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Granma Diario | Granma Internacional

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Enjuiciamiento y prisión Solidaridad Los Héroes Terrorismo La Patria los reclama Guía del sitio

9 de junio de 2012

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1

CAN SOMEBODY PROTECTING CUBA AGAINST TERRORISM BE FAIRLY TRIED IN MIAMI?
United States v. Gerardo Hernández, Luis Medina, Antonio Guerrero, Rubén Campa and René González.

From the panel of appeals. 11th Circuit. Atlanta. August 9, 2005
Judges BIRCH, KRAVITCH and OAKES.
United States v. Campa

Page 1:

The defendant-appellants, Ruben Campa, Rene Gonzalez, Gerardo Hernandez, [*1223] Luis Medina and Antonio Guerrero, were convicted and sentenced for 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. [FN1] We agree, and REVERSE their convictions and REMAND for a retrial.

***WHY ARE THEY STILL IN PRISON AFTER 13 YEARS?***

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2

CAN SOMEBODY PROTECTING CUBA AGAINST TERRORISM BE FAIRLY TRIED IN MIAMI?
United States v. Gerardo Hernández, Luis Medina, Antonio Guerrero, Rubén Campa and René González.

From the panel of appeals. 11th Circuit. Atlanta. August 9, 2005
Judges BIRCH, KRAVITCH and OAKES.
United States v. Campa

Page 2:

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

***WHY ARE THEY STILL IN PRISON AFTER 13 YEARS?***

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3

CAN SOMEBODY PROTECTING CUBA AGAINST TERRORISM BE FAIRLY TRIED IN MIAMI?
United States v. Gerardo Hernández, Luis Medina, Antonio Guerrero, Rubén Campa and René González.

From the panel of appeals. 11th Circuit. Atlanta. August 9, 2005
Judges BIRCH, KRAVITCH and OAKES.
United States v. Campa

Page 8:

In August 1999, Medina’s attorney moved to incur expenses under the Criminal Justice Act to poll the Miami-Dade County community to determine whether it was a fair and unbiased venue for the trial. [FN12] Medina explained that the traditional methodology for addressing pretrial publicity was not appropriate and proposed that Florida International University Psychology Professor Gary Patrick Moran conduct a telephone poll with a "sample of 300 people." [FN13] The district court granted the motion. [FN14]

***WHY ARE THEY STILL IN PRISON AFTER 13 YEARS?***

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4

CAN SOMEBODY PROTECTING CUBA AGAINST TERRORISM BE FAIRLY TRIED IN MIAMI?
United States v. Gerardo Hernández, Luis Medina, Antonio Guerrero, Rubén Campa and René González.

From the panel of appeals. 11th Circuit. Atlanta. August 9, 2005
Judges BIRCH, KRAVITCH and OAKES.
United States v. Campa

Page 8:

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. [FN15] The motions for change of [*1228] venue were based on pretrial publicity and "virulent anti-Castro sentiment" which had existed in Miami as "a dominant value for four decades." [FN16] The motions were supported by news articles and Moran’s poll to substantiate "an atmosphere of great hostility towards any person associated with the Castro regime" and "the extent and fervor of the local sentiment against the Castro government and its suspected allies." [FN17]

***WHY ARE THEY STILL IN PRISON AFTER 13 YEARS?***

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5

CAN SOMEBODY PROTECTING CUBA AGAINST TERRORISM BE FAIRLY TRIED IN MIAMI?
United States v. Gerardo Hernández, Luis Medina, Antonio Guerrero, Rubén Campa and René González.

From the panel of appeals. 11th Circuit. Atlanta. August 9, 2005
Judges BIRCH, KRAVITCH and OAKES.
United States v. Campa

Page 8:

FN15. R2-317 (Guerrero), 321 (Medina), 324 (Gonzalez), 329 (Campa); R3-397 (Campa). Medina requested a change of venue "in light of evidence of pervasive community prejudice against the accused" as documented by Professor Gary Moran’s survey which showed "public sentiment against persons alleged to be agents of Fidel Castro’s Communist government in Cuba." R2-321 at 1-2. Moran concluded that, while there had been "several bursts of newspaper articles and other media attention" surrounding the Cuban spies’ arrests, the basis for the motion was the "[v]irulent anti-Castro sentiment" in the community. Id. at 3.

Although Campa, Gonzalez, Guerrero, and Medina had originally argued that the case should be moved to another judicial district, during oral argument on the motions, they agreed that they would be satisfied with a transfer of the case within the district from the Miami division to the Fort Lauderdale division.

***WHY ARE THEY STILL IN PRISON AFTER 13 YEARS?***

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6

CAN SOMEBODY PROTECTING CUBA AGAINST TERRORISM BE FAIRLY TRIED IN MIAMI?
United States v. Gerardo Hernández, Luis Medina, Antonio Guerrero, Rubén Campa and René González.

From the panel of appeals. 11th Circuit. Atlanta. August 9, 2005
Judges BIRCH, KRAVITCH and OAKES.
United States v. Campa

Page 8:

[FN21] A significant number, 57 percent of the Hispanic respondents and 39.6 percent of all respondents, indicated that, "[b]ecause of [their] feelings and opinions about Castro’s government," they "would find it difficult to be a fair and impartial juror in a trial of alleged Cuban spies." [FN22] Over one-third of the respondents, 35.6 percent, said that they would be worried about criticism by the community if they served on a jury that reached a not-guilty verdict in a Cuban spy case. [FN23] The respondents who indicated an inability to be a fair and impartial juror were also asked whether there were any circumstances that would change their opinion. [FN24] Of those respondents, 91.4 percent of the Hispanic respondents and 84.1 percent of all respondents answered "no." [FN25] Many of the articles submitted by the defendants also documented the community tensions and protests related to general anti-Castro sentiment, the conditions in Cuba, and other ongoing legal cases, including the Elian Gonzalez matter.

***WHY ARE THEY STILL IN PRISON AFTER 13 YEARS?***

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7

CAN SOMEBODY PROTECTING CUBA AGAINST TERRORISM BE FAIRLY TRIED IN MIAMI?
United States v. Gerardo Hernández, Luis Medina, Antonio Guerrero, Rubén Campa and René González.

From the panel of appeals. 11th Circuit. Atlanta. August 9, 2005
Judges BIRCH, KRAVITCH and OAKES.
United States v. Campa

Page 10:

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.

***WHY ARE THEY STILL IN PRISON AFTER 13 YEARS?***

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8

CAN SOMEBODY PROTECTING CUBA AGAINST TERRORISM BE FAIRLY TRIED IN MIAMI?
United States v. Gerardo Hernández, Luis Medina, Antonio Guerrero, Rubén Campa and René González.

From the panel of appeals. 11th Circuit. Atlanta. August 9, 2005
Judges BIRCH, KRAVITCH and OAKES.
United States v. Campa

Page 12:

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 [*1231] bombed in retaliation for their government’s establishing relations with Cuba.

Since then, numerous small businessesthose promoting commerce, travel, or humanitarian aid to Cubahave been targeted by bombers.

***WHY ARE THEY STILL IN PRISON AFTER 13 YEARS?***

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9

CAN SOMEBODY PROTECTING CUBA AGAINST TERRORISM BE FAIRLY TRIED IN MIAMI?
United States v. Gerardo Hernández, Luis Medina, Antonio Guerrero, Rubén Campa and René González.

From the panel of appeals. 11th Circuit. Atlanta. August 9, 2005
Judges BIRCH, KRAVITCH and OAKES.
United States v. Campa

Page 12:

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. [FN28] Following oral arguments on 26 June 2000, the district court denied the motion without prejudice, finding that the defendants had failed to demonstrate that a change of venue was necessary to provide them with a fair trial by an impartial jury. [FN29] The court "decline[d] to afford the survey and Professor Moran’s conclusions the weight attributed by Defendants" finding, inter alia, that the "size of the statistical sample [wa]s too small to be representative of the population of potential jurors in Miami-Dade County

***WHY ARE THEY STILL IN PRISON AFTER 13 YEARS?***

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10

CAN SOMEBODY PROTECTING CUBA AGAINST TERRORISM BE FAIRLY TRIED IN MIAMI?
United States v. Gerardo Hernández, Luis Medina, Antonio Guerrero, Rubén Campa and René González.

