United States v. Campa (419 F.3d 1219, 2005)

PER CURIAM:

The defendant-appellants, Ruben Cam-pa, Rene Gonzalez, Gerardo Hernandez, 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. We agree, and REVERSE their convictions and REMAND for a retrial.

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

I. BACKGROUND

A. The Indictments

Campa, Gonzalez, Guerrero, Hernandez, and Medina were arrested on a criminal complaint on 12 September 1998, and were subsequently indicted with nine codefen-dants for conspiring to act as agents of the Republic of Cuba without registering with the Attorney General of the United States and to defraud the United States, in violation of 18 U.S.C. § 951(a) and 28 C.F.R. § 73.1 et seq., and numerous overt acts, in violation of 18 U.S.C. § 371 (Count 1). They were alleged to have “function[ed] as covert spies ... by gathering and transmitting information to Cuba[] concerning United States military installations, government functions, and private political activity; by infiltrating, informing on and manipulating anti-Castro political groups in Miami-Dade County [Florida]; by sowing disinformation” within these groups and in dealings with other private and public groups within the United States, “and by carrying out other operational directives of the Cuban government.” Guerrero, Hernandez, and Medina were also charged with conspiring to deliver to Cuba information “relating to the national defense of the United States,” in violation of 18 U.S.C. §§ 794(a), (c), and 2 (Count 2). Gonzalez was charged with acting as an agent of the Republic of Cuba without prior notification to the Attorney General, and Hernandez and “John Doe 4 a/k/a Albert Manuel Ruiz” were charged with causing Gonzalez to act as an unregistered agent, in violation of 18 U.S.C. §§ 951 and 2 (Count 15). Guerrero was charged with acting as an agent of the Republic of Cuba without notification to the Attorney General, and Hernandez, Medina, and Campa were charged with causing Guerrero to act as an unregistered agent, in violation of 18 U.S.C. §§ 951 and 2 (Count 16).

Hernandez was charged with conspiracy to murder, in violation of 18 U.S.C. §§ 1111 and 2, and overt acts related to that conspiracy, in violation of 18 U.S.C. §§ 1117 and 2 (Count 3), possession of a counterfeit passport, in violation of 18 U.S.C. §§ 1546(a) and 2 (Count 4), possession of five or more fraudulent identification documents, in violation of 18 U.S.C. §§ 1028(a)(3) and 2 (Count 5), possession of a fraudulent identification document, in violation of 18 U.S.C. §§ 1546(a) and 2 (Count 6), acting as a foreign agent for the Republic of Cuba without notification to the Attorney General (Count 13), and having caused Juan Pablo Roque (Count 19), Alejandro Alonso (Count 22), Nilo Hernandez (Count 23), and Linda Hernandez (Count 24) to have acted as unregistered foreign agents, in violation of 18 U.S.C. §§ 951 and 2.

Campa was charged with possession of a counterfeit passport, in violation of 18 U.S.C. §§ 1546(a) and 2 (Count 7), possession of false identification documents, in violation of 18 U.S.C. §§ 1028(a)(3), (b)(2)(B), and (c)(3), and 2 (Count 8), and acting as an agent of the Republic of Cuba without prior notification to the Attorney General, in violation of 18 U.S.C. §§ 951 and 2 (Count 17).

Medina was charged with possession of a counterfeit passport (Count 9) and possession of a passport obtained by use of a false statement (Count 11), in violation of 18 U.S.C. §§ 1546(a) and 2, making a false statement on his passport application, in violation of 18 U.S.C. §§ 1542 and 2 (Count 10), possession of fraudulent identification documents, in violation of 18 U.S.C. §§ 1028(a)(3), (b)(2)(B), and (c)(3), and 2 (Count 12), acting as an agent of the Republic of Cuba without notification to the Attorney General, in violation of 18 U.S.C. §§ 951 and 2 (Count 14), and having caused Joseph Santos (Count 25) and Amarylis Silverio Santos (Count 26) to have acted as unregistered agents. A gag order was subsequently entered governing the parties and their attorneys.

B. Change of Venue

In August 1999, Medina’s attorney moved to incur expenses under the Criminal Justice Act to poll the Miami-Dade County community to determine whether it was a fair and unbiased venue for the trial. 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.” The district court granted the motion.

In January 2000, Campa, Gonzalez, Guerrero, and Medina moved for a change of venue, arguing that they were unable to obtain an impartial trial in Miami as a result of pervasive prejudice against anyone associated with Castro’s Cuban government. The motions for change of venue were based on pretrial publicity and “virulent anti-Castro sentiment” which had existed in Miami as “a dominant value ... for four decades.” The motions were supported by news articles and Moran’s poll to substantiate “an atmosphere of great hostility towards any person associated with the Castro regime” and “the extent and fervor of the local sentiment against the Castro government and its suspected allies.”

