Opposition Brief — Campa v. United States (No. 08-987)

No. 08-987

In the Supreme Court of the Gaited States

RUBEN CAMPA, ET AL., PETITIONERS

Vv.

UNITED STATES OF AMERICA

ON PETITION FORA WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

ELENA KAGAN

Solicitor General

Counsel of Record

LANNY A. BREUER

Assistant Attorney General

JOSEPH F. PALMER

Attorney

Department of Justice

Washington, D.C. 20530-0001

(202) 514-2217

QUESTIONS PRESENTED

1. Whether the courts below correctly rejected peti-

tioners’ claim that the government’s peremptory chal-

lenges were based on race in violation of Batson v. Ken-

tucky, 476 U.S. 79 (1986).

2. Whether the district court erred in denying peti-

tioners’ motions for change of venue.

3. Whether sufficient evidence supported petitioner

Hernandez’s conviction for conspiracy to commit murder

within the special maritime and territoria! jurisdiction

of the United States, in violation of 18 U.S.C. 1111 and

18 U.S.C. 1117.

4. Whether the court of appeals properly declined to

remand petitioner Hernandez’s case for resentencing.

(1)

TABLE OF CONTENTS

Page

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PINE has) 5s eo Raed eee ek coe 1

I 5 cee Hee eu Canes eae lee ee 2

ee nr tay ha ee me ser m 12

RACINE fk So oa ceo ee 0h ee A ee eee

TABLE OF AUTHORITIES

Cases:

Batson v. Kentucky, 476 U.S. 79 (1986) ....... 7, 11, 12, 13

Coulter v. Gilmore, 155 F.3d 912 (7th Cir. 1998) ........ 14

Daniels v. Woodford, 428 F.3d 1181 (9th Cir. 2005),

cert. denied, 550 U.S. 968 (2007) ................... 22

Dobbert v. Florida, 482 U.S. 282 (1977) ..............%- 21

Fisher v. State, 481 So. 2d 203 (Miss. 1985) ............ 24

Hardcastle v. Horn, 368 F.3d 246 (3d Cir. 2004),

cert. denied, 543 U.S. 1081 (2005) .................. 14

Hernandez v. New York, 500 U.S. 3852 (1991) .......... 17

Irvin Vv. Dowd, 366 U.S. 717 (1961) ................... 19

Jackson v. Virginia, 443 U.S. 307 (1979) ..........0... 28

Jones v. Ryan, 987 F.2d 960 (3d Cir. 1993) ............ 14

Lancaster v. Adams, 324 F.3d 423 (6th Cir.),

cert. denied, 540 US. 1004 (2003) .....0.0.000.0.0002... 18

Mu’Min v. Virginia, 500 U.S. 415 (1991) 2.2 ........ 20, 25

Murphy v. Florida, 421 U.S. 794 (1975) 2.0.0... 19, 20, 21

Pollard v. District Court, 200 N.W.2d 519

Bo Sf 4 Se i mw ae a ag ye Ay ayia Baty ce Za, 21

Purkett v. Elem, 514 U.S. 765 (1995) .................. 12

Rideau v. Lowsiana, 373 U.S. 728 (1963) 22... 19, 21, 27

(111)

IV

Cases—Continued: Page

Sheppard v. Maxwell, 384 U.S. 333 (1966) ............. 21

Snyder v. Lowisiana, 128 8. Ct. 1203 (2008) ..... 12, 16, 17

Sorto v. Herbert, 497 F.3d 163 (2d Cir. 2007) ........... 15

State v. Duncan, 802 So. 2d 533 (La. 2001),

cert. denied, 536 U.S. 907 (2002) ......... eee ceceee 14

State v. James, 767 P.2d 549 (Utah 1989) .............. 25

USPS Bad. of Governors v. Aikens, 460 U.S. 711

I ig oh a GW kg ais canta Ce ee Wado 8 vie + oe Oe 8 es 17

United States v. Allison, 908 F.2d 1531 (11th Cir.

1990), cert. denied, 500 U.S. 904 (1991) ............. 13

United States v. Alvarado, 923 F.2d 253 (2d Cir.

Se as aaa Rk ee ea eS os 14,15

Unoated States v. Bangert, 645 F.2d 1297 (8th Cir.),

cert. denied, 454 U.S. 860 (1981) ................... 22

United States v. Brown, 352 F.3d 654 (2d Cir. 2003) .... 18

United States v. De Peri, 778 F.2d 963 (3d Cir. 1985),

cert. denied, 475 U.S. 1110, and 476 U.S. 1159

SE eae a Ce ee oi ea ee Ee we a ek ek 21

lU/nited States v. Dennis, 804 F.2d 1208 (11th Cir.

1986), cert. denied, 481 U.S. 1037 (1987) ............ 13

United States v. Gillam, 167 F.8d 1273 (9th Cir. 1999),

cert. denied, 528 U.S. 900 (1999) ........... ccc wcece 18

lL/naited States v. Johnson, 941 F.2d 1102 (10th Cir.

HUES Pe ae ra a oe ese atk a a OER ALLS ORS 18

United States v. Aincaid, 898 F.2d 110 (1990) 20 ........ 29

United States v. Lane, 866 F.2d 103 (4th Cir. 1989) ..... 18

United States v. Livoti, 196 F.3d 322 (2d Cir. 1999),

cert. denied, 529 U.S. 1108 (2000) 23

“oe ee a a se a ee oe er a ie ee a

Cases—Continued: Page

United States v. McMath, 559 F.3d 657 (7th Cir.

I 26 a a a ah ee a he Kare ates 18

United States v. McVeigh, 153 F.3d 1166 (10th Cir.

1998), cert. denied, 526 U.S. 1007 (1999) ......... 25, 26

Unated States v. Perez, 35 F.3d 632 (1st Cir. 1994) ...... 18

United States v. Rodriquez-Cardona, 924 F.2d 1148

(1st Cir.), cert. denied, 502 U.S. 809 (1991) .......... 23.

United States v. Skilling, 554 F.3d 529 (5th Cir. 2009),

petition for cert. pending, No. 08-1394 (filed May

Pe aa pee ra ek ie os CA ee ER Zo, 20

United States v. Stewart, 65 F.3d 918 (11th Cir. 1995),

cert. denied, 516 U.S. 1134 (1906) .. 2... ee eee 18

United States v. Uwaezhoke, 995 F.2d 388 (3d Cir.

1993), cert. denied, 510 U.S. 1091 (1994) ............ 18

United States v. Williams, 264 F.3d 561 (5th Cir.

MOEN cso 5 3-06 bye eee ra see Se eS aL ee are 1S

United States v. Willie, 941 F.2d 1584 (10th Cir.

