(Dissenting in part and concurring in part).
There has been sufficient impassioned comment on the issues revolving around this case without my adding to the fire by engaging in excessive hyperbole. I am, however, reminded of an old Spanish saying to the effect that “one cannot block out the sky with one’s hand” {no se puede tapar el cielo con la mano). In light of the pretrial publicity established by this record I cannot help but conclude that affirming that the appellants received an impartial trial, is like trying to “block out the sky with one’s hand.”
*753It is hardly an overstatement that this case represents the paradigm of pretrial publicity. I have searched in vain for a factual situation that even approaches that of the present case and have found none. If the standard set by this case is allowed to prevail, no criminal defendant can hope to overcome it. Furthermore, the burdens placed on a criminal defendant by the majority clearly run against specific constitutional guaranties. U.S. Const. Art. Ill, Sec. 2, cl. 3; Art. VI.
It goes without saying that in considering the questions before us, the guilt or innocence of the accused, or the heinousness of the offenses charged, should be irrelevant to the issue of whether they are entitled to, and received, a fair trial. In fact, it is when there are charges of opprobious crimes that courts are required to exercise heightened sensitivity to an accused’s need for protection against undue pretrial publicity. See Coleman v. Kemp, 778 F.2d 1487 (11th Cir.1986), cert. denied, — U.S.-, 106 S.Ct. 2289, 90 L.Ed.2d 730 (1986); Delaney v. United States, 199 F.2d 107 (1st Cir.1952).
I. The Pretrial Publicity Issue
It is axiomatic that the right to trial by jury is a fundamental right. Duncan v. Louisiana, 391 U.S. 145, 88 S.Ct. 1444, 20 L.Ed.2d 491 (1968). This right would be meaningless if it did not encompass the right to be tried by fair and impartial jurors. Irvin v. Dowd, 366 U.S. 717, 722, 81 S.Ct. 1639, 1642, 6 L.Ed.2d 751 (1961).
I accept that under today’s modern constitutional thinking, however, an impartial juror is not necessarily one who is totally ignorant of current affairs. It is now settled law that prior knowledge about the case by prospective jurors is not anathema to their impartiality. Patton v. Yount, 467 U.S. 1025, 104 S.Ct. 2885, 81 L.Ed.2d 847 (1984). “[T]he relevant question is not whether the community remembered the case, but whether the jurors ... had such fixed opinions that they could not judge impartially the guilt of defendant[s].” Patton, supra, at 1035, 104 S.Ct. at 2891; Irvin, supra, 366 U.S. at 723, 81 S.Ct. at 1642.
In determining the extent to which pretrial publicity may have entrenched prejudice in the minds of prospective jurors, it is of course relevant to consider the record of that publicity as well as the voir dire testimony of the jurors. As a rule, a juror’s profession of impartiality is entitled to deference, as is a trial court’s finding to such effect. Patton, supra, 467 U.S. at 1038, 104 S.Ct. at 2892; Coleman, supra, at 1490. In law, such a ruling can only be reversed on appeal upon a showing of manifest error. Id.
There is abundant case law, however, to the effect that under appropriate circumstances a trial court is duty bound to reject jurors’ claims of objectivity where the prospective jurors have been subjected to a “barrage of inflammatory publicity immediately prior to trial.” Murphy v. Florida, 421 U.S. 794, 798, 95 S.Ct. 2031, 2035, 44 L.Ed.2d 589 (1975). In such a situation “little stock need be placed on jurors’ claim to [impartiality].” Holbrook v. Flynn, 475 U.S. 560, 106 S.Ct. 1340, 1347, 89 L.Ed.2d 525 (1986); Sheppard v. Maxwell, 384 U.S. 333, 351, 86 S.Ct. 1507, 1516, 16 L.Ed.2d 600 (1966); Irvin, supra, 366 U.S. at 728, 81 S.Ct. at 1645; Marshall v. United States, 360 U.S. 310, 312, 79 S.Ct. 1171, 1172, 3 L.Ed.2d 1250 (1959); Coleman, supra, at 1490 (prejudice presumed where community saturated by pretrial publicity). Where the record establishes the probability of prejudice by reason of the pretrial publicity, failure of the trial court to grant appropriate relief constitutes manifest error. Patton, supra, 467 U.S. at 1031, 104 S.Ct. at 2888; Estes v. Texas, 381 U.S. 532, 543, 85 S.Ct. 1628, 1633, 14 L.Ed.2d 543 (1965); Sheppard, supra, 384 U.S. at 352, 86 S.Ct. at 1516; In re Murchinson, 349 U.S. 133, 136, 75 S.Ct. 623, 625, 99 L.Ed. 942 (1955); Coleman, supra. See also American Bar Association, Standards for Criminal Justice, 2d Ed., “Fair Trial and Free Press,” Vol. II (Supplement) Standard 8-3.3, p. 8.40, Little, Brown & Co., Boston.
In determining the probability that pretrial publicity may have had a prejudicial *754effect upon the prospective jurors, the following are the relevant factors to be considered, based upon the record of the publicity and testimony of the jurors during voir dire:
(1) The volume and reach of the publicity. Estes, supra, 381 U.S. at 535, 85 S.Ct. at 1629; Mayola v. Alabama, 623 F.2d 992, 998 (5th Cir.1980), cert. denied, 451 U.S. 913, 101 S.Ct. 1986, 68 L.Ed.2d 303 (1981); United States v. Mazzei, 400 F.Supp. 17 (W.D.Pa.1975). See also Ruiz v. State, 265 Ark. 875, 582 S.W.2d 915, 920 (1979); Commonwealth v. Cohen, 489 Pa. 167, 413 A.2d 1066, cert. denied, 449 U.S. 840, 101 S.Ct. 118, 66 L.Ed.2d 47 (1980).
