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. 

2

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.

3

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).

4

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

5
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

6

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 directly

concerned nuclear weaponry, military spacecraft orsatellites, earlywarning 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 to such

conspiracy shall be subject to the punishment provided for the offense which is the object of

such conspiracy.

Under 18 U.S.C. § 2:

(a) Whoever commits an offense against the United States or aids, abets,

 counsels, commands, induces or procures its commission, is punishable as a principal.

(b) Whoever willfully causes an act to be done which if directly performed

 by him or another would be an offense against the United States, is punishable as a principal.

 Id. at 23. 6

7

(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 beingwith 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. 

8

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, 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, 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

9

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. 

10

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

11

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.

12

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 admitsrole 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

13

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 C2; 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 farthere 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

14

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.

15

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 22

percent, said that they would be worried about criticism by the community if they

served on a jury that reached a not-guilty verdict in a Cuban spy case. 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;

16
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. 

17

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

18

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

19

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. 

20

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. 44

 R8-1009 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

22

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 orinformation which is intended to influence public

opinion or the jury regarding the merits of the case.” R7-978 at 7; R64 at 6759-60. 

23

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

24

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

25

During voir dire, the venire members were questioned about their political

opinions and beliefs. Some venire members were clearly biased against Castro and

the Cuban government. Peggy Beltran was excused for cause after stating that she

would not believe any witness who admitted that he had been a Cuban spy. 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

26

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.

27

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

28

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

29

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

30

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).

31

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

32

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

33

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

34

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

35

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

36

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. 

37

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

38

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

39

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

40

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

41

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.

42

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 officers, were full-time

154

employees of the DI who were trained in all aspects of intelligence work. R44 at 3719-20. Agents

were individuals who worked as support for the IOs by providing information. The agents were

paid for that information, but were not employees of the DI. R44 at 3720. The agents were

supervised by other agents or legal or illegal officers. Id.

Guerrero functioned as both an IO and, in penetrating the Naval Air Station (“NAS”) at Key

West, Florida, as an agent. Govt. Ex. DAV 122 at 6, 10. While working at the NAS, he traveled at

least twice to the DI headquartersin Cuba for training and debriefing on militarymatters. Govt. Exs.

DG 108 at 31-33; DL 101 at 4; DL 103 at 13; DL 104 at 4; HF 136. 

 R45 at 3870-71; Govt. Exs. DG 107 at 58-67, 129 155

The NAS is the southernmost military base in the continental United States and is located 156

about 90 miles from Cuba. R74 at 7910, 7920-21. It has an active airfield and several complexes

of buildings used by the Air Force, Army, Coast Guard, Marines, and Navy. Id. at 7908-10. The

public has access to the base roadways, but not to its buildings. Id. at 7912-13, 7915-17. The base

is the primary United States military installation for conflicts in the Caribbean, and is used for

national defense including intermediate and advanced combat air training and drug interdiction. Id.

at 7910-11, 7920-22. 

Govt. Exs. HF 103; DG 107 at 12-20; DG 108 at 2-3. Southcom is one of the United 157

States Department of Defense’s five centralized geographic command centers for unified military

operations within an area ofresponsibility(“AOR”). R46 at 4009-10. As of 1987, Southcom’s AOR

covered the Caribbean, including Cuba, and Latin America. Id. at 4012-14. Southcom’s Miami

headquarters is a secure, tightly-controlled facility housing “open storage” classified top secret,

secret, and confidential materials. R46 at 4018-19.

 R103 at 11907-08, 11911-13. 158

43

agents, including agents Gonzalez and Guerrero. The Wasp Network reported 154

information to Cuba on: (1) the activities of anti-Castro organizations in MiamiDade County; (2) the operation of United States military installations including 155

those at Boca Chica Naval Air Station (“NAS”), MacDill Air Force Base 156

(“MacDill”), Barksdale Air Force Base (“Barksdale”), and the United States

Southern Command (“SouthCom”); and (3) United States political and law 157

enforcement activities. The group was also charged with intimidating Cuban- 158
 R45 at 3793-99; Govt. Exs. DG 108 at 28-29; DG 127 at 7-8; DC 101 at 11-19; Dho 101 159

at 2-6.

 Govt. Ex. HF 143. 160

 Govt Exs. DG 141 at 6-7; DAV 118 at 14-19. 161

 Govt. Exs. 384, 865. 162

 R61 at 6404-15. 163

 R73 at 7821-46; R74 at 7871-78; Govt. Ex. HF-144. 164

 R40-3197; R43 at 3628-29; R44 at 3731-32, 3764-65; Govt. Exs. 1A; DAV 101 at 29; 165

DAV 121; DG 118 at 2-3; HF 101-144. 

44

American individuals and organizations with threatening letters and telephone

calls; penetrating United States Congressional election activities; scouting and 159 160

assessing potential sources of information and possible new recruits; and 161

carrying communications, cash, and other items between Miami and other United

States-based DI officers and agents. None of the Wasp Network members 162

notified the United States Attorney General that they were acting as agents of the

Cuban government. Members of the Wasp Network and the DI frequently

163

communicated and delivered items through the Cuban delegations’ diplomatic

cover.164

The Wasp Network members evaded detection through the use of false

identities and code names, counter surveillance for contacts and communications,

and DI decrypted written and broadcast communications. Campa, Hernandez, 165
 R33 at 2145; Govt. Exs. 4; 5-1; 5-2; 5-3; 5-4; 8-1; 8-3; 8-4; 11; 12-3; 12-4; 12-5; 12-8; 166

DAV 118 at 7-12; DG 105 at 2-16; DG 125; DG 135 at 3-11; DG 136. Under their false identities,

Campa was also known as Fernando Gonzalez Llort, Oscar, or Vicky, R101 at 11714; Gonzalez was

known as Agent Castor; Guerrero was known as Lorient, Govt. Exs. DAV 102 at 1; DAV 129 at 2;

Hernandez was known as Girardo, Giro, or Manuel; and Medina was known as Allan or Ramon

Labanino; R101 at 11721-23. 

 R34 at 2321-40; R44 at 3724-26; R49 at 4677-78; R66 at 6833-35; R69 at 6981-7016; 167

Govt. Exs. 5-6; 6; 7; 9; DAV 110 at 2; DAV 118 at 12-14; DG 126 at 9-10; SF 14; SF 15; SG 34;

SG 53.

 Orlando Suarez Pineiro, a Cuban-born permanent resident of the United States, served

168

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.

45

and Medina falsely identified themselves through elaborate “legends,” or

biographies, which were supported by documents provided by the DI, and used

these documents when they dealt with United States border and law enforcement

personnel and when they obtained drivers licenses, passports, and other

identification. They also had back-up, or “reserve,” false identities in which the

166

agents used the names and other identification of United States citizens who had

visited Cuba. The agents used these back-up identities when they traveled or if

their primary “legend” was compromised.167

The Cuban exile groups of concern to the Cuban government included Alpha

66, Brigade 2506, BTTR, Independent and Democratic Cuba (“CID”), Comandos 168
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 fullyautomatic 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-Castro

militants on 27 October 1997, after their vessel, the “Esperanza”, was stopped in waters off Puerto

Rico. R90-10449. He explained that U.S. Coast Guard officers searched the vessel and found

weapons and ammunition “hidden in a false compartment underneath the stairwell leading to the

lower deck.” The officers found food, water bottles, camouflage military apparel, night vision

goggles, communications equipment, binoculars, two Biretta 50 calibersemiautomatic 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.

 Rodolfo Frometa testified that, although he was born in Cuba, he was a citizen of the 169

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

46

F4, Commandos L, CANF, the Cuban American Military Council 169 170
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. 

 Percy Francisco Alvarado Godoy and Juan Francisco Fernandez Gomez testified by 170

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.

47

(“CAMCO”), the Ex Club, Partido de Unidad Nacional Democratica (PUND) or
 R83 at 9162, 9165-67; R90 at 10373-74, 10391-92, 10397-10401, 10409, 10411-14, 171

10415-16, 10429, 10431-34, 10449, 10452-59, 10467-68; R91 at 10541-42, 10544-48, 10563-66,

10571-72, 10574-76, 10579-80; R97 at 11267, 11291-97; 2SR-708, Att. 1 at 9, 12-14, 16, 19-20, 22,

35-36, 39; Att. 2 at 10-13, 21-24, 27-28, 33-34, 44-46, 61, 63-64; Campa Exs. R-29D, R-29F, R29G, R-29H. 

