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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.
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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.
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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]
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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]
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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.
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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.
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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.
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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 businesses—those
promoting commerce, travel, or humanitarian aid to
Cuba—have
been targeted by bombers.
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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?***
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.
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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.
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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 Cuba—anything 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
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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.”
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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.
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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
***WHY ARE THEY STILL IN PRISON AFTER 13 YEARS?***
------------------------------------------------------------------
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
***WHY ARE THEY STILL IN PRISON AFTER 13 YEARS?***
------------------------------------------------------------------
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.
***WHY ARE THEY STILL IN PRISON AFTER 13 YEARS?***
------------------------------------------------------------------
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.
***WHY ARE THEY STILL IN PRISON AFTER 13 YEARS?***
------------------------------------------------------------------
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.
***WHY ARE THEY STILL IN PRISON AFTER 13 YEARS?***
------------------------------------------------------------------
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.”
***WHY ARE THEY STILL IN PRISON AFTER 13 YEARS?***
------------------------------------------------------------------
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
***WHY ARE THEY STILL IN PRISON AFTER 13 YEARS?***
------------------------------------------------------------------
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.”
***WHY ARE THEY STILL IN PRISON AFTER 13 YEARS?***
------------------------------------------------------------------
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?***
------------------------------------------------------------------
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?***
------------------------------------------------------------------
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?***
------------------------------------------------------------------
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
***WHY ARE THEY STILL IN PRISON AFTER 13 YEARS?***
------------------------------------------------------------------
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.
***WHY ARE THEY STILL IN PRISON AFTER 13 YEARS?***
------------------------------------------------------------------
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?***
------------------------------------------------------------------
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?***
------------------------------------------------------------------
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?***
------------------------------------------------------------------
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
***WHY ARE THEY STILL IN PRISON AFTER 13 YEARS?***
------------------------------------------------------------------
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?***
------------------------------------------------------------------
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]
***WHY ARE THEY STILL IN PRISON AFTER 13 YEARS?***
------------------------------------------------------------------
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.
***WHY ARE THEY STILL IN PRISON AFTER 13 YEARS?***
------------------------------------------------------------------
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?***
------------------------------------------------------------------
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?***
------------------------------------------------------------------
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).
***WHY ARE THEY STILL IN PRISON AFTER 13 YEARS?***
------------------------------------------------------------------
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
. ***WHY ARE THEY STILL IN PRISON AFTER 13 YEARS?***
------------------------------------------------------------------
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
***WHY ARE THEY STILL IN PRISON AFTER 13 YEARS?***
------------------------------------------------------------------
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”).
***WHY ARE THEY STILL IN PRISON AFTER 13 YEARS?***
------------------------------------------------------------------
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).
***WHY ARE THEY STILL IN PRISON AFTER 13 YEARS?***
------------------------------------------------------------------
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).
***WHY ARE THEY STILL IN PRISON AFTER 13 YEARS?***
------------------------------------------------------------------
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).
***WHY ARE THEY STILL IN PRISON AFTER 13 YEARS?***
------------------------------------------------------------------
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.
***WHY ARE THEY STILL IN PRISON AFTER 13 YEARS?***
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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.
***WHY ARE THEY STILL IN PRISON AFTER 13 YEARS?***
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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.
***WHY ARE THEY STILL IN PRISON AFTER 13 YEARS?***
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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).
***WHY ARE THEY STILL IN PRISON AFTER 13 YEARS?***
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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).
***WHY ARE THEY STILL IN PRISON AFTER 13 YEARS?***
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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).
***WHY ARE THEY STILL IN PRISON AFTER 13 YEARS?***
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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).
***WHY ARE THEY STILL IN PRISON AFTER 13 YEARS?***
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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
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, 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.
***WHY ARE THEY STILL IN PRISON AFTER 13 YEARS?***
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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.
***WHY ARE THEY STILL IN PRISON AFTER 13 YEARS?***
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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.
Periódico Granma
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