(2) The nature of the pretrial publicity. Irvin, supra, 366 U.S. at 725-27, 81 S.Ct. at 1644-45 (“inflammatory,” “hostile,” “emotionally charged”); United States v. Medina, 761 F.2d 12, 19 (1st Cir.1985) (“pervasive, intense and inflammatory”).
(3) The time elapsed between the adverse publicity and the trial, and the effect that such a hiatus may have had on the minds of the jurors. Patton, supra (four years between adverse publicity and second trial; no prejudice found); Murphy, supra, (seven months elapsed between publicity and trial, but jurors remembered only vaguely or not at all the contents of the publicity; no prejudice); Beck v. Washington, 369 U.S. 541, 556, 82 S.Ct. 955, 963, 8 L.Ed.2d 98 (1962) (nine and one-half months sufficient for impact of publicity to subside).
Because this issue and the relevant cases are so fact bound, in considering this appeal, the record cannot be glossed over but must be considered in detail. In so doing we must keep in mind that both the pretrial publicity and the criminal charges centered on the same issue. The crux of both lay in competing versions as to how Soto-Arrivi and Rosado, the two alleged terrorists, were killed. This incident is popularly referred, even by the trial court in voir dire, as the “Cerro Maravilla incident.” It is principally around this controversy that evolved, commencing in July 1978, the publicity which gave course to this appeal. As will be presently discussed, it was defendant-appellants’ alleged lack of credibility, the very essence of the charges made against them in the present cases, that became the central focus of this pretrial publicity. Because of this, the jury that tried this case, not only was exposed beyond permissible bounds to prejudicial pretrial publicity, but was privy to knowledge not in the trial record. Furthermore, it is clear that the jury used this extra-judicial knowledge in the course of its deliberations. A prime example of the latter is the verdict against appellant Colon-Berrios in Counts 1, 37 and 38, which we have been forced to overturn. It is obvious that the jury in that case used knowledged received ex record in reaching its verdict. That is a situation which is just as likely to have happened as regards the other defendant-appellants and the remaining charges.
Although the publicity concerning the Cerro Maravilla incident commenced immediately after that event took place on July 25, 1978, and continued throughout the trial, it is the publicity that took place after 1980 that more immediately concerns us. Cf. In re San Juan Star, 662 F.2d 108 (1st Cir.1981); Colon-Berrios v. Hernandez Agosto, 716 F.2d 85 (1st Cir.1983). In 1980 elections were held in Puerto Rico. The Cerro Maravilla incident was a principal issue in the political campaign that preceded it. One of the major political parties, the Popular Democratic Party (PDP), promised to reinvestigate the entire matter if it won the elections. The PDP lost the gubernatorial race by the closest margin in Puerto Rican political history, but won a majority of the seats in both houses of the local legislature.
Shortly after the new Senate was sworn in, it proceeded to conduct its own investigation of the Cerro Maravilla incident.35 This investigation culminated with a six month “live” televised hearing which started in June and lasted until December 1983. These proceedings, which have also become known locally as las vistas (“the hearings”), will presently be discussed more in *755detail. For the time being it is sufficient to say that the vistas reached their dramatic climax when Miguel A. Marte (Marte), a television technician who witnessed the shoot-out from a nearby location, and three members of the police stake out team, Carmelo Cruz, Jose Montanez and Cartagena Flores, requested and received immunity from the Senate and the Federal government, and thereafter testified “live” on television that Soto-Arrivi and Dario Rosa-do had been shot by the police during a second volley of gunfire, after they had surrendered and were disarmed. This version was contrary to that of appellants, who steadfastly contended that Soto-Arrivi and Rosado were killed during the original exchange of shots, as part of the officers’ legitimate self-defense.
As a direct result of the evidence adduced in the vistas, the federal authorities also reopened a prior criminal investigation and reconvened a new grand jury, which thereafter issued the indictment in this case, charging conspiracy and various individual counts of perjury and obstruction of justice.
The political campaign for the 1984 election again made Cerro Maravilla a central issue, this time however, with the Senate hearings as the immediate backdrop.
In the meantime this case was progressing below. In the face of urgings by the Government that the case proceed to trial, opposed by defense motions seeking an indefinite continuance because of the pretrial publicity, the trial judge made a crucial ruling on August 22, 1984. See United States v. Perez-Casillas, 593 F.Supp. 794 (D.C.P.R.1984).
The Order of August 22, 1984
This order, which decided the defenses’ motion for continuance, is particularly useful in that it conveniently summarizes the most outstanding events related to the pretrial publicity issue prior to that date. It also serves as the focal point to a determination of that question because it narrows the scope of inquiry to deciding whether the circumstances prevalent on August 22, 1984 had sufficiently ameliorated by February 5, 1985 to permit the empaneling of an impartial jury.
The district court took judicial notice of “the contents of all newspapers of general circulation in Puerto Rico during the period of 1979 to the present directly related to the Cerro Maravilla incident.” It also took notice “that the Senate hearings on the Cerro Maravilla incident ... were televised ... and transmitted by radio.” Perez-Ca-sillas, supra, 593 F.Supp. at 796-797. The court indicated, citing from our own opinions, that:
It would be shunning reality not to recognize that the Cerro Maravilla events were followed by a deluge of publicity which has yet to abate. This much was recognized by our circuit as early as 1981 when it said: “Coming as it did in the midst of a heated debate over the Island’s political future — and on the eve of a closely contested electoral campaign— the Cerro Maravilla incidents attracted widespread popular and political attention.” In Re San Juan Star, 662 F.2d 108, 111 (1st Cir.1981). Again in 1983: “The incident at Cerro Maravilla had and has significant implications and has been the subject of intense media coverage and popular attention.” Colon-Berrios v. Hernandez-Agosto, 716 F.2d 85, 87 (1st Cir.1983).
