dissenting in which KRAVITCH, Circuit Judge, joins:
I respectfully dissent. I remain convinced that this ease is one of those rare, exceptional cases that warrants a change of venue because of pervasive community prejudice making it impossible to empanel an unbiased jury. The defendants, as admitted agents of the Cuban government of Fidel Castro, were unable to obtain a fair and impartial trial in a community of pervasive prejudice against agents of Castro’s Cuban government, whose prejudice was fueled by publicity regarding the trial and other local events. Accordingly, I would reverse their convictions and remand for a new trial.
I am convinced that, based on circuit precedent, our consideration of the denial of a motion for change of venue requires an independent review of the totality of the circumstances surrounding the trial. Therefore, in Part I, I consider in the “Background” the facts (omitted from the en banc opinion) that I conclude are essential to an understanding of the intense community pressures in this case. My review of the evidence at trial is more extensive than is typical for consideration of an appeal involving the denial of a motion for change of venue because I conclude that the trial evidence itself created safety concerns for the jury which mandate venue considerations. In Part II, I discuss the law and the application of the law to the facts in this case. In Part III, I present my conclusion. Moreover, in this media-driven environment in which we live, characterized by the ubiquitous electronic communications devices possessed by even children (e.g., the cell phone, the I-pod, the laptop, etc.), this case presents a timely opportunity for the Supreme Court to clarify the right of an accused to an impartial jury in the high-tech age. Given the multiple resources for almost instantaneous communication and the plethora of media extant today, the considerations embraced by the Court in earlier times fail to address these developments.
I. BACKGROUND
Included in with the charges forming the basis for the defendants-appellants’ arrests and subsequent indictments were allegations that they, as agents of the Republic of Cuba, had infiltrated the United States military and reported on United States military activities, and that one of them, Gerardo Hernandez, had conspired to commit murder by supporting and implementing a plan in 1996 to shoot down United States civilian aircraft outside of Cuban and United States airspace.
The 1996 shootdown involved planes piloted by and carrying members of the Brothers to the Rescue (“BTTR”), a Cuban-exile group headquartered in Miami-Dade County. As a result of the Cuban government’s military shootdown of two United States-registered civilian aircraft, four members of BTTR died.1 Their deaths were condemned as murders by the international community. Statements deploring Cuba’s excessive use of force were issued by the United Nations and other international organizations and legislation was passed in the United States “strongly” condemning the shootdown as an “act of terrorism by the Castro regime.”2 The *1156deceased were heralded as martyrs and their funerals were attended by numerous people within the community. Memorials were subsequently erected in their honor, and streets within the Miami-Dade County community were renamed for them.
The defendants’ arrests, therefore, generated intense interest within the community. Shortly after the arrests, the district court entered a gag order governing the parties and their attorneys.3 That order, however, did not prevent leakage. In the early fall of 1999, the district court reminded the parties and their attorneys that they were to refrain from releasing information or opinions that could interfere with a fair trial or prejudice the administration of justice.4 The district judge stated that she was “increasingly concerned” that various persons connected with the case were not following her order based on the “parade of articles appearing in the media about this case.”5 In particular, she commented that an article about defendant Medina’s pending motion to incur expenses to poll the community “was the lead story in the local section on Saturday in the Miami Herald.”6 She warned all counsel and agents associated with the case that appropriate action would be taken and that the U.S. Attorney’s Office would be held responsible.7 She directed that “[tjhis case ... not ... get advertised anywhere in the media for any reason whatsoever.”8 The motion to incur expenses was filed in August 1999 and was subsequently granted by the district court.9
A. Motion for Change of Venue
As the en bane opinion notes, Campa, Gonzalez, Guerrero, and Medina moved for a change of venue in January 2000, arguing that they were unable to obtain an impartial trial in Miami as a result of pervasive prejudice against anyone associated with Castro’s Cuban government.10 The motions for change of venue were based on both the pretrial publicity and on the “virulent anti-Castro sentiment” which had existed in Miami as “a dominant value ... for four decades.”11 The motions were supported by news articles and Moran’s poll to substantiate “an atmosphere of great hostility towards any person associated with the Castro regime” and “the extent and fervor of the local sentiment *1157against the Castro government and its suspected allies.”12
The evidence submitted in support of the motions for change of venue was massive. At that time, there were more than 700,000 Cuban-Americans living in Miami.13 Of those Cuban-Americans, 500,000 remembered leaving their homeland, 10,-000 had a relative murdered in Cuba, 50,-000 had a relative tortured in Cuba, and thousands were former political prisoners.14 These Cuban-Americans considered Cuban-related matters “ ‘hot-button issues.’ ”15
Professor . Moran’s survey results showed that 69 percent of all respondents and 74 percent of Hispanic respondents were prejudiced against persons charged with engaging in the activities named in the indictment.16 A significant number, 57 percent of the Hispanic respondents and 39.6 percent of all respondents, indicated that, “[b]ecause of [their] feelings and opinions about Castro’s government,” they “would find it difficult to be a fair and impartial juror in a trial of alleged Cuban spies.”17 Over one-third of the respondents, 35.6 percent, said that they would be worried about criticism by the community if they served on a jury that reached a not-guilty verdict in a Cuban spy case.18 The respondents who indicated an inability to be fair and impartial jurors were also asked whether there were any circumstances that would change their opinion.19 Of those respondents, 91.4 percent of the Hispanics and 84.1 percent of the others answered “no.”20
The articles submitted by the defendants included articles that related directly to the charged crimes and to the defendants and their codefendants.21 Other ar-*1158tides documented community tensions and protests related to general anti-Castro sentiment, the conditions in Cuba, and other ongoing legal cases in which Cuban-American issues were involved, including the Elian Gonzalez matter.22 One of the *1159articles, which addressed a bomb threat against the Attorney General of the United States following a collapse of talks in the Elian Gonzalez case, recited a history of anti-Castro exile group violence in the Miami-Dade community:
Scores of bomb threats and ■ actual bombings have been attributed to anti-Castro exile groups dating back to the 1974 bombings of a Spanish-language publication, Replica. Two years later, radio journalist Emilio Millan’s legs were blown off in a car bomb after he spoke out against exile violence.
In the early 1980s, the Mexican and Venezuelan consular offices were bombed in retaliation for their government’s establishing relations with Cuba.
Since then, numerous ■ small businesses — those promoting commerce, travel, or humanitarian aid to Cuba— *1160have been targeted by bombers.23
The government responded to the change of venue motions that the Miami-Dade Hispanic population was a “heterogeneous,” “highly diverse, even contentious” “group” immune from the influences which would preclude a fair trial.24 Following oral arguments on 26 June 2000, the district court denied the motion without prejudice, finding that the defendants had failed to demonstrate that a change of venue was necessary to provide them with a fair trial by an impartial jury.25 The district court “construed” the motions “as directed primarily toward the issue of ‘pervasive community prejudice’ ” and focused its analysis on “the third inquiry set forth in” Ross v. Hopper, 716 F.2d 1528, 1541 (11th Cir.1983).26 This third inquiry was defined as “sufficient evidence that the pretrial publicity has been ‘so inflammatory and prejudicial and so pervasive or saturating the community as to render virtually impossible a fair trial by an impartial jury, thus raising a presumption of prejudice.’ ”27 The court “decline[d] to afford the survey and Professor Moran’s conclusions the weight attributed by Defendants” finding, inter alia, that the “size of the statistical sample ... [wa]s too small to be representative of the population of potential jurors in Miami-Dade County.”28
In September 2000, Campa moved for reconsideration of the denial of the motion for change of venue. In support of the reconsideration motion, he submitted news articles containing information that he provided the court both during an ex parte sidebar within the change of venue motion hearing and in his motion for leave to file his motions for foreign witness depositions ex parte.29 He explained in the reconsideration motion that the information had been previously provided to the court ex parte because it disclosed the defendants’ theory of defense and that he sought the foreign witnesses to support that theory.30 He argued that the news articles discussing “the defendants’ tacit admission that they were keeping an eye on several extremist anti-Castro groups on behalf of the Cuban government, and that Cuban citizens and officials [we]re prepared to testify on behalf of the defendants” had aggravated the prejudice in the Miami community.31 He noted that the articles characterized the defendants as Cuban agents who would call Cuban officials and *1161citizens to testify on their behalf.32 The district court denied reconsideration and invited the defendants to renew their motion after voir dire.33
B. Voir Dire
The trial began with jury selection on 27 November 2000.34 In phase one, 168 jurors were screened for problems such as language and hardship through a written questionnaire and oral voir dire questions.35 In phase two, the 82 remaining prospective jurors were individually questioned regarding media exposure, knowledge and opinions of the case, the Castro government, the United States policy toward Cuba, the Elian Gonzalez case, the Cuban exile community and its reaction to the case, including a possible acquittal.36
The district court’s concern for the media attention became an issue on the first day of voir dire. After learning that the jurors were exposed to a press conference held by the victims’ families on the courthouse steps during the lunch break and that some of the jurors were approached by members of the press, the district court addressed isolating the jurors.37 Acknowledging that there was a “tremendous amount of media attention” in the case, the district judge instituted a number of protections for the jury including instructing the government to speak to the victims’ families about their conduct, extending the gag order to cover the witnesses and jurors, instructing the marshals to accompany the jurors as they left the building, and sealing the voir dire questions.38
Some venire members were clearly biased against Castro and the Cuban government and were excused for cause.39
*1162Other venire members indicated negative beliefs regarding Castro or the Cuban government but believed that they could set those beliefs aside to serve on the jury.40 Three of these jurors ended up *1163seated on the jury, and one served as the foreperson.41 The district court denied the defendants’ request to excuse one potential juror, who admitted that she knew the daughter of one of the downed pilots, had visited the pilot’s home, and had attended his funeral.42
*1164Finally, other venire members espoused indifference toward Castro or the Cuban government.43
Some of the potential jurors who had personal contact with the victims, their family members, BTTR, government witnesses, or the parties were not questioned during Phase II or were excused for cause.44 Following voir dire, Medina’s attorney complimented the district court on the conduct of voir dire but indicated his concerns that there were three women seated on the jury who exemplified Professor Moran’s opinion that certain community members who were subjected to community pressures were unable to admit their underlying prejudices.45
From the beginning of voir dire until the completion of the trial, the prospective and actual jurors were admonished not to discuss the case with anyone, and to have no contact with media accounts or anything else related to the case.46 The jurors were also instructed about the presumption of innocence.47 The district court limited the sketching of witnesses for their protection.48 It permitted, however, the media “access to all the evidence admitted into the trial record.”49
C. The Evidence at Trial
