FILED
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
August 9, 2005
THOMAS K. KAHN
CLERK
[ PUBLISH]
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
The Honorable James L. Oakes, United States Circuit Judge for the Second Circuit, sitting *
by designation.
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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. *

PER CURIAM: The defendant-appellants, Ruben Campa, Rene Gonzalez, Gerardo Hernandez, Luis Medina and Antonio Guerrero, were convicted and sentenced for The defendants raise numerous other issues unrelated to the change of venue. Campa, 1 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 Intelligence Surveillance Act, Batson violations, insufficiency of the evidence regarding the 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.

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various 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. We agree, and 1 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 Section 951 states: 2 (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 Attorney General shall promulgate rules and regulations establishing requirements for notification. 18 U.S.C. § 951 (a) and (b).

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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) and 28 C.F.R. §§ 73.01 et seq., 2 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 any part of such country, and includes any subdivision 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) The term prior notification means the notification letter, telex, or facsimile 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, the firm name, if any, and the business 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 regulatory agency activity shall be in the form of a letter, 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, counterespionage or counterterrorism assignment or service shall be in the 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

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this section shall require a notification within 10 days of the change. (e) Notification under 18 U.S.C. 951 shall be effective only if 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. R1-224 at 3-4. 3 Id. at 11. 4

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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.” Guerrero, Hernandez, and Medina were also 3 charged with conspiring to deliver to Cuba information “relating to the national defense of the United States,” in violation of 18 U.S.C. §§ 794(a), (c), and 2 4 Id.. 18 U.S.C. § 794(a) provides that: 5 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 any term 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 by a foreign power (as defined in section 101(a) of the Foreign Intelligence Surveillance Act of 1978) of an individual acting as an agent of the United States and consequently in the death of that individual, or directl
concerned nuclear weaponry, military spacecraft or satellites, early warning systems, 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 tosuch
conspiracy shall be subject to the punishment provided for the offense which is the obect 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 by him or another would be an offense against the United States, is punishable as a prncipal.
Id. at 23. 6

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(Count 2). Gonzalez was charged with acting as an agent of the Republic of Cuba 5 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). Guerrero 6 18 U.S.C. § 1111 states: 7 (a) Murder is the unlawful killing of a human being with malice aforethought. 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 guilty of murder in the second degree, shall be imprisoned for any 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.

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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), possession of a counterfeit passport, in violation of 18 7 Fraud and misuse of passports and visas is governed by 18 U.S.C. § 1546: 8 (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 any such visa, permit, bordr
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, 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 Commissioner of the Immigration and Naturalization Service, or other proper officer, knowingly possesses any blank permit, or engraves, sells, brings into the United States, or has in his control or possession any plate 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 entry into 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 knowingly presents any such 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

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U.S.C. §§ 1546(a) and 2 (Count 4), possession of five or more fraudulent 8 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. 18 U.S.C. § 1028(a)(3) provides: 9 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.

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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 to the Attorney General (Count 13), and having caused Juan Pablo Roque (Count 19), Alejandro Alonso (Count 22), Nilo Hernandez (Count 23), and Linda Hernandez (Count 24) to have acted as unregistered foreign agents, in violation of 18 U.S.C. §§ 951 and 2. Campa was charged with possession of a counterfeit passport, in violation of 18 U.S.C. §§ 1546(a) and 2 (Count 7), possession of false identification documents, in violation of 18 §§ U.S.C. 1028(a)(3), (b)(2)(B), and (c)(3), and 2 (Count 8) , and acting as an agent of the Republic of Cuba without prior 9 notification to the Attorney General, in violation of 18 U.S.C. §§ 951 and 2 (Count Codefendants Albert Manuel Ruiz (Count 18), Juan Pablo Roque (Count 19), John Doe 10 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. R7-978 at 3; R21 at 117. 11

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17). Medina 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. A gag order was 10 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 R1-280 at 2; R18 at 11-12. 12 R1-280 at 3. 13 R2-303. 14 R2-317 (Guerrero), 321 (Medina), 324 (Gonzalez), 329 (Campa); R3-397 (Campa). 15 Medina requested a change of venue “in light of evidence of pervasive community prejudice against the accused” as documented by Professor Gary Moran’s survey which showed “public sentiment against persons alleged to be agents of Fidel Castro’s Communist government in Cuba.” R2-321 at 1-2. Moran concluded that, while there had been “several bursts of newspaper articles . . . and other media attention” surrounding the Cuban spies’ arrests, the basis for the motion was the “[v]irulent anti-Castro sentiment” in the community. Id. at 3. Although Campa, Gonzalez, Guerrero, and Medina had originally argued that the case should be moved to another judicial district, during oral argument on the motions, they agreed that they would be satisfied with a transfer of the case within the district from the Miami division to the Fort Lauderdale division. R5-586 at 2 n.1.

