating Cuban airspace.179 Thereafter, the delegation member met with officials from the United States Departments of Defense and State and advised them of what he perceived as a warning that Cuba was considering shooting down the flights.180

On 23 February 1996, the FAA issued a "Cuba Alert" to several United States agencies. In the alert, the FAA advised they had received a call from State Dept. indicating that since Brothers to the Rescue [BTTR] and its leader Basulto support and endorse the Concilio Cubano [an umbrella dissent organization] it would not be unlikely that the BT[T]R attempted an unauthorized flight into Cuban airspace tomorrow, in defiance of the GOC [Government of Cuba] and its policies against dissidents. State Dept. cannot confirm this will happen and is in touch with local law enforcement agencies to better determine what's the situation. I've reiterated to State that the FAA cannot PREVENT flights such as this potential one, but that we'll alert our folks in case it happens and we'll document it (as best we can) for compliance/enforcement purposes.

State has also indicated that the GOC would be less likely to show restraint (in an unauthorized flight scenario) this time around....181

On 24 February 1996, Basulto scheduled a flight into the Florida Straits, toward Cuba, in search of reported rafters.182 The flight plans were filed with the FAA and transmitted to Cuba.183 At approximately 1:15 P.M., three BTTR aircraft departed from the Opa-Locka, Florida, airfield: N2506, carrying Basulto and others; N2456, piloted by Carlos Costa and carrying Pablo Morales; and N5485, piloted by Mario de la Pena and carrying Armando Alejandre.184 At approximately 3:00 P.M., the planes crossed the 24th parallel, which marks the boundary between the Miami and Havana Flight Information Regions and is in international airspace. At this point, they communicated by radio with Havana Air Traffic Control ("Havana ATC") identifying themselves and their flights.185 Within minutes of the crossing, Cuban military jet fighter aircraft sighted and pursued Costa's plane in international airspace.186 At 3:20 P.M., Cuban military ground control radioed that the Cuban aircraft were "authorized to destroy." Id. Accordingly, the Cuban military aircraft fired on and destroyed the plane.187 A few moments later, the Cuban fighter jet sighted the plane piloted by de la Pena and shot it down.188 The shoot downs of the two BTTR planes were observed both by occupants of a fishing boat and by the crew and passengers onboard a cruise ship.189 The bodies of the people in the aircraft, three of whom were United States citizens, were never recovered. Both planes were in international airspace, flying away from Cuba, when they were shot down; they had not entered Cuban airspace.190

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 1997.191 He advised Medina of the attacks in April and directed that he "[s]earch for active information on [the acts] that [the Cubans with ties to the Cuban American Military Council ("CAMCO")] have, or any attempt for future similar actions [in Cuba] by CAMCO."192 In September, Hernandez notified the Cuban authorities that he had received information that "one of the two brothers who had something to do with the bomb on [an Italian tourist who was killed]" was available to meet for lunch and that "next week they [the terrorists] would try to place a bomb in one of the largest buildings [associated with tourism] in Cuba which is visited most by [Castro]."193 Hernandez's contact was instructed to elaborate on the information that he had obtained.194 As a result of the investigations, Caballero said that the Cuban Department of State Security arrested some individuals, but that he believed some of the individuals responsible for financing, planning, and organizing the explosions lived in the United States and had not been arrested.195 Caballero explained that, in June 1998, 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 1999.196

Hernandez worked in the United States from 1994 to 1998, supervising unregistered Cuban agents Juan Roque and Rene Gonzalez who both infiltrated the BTTR organization, and Operation Aeropuerto which was Guerrero's penetration of the NAS. In late 1995 and early 1996, Hernandez participated in a plan to have Roque return to Cuba to undermine the BTTR. He also directed an agent to apply for a job with Southcom,197 and later supervised Operation Suroc which was the agents' penetration of Southcom.198 In late January 1996, he received a series of messages from the Cuban government announcing "Operacion Escorpion," which involved confronting the counter-revolutionary efforts of the BTTR in late January 1996.199 In the messages, Roque and Gonzalez were directed to provide Cuba with specific information through codes regarding the BTTR flying missions; Roque and Gonzalez were advised not to fly on these missions.200 Hernandez was later recognized for his "decisive" role in Operations Venicia and German, in which "the Miami right [was dealt] a hard blow."201

Hernandez also participated in the spread of disinformation. He was asked to mail DI-furnished letters, purporting to be from a "counterrevolutionary" organization which threatened members of Congress who supported lifting the embargo on Cuba in order to provoke the defeat of members of Cuban-American descent.202 Hernandez suggested a number of projects in south Florida: making threatening phone calls to a newspaper publisher which appeared to come from a CANF supporter; testing BTTR's airplane security for sabotage feasibility; and publishing a book suggesting that BTTR founder Basulto knew in advance that his BTTR followers would be shot down over Cuba.203 He asked Gonzalez to provide information to M-III204 about funding for anti-Castro sabotage, disagreements in the Miami-Cuban community about the Pope's visit to Cuba, and disagreements within CANF over its internal leadership succession and future terrorist plans.205 In August 1998, Hernandez reported to the Cuban government on information that he had learned from a newspaper article that Alpha 66 camp participants, armed with rifles and semiautomatic machine guns, simulated an attack on a Cuban air base, and that an identified individual had claimed to have participated in Cuban hotel bombings in 1992, 1994, and 1995.206 He also shared the news from the article that Alpha 66 continued to prepare for attacks against Cuba, that some of the group's arsenal was located on an island behind Andrews Air Force Base, and that the group was attempting to obtain C-4 explosives to use during its next attack.207

