1 “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. We agree, and REVERSE their convictions and REMAND for a retrial.”

(Opinion of the US Court of Appeals for the Eleventh Circuit US vs. Ruben Campa, No. 01-17176, 03-11087, p.3)

2 “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).”

 (Idem pp. 45-47)

[168] Orlando Suarez Pineiro, a Cuban-born permanent resident of the United States, served as a captain in Alpha 66 for about six years. R90 at 10373-74. On 20 May 1993, he and other Alpha 66 members were arrested while on board a boat with weapons in the Florida Keys. Id. at 10391-92, 10397-401, 10415-16. The weapons included pistols with magazines and ammunition, 50 caliber machine guns with ammunition, rifles with clips, and an RK. Id. at 10397-400. Pineiro was tried and found not guilty of possession of a Norinko AK 47 rifle and two pipe bombs. Id. at 10424. Pineiro and other Alpha 66 members were also stopped and released while on board a boat on 10 June 1994, but their weapons and boat were seized. Id. at 10409, 10411-14. The seized weapons included a machine gun and AK 47s. Id. at 10411-14.

United States Customs Agent Ray Crump testified that, on 20 May 1993, he participated in the arrest of several men whose boat was moored at a marina in Marathon, Florida. Id. at 10429. The boat held: several handguns; automatic rifles, including one fully automatic rifle; four grenades; two pipe bombs; a 40 millimeter grenade launcher; a 50 caliber Baretta semiautomatic rifle; and a bottle printed with “Alpha 66" which contained “Hispanic propaganda . . . , . . . crayons, razors, stuff of that nature.” Id. at 10431-33, 10434. He also participated in an investigation of a vessel south of Little Torch Key, about ten miles south of Marathon, Florida, on 11 July 1993. Id. at 10433-34.

The vessel was carrying four men, numerous weapons, and “Alpha 66 type propaganda.” Id. At 10434. The weapons on the vessel included an AR 15, two 7.6 millimeter rifles and ammunition magazines. Id. at 10438. Following this investigation, the men were not arrested, and the weapons and vessel were not seized. Id. at 10438-39.

United States Customs Agent Rocco Marco said that he encountered four anti-Castromilitants on 27 October 1997, after their vessel, the “Esperanza”, was stopped in waters off Puerto Rico. R90-10449. He explained that U.S. Coast Guard officers searched the vessel and found weapons and ammunition “hidden in a false compartment underneath the stairwell leading to the lower deck.” The officers found food, water bottles, camouflage military apparel, night vision goggles, communications equipment, binoculars, two Biretta 50 caliber semiautomatic rifle with 70 rounds of ammunition, ten rounds of 357 hand gun ammunition, and magazines and clips for the firearms. R90 at 10453-59. The leader of the group, Angel Manuel Alfonso of Alpha 66, confessed to Rocco that they were on their way to assassinate Castro at ILA Marguarita, where he was scheduled to give a speech. Id. at 10452, 10467. Alfonso explained to Rocco that “his purpose in life was to kill [Castro]” and that it did not “matter if he went to jail or not. He would come back and accomplish the mission.” Id. at 10468.

Debbie McMullen, the chief investigator with the Federal Public Defender’s Office, testified that Ruben Dario Lopez-Castro was an individual associated with a number of anti-Castro organizations, including PUND and Alpha 66. R97 at 11267. Lopez and Orlando Bosch planned to ship weapons into Cuba for an assassination attempt on Castro. Id. at 11254. Bosch had a long history of terrorist acts against Cuba, and prosecutions and convictions for terrorist-related activities in the United States and in other countries. Campa Ex. R77 at 18-35.

[169] Rodolfo Frometa testified that, although he was born in Cuba, he was a citizen of the United States. R91 at 10531. He explained that he was a United States representative of a Cuban organization called Comandos F4, which was organized “to bring about political change in a peaceful way in Cuba” and included members both inside of and exiled from Cuban. Id. at 10532.He identified himself as the Commandate Jefe, or commander-in-chief, of F4 in the United States. Id. at 10534. He stated that, since 1994, all F4 members must sign a pledge that they will “respect the United States laws” and not violate either Florida or federal law. Id. at 10535. Frometa stated that, before Comandos F4, he was involved with Alpha 66, another organization supporting political change in Cuba, from 1968 to 1994 and served as their commander “because of his firm and staunch position . . . against Castro.” R91 at 10541-42. As a member of Alpha 66, Frometa was stopped by police officers and questioned regarding his possession of weapons. He was first stopped on 19 October 1993, while in a boat which had been towed to Marathon, Florida, and was questioned regarding the onboard weapons. Id. at 10564-66. The weapons included seven semi-automatic Chinese AK assault rifles and one Ruger semi-automatic mini 14 rifle caliber 223 with a scope. Id. at 10564-66. On 23 October 1993, he was again stopped