 R97 at 11296-97. 172

48

the National Democratic Unity Party (NDUP), and United Command for Liberation

(CLU). Alpha-66 ran a paramilitary camp training participants for an invasion of 171

Cuba, had been involved in terrorist attacks on Cuban hotels in 1992, 1994, and

1995, had attempted to smuggle hand grenades into Cuba in March 1993, and had

issued threats against Cuban tourists and installations in November 1993. Alpha66 members were intercepted on their way to assassinate Castro in 1997. Brigade

2506 ran a youth paramilitary camp. BTTR flew into Cuban air space from 1994

172

to 1996 to drop messages and leaflets promoting the overthrow of Castro’s

government. CID was suspected of involvement with an assassination attempt

against Castro. Comandos F4 was involved in an assassination attempt against

Castro. Commandos L claimed responsibility for a terrorist attack in 1992 at a

hotel in Havana. CANF planned to bomb a nightclub in Cuba. The Ex Club

planned to bomb tourist hotels and a memorial. PUND planned to ship weapons

for an assassination attempt on Castro. Following each attack, Cuba had advised

the United States of its investigations and had asked the United States’ authorities
 Campa Exs. R-29C; R-29F; R-29H; GH Exs. 16C, 24. 173

 R83 at 9166-67. 174

 R58 at 5919, 5922-23; Govt. Exs. HF 108 at G-3, 113 at G-3. 175

 GH Ex. 37 at 2-4, 6-8. 176

 GH Ex. 18E. 177

49

to take action against the groups operating from inside the United States.173

The BTTR’s flights over Cuba were of particular concern to the Cuban

government. Sometime after 13 July 1995, the Federal Aviation Administration

(“FAA”) conveyed the Cuban government’s threats to the BTTR that unauthorized

planes flying into Cuban airspace would be forced to land or shot down. On 9 174

and 13 January 1996, BTTR dropped thousands of leaflets into Cuba, which were

printed with portions of the United Nations’ Universal Declaration of Human

Rights and which encouraged Cubans to fight for their rights. In January 1996, 175

BTTR President and Director Jose Basulto appeared on a United States-controlled

Radio Marti program broadcast into Cuba claiming responsibility for dropping

leaflets earlier that month and stating that BTTR advocated the use of civil

disobedience. The Cuban government protested to the United States about the 176

airspace violations, complained that the measures used by the FAA to impede such

flights were insufficient, and noted that unauthorized flights would be interrupted

by force.

177
 GH Ex. 18F. 178

 R76 at 8198-99, 8203-04. 179

 Id. at 8204-05. 180

50

On 22 January 1996, the FAA’s liaison to the State Department wrote the

regional FAA office in Miami regarding these Cuban airspace violations. She

stated that she had been advised of another unauthorized flight on 20 January, and

that

this latest overflight can only be seen as further taunting of the Cuban

Government. State is increasingly concerned about Cuban reaction to

these flagrant violations. They are also asking from the FAA what is

this agency doing to prevent/deter these actions . . . [and] our case

against Basulto. Worst case scenario is that one of these days the

Cubans will shoot down one of these planes and the FAA better have

all its ducks in a row.178

In early February 1996, a member of a delegation reviewing Cuban military

activities was advised by the Cuban military that it was frustrated by the lack of a

favorable response from the United States considering its repeated protests

regarding the light civilian airplane flights from Florida which were violating

Cuban airspace. Thereafter, the delegation member met with officials from the 179

United States Departments of Defense and State and advised them of what he

perceived as a warning that Cuba was considering shooting down the flights.180

On 23 February 1996, the FAA issued a “Cuba Alert” to several United
 Def. Hernandez Ex. GH, composite 18G. 181

 R83 at 9161-65, 9167-70. 182

 Id. 183

 Id. at 9168-70; Govt. Exs. 478, 479. 184

51

States agencies. In the alert, the FAA advised they had

received a call from State Dept. indicating that since Brothers to the

Rescue [BTTR] and its leader Basulto support and endorse the

Concilio Cubano [an umbrella dissent organization] it would not be

unlikely that the BT[T]R attempted an unauthorized flight into Cuban

airspace tomorrow, in defiance of the GOC [Government of Cuba] and

its policies against dissidents. State Dept. cannot confirm this will

happen and is in touch with local law enforcement agencies to better

determine what’s the situation. I’ve reiterated to State that the FAA

cannot PREVENT flights such as this potential one, but that we’ll 

alert our folks in case it happens and we’ll document it (as best we

can) for compliance/enforcement purposes.

State has also indicated that the GOC would be less likely to show

restraint (in an unauthorized flight scenario) this time around . . . .181

On 24 February 1996, Basulto scheduled a flight into the Florida Straits,

toward Cuba, in search of reported rafters. The flight plans were filed with the 182

FAA and transmitted to Cuba. At approximately 1:15 P.M., three BTTR aircraft 183

departed from the Opa-Locka, Florida, airfield: N2506, carrying Basulto and

others; N2456, piloted by Carlos Costa and carrying Pablo Morales; and N5485,

piloted by Mario de la Pena and carrying Armando Alejandre. At approximately

184

3:00 P.M., the planes crossed the 24th parallel, which marks the boundary between

the Miami and Havana Flight Information Regions and is in international airspace. 
 R83 at 9181-83; Govt. Ex. 475A at 2-3. 185

 Govt. Ex. 483 at 8-9. 186

 Id. at 10-11. 187

 Id. at 14-16. 188

 R53 at 5109-14, 5117-18; Govt. Ex. 483 at 5-7, 11, 13, 17-18, 20. The cruise ship was 189

Royal Caribbean’s “Majesty of the Seas” with about 2,600 passengers and 800 crew. R53 at 5084-

86. The first officer on the ship explained that they were on the last leg of a weekly cruise about 24

nautical miles off the north coast of Cuba during the shootdowns. Id. at 5087-89, 5109-14. A

videotape of the shootdowns made by a cruise ship passenger was apparently “played on TV many

times.” Id. at 5124.

 R53 at 5113-21, 5131-33; Govt Exs. 440, 469B, 484. 190

52

At this point, they communicated by radio with Havana Air Traffic Control

(“Havana ATC”) identifying themselves and their flights. Within minutes of the 185

crossing, Cuban military jet fighter aircraft sighted and pursued Costa’s plane in

international airspace. At 3:20 P.M., Cuban military ground control radioed that 186

the Cuban aircraft were “authorized to destroy.” Id. Accordingly, the Cuban

military aircraft fired on and destroyed the plane. A few moments later, the 187

Cuban fighter jet sighted the plane piloted by de la Pena and shot it down. The 188

shoot downs of the two BTTR planes were observed both by occupants of a fishing

boat and by the crew and passengers onboard a cruise ship. The bodies of the 189

people in the aircraft, three of whom were United States citizens, were never

recovered. Both planes were in international airspace, flying away from Cuba,

when they were shot down; they had not entered Cuban airspace. 

190
 R93 at 10750-51, 10754-55, 10783-832. The acts included an explosion on 12 April 1997 191

which destroyed the bathroom and dance floor at the discotheque Ache in the Media Cohiba Hotel,

id. at 10755, 10757, 10759; a bombing on 25 April 1997 at the Cubanacan offices in Mexico, R97

at 11318-19; the 30 April 1997 explosive device found on the 15 floor of the Cohiba Hotel, R93 th

at 10766-69, 10771; the 12 July 1997 explosions at the Hotel Nacional and Hotel Capri, both of

which created “craters” in the hotel lobbies and did significant damage inside the hotels, id. at

10786-88, 10795-801; the 4 August 1997 explosion at the Cohiba Hotel which created a crater in

the lobby and destroyed furniture; id. at 10802-05; explosions on 4 September 1997 at the Triton

Hotel, the Copacabana Hotel, the Chateau Miramar Hotel, and the Bodequita del Medio Restaurant,

id. at 10807-09, 10820; and, the discovery of explosive devices at the San Jose Marti International

Airport in a tourist van in the taxi dispatch area on 19 October 1997 and underneath a kiosk on 30

October 1997, id. at 10824-30. The explosions on 4 September killed an Italian tourist at the

Copacabana Hotel, injured people at the Chateau Miramar Hotel, the Copacabana Hotel, and at the

Bodequita del Medio Restaurant, and caused property damage at all locations. Id. at 10809-13,

10815-20, 10822-23. 