From the panel of appeals. 11th Circuit. Atlanta. August 9, 2005
Judges BIRCH, KRAVITCH and OAKES.
United States v. Campa

Page 12:

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. [FN31] He explained in the reconsideration motion that the information had been previously provided to the court ex parte because it disclosed the defendants’ theory of defense and that he sought the foreign witnesses to support that theory. [FN32] He argued that the news articles discussing "the defendants’ tacit admission that they were keeping an eye on several extremist anti-Castro groups on behalf of the Cuban government, and that Cuban citizens and officials [we]re prepared to testify on behalf of the defendants" had aggravated the prejudice in the Miami community. [FN33] He noted that the articles characterized the defendants as Cuban agents who would call Cuban officials and citizens to testify on their behalf. [FN34] The district court denied reconsideration, stating that it had previously addressed the defendants’ arguments. [FN35] It again explained that it could explore any potential bias during a voir dire examination and carefully instruct the jurors during the trial. Moreover, the district court noted that if it determined "that a fair and impartial jury cannot be empaneled, Defendants may renew this Motion and the Court shall consider a potential change of venue at that time."

***WHY ARE THEY STILL IN PRISON AFTER 13 YEARS?***

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11

CAN SOMEBODY PROTECTING CUBA AGAINST TERRORISM BE FAIRLY TRIED IN MIAMI?
United States v. Gerardo Hernández, Luis Medina, Antonio Guerrero, Rubén Campa and René González.

From the panel of appeals. 11th Circuit. Atlanta. August 9, 2005
Judges BIRCH, KRAVITCH and OAKES.
United States v. Campa

Page 13:

The trial began with jury selection on 27 November 2000. [FN37] During the trial, the motions for change of venue were renewed through motions for a mistrial based on community events and trial publicity and a government witness’s insinuation that a defense attorney was a spy or a communist. [FN38] In February 2001, Campa moved for a mistrial and renewed his motion for a change of venue based on the activities during the weekend of 24 February 2001, including the "commemorative flights marking the fifth anniversary of the shoot down of the Brothers to the Rescue aircraft and the number of television interviews and the number of newspaper articles concerning that event." [FN39] He argued that the newspapers included "an editorial by the Miami Herald that flatly condemns the Cuban government for this terrorist act" and articles including quotations from CANF members discussing "at length" the facts of the trial. [FN40] He maintained that "some news events are so great and are so explosive that any amount of instructing the jury cannot cure the taint." [FN41] The court reserved ruling pending supplementation of the record and then asked whether an inquiry of the jury was requested. [FN42] Campa answered "[y]es" and, after the inquiry was discussed, the jury was subsequently questioned as to their exposure to the news articles. [FN43] When none of the jurors responded in any way, the case proceeded.

***WHY ARE THEY STILL IN PRISON AFTER 13 YEARS?***

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12

CAN SOMEBODY PROTECTING CUBA AGAINST TERRORISM BE FAIRLY TRIED IN MIAMI?
United States v. Gerardo Hernández, Luis Medina, Antonio Guerrero, Rubén Campa and René González.

From the panel of appeals. 11th Circuit. Atlanta. August 9, 2005
Judges BIRCH, KRAVITCH and OAKES.
United States v. Campa

Page 14:

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." [FN45] They maintained that "[n]o amount of voir dire or instructions to the jury c[ould] cure the taint, whose ripple effects are difficult to measure." [FN46] 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." [FN47] In May 2001, the district court denied the pending motions for change of venue on the basis of its earlier orders denying a change of venue and finding that the February 24th issues and events as well as the reporting of those events do not necessitate and did not necessitate a change of venue in this matter . [*1233] 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.

***WHY ARE THEY STILL IN PRISON AFTER 13 YEARS?***

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13

CAN SOMEBODY PROTECTING CUBA AGAINST TERRORISM BE FAIRLY TRIED IN MIAMI?
United States v. Gerardo Hernández, Luis Medina, Antonio Guerrero, Rubén Campa and René González.

From the panel of appeals. 11th Circuit. Atlanta. August 9, 2005
Judges BIRCH, KRAVITCH and OAKES.
United States v. Campa

Page 15:

During the trial, Hernandez moved to enforce the gag order and alleged that two of the government witnesses had violated the order by holding a press conference with the family of one of the victims. R7-938. The district court issued a "narrowly tailored gag order" applicable to the "all [trial] participants, lawyers, witnesses, family members of the victims" clarifying that the order extended to "statements or information which is intended to influence public opinion or the jury regarding the merits of the case.

Later that same day, a copy of the Miami Herald which contained an article about the case was found in the jury assembly room. [FN57] The next day, after Hernandez’s attorney commented that the previous day’s article was "disturbing," Guerrero’s counsel mentioned that he had viewed one of the potential jurors reading the article while in the courtroom. [FN58] The district judge responded that "the issue is not whether [venire]persons have read or been exposed to publicity about the case of the defendants, but whether they have formed an opinion based upon what they have read. We will go into all of this as we go [*1234] through individual voir dires." [FN59] As voir dire continued, a potential juror who evidenced substantial prejudice was isolated and removed from the venire so as to eliminate contact with other potential jurors.

***WHY ARE THEY STILL IN PRISON AFTER 13 YEARS?***

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14

CAN SOMEBODY PROTECTING CUBA AGAINST TERRORISM BE FAIRLY TRIED IN MIAMI?
United States v. Gerardo Hernández, Luis Medina, Antonio Guerrero, Rubén Campa and René González.

From the panel of appeals. 11th Circuit. Atlanta. August 9, 2005
Judges BIRCH, KRAVITCH and OAKES.
United States v. Campa

Pagina 16:

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. [FN61] When asked about the impact any verdict in the case might have, David Cuevas stated that he "would feel a little bit intimidated and maybe a little fearful for my own safety if I didn’t come back with a verdict that was in agreement with what the Cuban community feels, how they think the verdict should be," and that, "based on my own contact with other Cubans and how they feel about issues dealing with Cubaanything dealing with communism they are against," he would suspect that "they would have a strong opinion" on the trial. [FN62] He explained that he probably would have a great deal of difficulty dealing with listening to the testimony. I would probably be a nervous wreck, if you want to know the honest truth. I could try to be as objective as possible and be as open minded as possible, but I would have some trouble dealing with the case. I guess I would be a little bit nervous and have some fear, actually fear for my own safety if I didn’t come back with a verdict that was in agreement with the Cuban community at large

***WHY ARE THEY STILL IN PRISON AFTER 13 YEARS?***

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15

CAN SOMEBODY PROTECTING CUBA AGAINST TERRORISM BE FAIRLY TRIED IN MIAMI?
United States v. Gerardo Hernández, Luis Medina, Antonio Guerrero, Rubén Campa and René González.

From the panel of appeals. 11th Circuit. Atlanta. August 9, 2005
Judges BIRCH, KRAVITCH and OAKES.
United States v. Campa

Page 16:

James E. Howe, Jr. expressed concern that, "no matter what the decision in this case, it is going to have a profound effect on lives both here and in Cuba." [FN64] He believed that the Cuban government was "a repressive regime that needs to be overturned," was "very committed to the security of the United States," and "would certainly have some doubt about how much control [a member of the Cuban military] would have over what they would say [on the witness stand] without some tremendous concern for their own welfare." [FN65] Jess Lawhorn, Jr., a banker and senior vice president in charge of housing loans, was "concern[ed] how public opinion might affect [his] ability to do his job" because he dealt with a lot of developers in the Hispanic community and knew that the case was "high profile enough that there may be strong opinions" which could "affect his ability to generate loans." [FN66] Potential juror Luis Mazza said that he did not like the Cuban government and asked "how could you believe" the testimony of an individual connected with the current Cuban government. [FN67] Jenine Silverman believed that "Fidel Castro is a dictator" and that there were "things going on in Cuba that the people are not happy about." [FN68] Jose Teijeiro thought that Castro had "messed up" Cuba which was "a very bad government perhaps one of the worst governments that exist on the planet."

***WHY ARE THEY STILL IN PRISON AFTER 13 YEARS?***

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16

CAN SOMEBODY PROTECTING CUBA AGAINST TERRORISM BE FAIRLY TRIED IN MIAMI?
United States v. Gerardo Hernández, Luis Medina, Antonio Guerrero, Rubén Campa and René González.

