419 F.3d 1219 | 11th Cir. | 2005
The defendant-appellants, Ruben Cam-pa, Rene Gonzalez, Gerardo Hernandez,
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)
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),
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
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.
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.
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 evidence submitted in support of the motions for change of venue was massive.
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
Since then, numerous small businesses — those promoting commerce, travel, or humanitarian aid to Cuba— have been targeted by bombers.27
The government responded that the Miami-Dade Hispanic population was a “heterogeneous,” “highly diverse, even contentious” “group” immune from the influences which would preclude a fair trial.
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.
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.”
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.48
C. Voir Dire
The court held two status conferences to work out a two-phase plan for voir dire.
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.
Later that same day, a copy of the Miami Herald which contained an article about the case was found in the jury assembly room.
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.
probably would have a great deal of difficulty dealing with listening to the testimony. I would probably be a nervous wreck, if you want to know the honest truth. I could try to be as objective as possible and be as open minded as possible, but I would have some trouble dealing with the case. I guess I would be a little bit nervous and have some fear, actually fear for my own safety if I didn’t come back with a verdict that was in agreement with the Cuban community at large.63
James E. Howe, Jr. expressed concern that, “no matter what the decision in this case, it is going to have a profound effect on lives both here and in Cuba.”
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.
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,
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.
From the beginning of voir dire until the completion of the trial, the prospective and actual jurors
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 court extended the sequestration order to cover the jury and witnesses to ensure that they had no contact with the media,
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.
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.”
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 ac*1241 cused. 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.151
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.
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.
The Cuban exile groups of concern to the Cuban government included Alpha 66,
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 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*1246 Cubans will shoot down one of these planes and the FAA better have all its ducks in a row.178
In early February 1996, a member of a delegation reviewing Cuban military activities was advised by the Cuban military that it was frustrated by the lack of a favorable response from the United States considering its repeated protests regarding the light civilian airplane flights from Florida which were violating Cuban airspace.
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 ....181
On 24 February 1996, Basulto scheduled a flight into the Florida Straits, toward Cuba, in search of reported rafters.
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.
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,
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.
At some point, Campa took over supervision of several operations from Hernandez and Medina, including Operation Aero-puerto and Operation Suroc.
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.
Guerrero was listed as a part of a different operative base which carried out MV
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 also instructed to act as an FBI informant.
During the trial, the government described the Cuban intelligence operations as “an intelligence pyramid” headed by Fidel Castro.
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.”
Campa and Hernandez’s objections throughout the closing arguments were sustained.
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.
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.
For deliberations, the jury was moved to another floor of the courthouse with controlled access.
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.
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.
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.
[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.
8. Historically, media articles relating to Elian Gonzalez and the handling of his return to his father have persisted from November 1999 to the present [June 2002].274
The government argued that [i]t cannot be disputed that the return of Elian Gonzalez to his father in Cuba created a serious rift in this community, a rift which continues to the present. This rift exists not only between Hispanics and non-Hispanics, but also between Cubans a[n]d non-Cubans and within the Cuban community itself. It is beyond dispute that virtually every person in Miami-Dade county [sic] has a strong opinion, one way or another, regarding the INS and the U.S. Attorney General’s Office, and the manner in which the Elian Gonzalez matter was handled. The effect of the media coverage ... serves to foment and revive these feelings on an ongoing basis .... As such the media accounts cannot do anything other than create the general state of mind where the inhabitants of Miami-Dade County are so infected by knowledge of the incident and accompanying prejudice, bias, and preconceived opinions that jurors could not possibly put these matters out of their minds and try the instant case solely on the evidence presented in the courtroom .... Under such circumstances and strongly held emotions, and in light of the media coverage ..., it will be virtually impossible to ensure that the defendants will receive a fair trial if the trial is held in Miami-Dade County.275
The government requested “a change in the location/venue” “outside of Miami Dade County to ensure that the Defendant ... receive a fair and impartial trial on the merits of the case.”
The appendix filed in support of the motion for new trial included an affidavit by Professor Moran, news articles, and reports by Human Rights Watch regarding threats to the freedom of expression within the Miami Cuban exile community.
Dr. Pérez concluded that “the possibility of selecting twelve citizens of Miami-Dade County who can be impartial in a case involving acknowledged agents of the Cuban government is virtually zero ... even if the jury were composed entirely of non-Cubans, as it was in this case.”
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.”
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.
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).
“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).
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).
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).
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”).
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.
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).
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
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); Mayóla, 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.
One of the matters to consider in reviewing the totality of the circumstances is an extensive voir dire. See Patton v. Yount, 467 U.S. 1025, 1029, 1034, 104 S.Ct. 2885, 2888, 2890, 81 L.Ed.2d 847 (1984); Jordan v. Lippman, 763 F.2d 1265, 1276 (11th Cir.1985) (noting “the fundamental importance of voir dire as a tool for insuring the right to an impartial jury”). Presumed prejudice can be shown through admitted prejudice or the demeanor and credibility of the venire. See Patton, 467 U.S. at 1029, 1038, 104 S.Ct. at 2888, 2892.
Where, however, the court reviewed an extensive public opinion survey of potential jurors and a purported jury prejudice expert’s analysis of media coverage, where a thorough voir dire was conducted by the court and counsel, and where the jury panel was accepted by counsel without the renewal of a motion for change of venue, a defendant’s rights were held to be sufficiently safeguarded. See Fuentes-Coba, 738 F.2d at 1194-95. Further, the presumption of prejudice was not found where, although “virtually every
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.
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).
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).
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).
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!,] M new trial must be awarded.” Id. at 89, 55 S.Ct. at 633.
Here, a new trial was mandated by the perfect storm created when the surge of pervasive community sentiment, and extensive publicity both before and during the trial, merged with the improper prosecutorial references. The district court’s instructions to the jury only generally reminded the jury that statements by the attorneys were not evidence to be considered. The community’s displeasure with the Elian Gonzalez controversy paled in comparison with its revulsion toward the 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
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.
. The defendants raise numerous other issues unrelated to the change of venue. Campa, Gonzalez, Guerrero, Hernandez, and Medina argue prosecutorial misconduct regarding the misconduct of a government witness and during closing argument, improper use of the Classified Information Procedures Act, improper denial of a motion to suppress fruits of searches under the Foreign Intelligence Surveillance Act, Batson violations, insufficiency of the evidence regarding the conspiracy to transmit national defense information to Cuba, improper denial of a jury instruction regarding specific intent, and sentencing errors. Campa, Gonzalez, and Medina contend that the evidence was insufficient on the counts relating to violations of the Foreign Services Registration Act. Campa and Guerrero maintain that the district court improperly denied their jury instruction on necessity and justification. Hernandez raises the denial of a motion to dismiss Count III based on Foreign Sovereign Immunities Act jurisdictional grounds and insufficiency of the evidence for conspiracy to commit murder. Because we reverse their convictions based on the denial of their motions relating to change of venue, we do not address these additional issues.
. Section 951 states:
(a) Whoever, other than a diplomatic or consular officer or attache, acts in the United States as an agent of a foreign government without prior notification to the Attorney General if required in subsection (b), shall be fined under this title or imprisoned not more than ten years, or both.
(b) The Attorney General shall promulgate rules and regulations establishing requirements for notification.
18 U.S.C. § 951(a) and (b).
In 28 C.F.R. § 73.1, the Attorney General set forth definitions for the terms used in the statute:
*1224 (a) The term agent means all individuals acting as representatives of, or on behalf of, a foreign government or official, who are subject to the direction or control of that foreign government or official, and who are not specifically excluded by the terms of the Act or the regulations thereunder.