The evidence submitted in support of the motions for change of venue was massive. In 2000, a prominent Cuban-American attorney in Miami explained that Cuban-related matters were “ ‘hot-button issues’ ” as there were over 700,000 Cuban-Americans living in Miami. Of those Cuban-Americans, 500,000 remembered leaving their homeland, 10,000 had a relative murdered in Cuba, 50,000 had a relative tortured in Cuba, and thousands were former political prisoners. Professor Moran’s survey results showed that 69 percent of all respondents and 74 percent of Hispanic respondents were prejudiced against persons charged with engaging in the activities named in the indictment. A significant number, 57 percent of the Hispanic respondents and 39.6 percent of all respondents, indicated that, “[bjecause of [their] feelings and opinions about Castro’s government,” they “would find it difficult to be a fair and impartial juror in a trial of alleged Cuban spies.” Over one-third of the respondents, 35.6 percent, said that they would be worried about criticism by the community if they served on a jury that reached a not-guilty verdict in a Cuban spy case. The respondents who indicated an inability to be a fair and impartial juror were also asked whether there were any circumstances that would change their opinion. Of those respondents, 91.4 percent of the Hispanic respondents and 84.1 percent of all respondents answered “no.” Many of the articles submitted by the defendants 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.

One of the articles, which addressed a bomb threat against the Attorney General of the United States following a collapse of talks in the Elian Gonzalez case, recited a history of anti-Castro exile group violence in the Miami-Dade community:

Scores of bomb threats and actual bombings have been attributed to anti-Castro exile groups dating back to the 1974 bombings of a Spanish-language publication, Replica. Two years later, radio journalist Emilio Millan’s legs were blown off in a car bomb after he spoke out against exile violence.

In the early 1980s, the Mexican and Venezuelan consular offices were bombed in retaliation for their government’s establishing relations with Cuba.

Since then, numerous small businesses — those promoting commerce, travel, or humanitarian aid to Cuba— have been targeted by bombers.

The government responded that the Miami-Dade Hispanic population was a “heterogeneous,” “highly diverse, even contentious” “group” immune from the influences which would preclude a fair trial. Following oral arguments on 26 June 2000, the district court denied the motion without prejudice, finding that the defendants had failed to demonstrate that a change of venue was necessary to provide them with a fair trial by an impartial jury. The court “decline[d] to afford 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.”

In September 2000, Campa moved for reconsideration of the denial of the motion for change of venue. In support of the reconsideration motion, he submitted news articles containing information that he provided the court both during an ex parte sidebar within the change of venue motion hearing and in his motion for leave to file his motions for foreign witness depositions ex parte. He explained in the reconsideration motion that the information had been previously provided to the court ex parte because it disclosed the defendants’ theory of defense and that he sought the foreign witnesses to support that theory. He argued that the news articles discussing “the defendants’ tacit admission that they were keeping an eye on several extremist anti-Castro groups on behalf of the Cuban government, and that Cuban citizens and officials [we]re prepared to testify on behalf of the defendants” had aggravated the prejudice in the Miami community. He noted that the articles characterized the defendants as Cuban agents who would call Cuban officials and citizens to testify on their behalf. The district court denied reconsideration, stating that it had previously addressed the defendants’ arguments. 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.”

The trial began with jury selection on 27 November 2000. 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. 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.” 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. He maintained that “some news events are so great and are so explosive ... that any amount of instructing the jury cannot cure the taint.” The court reserved ruling pending supplementation of the record and then asked whether an inquiry of the jury was requested. Campa answered “[y]es” and, after the inquiry was discussed, the jury was subsequently questioned as to their exposure to the news articles. When none of the jurors responded in any way, the case proceeded.

Two weeks later, on 1 March 2001, Cam-pa, Gonzalez, Hernandez and Medina filed a joint motion for a mistrial and change of venue arguing that the events during the weekend of 24 February “received a great deal of publicity, all of which was biased against the defendants and consistent with the government’s position at trial.” They maintained that “[n]o amount of voir dire or instructions to the jury c[ould] cure the taint, whose ripple effects are difficult to measure.” They also requested a mistrial “so that their trial can be conducted in a venue where community prejudices against the defendants are not so deeply embedded and fanned by the local media.” In May 2001, the district court denied the pending 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 ....

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.

C. Voir Dire

The court held two status conferences to work out a two-phase plan for voir dire. In phase one, 168 jurors were screened for problems such as language and hardship through a written questionnaire and oral voir dire questions. In phase two, the 82 remaining prospective jurors were individually questioned regarding media exposure, knowledge and opinions of the case, the Castro government, the United States policy toward Cuba, the Elian Gonzalez case, the Cuban exile community and its reaction to the case, including a possible acquittal.