 R97 at 11316-18; Campa Exs. R57(a), R57(b) at 2, 59. 192

53

Lieutenant Colonel Roberto Hernandez Caballero, of the Ministry of Cuba

Department of State Security, testified that he investigated a number of terrorist

acts in Havana and in other locations at Cuban-owned facilities during 1997. He 191

advised Medina of the attacks in April and directed that he “[s]earch for active

information on [the acts] that [the Cubans with ties to the Cuban American Military

Council (“CAMCO”)] have, or any attempt for future similar actions [in Cuba] by

CAMCO.” In September, Hernandez notified the Cuban authorities that he had 192

received information that “one of the two brothers who had something to do with

the bomb on [an Italian tourist who was killed]” was available to meet for lunch

and that “next week they [the terrorists] would try to place a bomb in one of the

largest buildings [associated with tourism] in Cuba which is visited most by
 R97 at 11320-21. 193

 Id. at 11321; Campa Ex. R63 at 1. 194

 R93 at 10832, 10839, 10842. 195

 Id. at 10839-41; Campa Ex. R-33-MM. 196

 R40 at 3231-32, 3238-40; R46 at 4012-14; Govt. Exs. DG 103 at 3-4, HF 104 at G-3. 197

54

[Castro].” Hernandez’s contact was instructed to elaborate on the information 193

that he had obtained. As a result of the investigations, Caballero said that the 194

Cuban Department of State Security arrested some individuals, but that he believed

some of the individuals responsible for financing, planning, and organizing the

explosions lived in the United States and had not been arrested. Caballero

195

explained that, in June 1998, he provided FBI agents with documentation and

investigation materials regarding the terrorist acts between 1990 and 1998, and

received the FBI’s findings in March 1999.196

 Hernandez worked in the United States from 1994 to 1998, supervising

unregistered Cuban agents Juan Roque and Rene Gonzalez who both infiltrated the

BTTR organization, and Operation Aeropuerto which was Guerrero’s penetration

of the NAS. In late 1995 and early 1996, Hernandez participated in a plan to have

Roque return to Cuba to undermine the BTTR. He also directed an agent to apply

for a job with Southcom, and later supervised Operation Suroc which was the 197
 Govt. Exs. DG 107 at 23-24, DG 108 at 2. 198

 Govt. Ex. HF 115 at G-3. 199

 Id.; Govt. Exs. 112 at 10; DG 104 at 2; HF 116 at G-3; HF 120 at G-3, 121 at G-3; HF 200

122 at G-3; HF 123 at G-3. 

 Govt. Exs. HF 128-G03; DG 108 at 6, 8; HF 136-G-3. Operations Venicia and German 201

involved Roque’s extraction from the United States and return to Cuba to denounce BTTR.

 R49 at 4611-12; DG 102 at 42. 202

55

agents’ penetration of Southcom. In late January 1996, he received a series of 198

messages from the Cuban government announcing “Operacion Escorpion,” which

involved confronting the counter-revolutionary efforts of the BTTR in late January

1996. In the messages, Roque and Gonzalez were directed to provide Cuba with 199

specific information through codes regarding the BTTR flying missions; Roque

and Gonzalez were advised not to fly on these missions. Hernandez was later 200

recognized for his “decisive” role in Operations Venicia and German, in which “the

Miami right [was dealt] a hard blow.”201

Hernandez also participated in the spread of disinformation. He was asked

to mail DI-furnished letters, purporting to be from a “counterrevolutionary”

organization which threatened members of Congress who supported lifting the

embargo on Cuba in order to provoke the defeat of members of Cuban-American

descent. Hernandez suggested a number of projects in south Florida: making 202

threatening phone calls to a newspaper publisher which appeared to come from a
 R49 at 4614-16; Govt. Exs. DG 107 at 52; DG 127 at 5; DG 139 at 10-11. 203

 See supra note 137. 204

 Govt Ex. DC 101 at 19-21. 205

 R97 at 11291-93, 11295. 206

 Id. at 11294. 207

56

CANF supporter; testing BTTR’s airplane security for sabotage feasibility; and

publishing a book suggesting that BTTR founder Basulto knew in advance that his

BTTR followers would be shot down over Cuba. He asked Gonzalez to provide 203

information to M-III about funding for anti-Castro sabotage, disagreements in

204

the Miami-Cuban community about the Pope’s visit to Cuba, and disagreements

within CANF over its internal leadership succession and future terrorist plans. In 205

August 1998, Hernandez reported to the Cuban government on information that he

had learned from a newspaper article that Alpha 66 camp participants, armed with

rifles and semiautomatic machine guns, simulated an attack on a Cuban air base,

and that an identified individual had claimed to have participated in Cuban hotel

bombings in 1992, 1994, and 1995. He also shared the news from the article that 206

Alpha 66 continued to prepare for attacks against Cuba, that some of the group’s

arsenal was located on an island behind Andrews Air Force Base, and that the

group was attempting to obtain C-4 explosives to use during its next attack.

207

 Medina worked with Guerrero and assumed his supervision from Hernandez
 Ex. R52 at 4; Govt. Exs. DAV 123 at 47, 49; DG 109 at 17; DG 110 at 1. 208

 R40 at 3231-32, 3238-40; R41 at 3317; R46 at 4012-14; Govt Exs. DG 108; DS 103 at 209

2, 4, 11; DG 110. 

 Govt. Ex. DAV 113 at 1, 3-4. 210

 R49 at 4618-19; R31 at 3; R43 at 3; R51 at 9; R52 at 5-10; R84 at 20-27; R97 at 11242, 211

11252-53, 11277, 11279; Campa Exs. R22 at 26; R24 at 65, 74; Govt. Exs. DAV 118 at 1-5; DG 108

at 28-29; DG 127 at 7-8; HF 143. 

 R91 at 10592-93. 212

57

in June 1997. He also supervised Operation Suroc and worked with agents who 208

had been recruited by Hernandez to penetrate Southcom. In May 1997, Medina

209

was asked by the DI to gather information regarding infiltrating various local, state,

and federal agencies located in Florida, including military bases, the Coast Guard,

the Immigration and Naturalization Service (“INS”), and the Federal Bureau of

Investigation (“FBI”).210

At some point, Campa took over supervision of several operations from

Hernandez and Medina, including Operation Aeropuerto and Operation Suroc.211

Campa admitted that he and several of his codefendants worked secretly on behalf

of the Cuban government to gather and relay information concerning the activities

of numerous local, extremist anti-Castro groups and individuals who had

previously conducted terrorist acts against Cuba. He was also directed to work 212

on a number of operations, including Operation Rainbow/Arcoiris, Operation

Brown/Morena, Operation Fog/Neblina, Operation Paradise/Paraiso, Operation
 R97 at 11253-55; Campa Ex. R24 at 8-9. 213

 R97 at 11268-69; Campa Exs. R22 at 26, R24 at 15-16, 19. 214

 Id. at 11263, 11270-71, 11273. 215

 Id. at 11274-77; Campa Ex. R24 at 21. 216

 R97 at 11277; Campa Exs. R19 at 11-13, 20-23, R20 at 2-4, R35 at 16, 20. 217

58

Giron, and others. Operation Rainbow involved filming a meeting between CANF

leader Orlando Bosch, Alpha 66 and PUND leader Ruben Dario Lopez and a

Cuban agent to plan a shipment of weapons into Cuba for the proposed

assassination of Castro; other participants included Campa, Hernandez, and two

other Cuban agents. Operation Brown required Campa to keep an eye on Bosch 213

in order to learn his relationships and movements, and the places he frequented.214

Operation Fog involved Campa and Medina monitoring the activities of Roberto

Martin Perez, a member of the board of directions for the CANF, which the Cuban

government believed was responsible for two July 1997 hotel bombings. In 215

Operation Paradise, Campa and others, including Rene Gonzalez and other Cuban

agents, gathered information on the paramilitary activities of Cuban exile groups

operating in the Bahamas, including CANF, Alpha 66, Cuba 21, BTTR, and

individuals in those organizations. Operation Giron was an attempt to infiltrate

216

CANF, which involved Medina and later Campa as a temporary replacement for

Medina. Some of the unnamed operations included identifying and videotaping

217
 R97 at 11284-86, 11289. 218

 Id. at 11285, 11288-89. 219

 Id. at 11290-91. 220

 Campa Ex. R32 at 2-3; Govt. Exs. DAV 102 at 1; 109 at 1-2, 5-6; 116 at 3, 7; 118 at 2; 221

124 at 8; 126 at 21; 129 at 3, 59. 

 R97 at 11277-78; R101 at 11714, 11721-23. 222

59

boats in the Miami River, obtaining information concerning Cuban exile

paramilitary camps, and surveillance of various anti-Castro persons and groups. In

July 1998, Campa and Hernandez, working with other Cuban agents, identified and

videotaped two boats in the Miami River which were believed to contain weapons

and explosives destined for Cuba. The agents were instructed to consider 218

disabling the boats by burning or damaging them or anonymously notifying the FBI

about the boats. Campa and Hernandez also unsuccessfully tried to locate the 219

Comandos L camp F-4, near Clewiston, Florida, with directions provided to them

by the Cuban government.220

The agents supervised by Campa and Medina operated with a separate small

budget requiring approval by the authorities in Cuba, and the officers shared

housing to economize. Campa lived in an apartment owned by Hernandez from 221

November 1997 until February 1998, and in an apartment shared with Medina from

July until September 1998.