As the en banc opinion states, the defendants were members of a Cuban government intelligence operation that maintained a spy operation in South Florida. Campa, Hernandez, and Medina falsely identified themselves through elaborate “legends,” or biographies, and back-up or *1165“reserve” identities when they dealt with United States border and law enforcement personnel and when they obtained driver licenses, passports, and other identification.50 Some of their assigned duties in-eluded infiltrating, monitoring, and disrupting the work of certain militant Cuban exiles in South Florida, reporting on anti-Castro organizations in Miami-Dade County, and infiltrating United States military and government agencies and reporting on operations at certain United States military installations.51
The Cuban exile groups of concern to the Cuban government included Alpha 66,52 Brigade 2506, BTTR, Independent *1166and Democratic Cuba (“CID”), Commandos F4,53 Commandos L, CANF,54 the Cu*1167ban American Military Council (“CAM-CO”), the Ex Club, Partido de Unidad Nacional Democrática (“PUND”) or the National Democratic Unity Party (“NDUP”), and United Command for Liberation (“CLU”).55 Alpha-66 ran a paramilitary camp training participants for an invasion of Cuba, had been involved in terrorist attacks on Cuban hotels in 1992, 1994, and 1995, had attempted to smuggle hand grenades into Cuba in March 1993, and had issued threats against Cuban tourists and installations in November 1993. Alpha-66 members were intercepted on their way to assassinate Castro in 1997. Brigade 2506 ran a youth paramilitary camp.56 BTTR flew into Cuban air space from 1994 to 1996 to drop messages and leaflets promoting the overthrow of Castro’s government. CID was suspected of involvement with an assassination attempt against Castro. Commandos F4 was involved in an assassination attempt against Castro. Commandos L claimed responsibility for a terrorist attack in 1992 at a hotel in Havana. CANF planned to bomb a nightclub in Cuba. • The Ex Club planned to bomb tourist hotels and a memorial. PUND planned to ship weapons for- an assassination attempt on Castro. Following each attack, Cuba had advised the United States of its investigations and had asked the United States’ authorities to take action against the groups operating from inside the United States.57
The BTTR’s flights over Cuba were of particular concern to the Cuban government, and the Cuban government had communicated that concern and its plan to use. force to interrupt the flights to the Federal Aviation Administration (“FAA”), which shared that information with BTTR.58 BTTR’s flights, however, continued until the shootdown in February *11681996.59 The downing of the two BTTR planes was observed both by occupants of a fishing boat and by the crew and passengers onboard a cruise ship.60 The bodies of the people in the aircraft, three of whom were United States citizens, were never recovered. Both planes were in international airspace, flying away from Cuba, when they were shot down; they had not entered Cuban airspace.61
Lieutenant Colonel Roberto Hernandez Caballero, of the Ministry of Cuba Department of State Security, testified that he investigated a number of terrorist acts in Havana and in other locations at Cuban-owned facilities during 1997.62 He advised Medina of the attacks in April and directed that he search for any connection between the attacks and CAMCO.63 In September, Hernandez notified the Cuban authorities that he had received information that one of the perpetrators of one of the bombings was available to meet for lunch and that he understood that another large building in Cuba was targeted for the next week.64 Hernandez’s contact was instructed to elaborate on the information that he had obtained.65 As a result of the investigations, Caballero said that the Cuban Department of State Security arrested some individuals, but that they believed some of the individuals responsible for financing, planning, and organizing the explosions lived in the United States and had not been arrested.66 He explained that he provided FBI agents with documentation and investigation materials regarding the terrorist acts between 1990 and 1998, and received the FBI’s findings in March 1999. During the trial, the government described the Cuban intelligence operations as “an *1169intelligence pyramid” headed by Fidel Castro.67 It suggested that the Cuban government applied the death penalty for throwing things out of airplane windows,68 and was “repressive”69 and a “dictatorship.”70
D. Renetved Motions for Change of Venue
During the trial, the motions for change of venue were renewed through motions for a mistrial based on community events and trial publicity and a government witness’s insinuation that a defense attorney-was a spy or a communist.71 In February 2001, Campa moved for a mistrial and renewed his motion for a change of venue based on the commemorative flights honoring the fifth anniversary of the shoot-down and the related television interviews and newspaper articles during the weekend of 24 February 2001.72 He argued that the newspapers included “an editorial by the Miami Herald that flatly condemns the Cuban government for this terrorist act” and articles including quotations from CANF members discussing “at length” the facts of the trial.73 He maintained that a jury instruction would not cure the taint of these events and publicity.74 The court reserved ruling pending supplementation of the record and then, upon the defendants’ request, questioned the jury as to their exposure to the news articles.75 When none of the jurors responded in any way, the case proceeded.76
Two weeks later, Campa, Gonzalez, Hernandez, and Medina filed a joint motion for a mistrial and change of venue arguing that the 24 February weekend events were so prejudicial that it could not be cured by voir dire or instructions77
Defense witness Basulto responded to questioning by asking Hernandez’s defense *1170counsel whether he was “doing the work” of the Cuban intelligence community.78 At the request of Hernandez’s attorney, the trial judge struck the comment and the jury was instructed to disregard the comment.79 Following a recess, Campa’s counsel argued that Basulto’s insinuation was
precisely the kind[] of problem[] that we were afraid of when we filed our motions for a change of venue, and ... in the aftermath of the events of February 24, 2001, we renewed our motion for ... a change of venue based on the pretrial publicity, the publicity that has been generated during the course of the trial and our concern with our ability to obtain a fair trial in this community given that background.
This red baiting is absolutely intolerable, to accuse [Hernandez’s attorney] because he is doing his job, of being a communist. It is unfortunate, it is the type of red baiting we have seen in this community before and we are concerned how it affects the jury. Here we are asking the jury to make a decision based on the evidence and only based on testimony and we are left and they are left with wondering what will they be accused. These jurors have to be concerned unless they convict these men of every count lodged against them, people like Mr. Basulto who hold positions of authority in this community, who have access to the media, are going to call them of being Castro sympathizers, accuse them of being Castro sympathizers, accuse them of being spies and this is not the kind of burden this jury can shoulder when it is asked to try and decide those issues based on the evidence at trial.
When someone can on the stand gratuitously and maliciously accuse [Hernandez’s attorney] of being a spy[, it] sends a message to these ladies and gentlemen if they don’t do what is correct, they will be accused of being communists too. These people have to go back to their homes, their jobs, their community and you can’t function in this town if you have been labeled a communist, specially by someone of Mr. Basul-to’s stature.80
He asked that the court consider this event and the other events in its consideration of the pending motion for change of venue.81
In May 2001, the district court denied the pending motions for change of venue on the basis of its earlier orders denying a change of venue and upon its finding that the 24 February events and the publicity surrounding it did not necessitate a change of venue because of its instructions to the jury.82
*1171During closing arguments, the government made a number of comments to which the defendants objected. It stated that “the Cuban government” had a “huge” stake in the outcome of the case and that the jurors would be abandoning their community unless they convicted the “Cuban sp[ies] sent to ... destroy the United States.”83 It maintained that the Cuban government sponsored “book bombs,” “telephone threats of car bombs,” and “sabotage,” and “killed four innocent people.”84 It suggested that the Cuban government used “goon squads” to torture its critics.85 It asserted that the Cuban government had their agents falsify their identities by using the identification of “dead babies” and “stealing the memories of families.”86 It contended that the defense argument that the agents were in the United States to keep an eye on the Cuban exile groups was false because they were on United States military bases, spying on United States military, the FBI, and Congress.87 The government implied that the government of Cuba was not cooperating with the FBI.88 It commented that Cuba “was not alone” in shooting down civilian aircraft as they “are friends with our enemies,” including “the Chinese and the Russians,” and compared the BTTR shootdown to the 1986 Libyan shootdown of a civilian aircraft.89 It maintained that the government of Cuba did not care about the occupants of the planes, and that it shot down the planes even though they could have forced Basulto’s plane to land.90 It argued that Cuba was a “repressive regime [that] doesn’t believe in any [human] rights.”91 It summarized that the defendants had joined an “intelligence bureau ... that sees the United States of America as its prime and main enemy” and that the jury was “not operating under the rule of Cuba, thank God.”92 The defendants’ objections were sustained, and the jury was instructed to consider only the evidence admitted during the trial and to remember that the lawyers’ comments were not evidence.93
E. Jury Conduct and Concerns During the Trial
Five months into the trial, when one seated juror had a two-day conflict, the court discussed the possibility of removing that juror and seating one of the alternates.94 Hernandez’s attorney requested a recess, arguing that the parties and the court had worked very hard to select “a jury we are very happy with” and maintained that it would be unreasonable to refuse to accommodate the juror after her length of service and her request to complete the trial.95 The district court granted the recess.96
In early February 2001, a small protest related to the trial was held outside of the courthouse, but the jury was protected *1172from contact with the protestors and from exposure to the demonstration.97 On 13 March 2001, the court noted that the day before, cameras were focused on the jurors as they left the building.98 Despite the court’s arrangements to prevent exposure to the media, jurors were again filmed entering and leaving the courthouse during the deliberations and that footage was televised.99 Some of the jurors indicated that they felt pressured; therefore, the district court again modified the jurors’ entry and their exit from the courthouse and transportation.100 However, the Me-trorail Center, where the jurors using public transportation were taken, is the site of a prominently displayed monument to the shootdown victims.
As the en banc opinion states, the jurors were again filmed entering and leaving the courthouse “all the way to their cars” during the deliberations.101 The district judge arranged for their entrance into the courthouse by private entrance and guarded transportation to their vehicles or to mass transit. The electronic eyes of the community were focused upon them and the jury could not help but understand that focus.
F. Post-Trial Motions for New Trial
Following the trial, in late July and early August 2001, Campa, Gonzalez, Guerrero, and Medina moved for a new trial and renewed their motions for a change of venue, arguing that their fears of presumed prejudice remained.102 The district court denied the motions, concluding that “any potential for prejudice was cured” “through the Court’s methodical, active pursuit of a fair trial from voir dire ... to ... the return of verdict.”103
In November 2002, Guerrero renewed his motion for a new trial based on newly discovered evidence and in the interests of justice; the motion was adopted by Cam-pa, Gonzalez, Hernandez, and Medina.104 Guerrero argued that a new trial was warranted because of “misrepresentations of fact and law made by the United States Attorney in opposing the ... motion for change of venue” and that the government’s position regarding change of venue was contradicted by its position in a motion for change of venue which the government filed in Ramirez v. Ashcroft, No. 01-4835-Civ-Huck (S.D.Fla.) on 25 June 2002. In the Ramirez motion, the government argued that:
the Elian Gonzalez matter was an incident which highly aroused the passions of the community and resulted in numerous demonstrations
5. While the Elian Gonzalez affair has received national attention[,] the exposure in Miami-Dade County has been continuous and pervasive. Indeed, even now, more than a year after the return of Elian to his father [in April 2000], *1173there continues to be extensive publicity ... which will arouse and inflame the passions of the Miami-Dade community.