Medina worked with Guerrero and assumed his supervision from Hernandez in June 1997.208 He also supervised Operation Suroc and worked with agents who had been recruited by Hernandez to penetrate Southcom.209 In May 1997, Medina was asked by the DI to gather information regarding infiltrating various local, state, and federal agencies located in Florida, including military bases, the Coast Guard, the Immigration and Naturalization Service ("INS"), and the Federal Bureau of Investigation ("FBI").210

At some point, Campa took over supervision of several operations from Hernandez and Medina, including Operation Aeropuerto and Operation Suroc.211 Campa admitted that he and several of his codefendants worked secretly on behalf of the Cuban government to gather and relay information concerning the activities of numerous local, extremist anti-Castro groups and individuals who had previously conducted terrorist acts against Cuba.212 He was also directed to work on a number of operations, including Operation Rainbow/Arcoiris, Operation Brown/Morena, Operation Fog/Neblina, Operation Paradise/Paraiso, Operation Giron, and others. Operation Rainbow involved filming a meeting between CANF leader Orlando Bosch, Alpha 66 and PUND leader Ruben Dario Lopez and a Cuban agent to plan a shipment of weapons into Cuba for the proposed assassination of Castro; other participants included Campa, Hernandez, and two other Cuban agents.213 Operation Brown required Campa to keep an eye on Bosch in order to learn his relationships and movements, and the places he frequented.214 Operation Fog involved Campa and Medina monitoring the activities of Roberto Martin Perez, a member of the board of directions for the CANF, which the Cuban government believed was responsible for two July 1997 hotel bombings.215 In Operation Paradise, Campa and others, including Rene Gonzalez and other Cuban agents, gathered information on the paramilitary activities of Cuban exile groups operating in the Bahamas, including CANF, Alpha 66, Cuba 21, BTTR, and individuals in those organizations.216 Operation Giron was an attempt to infiltrate CANF, which involved Medina and later Campa as a temporary replacement for Medina.217 Some of the unnamed operations included identifying and videotaping boats in the Miami River, obtaining information concerning Cuban exile paramilitary camps, and surveillance of various anti-Castro persons and groups. In July 1998, Campa and Hernandez, working with other Cuban agents, identified and videotaped two boats in the Miami River which were believed to contain weapons and explosives destined for Cuba.218 The agents were instructed to consider disabling the boats by burning or damaging them or anonymously notifying the FBI about the boats.219 Campa and Hernandez also unsuccessfully tried to locate the Comandos L camp F-4, near Clewiston, Florida, with directions provided to them by the Cuban government.220

The agents supervised by Campa and Medina operated with a separate small budget requiring approval by the authorities in Cuba, and the officers shared housing to economize.221 Campa lived in an apartment owned by Hernandez from November 1997 until February 1998, and in an apartment shared with Medina from July until September 1998.222

Guerrero was listed as a part of a different operative base which carried out M-V223 missions, including those targeting United States military installations.224 Under Operation Aeropuerto, Guerrero achieved "long-term" penetration of the NAS through his employment in the Public Works Department in 1993. He was employed in maintaining the sewage lift-off stations and had access to many areas of the NAS.225 Although he executed several United States loyalty affidavits as conditions of that employment, he was also fulfilling a DI work plan to obtain military information, to conduct visual intelligence of the NAS, and to search for operational resources.226

Guerrero delivered frequent detailed reports to Campa, Hernandez, and Medina regarding the deployment of United States military assets at the NAS from 1994 through 1997.227

Gonzalez worked in a number of operations and "active measures." He was furnished with proposed text for anonymous letters and telephone calls by Hernandez and was directed to consider ways to harass and cause dissension among the counter-revolutionary organizations by disseminating rumors that Basulto was disparaging various members.228 Gonzalez was directed to study BTTR's airplane hangar, to consider burning down its warehouse and spreading rumors that BTTR had burned the warehouse for insurance money, to disable BTTR equipment and antennae, and to threaten a United States government agent with execution and send him a book bomb-appearing device.229

Gonzalez was also instructed to act as an FBI informant.230 Shortly after the BTTR shootdown, Gonzalez told his FBI contact that he felt betrayed by Roque.231 After the disks found in the Avispa officers' apartments were decrypted, the FBI again approached Gonzalez based on his BTTR association; Hernandez warned Gonzalez to act torn between his opposition to terrorism and his loyalty to the anti-Castro "brothers" and not to act like a "Castro agent."232 Gonzalez reported that he had told the FBI that ethically he could not inform on the BTTR, but assured the FBI that he would contact its agents if he learned of anything that would affect United States security.233

During the trial, the government described the Cuban intelligence operations as "an intelligence pyramid" headed by Fidel Castro.234 It suggested that the Cuban government applied the "penalty" of death for throwing things out of airplane windows,235 and was "repressive"236 and a "dictatorship".237

G. Closing Arguments

During closing arguments, the government commented that Hernandez's attorney had called the shootdown "the final solution" and noted that such terminology had been "heard... before in the history of mankind."238 It argued that the defendants had voluntarily joined "a hostile intelligence bureau" that saw "the United States as its prime and main enemy."239 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."240 It maintained that the Cuban government sponsored "book bombs," "telephone threats of car bombs," and "sabotage," and "killed four innocent people."241 It suggested that the Cuban government used "goon squads" to torture its critics.242 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."243 It argued that the defendants were "bent on destroying the United States" and were "paid for by the American taxpayer."244 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.245 The government implied that the government of Cuba was not cooperating with the FBI.246 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.247 It maintained that the government of Cuba did not care about the occupants of the planes, and shot down the planes even though they could have forced Basulto's plane to land.248 It argued that Cuba was a "repressive regime [that] doesn't believe in any [human] rights."249 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."250