From the panel of appeals. 11th Circuit. Atlanta. August 9, 2005
Judges BIRCH, KRAVITCH and OAKES.
United States v. Campa

Page 17:

John McGlamery commented that he had "no prejudices" but "live[d] in a neighborhood where there [we]re a lot of Cubans" and was "acquainted with people that come from Cuba. That is universal in Dade County." [FN85] When asked whether he would be concerned about community sentiment if he were chosen as a juror, he "answer[ed] with some care . [i]f the case were to get a lot of publicity, it could become quite volatile and people in the community would probably have things to say about it." [FN86] He stated that "it would be difficult given the community in which we live" "to avoid hearing somebody express an opinion" on the case and to follow a court’s instruction to not read, listen to, or otherwise expose himself to information about the case. [FN87] His opinion about the Cuban government was "not favorable" as it was "not a democracy" and was "guilty of assorted [human rights] crimes."

***WHY ARE THEY STILL IN PRISON AFTER 13 YEARS?***

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17

CAN SOMEBODY PROTECTING CUBA AGAINST TERRORISM BE FAIRLY TRIED IN MIAMI?
United States v. Gerardo Hernández, Luis Medina, Antonio Guerrero, Rubén Campa and René González.

From the panel of appeals. 11th Circuit. Atlanta. August 9, 2005
Judges BIRCH, KRAVITCH and OAKES.
United States v. Campa

Page 17:

Hans Morgenstern initially said that he did not "think he would have any sort of prejudice[ ]" against defendants who were agents of the Cuban government but could not say for certain because of "[t]he environment that we are in. This being Miami. There is so much talk about Cuba here. So many strong opinions either way." [FN89] He later, however, admitted to having biases against the Cuban government, which he believed was "anti-American" and "tyrannical," and to having "an obvious mistrust of those affiliated with the [Cuban] government." [FN90] He also indicated that he would be concerned about returning a not guilty verdict because "a lot of the people [in Miami] are so right wing fascist," because he would face "personal criticism" and media coverage, and because he had concerns for what might happen after a verdict was returned. [FN91] He believed the case to be "a high profile case" and that he had been videotaped by the media when leaving the courthouse.

***WHY ARE THEY STILL IN PRISON AFTER 13 YEARS?***

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18

CAN SOMEBODY PROTECTING CUBA AGAINST TERRORISM BE FAIRLY TRIED IN MIAMI?
United States v. Gerardo Hernández, Luis Medina, Antonio Guerrero, Rubén Campa and René González.

From the panel of appeals. 11th Circuit. Atlanta. August 9, 2005
Judges BIRCH, KRAVITCH and OAKES.
United States v. Campa

Page 18:

Barbara Pareira had "many close Cuban friends," including her husband’s business partner who was a member of a group that rescued Cubans fleeing the island. [FN101] She believed that she could be impartial but had concerns about returning a verdict in Miami "because of the Cuban population here." [FN102] She "was a little distressed with the way that the [Cuban] exile community handled" the Elian Gonzalez matter because she did not "like the crowd mentality, the mob mentality that interferes with what I feel is a working system." [FN103] She strongly believed that the Cuban government was an oppressive dictatorship. [FN104] Pareira remembered news reports regarding "the planes being shot down" and several men dying, and that it was a "very bad situation" and frightening because of the possibility of military action.

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19

CAN SOMEBODY PROTECTING CUBA AGAINST TERRORISM BE FAIRLY TRIED IN MIAMI?
United States v. Gerardo Hernández, Luis Medina, Antonio Guerrero, Rubén Campa and René González.

From the panel of appeals. 11th Circuit. Atlanta. August 9, 2005
Judges BIRCH, KRAVITCH and OAKES.
United States v. Campa

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. [FN134] The district judge stated that she was "increasingly concerned" that various persons connected with the case were not following her order based on the "parade of articles appearing in the media about this case." [FN135] In particular, she commented that an article about Medina’s pending motion to incur expenses to poll the community "was the lead story in the local section on Saturday in the Miami Herald." [FN136] She warned all counsel and agents associated with the case that appropriate action would be taken and that the U.S. Attorney’s Office would be held responsible. [FN137] She directed that "[t]his case not get advertised anywhere in the media for any reason whatsoever."

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20

CAN SOMEBODY PROTECTING CUBA AGAINST TERRORISM BE FAIRLY TRIED IN MIAMI?
United States v. Gerardo Hernández, Luis Medina, Antonio Guerrero, Rubén Campa and René González.

From the panel of appeals. 11th Circuit. Atlanta. August 9, 2005
Judges BIRCH, KRAVITCH and OAKES.
United States v. Campa

Page 23:

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. [FN139] She then acknowledged that "[t]here is a tremendous amount of media attention for this case."

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21

CAN SOMEBODY PROTECTING CUBA AGAINST TERRORISM BE FAIRLY TRIED IN MIAMI?
United States v. Gerardo Hernández, Luis Medina, Antonio Guerrero, Rubén Campa and René González.

From the panel of appeals. 11th Circuit. Atlanta. August 9, 2005
Judges BIRCH, KRAVITCH and OAKES.
United States v. Campa

Page 23:

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." [FN148] When questioned about his activities during 1995, he responded by asking Hernandez’s defense counsel whether he was "doing the work" of the Cuban intelligence community. [FN149] At the request of Hernandez’s attorney, the trial judge struck the comment and the jury was instructed to disregard the comment. [FN150] Following a recess, Campa’s counsel argued that Basulto’s insinuation was precisely the kind[ ] of problem[ ] that we were afraid of when we filed our motions for a change of venue, and in the aftermath of the events of February 24, 2001, we renewed our motion for a change of venue based on the pretrial publicity, the publicity that has been generated during the course of the trial and our concern with our ability to obtain a fair trial in this community given that background.

This red baiting is absolutely intolerable, to accuse [Hernandez’s attorney] because he is doing his job, of being a communist. It is unfortunate, it is the type of red baiting we have seen in this community before and we are concerned how it affects the jury. Here we are asking the jury to make a decision based on the evidence and only based on testimony and we are left and they are left with wondering what will they be accused. [*1241] These jurors have to be concerned unless they convict these men of every count lodged against them, people like Mr. Basulto who hold positions of authority in this community, who have access to the media, are going to call them of being Castro sympathizers, accuse them of being Castro sympathizers, accuse them of being spies and this is not the kind of burden this jury can shoulder when it is asked to try and decide those issues based on the evidence at trial.

"When someone can on the stand gratuitously and maliciously accuse [Hernandez’s attorney] of being a spy[, it] sends a message to these ladies and gentlemen if they don’t do what is correct, they will be accused of being communists too. These people have to go back to their homes, their jobs, their community and you can’t function in this town if you have been labeled a communist, specially by someone of Mr. Basulto’s stature"

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

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22

CAN SOMEBODY PROTECTING CUBA AGAINST TERRORISM BE FAIRLY TRIED IN MIAMI?
United States v. Gerardo Hernández, Luis Medina, Antonio Guerrero, Rubén Campa and René González.

From the panel of appeals. 11th Circuit. Atlanta. August 9, 2005
Judges BIRCH, KRAVITCH and OAKES.
United States v. Campa

Page 26:

The Cuban exile groups of concern to the Cuban government included Alpha 66, [FN168] Brigade 2506, BTTR, Independent and Democratic Cuba ("CID"), Comandos F4, [FN169] Commandos L, CANF, [FN170] the Cuban American Military Council ("CAMCO"), [*1244] the Ex Club, Partido de Unidad Nacional Democratica (PUND) or the National [*1245] Democratic Unity Party (NDUP), and United Command for Liberation (CLU). [FN171] Alpha-66 ran a paramilitary camp training participants for an invasion of Cuba, had been involved in terrorist attacks on Cuban hotels in 1992, 1994, and 1995, had attempted to smuggle hand grenades into Cuba in March 1993, and had issued threats against Cuban tourists and installations in November 1993

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23

CAN SOMEBODY PROTECTING CUBA AGAINST TERRORISM BE FAIRLY TRIED IN MIAMI?