8. Historically, media articles relating to Elian Gonzalez and the handling of his return to his father have persisted from November 1999 to the present [June 2002].105
The government, borrowing arguments advanced by the defendants in this case, declared that
[i]t cannot be disputed that the return of Elian Gonzalez to his father in Cuba created a serious rift in this community, a rift which continues to the present. This rift exists not only between Hispan-ies and non-Hispanics, but also between Cubans a[n]d non-Cubans and within the Cuban community itself. It is beyond dispute that virtually every person in Miami-Dade county [sic] has a strong opinion, one way or another, regarding the INS and the U.S. Attorney General’s Office, and the manner in which the Elian Gonzalez matter was handled. The effect of the media coverage ... serves to foment and revive these feelings on an ongoing basis .... As such the media accounts cannot do anything other than create the general state of mind where the inhabitants of Miami-Dade County are so infected by knowledge of the incident and accompanying prejudice, bias, and preconceived opinions that jurors could not possibly put these matters out of their minds and try the instant case solely on the evidence presented in the courtroom .... Under such circumstances and strongly held emotions, and in light of the media coverage ..., it will be virtually impossible to ensure that the defendants will receive a fair trial if the trial is held in Miami-Dade County.106
The government requested “a change in the location/venue” “outside of Miami Dade County to ensure that the Defendant ... receive a fair and impartial trial on the merits of the case.”107 They noted that, “[w]hile not requested,” the court also had the discretion to transfer the trial to another judicial district.108 The government orally argued that there were no incidents “since 1985 that so polarized the community. That so affected every individual in the community as the Elian Gonzalez affair.”109 When the district court asked whether a transfer of the case to the Fort Lauderdale division courthouse would be sufficient, the government responded that “[t]he demonstrations occurred in Miami. They are predominantly conducted by citizens of Miami Dade county [sic]. As you move the case out of Miami Dade you have less likelihood there are going to be deep-seated feelings and deep-seated prejudices in the case.”110
In support of the interests of justice argument, the defendants included an affidavit by Professor Moran, news articles, reports by Human Rights Watch regarding threats to the freedom of expression within the Miami Cuban exile community, a public opinion survey conducted by legal psychologist Dr. Kendra Brennan, and a *1174study by Florida International University’s Professor of Sociology and Director of the Cuban Research Institute Dr. Lisandro Pérez.111
The district court denied the motion, improperly finding that the government’s position in Ramirez was not newly discovered evidence and that it lacked jurisdiction to consider the interests of justice argument. It did not, therefore, consider any of the exhibits attached to the motion.112
II. DISCUSSION
A. Denial of Motion for Change of Venue
This case presents the opportunity to clarify circuit law to conform with Supreme Court precedent. The district court misfocused its inquiry under Federal Rule of Criminal Procedure 21(a).
Our review of the denial of a motion for change of venue is multi-level. We review the district court’s interpretation of the Federal Rules of Criminal Procedure de novo113 and its application of Rule 21(a) for an abuse of discretion.114 Under an abuse of discretion standard, we will not disturb a decision which was made within the “range of possible conclusions” available to the district court, was not an error of judgment, or was not the misapplication of law.115 A district court abuses its discretion when it (1) fails to afford consideration to relevant factors that were due significant weight, (2) gives significant weight to an improper or irrelevant factor, or (3) commits a clear error of judgment in considering the proper factors.116 “When a criminal defendant alleges that pretrial publicity precluded a trial consistent with the standards of due process, it is the duty of a reviewing court to undertake an independent evaluation of the facts established in support of such an allegation.”117
A district court’s consideration of a federal criminal defendant’s motion for change of venue is guided by Rule 21(a), which directs that the court must transfer the proceedings “if the court is satisfied that so great a prejudice against the defendant exists ... that the defendant cannot obtain a fair and impartial trial.”118 To show presumed rather than actual prejudice, the defendant must show that “outside influences affecting the community’s climate of opinion as to a defendant are inherently suspect” and that “the resulting probability of unfairness requires suitable procedural safeguards, such as a change of venue.”119 In reviewing whether the outside influences operated to deprive the de*1175fendants of a fair trial, we may “widen our breadth of consideration” and may consider the combined effect of various factors.120 Courts, therefore, look at not only the pretrial publicity, but will also consider “inherent community prejudice,”121 the government’s closing argument,122 an “inflamed community atmosphere,”123 the connection between the community prejudice and the trials,124 the interplay between the crime and the economic life of the community,125 and a familiarity with unpopular or ill-reputed groups with whom the defendant was associated.126 In cases alleging pervasive community prejudice, publicity or intense media coverage evidence is not the focus; it is one form of evidence proffered to show the prejudice within the community.127 “[P]ervasive [community] prejudice may not be presumed simply from the context of [news] articles alone” but must be supported by evidence of the influence of that publicity.128
We review the “special facts” of each case alleging prejudicial publicity129 and the totality of the circumstances of cases alleging presumed prejudice.130 The totality of the circumstances includes all of the circumstances and events occurring before and during the trial and their cumulative effect,131 including an extensive voir dire.132 Where the community sentiment is strong, courts should place “emphasis on the feeling in the community rather than the transcript of voir dire,” which may not “reveal the shades of prejudice that may influence a verdict.”133 A court does not undertake a totality of the circumstances’ review by confining itself to community publicity which relates only to the guilt or innocence of the defendant. It may, therefore, eon-*1176sider the effect of the publicity and the timing of the trial during a hotly contested election involving the prosecutor and judge,134 publicity during a Presidential election in' which a similar crime was a subject of debate,135 the extent of the dissemination of the publicity,136 the character of that publicity,137 the proximity in time of the publicity to the trial,138 the familiarity of the jury with the charged crime,139 and the setting and kind of community in which the coverage and trial took place.140 I recognize, that publicity which is unrelated to the defendant or to the matters at trial may not have the evidentiary weight necessary to establish prejudicial pretrial publicity, but also note that publicity that does not “directly relate” to the defendant or the charge offense may be significant to the trial.141
In this case, however, the district court focused solely on the prejudicial publicity prong of the analysis.142 It made no findings regarding the prejudice within the community. In denying a change of venue, the district court ignored its own recognition of the substantial likelihood of prejudice as a result of witnesses’ press events and the unsequestered jury’s exposure,143 the community events and memorials honoring the victims of the shootdown, and the fear created in the minds of the jurors from the evidence of spies and weapons in their neighborhoods, and the history of violence practiced by some members of the Cuban-exile community.
Despite the district court’s numerous efforts to ensure an impartial jury in this case, I am not convinced that empaneling *1177such a jury in this community was possible because of pervasive community prejudice. The entire community is sensitive to and permeated by concerns for the Cuban exile population in Miami. Waves of public passion, as evidenced by the public opinion polls and multitudinous newspaper articles submitted with the motions for change of venue — some of which focused on the defendants in this case and the government for whom they worked but others which focused on relationships between the United States and Cuba — flooded Miami both before and during this trial.144 The trial required consideration of the BTTR shoot-down and the martyrdom of those persons on the flights. During the trial, there were both “commemorative flights” and public ceremonies to mark the anniversary of the shootdown. Moreover, the Elian Gonzalez matter, which was ongoing at the time of the change of venue motion, concerned these relationships between the United States and Cuba and necessarily raised the community’s awareness of the intense and emotional concerns of the Cuban exile community. It is uncontested that the publicity concerning Elian Gonzalez continued during the trial, “arous[ing] and inflamfing]” passions within the Miami-Dade community.145 Despite the district court’s thorough and extensive voir dire and its many efforts aimed at protecting the jurors’ privacy, voir dire highlighted the community’s awareness of this case and also that of Elian Gonzalez. The district court’s gag order failed to restrain the widespread publicity of the shootdown anniversary memorials and demonstrations. The jurors continued to be concerned about their exposure to the press into then- deliberations. With the emotional intensity of the events in the community and the publicity of those events, which relate both directly and indirectly to these defendants, the “jurors may well have been affected even if they were attempting to follow the court’s instructions.”146 In this instance, there was no reasonable means of assuring a fair trial by the use of a continuance or voir dire; thus, a change of venue was mandated. The evidence at trial validated the media’s publicity regarding the “Spies Among Us” by disclosing the clandestine activities of not only the defendants but also of the various Cuban exile groups and their paramilitary camps that continue to operate in the Miami area. The perception that these groups could harm jurors that rendered a verdict unfavorable to their views was palpable. Further, the government witness’s reference to a defense counsel’s allegiance with Castro and the government’s arguments regarding the evils of Cuba and Cuba’s threat to the sanctity of American life only served to add fuel to the inflamed community passions. “[I]t would be blinking reality not to recognize the extreme prejudice inherent” in this unique circumstance.147
B. Denial of New Trial
A district court is authorized to grant a new trial on the basis of newly discovered evidence if a motion for new trial is filed within three years of the verdict.148 The newly discovered evidence must satisfy a five-part test: (1) the evidence was newly discovered after the trial; (2) the movant *1178shows due diligence in discovering the evidence; (3) the evidence is not merely cumulative or impeaching; (4) the evidence is material to issues before the court; and (5) the evidence is of such a nature that a new trial would reasonably produce a new result.149 Newly discovered evidence is not limited to just the question of the defendant’s innocence but can include other issues of law,150 including questions of the fairness of the trial.151
The government’s motion in Ramirez meets these criteria. Although the facts in Ramirez differ from the facts in this case, there are remarkable similarities, including the plaintiffs [or, in this case, the government’s witnesses] exploitation of the media’s coverage of the evidence and the issues at trial. In Ramirez, a civil employment discrimination case, the government was defending the INS against a Hispanic plaintiff. More significant, however, is that the underlying facts for the government’s motion in Ramirez regarding the pervasive community prejudice were based on publicity and events that occurred before and during the trial of this case, “November 1999 to the present [June 2002],”152 and which were much closer in temporal proximity. The newly discovered evidence, therefore, was not the facts on which the government’s Ramirez motion was based but was the government’s position on the events which were occurring during the trial of these defendants and its legal position as to the applicability of Pamplin.153
Attorneys representing the United States are burdened both with an obligation to zealously represent the government and, as a “representative of a government dedicated to fairness and equal justice to all,” an “overriding obligation of fairness” to defendants.154 That obligation includes a “duty to refrain from improper methods calculated to produce a wrongful conviction.”155 A trial may be rendered fundamentally unfair by the prosecution’s use of factually contradictory theories.156 *1179A prosecutor’s reliance on a legal position despite “knowing full well” that it is wrong is “reprehensible” in light of his duty “by virtue of his oath of office.”157 Further, when the government has sought to foreclose the submission of evidence, an evi-dentiary hearing is warranted on a motion for new trial when the newly discovered evidence “might likely lead” to a new trial.158
We do not know when the government changed its position regarding both the application of Pam/plin and the pervasive community prejudice in Miami-Dade County because there was no evidentiary hearing. Because the government’s timing on its change of position might lead to a new trial, an evidentiary hearing was warranted.