Id. It then found that “[sjince 1978 the press, radio and television coverage, heightened by the Senate public hearings, has had the cumulative effect of making the Cerro Maravilla the media event of the years 1983-1984. The hearings, undoubtedly, aroused the excitement and the curiosity of a community that was already saturated by the earlier publicity stemming from this incident.” Id. at 798 (emphasis in the original). The court proceeded to enumerate and analyze a plethora of newspaper articles and reports, which I cannot herein reproduce but which are well worth reading if one wishes to acquire a flavor for the nature and extent of the publicity preceding the trial of defendant-appellants. Id. 798-805. Suffice it to merely include some of the district court’s findings:
The reporting of the news, frequently off-course in the objective presentation *756of the facts, contained conclusory, slanted commentaries and subjective opinions of the reporters. The reporting of the testimony of the policemen at the hearings was constantly characterized as contradictory, altered, or belied by other testimony.
Id. at 803.
The community has also been constantly exposed to remarks by respected public figures of the entire political spectrum and by members of the Senate Judiciary Committee proclaiming belief in defendants’ guilt or expressing doubts on the veracity of their testimonies which appeared in newspapers, television and radio coverage ...
Id.
This last finding was reinforced by the quoted statements of various prominent public figures: Miguel Giménez-Muñoz, former Secretary of Justice of Puerto Rico (stated that “the murder of the independen-tistas is ‘unpardonable’ ”), Rafael Hernán-dez-Colón, Governor of Puerto Rico during the years 1972-76, who was re-elected to that post as a result of the 1984 election (characterized the incident as “the summary execution of dissidents and the official lie to hide this from the people”), Hernán Padilla, then mayor of San Juan, (indicated that the murders at Cerro Maravilla have been proven, “Nobody who is certain of what he says needs to invoke the Fifth Amendment”), Calixto Calero-Juarbe, then member of the Senate Judiciary Committee (opined that the “killings” and the coverups were “monstrous acts”), José Grana-dos-Navedo, a New Progressive Party legislator (referred to acts committed by a “handful of policemen,” as “crimes that defy imagination”), José R. Lebrón Velázquez, head of the Puerto Rican Evangelical Council (urged a purge of the Cerro Maravilla offenders), Francisco Aponte-Pérez, President of the Senate Judiciary Committee (said defendant-appellant Pérez-Casillas would tell the truth when faced with incarceration), Miguel Hemán-dez-Agosto, President of the Senate of Puerto Rico (commenting on the Fifth Amendment privilege invoked by defendant-appellants Torres-Marrero and Rios-Polanco stated: “By resorting to such refuge, what they are implying is that if they repeat the testimony that they previously offered to another Grand Jury and the one offered in the civil action for their participation in the Cerro Maravilla incident, they would be exposing themselves to perjury charges”). Id. at 803-805.
The district court’s findings regarding the vistas and their aftermath are of importance:
The subject of most of this news reporting, the Senate televised hearings themselves, enthralled the public and made the Cerro Maravilla incident a conversation piece and a household word.
These hearings were not the usual type of legislative investigation. As they developed, defendants, in effect, stood trial before an entire community and guilt was adjudicated without the constitutional protections afforded a criminal defendant in a court of law and without the safeguards of evidentiary principles____ [W]ith all due respect to the Senate’s exercise of its legitimate investigative function, the Maravilla hearings were conducted in an adversa-tive atmosphere which, nonetheless, lacked the balance and the impartiality of a judicial process where an accused enjoys a presumption of innocence, is entitled to confront and cross-examine witnesses, compel the attendance of witnesses to testify in his favor, an active and effective assistance of counsel and the right to remain silent. These televised hearings ended in a dramatic note after the Senate announced that several policemen present at the Cerro site had been granted immunity and would offer revealing testimony. Before an expectant community, these witnesses revealed, in a testimony filled with emotional overtones, that Soto and Rosado were summarily executed. Their testimonies triggered a massive public reaction reflected in the media. From that moment onward, charges of murder against defendants were constantly voiced and exposed by the media. The Senate investigation moved on to what *757the press termed the cover-up stage, taking for granted the guilt of defendants as expressed by the last witnesses at the hearing.
To this date, the Cerro Maravilla issue remains in the limelight because of constant media exposure.8 This is due in part to the ongoing Senate investigation and the fact that Cerro Maravilla is a major issue in the upcoming elections. Recent political propaganda as pointed out by one of the codefendants, includes a television commercial which shows the corpses of Soto and Rosado with the word “cover-up” superimposed in red ink.
It is illusory to think that this type of publicity is going to wear off as the election day approaches, which is but seventy-six (76) days away____
Id. at 805-806 (emphasis supplied).
Finally, concluding that the totality of the circumstances impeded the holding of a fair trial, the court continued the trial until at least early 1985.
The above, which constitutes the undisputed record of this case, is in marked contrast with the bland treatment given by the majority to these facts.
Events subsequent to August 22, 1984
In analyzing these subsequent events to determine probability of prejudice it is required, as previously indicated, that consideration be given to: (1) the volume and reach of the publicity, (2) the nature of the publicity, and (3) the time elapsed between the publicity and the trial.