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whether it was a fair and unbiased venue for the trial. Medina explained that the 12 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.” The district court 13 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. The motions for change of venue were based on pretrial 15 publicity and “virulent anti-Castro sentiment” which had existed in Miami as “a R2-321 at 3; R2-316 at 2; R2-317 at 2; R2-324 at 1; R2-329 at 1; R2-334 (containing news 16 articles which detail the history of anti-Castro sentiment in Miami); R3-397 at 1; R3-453 at 1-2; R3- 455 at 2; R3-461 at 2-3. R2-329 at 1, 3; R2-334; R3-397; R3-455. 17 The following articles specifically addressing the conspiracy and the indicted defendants 18 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

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dominant value . . . for four decades.” The motions were supported by news 16 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. In 2000, a prominent Cuban-American attorney in Miami explained that 18 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. R15-1636, Ex. 9. 19 Id. 20 R2-321, Ex. A at 10. 21

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Cuban-related matters were “‘hot-button issues’” as there were over 700,000 Cuban-Americans living in Miami. Of those Cuban-Americans, 500,000 19 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. Professor Moran’s survey results showed that 69 percent of all 20 respondents and 74 percent of Hispanic respondents were prejudiced against persons charged with engaging in the activities named in the indictment. A 21 significant number, 57 percent of the Hispanic respondents and 39.6 percent of all Id. at Ex. A at 12; see id. at Ex. E at 3. 22 Id. at Ex. A at 11-12. 23 Id. at Ex. A at 13; id. at Ex. E at 3. 24 Id. at Ex. A at 13. 25 R3-397, Exs.; R4-483, Exs.; R4-498, Exs. 26 During the same period of time in which the motions for change of venue were pending, and ultimately the trial was conducted, there was a substantial amount of publicity regarding other matters of interest in the Cuban community including the conditions in Cuba and high profile legal events occurring in Miami: the Elian Gonzalez matter; the arrest of an United States immigration agent, Mariano Faget, who was accused of spying for Cuba; and a city-county ban on doing business with Cuba.