1991), cert. denied, 502 U.S. 1106 (1992) ............ 13

United States v. Young-Bey, 898 F.2d V78 (Sth Cir.

aati irae area ele ah ee a ek a ae ae 14

United States v. Yousey, 327 F.3d 56 (2d Cir. 2003) ..... 26

Whitehead v. Cowan, 263 F.3d 708 (7th Cir. 2001),

cert. denied, 524 U.S. 1116 (2002) .................. 21

Statutes, guideline and rule:

yg Sa. ie ¢ oR NR Da a Ree ce eae eee

Wipes UO ss a ass a eg ae eae eee A Dt 4.5

Be Beda OE Wins es ek ewes ea Pa at ee aa 2. 4,3

IS U.S.C. LO28(CadC3) a . me od

Vi

Statutes, guideline and rule—Continued: Page

ee oss sa ee seo eee cae R be Rwe SEES 10

1 eS aa ee rere

eg ch ys oes coke ee SN Ae 6 a ecko w8 OOO 5

EE, eee saa ne ae as usin ee. ckak oe 4,5

United States Sentencing Guidelines § 2M3.1(a) ....... 11

r,s soo a Oe we eee wee 29

Miscellaneous:

2 Charles Alan Wright, Federal Practice and

Procedure (3d ed. 2000)

Jn the Supreme Court of the Gnited States

No. 08-987

RUBEN CAMPA, FT AL., PETITIONERS

VU.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI

10 THE UNtTED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. La-89a)

is reported at 529 F.3d 980. The opinion of the en banc

court of appeals (Pet. App. 90a-219a) is reported at 459

F.3d 1121. The initial, now-vacated opinion of a panel of

the court of appeals (Pet. App. 220a-318a) is reported at

119 F.3d 1219. The opinion of the district court denying

a pre-trial motiou for change of venue (Pet. App. 319a-

338a) is reported at 106 F. Supp. 2d 1317.

JURISDICTION

The judgment of the court of appeals was entered on

June 4, 2008. Petitions for rehearing were denied on

September 2, 2008 (Pet. App. 401a-403a, 404a-406a). On

November 18, 2008, Justice Thomas extended the time

within which to file a petition for a writ of certiorari to

(])

ys

and including December 19, 2008. On December 19,

2008, Justice Thomas further extended the time to and

including January 30, 2009, and the petition was filed on

that date. The jurisdiction of this Court is invoked un-

der 28 U.S.C. 1254(1).

STATEMENT

Following a jury trial in the United States District

Court for the Southern District of Florida, petitioners

were convicted of acting and conspiring to act as agents

of a foreign government without notifying the Attorney

General, in violation of 18 U.S.C. 951 and 18 U.S.C. 371,

as well as other offenses related to covert service on

behalf of a foreign government. The court of appeals

affirmed all petitioners’ convictions and the sentences of

petitioners Hernandez and Gonzalez, but remanded for

resentencing of petitioners Campa, Medina, and Guer-

rero. Pet. App. la-89a.

1. Petitioners were operatives of the Directorate of

Intelligence (DI) of Cuba and members of a DI organi-

zation in South Florida known as La Red Avispa, or the

Wasp Network. Pet. App. 3a. Petitioners Hernandez,

Campa, and Medina were intelligence officers in the

Network, and they supervised a number of agents, in-

cluding petitioners Gonzalez and Guerrero. /d. at 3a-4a.

As members of the Network, petitioners penetrated U.S.

military facilities and transmitted information about the

facilities’ operations and layout to Cuba. /d. at 4a-6a,

d6a-57a, 42a-43a, 265a-266a, 285a.

The Network’s activities also included penetrating

Cuban-American organizations opposed to the Cuban

regime. Pet. App. 5a, 119a-120a. Among other organi

zations, the Network targeted Brothers to the Rescue

(BTTR), a Miami-based organization that flew small

3

civilian aircraft over the Florida Straits to assist rafters

escaping from Cuba. /d. at 4a, Z85a-286a.

In January 1996, BTTR planes twice dropped leaflets

that drifted over Havana. Pet. App. 4a. DI headquar-

ters in Cuba responded by initiating Operation Scorpion,

which aimed to “perfect” a “confrontation” with BTTR.

Id. at 4a, 48a. The DI directed petitioner Hernandez to

task petitioner Gonzalez and another agent, both of

whom had infiltrated BTTR, with procuring detailed

information about future BTTR flights. The DI also

directed Hernandez to keep the DI agents off of BTTR

flights on prescribed dates. /d. at 4a, 48a-49a.

On February 24, 1996, three BTTR planes made a

scheduled flight over the Florida Straits to search for

rafters. Pet. App. 276a. The flight plans were transniit-

ted to Cuba. /bid. When the planes passed the bound-

ary between Miami and Havana air traffie control, which

lies in international airspace, they identified themselves

to Havana. /b/d. Within minutes, Cuban fighter jets

pursued two of the BTTR planes. /d. at 276a-277a. The

Cuban fighters shot down both planes, killing all four

men aboard, three of whom were U.S. citizens. Both

planes were in international airspace, heading away

from Cuba, when they were shot down. Neither plane

had entered Cuban airspace. /d. at 5a, 276a-277a.

Following the shootdown, petitioner Hernandez

wrote to his superiors that he and others took pride in

having contributed to an operation that “ended success-

fully,” and the chief of the DI recognized petitioner Her-

nandez for the “outstanding results achieved on the job,

during the provocations carried out by the United States

this past 24th of February.” Pet. App. 49a.

None of the petitioners notified the United States

Attorney General that they were acting as avents of the

4

Cuban government. Pet. App. 120a. Petitioners em-

ployed elaborate measures to conceal their clandestine

operations, including code names and countersurveil-

lance. /d. at 5a, 38a, 267a. Some petitioners used multi-

ple false identities, backed up by fraudulent documents,

including fake United States passports. /bid.

2. Petitioners were indicted by a federal grand jury

in the Southern District of Florida in 1998. Pet. App.

92a-94a. A second superseding indictment was filed in

1999. Id. at 92. n.2.' Petitioner Campa was charged

with two counts of acting as an agent of a foreign gov-

ernment without notifying the Attorney General and one

count of conspiracy to commit that offense and to de-

fraud the United States, in violation of 18 U.S.C. 951 and

18 U.S.C. 371; one count of fraud and misuse of docu-

ments, in violation of 18 U.S.C. 1546(a); and one count of

possession with intent to use five or more fraudulent

identification documents, in violation of 18 U.S.C.

LO28(a)(3).

Petitioner Gonzalez was charged with one count of

acting as an agent of a foreign government without noti-

fying the Attorney General and one count of conspiracy

to commit that offense and to defraud the United States,

in violation of 18 U.S.C. 951 and 18 U.S.C. 371.

Petitioner Guerrero was charged with one count of

acting as an agent of a foreign government without noti

fying the Attorney General and one count of conspiracy

to commit that offense and to defraud the United States,

in violation of 18 U.S.C, 951 and 18 U.S.C. 371; and one

count of conspiracy to gather and transmit national de

fense information, in violation of 18 U.S.C. 7540).

\iihough Congress amended certain statutory provisions cited in

the indictment atter the dates on which petitioners committed ther

olfenses, those umendments ure not relevant here

2]

Petitioner Hernandez was charged with one count of

conspiracy to gather and transmit national defense in-

formation, in violation of 18 U.S.C. 794(e); seven counts

of acting as an agent of a foreign government without

notifying the Attorney General and one count of conspir-

acy to commit that offense and to defraud the United

States, in violation of 18 U.S.C. 951 and 18 U.S.C. 371;

two counts of fraud and misuse of documents, in viola-

tion of 18 U.S.C. 1546(a); one count of possession with

intent to use five or more fraudulent identification docu-

ments, in violation of 18 U.S.C. 1028(a)(3); and one count

of conspiracy to murder, in violation of 18 U.S.C. 1117.