(b) The term foreign government includes any person or group of persons exercising sovereign de facto or de jure political jurisdiction over any country, other than the United States, or over any part of such country, and includes any subdivision of any such group or agency to which such sovereign de facto or de jure authority or functions are directly or indirectly delegated. Such term shall include any faction or body of insurgents within a country assuming to exercise governmental authority whether such faction or body of insurgents has or has not been regarded by the United States as a governing authority.
(c) The term prior notification means the notification letter, telex, or facsimile must be received by the addressee named in § 73.3 prior to commencing the services contemplated by the parties.
28 C.F.R. § 73.1(a)-(c).
Foreign agents are to provide notification to the Attorney General as follows:
(a) Notification shall be made by the agent in the form of a letter, telex, or facsimile addressed to the Attorney General, directed to the attention of the Registration Unit of the Criminal Division, except for those agents described in paragraph[] (b) ... of this section. The document shall state that it is a notification under 18 U.S.C. § 951, and provide the name or names of the agent making the notification, the firm name, if any, and the business address or addresses of the agent, the identity of the foreign government or official for whom the agent is acting, and a brief description of the activities to be conducted for the foreign government or official and the anticipated duration of the activities. Each notification shall contain a certification, pursuant to 28 U.S.C. § 1746, that the notification is true and correct.
(b) Notification by agents engaged in law enforcement investigations or regulatory agency activity shall be in the form of a letter, telex, or facsimile addressed to the Attorney General, directed to the attention of Interpol-United States National Central Bureau. Notification by agents engaged in intelligence, counterintelligence, espionage, counter-espionage or counterterrorism assignment or service shall be in the form of a letter, telex, or facsimile addressed to fire Attorney General, directed to the attention of the nearest FBI Legal Attache. In case of exceptional circumstances, notification shall be provided contemporaneously or as soon as reasonably possible by the agent or the agent's supervisor. The letter, telex, or facsimile shall include the information set forth in paragraph (a) of this section.
(d) Any subsequent change in the information required by paragraph (a) of this section shall require a notification within 10 days of the change.
(e) Notification under 18 U.S.C. § 951 shall be effective only if it has been done in compliance with this section, or if the agent has filed a registration under the Foreign Agents Registration Act of 1938, as amended, 22 U.S.C. § 611, et seq., which provides the information required by paragraphs (a) and (d) of this section.
28 C.F.R. § 73.3(a), (b), (d), (e).
Under 18 U.S.C. § 371:
If two or more persons conspire either to commit any offense against the United States, or to defraud the United States, or any agency thereof in any manner or for any purpose, and one or more of such persons do any act to effect the object of the conspiracy, each shall be fined under this title or imprisoned not more than five years, or both.
. Rl-224 at 3-4.
. Id. at 11.
. Id. 18 U.S.C. § 794(a) provides that:
Whoever, with intent or reason to believe that it is to be used to the injury of the United States or to the advantage of a foreign nation, communicates, delivers, or transmits, or attempts to communicate, deliver, or transmit, to any foreign government, or to any faction or party or military or naval force within a foreign country, whether recognized or unrecognized by the United States, or to any representative, officer, agent, employee, subject, or citizen thereof, either directly or indirectly, any document, writing, code book, signal book, sketch, photograph, photographic negative, blueprint, plan, map, model, note, instrument, appliance, or information relating to the national defense, shall be punished by death or by imprisonment for any term of years or for life, except that the sentence of death shall not be imposed unless the jury or, if there is no jury, the court, further finds that the offense resulted in the identification by a foreign power (as defined in section 101(a) of the Foreign Intelligence Surveillance Act of 1978) of an individual acting as an agent of the United States and consequently in the death of that individual, or directly concerned nuclear weaponry, military spacecraft or satellites, early warning systems, or other means of defense or retaliation against large-scale attack; war plans; communications intelligence or cryptographic information; or any other major weapons system or major element of defense strategy.
18 U.S.C. § 794(c) states:
If two or more persons conspire to violate this section, and one or more of such persons do any act to effect the object of the conspiracy, each of the parties to such conspiracy shall be subject to the punishment provided for the offense which is the object of such conspiracy.
Under 18 U.S.C. § 2:
(a) Whoever commits an offense against the United States or aids, abets, counsels, commands, induces or procures its commission, is punishable as a principal.
(b) Whoever willfully causes an act to be done which if directly performed by him or another would be an offense against the United States, is punishable as a principal.
. Id. at 23.
. 18 U.S.C. § 1111 states:
(a) Murder is the unlawful killing of a human being with malice aforethought. Every murder perpetrated by poison, lying in wait, or any other kind of willful, deliberate, malicious, and premeditated killing; or committed in the perpetration of, or attempt to perpetrate, any arson, escape, murder, kidnapping, treason, espionage, sabotage, aggravated sexual abuse or sexual abuse, child abuse, burglary, or robbery; or perpetrated as part of a pattern or practice of assault or torture against a child or children; or perpetrated from a premeditated design unlawfully and maliciously to effect the death of any human being other than him who is killed, is murder in the first degree.
Any other murder is murder in the second degree.
(b) Within the special maritime and territorial jurisdiction of the United States,
Whoever is guilty of murder in the first degree shall be punished by death or by imprisonment for life;
Whoever is guilty of murder in the second degree, shall be imprisoned for any term of years or for life.
If two or more persons conspire to violate section 1111, 1114, 1116, or 1119 of this title, and one or more of such persons do any overt act to effect the object of the conspiracy, each shall be punished by imprisonment for any term of years or for life.
. Fraud and misuse of passports and visas is governed by 18 U.S.C. § 1546:
(a) Whoever knowingly forges, counterfeits, alters, or falsely makes any immigrant or nonimmigrant visa, permit, border crossing card, alien registration receipt card, or other document prescribed by statute or regulation for entry into or as evidence of authorized stay or employment in the United States, or utters, uses, attempts to use, possesses, obtains, accepts, or receives any such visa, permit, border crossing card, alien registration receipt card, or other document prescribed by statute or regulation for entry into or as evidence of authorized stay or employment in the United States, knowing it to be forged, counterfeited, altered, or falsely made, or to have been procured by means of any false claim or statement, or to have been otherwise procured by fraud or unlawfully obtained; or Whoever, except under direction of the Attorney General or the Commissioner of the Immigration and Naturalization Service, or other proper officer, knowingly possesses any blank permit, or engraves, sells, brings into the United States, or has in his control or possession any plate in the likeness of a plate designed for the printing of permits, or makes any print, photograph, or impression in the likeness of any immigrant or nonimmigrant visa, permit or other document required for entry into the United States, or has in his possession a distinctive paper which has been adopted by the Attorney General or the Commissioner of the Immigration and Naturalization Service for the printing of such visas, permits, or documents; or
Whoever, when applying for an immigrant or nonimmigrant visa, permit, or other document required for entry into the United States, or for admission to the United States personates another, or falsely appears in the name of a deceased individual, or evades or attempts to evade the immigration laws by appearing under an assumed or fictitious name without disclosing his true identity, or sells or otherwise disposes of, or offers to sell or otherwise dispose of, or utters, such visa, permit, or other document, to any person not authorized by law to receive such document; or
Whoever knowingly makes under oath, or as permitted under penalty of perjury under section 1746 of title 28, United States Code, knowingly subscribes as true, any false statement with respect to a material fact in any application, affidavit, or other document required by the immigration laws or regulations prescribed thereunder, or knowingly presents any such application, affidavit, or other document which contains any such false statement or which fails to contain any reasonable basis in law or fact—
Shall be fined under this title or imprisoned not more than 25 years (if the offense was committed to facilitate an act of international terrorism (as defined in section 2331 of this title)), 20 years (if the offense was committed to facilitate a drug trafficking crime (as defined in section 929(a) of this title)), 10 years (in the case of the first or second such offense, if the offense was not committed to facilitate such an act of international terrorism or a drug trafficking crime), or 15 years (in the case of any other offense), or both.