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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.” Over one-third of the respondents, 35.6 22percent, 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. The 23 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. Of 24 those respondents, 91.4 percent of the Hispanic respondents and 84.1 percent of all respondents answered “no.” Many of the articles submitted by the defendants 25 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 As to the general anti-Castro sentiments and the conditions in Cuba: Juan O. Tamayo, Former U.S. Pows Detail Torture by Cubans in Vietnam/Savage beatings bent captives to will of man dubbed ‘Fidel’, MIAMI HERALD, Aug. 22, 1999, at A1, R2-329, Ex. I; Juan O. Tamayo, Cuba toughens crackdown/‘Biggest wave of repression so far this year’, MIAMI HERALD, Nov. 11, 1999, at A1, R2-329, Ex. K; Juan O. Tamayo, Witnesses link Castro, drugs, MIAMI HERALD, Jan. 4, 2000, at B3, R2-329, Ex. J; Marika Lynch, Castro-challenging pilot is offered parade, honors, Jan. 4, 2000, at B1, R2-329, Ex. M; Jim Morin, Cuba: I cannot speak my mind (cartoon), MIAMI HERALD, Jan. 20, 2000, R2-329, Ex. P. As to Elian Gonzalez: Juan O. Tamayo, Castro Ultimatum/Return boy in 72 hours or migration talks at risk, MIAMI HERALD, Dec. 6, 1999, at 1A, R2-329, Ex. N; Sara Olkon, Gail Epstein Nieves, Martin Merzer, The Saga of Elian Gonzalez/Protest and Passion Spread to the Streets/Sit-ins block intersections and disrupt Dade traffic and Politicians, lawyers work to halt 6- year-old’s return, MIAMI HERALD, Jan. 7, 2000, 1A, I see no basis for reversing decision, Reno says and Sara Olkon, Anabelle de Gale, Marika Lynch, Pained Cuban exiles disagree on what’s best for Elian, MIAMI HERALD, Jan. 7, 2000, at 17A, U.S. Preparations for boy’s return start slowly, The Miami Herald, Jan. 7, 2000, at 18A, R2-329, Ex. O; Peaceful Rally (photo), MIAMI HERALD, Jan. 9, 2000, at 1A, R2-329, Ex. N; Jay Weaver, 3 judge gets high profile in Elian case, MIAMI rd HERALD, Feb. 23, 2000, at 1B, R3-397, Ex. A-1; Sandra Marquez Garcia, Mary ‘appears’ near Elian, MIAMI HERALD, Mar. 26, 2000, at 1B, R4-483, Ex. E-3; Alfonso Chardy, Authorities keep watch on exile groups, MIAMI HERALD, Mar. 29, 2000, at 10A, R4-483, Ex. C-3; Vigilant protestors, MIAMI HERALD, Mar. 29, 2000, at 10A, R4-483, Ex. I-3; Andres Viglucci, Jay Weaver, and Frank Davies, Dad gets visa, but no guarantees for Elian’s transfer, MIAMI HERALD, Apr. 5, 2000, at 1A, R4-483, Ex. D-3; Elaine de Valle, Media watch events closely–and get watched in return/Hot words on radio scrutinized, and Terry Jackson, Media watch events closely–and get watched in return/TV talk, news shows flocking to South Florida, MIAMI HERALD, Apr. 5, 2000 at 15A, R4-483, Ex. B-3; Karen Branch, Crowds target Reno’s home, MIAMI HERALD, Apr. 6, 2000, at 2B, R4-483, Ex. A-3; The saga of Elian/Reno wants Elian today/Boy must be at airport by 2 P.M./Defiant family refusing to comply: Andres Viglucci, Jay Weaver, and Ana Acle, Great-uncle challenges U.S. to take boy ‘by force’, and Carol Rosenberg, The Attorney general followed ‘instinct’ as final mediator, MIAMI HERALD, Apr.13, 2000, at 1A, R4-483, Ex. F-3; The saga of Elian/Family defies order/Crowd swells at Little Havana home/Judge dismisses family’s custody case/Panel will weigh request for a stay/U.S. takes no action to remove Elian: Ana Acle, In a show of solidarity, VIPs flock to visit boy, and Andres Viglucci and Jay Weaver, Reno: U.S. will explore all peaceful solutions, MIAMI HERALD, Apr. 14, 2000, at 1A, R4-483, Ex. G-3; Saga of Elian/Standoff over custody/A show of solidarity(photo), MIAMI HERALD, Apr, 14, 2000, at 20A, R4-483, Ex. H-3; Karl Ross, W. Dade home of attorney general on alert, and Police say an anonymous caller phoned in bomb threat April 13, MIAMI HERALD, Apr. 16, 2000, R4-498, Ex. A-4; Raid’s Prelude: How talks failed/Missed signals helped doom deal and Sara Olkon, Diana Marrero, and Elaine de Valle, Thousands protest seizure/Separate rally backs Reno’s actions, MIAMI HERALD, Apr. 30, 2000, at 1A, R4-498, Ex. C-4; Carol Rosenberg, INS agent targeted by death threats, MIAMI HERALD, May 6, 2000, R4-498, Ex. B-4; and In memory of mothers who died at sea (photo), MIAMI HERALD, R4-498, Ex. D-4;