On the first day of voir dire, the district court addressed isolating the jurors following their exposure to a press conference held by the victims’ families on the courthouse steps and their approach by members of the press. The trial judge instructed that she would no longer permit the victims’ families to be present during voir dire “if there are efforts made to pollute the jury pool” and instructed the government to speak to the victims’ families regarding their conduct. The court also noted that, because some of the potential jurors were approached by news media with cameras, she would question them regarding their discussions with the media and instruct the marshals to accompany the jury, with their juror tags removed, as they left the building. The district court then extended the gag order to cover the witnesses and the jurors.

Later that same day, a copy of the Miami Herald which contained an article about the case was found in the jury assembly room. The next day, after Hernandez’s attorney commented that the previous day’s article was “disturbing,” Guerrero’s counsel mentioned that he had viewed one of the potential jurors reading the article while in the courtroom. 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 through individual voir dires.” 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.

During voir dire, the venire members were questioned about their political opinions and beliefs. Some venire members were clearly biased against Castro and the Cuban government. Peggy Beltran was excused for cause after stating that she would not believe any witness who admitted that he had been a Cuban spy. When asked about the impact any verdict in the case might have, David Cuevas stated that he “would feel a little bit intimidated and maybe a little fearful for my own safety if I didn’t come back with a verdict that was in agreement with what the Cuban community feels, how they think the verdict should be,” and that, “based on my own contact with other Cubans and how they feel about issues dealing with Cuba— anything dealing with communism they are against,” he would suspect that “they would have a strong opinion” on the trial. He explained that he

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.

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.” 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.” 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.” 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. 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.” 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.”

Other venire members indicated negative beliefs regarding Castro or the Cuban government but believed that they could set those beliefs aside to serve on the jury. Bellas Briceno-Simmons said she held a “[vjery strong” opinion and did not believe in the Cuban system of government but did not feel that it would affect her ability to render a verdict. Ileana Briganti thought she could be impartial, but admitted that “it would be difficult” and that she did not know if she “could be fair.” She said that the case was discussed “every time my [Cuban born] parents have visitors over” and that she knew she would be “a little biased” in favor of the United States as she did not agree with “communism.” David Buker stated that he believed that “Castro is a communist dictator and I am opposed to communism so I would like to see him gone and a democracy established in Cuba.” Haydee Duarte, who was born in Cuba and immigrated to the United States with her family in the late 1950s-early 1960s, had three relatives who were involved in the Bay of Pigs invasion and her husband had participated in the Mariel boat lift to rescue his sister and her family from Cuba. Although she stated that she would be impartial, she said that she saw “Castro as a dictator.” Maria Gonzalez, a Cuban immigrant, said that she did “not approve of the regime ... in Cuba” and was “against communism” but believed she could serve impartially. She remembered the news from the television and the Miami Herald about the planes being shot down. Rosa Hernandez said that, although her father left Cuba because of communism and she believed that the Cuban government was “oppressive,” she believed that she would not be prejudiced. Sister Susan Kuk was the principal of the predominantly (90 percent) Cuban high school attended by the daughter of one of the killed BTTR pilots. She visited the pilot’s home and attended his funeral. Despite her relationship with the pilot’s daughter, Kuk thought she “could be fair” although “it would be a little difficult.” Lilliam Lopez, was born in Cuba and immigrated to the United States with her family, stated that she was “always for the U.S.” and “against the Republic of Cuba,” did not like Cuba being a communist country, and had relatives living in Cuba. She had a problem with the case because it involved “espionage against the U.S.” but indicated that she could set aside her feelings to serve on the jury. John McGlamery commented that he had “no prejudices” but “live[d] in a neighborhood where there [we]re a lot of Cubans” and was “acquainted with people that come from Cuba. That is universal in Dade County.” When asked whether he would be concerned about community 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.” 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. His opinion about the Cuban government was “not favorable” as it was “not a democracy” and was “guilty of assorted [human rights] crimes.” 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.” 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.” 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. He believed the case to be “a high profile case” and that he had been videotaped by the media when leaving the courthouse. Angel De La 0, who was born in Cuba and immigrated to the United States with his parents, initially stated that he did not think he “could make a fair judgment” in the case and would be prejudiced because he had “a lot of family ties in Cuba” including uncles, aunts, and cousins but later answered that he could set aside his concerns if selected for the jury. He was troubled about returning a verdict in the case based on his concern for something happening to his “family ... in Cuba” and the notoriety of the case in Miami. He also said that he had “heard a lot about the case ... on the news [and from] people talking about” it. Connie Palmer believed that Castro was “a very bad person” and, when asked whether her opinion regarding the Cuban government would affect her ability to fairly weigh the evidence, answered “I don’t think so.... I don’t know. I have lived in South Florida for 36 years and I have seen many changes.” Palmer had known Sylvia Ir-iondo, who had been a passenger in Basul-to’s airplane on the day of the shoot-down and who was named as a government witness, for about eight years. She also knew that Iriondo was “very involved with the Brothers to the Rescue and very strongly keeping the Cuban community together in Miami.” Joseph Paolercio did not think that it would affect his ability to be impartial but he “was not happy” with United States-Cuban relations following the Mariel boat lift. He did not like the freedom that Cubans had to immigrate to the United States because immigrants from other countries were treated differently and “sometimes [he felt like] a stranger in [his] own country” when he needed to ask someone to speak English instead of Spanish. Barbara Pareira had “many close Cuban friends,” including her husband’s business partner who was a member of a group that rescued Cubans fleeing the island. She believed that she could be impartial but had concerns about returning a verdict in Miami “because of the Cuban population here.” 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.” She strongly believed that the Cuban government was an oppressive dictatorship. 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. Sonia Portalatin had a “strong” opinion about the Cuban government because she was “against communism.” Leilani Triana testified that, although her parents were from Cuba and her grandfather had been politically involved in Cuba before Castro, she could be impartial. Eugene Yagle admitted having “a strong opinion” about the Cuban government as he could not “reconcile [him]self to that form of Government.”