Campa and Hernandez's objections throughout the closing arguments were sustained.251 The jury was subsequently instructed to consider only the evidence admitted during the trial, and to remember that the lawyers' comments were not evidence.252

H. Jury Conduct and Concerns During the Trial

Five months into the trial, when one seated juror had a conflict, the court discussed the possibility of removing a juror who had a two-day conflict and seating one of the alternates.253 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, with Gonzalez, Guerrero, and Medina's attorneys, maintained that it would be unreasonable to refuse to accommodate the juror after her length of service and her request to complete the trial.254 The district court granted the recess.255

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.256 On 13 March 2001, the court noted that the day before, cameras were focused on the jurors as they left the building.257 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.258 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.259

For deliberations, the jury was moved to another floor of the courthouse with controlled access.260 During the deliberations, members of the jury were filmed entering and leaving the courthouse, and the media requested the names of the jurors.261 The jurors expressed concern that they were filmed "all the way to their cars and [that] their license plates had been filmed."262 To protect the jurors' privacy, the district court arranged for the jurors to come into the courthouse by private entrance and provided them with transportation to their vehicles or to mass transit.263 The jury spent five days in deliberations and, during that period of time, asked for and was given a comprehensive list of all of the admitted evidence.264

I. Motions for New Trial

In late July and early August 2001, following the trial, 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 despite the district court's efforts during voir dire.265 Campa asserted that the jury's failure to ask questions and its quick verdicts in the complex, almost seven-month trial suggested that it was subject to community pressure and prejudice.266 Campa and Gonzalez also maintained that the jury was unduly prejudiced by the remarks of witness Jose Basulto. According to Campa and Gonzalez, Basulto's testimony implied that Hernandez's counsel was "either a spy, a representative of the Cuban Government, a communist, or in the employ of the Cuban intelligence service."267 The district court denied the motions for new trial. 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."268 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 return of verdict."269

In December 2001, Guerrero, Hernandez, and Medina were sentenced to life, Campa was sentenced to 228 months, and Gonzalez was sentenced to 15 years.270

In November 2002, Guerrero renewed his motion for a new trial based on newly discovered evidence; the motion was adopted by Campa, Gonzalez, Hernandez, and Medina.271 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 submitted an appendix to support his argument.272 He also argued that the 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 Ramirez, the plaintiff, a Hispanic employed by the INS, alleged a hostile work environment, unlawful retaliation, and intimidation from his non-Hispanic fellow employees' hostility resulting from the INS's 22 April 2000 removal of Elian Gonzalez from the United States and his return to his father in Cuba.273 Within the Ramirez motion for change of venue, the government noted that:

[T]he 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].274

The government argued 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 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.275 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."276 They noted that, "[w]hile not requested," the court also had the discretion to transfer the trial to another judicial district.277 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."278 When the district court asked whether a transfer of 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."279

The appendix filed in support of the motion for new trial included an affidavit by Professor Moran, news articles, and reports by Human Rights Watch regarding threats to the freedom of expression within the Miami Cuban exile community.280 Moran stated that he had previously had contact with the district judge in an earlier, unrelated litigation in which she had "excoriated" him for interviewing jurors after a trial and threatened the attorneys who had retained him.281 Guerrero included a letter from Moran to the district court in which he offered "assist[ance]" to the district court "regarding (change of venue) surveys."282 In Moran's affidavit, he explained that he did not provide a copy of his letter to the district judge to Guerrero's counsel because he was upset that he was not timely paid for his work by the district court.283 The news articles addressed the numerous incidents of violence and threats by anti-Cubans in the decade preceding the trial.284 The Human Rights Watch reports covered harassment and intimidation suffered by Miami Cuban exiles in expressing moderate political views as to Cuban relations or Fidel Castro's government.285 The motion for new trial was also supported by 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.286 By affidavit, Dr. Brennan characterized the results of a poll of Miami Cuban-Americans as reflecting "an attitude of a state of war... against Cuba."287 She reviewed Moran's survey and stated that it "accurately reflects profound existing bias against those associated with the Cuban government in Miami[-]Dade County" where "[p]otential jurors... would be impervious to traditional methods of detecting and curing bias through voir dire and court instruction."288 Brennan determined that, although 49.7 percent of the local Cuban population strongly favored direct United States military action to overthrow the Castro regime, only 26 percent of the local non-Cuban population and 8.1 percent of the national population favored such action.289 Similarly, 55.8 percent of the local Cuban population strongly favored military action by the exile community to overthrow the Cuban government but only 27.6 percent of the local non-Cuban population and 5.8 percent of the national population favored such action.290 She concluded that there was "an attitude of a state of war between the local Cuban community against Cuba" which had "spilled over to the rest of the community" and had a "substantial impact on the rest of the Miami-Dade community."291 She found that the documented community bias showed a "deeply entrenched body of opinions [so entrenched as to often not be consciously held] that would hinder any jury in Miami-Dade County from reaching a fair and impartial decision in this case."292