I commence with the undeniable proposition that after August 22,1984, the electoral campaign in Puerto Rico continued in crescendo until November 1984. As the district court predicted in its August 22 order, the political controversy regarding Cerro Maravilla continued through at least the electoral period. As will be seen it also continued thereafter. Furthermore, this publicity developed not only in the press, but also on television and radio, as it had prior to the court’s order. A nationwide news program on “60 Minutes” was not only broadcast in Puerto Rico but was also widely commented upon by the local newspapers.
Notwithstanding the suspenseful atmosphere prevalent in Puerto Rico regarding the Cerro Maravilla incident caused by the above, something well known to the Government and on which I shall presently comment, the Government continued to pressure the district court for a trial setting. Finally, on November 20, 1984 the court ordered that the trial commence on February 5, 1985. A timely motion opposing this setting was ruled moot by the district court sans a hearing or specific findings. Another motion for continuance, based on similar grounds, was filed on January 15, 1985. It was again denied on January 18 in a mercurial footnote order, also without a hearing or detailed findings.
The January 15th motion is important because, absent the holding of any hearing or the making of any specific findings by the district court, the 17 page appendix attached to that motion containing references to newspaper reports between October 9,1984 and January 14,1985 is the only evidence in the record of what took place with regards to pretrial publicity between the August 22 order and the commencement of trial on February 5, 1985. I cannot, in the light of this appendix, which I shall presently discuss, as well as other pertinent events to be recounted, dismiss the district court’s failure to hold a hearing or make specific findings, as lightly as is done by my colleagues in the majority who merely say that such a procedure would have been “preferable,” speculating as they do on the assumption “that the judge, a resident of Puerto Rico and the same judge who [decided the August 22 ruling] ... [must have] felt that the climate had *758sufficiently improved to permit a fair trial.” See maj. op., ante at 731. This is putting the shoe in the wrong foot. It is precisely because of the strong findings in the August 22 order that a hearing and specific findings were mandated. If any assumption were to be made by this Court, particularly in view of the supporting evidence presented in the motion as well as the other matters referred to, it should be that the situation found by the August 22 ruling had not changed. Other factors, including later rulings by the district court, bear this out.
As indicated, the appendix to the January 15 motion points to 189 newspaper articles dealing with the Cerro Maravilla incident between October 9, 1984 and January 14, 1985, as well as to related television and radio items. Those references included such headlines as: “Concealment is disclosed,” (El Nuevo Dia, October 15, 1984, p. 3); “Charges of murder filed against eight policemen,” (El Nuevo Día, October 20, 1984, p. 1), with photographs of five of the appellant-defendants; “Today; Hearing regarding Maravilla entrapment,” (El Reportero, October 22, 1984, p. 3); “At the Senate they cried, however at the Court, they were smiling,” (El Vocero, headlines, October 22, 1984); “Entrapment found,” (El Mundo, October 24, 1984, front page); “Maravilla’s Crime was planned,” (El Reportero, October 24, 1984, front page); “More contradictions in Maravilla Case,” (El Reportero, October 30, 1984, p. 2); “Probable cause for concealment charges,” (El Nuevo Día, November 3, 1984, p. 2); “60 Minutes cites Maravilla coverup,” (El Mundo, November 5, 1984, p. 10-B); “The Corruption Pyramid,” (United Citizens Against Corruption, El Nuevo Dia, November 5, 1984, p. 95); “Infamy,” (El Nuevo Día, November 7,1984, p. 39); “Ortiz Molina asks R.H.C. to proceed with Maravilla investigation,” (El Mundo, November 15, 1984, p. 9-A); “Today Maravilla Issue is renewed,” (El Nuevo Día, December 12, 1984, p. 18). The motion also included a clipping from the New York Times (January 3, 1985, p. A14), regarding Governor Hernández-Colón’s inaugural address of January 2, 1985 in which he was quoted as condemning the “entrapment and summary execution of two independence supporters by police at Cerro Maravilla.”
The government’s opposition unabashedly admitted that “[i]t is undisputed that the events which occurred at Cerro Maravilla on July 25, 1978, have engendered substantial publicity.” It insisted, however, that the cure for the publicity was to be found in the voir dire.
On January 28, 1985 defendant-appellants sought reconsideration of the district court’s ruling denying the continuance, calling attention to the fact that “at both the opening session of the Puerto Rico Legislature and [at the swearing in ceremonies of] the new Commonwealth Secretary of Justice ... great official and news media prominence was given to Mr. José Ortiz-Molina and to his version of the events of ‘Cerro Maravilla’.”36 An addendum to that motion included an article in El Re-portero, a San Juan newspaper of general circulation, with a detailed discussion of the voir dire proposed at the pretrial conference held on January 29, 1985. On its front-page was depicted a drawing of the faces of Dario Rosado and Soto-Arrivi, with a superimposed sketch of two kneeling figures being shot by persons with weapons in their hands.
On February 1, 1985, the district court, again without a hearing or specific findings denied the request for continuance. The court instead issued an order seeking “the voluntary self-restraint in the public expression of those who would write off the judicial system in the adjudication of the guilt or innocence of the defendants,” urging “the high public officials of the executive and legislative branches of this Com*759monwealth to be mindful of the fact that the right of each American citizen to a fair trial is an integral part of the Constitution that they serve to defend and uphold.” This statement is, in itself, the clearest admission, absent the specific findings that should have been made, that “something [was] rotten in the state of Denmark.”37
The failure to make these findings, considering the record of this case, should be enough to cause reversal of appellants’ convictions. The speculation that is otherwise required of this court regarding the pretrial publicity issue, in view of the specific findings contained in the August 22 order, is totally unacceptable.