. 18 U.S.C. § 1028(a)(3) provides:
Whoever, in a circumstance described in subsection (c) of this section—
(3) knowingly possesses with intent to use unlawfully or transfer unlawfully five or more identification documents (other than those issued lawfully for the use of the possessor), authentication features, or false identification documents
shall be punished as provided in subsection (b) of this section.
. Codefendants Albert Manuel Ruiz (Count 18), Juan Pablo Roque (Count 19), John Doe No. 5 a/k/a Ricardo Villareal (Count 20), John Doe No. 6 a/k/a Remijio Luna (Count 21), Alejandro Alonso (Count 22), Nilo Hernandez (Count 23), and Linda Hernandez (Count 24) were also charged with having acted as unregistered agents, in violation of 18 U.S.C. §§ 951 and 2. Ruiz was also charged with causing Alonso (Count 22), Nilo Hernandez (Count 23), and Linda Hernandez (Count 24) to act as unregistered agents, in violation §§ 951 and 2. Roque remains unapprehend-ed.
. R7-978 at 3; R21 at 117.
. Rl-280 at 2; R18 at 11-12.
. Rl-280 at 3.
. R2-303.
. 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 "[vjirulent anti-Castro sentiment” in the community. Id. at 3.
Although Campa, Gonzalez, Guerrero, and Medina had originally argued that the case should be moved to another judicial district, during oral argument on the motions, they agreed that they would be satisfied with a transfer of the case within the district from the Miami division to the Fort Lauderdale division. R5-586 at 2 n. 1.
. R2-321 at 3; R2-316 at 2; R2-317 at 2; R2-324 at 1; R2-329 at 1; R2-334 (containing news articles which detail the history of anti-Castro sentiment in Miami); R3-397 at 1; R3-453 at 1-2; R3-455 at 2; R3-461 at 2-3.
. R2-329 at 1, 3; R2-334; R3-397; R3-455.
. The following articles specifically addressing the conspiracy and the indicted defendants were attached as exhibits in support of the motions for change of venue: George Gedda, Federal officials say 10 airested, accused of spying for Cuba, Miami Herald, Sept. 14, 1998, R2-334, Ex.; Manny Garcia, Cynthia Corzo, Ivonne Perez, Spies among us: Suspects attempted to blend in, Miami, Miami Herald, Sept. 15, 1998, at Al, R2-334; David Lyons, Carol Rosenberg, Spies among us: U.S. craclcs alleged Cuban ring, arrests 10, Miami Herald, Sept. 15, 1998, at Al, R2-329, Ex. A; R2-334, Ex.; Spies among us, Miami Herald, Sept. 15, 1998, at 14A, R2-329, Ex. F; Fabiola Santiago, Big news saddens, angers exile community, Miami Herald, Sept. 15, 1998, R2-334, Ex.; Juan O. Tamayo, Airest of spy suspects may be switch in tactics, Miami Herald, Sept. 15, 1998, R2-334, Ex.; Javier Lyonnet, Olance Nogueras, Cae red de espio-naje de Cuba/FBI viro'al revés casa de supuesto cabecilla and Pablo Alfons, Rui Ferreira, Cae red de espionaje de Cuba!Arrestan a 10 en Miami, Nuevo Herald, Sept. 15, 1998, at Al, R2-329, Ex. B; La Habana Contra El Pentá-gono (“Havana versus the Pentagon"jlEstruc-tura de la Red de Espionaje, Nuevo Herald, Sept. 15, 1998, R2-329, Ex. C; Airest of alleged Cuban spies demands vigorous prosecution, Sun-Sentinel, Sept. 16, 1998, at 30A, R2-329, Ex. G; Juan O. Tamayo, Miscues blamed on military's takeover of Cuban spy agency, Miami Herald, Sept. 17, 1998, at 13A, R2-334, Ex.; David Kidwell, Motion could delay trials of alleged 10 Cuban spies, Miami Herald, Oct. 6, 1998, at Bl, R2-334, Ex.; David Lyons, Cuban couple pleads guilty in spying case, Miami Herald, Oct. 8, 1998, at Al, R2-334, Ex.; David Kidwell, Three more accused spies agree to plead guilty, Miami Herald, Oct. 9, 1998, at 4B, R2-329, Ex. H; R2-334, Ex.; Carol Rosenburg, Couple admits role in Cuban spy ring, Miami Herald, Oct. 22, 1998, at 5B, R2-329, Ex. H; Juan O. Tamayo, U.S.Cuba spy agency contacts began a decade ago, Miami Herald, Oct. 31, 1998, R2-334, Ex.; David Kidwell, U.S. tries to tie espionage case to planes’ downing, Miami Herald, Nov. 13, 1998, at Al, R2-334, Ex.; Carol Rosenberg, Identities of 3 alleged spies still unknown, Nov. 14, 1998, at Bl, R2-334, Ex.; Juan O. Tamayo, Spies Among Us/Castro Agents Keep Eye on Exiles, Miami Herald, Apr. 11, 1999, R2-329, Ex. D; R2-334, Ex.; Carol Rosenberg, Shadowing of Cubans a classic spy tale, Miami Herald, Apr. 16, 1999, at Al, R2-329, Ex. E; R2-334, Ex.; Cuban spy indictment/Charges filed in downing of exile fliers/The Brothers to the Rescue Shootdown: David Lyons, Castro agent in Miami cited by U.S. grand jwy, Juan O. Tamayo, Brothers to the Rescue Shootdown/Top spy planned Brothers ambush, and Elaine de Valle, Relatives: Charges fall short, Miami Herald, May 8, 1999, R2-334, Ex.; Confessed Cuban spy receives seven years, Miami Herald, Jan. 29, 2000, at Bl, R2-355 at C-2; Contrite Cuban spy couple sentenced, Miami Herald, Feb. 3, 2000, at B5, R3-355 at D-2; Miami Spy-Hunting, Miami Herald, Feb. 19, 2000, at 21A, R3-397, Ex. G-l; Carol Rosenberg, Confessed Cuban spies sentenced to seven years, Miami Herald, Feb. 24, 2000, at IB, R3-397, Ex. 1-1; Terrorism must not win in Brothers to the Rescue shoot-down, Miami Herald, Feb. 24, 2000, at 8B, R3-397, Ex. J-l (“More than compensation, the families want the moral sting of a U.S. criminal prosecution in federal court. So far there is only one indictment: Gerardo Hernandez, alleged Cuban spy-ring leader, charged last year with conspiracy to murder in connection to the shoot down.”); Brothers Pilots Remembered (photo), Miami Herald, Feb. 25, 2000, at Bl, R3-397, Ex. K-l; Marika Lynch, Shot-down Brothers remembered, Miami Herald, Feb. 25, 2000, at 2B, R3-397, Ex. L-l.
. R15-1636, Ex. 9.