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... even if the jury were composed entirely of non-Cubans, as it was in this case."293 His conclusion was based on a number of factors, including the demographics of the area and the cohesiveness, political impact, interests, and emotional concerns of the Cuban community. Specifically, he noted that "persons of Cuban birth or descent represent the largest single racial/ethnic/national origin group in the venue group in Miami-Dade County, comprising two out every seven residents."294 He explained that the Cubans created a "true ethnic enclave" which exercised strong economic and political influence within the Miami-Dade County community as evidenced by the establishment of major institutions such as the Cuban American National Foundation, the Hispanic Builders Association, the Latin Chamber of Commerce, and the Latin Builders Association and the election of numerous Cuban-American public officials including the Miami mayor, city and county managers, city commissioners, state legislators, members of the United States Congress, mayors and city commissioners and councilpersons in other local cities and towns, and leaders at local universities.295 The Cuban community's "most overriding concern: the ongoing struggle for the recovery of their homeland" had been "injected" into the Miami-Dade County community to the extent that it took "center stage."296 Pérez stated that the issue was characterized by an "uncompromising hostility towards the Cuban government" and included an intolerance toward opposing views which brought economic, political, social pressure on the dissenting individual or group.297 He reported that "[t]here was a long history of threats, bomb scares, actual bombings, and even murders directed at" individuals and groups perceived to have a "softness" toward Castro's regime.298 He also noted that, while many Cubans and non-Cubans had expressed dissenting views on the fate of Elian Gonzalez and on the United States policy toward Cuba, the defendants' case concerned "[t]he 1996 shootdown [which] was uniformly repudiated in Miami" and thus approached a "taboo, a position that no one would want to take, or even appear to take."299

The district court denied the motion, stating that "the situation in Ramirez differed from the facts of this case in numerous ways" because 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 more attention here in Miami and worldwide."300 Also, the district court noted that the government's position in Ramirez "was premised specifically upon the facts of that case, including that the plaintiff had... stirred up extensive publicity in the local media focusing directly on the facts he alleged in the lawsuit."301 It concluded that the government's arguments "in Ramirez do not in any way demonstrate prosecutorial misconduct in the instant case."302 The district court did not consider the "interests of justice" issue and thus declined to consider any of the exhibits submitted in support of this argument, including Dr. Brennan's survey and conclusions and Dr. Pérez's study.303

II. DISCUSSION

On appeal, Campa, Gonzalez, Guerrero, Hernandez, and Medina argue that the district court's denial of their motions for change of venue violated Federal Rule of Criminal Procedure 21(a), denied them a fair trial, and undermined the reliability of the verdicts.304 They contend that the district court ignored the unique confluence of demographics, politics, and culture in the Miami community, the strong anti-Castro sentiment in that community, and the history of violence within the Cuban-exile community. They maintain that a new trial was warranted because of the government's use of inflammatory statements during closing arguments.305 Campa, Gonzalez, Guerrero, Hernandez, and Medina contend that the district court abused its discretion in denying the motion for new trial and change of venue because it failed to properly consider the newly discovered evidence which supported the argument that the defendants were unable to receive a fair trial before an impartial jury in Miami.306 They posit that the district court abused its discretion by denying the requests for an evidentiary hearing to present additional evidence regarding irregularities with expert witness Moran.

A. Denial of Motion for Change of Venue

We conduct a multi-level review on the denial of a motion for change of venue. We review the district court's interpretation of the Federal Rules of Criminal Procedure de novo, see United States v. Noel, 231 F.3d 833, 836 (11th Cir. 2000) (per curiam), and application of Rule 21(a) for abuse of discretion, see United States v. Williams, 523 F.2d 1203, 1208 (5th Cir. 1975).307. However, "[w]hen a criminal defendant alleges that pretrial publicity precluded a trial consistent with the standards of due process," we are bound to "undertake an independent evaluation of the facts established in support of such an allegation." Id.

"A fair trial in a fair tribunal is a basic requirement of due process," requiring not only "an absence of actual bias," but also an effort to "prevent even the probability of unfairness." In re Murchison, 349 U.S. 133, 136, 75 S. Ct. 623, 625 (1955); see also Sheppard v. Maxwell, 384 U.S. 333, 362, 86 S. Ct. 1507, 1522 (1966) ("Due process requires that the accused receive a fair trial by an impartial jury free from outside influences."). A juror's verdict "must be based upon the evidence developed at the trial" "regardless of the heinousness of the crime charged, the apparent guilt of the offender or the station in life which he occupies." Irwin v. Dowd, 366 U.S. 717, 722, 81 S. Ct. 1639, 1642 (1961).

A federal criminal defendant's motion for change of venue based on prejudice is governed by Federal Rule of Criminal Procedure 21. Upon such a motion, the court must transfer the proceeding against that defendant 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. Fed. R. Crim. P. 21(a).308 Our review of the denial of a change of venue motion is guided by a due process analysis. See United States v. Fuentes-Coba, 738 F.2d 1191, 1194 (11th Cir. 1984).

When the jurors are to be drawn from a community which is "already permeated with hostility toward a defendant," whether that hostility is a result of prejudicial publicity or other reasons, the court should examine the various methods available to assure an impartial jury. Groppi v. Wisconsin, 400 U.S. 505, 509-10, 91 S. Ct. 490, 493 (1971). Those methods include granting a continuance to allow "the fires of prejudice [to] cool," the exercise of peremptory and for cause challenges to the venire to exclude jurors who exhibit the prejudices of their communities, and granting a change of venue when the community has been repeatedly and deeply exposed to prejudicial publicity. See id. at 510, 91 S. Ct. at 493.