222
 See supra note 137. 223

 Govt. Exs. DAV 102 at 1; 129 at 62. 224

 R74 at 7918; Govt. Ex. DG 120 at 2-3. 225

 R74 at 7959; Govt. Ex. 122 at 5-8, 10. 226

 Govt. Exs. DAV 101 at 9-28; DAV 102 at 17-29; DG 121; DL 102 at 11; DG 141 at 19. 227

60

Guerrero was listed as a part of a different operative base which carried out

M-V missions, including those targeting United States military installations. 223 224

Under Operation Aeropuerto, Guerrero achieved “long-term” penetration of the

NAS through his employment in the Public Works Department in 1993. He was

employed in maintaining the sewage lift-off stations and had access to many areas

of the NAS. Although he executed several United States loyalty affidavits as 225

conditions of that employment, he was also fulfilling a DI work plan to obtain

military information, to conduct visual intelligence of the NAS, and to search for

operational resources.226

Guerrero delivered frequent detailed reports to Campa, Hernandez, and

Medina regarding the deployment of United States military assets at the NAS from

1994 through 1997.227

Gonzalez worked in a number of operations and “active measures.” He was

furnished with proposed text for anonymous letters and telephone calls by

Hernandez and was directed to consider ways to harass and cause dissension
 R49 at 4583-91, 4598-604, 4612-13; R60 at 6277-83; Govt. Ex. DC 101 at 11-19, 701, 228

701A, 702. 

 Govt. Ex. DHo101 at 2-6. 229

 Govt. Exs. HF 105 at G-3, 125 at G-3. 230

 R69 at 7044, 7077-78. 231

 Govt. Ex. DG-107 at 58-60. 232

61

among the counter-revolutionary organizations by disseminating rumors that

Basulto was disparaging various members. Gonzalez was directed to study 228

BTTR’s airplane hangar, to consider burning down its warehouse and spreading

rumors that BTTR had burned the warehouse for insurance money, to disable

BTTR equipment and antennae, and to threaten a United States government agent

with execution and send him a book bomb-appearing device.229

Gonzalez was also instructed to act as an FBI informant. Shortly after the 230

BTTR shootdown, Gonzalez told his FBI contact that he felt betrayed by Roque. 

231

After the disks found in the Avispa officers’ apartments were decrypted, the FBI

again approached Gonzalez based on his BTTR association; Hernandez warned

Gonzalez to act torn between his opposition to terrorism and his loyalty to the antiCastro “brothers” and not to act like a “Castro agent.” Gonzalez reported that he 232

had told the FBI that ethically he could not inform on the BTTR, but assured the

FBI that he would contact its agents if he learned of anything that would affect
 Id. at 65-67. 233

 R44 at 3699-700. The U.S. Attorney asked government witness Stuart Hoyt to describe 234

the structure of the Cuban intelligence system by questioning “who is at the top of the Cuban

intelligence system.” R44 at 3699. Hoyt responded by stating that “Fidel Castro” was at the top as

“Commander-in-Chief”, “[P]resident”, “Council Minister”, and “head of the Cuban Communist

Party.” Id. 

 R73 at 7806-07. 235

 R80 at 8748. After a defense witness explained on cross-examination that the tone of the 236

dissenters within Cuba was “more respectful” than that of Cuban exile organizations located outside

of Cuba, the government attorney asked whether such an answer was relevant when it was a

“[p]articularly repressive government.” R80 at 8748. Late, after the witness stated that, if he had

been a dictator, he would have tried to stop the BTTR flight, the government attorney questioned

whether “[w]e live in a dictatorship.” Id. at 8754. After the witness replied “Fortunately we don’t,”

the government attorney commented, “And people do have that freedom of choice.” Id. 

 Id. at 8754. 237

 R124 at 14474. 238

62

United States security.233

During the trial, the government described the Cuban intelligence operations

as “an intelligence pyramid” headed by Fidel Castro. It suggested that the Cuban 234

government applied the “penalty” of death for throwing things out of airplane

windows, and was “repressive” and a “dictatorship”. 235 236 237

G. Closing Arguments

During closing arguments, the government commented that Hernandez’s

attorney had called the shootdown “the final solution” and noted that such

terminology had been “heard . . . before in the history of mankind.” It argued 238

that the defendants had voluntarily joined “a hostile intelligence bureau” that saw
 Id. at 14475. 239

 Id. at 14532, 14481. 240

 Id. at 14480. 241

 Id. at 14495. 242

 Id. at 14480-81. 243

 Id. at 14482. 244

 Id. at 14483-85, 14488. 245

63

“the United States as its prime and main enemy.” It stated that “the Cuban 239

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.” It maintained that the Cuban government

240

sponsored “book bombs,” “telephone threats of car bombs,” and “sabotage,” and

“killed four innocent people.” It suggested that the Cuban government used 241

“goon squads” to torture its critics. It asserted that the Cuban government had 242

their agents falsify their identities by using the identification of “dead babies” and

“stealing the memories of families.” It argued that the defendants were “bent on

243

destroying the United States” and were “paid for by the American taxpayer.” It 244

contended that the defense argument that the agents were in the United States to

keep an eye on the Cuban exile groups was false because they were on United

States military bases, spying on United States military, the FBI, and Congress. 

245
 Id. at 14493. 246

 Id. at 14512-13. 247

 Id. at 14513. 248

 Id. at 14519. 249

 Id. at 14475. 250

 Id. at 14482, 14483, 14493. 251

64

The government implied that the government of Cuba was not cooperating with the

FBI. It commented that Cuba “was not alone” in shooting down civilian aircraft

246

as they “are friends with our enemies,” including “the Chinese and the Russians,”

and compared the BTTR shootdown to the 1986 Libyan shootdown of a civilian

aircraft. It maintained that the government of Cuba did not care about the 247

occupants of the planes, and shot down the planes even though they could have

forced Basulto’s plane to land. It argued that Cuba was a “repressive regime 248

[that] doesn’t believe in any [human] rights.” It summarized that the defendants 249

had joined an “intelligence bureau . . . that sees the United States of America as its

prime and main enemy” and that the jury was “not operating under the rule of

Cuba, thank God.”250

Campa and Hernandez’s objections throughout the closing arguments were

sustained. The jury was subsequently instructed to consider only the evidence 251

admitted during the trial, and to remember that the lawyers’ comments were not
 R125 at 14583. 252

 R104 at 12091-92. 253

 Id. at 12091-94. 254

 Id. at 12094-95. 255

 R59 at 6096-108, 6145-49. The 20 protestors carried signs stating “take Castro down,” 256

“[f]air trial wanted,” and “spies to be killed.” Id. at 6145.

 R81 at 9005. 257

65

evidence. 

252

H. Jury Conduct and Concerns During the Trial

Five months into the trial, when one seated juror had a conflict, the court

discussed the possibility of removing a juror who had a two-day conflict and

seating one of the alternates. Hernandez’s attorney requested a recess, arguing

253

that the parties and the court had worked very hard to select “a jury we are very

happy with” and, with Gonzalez, Guerrero, and Medina’s attorneys, maintained

that it would be unreasonable to refuse to accommodate the juror after her length of

service and her request to complete the trial. The district court granted the

254

recess.255

In early February 2001, a small protest related to the trial was held outside of

the courthouse, but the jury was protected from contact with the protestors and

from exposure to the demonstration. On 13 March 2001, the court noted that the 256

day before, cameras were focused on the jurors as they left the building. Despite

257
 R126 at 14644-47. 258

 Id. at 14645-47. 259

 R124 at 14546-47; R125 at 14624. 260

 R126 at 14643-46. 261

 Id. at 14644-45. 262

 Id. at 14645-47. 263

66

the court’s arrangements to prevent exposure to the media, jurors were again filmed

entering and leaving the courthouse during the deliberations and that footage was

televised. Some of the jurors indicated that they felt pressured; therefore, the 258

district court again modified the jurors’ entry and their exit from the courthouse

and transportation. 