. Id.
. R2-321, Ex. A at 10.
. Id. at Ex. A at 12; see id. at Ex. E at 3.
. Id. at Ex. A at 11-12.
. Id. at Ex. A at 13; id. at Ex. E at 3.
. Id. at Ex. A at 13.
. R3-397, Exs.; R4-483, Exs.; R4-498, Exs.
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.
As to the general anti-Castro sentiments and the conditions in Cuba: Juan O. Tamayo, Former U.S. Pows Detail Torture by Cubans in Vietnam/Savage beatings bent captives to will of man dubbed “Fidel", Miami Herald, Aug. 22, 1999, at Al, R2-329, Ex. I; Juan O. Tamayo, Cuba toughens craclcdown/"Biggest wave of repression so far this year", Miami Herald, Nov. 11, 1999, at Al, R2-329, Ex. K; Juan O. Tamayo, Witnesses link Castro, drugs, Miami Herald, Jan. 4, 2000, at B3, R2-329, Ex. J; Marika Lynch, Castro-challenging pilot is offered parade, honors, Jan. 4, 2000, at Bl, R2-329, Ex. M; Jim Morin, Cuba: I cannot speak my mind (cartoon), Miami Herald, Jan. 20, 2000, R2-329, Ex. P.
As to Elian Gonzalez: Juan O. Tamayo, Castro Ultimatum/Retum boy in 72 hours or migration talks at risk, Miami Herald, Dec. 6,
1999, at 1A, R2-329, Ex. N; Sara Olkon, Gail Epstein Nieves, Martin Merzer, The Saga of Elian Gonzalez/Protest and Passion Spread to the Streets/Sit-ins block intersections and disrupt Dade traffic and Politicians, lawyers work to halt 6-year-old’s return, Miami Herald, Jan. 7, 2000, 1A, I see no basis for reversing decision, Reno says and Sara Olkon, Anabelle de Gale, Marika Lynch, Pained Cuban exiles disagree on what’s best for Elian, Miami Herald, Jan. 7, 2000, at 17A, U.S. Preparations for boy’s return start slowly, The Miami Herald, Jan. 7, 2000, at 18A, R2-329, Ex. O; Peaceful Rally (photo), Miami Herald, Jan. 9, 2000, at 1A, R2-329, Ex. N; Jay Weaver, 3rd judge gets high profile in Elian case, Miami Herald, Feb. 23, 2000, at IB, R3-397, Ex. A-l; Sandra Marquez Garcia, Mary “appears” near Elian, Miami Herald, Mar. 26, 2000, at IB, R4-483, Ex. E-3; Alfonso Chardy, Authorities keep watch on exile groups, Miami Herald, Mar. 29,
2000, at 10A, R4-483, Ex. C-3; Vigilant protestors, Miami Herald, Mar. 29, 2000, at 10A, R4-483, Ex. 1-3; Andres Viglucci, Jay Weav
As to Mariano Faget: Elaine de Valle, Fabi-ola Santiago, and Marika Lynch, FBI: Official in INS spied for Cuba, Miami Herald, Feb. 18, 2000, at Al, R3-397 at C-l; Amy Driscoll, Juan Tamayo, Spy bait talcen instantly/Alleged Cuban agent phoned contact after receiving false FBI information, Fabiola Santiago, Aloof suspect with high clearance was ideally positioned to do harm, and Tracking Faget (photos), Miami Herald, Feb. 19, 2000, at Al, R3-397 at B — 1; Don Bohning, Faget’s father was a brutal Batista official, Miami Herald, Feb. 19, 2000, at 21 A, R3-397, Ex. G-l; Frank Davies, Cuba, U.S. still fight Cold War, Miami Herald, Feb. 19, 2000, at 21 A, R3-397, Ex. H-l; Juan O. Tamayo, Cuban diplomat expelled over spy link, Miami Herald, Feb. 20, 2000, at Al, R3-397, at D-l; Liz Balmaseda, Spy case boosts worst suspicions, Miami Herald, Feb. 21, 2000, at Bl, R3-397, at F-l; Juan O. Tamayo, Cuban diplomat linked to Elian, INS spy case, Miami Herald, Feb. 22, 2000, at Al, R3-397, at E-l; Juan O. Ta-mayo, More exiles maneuvering for business with Cuba, Miami Herald, Mar. 5, 2000, at A-1, R3-455 at A-2; Ana Radelat and Jan O. Tamayo, FBI agents expel defiant Cuban envoy, Miami Herald, at A-l, R3-455 at B-2.
As to the business ban: Marika Lynch, Fernando Almanzar, Protest, taping set to follow Van Van show, Miami Herald, Sept. 28, 1999, at 3B, and Tyler Bridges, Andres Viglucci, Miami may bar Van Van next time/County’s Penelas also opposed, Miami Herald, Oct. 13, 1999, at Bl, R2-329, Ex. L; Don Finefrock, Ban on business with Cuba tightened, Miami Herald, Feb. 25, 2000, at 2A, R3-397, Ex. M-1; Jordan Levin, Miami-Dade threatens to cancel film fest grant/Cuban movie collides with county law, Miami Herald, Feb. 25, 2000, at 1A, R3-397, Ex. N-l; Jordan Levin, Groups "warned" on Cuba resolution, Miami Herald, May 15, 2000, at IB, R4-498, Ex. E-4; Decenas De exiliados se congregaron ante la Corte Federal para reclamar el derecho de Eli-an Gonzalez a permanecer en EU, R3-455, Ex. E-2.
. R4-498, Ex. A-4.
. R3-443 at 11.
. United States v, Hernandez, 106 F.Supp.2d 1317 (S.D.Fla.2000); R5-586.
. Hernandez, 106 F.Supp.2d at 1323-24.
. R5-656 at 2-3.
. Id. at 2.
. Id. at 3 (internal punctuation omitted).
. Id. The following articles were included as exhibits: Rui Ferreira, Cuba helps defense at spy trial, Miami Herald, Aug. 18, 2000, at IB, R5-656, Ex. A; Rui Ferreira, Funcionar-ios cubanos irán al juicio de los espías, Nuevo Herald, Aug. 18, 2000, at 17A, R5-656, Ex. B; Cuba colaborará en juicio por espionaje, Nuevo Diario, Aug. 19, 2000, at 61, R5-656, Ex. C; Rui Ferreira, Un misterioso coronel cubano se suma al caso de los espías, Nuevo Herald, Aug. 21, 2000, at 21A, R5-656, Ex. D; To the point/Mr. President, define “handshake", Miami Herald, Sept. 11, 2000, at 6B, R5-656, Ex. F; and Accused spy seelcs release of U.S. documents, Miami Herald, Sept. 12, 2000, at 33, R5-656, Ex. E.
. R6-723 at 2.
. Id. at 2-3 (internal quotations omitted).
. R6-765.
. R70 at 7130-36; R81 at 8947-49. Although the district court did not overtly deny these motions, the motion based on community events and publicity was apparently resolved by "no response” to an inquiry to the jury as to whether they had “seen, heard, read, or [spoken to anyone] about any media accounts related” to the case following the trial’s last recess. R70 at 7136. The motion based on the witness's insinuation was resolved by an instruction to the jury that the defense attorney's "job [wa]s to provide a vigorous defense for his client.” R81 at 8955. "[The witness]'s statement regarding [the defense attorney] was inappropriate and unfounded.” Id. at 8949.