Petitioner Medina was charged with four counts of

acting as an agent of a foreign government without noti-

fying the Attorney General and one count of conspiracy

to commit that offense and to defraud the United States,

in violation of 18 U.S.C. 951 and 18 U.S.C. 371; one count

of conspiracy to gather and transmit national defense

information, in violation of 18 U.S.C. 794(c); two counts

of fraud and misuse of documents, in violation of 18

U.S.C. 1546(a); one count of making a false statement in

a passport application, in violation of 18 U.S.C. 1542; and

one count of possession with intent to use five or more

fraudulent identification documents, in violation of 1&

U.S.C. 1028(a)(3).

3. Before trial, petitioners moved for a change of

venue, contending that pretrial publicity and pervasive

community prejudice against anyone associated with the

Cuban government would prevent a fair trial in Miami.

The district court denied the motic 4, and an oral request

to move the trial within the district, without prejudice.

Pet. App. 819a 838a

The distriet court held that petitioners had not pre

sented evidence of pretrial publicity or pervasive com

6

munity prejudice sufficient to warrant a presumption

that the jury would not be fair and impartial. Pet. App.

329a-337a. The court noted that much of the pretrial

publicity cited in petitioners’ motion did not relate to pe-

titioners’ alleged activities, that the most recent articles

on the downing of the BTTR planes had been published

more than a year beforehand, and that the coverage was

“largely factual in nature.” /d. at 330a-331la. The court

also found that a survey conducted by petitioners’ expert

purporting to demonstrate pervasive community preju-

dice was faulty in several respects. /d. at 331a-336a.

The district court concluded that “thorough voir dire

* * * and careful instructions to the jury throughout

trial will enable the Court to safeguard | petitioners’ ]

right to a fair and impartial jury in Miami-Dade Coun-

ty,” but invited petitioners to renew their motions for

change of venue if the voir dire process showed that an

impartial jury could not be empaneled. Pet. App. 337a.

The court repeated that invitation in denying a motion

for reconsideration. /d. at 341a.

The district court conducted a two-stage voir dire

that lasted seven days. Pet. App. 106a-119a. During the

first stage, the court questioned panels of prospective

jurors about their qualifications to serve in the case,

then permitted the parties to exercise challenges for

cause or hardship. /d. at 1O8a-109a. Of 168 prospective

jurors questioned, ten were struck for cause at the first

staye because of concerns about their opiiions about

Cuba or acquaintance with nersons involved in the case.

/d. at 113a-ll4a. During the second stage, the court

questioned prospective jurors individually, separated

from the rest of the venire, about their exposure to the

media, their knowledge and opinions, and their connec

tions to and attitudes about Cuba. /d. at 1}09a-118a. The

7

parties were then permitted to exercise peremptory

challenges, as well as any additional challenges for

cause. /d. at 114a-115a. By the end of the second stage,

22 additional prospective jurors were struck for cause

because of their opinions about Cuba. /bid.

The defense exercised 15 of its 18 peremptory chal-

lenges and both of their allotted challenges for alternate

jurors. Pet. App. 115a. The government exercised 9 of

its 11 peremptory challenges and both of its allotted

challenges for alternate jurors. /d. at 7a, 426a-438a.

Petitioners objected to seven of the government’s chal-

lenges, claiming that the government struck the pro-

spective jurors because they were African-American, in

violation of Batson v. Kentucky, 476 U.S. 79 (1986). Pet.

App. 7a, 417a-418a, 422a.- Accepting the covernment’s

race-neutral reasons for its challenges, the district court

concluded that the challenges were lawful. /d. at 7a,

417a-433a. The seated panel included three African-

American jurors and one African-American alternate.

Id. at 454a.

Despite the district court’s earlier invitations, peti-

tioners did not renew their change of venue motions at

the conclusion of voir dire. Pet. App. 118a. Counsel in-

stead expressed satisfaction with the conduct of voir

dire and, later, with the jury ultimately empaneled. /d.

at 118a-119a.*

~ The government also argued that petitioners inaccurately charac-

terized one of the challenged jurors as African-Americin. Pet. App.

23a. Petitioners did nut respond to that argument, and the district

court did not resolve the question. /bid.

During the trial, petitioners renewed their requests for change of

venue by moving for a mistrial “based on community events and trial

publicity.” Pet. App. l2la. The distinet court denied those motions, af.

ter determining through a defense requested inquiry of the jury that

8

After a seven-month trial, the jury found petitioners

guilty on all counts. Pet. App. 7a, 155a, 344a.

4. A panel of the court of appeals reversed petition-

ers’ convictions and remanded the case for a new trial.

Pet. App. 220a-318a. The panel held that the district

court abused its discretion by denying petitioners’ mo-

tions for change of venue, concluding that empaneling an

impartial jury in Miami was “an unreasonable probabil-

itv” because “[t]he entire community is sensitive to and

permeated by concerns for the Cuban exile population in

Miami.” /d. at 3lla-312a.

5. The court of appeals granted rehearing en banc.

By a 10-2 vote, the en bane court affirmed the district

court’s denial of the motions for change of venue. Pet.

App. 90a-219a.

The en bane court of appeals concluded that the dis-

trict court did not abuse its discretion in concluding that

pretrial publicity did not warrant a presumption of jury

prejudice. Pet. App. 183a-137a. The court explained

that most of the news materials petitioners had submit-

ted did not relate directly to their crimes, but instead to

“subjects such as the community tensions and protests

related to general anti-Castro sentiment, the conditions

in Cuba, and other ongoing legal cases, such as the Elian

Gonzalez matter.” /d. at 136a. The court concluded that

the “very few” articles that “related directly to the de-

fendants” were “too factual and too old to be inflamma-

tory or prejudicial,” and it noted that “most of the venire

revealed that they were either entirely unaware of this

case, or had only a vague recollection of it.” Jd. at 136a-

7,

lsia.

nothing indicated that jurors were not complying with the court's di-

rection to avoid contact with the media reporting on the matter. /d at

122Za-123a

{

9

The en banc court also upheld the district court’s

finding that petitioners’ survey evidence was insufficient

to establish pervasive community prejudice against per-

sons alleged to have assisted the Castro regime. Pet.

App. 138a; see also id. at 139a n.219 (upholding the

district court’s “specific finding” that “the defendants’

evidence did not demonstrate that community preju-

dice warranted a change of venue”). The em bane court

agreed with the district court that petitioners’ commu-

nity-attitudes survey was “riddled with non-neutral

questions” and was “too ambiguous to be reliable.” Jd.

at 158a.