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As to Mariano Faget: Elaine de Valle, Fabiola Santiago, and Marika Lynch, FBI: Official in INS spied for Cuba, MIAMI HERALD, Feb. 18, 2000, at A1, R3-397 at C-1; Amy Driscoll, Juan Tamayo, Spy bait taken instantly/Alleged Cuban agent phoned contact after receiving false FBI information, Fabiola Santiago, Aloof suspect with high clearance was ideally positioned to do harm, and Tracking Faget (photos), MIAMI HERALD, Feb. 19, 2000, at A1, R3-397 at B-1; Don Bohning, Faget’s father was a brutal Batista official, MIAMI HERALD, Feb. 19, 2000, at 21A, R3-397, Ex. G-1; Frank Davies, Cuba, U.S. still fight Cold War, MIAMI HERALD, Feb. 19, 2000, at 21A, R3-397, Ex. H-1; Juan O. Tamayo, Cuban diplomat expelled over spy link, MIAMI HERALD, Feb. 20, 2000, at A1, R3-397, at D-1; Liz Balmaseda, Spy case boosts worst suspicions, MIAMI HERALD, Feb. 21, 2000, at B1, R3-397, at F-1; Juan O. Tamayo, Cuban diplomat linked to Elian, INS spy case, MIAMI HERALD, Feb. 22, 2000, at A1, R3-397, at E-1; Juan O. Tamayo, More exiles maneuvering for business with Cuba, MIAMI HERALD, Mar. 5, 2000, at A-1, R3-455 at A-2; Ana Radelat and Jan O. Tamayo, FBI agents expel defiant Cuban envoy, MIAMI HERALD, at A-1, R3-455 at B-2. As to the business ban: Marika Lynch, Fernando Almanzar, Protest, taping set to follow Van Van show, MIAMI HERALD, Sept. 28, 1999, at 3B, and Tyler Bridges, Andres Viglucci, Miami may bar Van Van next time/County’s Penelas also opposed, MIAMI HERALD, Oct. 13, 1999, at B1, R2- 329, Ex. L; Don Finefrock, Ban on business with Cuba tightened, MIAMI HERALD, Feb. 25, 2000, at 2A, R3-397, Ex. M-1; Jordan Levin, Miami-Dade threatens to cancel film fest grant/Cuban movie collides with county law, MIAMI HERALD, Feb. 25, 2000, at 1A, R3-397, Ex. N-1; Jordan Levin, Groups ‘warned’ on Cuba resolution, MIAMI HERALD, May 15, 2000, at 1B, R4-498, Ex. E-4; Decenas De exiliados se congregaron ante la Corte Federal para reclamar el derecho de Elian Gonzalez a permanecer en EU, R3-455, Ex. E-2.

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One of the articles, which addressed a bomb threat against the Attorney General of the United States following a collapse of talks in the Elian Gonzalez case, recited a history of anti-Castro exile group violence in the Miami-Dade community: Scores of bomb threats and actual bombings have been attributed to anti-Castro exile groups dating back to the 1974 bombings of a Spanish-language publication, Replica. Two years later, radio journalist Emilio Millan’s legs were blown off in a car bomb after he spoke out against exile violence. In the early 1980s, the Mexican and Venezuelan consular offices were bombed in retaliation for their government’s establishing relations with Cuba. Since then, numerous small businesses–those promoting commerce, R4-498, Ex. A-4. 27 R3-443 at 11. 28 United States v. Hernandez, 106 F. Supp. 2d 1317 (S.D. Fla. 2000); R5-586. 29 Hernandez, 106 F. Supp. 2d at 1323-24. 30 R5-656 at 2-3. 31

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travel, or humanitarian aid to Cuba–have 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. Following oral arguments on 26 28 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. The court “decline[d] to afford 29 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. He 31 Id. at 2. 32 Id. at 3 (internal punctuation omitted). 33 Id. The following articles were included as exhibits: Rui Ferreira, Cuba helps defense at 34 spy trial, MIAMI HERALD, Aug. 18, 2000, at 1B, R5-656, Ex. A; Rui Ferreira, Funcionarios cubanos irán al juicio de los espias, NUEVO HERALD, Aug. 18, 2000, at 17A, R5-656, Ex. B; Cuba colaborará en juicio por espionaje, NUEVO DIARIO, Aug. 19, 2000, at 61, R5-656, Ex. C; Rui Ferreira, Un misterioso coronel cubano se suma al caso de los espias, NUEVO HERALD, Aug. 21, 2000, at 21A, R5-656, Ex. D; To the point/Mr. President, define “handshake”, MIAMI HERALD, Sept. 11, 2000, at 6B, R5-656, Ex. F; and Accused spy seeks release of U.S. documents, MIAMI HERALD, Sept. 12, 2000, at 33, R5-656, Ex. E. R6-723 at 2. 35

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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. He 32 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. He noted that the articles characterized the defendants as Cuban 33 agents who would call Cuban officials and citizens to testify on their behalf. The 34 district court denied reconsideration, stating that it had previously addressed the defendants’ arguments. It again explained that it could explore any potential bias 35 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 Id. at 2-3 (internal quotations omitted). 36 R6-765. 37 R70 at 7130-36; R81 at 8947-49. Although the district court did not overtly deny these 38 motions, the motion based on community events and publicity was apparently resolved by “no response” to an inquiry to the jury as to whether they had “seen, heard, read, or [spoken to anyone] about any media accounts related” to the case following the trial’s last recess. R70 at 7136. The motion based on the witness’s insinuation was resolved by an instruction to the jury that the defense attorney’s “job [wa]s to provide a vigorous defense for his client.” R81 at 8955. “[The witness]’s statement regarding [the defense attorney] was inappropriate and unfounded.” Id. at 8949. R70 at 7130. Brothers to the Rescue [“BTTR”] is “a Miami-based Cuban exile group”, 39 Hernandez, 106 F. Supp. 2d at 1318, founded by Jose Basulto in 1991 to rescue rafters fleeing Cuba in the Straits of Florida and to bring them to the United States. R80 at 8836-37.