259

For deliberations, the jury was moved to another floor of the courthouse with

controlled access. During the deliberations, members of the jury were filmed 260

entering and leaving the courthouse, and the media requested the names of the

jurors. The jurors expressed concern that they were filmed “all the way to their 261

cars and [that] their license plates had been filmed.” To protect the jurors’ 262

privacy, the district court arranged for the jurors to come into the courthouse by

private entrance and provided them with transportation to their vehicles or to mass

transit. The jury spent five days in deliberations and, during that period of time, 263
 R125 at 14625; R126 at 14640-43. 264

 R12-1338 at 2-3; R12-1342 at 2-3; R12-1343 at 1-4; R12-1347 at 1-2. 265

 R12-1343 at 1-3. 266

 R12-1342 at 3; R12-1343 at 3-4. 267

67

asked for and was given a comprehensive list of all of the admitted evidence.264

I. Motions for New Trial

In late July and early August 2001, following the trial, Campa, Gonzalez,

Guerrero, and Medina moved for a new trial and renewed their motions for a

change of venue, arguing that their fears of presumed prejudice remained despite

the district court’s efforts during voir dire. Campa asserted that the jury’s failure 265

to ask questions and its quick verdicts in the complex, almost seven-month trial

suggested that it was subject to community pressure and prejudice. Campa and 266

Gonzalez also maintained that the jury was unduly prejudiced by the remarks of

witness Jose Basulto. According to Campa and Gonzalez, Basulto’s testimony

implied that Hernandez’s counsel was “either a spy, a representative of the Cuban

Government, a communist, or in the employ of the Cuban intelligence service.”267

The district court denied the motions for new trial. It referenced its prior orders

denying a change of venue and denying reconsideration of the denial of the change

of venue, and stated that because it was “[a]ware of the impassioned Cuban exilecommunity residing within this venue, the Court implemented a series of measures
 R13-1392 at 14. 268

 Id. at 15. 269

 R14-1430, 1435, 1437, 1439, 1445. 270

R15-1635, 1638, 1644, 1647, 1650, 1651. The National Jury Project, the National 271

Lawyers Guild, the International Association of Democratic Lawyers sought and were granted leave

to file briefs as amicus curiae in support of this motion. R15-1640, 1653, 1654, 1655, 1677. 

 R15-1635 at 1, 1636. On appeal, Hernandez mentions that the government also made 272

other misrepresentations related to this case in a petition for writ of prohibition and motion to stay

in another case filed in this court, In re United States of America, No. 01-12887 (11 Cir. 2001) th

regarding the district court’s rulings in this case. The district judge commented on both statements

made by the government and alleged by Hernandez to be mispresentations, calling one “an outright

misrepresentation of fact” and another an “erroneous statement” and “gross misrepresentation[].”

R121 at 13918, 14025.

68

to guarantee the Defendants’ right to a fair trial.” The court concluded that “any

268

potential for prejudice was cured” “through the Court’s methodical, active pursuit

of a fair trial from voir dire . . . to . . . the return of verdict.”269

In December 2001, Guerrero, Hernandez, and Medina were sentenced to life,

Campa was sentenced to 228 months, and Gonzalez was sentenced to 15 years.

270

In November 2002, Guerrero renewed his motion for a new trial based on

newly discovered evidence; the motion was adopted by Campa, Gonzalez,

Hernandez, and Medina. Guerrero argued that a new trial was warranted because 271

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

272
 R15-1636, Ex. 2 at 1-2. 273

 Id. 2-3, 11. 274

69

change of venue was contradicted by its position in a motion for change of venue

which the government filed in Ramirez v. Ashcroft, No. 01-4835-Civ-Huck (S.D.

Fla.) on 25 June 2002.

In Ramirez, the plaintiff, a Hispanic employed by the INS, alleged a hostile

work environment, unlawful retaliation, and intimidation from his non-Hispanic

fellow employees’ hostility resulting from the INS’s 22 April 2000 removal of

Elian Gonzalez from the United States and his return to his father in Cuba.273

Within the Ramirez motion for change of venue, the government noted that

[T]he Elian Gonzalez matter was an incident which highly aroused the

passions of the community and resulted in numerous demonstrations . .

. . 

5. While the Elian Gonzalez affair has received national

attention[,] the exposure in Miami-Dade County has been continuous

and pervasive. Indeed, even now, more than a year after the return of

Elian to his father [in April 2000], there continues to be extensive

publicity . . . which will arouse and inflame the passions of the MiamiDade community. 

. . .

8. Historically, media articles relating to Elian Gonzalez and

the handling of his return to his father have persisted from November

1999 to the present [June 2002].274

The government argued that

[i]t cannot be disputed that the return of Elian Gonzalez to his father in

Cuba created a serious rift in this community, a rift which continues to
 Id. at 14-15. 275

 Id. at 17, 16. 276

 Id. at 16 n.1. 277

 R15-1636, Ex. 3 at 24. 278

70

the present. This rift exists not only between Hispanics and nonHispanics, but also between Cubans a[n]d non-Cubans and within the

Cuban community itself. It is beyond dispute that virtually every

person in Miami-Dade county [sic] has a strong opinion, one way or

another, regarding the INS and the U.S. Attorney General’s Office,

and the manner in which the Elian Gonzalez matter was handled. The

effect of the media coverage . . . serves to foment and revive these

feelings on an ongoing basis. . . . As such the media accounts cannot

do anything other than create the general state of mind where the

inhabitants of Miami-Dade County are so infected by knowledge of

the incident and accompanying prejudice, bias, and preconceived

opinions that jurors could not possibly put these matters out of their

minds and try the instant case solely on the evidence presented in the

courtroom. . . . Under such circumstances and strongly held emotions,

and in light of the media coverage . . . , it will be virtually impossible

to ensure that the defendants will receive a fair trial if the trial is held

in Miami-Dade County.275

 The government requested “a change in the location/venue” “outside of Miami

Dade County to ensure that the Defendant . . . receive a fair and impartial trial on

the merits of the case.” They noted that, “[w]hile not requested,” the court also 276

had the discretion to transfer the trial to another judicial district. The 277

government orally argued that there were no incidents “since 1985 that so polarized

the community. That so affected every individual in the community as the Elian

Gonzalez affair.” When the district court asked whether a transfer of the case to 278
 Id. at 25. 279

 R15-1636, Exs. 7-10, 12. 280

 R15-1636, Ex. 7 at 7. 281

 R15-1636, Ex. 1 at 1. 282

71

the Fort Lauderdale division courthouse would be sufficient, the government

responded that “[t]he demonstrations occurred in Miami. They are predominantly

conducted by citizens of Miami Dade county [sic]. As you move the case out of

Miami Dade you have less likelihood there are going to be deep-seated feelings and

deep-seated prejudices in the case.” 

279

The appendix filed in support of the motion for new trial included an

affidavit by Professor Moran, news articles, and reports by Human Rights Watch

regarding threats to the freedom of expression within the Miami Cuban exile

community. Moran stated that he had previously had contact with the district 280

judge in an earlier, unrelated litigation in which she had “excoriated” him for

interviewing jurors after a trial and threatened the attorneys who had retained

him. Guerrero included a letter from Moran to the district court in which he 281

offered “assist[ance]” to the district court “regarding (change of venue) surveys.”282

In Moran’s affidavit, he explained that he did not provide a copy of his letter to the

district judge to Guerrero’s counsel because he was upset that he was not timely
 R15-1636 at 4-7. 283

 Jim Mullin, Frank Talk About Free Speech, MIAMI NEW TIMES, May 25, 2000, R15-1636, 284

Ex. 9 (“The reason that the issues related to Cuba are the hot-button issues . . . is that we can’t escape

the fact that in this town there are 700,000 Cuban Americans. There are 10,000 people in this town

who had a relative murdered by Fidel Castro. There are 50,000 people in this town who’ve had a

relative tortured by Fidel Castro. There are thousands of former political prisoners in this town. For

these people and for the 500,000 Cuban Americans who are old enough to remember having to leave

their homeland, the issues related to Fidel Castro are not a historical note; they are living, breathing

wounds.”); Jim Mullin, The Burden of a Violent History, MIAMI NEW TIMES, Apr. 20, 2000, R15-

1636, Ex. 10 (“Lawless violence and intimidation have been hallmarks of el exilio for more than 30

years. Given that fact, it’s not only understandable many people would be deeply worried, it’s

prudent to be worried.”).

We also take judicial notice of an editorial: Luis Botifol, The Cuban Spies’ Case vs.

Credibility of the U.S. Judiciary, MIAMI HERALD, May 16, 2001 at 9B (“[T]he media’s reports

generate unfavorable comments in the [Cuban exile] community, which attributes the judge’s

permissiveness as stemming from an association with prominent members of the past administration

who don’t sympathize with the exile community. . . . [T]he defense surely has received ample

cooperation from the Castro regime. . . . [T]he judge has permitted the defense a broad investigation

. . . [T]rials like this one diminish the trust and credibility of the judiciary upon which our

democracy rests.”). Hernandez’s Br., App. F.

 Americas Watch/The Fund for Free Expression/Divisions of Human Rights Watch, 285

Dangerous Dialogue/Attacks on Freedom of Expression in Miami’s Cuban Exile Community, Aug.

1992, R15-1636, Ex. 12 (“Miami’s Cuban exile community . . . has long been dominated by fiercely

anti-Communist forces who are strongly opposed to contrary viewpoints, even if–especially

if–expressed simply in terms of the desirability of a dialogue with, or opening to, the Castro

regime.”); Human Rights Watch/Americas Human Rights Watch Free Expression Project, United

States Dangerous Dialogue/Threats to Freedom of Expression Continue in Miami’s Cuban Exile

Community, Nov. 1994, R15-1636, Ex. 8.