Finally, other venire members espoused indifference toward Castro or the Cuban government. John Gomez had traveled to Cuba with his family “to take goods” and medicines to friends and had Mends who frequently traveled to Cuba; he knew of no reasons why he should not serve on the jury. He remembered hearing or reading “years back” “something about Brothers to the Rescue” and someone in the group who was a spy for the Cuban government. Luis Hernandez, who had family in Cuba, thought he could be fair, but was unable to say whether he would be able to believe a witness who was a member of the communist party in Cuba. Miguel Hernandez’s parents and grandparents had immigrated from Cuba and he had distant relatives who remained in Cuba but he had no opinions regarding the Cuban government, the trial, or the publicity surrounding it. Florentina McCain felt sympathy for the people living in Cuba but believed that she would be impartial as a juror. She knew from the media that “airplanes were shot down in Cuba a couple of years ago” and that “some families ... gathered to remember the anniversary of the incident” a few weeks before voir dire. Michelle Peterson also had concerns about community reaction to a verdict because she did not “want rioting and stuff to happen like what happened with the Elian case. I thought that got out of ■hand.”

After one potential juror was excused for cause because he had attended the funeral for a victim of the shoot-down, Hernandez moved to have another potential juror, Sister Kuk, excused for the same reason. The government opposed this request to strike, maintaining that Sister Kuk attended the service as a professional, and that “[tjhere were masses after the shoot-down all over town and numerous people attended.”

Many of the potential jurors who had personal contact with the victims, their family members, and BTTR were not questioned during Phase II or were excused for cause. For example: potential juror Jessica de Arcos knew Rita and Jose Basulto; potential juror Daniel Fernandez knew Jose Basulto; potential juror Tim Heatly knew Jose Basulto; potential juror Sister Kuk knew government witness Marlene Alejandre, the widow of one of the killed BTTR pilots; potential juror Caroline Rodriguez knew Marlene Diaz, the daughter of one of the BTTR victims. The defendants also used a peremptory challenge to excuse Lazaro Barreiro, a former national bank examiner, who had assisted the United States Attorney’s office in Miami for three years during a grand jury investigation. Potential juror Placencia knew many of the named witnesses, and had helped raise money for BTTR while working for one of the local Cuban radio stations. The district court granted the defendants additional peremptory challenges, for a total of 18, due to the “number of very close decisions made by the Court” on challenges for cause on jurors whose claims of impartiality were difficult to believe. The defendants used 16 of their peremptory challenges to excuse jurors whose answers revealed biases against them. The government exercised its peremptory challenges as to the three prospective jurors who failed to express negative views toward Cuba. Each of the Cuban-American prospective jurors was eliminated, despite the government’s reverse Batson challenge. Following voir dire, although complimenting the district court on the conduct of voir dire, Medina’s attorney indicated his concern that there were three women seated on the jury who exemplified Professor Moran’s opinion that certain community members who were subjected to community pressures were unable to admit their underlying prejudices.

From the beginning of voir dire until the completion of the trial, the prospective and actual jurors were admonished not to discuss the case with anyone and to have no contact with media accounts or anything else related to the case. The jurors were also instructed about the presumption of innocence.