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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. During the trial, 37 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. In February 2001, Campa 38 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.” He argued that the newspapers 39 included “an editorial by the Miami Herald that flatly condemns the Cuban Id. at 7130-31. 40 Id. at 7131. 41 Id. at 7133. 42 Id. at 7134-36. 43 Id. at 7136. 448-1009 at 2. 45 21 government for this terrorist act” and articles including quotations from CANF members discussing “at length” the facts of the trial. He maintained that “some 40 news events are so great and are so explosive . . . that any amount of instructing the jury cannot cure the taint.” The court reserved ruling pending supplementation of 41 the record and then asked whether an inquiry of the jury was requested. Campa 42 answered “[y]es” and, after the inquiry was discussed, the jury was subsequently questioned as to their exposure to the news articles. When none of the jurors 43 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.” They maintained that “[n]o amount of voir dire or instructions 45 Id. at 5. 46 Id. 47 R120 at 13894-95. 48 1SR1 at 5; 1SR2. 49 R6-766; R22. 50

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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.” In May 2001, the district court denied the pending 47 motions for change of venue on the basis of its earlier orders denying a change of venue and finding that the February 24 issues and events as well as the reporting of those th 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. In phase one, 168 jurors were screened for problems such as language and 49 hardship through a written questionnaire and oral voir dire questions. In phase 50 two, the 82 remaining prospective jurors were individually questioned regarding The district court disqualified 79 of the 168 venire persons for cause, 32 (19%) in Phase 51 1 and 22 (27%) in Phase 2 for Cuba-related animus. R22 at 111-16; R62 at 6575-76. 52 R22 at 113. 53 R22 at 111-16. During the trial, Hernandez moved to enforce the gag order and alleged 54 that two of the government witnesses had violated the order by holding a press conference with the family of one of the victims. R7-938. The district court issued a “narrowly tailored gag order” applicable to the “all [trial] participants, lawyers, witnesses, family members of the victims” clarifying that the order extended to “statements or information which is intended to influence public opinion or the jury regarding the merits of the case.” R7-978 at 7; R64 at 6759-60.

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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. The trial judge 52 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 53 the government to speak to the victims’ families regarding their conduct. The 54 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 R22 at 111-12. 55 R7 at 978 at 2-3; R21 at 117-19; R22 at 119. 56 R21 at 171. 57 R23 at 195, 196-97. This juror was later stricken for cause as a result of his personal 58 knowledge of Basulto. R24 at 537-40. R23 at 197. 59 Id. at 300, 302-04, 307, 310. 60

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tags removed, as they left the building. The district court then extended the gag 55
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. The next day, after 57 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. The district judge responded that “the 58 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.” As voir dire continued, a potential juror who evidenced substantial 59 prejudice was isolated and removed from the venire so as to eliminate contact with other potential jurors. 60 R25 at 782, 789. 61 R26 at 1068-69. 62 Id. at 1070. 63

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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 shewould not believe any witness who admitted that he had been a Cuban spy. When 61 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 Cuba–anything dealing with communism they are against,” he would suspect that “they would have a strong opinion” on the trial. He explained that he 62 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 R27 at 1277. 64 Id. at 1278, 1274, 1273. 65 R26 at 1057, 1059, 1073. 66 R27 at 1166, 1168. 67 R28 at 1452-53. 68

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case, it is going to have a profound effect on lives both here and in Cuba.” He 64 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.” Jess Lawhorn, Jr., a banker and 65 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.” Potential juror Luis Mazza said that he did not like the Cuban 66 government and asked “how could you believe” the testimony of an individual connected with the current Cuban government. Jenine Silverman believed that 67 “Fidel Castro is a dictator” and that there were “things going on in Cuba that the people are not happy about.” Jose Teijeiro thought that Castro had “messed up” 68 R26 at 1001-02. 69 R25 at 880. 70 Id. at 829-31, 834-39. 71 Id. at 829, 831, 834. 72 Id. at 743. Buker was subsequently seated on the jury and named as its foreperson. 73 Although the government notes that Campa’s attorney commented that Buker was “uninvolved or personally disconnected from the experience [of a Cuban]” and that his “general philosophical problem with communism” was “perfectly okay,” Campa’s attorney’s comment was made in the context of his argument concerning striking for cause another juror whose responses were “rooted in personal experience.” Id. at 851.

