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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 2009

## Text

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
CN OO aks canoe 5s kee ea ee ee ]
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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386017_0136%3A03. Public record. Not legal advice.