. R70 at 7130. Brothers to the Rescue ["BTTR”] is "a Miami-based Cuban exile group”, Hernandez, 106 F.Supp.2d at 1318, founded by Jose Basulto in 1991 to rescue rafters fleeing Cuba in the Straits of Florida and to bring them to the United States. R80 at 8836-37.
. Id. at 7130-31.
. Id. at 7131.
. Id. at 7133.
. Id. at 7134-36.
. Id. at 7136.
. R8-1009 at 2.
. Id. at 5.
. Id.
. R120 at 13894-95.
. 1SR1 at 5; 1SR2.
. R6-766; R22.
. The district court disqualified 79 of the 168 venire persons for cause, 32(19%) in Phase 1 and 22(27%) in Phase 2 for Cuba-related animus.
. R22 at 111-16; R62 at 6575-76.
. R22 at 113.
. R22 at 111-16. 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.” R7-978 at 7; R64 at 6759-60.
. R22 at 111-12.
. R7 at 978 at 2-3; R21 at 117-19; R22 at 119.
. R21 at 171.
. R23 at 195, 196-97. This juror was later stricken for cause as a result of his personal knowledge of Basulto. R24 at 537-40.
. R23 at 197.
. Id. at 300, 302-04, 307, 310.
. R25 at 782, 789.
. R26 at 1068-69.
. Id. at 1070.
. R27 at 1277.
. Id. at 1278, 1274, 1273.
. R26 at 1057, 1059, 1073.
. R27 at 1166, 1168.
. R28 at 1452-53.
. R26 at 1001-02.
. R25 at 880.
. Id. at 829-31, 834-39.
. Id. at 829, 831, 834.
. Id. at 743. Buker was subsequently seated on the jury and named as its foreperson. Although the government notes that Campa’s attorney commented that Buker was '‘uninvolved or personally disconnected from the experience [of a Cuban]” and that his "general philosophical problem with communism” was "perfectly okay,” Campa’s attorney’s comment was made in the context of his argument concerning striking for cause another juror whose responses were "rooted in personal experience.” I'd. at 851.
. The Mariel boatlift was a "freedom flotilla” in 1980 in which at least 114,900 Cuban political refugees left Cuba through the harbor of Mariel on boats for resettlement in the United States. See United States v. Frade, 709 F.2d 1387, 1389 (11th Cir.1983).
. R27 at 1240-41.
. Id. at 1242-47.
. R25 at 790-96.
. Id. at 795.
. R27 at 1227-32.
. R24 at 519-21.
. Id. at 520-21.
. Id. at 521-22. The district court denied the defendants’ request that Sister Kuk be excused for cause. Id. at 534-36.
. R27 at 1148-50.
. Id. at 1149, 1151-58.
. R26 at 1011, 1012.
. Id. at 1012
. Id. at 1018-19.
. Id. at 1013.
. Id. at 1021-22.
. Id. at 1023, 1027-28, 1032.
. Id. at 1024-27, 1030.
. Id. at 1026.
. R27 at 1139-41, 1143-48.
. Id. at 1142.
. Id. at 1140, 1146-47 (O remembered reading about the case but did not remember specific information).
. R28 at 1424-25.
. Id. at 1433.
. Id. at 1437. The district court denied the defendants’ request to strike Palmer for cause. R28 at 1442.
. R25 at 818-22.
. Id. at 820.
. R27 at 1118-19, 1121-23, 1175-76.
. Id. at 1119-28, 1177.
. R27 at 1120, 1122.
. Id. at 1120.
. Id. at 1126, 1176-77.
. R25 at 861. Portalatin was subsequently seated as a juror.
. R27 at 1249-50.
. Id. at 1296-97. Yagle was subsequently seated as a juror.
. R25 at 841-43.
. Id. at 846.
. R27 at 1301-08.
. Id. at 1134-39.
. R26 at 990-96.
. Id. at 995.
. R26 at 938, 945.
. R24 at 534.
. Id. at 535.
. The victims' family members attended the trial, and were seated in a designated area in the courtroom. R25 at 717-18.
. R21 at 139; R23 at 251.
. R24 at 458, 508-10.
. R21 at 139; R23 at 254.
. R24 at 458.
. Id. at 373, 385-86.
. R25 at 655, 690, 709.
. Id. at 682-84.
. R27 at 1254, 1382.
. Id. at 1375-84; R28 at 1513; R29 at 1564; 1SR1 at 5-6, 11.
. R25 at 776-70, 809-12; R26 at 937-41.
. R28 at 1508-11; see Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986) (holding that the Equal Protection Clause guarantees that members of a defendant's race are not excluded from a defendant's jury on the basis of race).
. R27 at 1373-76.
. The selected jurors were Diana Barnes, R24 at 601-02; R25 at 800-05; Foreperson David Buker, R24 at 555, 561-62, 571, 590; R25 at 741-49; Richard Campbell, R22 at 60; R26 at 1032-39; Migdalia Cento, R22 at 69-70; R27 at 1128-33; R29 at 1556, 1559-62; Omaira Garcia, R25 at 659-61, 885-91; Sergio Herran, R22 at 147-52; R27 at 1219-25; Wilfred Loperena, R22 at 41-43, 88; R26 at 969-75; Juanito Millado, R22 at 15, 66; R27 at 1105-17; R28 at 1517-19; Gil Page, R25 at 556, 574, 583-87; R25 at 737-41; Elthea Peeples, R22 at 38-40; R26 at 956-62; Sonia Portalatin, R24 at 619; R25 at 858-65; and Deborah Vernon, R22 at 125, 142-43, 147, 153; R27 at 1233-39. Alternates were Marjorie Hahn, R22 at 131; R23 at 204-05, 250-51; R27 at 1342-50; Beverly Holland, R23 at 210-14, R27 at 1355; Miguel Torroba, R23 at 204; R27 at 1334-42; and Eugene Yagle, R22 at 144, 165-67; R27 at 1294-1300; R28 at 1517-20; R29 at 1553-57, 1601-02, 1638. Millado was excused due to family illness before the jurors were empaneled; Yagle was seated in his place. R29 at 1550-57, 1601-02, 1638.
. R21 at 44-45; R22 at 119; R116 at 13492-93.
. R21 at 26.
. R18 at 14.
. Id.
. Id. at 15.
. Id. at 14-15.
. Id. at 17.
. R21 at 111, 117-19; R22 at 111-16.
. Id. at 115.
. R22 at 119.
. R24 at 625-26.
. R9-1126.
. Hernandez, 124 F.Supp.2d at 704; R7-808.
. R25 at 712-13.
. Id. at 714.
. Id. at 717-18.
. R80 at 8822, 8825.
. R81 at 8945.
. Id.
. Id. at 8947-49.
. Id. at 8949. In the alternative, counsel for Campa and Hernandez requested a jury instruction addressing Basulto's attack on Hernandez's counsel’s credibility. R81 at 8949-53. The court found that the statements could affect "how the jurors view” Hernandez's counsel and instructed the jury that Hernandez's attorney’s "job is to provide a vigorous defense for his client. Mr. Basul-to’s statement regarding [Hernandez's counsel] was inappropriate and unfounded.” Id. at 8955.
