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Nos. 01-17176 & 03-11087 in the United States Court Of NOS. 01-17176 & 03-11087 IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT UNITED STATES OF AMERICA, Plaintiff/appellee, v. RUBEN CAMPA, Defendant/appellant. On Appeal from the United States District Court for the Southern District of Florida EN BANC BRIEF OF THE APPELLANT RUBEN CAMPA KATHLEEN M. WILLIAMS Federal Public Defender Orlando do Campo Supervisory Assistant Federal Defender Attorneys for Appellant Ruben Campa 150 West Flagler Street, Suite 1700 Miami, Florida 33130-1556 Telephone No. (305) 530-7000 THIS CASE IS ENTITLED TO PREFERENCE (CRIMINAL APPEAL) CERTIFICATE OF INTERESTED PERSONS AND CORPORATE DISCLOSURE STATEMENT United States v. Ruben Campa Case Nos. 01-17176 & 03-11087 Appellee Ruben Campa files this Certificate of Interested Persons and Corporate Disclosure Statement, listing the parties and entities interested in this appeal, as required by 11th Cir. R. 26.1. R. Alexander Acosta United States Attorney Jack Blumenfeld Former counsel for Guerrero David M. Buckner Assistant United States Attorney Orlando do Campo Assistant Federal Public Defender Hon. Robert L. Dubé United States Magistrate Judge Rene Gonzalez Defendant Philip R. Horowitz Counsel for Gonzalez Marcos Daniel Jiménez Former United States Attorney John S. Kastrenakes Assistant United States Attorney Richard C. Klugh, Jr. Assistant Federal Public Defender Hon. Joan A. Lenard United States District Judge Guy A. Lewis Former United States Attorney Paul A. McKenna Counsel for Hernandez C-1 of 2 Joaquin Mendez Former counsel for Campa Caroline Heck Miller Assistant United States Attorney William M. Norris Counsel for Medina Barry Sabin Assistant United States Attorney Eduardo Sanchez Assistant United States Attorney Anne R. Schultz Assistant United States Attorney Leonard I. Weinglass Counsel for Guerrero Kathleen M. Williams Federal Public Defender C-2 of 2 TABLE OF CONTENTS CERTIFICATE OF INTERESTED PERSONS AND CORPORATE DISCLOSURE STATEMENT ................C-1 TABLE OF CONTENTS ............................................ii TABLE OF CITATIONS ............................................v STATEMENT ADOPTING BRIEFS OF OTHER APPELLANTS ........... vi STATEMENT OF JURISDICTION ...................................vii STATEMENT OF THE EN BANC ISSUES ..............................1 STATEMENT OF THE CASE ........................................1 Course of Proceedings, Disposition in the District Court, and Statement of Facts .....................1 Standard of Review ............................................1 SUMMARY OF THE ARGUMENT ...................................2 ARGUMENT ......................................................5 The district court manifestly erred in denying a change of venue where it was virtually impossible to select, from a cross-section of the Miami- Dade community, an impartial jury uninfluenced by community passions ... 5 1. Precedent compels that the prejudice seen in this case warranted a change of venue ........................................5 2. The district court’s belief that, by excising an entire bloc of the i community from the jury, voir dire could serve the purpose of eliminating the influence of pervasive prejudice was erroneous as a matter of law and in light of the jury selection procedure applied .................................................9 3. The government’s belated mischaracterization of defendants’ good-faith compliance with the district court’s voir dire rulings and strategic use of peremptory challenges ignores the pervasive- prejudice nature of the defendants’ claims ....................12 4. The limitations of voir dire in this case ......................18 5. The government’s claims of rebuttal of pervasive prejudice in Miami confuse actual versus presumptive prejudice arguments, ignore precedent of this Court setting a high bar for any potential rebuttal, and ignore the record of juror responses ..............23 6. The record provides numerical confirmation of pervasive community prejudice despite culling of prospective jurors asserting capacity for fairness ..............................27 7. Widespread anti-Castro animus and publicity–reflected even in permanent and prominently displayed County memorials reinforcing the government’s theory of the case–persisted throughout trial .........................................39 ii 8. Voir dire of jurors who served disclosed exposure to underlying community bias and fears .................................43 9. Voir dire confirmed that the prejudice went deeper than mere pretrial publicity concerning the defendants’ participation in the offenses such that ordinary press avoidance admonitions lacked effect in the unique context of this case ......................45 CONCLUSION ...................................................56 CERTIFICATE OF COMPLIANCE ...................................56 CERTIFICATE OF SERVICE iii TABLE OF CITATIONS CASES: Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712 (1986) ...................27 Beck v. Washington, 369 U.S. 541, 82 S.Ct. 955 (1962) ...................32 Bishop v. Wainwright, 511 F.2d 664 (5th Cir. 1975) ....................9, 31 * Calley v. Callaway, 519 F.2d 184 (5th Cir. 1975) (en banc) ............... 