While a change of venue or a continuance should be granted when prejudicial pretrial publicity threatens to prevent a fair trial, a new trial should be ordered if publicity during the proceedings threatens the fairness of the trial. See Sheppard, 384 U.S. at 363, 86 S. Ct. at 1522. A fair trial is denied when a court refuses to grant a request for change of venue despite pretrial publicity and pervasive community exposure to the crime causes a trial to be a "hollow formality." Rideau v. Louisiana, 373 U.S. 723, 726, 83 S. Ct. 1417, 1419 (1963). To ensure that a defendant will "be tried in an atmosphere undisturbed by... a wave of public passion," Irvin, 366 U.S. at 728, 81 S. Ct. at 1645, a court is required, upon a criminal defendant's motion, to transfer the proceedings "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." Fed. R. Crim. P. 21(a). It is unnecessary to determine whether prejudice is disclosed during voir dire if the evidence reflects a "generally hostile atmosphere of the community" which causes the jurors to "inherently suspect circumstances of ... prejudice against a particular defendant." Pamplin v. Mason, 364 F.2d 1, 6, 7 (5th Cir. 1966). Further, where community hostility is prevalent, "[i]t is unnecessary to prove that local prejudice actually entered the jury box." Id. at 6. If 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." Id. at 7; see also Williams, 523 F.2d at 1209 n.10 (stating that although voir dire examination results "are an important factor in gauging the depth of community prejudice, continual protestations of impartiality... are best met with a healthy skepticism from the bench").

In Irwin, the Supreme Court held that a defendant was entitled to a change of venue even though each individual juror had specifically claimed the capacity to be fair and impartial. It noted:

"No doubt each juror was sincere when he said that he would be fair and impartial to petitioner, but psychological impact requiring such a declaration before one's fellows is often its father. Where so many, so many times, admitted prejudice, such as statement of impartiality can be given little weight." Irwin, 366 U.S. at 728, 81 S. Ct. at 1645. "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." Pamplin, 364 F.2d at 5. Mindful that the first and best judge of community sentiment and juror indifference is the trial judge, an appellate court should "interfere only upon a showing of manifest probability of prejudice." Bishop v. Wainwright, 511 F.2d 664, 666 (5th Cir. 1975).

Presumed prejudice has been found "where prejudicial publicity so poisoned the proceedings that it was impossible for the accused to receive a fair trial by an impartial jury... and the press saturated the community with... accounts of the crime and court proceedings." United States v. Capo, 595 F.2d 1086, 1090 (5th Cir. 1979). Factors to be considered in determining prejudice include the extent of the dissemination of the publicity, the character of that publicity, the proximity of the publicity to the trial, and the familiarity of the jury with the charged crime.309 See Williams, 523 F.2d at 1209-10. Presumed prejudice may be rebutted where the jury is shown to be capable of sitting impartially. See Knight v. Dugger, 863 F.2d 705, 707, 723 (11th Cir. 1988); Coleman v. Kemp, 778 F.2d 1487, 1542 n.25 (11th Cir. 1985);.

If a movant "adduces evidence of inflammatory, prejudicial pretrial publicity that so pervades or saturates the community as to render virtually impossible a fair trial by an impartial jury drawn from that community, jury prejudice is presumed and there is no further duty to establish bias." Mayola v. Alabama, 623 F.2d 992, 997 (5th Cir. 1980) (citation and internal quotations omitted). Although such presumed prejudice is only rarely applied, the successful movant need not show that the jury was actually prejudiced by the pervasive community sentiment or that the jurors were actually exposed to any publicity, but must show that, first, "the pretrial publicity was sufficiently prejudicial and inflammatory and second that the prejudicial pretrial publicity saturated the community where the trial was held." Spivey v. Head, 207 F.3d 1263, 1270 (11th Cir. 2000); Mayola, 633 F.2d at 997. The movant bears the extremely heavy burden of proving that the pretrial publicity deprived him of his right to a fair trial. See Coleman, 778 F.2d at 1489, 1537. Just as issues involving prejudice from publicity require a review of the "special facts" of each case, Marshall v. United States, 360 U.S. 310, 312, 79 S. Ct. 1171, 1173 (1959) (per curiam), a review of presumed prejudice requires a review of the totality of the circumstances. See Murphy v. Florida, 421 U.S. 794, 798-99, 95 S. Ct. 2031, 2035-36 (1975). Further, a court considering a change of venue motion must review all of the circumstances and events occurring before and during the trial and their cumulative effect. See Williams, 523 F.2d at 1206 n.7.

One of the matters to consider in reviewing the totality of the circumstances is an extensive voir dire. See Patton v. Yount, 467 U.S. 1025, 1029, 1034, 104 S. Ct. 2885, 2888, 2890 (1984); Jordan v. Lippman, 763 F.2d 1265, 1276 (11th Cir. 1985) (noting "the fundamental importance of voir dire as a tool for insuring the right to an impartial jury"). Presumed prejudice can be shown through admitted prejudice or the demeanor and credibility of the venire. See Patton, 467 U.S. at 1029, 1038, 104 S. Ct. at 2888, 2892.

Where, however, the court reviewed an extensive public opinion survey of potential jurors and a purported jury prejudice expert's analysis of media coverage, where a thorough voir dire was conducted by the court and counsel, and where the jury panel was accepted by counsel without the renewal of a motion for change of venue, a defendant's rights were held to be sufficiently safeguarded. See Fuentes-Coba, 738 F.2d at 1194-95. Further, the presumption of prejudice was not found where, although "virtually every venireperson and actual juror had heard or read accounts of the case," only a few of the venirepersons indicated a preconceived opinion about the defendant's guilt or innocence, the venirepersons with preconceived opinions who did not believe that they could set their opinions aside were excused for cause, and the extensive publicity was neither inflammatory nor pervasive. Ross v. Hopper, 716 F.2d 1528, 1541 (11th Cir. 1983). If a party fails to demonstrate either actual or pervasive community prejudice, the absence of juror prejudice may also be indicated by the failure of a party to use all of its allotted peremptory challenges. See United States v. Alvarez, 755 F.2d 830, 859 (11th Cir. 1985); Dobbert v. Florida, 432 U.S. 282, 303-04, 97 S. Ct. 2290, 2303 (1977). Further, a lack of juror prejudice can be presumed when a defendant fails to challenge the district court's voir dire or move for a change of venue after the voir dire. See United States v. Yousef, 327 F.3d 56, 90 (2d Cir. 2003). In assessing a change of venue request based on pretrial publicity, the existence of overwhelming evidence of guilt is not dispositive. See Coleman, 778 F.2d at 1541.

