U.S. v. Campa, No. 01-17176.

Citation529 F.3d 980
Decision Date04 June 2008
Docket NumberNo. 01-17176.,No. 03-11087.
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Ruben CAMPA, a.k.a. John Doe 3, a.k.a. Vicky, a.k.a. Camilo, a.k.a. Oscar, Rene Gonzalez, a.k.a. Iselin, a.k.a. Castor, Gerardo Hernandez, a.k.a. Giro, a.k.a. Manuel Viramontez, a.k.a. John Doe 1, a.k.a. Manuel Viramontes, Luis Medina, a.k.a. Oso, a.k.a. Johnny, a.k.a. Allan, a.k.a. John Doe 2, Antonio Guerrero, a.k.a. Rolando Gonzalez-Diaz, a.k.a. Lorient, Defendants-Appellants. United States of America, Plaintiff-Appellee, v. Gerardo Hernandez, a.k.a. Giro, a.k.a. Manuel Viramontez, a.k.a. John Doe 1, a.k.a. Manuel Viramontes, Luis Medina, a.k.a. Oso, a.k.a. Johnny, a.k.a. Allan, a.k.a. John Doe 2, Rene Gonzalez, a.k.a. Iselin, a.k.a. Castor, Antonio Guerrero, a.k.a. Rolando Gonzalez-Diaz, a.k.a. Lorient, Ruben Campa, a.k.a. John Doe 3, a.k.a. Vicky, a.k.a. Camilo, a.k.a. Oscar, Defendants-Appellants.
CourtUnited States Courts of Appeals. United States Court of Appeals (11th Circuit)
529 F.3d 980
UNITED STATES of America, Plaintiff-Appellee,
v.
Ruben CAMPA, a.k.a. John Doe 3, a.k.a. Vicky, a.k.a. Camilo, a.k.a. Oscar, Rene Gonzalez, a.k.a. Iselin, a.k.a. Castor, Gerardo Hernandez, a.k.a. Giro, a.k.a. Manuel Viramontez, a.k.a. John Doe 1, a.k.a. Manuel Viramontes, Luis Medina, a.k.a. Oso, a.k.a. Johnny, a.k.a. Allan, a.k.a. John Doe 2, Antonio Guerrero, a.k.a. Rolando Gonzalez-Diaz, a.k.a. Lorient, Defendants-Appellants.
United States of America, Plaintiff-Appellee,
v.
Gerardo Hernandez, a.k.a. Giro, a.k.a. Manuel Viramontez, a.k.a. John Doe 1, a.k.a. Manuel Viramontes, Luis Medina, a.k.a. Oso, a.k.a. Johnny, a.k.a. Allan, a.k.a. John Doe 2, Rene Gonzalez, a.k.a. Iselin, a.k.a. Castor, Antonio Guerrero, a.k.a. Rolando Gonzalez-Diaz, a.k.a. Lorient, Ruben Campa, a.k.a. John Doe 3, a.k.a. Vicky, a.k.a. Camilo, a.k.a. Oscar, Defendants-Appellants.
No. 01-17176.
No. 03-11087.
United States Court of Appeals, Eleventh Circuit.
June 4, 2008.

[529 F.3d 986]

Brenda G. Bryn, Federal Public Defender, Ft. Lauderdale, FL, Philip Robert Horowitz (Court-Appointed), Law Office of Philip R. Horowitz, Esq., Paul A. McKenna (Court-Appointed), McKenna & Obront, William M. Norris (Court-Appointed), William M. Norris, P.A., Kathleen M. Williams, Federal Public Defender, Joaquin Mendez, Jr., Federal Public Defender, Joaquin Mendez, P.A., Jack R. Blumenfeld (Court-Appointed), Atty. at Law, Richard C. Klugh, Jr., Federal Public Defender, Orlando do Campo, Asst. Federal Public Defender, Miami, FL, Leonard I. Weinglass, Atty. at Law, New York City, for Defendants-Appellants.

Kathleen M. Salyer, Anne R. Schultz, U.S. Atty., Caroline Heck, U.S. Atty., Miami, FL, David M. Buckner, Kozyak, Tropin & Throckmorton, P.A., Coral Gables, FL, for Plaintiff-Appellee.

Erik Luna, University of Utah College of Law, Salt Lake City, UT, for Sociedad Cubana de Ciencias Penales, Amicus Curiae.

Carl Peter Erlinder, William Mitchell College of Law, St. Paul, MN, for National Lawyers Guild, Amicus Curiae.

Ricardo Javier Bascuas, University of Miami School of Law, Coral Gables, FL,

[529 F.3d 987]

for Nat. Ass'n of Criminal Defense Lawyers, Amicus Curiae.

Corali Lopez-Castro, Kozyak Tropin & Throckmorton, P.A., Coral Gables, FL, Edward G. Guedes, Greenberg Traurig, P.A., Antonio C. Castro, Boies, Schiller & Flexner LLP, Rodolfo Sorondo, Jr., Holland & Knight, LLP, Francisco Ramos, Jr., Clarke Sirverglate Campbell Williams & Montgomery, Miami, FL, for Cuban American Bar Ass'n, Amicus Curiae.

Appeals from the United States District Court for the Southern District of Florida.

Before BIRCH, PRYOR and KRAVITCH, Circuit Judges.

