US v. Campa, No. 01-17176

• Court: United States Courts of Appeals. United States Court of Appeals (11th Circuit)
• Writing for the Court: PER CURIAM
• Citation: 419 F.3d 1219
• Docket Number: No. 01-17176,03-11087.
• Decision Date: 09 August 2005
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Ruben CAMPA, a.k.a. John Doe 3, etc., Rene Gonzalez, a.k.a. Iselin, etc., Gerardo Hernandez, a.k.a. Giro, etc., Luis Medina, a.k.a. Oso, etc., Antonio Guerrero, a.k.a. Rolando Gonzalez-Diaz, etc., Defendants-Appellants. United States of America, Plaintiff-Appellee, v. Gerardo Hernandez, a.k.a. Giro, etc., Luis Medina, a.k.a. Oso, etc., Rene Gonzalez, a.k.a. Iselin, etc., Antonio Guerrero, a.k.a. Rolando Gonzalez-Diaz, etc., Ruben Campa, a.k.a. John Doe 3, etc., Defendants-Appellants.

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UNITED STATES of America, Plaintiff-Appellee,
v.
Ruben CAMPA, a.k.a. John Doe 3, etc., Rene Gonzalez, a.k.a. Iselin, etc., Gerardo Hernandez, a.k.a. Giro, etc., Luis Medina, a.k.a. Oso, etc., Antonio Guerrero, a.k.a. Rolando Gonzalez-Diaz, etc., Defendants-Appellants.
United States of America, Plaintiff-Appellee,
v.
Gerardo Hernandez, a.k.a. Giro, etc., Luis Medina, a.k.a. Oso, etc., Rene Gonzalez, a.k.a. Iselin, etc., Antonio Guerrero, a.k.a. Rolando Gonzalez-Diaz, etc., Ruben Campa, a.k.a. John Doe 3, etc., Defendants-Appellants.

Nos. 01-17176, 03-11087.

United States Court of Appeals, Eleventh Circuit.

August 9, 2005.

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Joaquin Mendez, Jr., Kathleen M. Williams, Richard C. Klugh, Jr., Fed. Pub. Defenders, Philip Robert Horowitz (Court-Appointed), Law Office of Philip R. Horowitz, Paul A. McKenna (Court-Appointed), McKenna & Obront, William M. Norris (Court-Appointed), William M. Norris, P.A., Jack R. Blumenfeld (Court-Appointed), Miami, FL, Leonard I. Weinglass, New York City, for Defendants-Appellants

Caroline Heck Miller, Anne R. Schultz, U.S. Attys., David Marc Buckner, Miami, FL, for U.S.

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

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

Before BIRCH, KRAVITCH and OAKES^*, Circuit Judges.

PER CURIAM:

The defendant-appellants, Ruben Campa, Rene Gonzalez, Gerardo Hernandez,

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Luis Medina and Antonio Guerrero, were convicted and sentenced for various offenses charging each of them with acting as unregistered Cuban intelligence agents working within the United States. Hernandez was also convicted of conspiracy to commit murder by supporting and implementing a plan to shoot down United States civilian aircraft outside of Cuban and United States airspace. They appeal their convictions, sentences, and the denial of their motion for new trial arguing, inter alia, that the pervasive community prejudice against Fidel Castro and the Cuban government and its agents and the publicity surrounding the trial and other community events combined to create a situation where they were unable to obtain a fair and impartial trial.¹ We agree, and REVERSE their convictions and REMAND for a retrial

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

I. BACKGROUND

A. The Indictments

Campa, Gonzalez, Guerrero, Hernandez, and Medina were arrested on a criminal complaint on 12 September 1998, and were subsequently indicted with nine codefendants 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)² and 28 C.F.R.