Despite the district court's numerous efforts to ensure an impartial jury in this case, we find that empaneling such a jury in this community was an unreasonable probability 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 venue­some 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 Cuba­flooded Miami both before and during this trial.310 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 concerns of the Cuban exile community. It is uncontested that the publicity concerning Elian Gonzalez continued during the trial, "arousing and inflaming" passions within the Miami-Dade community. Despite the district court's 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 of that of Elian Gonzalez. 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 required. 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 the inflamed community passions.

B. Denial of New Trial

We review a district court's denial of a motion for new trial for abuse of discretion. See United States v. Fernandez, 136 F.3d 1434, 1438 (11th Cir. 1998). A district court is authorized to grant a new trial "if the interests of justice so require" in extraordinary circumstances and, if the motion is based on newly discovered evidence, if a motion for new trial is filed within three years of the verdict. See Fed. R. Crim. P. 33(a) and (b)(1) (2002).311 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. See United States v. DiBernardo, 880 F.2d 1216, 1224 (11th Cir. 1989). The newly discovered evidence is not limited to just the question of the defendant's innocence, but can include other issues of law, See United States v. Beasley, 582 F.2d 337, 339 (5th Cir. 1978) (per curiam), including questions of the fairness of the trial. See United States v. Williams, 613 F.2d 573, 575 (5th Cir. 1980). Consideration of a motion for new trial based on newly discovered evidence can also include a review of evidence obtained post-trial. See United States v. Devila, 216 F.3d 1009, 1013, 1017 (11th Cir. 2000) (per curiam), vacated in part on other grounds, 242 F.3d 995, 996 (2001).

The grant of a new trial may be based on pretrial publicity, a prosecutor's improper closing argument, and the combined effect of publicity and prosecutorial zeal. Thus, we thus "widen the breadth of our consideration" to determine whether "these two factors operating together deprived the [defendant] of a fair trial." Williams, 523 F.2d at 1204-05, 1209; see also 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).

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. United States v. Wilson, 149 F.3d 1298, 1303 (11th Cir. 1998). A prosecutor may not make improper assertions, insinuations, or suggestions that could inflame the jury's prejudices or passions. United States v. Rodriquez, 765 F.2d 1546, 1560 (11th Cir. 1985). Such an obligation includes a "duty to refrain from improper methods calculated to produce a wrongful conviction." United States v. Crutchfield, 26 F.3d 1098, 1103 (11th Cir. 1994) (internal citation omitted). A trial may be rendered fundamentally unfair by the prosecution's use of factually contradictory theories. 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).312 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." United States v. Masters, 118 F.3d 1524, 1525 & n.4 (11th Cir. 1997) (per curiam). 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. United States v. Espinosa-Hernandez, 918 F.2d 911, 914 (11th Cir. 1990) (per curiam).

We also note that the rule against the use of evidence of other crimes or bad acts by a defendant is intended to prevent a conviction based on the theory of "Give a dog an ill name and hang him." United States v. Boyd, 446 F.2d 1267, 1273 (5th Cir. 1971) (citation and internal punctuation omitted). The interest of the United States Attorney, as representative of a sovereignty whose obligation is to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore in a criminal prosecution is not that it shall win a case, but that justice shall be done.... He may prosecute with earnestness and vigor­indeed, he should do so. But, while he may strike hard blows, he is not at liberty to strike foul ones. It is as much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one. Berger v. United States, 295 U.S. 78, 88, 55 S. Ct. 629, 633 (1935). Because "the average jury... has confidence that these obligations will be faithfully observed,... improper suggestions [and] insinuations... are apt to carry much weight against the accused when they should properly carry none." Id. at 88, 55 S. Ct. at 633. "Where such conduct was pronounced and persistent, with a probable cumulative effect upon the jury which can not be disregarded as inconsequential[,] [a] new trial must be awarded." Id. at 89, 55 S. Ct. at 633.

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 improper prosecutorial references. 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 waters between Cuba and the Florida Keys." Alejandre, 996 F. Supp. at 1242. In Ramirez, the government not only recognized the effect of the Elian Gonzalez matter on the community, but also that the publicity continued through 2002. See supra at. If the effect of those inflamed passions is clear in an employment discrimination action against the agency which contributed to Elian Gonzalez's removal and which 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, the defendants' convictions are REVERSED and we REMAND for a new trial.

The court is aware that, for many of the same reasons discussed above, the reversal of these convictions will be unpopular and even offensive to many citizens. However, the court is 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. The court is cognizant that its judgment today will be received by those citizens with grave disappointment, but is equally confident of our shared commitment to scrupulously protect our freedoms. The Cuban-American community is a bastion of the traditional values that make America great. Included in those values are the rights of the accused criminal that insure a fair trial. Thus, in the final analysis, we trust that any disappointment with our judgment in this case will be tempered and balanced by the recognition that we are a nation of laws in which every defendant, no matter how unpopular, must be treated fairly. Our Constitution requires no less.