while he and others were driving a truck which was pulling a boat toward the Florida Keys. Id. At 10542-44. Frometa explained that they were carrying weapons to conduct a military training exercise in order to prepare for political changes in Cuba or in the case of a Cuban attack on the United States, and once the officers determined that their activities were legal, they were sent on their way. Id. at 10544-48, 10563. The weapons were semi-automatic and included an R15, an AK 47, and a 50 caliber machine gun. Id. at 10545-47. Frometa and several other Alpha 66 members were once more stopped and released on 7 February 1994 for having weapons on board his boat. Because a photograph of the group was “published in the newspapers” “[e]verybody in Miami” knew that they were released. Id. at 10569. On 2 June 1994, Frometa, by then a member of F4, was arrested after attempting to purchase C4 explosives and a “Stinger antiaircraft missile” in order to kill Castro and his close associates in Cuba. Id. at 10571-72, 10574-76, 10579-80. Frometa acknowledged that the use of the C4 explosive could have injured Cubans who worked at a military installation, id. at 10579, but that they had caused the “death of four U.S. citizens, the 41 people including 20 or 21 children who died; the mother of the child Elian, plus thousands and thousands who have died in the Straits of Florida.” Id. at 91-10581.

[170] Percy Francisco Alvarado Godoy and Juan Francisco Fernandez Gomez testified by deposition. R95 at 11012; R99 at 11558-59. Godoy, a Guatamalan citizen residing in Cuba,described attempts between 1993 and 1997 by affiliates of the CANF to recruit him to engage in violent activities against several Cuban targets. 2SR-708, Att. 2 at 10-13, 21-24, 27-28, 33-34, 44- 46, 61, 63-64. He said that, beginning in September 1994, he was asked to place a bomb at the Caberet Tropicana, a popular Havana nightclub and tourist attraction. Id. at 44-46. In connection with the same plot, he flew to Guatemala in November 1994 to obtain the explosives and detonators to be used and met with, among others, Luis Posada Carriles, a Cuban exile with a long history of violent acts against Cuba. Id. at 49, 52, 56-58. Unknown to the CANF members, Godoy was cooperating with the Cuban authorities, denounced their plans, and later testified at the trial of one of the conspirators in Cuba. Id. at 22, 24, 26, 31, 58-59, 65, 70, 76, 81-82, 86, 90, 109.

Gomez, a citizen and resident of Cuba, described numerous attempts between 1993 and 1997 by persons associated with the CANF to recruit him to engage in violent activities against several Cuban targets. Gomez also testified that, beginning in September 1994, he was asked to place a bomb at the Caberet Tropicana, a popular Havana nightclub and tourist attraction. In 1996 and 1998, Gomez was approached by Borges Paz of the anti-Castro organization the Ex Club, 2SR-708, Att. 1 at 9, 12-14, 20, 39; Gomez said that Paz invited him to join their organization to build and place bombs at tourist hotels and at the Che Guevara Memorial in Santa Clara, Cuba. Id. at 16, 19, 22.

After returning to Cuba, Gomez informed the Cuban authorities of the Ex Club’s plans. Id. at 20, 35-36. As a result of his work for the United States government, Gomez said that he was estranged from his family in the United States, including a daughter in Florida, and had received threatening phone calls. Id. at 64-66.

3 “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. 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.” 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.”

The evidence submitted in support of the motions for change of venue was massive. [18]”

(Idem pp. 12-14)