. Govt. Exs. DAV 109 at 6-7; DG 101 at 2, 102 at 30, 117, 137 at 2. The Cuban government maintains the following intelligence operations: the Directorate of Military Intelligence ("DIM”) under the Ministry of Revolutionary Armed Forces, and the Directorate of Intelligence ("DI”) and the Directorate of Counterintelligence ("DCI”) under the Ministry of the Interior. R44 at 3700-05, 3707. The DI collects intelligence outside of Cuba, focusing primarily on the United States; the DCI is responsible for intelligence regarding counter-revolutionary activities inside of Cuba. R44 at 3704, 3707. The DI is organized into many operational components, including M-I which handles non-military United States government agency intelligence, M-III which handles the collecting, correlating, and reporting of gathered information, M-V which handles the operation and support of "illegal” intelligence officers ("IO”s) who enter the United States illegally with a false identity and identification, M-XIX which handles counter-revolutionary individuals and organizations outside of Cuba. R44 at 3708-11, 3713; R46 at 3957.
.Govt. Exs. DG 107 at 23; DAV 116 at 6. The IOs, as intelligence officers, were full-time employees of the DI who were trained in all aspects of intelligence work. R44 at 3719-20. Agents were individuals who worked as support for the IOs by providing information. The agents were paid for that information, but were not employees of the DI. R44 at 3720. The agents were supervised by other agents or legal or illegal officers. Id.
Guerrero functioned as both an IO and, in penetrating the Naval Air Station ("NAS”) at Key West, Florida, as an agent. Govt. Ex. DAV 122 at 6, 10. While working at the NAS, he traveled at least twice to the DI headquarters in Cuba for training and debriefing on military matters. Govt. Exs. DG 108 at 31-33; DL 101 at 4; DL 103 at 13; DL 104 at 4; HF 136.
. R45 at 3870-71; Govt. Exs. DG 107 at 58-67, 129
. The NAS is the southernmost military base in the continental United States and is located about 90 miles from Cuba. R74 at 7910, 7920-21. It has an active airfield and several complexes of buildings used by the Air Force, Army, Coast Guard, Marines, and Navy. Id. at 7908-10. The public has access to the base roadways, but not to its buildings. Id. at 7912-13, 7915-17. The base is the primary United States military installation for conflicts in the Caribbean, and is used for national defense including intermediate and advanced combat air training and drug interdiction. Id. at 7910-11, 7920-22.
. Govt. Exs. HF 103; DG 107 at 12-20; DG 108 at 2-3. Southcom is one of the United States Department of Defense’s five centralized geographic command centers for unified military operations within an area of responsibility ("AOR”). R46 at 4009-10. As of 1987, Southcom's AOR covered the Caribbean, including Cuba, and Latin America. Id. at 4012-14. Southcom's Miami headquarters is a secure, tightly-controlled facility housing "open storage” classified top secret, secret, and confidential materials. R46 at 4018-19.
. R103 at 11907-08, 11911-13.
. R45 at 3793-99; Govt. Exs. DG 108 at 28-29; DG 127 at 7-8; DC 101 at 11-19; Dho 101 at 2-6.
. Govt. Ex. HF 143.
. Govt Exs. DG 141 at 6-7; DAV 118 at 14-19.
. Govt. Exs. 384, 865.
. R61 at 6404-15.
. R73 at 7821-46; R74 at 7871-78; Govt. Ex. HF-144.
. R40-3197; R43 at 3628-29; R44 at 3731-32, 3764-65; Govt. Exs. 1A; DAV 101 at 29; DAV 121; DG 118 at 2-3; HF 101-144.
. R33 at 2145; Govt. Exs. 4; 5-1; 5-2; 5-3; 5-4; 8-1; 8-3; 8-4; 11; 12-3; 12-4; 12-5; 12-8; DAV 118 at 7-12; DG 105 at 2-16; DG 125; DG 135 at 3-11; DG 136. Under their false identities, Campa was also known as Fernando Gonzalez Llort, Oscar, or Vicky, R101 at 11714; Gonzalez was known as Agent Castor; Guerrero was known as Lor-ient, Govt. Exs. DAV 102 at 1; DAV 129 at 2;
. R34 at 2321-40; R44 at 3724-26; R49 at 4677-78; R66 at 6833-35; R69 at 6981-7016; Govt. Exs. 5-6; 6; 7; 9; DAV110at2; DAV 118 at 12-14; DG 126 at 9-10; SF 14; SF 15; SG 34; SG 53.
. Orlando Suarez Pineiro, a Cuban-born permanent resident of the United States, served as a captain in Alpha 66 for about six years. R90 at 10373-74. On 20 May 1993, he and other Alpha 66 members were arrested while on board a boat with weapons in the Florida Keys. Id. at 10391-92, 10397-401, 10415-16. The weapons included pistols with magazines and ammunition, 50 caliber machine guns with ammunition, rifles with clips, and an RK. Id. at 10397-400. Pineiro was tried and found not guilty of possession of a Norinko AK 47 rifle and two pipe bombs. Id. at 10424. Pineiro and other Alpha 66 members were also stopped and released while on board a boat on 10 June 1994, but their weapons and boat were seized. Id. at 10409, 10411-14. The seized weapons included a machine gun and AK 47s. Id. at 10411-14.
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. Id. at 10438-39.
United States Customs Agent Rocco Marco said that he encountered four anti-Castro militants on 27 October 1997, after their vessel, the "Esperanza”, was stopped in waters off Puerto Rico. R90-10449. He explained that U.S. Coast Guard officers searched the vessel and found weapons and ammunition "hidden in a false compartment underneath the stairwell leading to the lower deck.” The officers found food, water bottles, camouflage military apparel, night vision goggles, communications equipment, binoculars, two Biretta 50 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.” Id. at 10468.
Debbie McMullen, the chief investigator with the Federal Public Defender's Office, testified that Ruben Dario Lopez-Castro was an individual associated with a number of anti-Castro organizations, including PUND and Alpha 66. R97 at 11267. Lopez and Orlando Bosch planned to ship weapons into Cuba for an assassination attempt on Castro. Id. at 11254. Bosch had a long history of terrorist acts against Cuba, and prosecutions and convictions for terrorist-related activities in the United States and in other countries. Campa Ex. R77 at 18-35.
.Rodolfo Frometa testified that, although he was born in Cuba, he was a citizen of the 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 in-
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 semiautomatic 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 semiautomatic and included an R15, an AK 47, and a 50 caliber machine gun. Id. at 10545-47. Frometa and several other Alpha 66 members were once more stopped and released on 7 February 1994 for having weapons on board his boat. Because a photograph of the group was "published in the newspapers” "[e]verybody in Miami” knew that they were released. Id. at 10569. On 2 June 1994, Frometa, by then a member of F4, was arrested after attempting to purchase C4 explosives and a "Stinger antiaircraft missile” in order to kill Castro and his close associates in Cuba. Id. at 10571-72, 10574-76, 10579-80. Frometa acknowledged that the use of the C4 explosive could have injured Cubans who worked at a military installation, id. at 10579, but that they had caused the "death of four U.S. citizens, the 41 people including 20 or 21 children who died; the mother of the child Elian, plus thousands and thousands who have died in the Straits of Florida.” Id. at 91-10581.
. Percy Francisco Alvarado Godoy and Juan Francisco Fernandez Gomez testified by 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, Alt. 2 at 10-13, 21-24, 27-28, 33-34, 44-46, 61, 63-64. He said that, beginning in September 1994, he was asked to place a bomb at the Caberet Tropicana, a popular Havana nightclub and tourist attraction. Id. at 44-46. In connection with the same plot, he flew to Guatemala in November 1994 to obtain the explosives and detonators to be used and met with, among others, Luis Posada Carriles, a Cuban exile with a long history of violent acts against Cuba. Id. at 49, 52, 56-58. Unknown to the CANF members, Godoy was cooperating with the Cuban authorities, denounced their plans, and later testified at the trial of one of the conspirators in Cuba. Id. at 22, 24, 26, 31, 58-59, 65, 70, 76, 81-82, 86, 90, 109.