72

paid for his work by the district court. The news articles addressed the numerous 283

incidents of violence and threats by anti-Cubans in the decade preceding the trial.284

The Human Rights Watch reports covered harassment and intimidation suffered by

Miami Cuban exiles in expressing moderate political views as to Cuban relations or

Fidel Castro’s government. The motion for new trial was also supported by a 285

public opinion survey conducted by legal psychologist Dr. Kendra Brennan and a
 R15-1636, Exs. 4, 5. 286

 R15-1636, Ex. 4 at 1, 3. 287

 Id. at 8. 288

 Id. at 3. 289

 Id. 290

73

study by Florida International University’s Professor of Sociology and Director of

the Cuban Research Institute Dr. Lisandro Pérez. By affidavit, Dr. Brennan 286

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 287

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

288

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, 55.8 289

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

290
 Id. 291

 Id. at 7. 292

 R15-1636, Ex. 5 at 2-3. 293

 Id. at 3-4. 294

74

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 291

entrenched body of opinions [so entrenched as to often not be consciously held]

that would hinder any jury in Miami-Dade County from reaching a fair and

impartial decision in this case.”292

Dr. Pérez concluded that “the possibility of selecting twelve citizens of

Miami-Dade County who can be impartial in a case involving acknowledged

agents of the Cuban government is virtually zero . . . even if the jury were

composed entirely of non-Cubans, as it was in this case.” His conclusion was 293

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 294

that the Cubans created a “true ethnic enclave” which exercised strong economic
 Id. at 6-7. 295

 Id. at 7. 296

 Id. at 8. 297

 Id. at 8-9. 298

75

and political influence within the Miami-Dade County community as evidenced by

the establishment of major institutions such as the Cuban American National

Foundation, the Hispanic Builders Association, the Latin Chamber of Commerce,

and the Latin Builders Association and the election of numerous Cuban-American

public officials including the Miami mayor, city and county managers, city

commissioners, state legislators, members of the United States Congress, mayors

and city commissioners and councilpersons in other local cities and towns, and

leaders at local universities. The Cuban community’s “most overriding concern: 295

the ongoing struggle for the recovery of their homeland” had been “injected” into

the Miami-Dade County community to the extent that it took “center stage.”296

Pérez stated that the issue was characterized by an “uncompromising hostility

towards the Cuban government” and included an intolerance toward opposing

views which brought economic, political, social pressure on the dissenting

individual or group. He reported that “[t]here was a long history of threats, bomb 297

scares, actual bombings, and even murders directed at” individuals and groups

perceived to have a “softness” toward Castro’s regime. He also noted that, while

298
 Id. at 12-13. 299

 R15-1678 at 8-9. 300

 Id. at 9. 301

 Id. 302

76

many Cubans and non-Cubans had expressed dissenting views on the fate of Elian

Gonzalez and on the United States policy toward Cuba, the defendants’ case 

concerned “[t]he 1996 shootdown [which] was uniformly repudiated in Miami” and

thus approached a “taboo, a position that no one would want to take, or even appear

to take.” 

299

The district court denied the motion, stating that “the situation in Ramirez

differed from the facts of this case in numerous ways” because it “related directly

to the INS’s handling of the removal of Elian Gonzalez from his uncle’s home, an

event which, it is arguable, garnered more attention here in Miami and

worldwide.” Also, the district court noted that the government’s position in 300

Ramirez “was premised specifically upon the facts of that case, including that the

plaintiff had . . . stirred up extensive publicity in the local media focusing directly

on the facts he alleged in the lawsuit.” It concluded that the government’s 301

arguments “in Ramirez do not in any way demonstrate prosecutorial misconduct in

the instant case.” The district court did not consider the “interests of justice” 302

issue and thus declined to consider any of the exhibits submitted in support of this
 Id. at 6 n.3. 303

 The change of venue issue was briefed byGuerrero andCampa, and adopted by Gonzalez, 304

Hernandez, and Medina. Campa also adopted the argument presented by Guerrero, while Guerrero

adopted the argument presented by Campa on this issue. 

 The issue addressing prosecutorial misconduct during closing arguments was addressed

305

byHernandez andCampa, and adopted byGuerrero and Medina. Campa also adopted the arguments

presented by Hernandez on this issue. 

77

argument, including Dr. Brennan’s survey and conclusions and Dr. Pérez’s study.303

 II. DISCUSSION

On appeal, Campa, Gonzalez, Guerrero, Hernandez, and Medina argue that

the district court’s denial of their motions for change of venue violated Federal

Rule of Criminal Procedure 21(a), denied them a fair trial, and undermined the

reliability of the verdicts. They contend that the district court ignored the 304

unique confluence of demographics, politics, and culture in the Miami community,

the strong anti-Castro sentiment in that community, and the history of violence

within the Cuban-exile community. They maintain that a new trial was warranted

because of the government’s use of inflammatory statements during closing

arguments. Campa, Gonzalez, Guerrero, Hernandez, and Medina contend that 305

the district court abused its discretion in denying the motion for new trial and

change of venue because it failed to properly consider the newly discovered

evidence which supported the argument that the defendants were unable to receive
 The National Lawyers Guild also filed an amicus curiae brief on the motion for new trial 306

based on newly discovered evidence. 

 In Bonner v. City of Pritchard, 661 F.2d 1206, 1209 (11 Cir. 1981) (en banc), we

307 th

adopted as binding precedent all decisions of the former Fifth Circuit handed down prior to 1

October 1981. 

78

a fair trial before an impartial jury in Miami. They posit that the district court 306

abused its discretion by denying the requests for an evidentiary hearing to present

additional evidence regarding irregularities with expert witness Moran. 

A. Denial of Motion for Change of Venue

We conduct a multi-level review on the denial of a motion for change of

venue. We review the district court’s interpretation of the Federal Rules of

Criminal Procedure de novo, see United States v. Noel, 231 F.3d 833, 836 (11th

Cir. 2000) (per curiam), and application of Rule 21(a) for abuse of discretion, see

United States v. Williams, 523 F.2d 1203, 1208 (5 Cir. 1975). . However, th 307

“[w]hen a criminal defendant alleges that pretrial publicity precluded a trial

consistent with the standards of due process,” we are bound to “undertake an

independent evaluation of the facts established in support of such an allegation.” 

Id. 

“A fair trial in a fair tribunal is a basic requirement of due process,”

requiring not only “an absence of actual bias,” but also an effort to “prevent even

the probability of unfairness.” In re Murchison, 349 U.S. 133, 136, 75 S. Ct. 623,
The 1966 Amendments eliminated earlier versions of Rule 21 which referenced transfers 308

to “divisions” and clarified that “[t]transfers within the district to avoid prejudice will be within the

power of the judge to fix the place of trial” under Rule 18. See Fed. R. Crim. P. 21 advisory

committee’s note. Under Rule 18, “[t]he court must set the place of trial within the district with due

regard for the convenience of the defendant and the witnesses, and the prompt administration of

justice.” Fed. R. Crim. P. 18. The 1966 Amendments vested the district court with “discretion . .

. to fix the place of trial at any place within the district. . . . If the court is satisfied that there exists

in the place fixed for trial prejudice against the defendant so great as to render the trial unfair, the

court may, of course, fix another place of trial within the district (if there be such) where prejudice

does not exist.” Fed. R. Crim. P. 18 advisory committee’s note.

At the change of venue motion hearing, the defendants agreed that a transfer to the Fort

Lauderdale division office would be acceptable. 

79

625 (1955); see also Sheppard v. Maxwell, 384 U.S. 333, 362, 86 S. Ct. 1507,

1522 (1966) (“Due process requires that the accused receive a fair trial by an

impartial jury free from outside influences.”). A juror’s verdict “must be based

upon the evidence developed at the trial” “regardless of the heinousness of the

crime charged, the apparent guilt of the offender or the station in life which he

occupies.” Irwin v. Dowd, 366 U.S. 717, 722, 81 S. Ct. 1639, 1642 (1961).

A federal criminal defendant’s motion for change of venue based on

prejudice is governed by Federal Rule of Criminal Procedure 21. Upon such a

motion,

the court must transfer the proceeding against that defendant to

another district if the court is satisfied that so great a prejudice against

the defendant exists in the transferring district that the defendant

cannot obtain a fair and impartial trial there.

Fed. R. Crim. P. 21(a). Our review of the denial of a change of venue motion is

308

guided by a due process analysis. See United States v. Fuentes-Coba, 738 F.2d
80

1191, 1194 (11 Cir. 1984). th

When the jurors are to be drawn from a community which is “already

permeated with hostility toward a defendant,” whether that hostility is a result of

prejudicial publicity or other reasons, the court should examine the various

methods available to assure an impartial jury. Groppi v. Wisconsin, 400 U.S. 505,

509-10, 91 S. Ct. 490, 493 (1971). Those methods include granting a continuance

to allow “the fires of prejudice [to] cool,” the exercise of peremptory and for cause

challenges to the venire to exclude jurors who exhibit the prejudices of their

communities, and granting a change of venue when the community has been

repeatedly and deeply exposed to prejudicial publicity. See id. at 510, 91 S. Ct. at

493. 