[18] The following articles specifically addressing the conspiracy and the indicted defendants were attached as exhibits in support of the motions for change of venue: George Gedda, Federal officials say 10 arrested, accused of spying for Cuba, MIAMI HERALD, Sept. 14, 1998, R2-334, Ex.; Manny Garcia, Cynthia Corzo, Ivonne Perez, Spies among us: Suspects attempted to blend in, Miami, MIAMI HERALD, Sept. 15, 1998, at A1, R2-334; David Lyons, Carol Rosenberg, Spies among us: U.S. cracks alleged Cuban ring, arrests 10, MIAMI HERALD, Sept. 15, 1998, at A1, R2-329, Ex. A; R2-334, Ex.; Spies among us, MIAMI HERALD, Sept. 15, 1998, at 14A, R2-329, Ex. F; Fabiola Santiago, Big news saddens, angers exile community, MIAMI HERALD, Sept. 15, 1998, R2-334, Ex.; Juan O. Tamayo, Arrest of spy suspects may be switch in tactics, MIAMI HERALD, Sept. 15, 1998, R2-334, Ex.; Javier Lyonnet, Olance Nogueras, Cae red de espionaje de Cuba/FBI viro' al revés casa de supuesto cabecilla and Pablo Alfons, Rui Ferreira, Cae red de espionaje de Cuba/Arrestan a 10 en Miami, NUEVO HERALD, Sept. 15, 1998, at A1, R2-329, Ex. B; La Habana Contra El Pentagono(“Havana versus the Pentagon”)/Estructura de la Red de Espionaje, NUEVO HERALD, Sept. 15, 1998, R2-329, Ex. C; Arrest of alleged Cuban spies demands vigorous prosecution, SUNSENTINEL, Sept. 16, 1998, at 30A, R2-329, Ex. G; Juan O. Tamayo, Miscues blamed on military’s takeover of Cuban spy agency, MIAMI HERALD, Sept. 17, 1998, at 13A, R2-334, Ex.; David Kidwell, Motion could delay trials of alleged 10 Cuban spies, MIAMI HERALD, Oct. 6, 1998, at B1, R2-334, Ex.; David Lyons, Cuban couple pleads guilty in spying case, MIAMI HERALD, Oct. 8, 1998, at A1, R2-334, Ex.; David Kidwell, Three more accused spies agree to plead guilty, MIAMI HERALD, Oct. 9, 1998, at 4B, R2-329, Ex. H; R2-334, Ex.; Carol Rosenburg, Couple admits role in Cuban spy ring, MIAMI HERALD, Oct. 22, 1998, at 5B, R2-329, Ex. H; Juan O. Tamayo, U.S.-Cuba spy agency contacts began a decade ago, MIAMI HERALD, Oct. 31, 1998, R2-334, Ex.; David Kidwell, U.S. tries to tie espionage case to planes’ downing, MIAMI HERALD, Nov. 13, 1998, at A1, R2-334, Ex.; Carol Rosenberg, Identities of 3 alleged spies still unknown, Nov. 14, 1998, at B1, R2-334, Ex.; Juan O. Tamayo, Spies Among Us/Castro Agents Keep Eye on Exiles, MIAMI HERALD, Apr. 11, 1999, R2- 329, Ex. D; R2-334, Ex.; Carol Rosenberg, Shadowing of Cubans a classic spy tale, MIAMI HERALD, Apr. 16, 1999, at A1, R2-329, Ex. E; R2-334, Ex.; Cuban spy indictment/Charges filed in downing of exile fliers/The Brothers to the Rescue Shootdown: David Lyons, Castro agent in Miami cited by U.S. grand jury, Juan O. Tamayo, Brothers to the Rescue Shootdown/Top spy planned Brothers ambush, and Elaine de Valle, Relatives: Charges fall short, MIAMI HERALD, May 8, 1999, R2-334, Ex.; Confessed Cuban spy receives seven years, MIAMI HERALD, Jan. 29, 2000, at B1, R2-355 at C- 2; Contrite Cuban spy couple sentenced, MIAMI HERALD, Feb. 3, 2000, at B5, R3-355 at D-2; Miami Spy-Hunting, MIAMI HERALD, Feb. 19, 2000, at 21A, R3-397, Ex. G-1; Carol Rosenberg, confessed Cuban spies sentenced to seven years, MIAMI HERALD, Feb. 24, 2000, at 1B, R3-397, Ex. I-1; Terrorism must not win in Brothers to the Rescue shoot-down, MIAMI HERALD, Feb. 24, 2000, at 8B, R3-397, Ex. J-1 (“More than compensation, the families want the moral sting of a U.S. criminal prosecution in federal court. So far there is only one indictment: Gerardo Hernandez, alleged Cuban spy-ring leader, charged last year with conspiracy to murder in connection to the shoot down.”); Brothers Pilots Remembered (photo), MIAMI HERALD, Feb. 25, 2000, at B1, R3-397, Ex. K-1; Marika Lynch, Shot-down Brothers remembered, MIAMI HERALD, Feb. 25, 2000, at 2B, R3-397, Ex. L-1.

4 “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. 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. 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.”

(Idem pp.68-69)

5 “Waves of public passion, as evidenced by the public opinion polls and multitudinous newspaper articles submitted with the motions for change of venue–some of which focused on the defendants in this case and the government for whom they worked, but others which focused on relationships between the United States and Cuba–flooded Miami both before and during this trial. 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.”

(Idem pp. 86-87)

6 “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. 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” and instructed the government to speak to the victims’ families regarding their conduct. 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. The district court then extended the gag order to cover the witnesses and the jurors.

Later that same day, a copy of the Miami Herald which contained an article about the case was found in the jury assembly room. 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.”

(Idem pp. 86 -87)

7 “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… 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…”

(Idem pp. 23-25)

“Other venire members indicated negative beliefs regarding Castro or the Cuban government…”

(Idem p. 27)

8 “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.

The news articles addressed the numerous incidents of violence and threats by anti-Cubans in the decade preceding the trial. 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. 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. 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.” 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.” 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. 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. 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.” 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.’

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.” 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.” He explained  that the Cubans created a “true ethnic enclave” which exercised strong economic and political influence within the Miami-Dade County  community…”

“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’.”

“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.”

(Idem pp. 72-77)

9 “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’… 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.”

“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. She then acknowledged that “[t]here is a tremendous amount of media attention for this case.”

(Idem p. 38-39)

10 “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.” (Idem p.78)

“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... and granting a change of venue when the community has been repeatedly and deeply exposed to prejudicial publicity.”

“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.”

“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’.”

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 (5 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.”

(Idem pp. 80-83)

11 “ …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.”

“The grant of a new trial may be based on pretrial publicity, a prosecutor’s

improper closing argument…”

“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 (11 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 (11 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 (11 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 (8 Cir. 2000) (holding that the prosecution’s use of contradictory theories for different defendants in a murder trial violated due process). 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.”

(Idem pp.87-90)

“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.” It argued that the defendants had voluntarily joined “a hostile intelligence bureau” that saw “the United States as its prime and main enemy.” 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.”

(Idem pp. 62-62).