Gomez, a citizen and resident of Cuba, described numerous attempts between 1993 and 1997 by persons associated with the CANF to recruit him to engage in violent activities against several Cuban targets. Gomez also testified that, beginning in September 1994, he was asked to place a bomb at the Caberet Tropicana, a popular Havana nightclub and tourist attraction. In 1996 and 1998, Gomez was approached by Borges Paz of the anti-Castro organization the Ex Club, 2SR-708, Att. 1 at 9, 12-14, 20, 39; Gomez said that Paz invited him to join their organization to build and place bombs at tourist hotels and at the Che Guevara Memorial in Santa Clara, Cuba. Id. at 16, 19, 22. After returning to Cuba, Gomez informed the Cuban authorities of the Ex Club’s plans. Id. at 20, 35-36. As a result of his work for the United States government, Gomez said that he was estranged from his family in the United States, including a daughter in Florida, and had received threatening phone calls. Id. at 64-66.
. R83 at 9162, 9165-67; R90 at 10373-74, 10391-92, 10397-10401, 10409, 10411-14, 10415-16, 10429, 10431-34, 10449, 10452-59, 10467-68; R91 at 10541-42, 10544-48, 10563-66, 10571-72, 10574-76, 10579-80; R97 at 11267, 11291-97; 2SR-708, Att. 1 at 9, 12-14, 16, 19-20, 22, 35-36, 39; Att. 2 at 10-13, 21-24, 27-28, 33-34, 44-46, 61, 63-64; Campa Exs. R-29D, R-29F, R-29G, R-29H.
. R97 at 11296-97.
. Campa Exs. R-29C; R-29F; R-29H; GH Exs. 16C, 24.
. R83 at 9166-67.
. R58 at 5919, 5922-23; Govt. Exs. HF 108 at G-3, 113 at G-3.
. GH Ex. 37 at 2-4, 6-8.
. GH Ex. 18E.
. GHEx. 18F.
. R76 at 8198-99, 8203-04.
. Id. at 8204-05.
. Def. Hernandez Ex. GH, composite 18G.
. R83 at 9161-65, 9167-70.
. Id.
. Id. at 9168-70; Govt. Exs. 478, 479.
. R83 at 9181-83; Govt. Ex. 475A at 2-3.
. Govt. Ex. 483 at 8-9.
. Id. at 10-11.
. Id. at 14-16.
. R53 at 5109-14, 5117-18; Govt. Ex. 483 at 5-7, 11, 13, 17-18, 20. The cruise ship was Royal Caribbean's "Majesty of the Seas” with about 2,600 passengers and 800 crew. R53 at 5084-86. The first officer on the ship explained that they were on the last leg of a weekly cruise about 24 nautical miles off the north coast of Cuba during the shootdowns. Id. at 5087-89, 5109-14. A videotape of the shootdowns made by a cruise ship passenger was apparently "played on TV many times.” Id. at 5124.
. R53 at 5113-21, 5131-33; Govt. Exs. 440, 469B, 484.
. R93 at 10750-51, 10754-55, 10783-832. The acts included an explosion on 12 April 1997 which destroyed the bathroom and dance floor at the discotheque Ache in the Media Cohíba 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 Cohíba 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 Cohíba 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 Bo-dequita del Medio Restaurant, and caused property damage at all locations. Id. at 10809-13, 10815-20, 10822-23.
. R97 at 11316-18; Campa Exs. R57(a), R57(b) at 2, 59.
. R97 at 11320-21.
. Id. at 11321; Campa Ex. R63 at 1.
. R93 at 10832, 10839, 10842.
. Id. at 10839-41; Campa Ex. R-33-MM.
. R40 at 3231-32, 3238-40; R46 at 4012-14; Govt. Exs. DG 103 at 3-4, HF 104 at G-3.
. Govt. Exs. DG 107 at 23-24, DG 108 at 2.
. Govt. Ex. HF 115 at G-3.
. Id.; Govt. Exs. 112 at 10; DG 104 at 2; HF 116 at G-3; HF 120 at G-3, 121 at G-3; HF 122 at G-3; HF 123 at G-3.
. Govt. Exs. HF 128-G03; DG 108 at 6, 8; HF 136-G-3. Operations Venicia and German involved Roque’s extraction from the United States and return to Cuba to denounce BTTR.
. R49 at 4611-12; DG 102 at 42.
. R49 at 4614-16; Govt. Exs. DG 107 at 52; DG 127 at 5; DG 139 at 10-11.
. See supra note 137.
. Govt. Ex. DC 101 at 19-21.
. R97 at 11291-93, 11295.
. Id. at 11294.
. Ex. R52 at 4; Govt. Exs. DAV 123 at 47, 49; DG 109 at 17; DG 110 at 1.
. R40 at 3231-32, 3238-40; R41 at 3317; R46 at 4012-14; Govt. Exs. DG 108; DS 103 at 2, 4, 11; DG 110.
. Govt. Ex. DAV 113 at 1, 3-4.
. R49 at 4618-19; R31 at 3; R43 at 3; R51 at 9; R52 at 5-10; R84 at 20-27; R97 at 11242, 11252-53, 11277, 11279; Campa Exs. R22 at 26; R24 at 65, 74; Govt. Exs. DAV 118 at 1-5; DG 108 at 28-29; DG 127 at 7-8; HF 143.
. R91 at 10592-93.
. R97 at 11253-55; Campa Ex. R24 at 8-9.
. R97 at 11268-69; Campa Exs. R22 at 26, R24 at 15-16, 19.
. Id. at 11263, 11270-71, 11273.
. Id. at 11274-77; Campa Ex. R24 at 21.
. R97 at 11277; Campa Exs. R19 at 11-13, 20-23, R20 at 2-4, R35 at 16, 20.
. R97 at 11284-86, 11289.
. Id. at 11285, 11288-89.
. Id. at 11290-91.
. Campa Ex. R32 at 2-3; Govt. Exs. DAV 102 at 1; 109 at 1-2, 5-6; 116 at 3, 7; 118 at 2; 124 at 8; 126 at 21; 129 at 3, 59.
. R97 at 11277-78; R101 at 11714, 11721-23.
. See supra note 137.
. Govt. Exs. DAV 102 at 1; 129 at 62.
. R74 at 7918; Govt. Ex. DG 120 at 2-3.
. R74 at 7959; Govt. Ex. 122 at 5-8, 10.
. Govt. Exs. DAV 101 at 9-28; DAV 102 at 17-29; DG 121; DL 102 at 11; DG 141 at 19.
. R49 at 4583-91, 4598-604, 4612-13; R60 at 6277-83; Govt. Ex. DC 101 at 11-19, 701, 701A, 702.
. Govt. Ex. DHo 101 at 2-6.
. Govt. Exs. HF 105 at G-3, 125 at G-3.
. R69 at 7044, 7077-78.
. Govt. Ex. DG-107 at 58-60.
. Id. at 65-67.
. R44 at 3699-700. The U.S. Attorney asked government witness Stuart Hoyt to describe the structure of the Cuban intelligence system by questioning "who is at the top of the Cuban intelligence system.” R44 at 3699. Hoyt responded by stating that "Fidel Castro” was at the top as "Commander-in-Chief”, "[Pjresident”, "Council Minister”, and "head of the Cuban Communist Parly.” Id.