***

End Notes

[Note: Text run together represents phrases underlined for emphasis in the original. This unavoidably resulted in some long lines.-NY Transfer News, August 9, 2005]

1 The defendants raise numerous other issues unrelated to the change of venue. Campa, Gonzalez, Guerrero, Hernandez, and Medina argue prosecutorial misconduct regarding the misconduct 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 IntelligenceSurveillanceAct,Batson violations,insufficiencyofthe evidence regardingthe conspiracy to transmit national defense information to Cuba, improper denial of a jury instruction regarding specific intent, and sentencing errors. Campa, Gonzalez, and Medina contend that the evidence was insufficient on the counts relating to violations of the Foreign Services Registration Act. Campa and Guerrero maintain that the district court improperly denied their jury instruction on necessity and justification. Hernandez raises the denial of a motion to dismiss Count III based on Foreign Sovereign Immunities Act jurisdictional grounds and insufficiency of the evidence for conspiracy to commit murder. Because we reverse their convictions based on the denial of their motions relating to change of venue, we do not address these additional issues.

2 Section 951 states:

(a) Whoever, other than a diplomatic or consular officer or attache, acts in the United States as an agent of a foreign government without prior notification to the Attorney General if required in subsection (b), shall be fined under this title or imprisoned not more than ten years, or both.

(b) The AttorneyGeneral shall promulgate rules and regulations establishing requirements for notification. 18 U.S.C. § 951 (a) and (b).

In 28 C.F.R. §§ 73.1, the Attorney General set forth definitions for the terms used in the statute:

(a) The term agent means all individuals acting as representatives of, or on behalf of, a foreign government or official, who are subject to the direction or control of that foreign government or official, and who are not specifically excluded by the terms of the Act or the regulations thereunder.

(b) The term foreign government includes any person or group of persons exercising sovereign de facto or de jure political jurisdiction over any country, other than the United States, or over anypart of such country, and includes anysubdivision of any such group or agency to which such sovereign de facto or de jure authority or functions are directly or indirectly delegated. Such term shall include any faction or body of insurgents within a country assuming to exercise governmental authority whether such faction or body of insurgents has or has not been regarded by the United States as a governing authority.

(c)Thetermpriornotificationmeansthenotificationletter,telex,orfacsimile must be received by the addressee named in §§ 73.3 prior to commencing the services contemplated by the parties. 18 C.F.R. § 73.1(a)-(c).

Foreign agents are to provide notification to the Attorney General as follows:

(a) Notification shall be made by the agent in the form of a letter, telex, or facsimile addressed to the Attorney General, directed to the attention of the Registration Unit of the Criminal Division, except for those agents described in paragraph[] (b)... of this section. The document shall state that it is a notification under 18 U.S.C. 951, and provide the name or names of the agent making the notification, thefirm name, if any, and thebusiness address or addresses of the agent, the identity of the foreign government or official for whom the agent is acting, and a brief description of the activities to be conducted for the foreign government or official and the anticipated duration of the activities. Each notification shall contain a certification, pursuant to 28 U.S.C. 1746, that the notification is true and correct.

(b) Notification by agents engaged in law enforcement investigations or regulatoryagencyactivityshall bein the form of aletter, telex, or facsimile addressed to the Attorney General, directed to the attention of Interpol-United States National Central Bureau. Notification by agents engaged in intelligence, counterintelligence, espionage,counterespionageorcounterterrorismassignmentorserviceshallbeinthe form of a letter, telex, or facsimile addressed to the Attorney General, directed to the attention of the nearest FBI Legal Attache. In case of exceptional circumstances, notification shall be provided contemporaneously or as soon as reasonably possible by the agent or the agent's supervisor. The letter, telex, or facsimile shall include the information set forth in paragraph (a) of this section.

...

(d) Any subsequent change in the information required by paragraph (a) of this section shall require a notification within 10 days of the change.

(e)Notification under18 U.S.C. 951shall be effective onlyif it has been done in compliance with this section, or if the agent has filed a registration under the Foreign Agents Registration Act of 1938, as amended, 22 U.S.C. 611, et seq., which provides the information required by paragraphs (a) and (d) of this section. 28 C.F.R. § 73.3 (a), (b), (d), (e).

Under 18 U.S.C. § 371:

If two or more persons conspire either to commit any offense against the United States, or to defraud the United States, or any agency thereof in any manner or for any purpose, and one or more of such persons do any act to effect the object of the conspiracy, each shall be fined under this title or imprisoned not more than five years, or both.

3 R1-224 at 3-4.

4 Id. at 11.

5 Id.. 18 U.S.C. § 794(a) provides that:

Whoever, with intent or reason to believe that it is to be used to the injury of the United States or to the advantage of a foreign nation, communicates, delivers, or transmits, or attempts to communicate, deliver, or transmit, to any foreign government, or to any faction or party or military or naval force within a foreign country, whether recognized or unrecognized by the United States, or to any representative, officer, agent, employee, subject, or citizen thereof, either directly or indirectly, any document, writing, code book, signal book, sketch, photograph, photographic negative, blueprint, plan, map, model, note, instrument, appliance, or information relating to the national defense, shall be punished by death or by imprisonment for anyterm of years or for life, except that the sentence of death shall not be imposed unless the jury or, if there is no jury, the court, further finds that the offense resulted in the identification bya foreign power (as defined in section 101(a) of the Foreign Intelligence Surveillance Act of 1978) of an individual acting as an agent of theUnited States and consequentlyin the death of that individual, or directly concerned nuclear weaponry, militaryspacecraftor satellites, earlywarningsystems, or other means of defense or retaliation against large-scale attack; war plans; communications intelligence or cryptographic information; or any other major weapons system or major element of defense strategy.

18 U.S.C. § 794(c) states:

If two or more persons conspire to violate this section, and one or more of such persons do any act to effect the object of the conspiracy, each of the parties to such conspiracy shall be subject to the punishment provided for the offense which is the object of such conspiracy.