Here, a new trial was mandated by the perfect storm created when the surge of pervasive community sentiment, and extensive publicity both before and during the trial, merged with the prosecutor’s improper prosecutorial references and position regarding a change of venue. Moreover, the evidence at trial strongly suggested not only adverse economic consequences for jurors voting for acquittal, but the prospect of violence from an already impassioned and emotional community possessed of firearms and bombs. The district court’s instructions to the jury only generally reminded the jury that statements by the attorneys were not evidence to be considered. The community’s displeasure with the Elian Gonzalez controversy paled in comparison with its revulsion toward the BTTR shootdown. In a civil case which arose out of the same facts as this criminal prosecution, the BTTR shootdown was described as an “outrageous contempt for international law and basic human rights” perpetrated by the Cuban government in murdering “four human beings” who were “Brothers to the Rescue pilots, flying two civilian, unarmed planes on a routine humanitarian mission, searching for rafters in the waters between Cuba and the Florida Keys.”159 In Ramirez, the government not only recognized the effect of the Elian Gonzalez matter on the community but also argued that the publicity continued through 2002. If the effect of those inflamed passions is clear in an employment discrimination action against the agency that contributed to Elian Gonzalez’s removal and that failed to support the Cuban exiles’ position, it is manifest in a criminal case against admitted Cuban spies who were alleged to have contributed to the murder of “humanitarians” working to rescue rafters such as Elian Gonzalez.
III. CONCLUSION
In light of the foregoing discussion, I can only conclude that the defendants’ convictions should be reversed and the case should be remanded for a new trial.
I am aware that, for many of the same reasons discussed above, the reversal of these convictions would be unpopular and even offensive to many citizens. However, I am equally mindful that those same citizens cherish and support the freedoms they enjoy in this country that are unavailable to residents of Cuba. One of our most sacred freedoms is the right to be tried fairly in a noncoercive atmosphere and thus be afforded a fair trial. In the *1180final analysis, we are a nation of laws in which every defendant, no matter how unpopular, must be treated fairly- — -a concept many consider alien to the current Cuban regime. Our Constitution requires no less.
. United States v. Hernandez, 106 F.Supp.2d 1317, 1318 (S.D.Fla.2000).
. Alejandre v. Republic of Cuba, 996 F.Supp. 1239, 1247 (S.D.Fla.1997); 22 U.S.C. § 6046(1).
. R7-978 at 3; R21 at 117.
. R18 at 14.
. Id.
. Id. at 15.
. Id. at 14-15.
. Id. at 17.
. Rl-280 at 2-3; R2-303; R18 at 11-12.
. R2-317 (Guerrero), 321 (Medina), 324 (Gonzalez), 329 (Campa); R3-397 (Campa). Medina requested a change of venue “in light of evidence of pervasive community prejudice against the accused” as documented by Professor Gary Moran’s survey which showed "public sentiment against persons alleged to be agents of Fidel Castro's Communist government in Cuba.” R2-321 at 1-2. Moran concluded that, while there had been “several bursts of newspaper articles ... and other media attention” surrounding the Cuban spies’ arrests, the basis for the motion was the "[vjirulent anti-Castro sentiment” in the community. Id. at 3.
Although Campa, Gonzalez, Guerrero, and Medina had originally argued that the case should be moved to another judicial district, during oral argument on the motions, they agreed that they would be satisfied with a transfer of the case within the district from the Miami division to the Fort Lauderdale division. R5-586 at 2 n.l.
.R2-321 at 3; R2-316 at 2; R2-317 at 2; R2-324 at 1; R2-329 at 1; R2-334 (containing news articles which detail the history of anti-Castro sentiment in Miami); R3-397 at 1; R3-453 at 1-2; R3-455 at 2; R3-461 at 2-3.
. R2-329 at 1, 3; R2-334; R3-397; R3-455.
. R15-1636, Ex. 9.
. Id.
. R15-1636, Exh. 9.
. R2-321, Ex. A at 10.
. Id. at Ex. A at 12; see id. at Ex. E- at 3.
. Id. at Ex. A at 11-12.
. Id. at Ex. A at 13; id. at Ex. E at 3.
. íd. at Ex. A at 13.
. The following articles specifically addressing the conspiracy and the indicted defendants were attached as exhibits in support of the motions for change of venue: George Gedda, Federal officials say 10 arrested, accused of spying for Cuba, Miami Herald, Sept. 14, 1998, R2-334, Ex.; Manny Garcia, Cynthia Corzo, Ivonne Perez, Spies among us: Suspects attempted to blend in, Miami, Miami Herald, Sept. 15, 1998, at Al, R2-334; David Lyons, Carol Rosenberg, Spies among us: U.S. craclcs alleged Cuban ring, arrests 10, Miami Herald, Sept. 15, 1998, at Al, R2-329, Ex. A; R2-334, Ex.; Spies among us, Miami Herald, Sept. 15, 1998, at 14A, R2-329, Ex. F; Fabiola Santiago, Big news saddens, angers exile community, Miami Herald, Sept. 15, 1998, R2-334, Exh.; Juan O. Tamayo, Arrest of spy suspects may be switch in tactics, Miami Herald, Sept. 15, 1998, R2-334, Exh.; Javier Lyonnet, Olance Nogueras, Cae red de espio-naje de Cuba/FBI viro'al revés casa de supuesto cabecilla and Pablo Alfons, Rui Ferreira, Cae red de espionaje de Cuba/Arrestan a 10 en Miami, Nuevo Herald, Sept. 15, 1998, at Al, R2-329, Exh. B; La Habana Contra El Pentagono .(“Havana versus the Pentagon”)/Estruc-tura de la Red de Espionaje, Nuevo Herald, Sept. 15, 1998, R2-329, Exh. C; Arrest of alleged Cuban spies demands vigorous prosecution, Sun-Sentinel, Sept. 16, 1998, at 30A, R2-329, Exh. G; Juan O. Tamayo, Miscues blamed on military’s takeover of Cuban spy agency, Miami Herald, Sept. 17, 1998, at 13A, R2-334, Exh.; David Kidwell, Motion could delay trials of alleged 10 Cuban Spies, Miami Herald, Oct. 6, 1998, at Bl, R2-334, Exh.; David Lyons, Cuban couple pleads guilty in spying case, Miami Herald, Oct. 8, 1998, at Al, R2-334, Exh.; David Kidwell, Three more accused spies agree to plead guilty, Miami Herald, Oct. 9, 1998, at 4B, R2-329, Exh. H; R2-334, Exh.; Carol Rosenburg, Couple admits role in Cuban spy ring, Miami Herald, Oct. 22, 1998, *1158at 5B, R2-329, Exh. H; Juan O. Tamayo, U.S.-Cuba spy agency contacts began a decade ago, Miami Herald, Oct. 31, 1998, R2-334, Exh.; David Kidwell, U.S. tries to tie espionage case to planes' downing, Miami Herald, Nov. 13, 1998, at Al, R2-334, Exh.; Carol Rosenberg, Identities of 3 alleged spies still unknown, Nov. 14, 1998, at Bl, R2-334, Exh.; Juan O. Tamayo, Spies Among Us/Castro Agents Keep Eye on Exiles, Miami Herald, Apr. 11, 1999, R2-329, Exh. D; R2-334, Exh.; Carol Rosenberg, Shadowing of Cubans a classic spy tale, Miami Herald, Apr. 16, 1999, at Al, R2-329, Exh. E; R2-334, Exh.; Cuban spy indictment/Charges filed in downing of exile fliers/The Brothers to the Rescue Shoot-down: David Lyons, Castro agent in Miami cited by U.S. grand jury, Juan O. Tamayo, Brothers to the Rescue Shootdown/Top spy planned Brothers ambush, and Elaine de Valle, Relatives: Charges fall short, Miami Herald, May 8, 1999, R2-334, Exh.; Confessed Cuban spy receives seven years, Miami Herald, Jan. 29, 2000, at Bl, R2-355 at C-2; Contrite Cuban spy couple sentenced, Miami Herald, Feb. 3, 2000, at B5, R3-355 at D-2; Miami Spy-Hunting, Miami Herald, Feb. 19, 2000, at 21A, R3-397, Exh. G-l; Carol Rosenberg, Confessed Cuban spies sentenced to seven years, Miami Herald, Feb. 24, 2000, at IB, R3-397, Exh. 1-1; Terrorism must not win in Brothers to the Rescue shoot-down, Miami Herald, Feb. 24, 2000, at 8B, R3-397, Exh. J-l ("More than compensation, the families want the moral sting of a U.S. criminal prosecution in federal court. So far there is only one indictment: Gerardo Hernandez, alleged Cuban spy-ring leader, charged last year with conspiracy to murder in connection to the shoot down.”); Brothers Pilots Remembered (photo), Miami Herald, Feb. 25, 2000, at Bl, R3-397, Exh. K-l; Marika Lynch, Shot-down Brothers remembered, Miami Herald, Feb. 25, 2000, at 2B, R3-397, Exh. L-l.
. R3-397, Exs.; R4-483, Exs.; R4-498, Exs.
During the same period of time in which the motions for change of venue were pending, and ultimately the trial was conducted, there was a substantial amount of publicity regarding other matters of interest in the Cuban community including the conditions in Cuba and high profile legal events occurring in Miami: the Elian Gonzalez matter; the arrest of an United States immigration agent, Mariano Faget, who was accused of spying for Cuba; and a city-county ban on doing business with Cuba.
As to the general anti-Castro sentiments and the conditions in Cuba: Juan O. Tamayo, Former U.S. Pows Detail Torture by Cubans in Vietnam/Savage beatings bent captives to will of man dubbed "Fidel”, Miami Herald, Aug. 22, 1999, at Al, R2-329, Ex. I; Juan O. Tamayo, Cuba toughens crackdown/"Biggest wave of repression so far this year”, Miami Herald, Nov. 11, 1999, at Al, R2-329, Ex. K; Juan O. Tamayo, Witnesses link Castro, dmgs, Miami Herald, Jan. 4, 2000, at B3, R2-329, Ex. J; Marika Lynch, Castro-challenging pilot is offered parade, honors, Jan. 4, 2000, at Bl, R2-329, Ex. M; Jim Morin, Cuba: I cannot speak my mind (cartoon), Miami Herald, Jan. 20, 2000, R2-329, Ex. P.