The Voir Dire
Because of the lack of specific post-August 22 findings by the trial court regarding appellants’ allegations of prejudicial pretrial publicity, the voir dire is of particular relevance as a measure of the extent to which such publicity was still fresh in the prospective jurors’ minds. Since the jury in the District of Puerto Rico is “selected at random from a fair cross section” of the residents of that district,38 the testimony received through voir dire is presumptively reflective of the opinion and views of the Puerto Rican community at large.
Two comments about the majority’s statistical analysis of this issue. The first is that I am not as enthusiastic about the quality of the district court’s voir dire as are my colleagues. Although I recognize that the trial judge did take some unusual steps such as engaging in individualized voir dire in an effort to weed out biased jurors, and that she was under great constraints because of the nature and length of the case in question, I find that the voir dire was in general perfunctory, leading and not as incisive as should have been expected considering the massive and pervasive nature of the pretrial publicity. Although the length of time that the voir dire took is impressive, the content of the record is not. Furthermore, because the proposed voir dire was commented upon in detail in the newspaper El Reportero on January 29, 1985, ante at 758, less than a week before the trial commenced, a problem not inquired into by the trial judge, it is more than likely that a substantial number of the jury pool had prior knowledge not only of the Cerro Maravilla incident but also of the voir dire.
Second, I would like to comment on the majority’s statistical conclusions as to the jury composition. I am well aware that different people reading the same record can reach different conclusions, and that this phenomena may explain why my statistical exercise differs in its conclusions from the majority’s. I would point out, however, that even the government concedes to higher figures regarding pretrial publicity exposure by the jury that heard the case, than does the majority. In its brief the government stated the following:
Of the 12 jurors who actually decided the case, 2 indicated that they had been exposed to what can be considered a great deal of media publicity, 4 a moderate amount, and 6 a small amount. As to the Senate hearings, 6 said that they had great exposure, 2 had moderate exposure, and 4 minimal exposure.
Brief for the United States, p. 16 (footnotes omitted). Of course, the latter statistic regarding exposure to the Senate hearings is of crucial importance, as will be later discussed, because any juror who saw those hearings had in effect already “tried” the criminal case once, in addition to being privy to information not admissible at the real trial. See Rideau v. Louisiana, 373 U.S. 723, 83 S.Ct. 1417, 10 L.Ed.2d 663 (1963).
Be that as it may, the following is my statistical analysis of the venires and of the petit jury that tried the case. I emphasize again that the attitudes of the entire ve-nires are important, in addition to that of *760the petit jury, because since we are dealing with presumed prejudice in addition to actual prejudice, a measure of such attitudes in the jury pool is more indicative of the general community’s views than if we limit the inquiry to the petit jury. See Coleman, 778 F.2d at 1490.
A total of 244 prospective jurors were individually voir dired. Of these, 55 were excused without in depth questioning, thus leaving 189 jurors that were questioned with some particularity regarding the pretrial publicity issue.
The record reveals that of this base figure of 189 prospective jurors, 186 (or 98.41%), admitted to having prior knowledge about the facts of this case, about defendants, or about the Cerro Maravilla incident. All of the jurors on the panel that tried appellants fall within this grouping: Jurors No’s. 13, 14, 64, 79, 88, 108, 130, 145, 148, 162, 169, 227, and alternates 113, 120, 176, and 220.
A total of 160 prospective jurors, that is 84.4% of the base group, admitted to having received knowledge through the newspapers. This included panel members No’s. 13, 14, 64, 79, 88, 108, 130, 162, 169, 227, 245 and 248, and alternates 113, 120 and 176.
A total of 169, or 89.4% of the base group, admitted to having received knowledge via television accounts. All of the members of the panel and all of the alternates were in this grouping.39
Ninety-two prospective jurors admitted to having received information through the radio. Only four regular jury members, No’s. 169, 227, 245 and 248, and two alternates, 176 and 270, admitted to this grouping.
A total of 141 prospective jurors, 74.6% of the base group, watched or heard the Senate hearings. Eleven of the twelve pet-it jurors (No’s. 13, 14, 64, 79, 88, 108, 162, 169, 227, 245, and 248) and all four alternates (113, 120, 176 and 270) fall in this category.
I have indicated that prior knowledge about a case does not necessarily disqualify a prospective juror. See Patton, supra, and other cases cited ante. However, the existence of prior knowledge does raise a presumption of possible bias, Irvin, supra, 366 U.S. at 728, 81 S.Ct. at 1645, requiring closer scrutiny to determine not only the existence of opinions but additionally to conclude whether the circumstances surrounding the formation of the juror’s views support a finding that they can reasonably be set aside. As previously indicated, the inquiry made in voir dire was pro forma and tainted by the juror’s prior knowledge of the voir dire. An analysis of the quantity and quality of the pretrial information admittedly known by the panel is relevant to such analysis.