11. The Media

Throughout the trial, the district court worked at controlling media access. During a discovery hearing, the district court reminded the parties and their attorneys that they were to refrain from releasing information or opinions which could interfere with a fair trial or prejudice the administration of justice. The district judge stated that she was “increasingly concerned” that various persons connected with the case were not following her order based on the “parade of articles appearing in the media about this case.” In particular, she commented that an article about Medina’s pending motion to incur expenses to poll the community “was the lead story in the local section on Saturday in the Miami Herald.” She warned all counsel and agents associated with the case that appropriate action would be taken and that the U.S. Attorney’s Office would be held responsible. She directed that “[tjhis case ... not ... get advertised anywhere in the media for any reason whatsoever.”

As the case proceeded to trial, media attention expanded. On the first day of voir dire, the district court observed that one of the victims’ families conducted a press conference which was filmed outside of the courthouse during the lunch break and that some of the jurors were approached by the media. She then acknowledged that “[t]here is a tremendous amount of media attention for this case.”

The district court extended the sequestration order to cover the jury and witnesses to ensure that they had no contact with the media, sealed voir dire questions during the jury selection, and limited the sketching of witnesses for their protection. It permitted, however, the media “access to all the evidence admitted into the trial record.”

E. The Trial

The case proceeded to a jury trial on 27 November 2000. On 30 November, Hernandez’s attorney raised the issue of the seating in the courtroom, specifically, the prejudice resulting from the assigned seating of the victims’ families and the lack of seating available for the defendants’ families. He argued that, as witnesses, the victims’ families should not be seated behind the government. The district court then reassigned the seating, so that the victims’ families were seated in a row removed from the government and the defendants’ families were given assigned seats.

Defense witness Jose Basulto, a Cuban-American who had worked with the Central Intelligence Agency to infiltrate the Cuban government, testified that he was “dedicated to promot[ing] democracy in Cuba.” When questioned about his activities during 1995, he responded by asking Hernandez’s defense counsel whether he was “doing the work” of the Cuban intelligence community. At the request of Hernandez’s attorney, the trial judge struck the comment and the jury was instructed to disregard the comment. Following a recess, Campa’s counsel argued that Basulto’s insinuation was

precisely the kind[] of problem[] that we were afraid of when we filed our motions for a change of venue, and ... in the aftermath of the events of February 24, 2001, we renewed our motion for ... a change of venue based on the pretrial publicity, the publicity that has been generated during the course of the trial and our concern with our ability to obtain a fair trial in this community given that background.

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

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

F. The Evidence at Trial

Campa, Gonzalez, Guerrero, Hernandez, and Medina, as well as others, were members of a Cuban government intelligence operation identified as “La Red Avispa,” or the Wasp Network, which was charged with infiltrating, monitoring, and disrupting the work of certain militant Cuban exiles in South Florida. Directorate Intelligence (“DI”) Officers Hernandez, Medina, and Campa supervised agents, including agents Gonzalez and Guerrero. The Wasp Network reported information to Cuba on: (1) the activities of anti-Castro organizations in Miami-Dade County; (2) the operation of United States military installations including those at Boca Chica Naval Air Station (“NAS”), MacDill Air Force Base (“MacDill”), Barksdale Air Force Base (“Barksdale”), and the United States Southern Command (“South-Corn”); and (3) United States political and law enforcement activities. The group was also charged with intimidating Cuban-American individuals and organizations with threatening letters and telephone calls; penetrating United States Congressional election activities; scouting and assessing potential sources of information and possible new recruits; and carrying communications, cash, and other items between Miami and other United States-based DI officers and agents. None of the Wasp Network members notified the United States Attorney General that they were acting as agents of the Cuban government. Members of the Wasp Network and the DI frequently communicated and delivered items through the Cuban delegations’ diplomatic cover.

The Wasp Network members evaded detection through the use of false identities and code names, counter surveillance for contacts and communications, and DI decrypted written and broadcast communications. Campa, Hernandez, and Medina falsely identified themselves through elaborate “legends,” or biographies, which were supported by documents provided by the DI, and used these documents when they dealt with United States border and law enforcement personnel and when they obtained drivers licenses, passports, and other identification. They also had back-up, or “reserve,” false identities in which the agents used the names and other identification of United States citizens who had visited Cuba. The agents used these back-up identities when they traveled or if their primary “legend” was compromised.

The Cuban exile groups of concern to the Cuban government included Alpha 66, Brigade 2506, BTTR, Independent and Democratic Cuba (“CID”), Comandos F4, Commandos L, CANF, the Cuban American Military Council (“CAMCO”), the Ex Club, Partido de Unidad Nacional Democrática (PUND) or the National Democratic Unity Party (NDUP), and United Command for Liberation (CLU). 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. Alpha-66 members were intercepted on their way to assassinate Castro in 1997. Brigade 2506 ran a youth paramilitary camp. BTTR flew into Cuban air space from 1994 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.