As to Elian Gonzalez: Juan O. Tamayo, Castro Ultimatum/Retum boy in 72 hours or migration talles at risk, Miami Herald, Dec. 6, 1999, at 1A, R2-329, Ex. N; Sara Olkon, Gail Epstein Nieves, Martin Merzer, The Saga of Elian Gonzalez/Protest and Passion Spread to the Streets/Sit-ins block intersections and disrupt Dade traffic and Politicians, lawyers work to halt 6-year-old's return, Miami Herald, Jan. 7, 2000, 1A, I see no basis for reversing decision, Reno says and Sara Olkon, Anabelle de Gale, Marika Lynch, Pained Cuban exiles disagree on what’s best for Elian, Miami Herald, Jan. 7, 2000, at 17A, U.S. Preparations for boy’s return start slowly, The Miami Herald, Jan. 7, 2000, at 18A, R2-329, Ex. O; Peaceful Rally (photo), Miami Herald, Jan. 9, 2000, at 1A, R2-329, Ex. N; Jay Weaver, 3rd judge gets high profile in Elian case, Miami Herald, Feb. 23, 2000, at IB, R3-397, Ex. A-l; Sandra Marquez Garcia, Mary "appears” near Elian, Miami Herald, Mar. 26, 2000, at IB, R4-483, Ex. E-3; Alfonso Chardy, Authorities keep watch on exile groups, Miami Herald, Mar. 29, 2000, at 10A, R4-483, Ex. C-3; Vigilant protestors, Miami Herald, Mar. 29, 2000, at 10A, R4-483, Ex. 1-3; Andres Viglucci, Jay Weaver, and Frank Davies, Dad gets visa, but no guarantees for Elian’s transfer, Miami Herald, Apr. 5, 2000, at 1A, R4-483, Ex. D-3; Elaine de Valle, Media watch events closely — and get watched in retum/Hot words on radio scruti*1159nized, and Terry Jackson, Media watch events closely — and get watched in retum/TV talk, news shows flocking to South Florida, Miami Herald, Apr. 5, 2000 at 15A, R4-483, Ex. B-3; Karen Branch, Crowds target Reno’s home, Miami Herald, Apr. 6, 2000, at 2B, R4-483, Ex. A-3; The saga of Elian/Reno wants Elian today/Boy must be at airport by 2 P.M./Defiant family refusing to comply: Andres Viglucci, Jay Weaver, and Ana Acle, Great-uncle challenges U.S. to take boy “by force”, and Carol Rosenberg, The Attorney general followed "instinct” as final mediator, Miami Herald, Apr. 13, 2000, at 1A, R4-483, Ex. F-3; The saga of Elian/Family defies order/Crowd swells at Little Havana home/Judge dismisses family’s custody case/Panel will weigh request for a stay/U.S. takes no action to remove Elian: Ana Acle, In a show of solidarity, VIPs flock to visit boy, and Andres Viglucci and Jay Weaver, Reno: U.S. will explore all peaceful solutions, Miami Herald, Apr. 14, 2000, at 1A, R4-483, Ex. G-3; Saga of Elian/Standoff over custody! A show of solidarity (photo), Miami Herald, Apr, 14, 2000, at 20A, R4-483, Ex. H-3; Karl Ross, W. Dade home of attorney general on alert, and Police say an anonymous caller phoned in bomb threat April 13, Miami Herald, Apr. 16, 2000, R4-498, Ex. A-4; Raid’s Prelude: How talles failed/Missed signals helped doom deal and Sara Olkon, Diana Marrero, and Elaine de Valle, Thousands protest 'seizure/Separate rally backs Reno's actions, Miami Herald, Apr. 30, 2000, at 1Á, R4-498, Exh. C-4; Carol Rosenberg, INS agent targeted by death threats, Miami Herald, May 6, 2000, R4-498, Exh. B-4; and In memory of mothers who died at sea (photo), Miami Herald, R4-498, Exh. D-4.
As to Mariano Faget: Elaine de Valle, Fabi-ola Santiago, and Marika Lynch, FBI: Official in INS spied for Cuba, Miami Herald, Feb. 18, 2000, at Al, R3-397 at C-l; Amy Driscoll, Juan Tamayo, Spy bait taken instantly/Alleged Cuban agent phoned contact after receiving false FBI information, Fabiola Santiago, Aloof suspect with high clearance was ideally positioned to do harm, and Tracking Faget (photos), Miami Herald, Feb. 19, 2000, at Al, R3-397 at B — 1; Don Bohning, Faget's father was a brutal Batista official, Miami Herald, Feb. 19, 2000, at 21 A, R3-397, Exh. G-l; Frank Davies, Cuba, U.S. still fight Cold War, Miami Herald, Feb. 19, 2000, at 21A, R3-397, Exh. H-l; Juan O. Tamayo, Cuban diplomat expelled over spy link, Miami Herald, Feb. 20, 2000, at Al, R3-397, at D — 1; Liz Balmaseda, Spy case boosts worst suspicions, Miami Herald, Feb. 21, 2000, at Bl, R3-397, at 'F-1; Juan O. Tamayo, Cuban diplomat linked to Elian, INS spy case, Miami Herald, Feb. 22, 2000, at Al, R3-397, at E-l; Juan O. Ta-mayo, More exiles maneuvering for business with Cuba, Miami Herald, Mar. 5, 2000, at A-1, R3-455 at A-2; Ana Radelat and Jan O. Tamayo, FBI agents expel defiant Cuban envoy, Miami Herald, at A-l, R3-455 at B-2.
As to the business ban: Marika Lynch, Fernando Almanzar, Protest, taping set to follow Van Van show, Miami Herald, Sept. 28, 1999, at 3B, and Tyler Bridges, Andres Viglucci, Miami may bar Van Van next time/County’s Pénelas also opposed, Miami Herald, Oct. 13, 1999, at Bl, R2-329, Exh. L; Don Finefrock, Ban on business with Cuba tightened, Miami Herald, Feb. 25, 2000, at 2A, R3-397, Exh. M-l; Jordan Levin, Miami-Dade threatens to cancel film fest grant/Cuban movie collides with county law, Miami Herald, Feb. 25, 2000, at 1A, R3-397, Exh. N-l; Jordan Levin, Groups “warned” on Cuba resolution, Miami Herald, May 15, 2000, at IB, R4-498, Exh. E-4; Decenas De exiliados se congregaron ante la Corte Federal para reclamar el derecho de Elian Gonzalez a permanecer en EU, R3-455, Exh. E-2.
. R4-498, Ex. A-4.
. R3-443 at 11.
. Hernandez, 106 F.Supp.2d at 1317-18; R5-586.
. Id. at 1321 n. 2.
. Id. at 1323-24. By limiting its analysis to the third inquiry of Ross, the district court necessarily limited its review of the defendants' evidence to consideration of whether that evidence demonstrated the prejudicial effect of pretrial publicity. See Ross, 716 F.2d at 1540. Further, as the en banc opinion states, the district court rejected the defendants' community survey and thus focused its analysis solely on the submitted articles. Contrary to the en banc opinion’s statement in n. 219 that the district court made a specific finding as to prejudice in the community, this finding was limited to its prior finding that the defendants' evidence demonstrated "that the pretrial publicity has not been 'so inflammatoiy and pervasive as to raise a presumption of prejudice’ among the potential jury venire in the case." Hernandez, 106 F.Supp.2d at 1322, 1324.
. Id.
. R5-656 at 2-3.
. Id. at 2.
. Id. at 3 (internal punctuation omitted).
. Id. The following articles were included as exhibits: Rui Ferreira, Cuba helps defense at spy trial, Miami Herald, Aug. 18, 2000, at IB, R5-656, Ex. A; Rui Ferreira, Funcionar-ios cubanos irán al juicio de los espías, Nuevo Herald, Aug. 18, 2000, at 17A, R5-656, Exh. B; Cuba colaborará en juicio por espionaje, Nuevo Diario, Aug. 19, 2000, at 61, R5-656, Exh. C; Rui Ferreira, Un misterioso coronel cubano se suma al caso de los espías, Nuevo Herald, Aug. 21, 2000, at 21A, R5-656, Exh. D; To the point/Mr. President, define “handshake", Miami Herald, Sept. 11, 2000, at 6B, R5-656, Exh. F; and Accused spy seeks release of U.S. documents, Miami Herald, Sept. 12, 2000, at 33, R5-656, Exh. E.
. R6-723 at 2-3.
. R6-765.
. R6-766; R22.
. The district court disqualified 79 of the 168 venire persons for cause, 32(19%) in Phase 1 and 22(27%) in Phase 2 for Cuba-related animus.
. R22 at 111-16; R62 at 6575-76.
. R7-978 at 2-3, 7; R21 at 111-13, 117-19; R22 at 115, 119; R64 at 6459-60.
. See R25 at 782, 789 (potential juror stated that she would not believe any witness who admitted that he had been a Cuban spy); R26 at 1068-70 (potential juror admitted that he "would feel a little bit intimidated and maybe a little fearful for my own safety if I didn't come back with a verdict that was in agreement with what the Cuban community feels, how they think the verdict should be,” and that, "based on my own contact with other Cubans and how they feel about issues dealing with Cuba — anything dealing with communism they are against,” he would suspect that "they would have a strong opinion” on the trial. He explained that he
"probably would have a great deal of difficulty dealing with listening to the testimony .... would probably be a nervous wreck, ... and would have some trouble dealing with the case.” He said that he "would be a little bit nervous and have some fear, actually fear for my own safety if I didn’t come back with a verdict that was in agreement with the Cuban community at large.”); R27 at 1277 (potential juror expressed concern that, "no matter what the decision in this case, it is going to have a profound effect on lives both here and in Cuba.” He believed that the Cuban government was "a repressive regime that needs *1162to be overturned,” was "very committed to the security of the United States,” and "would certainly have some doubt about how much control [a member of the Cuban military] would have over what they would say [on the witness stand] without some tremendous concern for their own welfare.”); R26 at 1057, 1059, 1073 (a potential juror who was a banker and senior vice president in charge of housing loans was "concern[ed] how . .. public opinion might affect [his] ability to do his job” because he dealt with a lot of developers in the Hispanic community and knew that the case was "high profile enough that there may be strong opinions” which could "affect his ability to generate loans.”); R27 at 1166, 1168 (potential juror said that he did not like the Cuban government and asked "how could you believe” the testimony of an individual connected with the current Cuban government); R28 at 1452-53 (potential juror believed that "Fidel Castro is a dictator” and that there were "things going on in Cuba that the people are not happy about.”); R26 at 1001-02 (potential juror thought that Castro had "messed up” Cuba which was "a very bad government ... perhaps one of the worst governments that exist ... on the planet.”)