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§ 73.1 et seq., and numerous overt acts, in violation of 18 U.S.C. § 371 (Count 1). They were alleged to have "functioned as covert spies ... by gathering and transmitting information to Cuba concerning United States military installations, government functions, and private political activity; by infiltrating, informing on and manipulating anti-Castro political groups in Miami-Dade County Florida; by sowing disinformation" within these groups and in dealings with other private and public groups within the United States, "and by carrying out other operational directives of the Cuban government."³ Guerrero, Hernandez, and Medina were

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also charged with conspiring to deliver to Cuba information "relating to the national defense of the United States,"⁴ in violation of 18 U.S.C. §§ 794(a), (c), and 2 (Count 2).⁵ Gonzalez was charged with acting as an agent of the Republic of Cuba without prior notification to the Attorney General, and Hernandez and "John Doe 4 a/k/a Albert Manuel Ruiz" were charged with causing Gonzalez to act as an unregistered agent, in violation of 18 U.S.C. §§ 951 and 2 (Count 15).⁶ Guerrero was charged with acting as an agent of the Republic of Cuba without notification to the Attorney General, and Hernandez, Medina, and Campa were charged with causing Guerrero to act as an unregistered agent, in violation of 18 U.S.C. §§ 951 and 2 (Count 16)

Hernandez was charged with conspiracy to murder, in violation of 18 U.S.C. §§ 1111 and 2, and overt acts related to that conspiracy, in violation of 18 U.S.C. §§ 1117 and 2 (Count 3),⁷ possession of a

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counterfeit passport, in violation of 18 U.S.C. §§ 1546(a) and 2 (Count 4),⁸ possession of five or more fraudulent identification documents, in violation of 18 U.S.C. §§ 1028(a)(3) and 2 (Count 5), possession of a fraudulent identification document, in violation of 18 U.S.C. §§ 1546(a) and 2 (Count 6), acting as a foreign agent for the Republic of Cuba without notification to the Attorney General (Count 13), and having caused Juan Pablo Roque (Count 19), Alejandro Alonso (Count 22), Nilo Hernandez (Count 23), and Linda Hernandez (Count 24) to have acted as unregistered foreign agents, in violation of 18 U.S.C. §§ 951 and 2

Campa was charged with possession of a counterfeit passport, in violation of 18 U.S.C. §§ 1546(a) and 2 (Count 7), possession of false identification documents, in

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violation of 18 U.S.C. §§ 1028(a)(3), (b)(2)(B), and (c)(3), and 2 (Count 8)⁹, and acting as an agent of the Republic of Cuba without prior notification to the Attorney General, in violation of 18 U.S.C. §§ 951 and 2 (Count 17).

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

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.¹² Medina explained that the traditional methodology for addressing pretrial publicity was not appropriate and proposed that Florida International University Psychology Professor Gary Patrick Moran conduct a telephone poll with a "sample of 300 people."¹³ The district court granted the motion.¹⁴

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.¹⁵ The motions for change of

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venue were based on pretrial publicity and "virulent anti-Castro sentiment" which had existed in Miami as "a dominant value ... for four decades."¹⁶ The motions were supported by news articles and Moran's poll to substantiate "an atmosphere of great hostility towards any person associated with the Castro regime" and "the extent and fervor of the local sentiment against the Castro government and its suspected allies."¹⁷

The evidence submitted in support of the motions for change of venue was massive.¹⁸ In 2000, a prominent Cuban-American

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American attorney in Miami explained that Cuban-related matters were "`hot-button issues'" as there were over 700,000 Cuban-Americans living in Miami.¹⁹ Of those Cuban-Americans, 500,000 remembered leaving their homeland, 10,000 had a relative murdered in Cuba, 50,000 had a relative tortured in Cuba, and thousands were former political prisoners.²⁰ Professor Moran's survey results showed that 69 percent of all respondents and 74 percent of Hispanic respondents were prejudiced against persons charged with engaging in the activities named in the indictment.²¹ A significant number, 57 percent of the Hispanic respondents and 39.6 percent of all respondents, indicated that, "because of their feelings and opinions about Castro's government," they "would find it difficult to be a fair and impartial juror in a trial of alleged Cuban spies."²² Over one-third of the respondents, 35.6 percent, said that they would be worried about criticism by the community if they served on a jury that reached a not-guilty verdict in a Cuban spy case.²³ The respondents who indicated an inability to be a fair and impartial juror were also asked whether there were any circumstances that would change their opinion.²⁴ Of those respondents, 91.4 percent of the Hispanic respondents and 84.1 percent of all respondents answered "no."²⁵ Many of the articles submitted by the defendants also documented the community tensions and protests related to general anti-Castro sentiment, the conditions in Cuba, and other ongoing legal cases, including...