From the panel of appeals. 11th Circuit. Atlanta. August 9, 2005
Judges BIRCH, KRAVITCH and OAKES.
United States v. Campa

Page 27:

Alpha-66 members were intercepted on their way to assassinate Castro in 1997. Brigade 2506 ran a youth paramilitary camp. [FN172] BTTR flew into Cuban air space from 1994 to 1996 to drop messages and leaflets promoting the overthrow of Castro’s government. CID was suspected of involvement with an assassination attempt against Castro. Comandos F4 was involved in an assassination attempt against Castro. Commandos L claimed responsibility for a terrorist attack in 1992 at a hotel in Havana. CANF planned to bomb a nightclub in Cuba. The Ex Club planned to bomb tourist hotels and a memorial. PUND planned to ship weapons for an assassination attempt on Castro. Following each attack, Cuba had advised the United States of its investigations and had asked the United States’ authorities to take action against the groups operating from inside the United States.

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24

CAN SOMEBODY PROTECTING CUBA AGAINST TERRORISM BE FAIRLY TRIED IN MIAMI?
United States v. Gerardo Hernández, Luis Medina, Antonio Guerrero, Rubén Campa and René González.

From the panel of appeals. 11th Circuit. Atlanta. August 9, 2005
Judges BIRCH, KRAVITCH and OAKES.
United States v. Campa

Page 27:

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

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25

CAN SOMEBODY PROTECTING CUBA AGAINST TERRORISM BE FAIRLY TRIED IN MIAMI?
United States v. Gerardo Hernández, Luis Medina, Antonio Guerrero, Rubén Campa and René González.

From the panel of appeals. 11th Circuit. Atlanta. August 9, 2005
Judges BIRCH, KRAVITCH and OAKES.
United States v. Campa

Page 27:

United States Customs Agent Ray Crump testified that, on 20 May 1993, he participated in the arrest of several men whose boat was moored at a marina in Marathon, Florida. Id. at 10429. The boat held: several handguns; automatic rifles, including one fully automatic rifle; four grenades; two pipe bombs; a 40 millimeter grenade launcher; a 50 caliber Baretta semiautomatic rifle; and a bottle printed with "Alpha 66" which contained "Hispanic propaganda , crayons, razors, stuff of that nature." id. at 10431-33, 10434. He also participated in an investigation of a vessel south of Little Torch Key, about ten miles south of Marathon, Florida, on 11 July 1993. Id. at 10433-34. The vessel was carrying four men, numerous weapons, and "Alpha 66 type propaganda." id. at 10434. The weapons on the vessel included an AR 15, two 7.6 millimeter rifles and ammunition magazines. Id. at 10438. Following this investigation, the men were not arrested, and the weapons and vessel were not seized.

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26

CAN SOMEBODY PROTECTING CUBA AGAINST TERRORISM BE FAIRLY TRIED IN MIAMI?
United States v. Gerardo Hernández, Luis Medina, Antonio Guerrero, Rubén Campa and René González.

From the panel of appeals. 11th Circuit. Atlanta. August 9, 2005
Judges BIRCH, KRAVITCH and OAKES.
United States v. Campa

Page 27:

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

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27

CAN SOMEBODY PROTECTING CUBA AGAINST TERRORISM BE FAIRLY TRIED IN MIAMI?
United States v. Gerardo Hernández, Luis Medina, Antonio Guerrero, Rubén Campa and René González.

From the panel of appeals. 11th Circuit. Atlanta. August 9, 2005
Judges BIRCH, KRAVITCH and OAKES.
United States v. Campa

Page 28:

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

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28

CAN SOMEBODY PROTECTING CUBA AGAINST TERRORISM BE FAIRLY TRIED IN MIAMI?
United States v. Gerardo Hernández, Luis Medina, Antonio Guerrero, Rubén Campa and René González.

From the panel of appeals. 11th Circuit. Atlanta. August 9, 2005
Judges BIRCH, KRAVITCH and OAKES.
United States v. Campa

Page 28:

Rodolfo Frometa testified that, although he was born in Cuba, he was a citizen of the United States. R91 at 10531. He explained that he was a United States representative of a Cuban organization called Comandos F4, which was organized "to bring about political change in a peaceful way in Cuba" and included members both inside of and exiled from Cuban. Id. at 10532. He identified himself as the Commandate Jefe, or commander-in-chief, of F4 in the United States. id. at 10534. He stated that, since 1994, all F4 members must sign a pledge that they will "respect the United States laws" and not violate either Florida or federal law. Id. at 10535.

Frometa stated that, before Comandos F4, he was involved with Alpha 66, another organization supporting political change in Cuba, from 1968 to 1994 and served as their commander "because of his firm and staunch position against Castro." R91 at 10541-42. As a member of Alpha 66, Frometa was stopped by police officers and questioned regarding his possession of weapons. He was first stopped on 19 October 1993, while in a boat which had been towed to Marathon, Florida, and was questioned regarding the onboard weapons. Id. at 10564-66. The weapons included seven semi-automatic Chinese AK assault rifles and one Ruger semi-automatic mini 14 rifle caliber 223 with a scope. Id. at 10564-66. On 23 October 1993, he was again stopped while he and others were driving a truck which was pulling a boat toward the Florida Keys. Id. at 10542-44. Frometa explained that they were carrying weapons to conduct a military training exercise in order to prepare for political changes in Cuba or in the case of a Cuban attack on the United States, and once the officers determined that their activities were legal, they were sent on their way. Id. at 10544-48, 10563. The weapons were semi-automatic and included an R15, an AK 47, and a 50 caliber machine gun. Id. at 10545-47. Frometa and several other Alpha 66 members were once more stopped and released on 7 February 1994 for having weapons on board his boat. Because a photograph of the group was "published in the newspapers" "[e]verybody in Miami" knew that they were released. Id. at 10569. On 2 June 1994, Frometa, by then a member of F4, was arrested after attempting to purchase C4 explosives and a "Stinger antiaircraft missile" in order to kill Castro and his close associates in Cuba. id. at 10571-72, 10574-76, 10579-80. Frometa acknowledged that the use of the C4 explosive could have injured Cubans who worked at a military installation, id. at 10579, but that they had caused the "death of four U.S. citizens, the 41 people including 20 or 21 children who died; the mother of the child Elian, plus thousands and thousands who have died in the Straits of Florida."

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29

CAN SOMEBODY PROTECTING CUBA AGAINST TERRORISM BE FAIRLY TRIED IN MIAMI?
United States v. Gerardo Hernández, Luis Medina, Antonio Guerrero, Rubén Campa and René González.

From the panel of appeals. 11th Circuit. Atlanta. August 9, 2005
Judges BIRCH, KRAVITCH and OAKES.
United States v. Campa

Page 29:

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

***WHY ARE THEY STILL IN PRISON AFTER 13 YEARS?***

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30

CAN SOMEBODY PROTECTING CUBA AGAINST TERRORISM BE FAIRLY TRIED IN MIAMI?
United States v. Gerardo Hernández, Luis Medina, Antonio Guerrero, Rubén Campa and René González.

From the panel of appeals. 11th Circuit. Atlanta. August 9, 2005
Judges BIRCH, KRAVITCH and OAKES.
United States v. Campa

Page 29:

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.

***WHY ARE THEY STILL IN PRISON AFTER 13 YEARS?***

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31

CAN SOMEBODY PROTECTING CUBA AGAINST TERRORISM BE FAIRLY TRIED IN MIAMI?
United States v. Gerardo Hernández, Luis Medina, Antonio Guerrero, Rubén Campa and René González.

From the panel of appeals. 11th Circuit. Atlanta. August 9, 2005
Judges BIRCH, KRAVITCH and OAKES.
United States v. Campa

Page 31:

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. [FN191] He advised Medina of the attacks in April and directed that he "[s]earch for active information on [the acts] that [the Cubans with ties to the Cuban American Military Council (‘CAMCO’)] have, or any attempt for future similar actions [in Cuba] by CAMCO." [FN192] In September, Hernandez notified the Cuban authorities that he had received information that "one of the two brothers who had something to do with the bomb on [an Italian tourist who was killed]" was available to meet for lunch and that "next week they [the terrorists] would try to place a bomb in one of the largest buildings [associated with tourism] in Cuba which is visited most by [Castro]." [FN193] Hernandez’s contact was instructed to elaborate on the information that he had obtained. [FN194] As a result of the investigations, Caballero said that the Cuban Department of State Security arrested some individuals, but that he believed some of the individuals responsible for financing, planning, and organizing the explosions lived in the United States and had not been arrested. [FN195] Caballero explained that, in June 1998, he provided FBI agents with documentation and investigation materials regarding the terrorist acts between 1990 and 1998, and received the FBI’s findings [*1248] in March 1999.