. See R25 at 880 (potential juror said she held a "[v]ery strong” opinion and did not believe in the Cuban system of government but did not feel that it would affect her ability to render a verdict); R25 at 829-31, 51-52 (potential juror thought she could be impartial, but admitted that "it would be difficult” and that she did not know if she "could be fair.” She said that the case was discussed "every time my [Cuban born] parents have visitors over” and that she knew she would be "a little biased” in favor of the United States as she did not agree with "communism.”); R27 at 1240-47 (potential juror, who was born in Cuba and immigrated to the United States with her family in the late 1950s-early 1960s, had three relatives who were involved in the Bay of Pigs invasion and her husband had participated in the 1980 Mariel boat lift to rescue his sister and her family from Cuba. Although she stated that she would be impartial, she said that she saw "Castro as a dictator.”); R25 at 790-96 (potential juror, a Cuban immigrant, said that she did "not approve of the regime ... in Cuba” and was "against communism” but believed she could serve impartially. She remembered the news from the television and the Miami Herald about the planes being shot down); R27 at 1227-32 (potential juror said that, although her father left Cuba because of communism and she believed that the Cuban government was "oppressive,” she believed that she would not be prejudiced); R27 at 1148-50 (potential juror who was born in Cuba and immigrated to the United States with her family stated that she was "always for the U.S.” and "against the Republic of Cuba,” did not like Cuba being a communist country, and had relatives living in Cuba. She had a problem with the case because it involved "espionage against the U.S.” but indicated that she could set aside her feelings to serve on the juiy); R26 at 1011-13, 1018— 19 (potential juror commented that he had "no prejudices” but "live[d] in a neighborhood where there [we]re a lot of Cubans” and was "acquainted with people that come from Cuba. That is universal in Dade County.” When asked whether he would be concerned about community sentiment if he were chosen as a juror, he "answer[ed] ... with some care .... [i]f the case were to get a lot of publicity, it could become quite volatile and ... people in the community would probably have things to say about it.” He stated that "it would be difficult given the community in which we live” "to avoid hearing somebody express an opinion” on the case and to follow a court's instruction to not read, listen to, or otherwise expose himself to information about the case. His opinion about the Cuban government was "not favorable" as it was "not a democracy” and was "guilty of assorted [human rights] crimes.”); R26 at 1021-28, 1030, 10323223, (potential juror initially said that he did not "think he would have any sort of prejudice[]” against defendants who were agents of the Cuban government but could not say for certain because of "[t]he environment that we are in. This being Miami. There is so much talk about Cuba here. So many strong opinions either way.” He later, however, admitted to having biases against the Cuban government, which he believed was "anti-American” and "tyrannical,” and to having "an obvious mistrust ... of those affiliated with the [Cuban] *1163government.” He also indicated that he would be concerned about returning a not guilty verdict because “a lot of the people [in Miami] are so right wing fascist,” because he would face "personal criticism” and media coverage, and because he had concerns for what might happen after a verdict was returned. He believed the case to be "a high profile case” and that he had been videotaped by the media when leaving the courthouse.); R27 at 1139-48 (potential juror who was born in Cuba and immigrated to the United States with his parents initially stated that he did not think he "could make a fair judgment” in the case and would be prejudiced because he had "a lot of family ties in Cuba” including uncles, aunts, and cousins but later answered that he could set aside his concerns if selected for the jury. He was troubled about returning a verdict in the case based on his concern for something happening to his "family ... in Cuba” and the notoriety of the case in Miami. He also said that he had "heard a lot about the case ... on the news [and from] people talking about” it); R28 at 1424-25, 1433 (potential juror believed that Castro was "a very bad person” and, when asked whether her opinion regarding the Cuban government would affect her ability to fairly weigh the evidence, answered "I don’t think so .... I don’t know. I have lived in South Florida for 36 years and I have seen many changes.” She had known one of the passengers in one of the BTTR planes on the day of the shoot-down and who was named as a government witness, for about eight years. She also knew that the witness was “veiy involved with the Brothers to the Rescue and very strongly keeping the Cuban community together in Miami.”); R25 at 818-22 (potential juror did not think that it would affect his ability to be impartial but he "was not happy” with United States-Cuban relations following the Mariel boat lift. He did not like the freedom that Cubans had to immigrate to the United States because immigrants from other countries were treated differently and "sometimes [he felt like] a stranger in [his] own country” when he needed to ask someone to speak English instead of Spanish); R27 at 1118-28, 1175-77 (potential juror had "many close Cuban friends,” including her husband’s business partner who was a member of a group that rescued Cubans fleeing the island. She believed that she could be impartial but had concerns about returning a verdict in Miami “because of the Cuban population here.” She "was a little distressed with the way that the [Cuban] exile community handled” the Elian Gonzalez matter because she did not "like the crowd mentality, the mob mentality that interferes with what I feel is a working system.” She strongly believed that the Cuban government was an oppressive dictatorship. She remembered news reports regarding "the planes being shot down” and several men dying, and that it was a "very bad situation” and frightening because of the possibility of military action. Leilani Triana testified that, although her parents were from Cuba and her grandfather had been politically involved in Cuba before Castro, she could be impartial).
. See R24 at 555, 561-62, 571, 590; R25 at 741-49. David Buker, who served as jury foreperson, stated that he believed that "Castro is a communist dictator and I am opposed to communism so I would like to see him gone and a democracy established in Cuba.” Although the government notes that Campa’s attorney commented that Buker was "uninvolved or personally disconnected from the experience [of a Cuban]” and that his "general philosophical problem with communism” was "perfectly okay,” Campa’s attorney’s comment was made in the context of his argument concerning striking for cause another juror whose responses were "rooted in personal experience.” R25 at 851.
Both Sonia Portalatin, who had a “strong” opinion about the Cuban government because she was "against communism,” R24 at 619; R25 at 858-65, and Eugene Yagle, who admitted having "a strong opinion” about the Cuban government as he could not "reconcile [him]self to that form of Government,” R22 at 144, 165-67; R27 at 1294-1300; R28 at 1517-20; R29 at 1553-57, 1601-02, 1638, were seated on the jury.
. R24 at 519-22, 534-36. The potential juror was the principal of the predominantly (90 percent) Cuban high school attended by *1164the daughter of one of the killed BTTR pilots. She visited the pilot's home and attended his funeral. Despite her relationship with the pilot's daughter, she thought she "could be fair'' although "it would be a little difficult.”
.See R25 at 841-43, 846 (potential juror had traveled to Cuba with his family "to take goods” and medicines to friends and had friends who frequently traveled to Cuba; he knew of no reasons why he should not serve on the jury. He remembered hearing or reading "years back” "something about Brothers to the Rescue” and someone in the group who was a spy for the Cuban government); R27 at 1300-08 (potential juror who had family in Cuba thought he could be fair, but was unable to say whether he would be able to believe a witness who was a member of the communist party in Cuba); R27 at 1134-39 (potential juror whose parents and grandparents had immigrated from Cuba and who had distant relatives who remained in Cuba but he had no opinions regarding the Cuban government, the trial, or the publicity surrounding it); R26 at 990-06 (potential juror felt sympathy for the people living in Cuba but believed that she would be impartial as a juror. She knew from the media that "airplanes were shot down in Cuba a couple of years ago” and that "some families .. . gathered to remember the anniversary of the incident” a few weeks before voir dire)-, R26 at 938, 945 (potential juror had concerns about community reaction to a verdict because she did not "want rioting and stuff to happen like what happened with the Elian case. I thought that got out of hand.”).
. See R21 at 139; R23 at 251, 254; R24 at 373, 385-86, 458, 508-10 (three potential jurors knew government witness Jose Basulto, another knew a widow of one of the killed BTTR pilots, and a third knew the daughter of one of the BTTR victims); R25 at 776-70, 809-12; R26 at 937-41 (potential juror who was a former national bank examiner had assisted the United States Attorney's office in Miami for three years during a grand juiy investigation); R25 at 655, 690, 709 (potential juror knew many of the named witnesses, and had helped raise money for BTTR while working for one of the local Cuban radio stations).
. R27 at 1373-76.
. R21 at 44-45; R22 at 119; R116 at 13492-93.
. R21 at 26.
. R9-1126.
. Hernandez, 124 F.Supp.2d 698, 704 (S.D.Fla.2000); R7-808.
. R33 at 2145; R34 at 2321-40; R44 at 3724-26; R49 at 4677-78; R66 at 6833-35; R69 at 6981-7016 Govt. Exs. 4; 5-1; 5-2; 5-3; 5-4; 5-6; 6; 7; 9; 8-1; 8-3; 8-4; 11; 12-3; 12-4; 12-5; 12-8; DAV 110 at 2, 118 at 7-14; DG 105 at 2-16; DG 125; DG 126 at 9-10; DG 135 at 3-11; DG 136; SF 14; SF 15; SG 34; SG 53. Under their false identities, Campa was also known as Fernando Gonzalez Llort, Oscar, or Vicky, R101 at 11714; Gonzalez was known as Agent Castor; Guerrero was known as Lorient, Govt. Exs. DAV 102 at 1; DAV 129 at 2; Hernandez was known as Girardo, Giro, or Manuel; and Medina was known as Allan or Ramon Laban-ino; R101 at 11721-23.
. R45 at 3870-71; Govt. Exs. DAV 109 at 6-7; DG 101 at 2; DG 102 at 30; DG 107 at 12-20, 58-67; DG 108 at 2-3; DG 117; DG 129; DG 137 at 2; HF 103. The Cuban government maintains the following intelligence operations: the Directorate of Military Intelligence ("DIM") under the Ministry of Revolutionary Armed Forces, and the Directorate of Intelligence ("DI”) and the Directorate of Counterintelligence ("DCI") under the Ministry of the Interior. R44 at 3700-05, 3707. The DI collects intelligence outside of Cuba, focusing primarily on the United States; the DCI is responsible for intelligence regarding counter-revolutionary activities inside of Cuba. R44 at 3704, 3707. The DI is organized into many operational components, including M-I which handles non-military United States government agency intelligence, M-III which handles the collecting, correlating, and reporting of gathered information, M-V which handles the operation and support of "illegal” intelligence officers ("IO”s) who enter the United States illegally with a false identity and identification, M-XIX which handles counter-revolutionary individuals and organizations outside of Cuba. R44 at 3708-11, 3713; R46 at 3957.
. Orlando Suarez Pineiro, a Cuban-born permanent resident of the United States, served as a captain in Alpha 66 for about six years. R90 at 10373-74. On 20 May 1993, he and other Alpha 66 members were arrested while on board a boat with weapons in the Florida Keys. Id. at 10391-92, 10397-401, 10415-16. The weapons included pistols with magazines and ammunition, 50 caliber machine guns with ammunition, rifles with clips, and an RK. Id. at 10397-400. Pineiro was tried and found not guilty of possession of a Norinko AK 47 rifle and two pipe bombs. Id. at 10424. Pineiro and other Alpha 66 members were also stopped and released while on board a boat on 10 June 1994, but their weapons and boat were seized. Id. at 10409, 10411-14. The seized weapons included a machine gun and AK 47 s. Id. at 10411-14.
United States Customs Agent Ray Crump testified that, on 20 May 1993, he participated in the arrest of several men whose boat was moored at a marina in Marathon, Florida. Id. at 10429. The boat held: several handguns; automatic rifles, including one fully automatic rifle; four grenades; two pipe bombs; a 40 millimeter grenade launcher; a 50 caliber Baretta semiautomatic rifle; and a bottle printed with "Alpha 66” which contained "Hispanic propaganda ..., ... crayons, razors, stuff of that nature.” Id. at 10431-33, 10434. He also participated in an investigation of a vessel south of Little Torch Key, about ten miles south of Marathon, Florida, on 11 July 1993. Id. at 10433-34. The vessel was carrying four men, numerous weapons, and “Alpha 66 type propaganda.” Id. at 10434. The weapons on the vessel included an AR 15, two 7.6 millimeter rifles and ammunition magazines. Id. at 10438. Following this investigation, the men were not arrested, and the weapons and vessel were not seized. Id. at 10438-39.