While a change of venue or a continuance should be granted when

prejudicial pretrial publicity threatens to prevent a fair trial, a new trial should be

ordered if publicity during the proceedings threatens the fairness of the trial. See

Sheppard, 384 U.S. at 363, 86 S. Ct. at 1522. A fair trial is denied when a court

refuses to grant a request for change of venue despite pretrial publicity and

pervasive community exposure to the crime causes a trial to be a “hollow

formality.” Rideau v. Louisiana, 373 U.S. 723, 726, 83 S. Ct. 1417, 1419 (1963). 

To ensure that a defendant will “be tried in an atmosphere undisturbed by . . . a
81

wave of public passion,” Irvin, 366 U.S. at 728, 81 S. Ct. at 1645, a court is

required, upon a criminal defendant’s motion, to transfer the proceedings “if the

court is satisfied that so great a prejudice against the defendant exists in the

transferring district that the defendant cannot obtain a fair and impartial trial.” 

Fed. R. Crim. P. 21(a). It is unnecessary to determine whether prejudice is

disclosed during voir dire if the evidence reflects a “generally hostile atmosphere

of the community” which causes the jurors to “inherently suspect circumstances of

. . . prejudice against a particular defendant.” Pamplin v. Mason, 364 F.2d 1, 6, 7

(5th Cir. 1966). Further, where community hostility is prevalent, “[i]t is

unnecessary to prove that local prejudice actually entered the jury box.” Id. at 6. 

If community sentiment is strong, courts should place “emphasis on the feeling in

the community rather than the transcript of voir dire” which may not “reveal the

shades of prejudice that may influence a verdict.” Id. at 7; see also Williams, 523

F.2d at 1209 n.10 (stating that although voir dire examination results “are an

important factor in gauging the depth of community prejudice, continual

protestations of impartiality . . . are best met with a healthy skepticism from the

bench”).

In Irwin, the Supreme Court held that a defendant was entitled to a change

of venue even though each individual juror had specifically claimed the capacity
82

to be fair and impartial. It noted:

No doubt each juror was sincere when he said that he would be fair

and impartial to petitioner, but psychological impact requiring such a

declaration before one’s fellows is often its father. Where so many,

so many times, admitted prejudice, such as statement of impartiality

can be given little weight.

Irwin, 366 U.S. at 728, 81 S. Ct. at 1645. “Where outside influences affecting the

community’s climate of opinion as to a defendant are inherently suspect, the

resulting probability of unfairness requires suitable procedural safeguards, such as

a change of venue, to assure a fair and impartial trial.” Pamplin, 364 F.2d at 5. 

Mindful that the first and best judge of community sentiment and juror

indifference is the trial judge, an appellate court should “interfere only upon a

showing of manifest probability of prejudice.” Bishop v. Wainwright, 511 F.2d

664, 666 (5 Cir. 1975). th

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 th

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
 We also note that the American Bar Association recommends that a court’s determination 309

of a change of venue motion based on “dissemination of potentially prejudicial material” be based

on “such evidence as qualified public opinion surveys or opinion testimony by individuals, or on the

court’s own evaluation of the nature, frequency, and timing of the material involved.” ABA

Standards for Criminal Justice: Fair Trial and Free Press, 8-3.3(b) (1992). Where there is a

substantial likelihood of prejudice from such publicity, Standard 8-3.3 also instructs: (1) that “[a]

showing of actual prejudice” is notrequired;(2) the selection of an acceptable jury is not controlling;

and (3) “the failure to exercise all available peremptory challenges” is not a waiver. Id. at 8-3.3(b),

(c), and (d). 

83

with the charged crime. See Williams, 523 F.2d at 1209-10. Presumed 309

prejudice may be rebutted where the jury is shown to be capable of sitting

impartially. See Knight v. Dugger, 863 F.2d 705, 707, 723 (11 Cir. 1988); th

Coleman v. Kemp, 778 F.2d 1487, 1542 n.25 (11 Cir. 1985);. th

If a movant “adduces evidence of inflammatory, prejudicial pretrial

publicity that so pervades or saturates the community as to render virtually

impossible a fair trial by an impartial jury drawn from that community, jury

prejudice is presumed and there is no further duty to establish bias.” Mayola v.

Alabama, 623 F.2d 992, 997 (5 Cir. 1980) (citation and internal quotations th

omitted). Although such presumed prejudice is only rarely applied, the successful

movant need not show that the jury was actually prejudiced by the pervasive

community sentiment or that the jurors were actually exposed to any publicity, but

must show that, first, “the pretrial publicity was sufficiently prejudicial and

inflammatory and second that the prejudicial pretrial publicity saturated the

community where the trial was held.” Spivey v. Head, 207 F.3d 1263, 1270 (11th
84

Cir. 2000); Mayola, 633 F.2d at 997. The movant bears the extremely heavy

burden of proving that the pretrial publicity deprived him of his right to a fair trial. 

See Coleman, 778 F.2d at 1489, 1537. Just as issues involving prejudice from

publicity require a review of the “special facts” of each case, Marshall v. United

States, 360 U.S. 310, 312, 79 S. Ct. 1171, 1173 (1959) (per curiam), a review of 

presumed prejudice requires a review of the totality of the circumstances. See

Murphy v. Florida, 421 U.S. 794, 798-99, 95 S. Ct. 2031, 2035-36 (1975). 

Further, a court considering a change of venue motion must review all of the

circumstances and events occurring before and during the trial and their

cumulative effect. See Williams, 523 F.2d at 1206 n.7.

One of the matters to consider in reviewing the totality of the circumstances

is an extensive voir dire. See Patton v. Yount, 467 U.S. 1025, 1029, 1034, 104 S.

Ct. 2885, 2888, 2890 (1984); Jordan v. Lippman, 763 F.2d 1265, 1276 (11 Cir. th

1985) (noting “the fundamental importance of voir dire as a tool for insuring the

right to an impartial jury”). Presumed prejudice can be shown through admitted

prejudice or the demeanor and credibility of the venire. See Patton, 467 U.S. at

1029, 1038, 104 S. Ct. at 2888, 2892. 

Where, however, the court reviewed an extensive public opinion survey of

potential jurors and a purported jury prejudice expert’s analysis of media
85

coverage, where a thorough voir dire was conducted by the court and counsel, and

where the jury panel was accepted by counsel without the renewal of a motion for

change of venue, a defendant’s rights were held to be sufficiently safeguarded. 

See Fuentes-Coba, 738 F.2d at 1194-95. Further, the presumption of prejudice

was not found where, although “virtually every venireperson and actual juror had

heard or read accounts of the case,” only a few of the venirepersons indicated a

preconceived opinion about the defendant’s guilt or innocence, the venirepersons

with preconceived opinions who did not believe that they could set their opinions

aside were excused for cause, and the extensive publicity was neither

inflammatory nor pervasive. Ross v. Hopper, 716 F.2d 1528, 1541 (11 Cir. th

1983). If a party fails to demonstrate either actual or pervasive community

prejudice, the absence of juror prejudice may also be indicated by the failure of a

party to use all of its allotted peremptory challenges. See United States v. Alvarez,

755 F.2d 830, 859 (11 Cir. 1985); Dobbert v. Florida, 432 U.S. 282, 303-04, 97 th

S. Ct. 2290, 2303 (1977). Further, a lack of juror prejudice can be presumed when

a defendant fails to challenge the district court’s voir dire or move for a change of

venue after the voir dire. See United States v. Yousef, 327 F.3d 56, 90 (2d Cir.

2003). In assessing a change of venue request based on pretrial publicity, the

existence of overwhelming evidence of guilt is not dispositive. See Coleman, 778
Without determining the validity of Professor Moran’s poll, we note that the district court

310

approved the expenditures related to the poll, including the size of the statistical sample.

86

F.2d at 1541.

Despite the district court’s numerous efforts to ensure an impartial jury in

this case, we find that empaneling such a jury in this community was an

unreasonable probability because of pervasive community prejudice. The entire

community is sensitive to and permeated by concerns for the Cuban exile

population in Miami. Waves of public passion, as evidenced by the public opinion

polls and multitudinous newspaper articles submitted with the motions for change

of 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 310

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
87

within the Miami-Dade community. Despite the district court’s thorough and

extensive voir dire and its many efforts aimed at protecting the jurors’ privacy,

voir dire highlighted the community’s awareness of this case and also of that of

Elian Gonzalez. In this instance, there was no reasonable means of assuring a fair

trial by the use of a continuance or voir dire; thus, a change of venue was required. 