The BTTR’s flights over Cuba were of particular concern to the Cuban government. Sometime after 13 July 1995, the Federal Aviation Administration (“FAA”) conveyed the Cuban government’s threats to the BTTR that unauthorized planes flying into Cuban airspace would be forced to land or shot down. On 9 and 13 January 1996, BTTR dropped thousands of leaflets into Cuba, which were printed with portions of the United Nations’ Universal Declaration of Human Rights and which encouraged Cubans to fight for their rights. In January 1996, BTTR President and Director Jose Basulto appeared on a United States-controlled Radio Marti program broadcast into Cuba claiming responsibility for dropping leaflets earlier that month and stating that BTTR advocated the use of civil disobedience. The Cuban government protested to the United States about the airspace violations, complained that the measures used by the FAA to impede such flights were insufficient, and noted that unauthorized flights would be interrupted by force.

On 22 January 1996, the FAA’s liaison to the State Department wrote the regional FAA office in Miami regarding these Cuban airspace violations. She stated that she had been advised of another unauthorized flight on 20 January, and that

this latest overflight can only be seen as further taunting of the Cuban Government. State is increasingly concerned about Cuban reaction to these flagrant violations. They are also asking from the FAA what is this agency doing to prevent/deter these actions ... [and] our case against Basulto. Worst case scenario is that one of these days the Cubans will shoot down one of these planes and the FAA better have all its ducks in a row.

In early February 1996, a member of a delegation reviewing Cuban military activities was advised by the Cuban military that it was frustrated by the lack of a favorable response from the United States considering its repeated protests regarding the light civilian airplane flights from Florida which were violating Cuban airspace. Thereafter, the delegation member met with officials from the United States Departments of Defense and State and advised them of what he perceived as a warning that Cuba was considering shooting down the flights.

On 23 February 1996, the FAA issued a “Cuba Alert” to several United States agencies. In the alert, the FAA advised they had

received a call from State Dept, indicating that since Brothers to the Rescue [BTTR] and its leader Basulto support and endorse the Concilio Cubano [an umbrella dissent organization] it would not be unlikely that the BT[T]R attempted an unauthorized flight into Cuban airspace tomorrow, in defiance of the GOC [Government of Cuba] and its policies against dissidents. State Dept, cannot confirm this will happen and is in touch with local law enforcement agencies to better determine what’s the situation. I’ve reiterated to State that the FAA cannot PREVENT flights such as this potential one, but that we’ll alert our folks in case it happens and we’ll document it (as best we can) for compliance/enforcement purposes.

State has also indicated that the GOC would be less likely to show restraint (in an unauthorized flight scenario) this time around ....

On 24 February 1996, Basulto scheduled a flight into the Florida Straits, toward Cuba, in search of reported rafters. The flight plans were filed with the FAA and transmitted to Cuba. At approximately 1:15 P.M., three BTTR aircraft departed from the Opa-Locka, Florida, airfield: N2506, carrying Basulto and others; N2456, piloted by Carlos Costa and carrying Pablo Morales; and N5485, piloted by Mario de la Pena and carrying Armando Alejandre. At approximately 3:00 P.M., the planes crossed the 24th parallel, which marks the boundary between the Miami and Havana Flight Information Regions and is in international airspace. At this point, they communicated by radio with Havana Air Traffic Control (“Havana ATC”) identifying themselves and their flights. Within minutes of the crossing, Cuban military jet fighter aircraft sighted and pursued Costa’s plane in international airspace. At 3:20 P.M., Cuban military ground control radioed that the Cuban aircraft were “authorized to destroy.” Id. Accordingly, the Cuban military aircraft fired on and destroyed the plane. A few moments later, the Cuban fighter jet sighted the plane piloted by de la Pena and shot it down. The shoot downs of the two BTTR planes were observed both by occupants of a fishing boat and by the crew and passengers onboard a cruise ship. The bodies of the people in the aircraft, three of whom were United States citizens, were never recovered. Both planes were in international airspace, flying away from Cuba, when they were shot down; they had not entered Cuban airspace.

Lieutenant Colonel Roberto Hernandez Caballero, of the Ministry of Cuba Department of State Security, testified that he investigated a number of terrorist acts in Havana and in other locations at Cuban-owned facilities during 1997. He 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 CAM-CO.” 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].” Hernandez’s contact was instructed to elaborate on the information that he had obtained. 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. 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 in March 1999.

Hernandez worked in the United States from 1994 to 1998, supervising unregistered Cuban agents Juan Roque and Rene Gonzalez who both infiltrated the BTTR organization, and Operation Aeropuerto which was Guerrero’s penetration of the NAS. In late 1995 and early 1996, Hernandez participated in a plan to have Ro-que return to Cuba to undermine the BTTR. He also directed an agent to apply for a job with Southcom, and later supervised Operation Suroc which was the agents’ penetration of Southcom. In late January 1996, he received a series of messages from the Cuban government announcing “Operación Escorpión,” which involved confronting the counter-revolutionary efforts of the BTTR in late January 1996. In the messages, Roque and Gonzalez were directed to provide Cuba with specific information through codes regarding the BTTR flying missions; Roque and Gonzalez were advised not to fly on these missions. Hernandez was later recognized for his “decisive” role in Operations Venicia and German, in which “the Miami right [was dealt] a hard blow.”