United States Customs Agent Rocco Marco said that he encountered four anti-Castro militants on 27 October 1997, after their vessel, the "Esperanza”, was stopped in waters off *1166Puerto Rico. R90-10449. He explained that U.S. Coast Guard officers searched the vessel and found weapons and ammunition "hidden in a false compartment underneath the stairwell leading to the lower deck.” The officers found food, water bottles, camouflage military apparel, night vision goggles, communications equipment, binoculars, two Biretta 50 caliber semiautomatic rifle with 70 rounds of ammunition, ten rounds of 357 hand gun ammunition, and magazines and clips for the firearms. R90 at 10453-59. The leader of the group, Angel Manuel Alfonso of Alpha 66, confessed to Rocco that they were on their way to assassinate Castro at ILA Marguarita, where he was scheduled to give a speech. Id. at 10452, 10467. Alfonso explained to Rocco that "his purpose in life was to kill [Castro]” and that it did not "matter if he went to jail or not. He would come back and accomplish the mission.” Id. at 10468.
Debbie McMullen, the chief investigator with the Federal Public Defender’s Office, testified that Ruben Dario Lopez-Castro was an individual associated with a number of anti-Castro organizations, including PUND and Alpha 66. R97 at 11267. Lopez and Orlando Bosch planned to ship weapons into Cuba for an assassination attempt on Castro. Id. at 11254. Bosch had a long history of terrorist acts against Cuba, and prosecutions and convictions for terrorist-related activities in the United States and in other countries. Campa Exh. R77 at 18-35.
. Rodolfo Frometa testified that, although he was born in Cuba, he was a citizen of the United States. R91 at 10531. He explained that he was a United States representative of a Cuban organization called Commandos F4, which was organized "to bring about political change in a peaceful way in Cuba” and included members both inside of and exiled from Cuban. Id. at 10532. He identified himself as the Commandate Jefe, or commander-in-chief, of F4 in the United States. Id. at 10534. He stated that, since 1994, all F4 members must sign a pledge that they will "respect the United States laws” and not violate either Florida or federal law. Id. ■ at 10535.
Frometa stated that, before Commandos F4, he was involved with Alpha 66, another organization supporting political change in Cuba, from 1968 to 1994 and served as their commander "because of his firm and staunch position ... against Castro.” R91 at 10541-42. As a member of Alpha 66, Frometa was stopped by police officers and questioned regarding his possession of weapons. He was first stopped on 19 October 1993, while in a boat which had been towed to Marathon, Florida, and was questioned regarding the onboard' weapons. Id. at 10564-66. The weapons included seven semi-automatic Chinese AK assault rifles and one Ruger semiautomatic mini 14 rifle caliber 223 with a scope. Id. , at 10564-66. On 23 October 1993, he was again stopped while he and others were driving a truck which was pulling a boat toward the Florida Keys. Id. at 10542-44. Frometa explained that they were carrying weapons to conduct a military training exercise in order to prepare for political changes in Cuba or in the case of a Cuban attack on the United States, and once the officers determined that their activities were legal, they were sent on their way. Id. at 10544-48, 10563. The weapons were semiautomatic and included an R15, an AK 47, and a 50 caliber machine gun. Id. at 10545-47. Frometa and several other Alpha 66 members were once more stopped and released on 7 February 1994 for having weapons on board his boat. Because a photograph of the group was "published in the newspapers” "[ejverybody in Miami” knew that they were released. Id. at 10569. On 2 June 1994, Frometa, by then a member of F4, was arrested after attempting to purchase C4 explosives and a "Stinger antiaircraft missile” in order to kill Castro and his close associates in Cuba. Id. at 10571-72, 10574-76, 10579-80. Frometa acknowledged that the use of the C4 explosive could have injured Cubans who worked at a military installation, id. at 10579, but that they had caused the "death of four U.S. citizens, the 41 people including 20 or 21 children who died; the mother of the child Elian, plus thousands and thousands who have died in the Straits of Florida.” Id. at 91-10581.
. Percy Francisco Alvarado Godoy and Juan Francisco Fernandez Gomez testified by deposition. R95 at 11012; R99 at 11558-59. Godoy, a Guatemalan citizen residing in Cuba, described attempts between 1993 and 1997 by affiliates of the CANF to recruit him to engage in violent activities against several Cuban targets. 2SR-708, Att. 2 at 10-13, 21-24, 27-28, 33-34, 44-46, 61, 63-64. He said *1167that, beginning in September 1994, he was asked to place a bomb at the Caberet Tropicana, a popular Havana nightclub and tourist attraction. Id. at 44-46. In connection with the same plot, he flew to Guatemala in November 1994 to obtain the explosives and detonators to be used and met with, among others, Luis Posada Carriles, a Cuban exile with a long histoiy of' violent acts against Cuba. Id. at 49, 52, 56-58. Unknown to the CANF members, Godoy was cooperating with the Cuban authorities, denounced their plans, and later testified at the trial of one of the conspirators in Cuba. Id. at 22, 24, 26, 31, 58-59, 65, 70, 76, 81-82, 86, 90, 109.
Gomez, a citizen and resident of Cuba, described numerous attempts between 1993 and 1997 by persons associated with the CANF to recruit him to engage in violent activities against several Cuban targets. Gomez also testified that, beginning in September 1994, he was asked to place a bomb at the Caberet Tropicana, a popular Havana nightclub and tourist attraction. In 1996 and 1998, Gomez was approached by Borges Paz of the anti-Castro organization the Ex Club, 2SR-708, Att. 1 at 9, 12-14, 20, 39; Gomez said that Paz invited him to join their organization to build and place bombs at tourist hotels and at the Che Guevara Memorial in Santa Clara, Cuba. Id. at 16, 19, 22. After returning to Cuba, Gomez informed the Cuban authorities of the Ex Club's plans. Id. at 20, 35-36. As a result of his work for the United States government, Gomez said that he was estranged from his family in the United States, including a daughter in Florida, and had received threatening phone calls. Id. at 64-66.
. R83 at 9162, 9165-67; R90 at 10373-74, 10391-92, 10397-10401, 10409, 10411-14, 10415-16, 10429, 10431-34, 10449, 10452-59, 10467-68; R91 at 10541-42, 10544-48, 10563-66, 10571-72, 10574-76, 10579-80; R97 at 11267, 11291-97; 2SR-708, Att. 1 at 9, 12-14, 16, 19-20, 22, 35-36, 39; Att. 2 at 10-13, 21-24, 27-28, 33-34, 44-46, 61, 63-64; Campa Exs. R-29D, R-29F, R-29G, R~ 29H.
. R97 at 11296-97.
. Campa Exs. R-29C; R-29F; R-29H; GH Exs. 16C, 24/
. R76 at 8198-99, 8203-05; R83 at 9166-67; GHExs. 18E, 18F.
. R58 at 5919, 5922-23; R83 at 9161-65, 9167-70, 9181-83; GH Exs. 18E, 37 at 2-4, 6-8; Govt. Exs. 475A at 2-3, 478, 479, 483 at 8-11, 14-16; HF 108'at G-3, 113 at G-3.
. R53 at 5109-14, 5117-18; Govt. Ex. 483 at 5-7, 11, 13, 17-18, 20. The cruise ship was Royal Caribbean's "Majesty of the Seas” with about 2,600 passengers and 800 crew. R53 at 5084-86. The first officer on the ship explained that they were on the last leg of a weekly cruise about 24 nautical miles off the north coast of Cuba during the shootdowns. Id. at 5087-89, 5109-14. A videotape of the shootdowns made by a cruise ship passenger was apparently "played on TV many times.” Id. at 5124.
R53 at 5113-21, 5131-33; Govt Exs. 440, 469B, 484.
.R93 at 10750-51, 10754-55, 10783-832. The acts included an explosion on 12 April 1997 which destroyed the bathroom and dance floor at the discotheque Ache in the Media Cohiba Hotel, id. at 10755, 10757, 10759; a bombing on 25 April 1997 at the Cubanacan offices in Mexico, R97 at 11318— 19; the 30 April 1997 explosive device found on the 15th floor of the Cohiba Hotel, R93 at 10766-69, 10771; the 12 July 1997 explosions at the Hotel Nacional -and Hotel Capri, both of which created "craters” in the hotel lobbies and did significant damage inside the hotels, id. at 10786-88, 10795-801; the 4 August 1997 explosion at the Cohiba Hotel which created a crater in the lobby and destroyed furniture; id. at 10802-05; explosions on 4 September 1997 at the Triton Hotel, the Copacabana Hotel, the Chateau Miramar Hotel, and the Bodequita del Medio Restaurant, id. at 10807-09, 10820; and, the discovery of explosive devices at the San Jose Marti International Airport in a tourist van in the taxi dispatch area on 19 October 1997 and underneath a kiosk on 30 October 1997, id. at 10824-30. The explosions on 4 September killed an Italian tourist at the Copacabana Hotel, injured people at the Chateau Miramar Hotel, the Copacabana Hotel, and at the Bo-dequita del Medio Restaurant, and caused property damage at all locations. Id. at 10809-13, 10815-20, 10822-23.
. R97 at 11316-18; Campa Exs. R57(a), R57(b) at 2, 59.
. R97 at 11320-21.
. Id. at 11321; Campa Ex. R63 at 1.
. R93 at 10832, 10839, 10842.
. R44 at 3699-700. The U.S. Attorney asked government witness Stuart Hoyt to describe the structure of the Cuban intelligence system by questioning "who is at the top of the Cuban intelligence system.” R44 at 3699. Hoyt responded by stating that “Fidel Castro” was at the top as "Commander-in-Chief”, "[P]resident”, "Council Minister”, and "head of the Cuban Communist Party.” Id.
. R73 at 7806-07.
. R80 at 8748. After a defense witness explained on cross-examination that the tone of the dissenters within Cuba was "more respectful” than that of Cuban exile organizations located outside of Cuba, the government attorney asked whether such an answer was relevant when it was a " [particularly repressive government.” R80 at 8748. Late, after the witness stated that, if he had been a dictator, he would have tried to stop the BTTR flight, the government attorney questioned whether "[w]e live in a dictatorship.” Id. at 8754. After the witness replied "Fortunately we don't,” the government attorney commented, "And people do have that freedom of choice.” Id.
. Id. at 8754.
. R70 at 7130-36; R81 at 8947-49. Although the district court did not overtly deny these motions, the motion based on community events and publicity was apparently resolved by "no response” to an inquiry to the jury as to whether they had "seen, heard, read, or [spoken to anyone] about any media accounts related” to the case following the trial's last recess. R70 at 7136. The motion based on the witness's insinuation was resolved by an instruction to the jury that the defense attorney's "job [wa]s to provide a vigorous defense for his client.” R81 at 8955. "[The witnesses statement regarding [the defense attorney] was inappropriate and unfounded.” Id. at 8949.
. R70 at 7130.
. Id. at7130-31.
. Id. at 7131.
. Id. at 7134-36.
. Id. at 7136.
. Id. at 5.