***WHY ARE THEY STILL IN PRISON AFTER 13 YEARS?***

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32

CAN SOMEBODY PROTECTING CUBA AGAINST TERRORISM BE FAIRLY TRIED IN MIAMI?
United States v. Gerardo Hernández, Luis Medina, Antonio Guerrero, Rubén Campa and René González.

From the panel of appeals. 11th Circuit. Atlanta. August 9, 2005
Judges BIRCH, KRAVITCH and OAKES.
United States v. Campa

Page 31:

The acts included an explosion on 12 April 1997 which destroyed the bathroom and dance floor at the discotheque Ache in the Media Cohiba Hotel, id. at 10755, 10757, 10759; a bombing on 25 April 1997 at the Cubanacan offices in Mexico, R97 at 11318-19; the 30 April 1997 explosive device found on the 15th floor of the Cohiba Hotel, R93 at 10766-69, 10771; the 12 July 1997 explosions at the Hotel Nacional and Hotel Capri, both of which created "craters" in the hotel lobbies and did significant damage inside the hotels, id. at 10786-88, 10795-801; the 4 August 1997 explosion at the Cohiba Hotel which created a crater in the lobby and destroyed furniture; id. at 10802- 05; explosions on 4 September 1997 at the Triton Hotel, the Copacabana Hotel, the Chateau Miramar Hotel, and the Bodequita del Medio Restaurant, id. at 10807-09, 10820; and, the discovery of explosive devices at the San Jose Marti International Airport in a tourist van in the taxi dispatch area on 19 October 1997 and underneath a kiosk on 30 October 1997, id. at 10824-30. The explosions on 4 September killed an Italian tourist at the Copacabana Hotel, injured people at the Chateau Miramar Hotel, the Copacabana Hotel, and at the Bodequita del Medio Restaurant, and caused property damage at all locations

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33

CAN SOMEBODY PROTECTING CUBA AGAINST TERRORISM BE FAIRLY TRIED IN MIAMI?
United States v. Gerardo Hernández, Luis Medina, Antonio Guerrero, Rubén Campa and René González.

From the panel of appeals. 11th Circuit. Atlanta. August 9, 2005
Judges BIRCH, KRAVITCH and OAKES.
United States v. Campa

Page 32:

In August 1998, Hernandez reported to the Cuban government on information that he had learned from a newspaper article that Alpha 66 camp participants, armed with rifles and semiautomatic machine guns, simulated an attack on a Cuban air base, and that an identified individual had claimed to have participated in Cuban hotel bombings in 1992, 1994, and 1995. [FN206] He also shared the news from the article that Alpha 66 continued to prepare for attacks against Cuba, that some of the group’s arsenal was located on an island behind Andrews Air Force Base, and that the group was attempting to obtain C-4 explosives to use during its next attack.

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34

CAN SOMEBODY PROTECTING CUBA AGAINST TERRORISM BE FAIRLY TRIED IN MIAMI?
United States v. Gerardo Hernández, Luis Medina, Antonio Guerrero, Rubén Campa and René González.

From the panel of appeals. 11th Circuit. Atlanta. August 9, 2005
Judges BIRCH, KRAVITCH and OAKES.
United States v. Campa

Page 33:

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. [FN212] He was also directed to work on a number of operations, including Operation Rainbow/Arcoiris, Operation Brown/Morena, Operation Fog/Neblina, Operation Paradise/Paraiso, Operation Giron, and others.

***WHY ARE THEY STILL IN PRISON AFTER 13 YEARS?***

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35

CAN SOMEBODY PROTECTING CUBA AGAINST TERRORISM BE FAIRLY TRIED IN MIAMI?
United States v. Gerardo Hernández, Luis Medina, Antonio Guerrero, Rubén Campa and René González.

From the panel of appeals. 11th Circuit. Atlanta. August 9, 2005
Judges BIRCH, KRAVITCH and OAKES.
United States v. Campa

Page 34:

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. [FN213] Operation Brown required Campa to keep an eye on Bosch in order to learn his relationships and movements, and the places he frequented. [FN214] 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. [FN215] In Operation Paradise, Campa and others, including Rene Gonzalez and other Cuban agents, gathered information on the paramilitary activities of Cuban exile groups operating in the Bahamas, including CANF, Alpha 66, Cuba 21, BTTR, and individuals in those organizations. [FN216] Operation Giron was an attempt to infiltrate CANF, which involved Medina and later Campa as a temporary replacement for Medina. [FN217] Some of the unnamed operations included identifying and videotaping boats in the Miami River, obtaining information concerning Cuban exile paramilitary camps, and surveillance of various anti-Castro persons and groups. In July 1998, Campa and Hernandez, working with other Cuban agents, identified and videotaped two boats in the Miami River which were believed to contain weapons and explosives destined for Cuba. [FN218] The agents were instructed to consider disabling the [*1250] boats by burning or damaging them or anonymously notifying the FBI about the boats. [FN219] Campa and Hernandez also unsuccessfully tried to locate the Comandos L camp F-4, near Clewiston, Florida, with directions provided to them by the Cuban government.

***WHY ARE THEY STILL IN PRISON AFTER 13 YEARS?***

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36

CAN SOMEBODY PROTECTING CUBA AGAINST TERRORISM BE FAIRLY TRIED IN MIAMI?
United States v. Gerardo Hernández, Luis Medina, Antonio Guerrero, Rubén Campa and René González.

From the panel of appeals. 11th Circuit. Atlanta. August 9, 2005
Judges BIRCH, KRAVITCH and OAKES.
United States v. Campa

Page 36:

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." [FN238] It argued that the defendants had voluntarily joined "a hostile intelligence bureau" that saw "the United States as its prime and main enemy." [FN239] It stated that "the Cuban government" had a "huge" stake in the outcome of the case, and that the jurors would be abandoning their community unless they convicted the "Cuban sp[ies] sent to destroy the United States." [FN240] It maintained that the Cuban government sponsored "book bombs," "telephone threats of car bombs," and "sabotage," and "killed four innocent people." [FN241] It suggested that the Cuban government used "goon squads" to torture its critics. [FN242] It asserted that the Cuban government had their agents falsify their identities by using the identification of "dead babies" and "stealing the memories of families." [FN243] It argued that the defendants were "bent on destroying the United States" and were "paid for by the American taxpayer." [FN244] It contended that the defense argument that the agents were in the United States to keep an eye on the Cuban exile groups was false because they were on United States military bases, spying on United States military, the FBI, and Congress. [FN245] The government implied that the government of Cuba was not cooperating [*1252] with the FBI. [FN246] It commented that Cuba "was not alone" in shooting down civilian aircraft as they "are friends with our enemies," including "the Chinese and the Russians," and compared the BTTR shootdown to the 1986 Libyan shootdown of a civilian aircraft. [FN247] It maintained that the government of Cuba did not care about the occupants of the planes, and shot down the planes even though they could have forced Basulto’s plane to land. [FN248] It argued that Cuba was a "repressive regime [that] doesn’t believe in any [human] rights." [FN249] It summarized that the defendants had joined an "intelligence bureau that sees the United States of America as its prime and main enemy" and that the jury was "not operating under the rule of Cuba, thank God."

***WHY ARE THEY STILL IN PRISON AFTER 13 YEARS?***

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37

CAN SOMEBODY PROTECTING CUBA AGAINST TERRORISM BE FAIRLY TRIED IN MIAMI?
United States v. Gerardo Hernández, Luis Medina, Antonio Guerrero, Rubén Campa and René González.

From the panel of appeals. 11th Circuit. Atlanta. August 9, 2005
Judges BIRCH, KRAVITCH and OAKES.
United States v. Campa

Page 38:

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. [FN256] On 13 March 2001, the court noted that the day before, cameras were focused on the jurors as they left the building. [FN257] Despite the court’s arrangements to prevent exposure to the media, jurors were again filmed entering and leaving the courthouse during the deliberations and that footage was televised. [FN258] Some of the jurors indicated that they felt pressured; therefore, the district court again modified the jurors’ entry and their exit from the courthouse and transportation. [FN259]

FN256. R59 at 6096-108, 6145-49. The 20 protestors carried signs stating "take Castro down," "[f]air trial wanted," and "spies to be killed." id. at 6145

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38

CAN SOMEBODY PROTECTING CUBA AGAINST TERRORISM BE FAIRLY TRIED IN MIAMI?
United States v. Gerardo Hernández, Luis Medina, Antonio Guerrero, Rubén Campa and René González.