31 * Coleman v. Kemp, 778 F.2d 1487 (11th Cir. 1985) .................... 23, 33 Cummings v. Dugger, 862 F.2d 1504 (11th Cir. 1989) .....................2 * Irvin v. Dowd, 366 U.S. 717, 81 S.Ct. 1613 (1961) ..... 16, 21, 24, 36-27, 33, 35 * Mayola v. Alabama, 623 F.2d 992 (5th Cir. 1980) .....................23-25 Meeks v. Moore, 216 F.3d 951 (11th Cir. 2000) .......................29, 53 Murphy v. Florida, 421 U.S. 794, 95 S.Ct. 2031 (1975) ...................25 Mu’Min v. Virginia, 500 U.S. 415, 111 S.Ct. 1899 (1991) .................32 * Pamplin v. Mason, 364 F.2d 1 (5th Cir. 1966) .......................... 14 Patton v. Yount, 467 U.S. 1025, 104 S.Ct. 2885 (1984) .................21, 34 Raulerson v. Wainwright, 753 F.2d 869 (11th Cir. 1985) ............... 29-30 * Rideau v. Louisiana, 373 U.S. 723, 83 S.Ct. 1417 (1963) .......3, 16, 23-24, 33 Rosales-Lopez v. United States, 451 U.S. 182, 101 S.Ct. 1629 (1981) ..... 53-54 iv Ross v. Hopper, 716 F.2d 1528 (11th Cir. 1983), modified on other grounds, 756 F.2d 1483 (11th Cir. 1985) (en banc) ..................30 Spivey v. Head, 207 F.3d 1263 (11th Cir. 2000) ...........................9 United States v. Alvarez, 755 F.2d 830 (11th Cir. 1985) ................ 14-15 * United States v. Awan, 966 F.2d 1415 (11th Cir. 1992) ...................6-8 United States v. Campa, 419 F.3d 1219 (11th Cir. 2005), rehearing en banc granted, opinion vacated by, __ F.3d __, 2005 WL 2840320 (11th Cir. Oct. 31, 2005) (en banc) .....17, 26, 28, 32, 42, 47, 53 United States v. Capo, 595 F.2d 1086 (5th Cir. 1979) .................. 30-31 United States v. Fuentes-Coba, 738 F.3d 1191 (11th Cir. 1984) ..........21, 32 United States v. Lehder, 955 F.2d 1510 (11th Cir. 1992) ................21, 30 United States v. Gorel, 622 F.2d 100 (5th Cir. 1979) ...................14, 15 United States v. Hernandez, 106 F.Supp.2d 1317 (S.D. Fla. 2000) ...........12 * United States v. McIver, 688 F.3d 726 (11th Cir. 1982) .................. 6, 8 United States v. Noriega, 117 F.3d 1206 (11th Cir. 1997) ...................8 * United States v. Williams, 523 F.2d 1203 (5th Cir. 1975) .................. 32 STATUTORY AND OTHER AUTHORITY: 18 U.S.C. § 3231 ..................................................vii 18 U.S.C. § 3742 ..................................................vii v 28 U.S.C. § 1291 ..................................................vii Fed. R. App. P. 28(i) ...............................................vii Editorial cartoon, “The New Trial Given To Castro’s Spies,” El Nuevo Herald, Nov. 29, 2005, 20A ............................52 Enrique Espinosa, The Five Hired Thugs of Castoism, Univision Radio, Aug. 18, 2005 .................................51 Guy Lewis, Letter to the Editor, Miami Herald, Aug. 18, 2005, 22A .........51 Miami Herald, Tense scene played out on Miami streets, Apr. 23, 2000, A1 ...41 Daniel Morcate, Blinded Judges, El Nuevo Herald, Aug. 19, 2005, 20A ......50 Operation Pedro Pan Remembered, Miami-Dade College Forum, 8 (Dec. 2005) ..................54 vi STATEMENT REGARDING ADOPTION OF BRIEFS OF OTHER APPELLANTS Appellant Ruben Campa, pursuant to Fed.R.App.P. 28(i), hereby adopts the en banc appellate briefs filed in the instant appeal by co-appellants Gerardo Hernandez, Luis Medina, Antonio Guerrero, and Rene Gonzalez. STATEMENT OF JURISDICTION The district court had jurisdiction of this case pursuant to 18 U.S.C. § 3231 because the defendant was charged with offenses against the laws of the United States. The court of appeals has jurisdiction over this appeal under 28 U.S.C. § 1291 and 18 U.S.C. § 3742, which give the courts of appeals jurisdiction over final decisions and sentences of United States district courts. vii STATEMENT OF THE EN BANC ISSUES I. Whether the district court improperly denied defendants’ repeated motions for change of venue where pervasive community prejudice, in combination with prejudicial events at trial, rendered virtually impossible the jury’s consideration of the case unaffected by prejudicial community influences. II. Whether the district court improperly denied defendants’ motion for new trial based on newly discovered evidence where the government conceded, after trial, pervasive community prejudice in Miami-Dade County with respect to issues of core concern to the Cuban exile community. STATEMENT OF THE CASE Course of Proceedings,
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