Finally, the en bane court concluded that the district

court’s voir dire process provided added assurance that

the asserted community prejudice would not prevent a

fair trial. Pet. App. 140a-145a; see 7d. at 138a. The en

hane court noted that the “meticulous,” seven-day, two-

phase process “was a model voir dire for a high profile

ease”; that the second-phase questioning revealed that

most of the potential jurors and all the actual jurors had

been exposed to little or no media coverage of the case;

and that only 32 of 168 prospective jurors had been

struck for Cuba-related reasons. /d. at 14la-142a. The

court found further support for its conclusion in petition-

ers’ conduct. The court noted that petitioners did not

use all of their peremptory challenges; that petitioners

declined to renew their motions for change of venue at

the end of voir dire, despite the district eourt’s earlier

invitations to do so; and that counsel expressed satistac-

tion with the conduct of voir dire and, later, with the

jury ultimately empaneled. /d. at 143a. The voir dire,

the court concluded, “rebutted any presumption of jury

prejudice.” Lhd.

10

Judge Birch dissented in an opinion joined by Judge

Kravitch. Pet. App. 160a-219a. He explained that,

“({dJespite the district court’s numerous efforts to ensure

an impartial jury in this case,” he was “not convinced

that empaneling such a jury in this community was pos-

sible because of pervasive community prejudice.” /d. at

212a.

6. On remand, a panel of the court of appeals af-

firmed petitioners’ convictions and the sentences of peti-

tioners Hernandez and Gonzalez, but remanded for re-

sentencing of petitioners Campa, Medina, and Guerrero.

Pet. App. la-89a.

The court of appeals rejected petitioners’ contention

that the government exercised its peremptory chal-

lenges in violation of Batson. Pet. App. 25a-27a. While

noting that the district court had found the govern-

ment’s proffered reasons for each challenged strike to

be race-neutral, the court affirmed on the alternative

ground that petitioners failed to establish a prima facie

case of discrimination. /d. at 26a. The court concluded

that any inference of discrimination that might arise

from the government’s use of some of its challenges to

strike African-American prospective jurors was under-

cut by the facts that the government did not use two of

its peremptory challenges and that the jury included

three African-American jurors and one African-Ameri-

can alternate. /d. at 26a-27a.

The court of appeals also rejected petitioner Her-

nandez’s claim that there was insufficient evidence to

support his conviction for conspiracy to murder under 18

U.S.C. 1111 and 18 U.S.C. 1117. Pet. App. 45a-55a. The

court held that, even if, as Hernandez argued, the con

spiracy would not have been unlawful had the conspira-

tors intended for the shootdown to occur in Cuban air-

Li

space, rather than international airspace, there was

“ample evidence” that Hernandez and his co-conspira-

tors intended for the killing to occur in international

airspace, where it did in fact occur. /d. at 54a-55a.

Finally, although the court of appeals rejected most

of petitioners’ challenges to their sentences, the court

held that the district court had incorrectly sentenced

petitioners Medina, Guerrero, and Hernandez with re-

spect to their convictions for conspiring to gather and

transmit national defense information. Pet. App. 62a-

63a, 70a. The court held that, under Sentencing Guide-

lines § 2M38.1(a), the district court should have set those

petitioners’ offense level at 37 rather than 42 because

the district court did not find that petitioners had actu-

ally sueceeded in gathering or transmitting top secret

information. Pet. App. 62a-63a, 70a. The court did not,

however, remand for resentencing of petitioner Hernan-

dez because he was supject to a concurrent life sentence

on his conviction for conspiracy to murder, making the

error harmless. /d. at 63a, 70a-7la.

Judge Kravitch concurred in part and dissented in

part. Pet. App. 72a-89a. Although she joined most of

the court’s opinion, she concluded that the evidence was

insufficient to prove that the conspirators had planned

an unlawful murder in international airspace, rather

than a confrontation within Cuban jurisdiction. /d. at

S7a-S8Sa.

ARGUMENT

1. Petitioners contend (Pet. 10-14) that the court of

appeas erred in concluding that they failed to make a

prima facie showing under batson v. Kentucky, 476 U.S.

79 (1986), that the government’s peremptory strikes

12

were racially discriminatory. Petitioners’ contention

does not warrant this Court’s review.

a. Batson established a three-step process for deter-

mining whether a prosecutor has discriminated on the

basis of race in exercising a peremptory challenge. 476

U.S. at 96-98. First, the defendant must make a prima

facie showing that the prosecutor has exercised a pe-

remptory strike on a prohibited basis. /d. at 96-97. To

make such a showing, the defendant must establish that

the “relevant circumstances raise an inference” of racial

discrimination. /d. at 96. Second, if that showing has

been made, the government must come forward with a

race-neutral explanation for the strike. Jd. at 97-98.

Third, if the government provides a race-neutral expla-

nation, “the trial court must * * * decide * * * whe-

ther the opponent of the strike has proved purposeful

racial discrimination.” Purkett v. Elem, 514 U.S. 765,

767 (1995) (per curiam); Batson, 476 U.S. at 98. “|T}he

ultimate burden of persuasion regarding racial motiva-

tion rests with, and never shifts from, the opponent of

the strike.” Purkett, 514 U.S. at 768. A trial court’s

ruling on the issue of discriminatory intent is reviewed

for clear error. Snyder v. Louisiana, 128 S. Ct. 1208,

1207-1208 (2008).

b. The district court rejected petitioners’ Batson

claim on the ground that the government had proffered

race-neutral reasons for each challenged strike. See

Pet. App. 417a-432a. Without considering the merits of

that conctusion, the court of appeals affirmed on the al-

ternative ground that the defendants did not establish a

prime facie case of discrimination. /d. at 26a. Petition-

ers contend (Pet. 10-14) that review is warranted be

cause, in their view, the court of appeals erroneously

established a “per se rule” that “no Batson inquiry is

13

required whenever even one minority juror is seated by

a party that does not use all of its strikes.” Pet. 11. Pe-

titioners are incorrect.

Contrary to petitioners’ contention, the court of ap-

peals’ opinion in this ease does not establish that “allow-

ing at least one minority juror to serve” will necessarily

defeat a Batson claim, or that other relevant cireum-

stances, such as a pattern of strikes against persons of

a particular race or gender or counsel’s statements and

questions during voir dire, are irrelevant to the inquiry.

See Pet. 11-12; Batson, 476 U.S. at 96-97. Rather, in

holding that petitioners did not show a prima facie case,

the court relied on its earlier decision in United States

v. Dennis, 804 F.2d 1208 (11th Cir. 1986) (per curiam),

cert. denied, 481 U.S. 10387 (1987), which emphasized

similar considerations in determining that “all of the

relevant facts and circumstances” did not give rise to an

inference of discrimination. /d. at 1211; see Pet. App.

26a-27a.

In applying Dennis, the court of appeals has explic-

itly “recognize[d] that the seating of some blacks on the

jury does not necessarily bar a finding of racial discrimi-

nation.” United States v. Allison, 908 F.2d 1531, 1537

(11th Cir. 1990), cert. denied, 500 U.S. 904 (1991). But

the court has held that, where, as here, a defendant’s

claim of racial discrimination rests solely on the number

of peremptory challenges the government has exercised

against members of a particular race, the government’s

decision not to exercise available peremptory challenges

against members of the same race is a “significant fact”

that “undercuts ary inference of :mpermissible discrimi-

nation.” /bid. That approach is consistent with the ap-

proaches of other courts. See, «.g., United States v.