Hernandez also participated in the spread of disinformation. He was asked to mail DI-furnished letters, purporting to be from a “counterrevolutionary” organization which threatened members of Congress who supported lifting the embargo on Cuba in order to provoke the defeat of members of Cuban-American descent. Hernandez suggested a number of projects in south Florida: making threatening phone calls to a newspaper publisher which appeared to come from a CANF supporter; testing BTTR’s airplane security for sabotage feasibility; and publishing a book suggesting that BTTR founder Ba-sulto knew in advance that his BTTR followers would be shot down over Cuba. He asked Gonzalez to provide information to M-III about funding for anti-Castro sabotage, disagreements in the Miami-Cuban community about the Pope’s visit to Cuba, and disagreements within CANF over its internal leadership succession and future terrorist plans. In August 1998, Hernandez reported to the Cuban government on information that he had learned from a newspaper article that Alpha 66 camp participants, armed with rifles and semiautomatic machine guns, simulated an attack on a Cuban air base, and that an identified individual had claimed to have participated in Cuban hotel bombings in 1992, 1994, and 1995. He also shared the news from the article that 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.

Medina worked with Guerrero and assumed his supervision from Hernandez in June 1997. He also supervised Operation Suroc and worked with agents who had been recruited by Hernandez to penetrate Southcom. In May 1997, Medina was asked by the DI to gather information regarding infiltrating various local, state, and federal agencies located in Florida, including military bases, the Coast Guard, the Immigration and Naturalization Service (“INS”), and the Federal Bureau of Investigation (“FBI”).

At some point, Campa took over supervision of several operations from Hernandez and Medina, including Operation Aero-puerto and Operation Suroc. Campa admitted that he and several of his code-fendants worked secretly on behalf of the Cuban government to gather and relay information concerning the activities of numerous local, extremist anti-Castro groups and individuals who had previously conducted terrorist acts against Cuba. He was also directed to work on a number of operations, including Operation Rainbow/Arcoiris, Operation Brown/Morena, Operation Fog/Neblina, Operation Paradise/Paraiso, Operation Giron, and others. Operation Rainbow involved filming a meeting between CANF leader Orlando Bosch, Alpha 66 and PUND leader Ruben Dario Lopez and a Cuban agent to plan a shipment of weapons into Cuba for the proposed assassination of Castro; other participants included Campa, Hernandez, and two other Cuban agents. Operation Brown required Campa to keep an eye on Bosch in order to learn his relationships and movements, and the places he frequented. Operation Fog involved Cam-pa and Medina monitoring the activities of Roberto Martin Perez, a member of the board of directions for the CANF, which the Cuban government believed was responsible for two July 1997 hotel bombings. In Operation Paradise, Campa and others, including Rene Gonzalez and other Cuban agents, gathered information on the paramilitary activities of Cuban exile groups operating in the Bahamas, including CANF, Alpha 66, Cuba 21, BTTR, and individuals in those organizations. Operation Giron was an attempt to infiltrate CANF, which involved Medina and later Campa as a temporary replacement for Medina. 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. The agents were instructed to consider disabling the boats by burning or damaging them or anonymously notifying the FBI about the boats. Campa and Hernandez also unsuccessfully tried to locate the Comandos L camp F-4, near Clewiston, Florida, with directions provided to them by the Cuban government.

The agents supervised by Campa and Medina operated with a separate small budget requiring approval by the authorities in Cuba, and the officers shared housing to economize. Campa lived in an apartment owned by Hernandez from November 1997 until February 1998, and in an apartment shared with Medina from July until September 1998.

Guerrero was listed as a part of a different operative base which carried out MV missions, including those targeting United States military installations. Under Operation Aeropuerto, Guerrero achieved “long-term” penetration of the NAS through his employment in the Public Works Department in 1993. He was employed in maintaining the sewage lift-off stations and had access to many areas of the NAS. Although he executed several United States loyalty affidavits as conditions of that employment, he was also fulfilling a DI work plan to obtain military information, to conduct visual intelligence of the NAS, and to search for operational resources.

Guerrero delivered frequent detailed reports to Campa, Hernandez, and Medina regarding the deployment of United States military assets at the NAS from 1994 through 1997.