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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. Ileana Briganti thought she could be impartial, but 70 admitted that “it would be difficult” and that she did not know if she “could be fair.” She said that the case was discussed “every time my [Cuban born] parents 71 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.” David Buker stated that 72 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.” Haydee 73 The Mariel boatlift was a “freedom flotilla” in 1980 in which at least 114,900 Cuban 74 political refugees left Cuba through the harbor of Mariel on boats for resettlement in the United States. See United States v. Frade, 709 F.2d 1387, 1389 (11 Cir. 1983). th R27 at 1240-41. 75 Id. at 1242-47. 76 R25 at 790-96. 77 Id. at 795. 78 R27 at 1227-32. 79

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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 lift to rescue 74 his sister and her family from Cuba. Although she stated that she would be 75 impartial, she said that she saw “Castro as a dictator.” Maria Gonzalez, a Cuban 76 immigrant, said that she did “not approve of the regime . . . in Cuba” and was “against communism” but believed she could serve impartially. She remembered 77 the news from the television and the Miami Herald about the planes being shot down. Rosa Hernandez said that, although her father left Cuba because of 78 communism and she believed that the Cuban government was “oppressive,” she believed that she would not be prejudiced. Sister Susan Kuk was the principal of 79 the predominantly (90 percent) Cuban high school attended by the daughter of one R24 at 519-21. 80 Id. at 520-21. 81 Id. at 521-22. The district court denied the defendants’ request that Sister Kuk be excused 82 for cause. Id. at 534-36. R27 at 1148-50. 83 Id. at 1149, 1151-58. 84 R26 at 1011, 1012. 85

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of the killed BTTR pilots. She visited the pilot’s home and attended his funeral. 80 81 Despite her relationship with the pilot’s daughter, Kuk thought she “could be fair” although “it would be a little difficult.” Lilliam Lopez, was born in Cuba and 82 immigrated to the United States with her family, stated that she was “always for the U.S.” and “against the Republic of Cuba,” did not like Cuba being a communist country, and had relatives living in Cuba. She had a problem with the case 83 because it involved “espionage against the U.S.” but indicated that she could set aside her feelings to serve on the jury. John McGlamery commented that he had 84 “no prejudices” but “live[d] in a neighborhood where there [we]re a lot of Cubans” and was “acquainted with people that come from Cuba. That is universal in Dade County.” When asked whether he would be concerned about community 85 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 Id. at 1012 86 Id. at 1018-19. 87 Id. at 1013. 88 Id. at 1021-22. 89 Id. at 1023, 1027-28, 1032. 90

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in the community would probably have things to say about it.” He stated that “it 86 would be difficult given the community in which we live” “to avoid hearing somebody express an opinion” on the case and to follow a court’s instruction to not read, listen to, or otherwise expose himself to information about the case. His 87 opinion about the Cuban government was “not favorable” as it was “not a democracy” and was “guilty of assorted [human rights] crimes.” Hans 88 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.” He later, however, admitted to having biases against the Cuban 89 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 Id. at 1024-27, 1030. 91 Id. at 1026. 92 R27 at 1139-41, 1143-48. 93 Id. at 1142. 94 Id. at 1140, 1146-47 (O remembered reading about the case but did not remember specific 95 information).

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face “personal criticism” and media coverage, and because he had concerns for what might happen after a verdict was returned. He believed the case to be “a 91 high profile case” and that he had been videotaped by the media when leaving the courthouse. Angel De La O, who was born in Cuba and immigrated to the United 92 States with his parents, initially stated that he did not think he “could make a fair judgment” in the case and would be prejudiced because he had “a lot of family ties in Cuba” including uncles, aunts, and cousins but later answered that he could set aside his concerns if selected for the jury. He was troubled about returning a 93 verdict in the case based on his concern for something happening to his “family . . . in Cuba” and the notoriety of the case in Miami. He also said that he had “heard a 94 lot about the case . . . on the news [and from] people talking about” it. Connie 95 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 R28 at 1424-25. 96 Id. at 1433. 97 Id. at 1437. The district court denied the defendants’ request to strike Palmer for cause. 98 R28 at 1442. R25 at 818-22. 99 Id. at 820. 100 R27 at 1118-19, 1121-23, 1175-76. 101