From the panel of appeals. 11th Circuit. Atlanta. August 9, 2005
Judges BIRCH, KRAVITCH and OAKES.
United States v. Campa

Page 38:

For deliberations, the jury was moved to another floor of the courthouse with controlled access. [FN260] During the deliberations, members of the jury were filmed entering and leaving the courthouse, and the media requested the names of the jurors. [FN261] The [*1253] jurors expressed concern that they were filmed "all the way to their cars and [that] their license plates had been filmed." [FN262] To protect the jurors’ privacy, the district court arranged for the jurors to come into the courthouse by private entrance and provided them with transportation to their vehicles or to mass transit. [FN263] The jury spent five days in deliberations and, during that period of time, asked for and was given a comprehensive list of all of the admitted evidence.

***WHY ARE THEY STILL IN PRISON AFTER 13 YEARS?***

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39

CAN SOMEBODY PROTECTING CUBA AGAINST TERRORISM BE FAIRLY TRIED IN MIAMI?
United States v. Gerardo Hernández, Luis Medina, Antonio Guerrero, Rubén Campa and René González.

From the panel of appeals. 11th Circuit. Atlanta. August 9, 2005
Judges BIRCH, KRAVITCH and OAKES.
United States v. Campa

Page 38:

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. [FN265] Campa asserted that the jury’s failure to ask questions and its quick verdicts in the complex, almost seven-month trial suggested that it was subject to community pressure and prejudice. [FN266] Campa and Gonzalez also maintained that the jury was unduly prejudiced by the remarks of witness Jose Basulto. According to Campa and Gonzalez, Basulto’s testimony implied that Hernandez’s counsel was "either a spy, a representative of the Cuban Government, a communist, or in the employ of the Cuban intelligence service." [FN267] The district court denied the motions for new trial. It referenced its prior orders denying a change of venue and denying reconsideration of the denial of the change of venue, and stated that because it was "[a]ware of the impassioned Cuban exile-community residing within this venue, the Court implemented a series of measures to guarantee the Defendants’ right to a fair trial." [FN268] The court concluded that "any potential for prejudice was cured" "through the Court’s methodical, active pursuit of a fair trial from voir dire to the return of verdict."

***WHY ARE THEY STILL IN PRISON AFTER 13 YEARS?***

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40

CAN SOMEBODY PROTECTING CUBA AGAINST TERRORISM BE FAIRLY TRIED IN MIAMI?
United States v. Gerardo Hernández, Luis Medina, Antonio Guerrero, Rubén Campa and René González.

From the panel of appeals. 11th Circuit. Atlanta. August 9, 2005
Judges BIRCH, KRAVITCH and OAKES.
United States v. Campa

Page 39:

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. [FN271] Guerrero argued that a new trial was warranted because of "misrepresentations of fact and law made by the United States Attorney in opposing the motion for change of venue" and submitted an appendix to support his argument. [FN272] He also argued that the government’s position regarding change of venue [*1254] 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………

…………… 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. [FN273] Within the Ramirez motion for change of venue, the government noted that

FN273. R15-1636, Ex. 2 at 1-2.

[T]he Elian Gonzalez matter was an incident which highly aroused the passions of the community and resulted in numerous demonstrations .

5. While the Elian Gonzalez affair has received national attention[,] the exposure in Miami-Dade County has been continuous and pervasive. Indeed, even now, more than a year after the return of Elian to his father [in April 2000], there continues to be extensive publicity which will arouse and inflame the passions of the Miami-Dade community………

…….. The government argued that

……. 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.

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."…. 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." [FN279]

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41

CAN SOMEBODY PROTECTING CUBA AGAINST TERRORISM BE FAIRLY TRIED IN MIAMI?
United States v. Gerardo Hernández, Luis Medina, Antonio Guerrero, Rubén Campa and René González.

From the panel of appeals. 11th Circuit. Atlanta. August 9, 2005
Judges BIRCH, KRAVITCH and OAKES.
United States v. Campa

Page 43:

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." [FN300] Also, the district court noted that the government’s position in Ramirez "was premised specifically upon the facts of that case, including that the plaintiff had stirred up extensive publicity in the local media focusing directly on the facts he alleged in the lawsuit." [FN301] It concluded that the government’s arguments "in Ramirez do not in any way demonstrate prosecutorial misconduct in the instant case." [FN302] The district court did not consider the "interests of justice" issue and thus declined to consider any of the exhibits submitted in support of this argument, including Dr. Brennan’s survey and conclusions and Dr. Pérez’s study.

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42

CAN SOMEBODY PROTECTING CUBA AGAINST TERRORISM BE FAIRLY TRIED IN MIAMI?
United States v. Gerardo Hernández, Luis Medina, Antonio Guerrero, Rubén Campa and René González.

From the panel of appeals. 11th Circuit. Atlanta. August 9, 2005
Judges BIRCH, KRAVITCH and OAKES.
United States v. Campa

Page 44:

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. [FN304] They contend that the district court ignored the unique confluence of demographics, politics, and culture in the Miami community, the strong anti-Castro sentiment in that community, and the history of violence within the Cuban-exile community. They maintain that a new trial was warranted because of the government’s use of inflammatory statements during closing arguments. [FN305] Campa, Gonzalez, Guerrero, Hernandez, and Medina contend that the district court abused its discretion in denying the motion for new trial and change of venue because it failed to properly consider the newly discovered evidence which supported the argument that the defendants were unable to receive a fair trial before an impartial jury in Miami. [FN306] They posit that the district [*1258] court abused its discretion by denying the requests for an evidentiary hearing to present additional evidence regarding irregularities with expert witness Moran.

***WHY ARE THEY STILL IN PRISON AFTER 13 YEARS?***

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43

CAN SOMEBODY PROTECTING CUBA AGAINST TERRORISM BE FAIRLY TRIED IN MIAMI?
United States v. Gerardo Hernández, Luis Medina, Antonio Guerrero, Rubén Campa and René González.

From the panel of appeals. 11th Circuit. Atlanta. August 9, 2005
Judges BIRCH, KRAVITCH and OAKES.
United States v. Campa

Page 44:

The change of venue issue was briefed by Guerrero and Campa, and adopted by Gonzalez, Hernandez, and Medina. Campa also adopted the argument presented by Guerrero, while Guerrero adopted the argument presented by Campa on this issue.

FN305. The issue addressing prosecutorial misconduct during closing arguments was addressed by Hernandez and Campa, and adopted by Guerrero and Medina. Campa also adopted the arguments presented by Hernandez on this issue.

FN306. The National Lawyers Guild also filed an amicus curiae brief on the motion for new trial based on newly discovered evidence.

***WHY ARE THEY STILL IN PRISON AFTER 13 YEARS?***

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44

CAN SOMEBODY PROTECTING CUBA AGAINST TERRORISM BE FAIRLY TRIED IN MIAMI?
United States v. Gerardo Hernández, Luis Medina, Antonio Guerrero, Rubén Campa and René González.

From the panel of appeals. 11th Circuit. Atlanta. August 9, 2005
Judges BIRCH, KRAVITCH and OAKES.
United States v. Campa

Page 44:

A. Denial of Motion for Change of Venue

We conduct a multi-level review on the denial of a motion for change of venue. We review the district court’s interpretation of the Federal Rules of Criminal Procedure de novo, see United States v. Noel, 231 F.3d 833, 836 (11th Cir.2000) (per curiam), and application of Rule 21(a) for abuse of discretion, see United States v. Williams, 523 F.2d 1203, 1208 (5th Cir.1975). [FN307] However, "[w]hen a criminal defendant alleges that pretrial publicity precluded a trial consistent with the standards of due process," we are bound to "undertake an independent evaluation of the facts established in support of such an allegation."………

"A fair trial in a fair tribunal is a basic requirement of due process," requiring not only "an absence of actual bias," but also an effort to "prevent even the probability of unfairness." In re Murchison, 349 U.S. 133, 136, 75 S.Ct. 623, 625, 99 L.Ed. 942 (1955); see also Sheppard v. Maxwell, 384 U.S. 333, 362, 86 S.Ct. 1507, 1522, 16 L.Ed.2d 600 (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." Irvin v. Dowd, 366 U.S. 717, 722, 81 S.Ct. 1639, 1642, 6 L.Ed.2d 751 (1961).