The evidence at trial validated the media’s publicity regarding the “Spies Among

Us” by disclosing the clandestine activities of not only the defendants, but also of

the various Cuban exile groups and their paramilitary camps that continue to

operate in the Miami area. The perception that these groups could harm jurors that

rendered a verdict unfavorable to their views was palpable. Further, the

government witness’s reference to a defense counsel’s allegiance with Castro and

the government’s arguments regarding the evils of Cuba and Cuba’s threat to the

sanctity of American life only served to add fuel to the inflamed community

passions. 

B. Denial of New Trial

We review a district court’s denial of a motion for new trial for abuse of

discretion. See United States v. Fernandez, 136 F.3d 1434, 1438 (11 Cir. 1998). th

A district court is authorized to grant a new trial “if the interests of justice so

require” in extraordinary circumstances and, if the motion is based on newly
 Rule 33 was “stylistically” amended in 2002 “to make [it] more easily understood and 311

to make style and terminology consistent throughout the rules.” See Fed. R. Crim. P. 33 advisory

committee’s note (2002). The earlier revision was not subdivided, but the relevant wording

remained the same. 

88

discovered evidence, if a motion for new trial is filed within three years of the

verdict. See Fed. R. Crim. P. 33(a) and (b)(1) (2002). Newly discovered 311

evidence must satisfy a five-part test: (1) the evidence was newly discovered after

the trial; (2) the movant shows due diligence in discovering the evidence; (3) the

evidence is not merely cumulative or impeaching; (4) the evidence is material to

issues before the court; and (5) the evidence is of such a nature that a new trial

would reasonably produce a new result. See United States v. DiBernardo, 880

F.2d 1216, 1224 (11 Cir. 1989). The newly discovered evidence is not limited to th

just the question of the defendant’s innocence, but can include other issues of law,

See United States v. Beasley, 582 F.2d 337, 339 (5 Cir. 1978) (per curiam), th

including questions of the fairness of the trial. See United States v. Williams, 613

F.2d 573, 575 (5 Cir. 1980). Consideration of a motion for new trial based on th

newly discovered evidence can also include a review of evidence obtained posttrial. See United States v. Devila, 216 F.3d 1009, 1013, 1017 (11 Cir. 2000) (per th

curiam), vacated in part on other grounds, 242 F.3d 995, 996 (2001).

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

improper closing argument, and the combined effect of publicity and prosecutorial
89

zeal. Thus, we thus “widen the breadth of our consideration” to determine

whether “these two factors operating together deprived the [defendant] of a fair

trial.” Williams, 523 F.2d at 1204-05, 1209; see also Jordan v. Lippman, 763 F.2d

1265, 1266, 1267, 1269, 1279 (11 Cir. 1985) (finding that, in a state habeas

th

corpus proceeding, a new trial based on a change of venue was required when

“extensive publicity” was coupled with the community’s “long history of racial

turbulence” and the involved institution’s “economic and social impact” on

community). 

Attorneys representing the United States are burdened both with an

obligation to zealously represent the government and, as a “representative of a

government dedicated to fairness and equal justice to all,” an “overriding

obligation of fairness” to defendants. United States v. Wilson, 149 F.3d 1298,

1303 (11 Cir. 1998). A prosecutor may not make improper assertions, th

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 th

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 th

unfair by the prosecution’s use of factually contradictory theories. See Smith v.
 We note that judicial equitable estoppel generally bars a party from asserting a position 312

in a legal proceeding that is inconsistent with its position in a previous, related proceeding. See

New Hampshire v. Maine, 532 U.S. 742, 749, 121 S. Ct. 1808, 1814 (2001). As discussed earlier,

one of the arguments Guerrero made in his motion for a new trial (which was adopted by Campa,

Gonzalez, Hernandez and Medina) was that the government contradicted its position on change of

venue in this case with the position that it took regarding the motion for change of venue that it filed

in the Ramirez case. See supra at . But, judicial equitable estoppel is not applicable here because

Ramirez, a civil case, was unrelated to this criminal prosecution. However, because the doctrine

seeks to prevent a “party from ‘playing fast and loose’” with the courts, the guidance that it provides

may be helpful to parties considering a change in their subsequent position in unrelated litigation

based upon the same set of facts. See 18B Charles Alan Wright, Arthur R. Miller & Edward H.

Cooper, Federal Practice and Procedure § 4477 (2d ed. 2002). 

90

Groose, 205 F.3d 1045, 1051-52 (8 Cir. 2000) (holding that the prosecution’s use

th

of contradictory theories for different defendants in a murder trial violated due

process). A prosecutor’s reliance on a legal position despite “knowing full 312

well” that it is wrong is “reprehensible” in light of his duty “by virtue of his oath

of office.” United States v. Masters, 118 F.3d 1524, 1525 & n.4 (11th Cir. 1997)

(per curiam). Further, when the government has sought to foreclose the

submission of evidence, an evidentiary hearing is warranted on a motion for new

trial when the newly-discovered evidence “might likely lead” to a new trial. 

United States v. Espinosa-Hernandez, 918 F.2d 911, 914 (11 Cir. 1990) (per th

curiam).

We also note that the rule against the use of evidence of other crimes or bad

acts by a defendant is intended to prevent a conviction based on the theory of

“Give a dog an ill name and hang him.” United States v. Boyd, 446 F.2d 1267,
91

1273 (5 Cir. 1971) (citation and internal punctuation omitted). The interest of the th

United States Attorney, as representative

of a sovereignty whose obligation is to govern impartially is as

compelling as its obligation to govern at all; and whose interest,

therefore in a criminal prosecution is not that it shall win a case, but

that justice shall be done. . . . He may prosecute with earnestness and

vigor–indeed, he should do so. But, while he may strike hard blows,

he is not at liberty to strike foul ones. It is as much his duty to refrain

from improper methods calculated to produce a wrongful conviction

as it is to use every legitimate means to bring about a just one.

Berger v. United States, 295 U.S. 78, 88, 55 S. Ct. 629, 633 (1935). Because “the

average jury . . . has confidence that these obligations will be faithfully observed, .

. . improper suggestions [and] insinuations . . . are apt to carry much weight

against the accused when they should properly carry none.” Id. at 88, 55 S. Ct. at

633. “Where such conduct was pronounced and persistent, with a probable

cumulative effect upon the jury which can not be disregarded as inconsequential[,]

[a] new trial must be awarded.” Id. at 89, 55 S. Ct. at 633. 

Here, a new trial was mandated by the perfect storm created when the surge

of pervasive community sentiment, and extensive publicity both before and during

the trial, merged with the improper prosecutorial references. The district court’s

instructions to the jury only generally reminded the jury that statements by the

attorneys were not evidence to be considered. The community’s displeasure with

the Elian Gonzalez controversy paled in comparison with its revulsion toward the
92

BTTR shootdown. In a civil case which arose out of the same facts as this

criminal prosecution, the BTTR shootdown was described as an “outrageous

contempt for international law and basic human rights” perpetrated by the Cuban

government in murdering “four human beings” who were “Brothers to the Rescue

pilots, flying two civilian, unarmed planes on a routine humanitarian mission,

searching for rafters in the waters between Cuba and the Florida Keys.” 

Alejandre, 996 F. Supp. at 1242. In Ramirez, the government not only recognized

the effect of the Elian Gonzalez matter on the community, but also that the

publicity continued through 2002. See supra at . If the effect of those inflamed

passions is clear in an employment discrimination action against the agency which

contributed to Elian Gonzalez’s removal and which failed to support the Cuban

exiles’ position, it is manifest in a criminal case against admitted Cuban spies who

were alleged to have contributed to the murder of “humanitarians” working to

rescue rafters such as Elian Gonzalez.

III. CONCLUSION

In light of the foregoing discussion, the defendants’ convictions are

REVERSED and we REMAND for a new trial.

The court is aware that, for many of the same reasons discussed above, the

reversal of these convictions will be unpopular and even offensive to many
93

citizens. However, the court is equally mindful that those same citizens cherish

and support the freedoms they enjoy in this country that are unavailable to

residents of Cuba. One of our most sacred freedoms is the right to be tried fairly

in a noncoercive atmosphere. The court is cognizant that its judgment today will

be received by those citizens with grave disappointment, but is equally confident 

of our shared commitment to scrupulously protect our freedoms. The CubanAmerican community is a bastion of the traditional values that make America

great. Included in those values are the rights of the accused criminal that insure a

fair trial. Thus, in the final analysis, we trust that any disappointment with our

judgment in this case will be tempered and balanced by the recognition that we are

a nation of laws in which every defendant, no matter how unpopular, must be

treated fairly. Our Constitution requires no less.