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Florida for 36 years and I have seen many changes.” Palmer had known Sylvia 96 Iriondo, who had been a passenger in Basulto’s airplane on the day of the shootdown and who was named as a government witness, for about eight years. She 97 also knew that Iriondo was “very involved with the Brothers to the Rescue and very strongly keeping the Cuban community together in Miami.” Joseph Paolercio did 98 not think that it would affect his ability to be impartial but he “was not happy” with United States-Cuban relations following the Mariel boat lift. He did not like the 99 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. Barbara Pareira had “many close Cuban friends,” including 100 her husband’s business partner who was a member of a group that rescued Cubans fleeing the island. She believed that she could be impartial but had concerns 101 Id. at 1119-28, 1177. 102 R27 at 1120, 1122. 103 Id. at 1120. 104 Id. at 1126, 1176-77. 105 R25 at 861. Portalatin was subsequently seated as a juror. 106 R27 at 1249-50. 107 Id. at 1296-97. Yagle was subsequently seated as a juror. 108

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about returning a verdict in Miami “because of the Cuban population here.” She 102 “was a little distressed with the way that the [Cuban] exile community handled” the Elian Gonzalez matter because she did not “like the crowd mentality, the mob mentality that interferes with what I feel is a working system.” She strongly 103 believed that the Cuban government was an oppressive dictatorship. Pareira 104 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. Sonia Portalatin had a “strong” opinion about the 105 Cuban government because she was “against communism.” Leilani Triana 106 testified that, although her parents were from Cuba and her grandfather had been politically involved in Cuba before Castro, she could be impartial. Eugene Yagle 107 admitted having “a strong opinion” about the Cuban government as he could not “reconcile [him]self to that form of Government.” 108 R25 at 841-43. 109 Id. at 846. 110 R27 at 1301-08. 111 Id. at 1134-39. 112 R26 at 990-96. 113

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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. He remembered 109 hearing or reading “years back” “something about Brothers to the Rescue” and someone in the group who was a spy for the Cuban government. Luis 110 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. Miguel Hernandez’s parents and grandparents had 111 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. Florentina McCain felt sympathy for the people living in Cuba 112 but believed that she would be impartial as a juror. She knew from the media 113 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 Id. at 995. 114 R26 at 938, 945. 115 R24 at 534. 116 Id. at 535. 117 The victims’ family members attended the trial, and were seated in a designated area in 118 the courtroom. R25 at 717-18. R21 at 139; R23 at 251. 119 R24 at 458, 508-10. 120

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before voir dire. Michelle Peterson also had concerns about community reaction 114 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, maintaining that Sister Kuk attended the service as a 116 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. For example: potential juror Jessica de Arcos knew Rita and Jose 118 Basulto; potential juror Daniel Fernandez knew Jose Basulto; potential juror 119 120 R21 at 139; R23 at 254. 121 R24 at 458. 122 Id. at 373, 385-86. 123 R25 at 655, 690, 709. 124 Id. at 682-84. 125 R27 at 1254, 1382. 126 Id. at 1375-84; R28 at 1513; R29 at 1564; 1SR1 at 5-6, 11. 127

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Tim Heatly knew Jose Basulto; potential juror Sister Kuk knew government 121 witness Marlene Alejandre, the widow of one of the killed BTTR pilots; potential 122 juror Caroline Rodriguez knew Marlene Diaz, the daughter of one of the BTTR victims. The defendants also used a peremptory challenge to excuse Lazaro 123 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. The 125 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. The 126 defendants used 16 of their peremptory challenges to excuse jurors whose answers revealed biases against them. The government exercised its peremptory 127 R25 at 776-70, 809-12; R26 at 937-41. 128 R28 at 1508-11; see Baston v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712 (1986) (holding 129 that the Equal Protection Clause guarantees that members of a defendant’s race are not excluded from a defendant’s jury on the basis of race). R27 at 1373-76. 130 The selected jurors were Diana Barnes, R24 at 601-02; R25 at 800-05; Foreperson David 131 Buker, R24 at 555, 561-62, 571, 590; R25 at 741-49; Richard Campbell, R22 at 60; R26 at 1032-39; Migdalia Cento, R22 at 69-70; R27 at 1128-33; R29 at 1556, 1559-62; Omaira Garcia, R25 at 659- 61, 885-91; Sergio Herran, R22 at 147-52; R27 at 1219-25; Wilfred Loperena, R22 at 41-43, 88; R26 at 969-75; Juanito Millado, R22 at 15, 66; R27 at 1105-17; R28 at 1517-19; Gil Page, R25 at 556, 574, 583-87; R25 at 737-41; Elthea Peeples, R22 at 38-40; R26 at 956-62; Sonia Portalatin, R24 at 619; R25 at 858-65; and Deborah Vernon, R22 at 125, 142-43, 147, 153; R27 at 1233-39. Alternates were Marjorie Hahn, R22 at 131; R23 at 204-05, 250-51; R27 at 1342-50; Beverly Holland, R23 at 210-14, R27 at 1355; Miguel Torroba, R23 at 204; R27 at 1334-42; and Eugene Yagle, R22 at 144, 165-67; R27 at 1294-1300; R28 at 1517-20; R29 at 1553-57, 1601-02, 1638. Millado was excused due to family illness before the jurors were empaneled; Yagle was seated in his place. R29 at 1550- 57, 1601-02, 1638.