Willie, 941 F.2d 1384, 1399 (10th Cir. 1991) (the “fact

14

that the prosecution exercised only four of its six pe-

remptory challenges undercut[] an inference of discrimi-

nation since the government, if it had chosen, could have

excluded [another minority] from the jury”), cert. de-

nied, 502 U.S. 1106 (1952); United States v. Young-Bey,

893 F.2d 178, 180 (8th Cir. 1990) (court of appeals

“consider[ed| the presence of two blacks on the petit

jury to undermine” defendant’s attempt to make a prima

facie showing).

Despite petitioners’ arguments to the contrary (Pet.

12-13), the court of appeals’ approach creates nc conflict

with those courts that have held that a prosecutor’s deci-

sion not to remove all members of a certain race or gen-

der is not necessarily dispositive and that have consid-

ered other relevant circumstances in evaluating whether

the defendant has established a prima facie case of

crimination. See Hardcastle v. Horn, 368 F.3d 246, 25

256 (3d Cir. 2004), cert. denied, 543 U.S. 1081 oe

Coulter v. Gilmore, 155 F.3d 912, 914, 918-921 (7th Cir.

1998); Jones v. Ryan, 987 F.2d 960, 962-963, 972-975 (3d

Cir. 1993); United States v. Alvarado, 923 F.2d 258, 255-

256 (2d Cir. 1991); see also State v. Duncan, 802 So. 2d

533, 050, 552 (La. 2001) (concluding that the prosecutor's

decision not to use ail available peremptory challenges

yainst members of a particular race, though not dis-

positive, is a “valid factor” to consider in determining

whether the defendant made out a prima facie case of

discrimination), cert. denied, 536 U.S. 907 (2002).

Petitioners also err in contending (Pet. 13-14) that

“other courts would find that petitioners made out a

prima facie claim under Batson,” based solely on a com-

parison between the percentage of the government's

available peremptory challenges used to strike African-

American venirepersons and the percentage of African

a

1d

Americans in the population of Miami-Dade County.

For that proposition, petitioners rely primarily on Al-

varado, in which the Second Circuit employed a similar

analysis, using the demographics of the community as a

“surrogate” for the demographics of the venire. 923

F.2d at 255-256. The Second Circuit has since made

clear, however, that such analysis, though permissible,

is “a thin basis for assigning discriminatory motive to an

officer of the court.” Sorto v. Herbert, 497 F.3d 163), 172

(2d Cir. 2007).

ec. In any event, even if there were a conflict on this

issue that otherwise merited this Court’s review, this

ease would not be a suitable vehicle. As explained be-

low, the district court correctly held that no Batson vio-

lation oecurred because the government’s strikes were

non-discriminatory. Petitioners could not prevail on

their Batson challenge absent a demonstration that the

district court committed clear error, which they cannot

do. And the prevailing view is that, once the district

court has credited the government’s explanation, the

question of whether that finding was clearly erroneous

is the only question for appellate resolution. A grant of

certiorari to address any purperted conflict on the stan-

dards for establishing a prima facie case thus would not

alter the result in this case.

i. The district court did not clearly err in finding

that race-neutral reasons sufficiently supported the gov-

ernment’s exercise of the challenged peremptory

strikes. Pet. App. 420a, 421a, 424a, 428a, 452a. The re-

cord reflects that the prosecutor struck one prospective

juror on account of her attitudes about U.S. policy on

Cuban immigrants, her history of travel to Cuba, and

her unusual demeanor. /d. at 419a. The district court

found those reasons to be sufficient, specifically citing

16

the juror’s unusual demeanor. /d. at 420a; see Snyder,

1288. Ct. at 1208, 1209 (“[D]eterminations of credibility

and demeanor lie peculiarly within a trial judge’s prov-

ince, and * * * in the absence of exceptional cireum-

stances, we would defer to the trial court.”) (brackets,

internal quotation marks, and citations omitted). An-

other prospective juror was struck because he was a

prison guard, and the prosecution would be relying on

witnesses who were prisoners. Pet. App. 420a-421a.’

Other prospective jurors were struck for equally

valid reasons: one prospective juror was struck after

she said that her son’s trial for armed robbery had been

unfair, and she had no faith in the jury system, Pet. App.

422a-423a; another was struck because of her demeanor,

because she gave “basically one word answers to every

question,” and because she was from the same country

(Panama) as the family of one of the petitioners, id. at

427a; and a prospective alternate was struck because of

her apparent difficulty understanding English and in-

ability to read documents in English, as well as her

laughter and annoyed demeanor in response to the

court’s question abeut her opinion on Elian Gonzalez,

id. at 431la-432a.

The district court’s decision to credit the govern-

ment’s race-neutral explanations for its strikes is not

clearly erroneous. The ciear-error standard is a high

hurdle because “credibility and demeanor” determina-

tions, Which pertain to prosecutors and jurors alike, “lie

' The district court accepted the government's explaination despite

the detense’s argument that the explanation was pretextual because the

government “didn’t have a proolem” with a white prospective juror who

worked at the Federal Detention Center. Pet. App. 421a; Gov't C.A.

Supp. Br. 43. As the government explained, the other prospective juror

Was aclerk who did not guard prisoners. Pet. App. 4214

17

peculiarly within a trial judge’s province.” Snyder, 128

S. Ct. at 1208 (internal quotation marks and citation

omitted). The district court’s rejection of petitioners’

Batson cluim thus is entitled to respect on uppeal. See

Pet. App. 420a, 421a, 424a, 428a, 432a.

ii. The district court’s factual finding that no inten-

tional discrimination occurred fully supports the judg-

ment in this case, regardless of whether a prima facie

case was made out. Indeed, the prevailing view is that,

once a party has provided an explanation for a chal-

lenged peremptory strike and the district court has

credited it, an appellate court should review that finding

for clear error, rather than reviewing the antecedent

question whether a prima facie case existed. |

In Hernandez v. New York, 500 U.S. 352 (1991), a

plurality of this Court explained that, “[o|nce a prosecu-

tor has offered a race-neutral explanation for the pe-

remptory challenges and the trial court has ruled on the

ultimate question of intentional discrimination, the pre-

liminary issue of whether the defendant had made a

prima facie showing Secomes moot,” /d. at 359. As the

plurality noted, that rule is consistent with the rule this

Court has applied in employment discrimination cases.

[bid. (citing USPS Bd. of Governors v. Atkens, 460 U.S.

711, 715 (1983)). In Aikens, the Court explained that,

once a defendant in an employment discrimination case

“has done everything that would be required of him if

the plaintiff had properly made out a prima facie case,

whether the plaintiff really did so is no longer relevant.”

460 U.S. at 715. A court thus should proceed “directly”

to the ultimate question of intentional discrimination; to

ask at that stage whether the plaintiff has made out a

prima facie case “unnecessarily evadels| the ultimate

question of discrimination vel non.” Td. at 714-715.