PRYOR, Circuit Judge:


Five agents of the Cuban Directorate of Intelligence who were members of La Red Avispa (in English, "The Wasp Network") challenge their convictions and sentences for their espionage against the military of the United States and Cuban exiles in southern Florida. A special mission of the Cuban network, Operacion Escorpion, led to the murder of four men when Cuban military jets shot down two private aircraft over international waters in 1996. Each Cuban agent was convicted of espionage charges, and one agent was convicted of conspiracy to murder, following a trial in Miami that lasted more than six months. Our Court, en banc, affirmed the denial of the Cuban agents' motions for a change of venue and a new trial and remanded this appeal to this panel for consideration of the remaining issues. United States v. Campa, 459 F.3d 1121, 1154-55 (11th Cir. 2006) (en banc).

The Cuban agents raise a host of issues on appeal. The Cuban agents challenge rulings about the suppression of evidence from searches conducted under the Foreign Intelligence Surveillance Act, sovereign immunity, discovery of information under the Classified Information Procedures Act, the exercise of peremptory challenges, alleged prosecutorial and witness misconduct, jury instructions, the sufficiency of the evidence in support of their convictions, and several sentencing issues. We conclude that the arguments about the suppression of evidence, sovereign immunity, discovery, jury selection, and the trial are meritless, and sufficient evidence supports each conviction. We also affirm the sentences of two defendants, but we remand in part for resentencing of the other three defendants.

I. BACKGROUND

Before we address the merits of this appeal, we review four matters. First, we review the relevant facts in the trial record. Second, we review the procedural history in the district court. Third, although we have previously described the details of the trial, Campa, 459 F.3d at 1126-42, we describe the details that are relevant to the issues that are now before this panel. Finally, we review the convictions and sentences of each Cuban agent.

A. Facts

The primary intelligence agency of Cuba, the Directorate of Intelligence, maintained an organization for espionage in South Florida known as La Red Avispa. Gerardo Hernandez, Ruben Campa (also known as Fernando Gozales-Llort), and Luis Medina III (also known as Ramon Labañino-Salazar) were intelligence officers in the Wasp Network. They supervised network agents, including Rene Gonzalez and Antonio Guerrero. Among other things, the Wasp Network reported information to Cuba about the operation of military facilities, political and law enforcement activities, and activities of organizations

529 F.3d 988

based in the United States who support a change in the regime of Cuba.

One organization that the Wasp Network targeted is known as "Brothers to the Rescue," which is a Miami-based organization that flew small aircraft over the Florida straits in efforts to rescue rafters fleeing Cuba. Gonzalez and an unarrested codefendant, Juan Pablo Roque, successfully infiltrated the Brothers organization. In January 1996, aircraft of Brothers twice dropped leaflets over Havana. Some of these leaflets contained excerpts from the Universal Declaration of Human Rights of the United Nations.

Because the Cuban government believed that, during some flights, pilots of Brothers intentionally violated Cuban airspace, the Cuban government launched a special mission codenamed "Operation Scorpion" "in order to perfect the confrontation of" the "[counterrevolutionary] actions of [Brothers]." Cuban intelligence officers transmitted encrypted radio messages that directed Hernandez to instruct Gonzalez and Roque to determine the flight plans of Brothers. Hernandez was instructed to inform Cuban intelligence officials when Gonzalez and Roque would be flying in aircraft of Brothers. Gonzalez and Roque were not to fly from February 24 through 27, and they were instructed to use code phrases during radio communication with Cuban air traffic control if they could not avoid flying on those dates.

On February 24, 1996, three aircraft of Brothers flew toward Cuba, but two did not return. While the planes were flying away from Cuba in international airspace, Cuban military jets shot down two of the aircraft and killed two pilots, Mario de la Peña and Carlos Costa, and two passengers, Armando Alejandre and Pablo Morales. A third plane, flown by Jose Basulto, the founder and leader of Brothers, escaped.

In addition to his infiltration of Brothers, Gonzalez performed several other functions for the Cuban government under Hernandez's supervision. Gonzalez acted as a fraudulent informant to the Federal Bureau of Investigation. He monitored the activities of other Cuban-American organizations in Florida, and he sought for his wife, who was also an agent of the Cuban Directorate of Intelligence, the assistance of a Member of Congress to enter the United States.

Medina and Campa also engaged in other activities. Medina and Campa constructed false identities, which they corroborated with numerous fraudulent identification documents such as United States passports. Medina and Campa supervised attempts by other agents to penetrate the Miami facility of Southern Command, which plans and oversees operations of all military forces of the United States in Cuba, Latin America, and the Caribbean.

Under the supervision of Medina, Campa, and Hernandez, Guerrero obtained employment as a laborer at the Key West Naval Air Station. Guerrero sent his supervisors frequent and detailed reports about the movement of aircraft and military personnel, and comprehensive descriptions of the layout of the facility and its structures. Guerrero reported on the renovations of buildings that were to be used for top-secret activities, and he was urged to determine the purpose for which new top-secret facilities would be used.

B. Procedural History

Much of the evidence that the government introduced at trial was obtained through searches that were conducted under the Foreign Intelligence Surveillance Act, 50 U.S.C. §§ 1801-1845 (2000), and approved by the court created by that Act.

529 F.3d 989

Campa moved to suppress this evidence and argued that the government had failed to adhere to the requirements of the Act. After the Attorney General filed an affidavit that stated that an adversary hearing on the motion to suppress would harm national security, the district court reviewed the motion and affidavit in camera. See 50 U.S.C. § 1806(f). The district court denied the motion to suppress.

Before trial, the government requested and received an ex parte hearing under section four of the Classified Information Procedures Act, which allows the district court to permit the government to provide substitutes in place of classified information that would otherwise be discoverable. 18 U.S.C. app. 3 § 4. The district court denied defense counsel's request to participate in this hearing. After the trial ended, the defendants argued that the district court did not have the authority to hold the hearing and moved to have the records of the hearing unsealed. The district court denied this motion.

Before trial, the defendants requested a change of venue....

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