This analysis shows that 143 prospective jurors, that is 75.6% of the base group, admitted to substantial familiarity with the facts, issues and evidence to be presented in the trial of this case. Within this grouping are panel members No’s. 64, 79, 88, 108, 130, 162, 169, 227, 245 and 248, and alternates 113, 120, 176, and 270. The nature of the information known by jurors is important. For example, prospective jurors that admitted to having knowledge regarding key witnesses included: Jurors No’s.: 2 (Ortiz-Molina), 31 (Ortiz-Molina, Marte), 41 (González-Malavé), 50 (Cartage-na), 52 (Ortiz-Molina, Marte), 56 (Marte), 62 (Marte), 68 (González-Malavé, Marte), 69 (González-Malavé), 71 (Ortiz-Molina), 82 (Ortiz-Molina), 84 (Ortiz-Molina, Marte), 92 (Ortiz-Molina), 103 (Figueroa-Vivas, Quiñones, Colton), 108 (Ortiz-Molina), 113 (Marte), 120 (Marte), 155 (Cartagena), 175 (Marte), 218 (Ortiz-Molina), 219 (Ortiz-Molina; “I remember everyone who testified there”), 226 (Marte), 234 (Ortiz-Molina, Carmelo Cruz, González-Malavé), 238 (González-Malavé), 245 (Marte), 250 (Cart-agena, González-Malavé). Knowledge re*761garding important participants in the Senate hearings: Jurors No’s. 113 (Sen. Hernández-Agosto, chief counsel Rivera-Cruz), 117 (Rivera-Cruz), 146 (Rivera-Cruz), 153 (Rivera-Cruz), 157 (Rivera-Cruz), 169 (Rivera-Cruz), 171 (Rivera-Cruz), 226 (Rivera-Cruz), 2 (Rivera-Cruz), 3 (Rivera-Cruz), 31 (Rivera-Cruz), 118 (Rivera-Cruz). Knowledge regarding individual defendants or the alleged victims: Jurors No’s. 52 (the defendants), 3 (all the defendants), 10 (defendant Torres-Marrero), 39 (Dario Rosado and Soto-Arrivi), 56 (defendant Pérez-Casillas), 50 (defendants Pérez-Ca-sillas and Quiles-Hernández), 55 (Dario Ro-sado and Soto-Arrivi), 69 (Dario Rosado and Soto-Arrivi), 84 (Soto-Arrivi and Dario Ro-sado), 86 (“I remember many of the policemen”), 90 (Soto-Arrivi), 96 (defendant Quiles-Hernández), 117 (defendant González-Pérez; this juror pointed out González-Pérez at defendants’ table), 121 (defendant Pérez-Casillas), 157 (defendant Torres-Marrero), 167 (Dario Rosado), 175 (Soto-Arrivi), 185 (defendants Quiles-Hernández, González-Pérez, and Pérez-Ca-sillas), 203 (identified the defendants in court), 250 (defendants Pérez-Casillas and González-Pérez, the latter of which was identified in court), and 278 (defendant Pérez-Casillas).
We cannot here reproduce all of the instances of detailed knowledge of evidence by jurors, brought out in voir dire. It was, however, overwhelming. Suffice it to point to the more salient examples.40
Juror No. 2: channel 7 tower, and I see there the boys, when they was dead, everything that they pass in the television news, and____
THE COURT: [Do] you know anything at all about the facts of this case that is going to be tried?
Juror: Well, who doesn’t know about Maravilla? I have read it, I see it on T.Y., I speak with other persons ... THE COURT: What do you remember seeing concerning the defendants on television, try to remember.
Juror: Well, how they, these young men was was go there to Cerro Maravilla located where they was the tower. I see in the television the incident, the tower,
Juror No. 52:
Well, I remember when, I can’t remember the name of the driver [Ortiz-Molina] when he give his testimony, and ...; And the other guy, the guy who works in channel 7, I can’t remember the name now [Marte]; Well I know two guys [were] killed in Cerro Maravilla, and what everyone knows; Well, I remember that, two guys was killed in that place and ... [they were killed] by the police.
Juror No. 55:
That the police ... circled them and killed them ... The two boys, the young boys, Arnaldo and the other one, and Carlos Soto-Arrivi.
Juror No. 59:
THE COURT: Have you read anything about this case or concerning the defendants or the Cerro Maravilla incident in the newspapers of Puerto Rico?
Juror: Definitely, I think everybody has. He remembered the testimony at the Senate hearings, “About how they slain the victims, how they were supposedly shot”.
Juror No. 62:
Well, that the officers killed these guys with no reason to kill them.
Juror No. 82:
Well, my opinion is from the time that the driver [Ortiz-Molina] who took the two men to Cerro Maravilla, say that they were pleading ... [f]or not to be killed.
Juror No. 84:
[I remember] ... when they interviewed Marte ... and the driver [Ortiz-Molina], and maybe two or three other persons ... [W]hen he [Marte] cried, and he told what happened and everything ... about how many shootings he heard, and what *762they told him ... [t]he policemen, they told him not to talk____
Juror No. 96:
When the first investigation was made by the policemen, after that the case was closed. Okay, the second investigation made by the Senate of Puerto Rico, I read another version, another situation, came to my mind. Well, in that investigation I read, I heard that those people, the two boys that was in Cerro Maravil-la, they were still alive, under what circumstances they died, I don’t know ... After that I made my own personal question, if they were there still alive, why they were not arrested, or something.
Juror No. 103:
... I remember that two young men were taken to Cerro Maravilla by a detective, undercover [González-Malavé], and they took a driver [Ortiz-Molina], a taxi driver, and they went to Cerro Maravilla, and they met the police there and had trouble there, they started shooting, and they the two young men were killed; [I expect defendants to testify] [b]ecause they [defendants] should say the truth of what happened, what really happened in Cerro Maravilla.
Juror No. 105:
The part that I remember was the way the killing of these people, because I don’t like; that because for make my decision on that.
Juror No. 109:
That two young pro-independence young men were killed and that there have been many versions of what happened exactly. People involved who have said one thing at one time and later changed their story.
Juror No. 112:
Well, that two persons were killed by policemen. Well that these two persons, at the time of the killing were in defense,41 they were not armed at the time of the killing____
Juror No. 117:
I would say it is a case that is involved, some members of the police, and the Senate tried to prove that, and that is the main thing ... [F]or me, my opinion the Senate is trying to prove that the Government or some people working for the government did something wrong.