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45

CAN SOMEBODY PROTECTING CUBA AGAINST TERRORISM BE FAIRLY TRIED IN MIAMI?
United States v. Gerardo Hernández, Luis Medina, Antonio Guerrero, Rubén Campa and René González.

From the panel of appeals. 11th Circuit. Atlanta. August 9, 2005
Judges BIRCH, KRAVITCH and OAKES.
United States v. Campa

Page 45:

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). [FN308] Our review of the denial of a change of venue motion is guided by a due process analysis. See United States v. Fuentes-Coba, 738 F.2d 1191, 1194 (11th Cir.1984).

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

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46

CAN SOMEBODY PROTECTING CUBA AGAINST TERRORISM BE FAIRLY TRIED IN MIAMI?
United States v. Gerardo Hernández, Luis Medina, Antonio Guerrero, Rubén Campa and René González.

From the panel of appeals. 11th Circuit. Atlanta. August 9, 2005
Judges BIRCH, KRAVITCH and OAKES.
United States v. Campa

Page 45:

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, 27 L.Ed.2d 571 (1971). [*1259] 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

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47

CAN SOMEBODY PROTECTING CUBA AGAINST TERRORISM BE FAIRLY TRIED IN MIAMI?
United States v. Gerardo Hernández, Luis Medina, Antonio Guerrero, Rubén Campa and René González.

From the panel of appeals. 11th Circuit. Atlanta. August 9, 2005
Judges BIRCH, KRAVITCH and OAKES.
United States v. Campa

Page 46:

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, 10 L.Ed.2d 663 (1963). To ensure that a defendant will "be tried in an atmosphere undisturbed by a wave of public passion," Irvin, 366 U.S. at 728, 81 S.Ct. at 1645, a court is required, upon a criminal defendant’s motion, to transfer the proceedings "if the court is satisfied that so great a prejudice against the defendant exists in the transferring district that the defendant cannot obtain a fair and impartial trial." Fed.R.Crim.P. 21(a). It is unnecessary to determine whether prejudice is disclosed during voir dire if the evidence reflects a "generally hostile atmosphere of the community" which causes the jurors to "inherently suspect circumstances of prejudice against a particular defendant." Pamplin v. Mason, 364 F.2d 1, 6, 7 (5th Cir.1966). Further, where community hostility is prevalent, "[i]t is unnecessary to prove that local prejudice actually entered the jury box." Id. at 6. If community sentiment is strong, courts should place "emphasis on the feeling in the community rather than the transcript of voir dire" which may not "reveal the shades of prejudice that may influence a verdict." Id. at 7; see also Williams, 523 F.2d at 1209 n. 10 (stating that although voir dire examination results "are an important factor in gauging the depth of community prejudice, continual protestations of impartiality are best met with a healthy skepticism from the bench").

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48

CAN SOMEBODY PROTECTING CUBA AGAINST TERRORISM BE FAIRLY TRIED IN MIAMI?
United States v. Gerardo Hernández, Luis Medina, Antonio Guerrero, Rubén Campa and René González.

From the panel of appeals. 11th Circuit. Atlanta. August 9, 2005
Judges BIRCH, KRAVITCH and OAKES.
United States v. Campa

Page 46:

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

No doubt each juror was sincere when he said that he would be fair and impartial to petitioner, but psychological impact requiring such a declaration before one’s fellows is often its father. Where so many, so many times, admitted prejudice, such as statement of impartiality can be given little weight. hastaquí

Irvin, 366 U.S. at 728, 81 S.Ct. at 1645. "Where outside influences affecting the community’s climate of opinion as to a defendant are inherently suspect, the resulting probability of unfairness requires suitable procedural safeguards, such as a change of venue, to assure a fair and impartial trial." Pamplin, 364 F.2d at 5. Mindful that the first and best judge of community sentiment and juror indifference is the trial judge, an appellate court should "interfere only upon a showing of manifest probability of prejudice." Bishop v. Wainwright, 511 F.2d 664, 666 (5th Cir.1975).

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49

CAN SOMEBODY PROTECTING CUBA AGAINST TERRORISM BE FAIRLY TRIED IN MIAMI?
United States v. Gerardo Hernández, Luis Medina, Antonio Guerrero, Rubén Campa and René González.

From the panel of appeals. 11th Circuit. Atlanta. August 9, 2005
Judges BIRCH, KRAVITCH and OAKES.
United States v. Campa

Page 46:

Presumed prejudice has been found "where prejudicial publicity so poisoned the proceedings that it was impossible for the accused to receive a fair trial by an impartial jury and the press saturated the community with accounts of the crime and court proceedings." United States v. Capo, 595 F.2d 1086, 1090 (5th Cir.1979). Factors to be considered in determining prejudice include the extent of [*1260] the dissemination of the publicity, the character of that publicity, the proximity of the publicity to the trial, and the familiarity of the jury with the charged crime. [FN309] See Williams, 523 F.2d at 1209-10. Presumed prejudice may be rebutted where the jury is shown to be capable of sitting impartially. See Knight v. Dugger, 863 F.2d 705, 707, 723 (11th Cir.1988); Coleman v. Kemp, 778 F.2d 1487, 1542 n. 25 (11th Cir.1985).

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50

CAN SOMEBODY PROTECTING CUBA AGAINST TERRORISM BE FAIRLY TRIED IN MIAMI?
United States v. Gerardo Hernández, Luis Medina, Antonio Guerrero, Rubén Campa and René González.

From the panel of appeals. 11th Circuit. Atlanta. August 9, 2005
Judges BIRCH, KRAVITCH and OAKES.
United States v. Campa

Page 46:

FN309. We also note that the American Bar Association recommends that a court’s determination 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 not required; (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).

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51

CAN SOMEBODY PROTECTING CUBA AGAINST TERRORISM BE FAIRLY TRIED IN MIAMI?
United States v. Gerardo Hernández, Luis Medina, Antonio Guerrero, Rubén Campa and René González.

From the panel of appeals. 11th Circuit. Atlanta. August 9, 2005
Judges BIRCH, KRAVITCH and OAKES.
United States v. Campa

Page 46:

If a movant "adduces evidence of inflammatory, prejudicial pretrial publicity that so pervades or saturates the community as to render virtually impossible a fair trial by an impartial jury drawn from that community, jury prejudice is presumed and there is no further duty to establish bias." Mayola v. Alabama, 623 F.2d 992, 997 (5th Cir.1980) (citation and internal quotations omitted). Although such presumed prejudice is only rarely applied, the successful movant need not show that the jury was actually prejudiced by the pervasive community sentiment or that the jurors were actually exposed to any publicity, but must show that, first, "the pretrial publicity was sufficiently prejudicial and inflammatory and second that the prejudicial pretrial publicity saturated the community where the trial was held." Spivey v. Head, 207 F.3d 1263, 1270 (11th Cir.2000); Mayola, 623 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, 3 L.Ed.2d 1250 (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, 44 L.Ed.2d 589 (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.

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52

CAN SOMEBODY PROTECTING CUBA AGAINST TERRORISM BE FAIRLY TRIED IN MIAMI?
United States v. Gerardo Hernández, Luis Medina, Antonio Guerrero, Rubén Campa and René González.

From the panel of appeals. 11th Circuit. Atlanta. August 9, 2005
Judges BIRCH, KRAVITCH and OAKES.
United States v. Campa

Page 47:

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. [FN310] The trial required consideration of the BTTR shootdown and the martyrdom of those persons on the flights. During the trial, there were both "commemorative flights" and public ceremonies to mark the anniversary of the shootdown. Moreover, the Elian Gonzalez matter, which was ongoing at the time of the change of venue motion, concerned these relationships between the United States and Cuba and necessarily raised the community’s awareness of the concerns of the Cuban exile community. It is uncontested that the publicity concerning Elian Gonzalez continued during the trial, "arousing and inflaming" passions within the Miami-Dade community.

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53

CAN SOMEBODY PROTECTING CUBA AGAINST TERRORISM BE FAIRLY TRIED IN MIAMI?
United States v. Gerardo Hernández, Luis Medina, Antonio Guerrero, Rubén Campa and René González.

From the panel of appeals. 11th Circuit. Atlanta. August 9, 2005
Judges BIRCH, KRAVITCH and OAKES.
United States v. Campa

Page 48:

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.