. R81 at 8945.
. Id.
. Id. at 8947-49 (emphasis added). Basulto, the founder, president, and director of BTTR, was a Cuban-American who had worked with the Central Intelligence Agency to infiltrate the Cuban government. He was a prominent person in Miami, and made frequent appearances in Spanish-language media. During the trial, he testified that his work for the CIA was "dedicated to promoting] democracy in Cuba.” R80 at 8822, 8825.
. Id. at 8949. In the alternative, counsel for Campa and Hernandez requested a jury instruction addressing Basulto’s attack on Hernandez’s counsel's credibility. R81 at 8949-53. The court found that the statements could affect "how the jurors view” Hernandez's counsel and instructed the jury that Hernandez’s attorney's "job is to provide a vigorous defense for his client. Mr. Basulto’s statement regarding [Hernandez's counsel] was inappropriate and unfounded.” Id. at 8955.
. R120 at 13894-95.
. Id. at 14532, 14481.
. Id. at 14480.
. Id. at 14495.
. Id. at 14480-81.
. Id. at 14483-85, 14488.
. Id. at 14493.
. Id. at 14512-13.
. Id. at 14513.
. Id. at 14519.
. Id. at 14475.
. Id. at 14482, 14483, 14493; R125 at 14583.
. R104 at 12091-92.
. Id. at 12091-94.
. Id. at 12094-95.
. R59 at 6096-108, 6145-49. The 20 protestors carried signs stating "take Castro down,” "[flair trial wanted,” and "spies to be killed.” Id. at 6145.
. R81 at 9005.
. R126 at 14644-47.
. Id. at 14645-47.
. R126 at 14643-46.
. R12-1338 at 2-3; R12-1342 at 2-3; R12-1343 at 1-4; R12-1347 at 1-2.
. Id. at 15.
. R15-1635, 1638, 1644, 1647, 1650, 1651. The National Jury Project, the National Lawyers Guild, the International Association of Democratic Lawyers sought and were granted leave to file briefs as amicus curiae in support of this motion. R15-1640, 1653, 1654, 1655, 1677.
. R15-1636, Ex. 2 at 2-3, 11.
. Id. at 14-15.
. Id. at 17, 16.
. Id. at 16 n. 1.
. R15-1636, Ex. 3 at 24. I note that the Elian Gonzalez matters occurred between the 1998 indictment of the defendants in this case and the beginning of their trial in 2000. The first anniversary protests of Elian Gonzalez's return to Cuba occurred during these defendants’ trial.
.Id. at 25.
. R15-1636, Exs. 4, 5, 7-10, 12.
. R15-1678 at 5, 6 n.3, 8.
. See United States v. Noel, 231 F.3d 833, 836 (11th Cir.2000) (per curiam).
. See United States v. Williams, 523 F.2d 1203, 1208 (5th Cir.1975). In Bonner v. City of Prichard, Ala., 661 F.2d 1206, 1209 (11th Cir.1981) (en banc), we adopted as binding precedent all decisions of the former Fifth Circuit handed down prior to 1 October 1981.
. United States v. Frazier, 387 F.3d 1244, 1259 (11th Cir.2004) (en banc) (internal citation omitted).
. Ameritas Variable Life Ins. Co. v. Roach, 411 F.3d 1328, 1330 (11th Cir.2005) (per cu-riam).
. Williams, 523 F.2d at 1208; Sheppard v. Maxwell, 384 U.S. 333, 362, 86 S.Ct. 1507, 1522, 16 L.Ed.2d 600 (1966) ("Appellate tribunals have the duty to make an independent evaluation of the circumstances.").
. Fed.R.Crim.P. 21(a).
. Pamplin v. Mason, 364 F.2d 1, 5 (5th Cir.1966); See also Sheppard, 384 U.S. at 362, 86 S.Ct. at 1522 ("Due process requires that the accused receive a trial by an impartial jury free from outside influences.”)
. Williams, 523 F.2d at 1209.
. Jordan v. Lippman, 763 F.2d 1265, 1266, 1267, 1269, 1279 (11th Cir.1985) (finding that, in a state habeas corpus proceeding, a new trial based on a change of venue was required when "extensive publicity” was coupled with the community’s "long history of racial turbulence” and the involved institution's "economic and social impact” on community).
. Williams, 523 F.2d at 1209.
. Coleman v. Kemp, 778 F.2d 1487, 1489 (11th Cir.1985).
. Meelcs v. Moore, 216 F.3d 951, 967 (11th Cir.2000).
. United States v. Fairies, 459 F.2d 1057, 1061 (3rd Cir.1972).
. United States v. Angiulo, 897 F.2d 1169, 1181-82 (1st Cir.1990). Other courts have considered how the charged crime reinforced "deeply-rooted passions” and "deeply-held prejudice” within the community, United States v. Holder, 399 F.Supp. 220, 227-28 (D.S.D.1975), how the charged crimes related to the community reputation, United States v. Wheaton, 463 F.Supp. 1073, 1078 (S.D.N.Y.1979), the defendants' state citizenship and community racial bias, United States v. Washington, 813 F.Supp. 269, 274, 275 (D.Vt.1993), "extreme community hostility,” the defendant's prominence in the community, the victim’s position as a public servant, and the defendant's position as a community "outsider.” State v. Koedatich, 112 N.J. 225, 548 A.2d 939, 963 (1988).
. United States v. Capo, 595 F.2d 1086, 1090 (5th Cir.1979).
. Mayola v. Alabama, 623 F.2d 992, 999 (5th Cir.1980).
. Marshall v. United States, 360 U.S. 310, 312, 79 S.Ct. 1171, 1173, 3 L.Ed.2d 1250 (1959) (per curiam).
. See Murphy v. Florida, 421 U.S. 794, 798-99, 95 S.Ct 2031, 2035-36, 44 L.Ed.2d 589 (1975).
. See Williams, 523 F.2d at 1206 n. 7.
. See Patton v. Yount, 467 U.S. 1025, 1029, 1034, 104 S.Ct. 2885, 2888, 2890, 81 L.Ed.2d 847 (1984).
. Pamplin, 364 F.2d at 7.
. Sheppard, 384 U.S. at 352, 354, 86 S.Ct at 1517-18.
. Mu'Min v. Virginia, 500 U.S. 415, 429, 111 S.Ct. 1899, 1907, 114 L.Ed.2d 493 (1991).
. Williams, 523 F.2d at 1209.
. Id. at 1209; Murphy, 421 U.S. at 802, 95 S.Ct. at 2037.
. Murphy, 421 U.S. at 802, 95 S.Ct. at 2037; Williams, 523 F.2d at 1210.
. Murphy, 421 U.S. at 800, 95 S.Ct. at 2036; Williams, 523 F.2d at 1210. As the en banc opinion correctly notes, the defendants used only 15 of their 18 challenges to the jury pool to excuse jurors whose answers revealed their potential bias against them. Although a defendant's failure to use all available preemptory challenges may indicate a lack of .juror prejudice, United States v. Alvarez, 755 F.2d 830, 859 (11th Cir.1985), such a fact is merely one factor to be considered in the totality of the circumstances determination. United States v. Gorel, 622 F.2d 100, 103-04 (5th Cir.1979); Dobbert v. Florida, 432 U.S. 282, 302-03, 97 S.Ct. 2290, 2303, 53 L.Ed.2d 344 (1977).
. See Sheppard, 384 U.S. at 354-55, 86 S.Ct. at 1518; Mu’Min, 500 U.S. at 429, 111 S.Ct. at 1907.
. Jordan, 763 F.2d at 1279 ("[E]ven to the extent that the publicity did not directly relate to the [defendant’s] case, it would be naive to underestimate its significance in the context of the trial .... [W]e cannot blind ourselves to the significant [prejudicial] overtones in the news media coverage” of community events.).
. Hernandez, 106 F.Supp.2d at 1319, 1321 n. 2, 1322. Further, there is no indication that the district court considered the community and the events ongoing in the community within a totality of the circumstances analysis in either the rulings on the a change of venue or the motions for a new trial.
. R7-978 at 9 n. 5 ("Articles about this case have appeared daily in the Miami Herald and El Nuevo Herald [,] weekly in the national and international press [and that] local televised news programs, particularly those affiliated with the Spanish-speaking channels, have featured coverage of the trial since it began.”); id. at 15, 17 (finding "significant” "local and national media coverage” since the indictment that had "only intensified as the trial has progressed” ... and that "[sjince the trial began, this case has been the daily bread for the local press and media”).
. Without determining the validity of Professor Moran's poll, I note that the district court approved the expenditures related to the poll, including the size of the statistical sample.
. R15-1636, Exh. 2 at 2-3.
. Jordan, 763 F.2d at 1279.
. Turner v. Louisiana, 379 U.S. 466, 473, 85 S.Ct. 546, 550, 13 L.Ed.2d 424 (1965).
. See Fed.R.Crim.P. 33(a) and (b)(1).
. See United States v. DiBemardo, 880 F.2d 1216, 1224 (11th Cir.1989).
. See United States v. Beasley, 582 F.2d 337, 339 (5th Cir.1978) (per curiam).
. See United States v. Williams; 613 F.2d 573, 575 (5th Cir.1980).
. R15-1636, Exh. 2 at 1-2.
. In response to the defendants' motion for a change of venue in this case, the government had argued that Pamplin did not apply where the alleged prejudice was the "community’s internal attitudes” as opposed to an outside influence. R3-443 at 6.
. United States v. Wilson, 149 F.3d 1298, 1303 (11th Cir.1998).
. United States v. Crutchfield, 26 F.3d 1098, 1103 (11th Cir.1994) (internal citation omitted).
. See Smith v. Groose, 205 F.3d 1045, 1051-52 (8th Cir.2000) (holding that the prosecution’s use of contradictory theories for different defendants in a murder trial violated due process). Our adversary system is “poorly served when a prosecutor, the state’s own instrument of justice, stacks the decks in his favor.” Id. at 1051.
I recognize that that judicial equitable es-toppel generally bars a party from asserting a position in a legal proceeding that is inconsistent with its position in a previous, related proceeding. See New Hampshire v. Maine, 532 U.S. 742, 749, 121 S.Ct. 1808, 1814, 149 L.Ed.2d 968 (2001). Judicial equitable estop-pel, however, is not applicable here because Ramirez, a civil case, was unrelated to this criminal prosecution. However, because the doctrine seeks to prevent a "party from 'playing fast and loose’ ” with the courts, the guidance that it provides may be helpful to parties considering a change in their subsequent position in unrelated litigation based upon the same set of facts. See 18B Charles Alan Wright, Arthur R. Miller & Edward H. Cooper, Federal Practice and Procedure § 4477 (2d ed.2002).
. United States v. Masters, 118 F.3d 1524, 1525 & n. 4 (11th Cir.1997) (per curiam).
. United States v. Espinosa-Hemandez, 918 F.2d 911, 914 (11th Cir.1990) (per curiam).
. Alejandre, 996 F.Supp. at 1242.