. R73 at 7806-07.
. R80 at 8748. After a defense witness explained on cross-examination that the tone of the dissenters within Cuba was "more respectful” than that of Cuban exile organizations located outside of Cuba, the government attorney asked whether such an answer was relevant when it was a "[plarticularly repressive government.” R80 at 8748. Late, after the witness stated that, if he had been a dictator, he would have tried to stop the BTTR flight, the government attorney questioned whether “[w]e live in a dictatorship.” Id. at 8754. After the witness replied "Fortunately we don’t,” the government attorney commented, "And people do have that freedom of choice.” Id.
. Id. at 8754.
. R124 at 14474.
. Id. at 14475.
. Id. at 14532, 14481.
. Id. at 14480.
. Id. at 14495.
. Id. at 14480-81.
. Id. at 14482.
. Id. at 14483-85, 14488.
. Id. at 14493.
. Id. at 14512-13.
. Id. at 14513.
. Id. at 14519.
. Id. at 14475.
. Id. at 14482, 14483, 14493.
. R125 at 14583.
. R104 at 12091-92.
. Id. at 12091-94.
. Id. at 12094-95.
. R59 at 6096-108, 6145-49. The 20 protestors carried signs stating “take Castro down,” “[flair trial wanted,” and "spies to be killed.” Id. at 6145.
. R81 at 9005.
. R126 at 14644-47.
. Id. at 14645-47.
. R124 at 14546-47; R125 at 14624.
. R126 at 14643-46.
. Id. at 14644-45.
. Id. at 14645-47.
. R125 at 14625; R126 at 14640-43.
. R12-1338 at 2-3; R12-1342 at 2-3; R12-1343 at 1-4; R12-1347 at 1-2.
. R12-1343 at 1-3.
. R12-1342 at 3; R12-1343 at 3-4.
. R13-1392 at 14.
. Id. at 15.
. R14-1430, 1435, 1437, 1439, 1445.
. R15-1635, 1638, 1644, 1647, 1650, 1651. The National Jury Project, the National Lawyers Guild, the International Association of Democratic Lawyers sought and were granted leave to file briefs as amicus curiae in support of this motion. R15-1640, 1653, 1654, 1655, 1677.
. R15-1635 at 1, 1636. On appeal, Hernandez mentions that the government also made other misrepresentations related to this case in a petition for writ of prohibition and motion to stay in another case filed in this court, In re United States of America, No. 01-12887 (11th Cir. May 25, 2001) regarding the district court's rulings in this case. The district judge commented on both statements made by the government and alleged by Hernandez to be misrepresentations, calling one "an outright misrepresentation of fact” and another an "erroneous statement” and "gross misrepresentation[].” R121 at 13918, 14025.
. R15-1636, Ex. 2 at 1-2.
. Id. 2-3,11.
. Id. at 14-15.
. Id. at 17, 16.
. Id. at 16 n. 1.
. R15-163 6, Ex. 3 at 24.
. Id. at 25.
. R15-1636, Exs. 7-10, 12.
. R15-1636, Ex. 7 at 7.
. R15-1636, Ex. 1 at 1.
. R15-1636 at 4-7.
. Jim Mullin, Frank Talk About Free Speech, Miami New Times, May 25, 2000, R15-1636, Ex. 9 ("The reason that the issues related to Cuba are the hot-button issues ... is that we can't escape the fact that in this town there are 700,000 Cuban Americans. There are 10,000 people in this town who had a relative murdered by Fidel Castro. There are 50,000 people in this town who've had a relative tortured by Fidel Castro. There are thousands of former political prisoners in this town. For these people and for the 500,000 Cuban Americans who are old enough to remember having to leave their homeland, the issues related to Fidel Castro are not a historical note; they are living, breathing wounds.”); Jim Mullin, The Burden of a Violent History, Miami New Times, Apr. 20, 2000, R15-1636, Ex. 10 ("Lawless violence and intimidation have been hallmarks of el exilio for more than 30 years. Given that fact, it’s not only understandable many people would be deeply worried, it’s prudent to be worried.”).
We also take judicial notice of an editorial; Luis Botifol, The Cuban Spies' Case vs. Credibility of the U.S. Judiciary, Miami Herald, May 16, 2001 at 9B ("[T]he media’s reports generate unfavorable comments in the [Cuban exile] community, which attributes the judge's permissiveness as stemming from an association with prominent members of the past administration who don't sympathize with the exile community .... [T]he defense surely has received ample cooperation from the Castro regime .... [T]he judge has permitted the defense a broad investigation ... [TJrials like this one diminish the trust and credibility of the judiciary upon which our democracy rests.”). Hernandez’s Br., App. F.
.Americas Watch/The Fund for Free Expression/Divisions of Human Rights Watch, Dangerous Dialogue/Attacks on Freedom of Expression in Miami’s Cuban Exile Community, Aug. 1992, R15-1636, Ex. 12 ("Miami’s Cuban exile community ... has long been dominated by fiercely anti-Communist forces who are strongly opposed to contrary viewpoints, even if-especially if-expressed simply in terms of the desirability of a dialogue with, or opening to, the Castro regime.”); Human Rights Watch/Americas Human Rights Watch Free Expression Project, United States Dangerous Dialogue/Threats to Freedom of Expression Continue in Miami’s Cuban Exile Community, Nov. 1994, R15-1636, Ex. 8.
. R15-1636, Exs. 4, 5.
. R15-1636, Ex. 4 at 1, 3.
. Id. at 8.
. Id. at 3.
. Id.
. Id.
. Id. at 7.
. R15-1636, Ex. 5 at 2-3.
. Id. at 3-4.
. Id. at 6-7.
. Id. at 7.
. Id. at 8.
. Id. at 8-9.
. Id. at 12-13.
. R15-1678 at 8-9.
. Id. at 9.
. Id.
. Id. ató n. 3.
. 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.
. 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.
. The National Lawyers Guild also filed an amicus curiae brief on the motion for new trial based on newly discovered evidence.
. In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir.1981) (en banc), we adopted as binding precedent all decisions of the former Fifth Circuit handed down prior to 1 October 1981.
. The 1966 Amendments eliminated earlier versions of Rule 21 which referenced transfers to ''divisions” and clarified that "[tjtransfers within the district to avoid prejudice will be within the power of the judge to fix the place of trial” under Rule 18. See Fed.R.Crim.P. 21 advisory committee’s note. Under Rule 18, "[t]he court must set the place of trial within the district with due regard for the convenience of the defendant and the witnesses, and the prompt administration of justice.” Fed.R.Crim.P. 18. The 1966 Amendments vested the district court with " discretion ... to fix the place of trial at any place within the district .... If the court is satisfied that there exists in the place fixed for trial prejudice against the defendant so great as to render the trial unfair, the court may, of course, fix another place of trial within the district (if there be such) where prejudice does not exist.” Fed. R.Crim.P. 18 advisory committee’s note.
At the change of venue motion hearing, the defendants agreed that a transfer to the Fort Lauderdale division office would be acceptable.
. 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).
. 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.
. Rule 33 was “stylistically” amended in 2002 "to make [it] more easily understood and to make style and terminology consistent throughout the rules.” See Fed.R.Crim.P. 33 advisory committee’s note (2002). The earlier revision was not subdivided, but the relevant wording remained the same.
. We note that judicial equitable estoppel generally bars a party from asserting a posi