Gonzalez worked in a number of operations and “active measures.” He was furnished with proposed text for anonymous letters and telephone calls by Hernandez and was directed to consider ways to harass and cause dissension among the counter-revolutionary organizations by disseminating rumors that Basulto was disparaging various members. Gonzalez was directed to study BTTR’s airplane hangar, to consider burning down its warehouse and spreading rumors that BTTR had burned the warehouse for insurance money, to disable BTTR equipment and antennae, and to threaten a United States government agent with execution and send him a book bomb-appearing device.

Gonzalez was also instructed to act as an FBI informant. Shortly after the BTTR shootdown, Gonzalez told his FBI contact that he felt betrayed by Roque. After the disks found in the Avispa officers’ apartments were decrypted, the FBI again approached Gonzalez based on his BTTR association; Hernandez warned Gonzalez to act torn between his opposition to terrorism and his loyalty to the anti-Castro “brothers” and not to act like a “Castro agent.” Gonzalez reported that he had told the FBI that ethically he could not inform on the BTTR, but assured the FBI that he would contact its agents if he learned of anything that would affect United States security.

During the trial, the government described the Cuban intelligence operations as “an intelligence pyramid” headed by Fidel Castro. It suggested that the Cuban government applied the “penalty” of death for throwing things out of airplane windows, and was “repressive” and a “dictatorship”.

G. Closing Arguments

During closing arguments, the government commented that Hernandez’s attorney had called the shootdown “the final solution” and noted that such terminology had been “heard ... before in the history of mankind.” It argued that the defendants had voluntarily joined “a hostile intelligence bureau” that saw “the United States as its prime and main enemy.” It stated that “the Cuban government” had a “huge” stake in the outcome of the case, and that the jurors would be abandoning their community unless they convicted the “Cuban sp[ies] sent to ... destroy the United States.” It maintained that the Cuban government sponsored “book bombs,” “telephone threats of car bombs,” and “sabotage,” and “killed four innocent people.” It suggested that the Cuban government used “goon squads” to torture its critics. 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.” It argued that the defendants were “bent on destroying the United States” and were “paid for by the American taxpayer.” 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. The government implied that the government of Cuba was not eoop-erating with the FBI. 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. 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. It argued that Cuba was a “repressive regime [that] doesn’t believe in any [human] rights.” 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.”

Campa and Hernandez’s objections throughout the closing arguments were sustained. The jury was subsequently instructed to consider only the evidence admitted during the trial, and to remember that the lawyers’ comments were not evidence.

H. Jury Conduct and Concerns During the Trial

Five months into the trial, when one seated juror had a conflict, the court discussed the possibility of removing a juror who had a two-day conflict and seating one of the alternates. Hernandez’s attorney requested a recess, arguing that the parties and the court had worked very hard to select “a jury we are very happy with” and, with Gonzalez, Guerrero, and Medina’s attorneys, maintained that it would be unreasonable to refuse to accommodate the juror after her length of service and her request to complete the trial. The district court granted the recess.

In early February 2001, a small protest related to the trial was held outside of the courthouse, but the jury was protected from contact with the protestors and from exposure to the demonstration. On 13 March 2001, the court noted that the day before, cameras were focused on the jurors as they left the building. 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. Some of the jurors indicated that they felt pressured; therefore, the district court again modified the jurors’ entry and them exit from the courthouse and transportation.

For deliberations, the jury was moved to another floor of the courthouse with controlled access. During the deliberations, members of the jury were filmed entering and leaving the courthouse, and the media requested the names of the jurors. The jurors expressed concern that they were filmed “all the way to their cars and [that] their license plates had been filmed.” 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. 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.

I. Motions for New Trial

In late July and early August 2001, following the trial, Campa, Gonzalez, Guerrero, and Medina moved for a new trial and renewed their motions for a change of venue, arguing that their fears of presumed prejudice remained despite the district court’s efforts during voir dire. Campa asserted that the jury’s failure to ask questions and its quick verdicts in the complex, almost seven-month trial suggested that it was subject to community pressure and prejudice. Campa and 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.” 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.” 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.”

In December 2001, Guerrero, Hernandez, and Medina were sentenced to life, Campa was sentenced to 228 months, and Gonzalez was sentenced to 15 years.

In November 2002, Guerrero renewed his motion for a new trial based on newly discovered evidence; the motion was adopted by Campa, Gonzalez, Hernandez, and Medina. Guerrero argued that a new trial was warranted because of “misrepresentations of fact and law made by the United States Attorney in opposing the ... motion for change of venue” and submitted an appendix to support his argument. He also argued that the government’s position regarding change of venue was contradicted by its position in a motion for change of venue which the government filed in Ramirez v. Ashcroft, No. 01-4835-Civ-Huck (S.D.Fla. 25 June 2002).

In Ramirez, the plaintiff, a Hispanic employed by the INS, alleged a hostile work environment, unlawful retaliati