18

In contrast to the court of appeals in this case, most

courts of appeals have concluded that, when a trial court

has already ruled on the ultimate question of discrimina-

tion in a Batson case, the only question on appeal is

whether the trial court’s ruling on that ultimate question

is clearly erroneous.” That principle provides an added

reason for this Court to decline review of the prima-

facie-case issue petitioners present. If this Court should

agree that the only issue to be resolved on appeal is

whether the district court’s finding of no intentional dis-

crimination was clearly erroneous, the Court would have

no occasion to reach the prima-facie-case issue. Accord-

ingly, no further review of that issue is warranted.

2. Petitioners next contend (Pet. 14-29) that the

court of appeals erred in upholding the district court's

denial of their motions for a change of venue. They con-

tend that the jury pool in Miami should have been pre-

sumed to be prejudiced against them, regardless of the

results of the district court’s extensive voir dire process,

and that they were therefore deprived of their right to

See, e.g., United States v. Perez, 385 F.8d 682, 685-686 (lst Cir

1994); l/nited States v. Brown, 352. F.3d 654, 660-661 (2d Cir. 2008);

United States v. Uwaeshoke, 995 F 2d 388, 392-395 (3d Cir. 19938), cert

denmied,.510 U.S, 109 (1994); L/nited States v. Lane, 866 F.2d 108, 105

107 (4t9 Cir. L989): United States vo Williams, 264 F.8d 561, 571-572

(Ath Cir. 2001): Lancaster v. Adams, 324 F 3d 428, 482-135 (6th Cir.).

cert. dented, 540 US. 1004 (2003); (neted States v. MeMath, 550 F.3d

657, 664-665 (7th Cir. 2009): United States v. Gillam, 167 F.8d 1273.

IZ7S8 (Mth Cir), cert. denied, 528 U.S. 00 (1999): Linited States \s

Johnson, AV 2d 1102, 1108-1109 GLOth Cir, 1991). But see Pet. App

You: United States v. Stewart, 65 F.3d 918, 921-026 1th Cir. 1995)

(holding that an appellate court may not uphold a trial court's decision

to disallow strikes without reviewing the trial court's prima facie case

determination), cert. dented, 516 TLS. TE84 01968)

19

a trial by a fair and impartial jury. Petitioners’ conten-

tions are without merit.

a. The court of appeals correctly upheld the district

court’s conclusion that petitioners had failed to show

that “pervasive community prejudice against the Cuban

government and its agents and the pretrial publicity

that existed in Miami” warranted a presumption that

any jury empaneled would not be fair and impartial.

Pet. App. 132a. As the court explained, “Miami-Dade

County is a widely diverse, multi-racial community of.

more than two million people. Nothing in the trial re-

cord suggests that twelve fair and impartial jurors could

not be assembled by the trial judge to try the defen-

dants impartially and fairly.” /d. at 158a-159a.

As the court of appeals explained, a defendant can

“establish that prejudice against him prevented him

from receiving a fair trial and necessitated a change of

venue” either by showing that the jury was actually

prejudiced against him, or by showing that “widespread,

pervasive prejudice against him” in the community war-

ranted a presumption that any jury empaneled would

not be fair and impartial. Pet. App. 13la-132a (citing

Irvin v. Dowd, 366 U.S. 717, 727 (1961), and Rideau v.

Loutsiana, 873 U.S. 728, 726-727 (1963)).

The court of appeals correctly concluded that the

media materials submitted by petitioners “fleJll far

short of the volume, saturation, and invidiousness of

news coverage” necessary to establish a presumption of

jury prejudice. Pet. App. 136a-137a; see, e.g., Murphy v.

Florida, 421 U.S. 794, 802 (1975). The court of appeals

also correctly upheld the district court's finding that

“defendants’ evidence did not demonstrate that commu-

nity prejudice warranted a change of venue.” Pet. App.

39a n.219.

20

Finally, as the court of appeals noted, the district

court’s “careful and thorough voir dire rebutted any

presumption of jury prejudice.” Pet. App. 143a; see

Mu’Min v. Virginia, 500 U.S. 415, 430 (1991); see also

Murphy, 421 U.S. at 800. Notably, even though the dis-

trict court invited petitioners to renew their motions for

change of venue if the seven-day voir dire process

showed that an impartial jury could not be empaneled,

petitioners did not object to empaneling the jury. They

instead expressed satisfaction with both the voir dire

process and, later, with the jury ultimately empaneled.

Pet. App. 148a.

b. Petitioners contend that the court of appeals

erred by holding that claims of “uniquely pervasive and

severe” community prejudice are “irrelevant as a matter

of law.” Pet. 15. The court of appeals, however, consid-

ered petitioners’ claims of community prejudice, and it

held that the district court, which “is necessarily the

first and best judge of community sentiment,” acted rea-

sonably in rejecting those claims, while offering petition-

ers the opportunity to renew their motions following voir

dire. Pet. App. 139a (internal quotation marks and cita

tion omitted); see id. at 189a n.219 (noting that the dis-

trict court made a “specific finding as to prejudice in the

community: that the defendants’ evidence did not dem-

onstrate that community prejudice warranted a change

of venue”).

In addressing petitioners’ pretrial publicity claims,

the court of appeals also correctly discounted news arti-

cles about events not directly connected with the matter

on trial, such as “community tensions and protests re-

lated to general anti-Castro sentiment, the conditions in

Cuba, and

’

the Elian Gonzales matter.” Pet. App.

136u. This Court has made clear that “unfairness of con

stitutional magnitude” will not be presumed “in the ab-

sence of a ‘trial atmosphere . . . utterly corrupted by

press coverage.” Dobbert v. Florida, 432 U.S. 282, 303

(1977) (quoting Murphy, 421 U.S. at 798). The court of

appeals’ conclusion that pretrial publicity “regarding

peripheral matters” does not give rise to a presumption

of prejudice against a defendant, Pet. App. 134a, is con-

sistent with this Court’s cases, none of which found that

“prejudice can be presumed from pretrial publicity

about issues other than the guilt or innocence of the de-

fendant,” zbid.; 7d. at 146a-149a; see, e.g., Rideau, 373

U.S. at 726 (defendant’s confession was broadcast on

local television); Sheppard v. Maxwell, 384 U.S. 333,

305-397 (1966) (media reported numerous prejudicial ru-

mors and accusations regarding defendant charged with

murdering his wife).

Petitioners (Pet. 17-18) rely on the language of a

handful of appellate decisions to support their claim that

other courts have rejected a limitation of the venue in-

quiry to evidence “directly relate|d| to the defendant’s

guilt,” Pet. 17 (internal quotation marks and citation

omitted), but those decisions do not support their argu-

ment. See Whitehead v. Cowan, 263 F.3d 708, 719-723

(7th Cir. 2001) (rejecting claims of jury prejudice based

on newspaper articles directly related to defendant and

his criminal record, as well as a newspaper's publication

of the names and addresses of the jurors in the case),

cert. denied, 534 U.S. 1116 (2002); United States v. De

Peri, 778 F.2d 963, 971-973 (3d Cir. 1985) (rejecting a

claim of jury prejudice based on pretrial publicity be-

cause, among other things, the “articles only indirectly

concerned |the defendants],” and instead “detailfed] a

structurally similar but apparently separate extortion

scheme”), cert. denied, 475 U.S. 1110, and 476 U.S. 1159

22

(1986); United States v. Bangert, 645 F.2d 1297, 1306

(8th Cir.) (concluding that the district court did not

abuse its discretion in refusing to grant a mistrial or

initiate a continuance based on “prejudicial publicity of

world events,” citing the district court’s determinations

“that sufficient precautions had been taken to ensure a

fair trial to defendants” and that “the publicity in ques-

tion did not constitute prejudicial publicity in this case”),

cert. denied, 454 U.S. 860 (1981).