Juror No. 122:
Well, I think everything has been said at the Senate hearing about the case of Maravilla____
Juror No. 124:
... [Everybody ... comment about the Cerro Maravilla ... How they took two guys, how they were killed____
Juror No. 130:
Well, I know that from the hearings, all the previous case, or the events that happened there changed, that is what I can tell you about the hearings. You know that everything changed ... Well, what happened over there at Cerro Maravilla, the way that the people died____ Well at the first time I recall that they said that those two died in a shooting. From the hearings they say that they died in another form, not in exchanging shots.
Juror No. 175:
I would say that two persons died and the persons say there was an entrapment; [Marte’s] name was mentioned, by all people in my office____ I believe that he was the person in the [T.V.] station.
Juror No. 188:
... The first thing that I heard was something happening up in Cerro Mara-villa, where a couple of independentistas were gunned down, when they were trying to explode the communication tower. A couple of weeks later, or months later, something came in the news that there was something wrong with the official version, then nothing happened for a couple of months or year, then all of a sudden all of this these things exploded. That there was a cover up and all that____ Well, apparently there is a dis*763crepancy between the official version and what actually happened____
Juror No. 213:
I don’t remember his name [a policeman], I know he was saying he was innocent and it came out to be he was guilty ... He was saying that he wasn’t directly involved in what had happened, and then one of the other policemen some talks came out to be that he was there, or something like that.
THE COURT: In your mind ... do you associate that person ... with this case? Juror: Yes, because it is the same case. Juror: Well, as I understand, some teenagers went up there to destroy some electrical poles, or something to do with communications, and they were stopped by the police, and the police interfered with them and didn’t really give them a chance to defend themselves ... the police arrived and without notifying or identifying themselves or giving these people a chance or, identifying themselves as police, well they just shot them. Juror No. 227:
Well, I heard that a group of policemen took these two guys to Cerro Maravilla, and over there they killed them, that is what I heard ... I heard also that they give false information to the people that was investigating, the judge and the attorney.
Juror No. 234:
Cerro Maravilla was just like it was described on the way the television described it during the Senate investigation.
Juror No. 245:
... [T]wo members of the Independence party went to Cerro Maravilla mountain with the purpose to destroy one or two communicate towers. Located in this place. I know also that an undercover agent infiltrated in the members of the Independence party ... The undercover agent had informed all of the information that he know, that he discover to the first lieutenant and sergeant that supervise their work. Then the two youngest boys member of the Independence party went to the Cerro Maravilla ... And that place was situated in many agents in different position to observe when the two boys come ... to destroy the towers ... then after that information all I know is that the two members of the Independence party have guns and when the Police agent advised the youngest boys to quit and halt. And one of them perhaps two take out guns and try to shot to the agents and that place establish a fight shooting fight between two both sides Police agents and the two members of the Independence party ... And the two youngest boys died in the firing shooting fire and then the things the general comments in different form to analyze act in this place. And then after the witness Marte [Marte] who declare ... he said that the agent killed the two youngest boys when the boys are on the ground. And without arms and kneeling, were kneeling for the purpose for the defense. Lying on the ground and they began to push and to kick the boys and to hit them with arms with guns and with different arms and to take to punish the boys.
Juror No. 258:
... [T]he way ... they killed the two guys that were over there ... that they were pushed and they were kicked with their feet and after that they said they have to be killed, something like that.
Juror No. 271:
Well, I have heard that there were two guys that were going to bomb a tower and they were brought there by a guy named ... González-Malavé, and as I have heard, the policemen that they say they killed them, in the first place they say there was a shooting but they later, they found that there was no such a shooting; that they killed them in cold blood. That was it. I found out that instead of shooting, it was cold-blooded murder____ I saw it in the case. It was shown on T.V.
THE COURT: Are you referring to the Senate hearings?
Juror: Yes, ma’am.
*764A total of 81 prospective jurors (or 42.85% of the base group) either admitted to having an opinion as to the guilt or innocence of appellant defendants, or such a conclusion is clearly surmisable from the nature of their answers. This group included seven of the jury panel that heard the case (No’s. 79, 88, 108, 130, 227, 245 and 248) and one alternate member (No. 270).
Again, we reproduce only the more salient examples of jurors’ stated opinions during voir dire:
Juror No. 5:
The only belief I have is that it was always wrong.
Juror No. 11:
Well, I live in Puerto Rico and the persons that live here say no, they are not talking the truth____
Juror No. 29:
The Senate hearing gave a clear picture of what happened over there.
Juror No. 31:
Well, this case is, they committed perjury, I really can’t explain, but I don’t have any opinion.
Juror No. 52:
... [Wjhat everyone knows ... Well, when I saw or read the news, well, I got my own conclusions, and the reason I came here in the case ... I got my opinion from the news ... I think that the last two persons was murdered.
Juror No. 62:
... [T]he police officers killed these guys with no reason to kill them.
Juror No. 72:
... [Tjhe results [of the investigation] were shocking. It sort of, you lose faith in mankind sometimes, when you hear things like this. I thought the guilt was proven, like I told you, I thought that [the Senate hearings] was the trial. I think that it was a general, people were shocked in general____
Juror No. 82:
Well, I have discussed much of the case with my family, and with my fellows at work, and we almost have a unanimous opinion about the case.
THE COURT: What has been the basis for your discussions? What has been your sources of information?
Juror: The newspapers, the radio and the T.V.
Juror No. 84:
I believe in the guilt of some.
THE COURT: On what do you base that opinion?
Juror: On the facts that I heard ... on the television.
Juror No. 86:
Well, the way I think is that somebody killed them, who did the shooting, I’m not sure, because I wasn’t there. But I mean somebody, some of them are guilty, I know somebody shoot.