Under 18 U.S.C. § 2:

(a) Whoever commits an offense against the United States or aids, abets, counsels, commands, induces or procures its commission, is punishable as a principal.

(b) Whoever willfully causes an act to be done which if directly performed byhim or another would be an offense against the United States, is punishable as a principal.

6 Id. at 23.

7 18 U.S.C. § 1111 states:

(a)Murderistheunlawfulkillingofahumanbeingwithmaliceaforethought. Every murder perpetrated by poison, lying in wait, or any other kind of willful, deliberate, malicious, and premeditated killing; or committed in the perpetration of, or attempt to perpetrate, any arson, escape, murder, kidnapping, treason, espionage, sabotage, aggravated sexual abuse or sexual abuse, child abuse, burglary, or robbery; or perpetrated as part of a pattern or practice of assault or torture against a child or children; or perpetrated from a premeditated design unlawfully and maliciously to effect the death of any human being other than him who is killed, is murder in the first degree.

Any other murder is murder in the second degree.

(b) Within the special maritime and territorial jurisdiction of the United States,

Whoever is guilty of murder in the first degree shall be punished by death or by imprisonment for life;

Whoever is guiltyof murderin the second degree, shall be imprisoned forany term of years or for life.

Conspiracy to murder is addressed in 18 U.S.C. § 1117:

If two or more persons conspire to violate section 1111, 1114, 1116, or 1119 of this title, and one or more of such persons do any overt act to effect the object of the conspiracy, each shall be punished by imprisonment for any term of years or for life.

8 Fraud and misuse of passports and visas is governed by 18 U.S.C. § 1546:

(a) Whoever knowingly forges, counterfeits, alters, or falsely makes any immigrant or nonimmigrant visa, permit, border crossing card, alien registration receipt card, or other document prescribed by statute or regulation for entry into or as evidence of authorized stay or employment in the United States, or utters, uses, attempts to use, possesses, obtains, accepts, or receives anysuch visa, permit, border crossing card, alien registration receipt card, or other document prescribed bystatute or regulation for entry into or as evidence of authorized stay or employment in the United States, knowing it to be forged, counterfeited, altered, or falsely made, or to have been procured by means of any false claim or statement, or to have been otherwise procured by fraud or unlawfully obtained; or

Whoever, except under direction of the Attorney General or the CommissioneroftheImmigrationandNaturalizationService,orotherproperofficer, knowingly possesses any blank permit, or engraves, sells, brings into the United States, or has in his control or possession anyplate in the likeness of a plate designed for the printing of permits, or makes any print, photograph, or impression in the likeness of any immigrant or nonimmigrant visa, permit or other document required for entryinto the United States, or has in his possession a distinctive paper which has been adopted by the Attorney General or the Commissioner of the Immigration and Naturalization Service for the printing of such visas, permits, or documents; or

Whoever, when applying for an immigrant or nonimmigrant visa, permit, or other document required for entry into the United States, or for admission to the United States personates another, or falsely appears in the name of a deceased individual, or evades or attempts to evade the immigration laws by appearing under an assumed or fictitious name without disclosing his true identity, or sells or otherwise disposes of, or offers to sell or otherwise dispose of, or utters, such visa, permit, or other document, to any person not authorized by law to receive such document; or

Whoever knowingly makes under oath, or as permitted under penalty of perjury under section 1746 of title 28, United States Code, knowingly subscribes as true, any false statement with respect to a material fact in any application, affidavit, or other document required by the immigration laws or regulations prescribed thereunder, or knowinglypresents anysuch application, affidavit, or other document which contains any such false statement or which fails to contain any reasonable basis in law or fact­

Shall be fined under this title or imprisoned not more than 25 years (if the offense was committed to facilitate an act of international terrorism (as defined in section 2331 of this title)), 20 years (if the offense was committed to facilitate a drug trafficking crime (as defined in section 929(a) of this title)), 10 years (in the case of the first or second such offense, if the offense was not committed to facilitate such an act of international terrorism or a drug trafficking crime), or 15 years (in the case of any other offense), or both.

9 18 U.S.C. § 1028(a)(3) provides:

Whoever, in a circumstance described in subsection (c) of this section­

....

(3) knowingly possesses with intent to use unlawfully or transfer unlawfully five or more identification documents (other than those issued lawfully for the use of the possessor), authentication features, or false identification documents

....

shall be punished as provided in subsection (b) of this section.

10 Codefendants Albert Manuel Ruiz (Count 18), Juan Pablo Roque (Count 19), John Doe No. 5 a/k/a Ricardo Villareal (Count 20), John Doe No. 6 a/k/a Remijio Luna (Count 21), Alejandro Alonso (Count 22), Nilo Hernandez (Count 23), and Linda Hernandez (Count 24) were also charged with having acted as unregistered agents, in violation of 18 U.S.C. §§ 951 and 2. Ruiz was also charged with causing Alonso (Count 22), Nilo Hernandez (Count 23), and Linda Hernandez (Count 24) to act as unregistered agents, in violation §§ 951 and 2. Roque remains unapprehended.

11 R7-978 at 3; R21 at 117.

12 R1-280 at 2; R18 at 11-12.

13 R1-280 at 3.

14 R2-303.

15 R2-317 (Guerrero), 321 (Medina), 324 (Gonzalez), 329 (Campa); R3-397 (Campa). Medina requested a change of venue "in light of evidence of pervasive communityprejudice 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.

AlthoughCampa,Gonzalez,Guerrero,andMedinahadoriginallyarguedthatthecaseshould 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.

16 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 historyof anti-Castro sentiment in Miami); R3-397 at 1; R3-453 at 1-2; R3- 455 at 2;