Petitioners also err in asserting (Pet. 18) that the

decision below conflicts with Daniels v. Woodford, 428

F.3d 1181 (9th Cir. 2005), cert. denied, 550 U.S. 968

(2007). In Daniels, the court held that “‘the venue [wa]s

saturated with prejudicial and inflammatory media pub-

licity about the crime’ sufficient for a presumption of

prejudice,” citing, among other things, news reports

identifying the defendant as having killed two police

officers and letters to the editor calling for his execu-

tion. /d. at 1211 (citation omitted); 7d. at 1187, 1211-

1212. The Daniels court did not rely on press coverage

analogous to the articles about Elian Gonzalez and other

Cuba-related issues that the court of appeals in this ease

appropriately discounted. See Pet. App. 136a."° Nor did

the court of appeals in this case hold, as petitioners sug-

gest, that “pre-trial publicity about the shootdown and

" Despite petitioners’ suggestion to the contrary (Pet. 28-29), the

government's motion to change venue in Ramirez v. Ashcroft, No.

O1-ev-4835 (S.D. Fla. June 25, 2002), did not take a contrary position on

the significance of the coverage of the Elian Gonzalez matter. In that

case, the plaintiff, an [INS ayent. alleged that the INS discriminated

against him as a result of the IHehan Gonzalez controversy, and he

stirred up “extensive publicity in the local media focusing directly on

the facts he alleged in the lawsuit,” including causing a videotaped dep-

osition to be broadcast on television. Pet. App. 130a. L52a-1ld3a (citation

omitted).

23

the jurors’ regular exposure to a monument to BTTR

were categorically irrelevant.” Pet. 18. The court of ap-

peals, like the district court, considered publicity about

the shootdown, but concluded that it was “too faetual

and too old to be inflammatory or prejudicial.” Pet.

App. 136a; see zd. at 330a-331a.

ec. Petitioners next contend (Pet. 18-21) that the

court of appeals erred by employing a too-onerous stan-

dard in determining whether they had carried their bur-

den and that the circuits are in conflict on that issue.

Their claim does not warrant further review.

The court of appeals in this case stated that a district

court must grant a motion for change of venue based on

presumed prejudice if the defendant shows that there

is a “reasonable certainty” that “widespread, pervasive

prejudice against him” in the community “will prevent

him from obtaining a fair trial by an impartial jury.”

Pet. App. 132a; accord id. at 149a. Petitioners are cor-

rect (Pet. 19-20) that different courts have employed dif-

ferent formulations. Compare, e.g., United States v.

Rodriguez-Cardona, 924 F.2d 1148, 1158 (ist Cir.)

(“Prejudice may properly be presumed when,” znxter

alia, “inflammatory publicity about a case has so satu-

rated a community that it is almost impossible to draw

an impartial jury from that community.”), cert. denied,

502 U.S. 809 (1991), with United States v. Livoti, 196

F.3d 322, 326 (2d Cir. 1999) (defendant failed to show a

“reasonable likelihood that pretrial publicity would pre-

vent a fair trial”) Gnternal quotation marks and citation

omitted), cert. denied, 529 U.S. 1108 (2000). There is no

24

reason to believe, however, that those different formula-

tions have resulted in different outcomes.’

In any event, this case would not be a suitable vehicle

for resolving any differences among the various formula-

tions of the applicable standard. Regardless of the stan-

dard it applied to petitioners’ initial efforts to establish

presumed jury prejudice, the court of appeals correctly

held that any presumption of prejudice was rebutted by

the district court’s careful voir dire and trial manage-

7 Notably, petitioners cite few cases in which courts have in fact

found a “reasonable likelihood” that the defendant would not receive a

fair trial. In each of those cases, communities were saturated with

media stories about the particular crime. See State v. James, 767 P.2d

549, 551, 553-556 (Utah 1989) (change of venue was warranted in a case

involving the disappearance and death of a three-month-old infant in “a

relatively small and homogeneous geographical area,” citing a “wide-

_spread community effort to locate the missing child” that “brought,

people much closer to this alleged crime than ordinarily occurs,” as well

as news reports indicating that “the events had ‘touched the community

at its very core”); Pollard v. District Court, 200 N.W.2d 519, 521 (lowa

1972) (change of venue was warranted in a case involving an audit that

revealed embezzlement from Sioux City accounts, because “[t]he area

was flooded with publicity about the audit, the whole matter received

much public attention, and the audit pointed to [the defendant] as an

alleged offender”); cf. Fisher v. State, 481 So. 2d 208, 217-220, 221-222

(Miss. 1985) (change of venue was warranted where pretrial publicity

created “substantial doubt” that the defendant could get a fair tral in

the venue for the rape and murder of an area student; extensive local

news coverage linking the defendant to the crime and revealing other

“damning facts” not admissible at trial had “bombarded” the area, and

“covery one of the prospective jurors” was already familiar with the

ease). There is no reason toe think that those courts would have reached

a different conclusion had they applied a “reasonable certainty” stan-

dard. Although Pollard noted that its standard did not require the de-

fendant to “demonstrate conclusively” that she could not receive a fair

trial, 200 N.W 2d at 521, neither df the court of appeals in this case

require a conclusive showing

29

ment, which ensured that petitioners received a fair trial

by an impartial jury. See Pet. App. 141a-150a.

d. Petitioners further contend (Pet. 21-23) that the

court of appeals erroneously reviewed their presumed

prejudice claim for abuse of discretion, instead of apply-

ing de novo review. Petitioner notes (Pet. 21-22) that,

while the majority of circuits review decisions whether

to transfer venue based on claims of presumed prejudice

for abuse of discretion, other courts have reviewed such

decisions de novo. See, e.g., United States v. Skilling,

554 F.3d 529, 557-558 (5th Cir. 2009), petition for cert.

pending, No. 08-1394 (filed May 11, 2009); United States

v. McVeigh, 153 F.8d 1166, 1179 (10th Cir. 1998), cert.

denied, 526 U.S. 1007 (1999).

The court of appeals correctly reviewed the district

court’s ruling on petitioners’ change of venue motions

for abuse of discretion. This Court has explained that

“primary reliance on the judgment of the trial court

makes good sense” in reviewing a district court’s con-

duct. of voir dire in the area of pretrial publicity, since

the trial judge “sits in the locale where the publicity is

said to have had its effect and brings to his evaluation of

any such claim his own perception of the depth and ex-

tent of news stories that might influence a juror.”