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challenges as to the three prospective jurors who failed to express negative views toward Cuba. Each of the Cuban-American prospective jurors was eliminated, 128 despite the government’s reverse Batson challenge. Following voir dire, 129 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 jurors were admonished not to discuss the case with 131 R21 at 44-45; R22 at 119; R116 at 13492-93. 132 R21 at 26. 133 R18 at 14. 134 Id. 135 Id. at 15. 136

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anyone and to have no contact with media accounts or anything else related to the case. The jurors were also instructed about the presumption of innocence. 132 133 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. The 134 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.” In particular, she commented 135 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.” She warned all counsel and agents associated with the case that 136 appropriate action would be taken and that the U.S. Attorney’s Office would be Id. at 14-15. 137 Id. at 17. 138 R21 at 111, 117-19; R22 at 111-16. 139 Id. at 115. 140 R22 at 119. 141 R24 at 625-26. 142 R9-1126. 143

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held responsible. She directed that “[t]his case . . . not . . . get advertised 137 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. She then 139 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, sealed voir dire 141 questions during the jury selection, and limited the sketching of witnesses for 142 their protection. It permitted, however, the media “access to all the evidence 143 Hernandez, 124 F. Supp. 2d at 704; R7-808. 144 R25 at 712-13. 145 Id. at 714. 146 Id. at 717-18. 147 R80 at 8822, 8825. 148

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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. He argued that, as 145 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.” When questioned about his 148 activities during 1995, he responded by asking Hernandez’s defense counsel R81 at 8945. 149 Id. 150

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whether he was “doing the work” of the Cuban intelligence community. At the 149 request of Hernandez’s attorney, the trial judge struck the comment and the jury was instructed to disregard the comment. Following a recess, Campa’s counsel 150 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 Id. at 8947-49. 151 Id. at 8949. In the alternative, counsel for Campa and Hernandez requested a jury 152 instruction addressing Basulto’s attack on Hernandez’s counsel’s credibility. R81 at 8949-53. The court found that the statements could affect “how the jurors view” Hernandez’s counsel and instructed the jury that Hernandez’s attorney’s “job is to provide a vigorous defense for his client. Mr. Basulto’s statement regarding [Hernandez’s counsel] was inappropriate and unfounded.” Id. at 8955. Govt. Exs. DAV 109 at 6-7; DG 101 at 2, 102 at 30, 117, 137 at 2. The Cuban 153 government maintains the following intelligence operations: the Directorate of Military Intelligence (“DIM”) under the Ministry of Revolutionary Armed Forces, and the Directorate of Intelligence (“DI”) and the Directorate of Counterintelligence (“DCI”) under the Ministry of the Interior. R44 at 3700-05, 3707. The DI collects intelligence outside of Cuba, focusing primarily on the United States; the DCI is responsible for intelligence regarding counter-revolutionary activities inside of Cuba. R44 at 3704, 3707. The DI is organized into many operational components, including M-I which handles non-military United States government agency intelligence, M-III which handles the collecting, correlating, and reporting of gathered information, M-V which handles the operation and support of “illegal” intelligence officers (“IO”s) who enter the United States illegally with a false identity and identification, M-XIX which handles counter-revolutionary individuals and organizations outside of Cuba. R44 at 3708-11, 3713; R46 at 3957.

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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 Govt. Exs. DG 107 at 23; DAV 116 at 6. The IOs, as intelligence offi