FN310. Without determining the validity of Professor Moran’s poll, we note that the district court approved the expenditures related to the poll, including the size of the statistical sample.

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54

CAN SOMEBODY PROTECTING CUBA AGAINST TERRORISM BE FAIRLY TRIED IN MIAMI?
United States v. Gerardo Hernández, Luis Medina, Antonio Guerrero, Rubén Campa and René González.

From the panel of appeals. 11th Circuit. Atlanta. August 9, 2005
Judges BIRCH, KRAVITCH and OAKES.
United States v. Campa

Page 48:

B. Denial of New Trial

We review a district court’s denial of a motion for new trial for abuse of discretion. See United States v. Fernandez, 136 F.3d 1434, 1438 (11th Cir.1998). A district court is authorized to grant a new trial "if the interests of justice so require" in extraordinary circumstances and, if the motion is based on newly discovered evidence, if a motion for new trial is filed within three years of the verdict. See Fed.R.Crim.P. 33(a) and (b)(1) (2002). [FN311] Newly discovered evidence must satisfy a five-part test: (1) the evidence was newly discovered after the trial; (2) the movant shows due diligence in discovering the evidence; (3) the evidence is not merely cumulative or impeaching; (4) the evidence is material to issues before the court; and (5) the evidence is of such a nature that a new trial would reasonably produce a new result. See United States v. DiBernardo, 880 F.2d 1216, 1224 (11th Cir.1989). The newly discovered evidence is not limited to just the question of the defendant’s innocence, but can include other issues of law, See United States v. Beasley, 582 F.2d 337, 339 (5th Cir.1978) (per curiam), including questions of the fairness of the trial. See United States v. Williams, 613 F.2d 573, 575 (5th Cir.1980). Consideration of a motion for new trial based on newly discovered evidence can also include a review of evidence obtained post-trial. See United States v. Devila, 216 F.3d 1009, 1013, 1017 (11th Cir.2000) (per curiam), vacated in part on other grounds, 242 F.3d 995, 996 (2001).

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55

CAN SOMEBODY PROTECTING CUBA AGAINST TERRORISM BE FAIRLY TRIED IN MIAMI?
United States v. Gerardo Hernández, Luis Medina, Antonio Guerrero, Rubén Campa and René González.

From the panel of appeals. 11th Circuit. Atlanta. August 9, 2005
Judges BIRCH, KRAVITCH and OAKES.
United States v. Campa

Page 48:

The grant of a new trial may be based on pretrial publicity, a prosecutor’s improper closing argument, and the combined effect of publicity and prosecutorial zeal. Thus, we "widen the breadth of our consideration" to determine whether "these two factors operating together deprived the [defendant] of a fair trial." Williams, 523 F.2d at 1204-05, 1209; see also Jordan v. Lippman, 763 F.2d 1265, 1266, 1267, 1269, 1279 (11th Cir.1985) (finding that, in a state habeas corpus proceeding, a new trial based on a change of venue was required when "extensive publicity" was coupled with the community’s "long history of racial turbulence" and the involved institution’s "economic and social impact" on community).

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56

CAN SOMEBODY PROTECTING CUBA AGAINST TERRORISM BE FAIRLY TRIED IN MIAMI?
United States v. Gerardo Hernández, Luis Medina, Antonio Guerrero, Rubén Campa and René González.

From the panel of appeals. 11th Circuit. Atlanta. August 9, 2005
Judges BIRCH, KRAVITCH and OAKES.
United States v. Campa

Page 49:

Attorneys representing the United States are burdened both with an obligation to zealously represent the government and, as a "representative of a government dedicated to fairness and equal justice to all," an "overriding obligation of fairness" to defendants. United States v. Wilson, 149 F.3d 1298, 1303 (11th Cir.1998). A prosecutor may not make improper assertions, insinuations, or suggestions that could inflame the jury’s prejudices or passions. United States v. Rodriguez, 765 F.2d 1546, 1560 (11th Cir.1985). Such an obligation includes a "duty to refrain from improper methods calculated to produce a wrongful conviction." United States v. Crutchfield, 26 F.3d 1098, 1103 (11th Cir.1994) (internal citation omitted). A trial may be rendered fundamentally unfair by the prosecution’s use of factually contradictory theories. See Smith v. Groose, 205 F.3d 1045, 1051-52 (8th Cir.2000) (holding that the prosecution’s use of contradictory theories for different defendants in a murder trial violated due process). [FN312] A prosecutor’s reliance on a legal [*1263] position despite "knowing full well" that it is wrong is "reprehensible" in light of his duty "by virtue of his oath of office." United States v. Masters, 118 F.3d 1524, 1525 & n. 4 (11th Cir.1997) (per curiam). Further, when the government has sought to foreclose the submission of evidence, an evidentiary hearing is warranted on a motion for new trial when the newly-discovered evidence "might likely lead" to a new trial. United States v. Espinosa-Hernandez, 918 F.2d 911, 914 (11th Cir.1990) (per curiam).

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57

CAN SOMEBODY PROTECTING CUBA AGAINST TERRORISM BE FAIRLY TRIED IN MIAMI?
United States v. Gerardo Hernández, Luis Medina, Antonio Guerrero, Rubén Campa and René González.

From the panel of appeals. 11th Circuit. Atlanta. August 9, 2005
Judges BIRCH, KRAVITCH and OAKES.
United States v. Campa

Page 49:

We note that judicial equitable estoppel generally bars a party from asserting a position in a legal proceeding that is inconsistent with its position in a previous, related proceeding. See New Hampshire v. Maine, 532 U.S. 742, 749, 121 S.Ct. 1808, 1814, 149 L.Ed.2d 968 (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 1253-54. 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).

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58

CAN SOMEBODY PROTECTING CUBA AGAINST TERRORISM BE FAIRLY TRIED IN MIAMI?
United States v. Gerardo Hernández, Luis Medina, Antonio Guerrero, Rubén Campa and René González.

From the panel of appeals. 11th Circuit. Atlanta. August 9, 2005
Judges BIRCH, KRAVITCH and OAKES.
United States v. Campa

Page 49:

We also note that the rule against the use of evidence of other crimes or bad acts by a defendant is intended to prevent a conviction based on the theory of "Give a dog an ill name and hang him." United States v. Boyd, 446 F.2d 1267, 1273 (5th Cir.1971)(citation and internal punctuation omitted). The interest of the United States Attorney, as representative of a sovereignty whose obligation is to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore in a criminal prosecution is not that it shall win a case, but that justice shall be done . He may prosecute with earnestness and vigorindeed, he should do so. But, while he may strike hard blows, he is not at liberty to strike foul ones. It is as much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one. Berger v. United States, 295 U.S. 78, 88, 55 S.Ct. 629, 633, 79 L.Ed. 1314 (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.

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59

CAN SOMEBODY PROTECTING CUBA AGAINST TERRORISM BE FAIRLY TRIED IN MIAMI?
United States v. Gerardo Hernández, Luis Medina, Antonio Guerrero, Rubén Campa and René González.

From the panel of appeals. 11th Circuit. Atlanta. August 9, 2005
Judges BIRCH, KRAVITCH and OAKES.
United States v. Campa

Page 50:

Here, a new trial was mandated by the perfect storm created when the surge of pervasive community sentiment, and extensive publicity both before and during the trial, merged with the improper prosecutorial references. The district court’s instructions to the jury only generally reminded the jury that statements by the attorneys were not evidence to be considered. The community’s displeasure with the Elian Gonzalez controversy paled in comparison with its revulsion toward the BTTR shootdown. In a civil case which arose out of the same facts as this criminal prosecution, the BTTR shootdown was described as an "outrageous contempt for international law and basic human rights" perpetrated by the Cuban government in murdering "four human beings" who were [*1264] "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 1254-55. 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.

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60

CAN SOMEBODY PROTECTING CUBA AGAINST TERRORISM BE FAIRLY TRIED IN MIAMI?
United States v. Gerardo Hernández, Luis Medina, Antonio Guerrero, Rubén Campa and René González.

From the panel of appeals. 11th Circuit. Atlanta. August 9, 2005
Judges BIRCH, KRAVITCH and OAKES.
United States v. Campa

Page 50:

III. CONCLUSION

In light of the foregoing discussion, the defendants’ convictions are REVERSED and we REMAND for a new trial.

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

 

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