Mu’Min, 500 U.S. at 427. The same is true of a trial

judge’s disposition of more generalized claims of com-

munity prejudice. As the court below recognized, “(t]he

trial court is necessarily the first and best judge of com-

munity sentiment and the indifference of the prospective

juror.” Pet. App. 139a (internal quotation marks and

citation omitted). Its decision “to deny the defendants’

pretrial change of venue motions without prejudice in

favor of proceeding to voir dire was a well-supported

26

exercise of discretion,” and it merits deference. /d. at

140a.

In any event, even the courts that apply de novo re-

view to presumed prejudice claims have acknowledged

that (1) the government may rebut any such presump-

tion by showing, based on voir dire, that an impartial

jury was in fact empaneled; and (2) a district court’s

determinations of jury impartiality are reviewed defer-

entially. Skilling, 554 F.3d at 557-558, 561; see also

McVeigh, 153 F.8d at 1179, 1183. Those decisions are

consistent with the decision below, which held that voir

dire rebutted any presumption of jury prejudice. See

Pet. App. 148a. Further review of the issue is not war-

ranted.

e. Finally, petitioners err in contending (Pet. 23-25)

that the court of appeals erred in considering evidence

from the voir dire process in rejecting petitioners’ pre-

sumed prejudice claim. Although it is certainly true that

voir dire might reveal evidence of actual juror bias, it is

well-established that voir dire may also reveal evidence

relevant to claims of presumed community prejudice.

See, e.g., United States v. Yousef, 327 F.3d 456, 155 (2d

Cir. 2003) (‘|T]he key to determining the appropriate-

ness of a change of venue is a searching voir dire of the

members of the jury pool.”); McVeigh, 153 F.3d at 1183

(rejecting a claim of presumed prejudice in part because

of “the fact that a large number of the venirepersons

summoned were not even aware’ of some allegedly pre}j-

udicial news reports). See generally 2 Charles Alan

Wright, Mederal Practice and Procedure § 342, at 390-

392 (3d ed. 2000) (‘The courts consider that the exis-

tence of prejudice can better be determined by voir dire

examination of potential jurors than by affidavits and

speculation about the effect of publicity. If the voir dire

27

produces a satisfactory panel, this is regarded as dem-

onstrating that a transfer is unnecessary.”) (footnote

omitted). Indeed, in this case, petitioners themselves

“admitted that the district court’s voir dire more thor-

oughly evaluated the sentiment of the Miami-Dade com-

munity.” Pet. App. 140a.”

The conduct and outeome of the distriet court’s

seven-day, two-phase voir dire process in this case re-

futes any claim that pervasive community prejudice de-

prived petitioners of their right to a fair and impartial

jury. Pet. App. 141a, 149a-150a.”

3. Petitioner Hernandez challenges (Pet. 29-35) the

sufficiency of the evidence supporting his murder con-

Although petitioners (Pet. 24-25) cite cases in which courts have

stated that a district court that has found sufficient support for a pre-

sumption of prejudice need not undertake voir dire, they cite no case in

which a court has held that voir dire evidence is categorically irrelevant

to the inquiry.

Nor does this Court’s decision in Rideau support petitioners’ conten-

tion. Although the Court in that case presumed prejudice “without

pausing to examine a particularized transcript of the voir dire,”373 U.S.

at 727, the petitioner's confession had been aired three times on tele-

Vision, on one occasion drawing as many as 53,000 viewers, in a com

munity of 150,000 people. /d. at 724-727. In contrast, petitioners in this

case had argued that the residents of a major metropolitan area should

be presumed to be prejudiced based on pretrial publicity concerning

matters other than petitioners’ crimes, and based on a survey and an

expert affidavit the distmet court found to be flawed and unpersuasive.

The court below did not err in considering the results of the voir dire in

evaluating petitioners’ presumed prejudice claims

Petitioners assert (Pet. 28) that they were prejudiced by “serious

misconduct by the prosecution,” namely, statements tn its closing argu

ment. The court of appeals rejected that contention, concluding that

the alleged misconduct Was “minor” and tollowed by curative jury in-

struetions. Pet. App. b55a Gnternal quotation marks and citation omit

ted). Petitioners do not seek review of the court's Conelusion

spiracy conviction. The court of appeals’ factbound con-

clusion that sufficient evidence supported Hernandez’s

conviction does not warrant further review.

Even assuming that the government was required to

prove that Hernandez and his co-conspirators specifi-

cally intended for the shootdown to occur in interna-

tional airspace, there was sufficient evidence from which

a rational jury could conclude that they did so intend.

Pet. App. 54a-55a; see also id. at 350a (noting that the

jury was instructed to determine “whether the shoot-

down was planned to occur in international airspace”).

That evidence included the fact that the shootdown did

occur in international airspace and that Hernandez and

his superiors later congratulated one another on the suc-

cessful operation. /d. at 55a; see also id. at 350a-351a.

Petitioners argue (Pet. 31-32) that the fact that

Hernandez and his co-conspirators characterized their

operations as a response to BT'TR’s “provocation” shows

that they intended to only shoot down the planes if they

provoked Cuba by invading its sovereign airspace. The

evidence showed, however, that the operation was a di-

rect response to the leaflet drops BTTR executed a

month before the shootdown. Pet. App. 4a, 48a. Viewed

in the light most favorable to the government, the evi-

dence showed that none of the BTTR planes entered

Cuban airspace during those drops. /d. at 75a-76a. The

jury could therefore infer that, because BTTR’s most

recent “provocations” were committed in international

airspace, the slanned confrontation Was also to occur in

international airspace. See Jackson v. Virginia, 443

US. 307, 326 (1979) (evidence is sufficient to support a

conviction if any ravional trier of faet, viewing the evi-

dence in ight most favorable to the government, could

find guilt beyond a reasonable doubt).

4. Finally, petitioner Hernandez errs (Pet. 35-36) in

contending that the court of appeals was required to

remand his case for resentencing on his conviction for

conspiracy to gather and transmit national-defense in-

formation. As the court of appeals explained (Pet. App.

70a-71a), no remand was required because any sentenc-

ing error was harmless, given that. Hernandez had al-

ready been properly sentenced to life imprisonment on

the murder count. See Fed. R. Crim. P. 52(a); see also

Pet. App. 70a-71a (citing cases).

It is true, as petitioners note (Pet. 35 & n.13) that the

Ninth Circuit declined to apply the so-called concurrent

sentence doctrine in a similar context in United States

v. Kincaid, 898 F.2d 110 (1990), explaining that it was

“unwilling to place upon [the defendant] the risk that

* * prejudice” from the erroneous concurrent sen-

tence “may manifest itself in the future.” /d. at 112.

Whatever tension there may be between AKincaid’s re-

jection of the concurrent sentence doctrine and the court

of appeals’ harmlessness analysis in this case, however,

there is no developed conflict that would warrant this

Court’s review.

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

ELENA RAGAN

, Y ’

SOL? rtor (51 hee ral

LANNY A. BREUER

Assistant Attorney General

JOSEPH F.) PALMER

Afforme i/

MAY 2009