Juror No. 96:
Well, in the first investigation, by 1978,1 would say, was one version, and the second, made by the Senate of Puerto Rico, was the other version. Now, listening to the second investigation at the Senate, I made my own thing in this case ...
Juror No. 104:
... [T]o tell you the truth, I have been following this case, in T.Y., since the beginning, and I read in the paper almost everyday, so I think I have my decision already made.
Juror No. 112:
I just spoke with my father about the prejudice ... [p]erjury I mean ... I said if they committed peijury, well, that was wrong on my opinion, that was not good ... [H]e think that the police committed peijury ... [B]ased on the public hearings, well I think they committed perjury ... [t]hree or four [of them] ... Based on what I saw on T.V., because of the hearings.
Juror No. 142:
It is a moral problem of mine.
THE COURT: What is your moral problem?
Juror: That I think that the persons must have principles and tell the truth.
*765THE COURT: What does that have to do with this case?
Juror: Well, what I have read and heard, I think that it was a problem, because the persons don’t, I think, that is what I think____
THE COURT: Who are those persons, who do you refer to?
Juror: The group.
THE COURT: What group?
Juror: The police.
Juror No. 120:
Well, I think that I will be prejudiced____
Juror No. 121:
Yes, I have a formed opinion____ It is an opinion on guilt, yes____ I had the opinion, I have to be sincere, when the incident occurred, I always had the feeling that something was wrong ... [since 1978, 1979] and the hearings, the second part of the hearings that what I saw on video cassette, was like a confirmation of my feeling about the case.
Juror No. 122:
Well, I have my own personal opinion ... THE COURT: On what do you base that opinion?
Juror: On the hearings in the Senate, which brought out the truth about what happened at Cerro Maravilla ... [T]he truth that has been held for such a long time, and it finally came out.
Juror No. 125:
Yes, I have an opinion [as to guilt or innocence].
Juror No. 150:
... I think that some of them are lying, and some people did force others to lie____
Juror No. 171:
Some persons commit, assassinate to them.
Juror No. 174:
Well, I think that some of what I heard,
that it was wrong____
Juror No. 185:
THE COURT: What opinion do you have?
Juror: Well, that the persons who were killed there were killed unjustified. It
wasn’t a murder that should have been realized____ I am afraid that I have some opinion regarding the incident itself, as it came out in the Senate ... I believe there was two murders there ... As far as I can see, and as I understand it, the police involved in that incident had the opportunity to arrest the suspects, and I think they had it under control, until somebody decided they had to be killed.
Juror No. 213:
It could be that I am influenced, from what I heard in the news ... Well, I believe that a person like myself is influenced, by what I have heard on the news, radio, newspaper, comments ... Well, I would take one of the sides, without really hearing what is said in court. I would hear, but I would already have an idea formed.
Juror No. 224:
I believe there was a murder there____
Juror No. 226:
Like what happened there is like a murder happened there ... that two persons were ... entrapped in a place without defense ... But about the evidence that was shown, a number of persons can conclude that happened, what everybody knows ... Personally, I have a tendency to think that [they are] maybe guilty.
Juror No. 227:
... I heard that the information they gave the judge was not really what happened at Cerro Maravilla ... Well, I may have some idea, according to what I saw in television.
THE COURT: What idea may you have? Juror: Well, that maybe there something strange happened over there at Maravil-la, and the people never knew the real truth of what happened over there.
Juror No. 242:
Well, I guess they could have gave the boys an opportunity at Maravilla ... [T]hey should have arrested them and not killed them, you know.
Juror No. 253:
*766There were entrapment, the obstruction in general ... What I heard is that the whole truth at the beginning was not told ... After the Senate hearings so many declarations was change____
Juror No. 264:
... [A] murder was committed there ... There was committed a murder and that the persons that were in the place lied about what happened there ... [T]he policemen that were there ...
THE COURT: On what source of information did you base your opinion on? Juror: On the information that was presented [at the Senate hearings].
Juror No. 265:
THE COURT: ... I am asking you if you have an opinion on the guilt or innocence.
Juror: Guilty.
Juror No. 270:
THE COURT: Could you read an impartial verdict based only on the evidence without taking into consideration the extensive publicity that the case has had? Juror: No.
Juror No. 271:
... I found out that instead of shooting it was cold-blooded murder.
Juror No. 278:
THE COURT: And is that opinion an opinion on the guilt or innocence?
Juror: I think they killed them. They killed them.
Other incidents during the course of voir dire
While voir dire proceeded with the jury still unsequestered, media coverage continued unabated, a fact commented upon by the trial judge in various ways.
On February 7, 1985, the third day of jury selection, defense counsel for Colón-Berrios called the court’s attention to the fact that the voir dire was being made public and “was a lead story in one of the major daily newspapers.” The court observed that “this voir dire is being read by everybody.” On the following day, even after disqualifying a juror, the judge opted to continue the entire line of voir dire questions “because the press is speculating.”
On February 18, 1985 the tenth day of jury selection, Moreno-Morales’ counsel moved the court for a mistrial or continuance on the basis of an article published in El Reportero. This motion, which was joined by the other appellants was denied in open court without further ado. When the motion was renewed the following day, with similar results, the judge indicated: “I wish to ... remind the attorneys that each juror is appraised that he or she is not to read the newspapers or watch news or listen to the radio, anything about Cerro Maravilla. I give that admonition to each juror that passes through this court. See, I cannot be pinpointing every time there is something in one of the newspapers, because I will be adding an endless list of things. I did add that concerning the Governor of Puerto Rico, because there was no way really that a potential juror could know that the Governor’s message to the Legislature, which takes up multiple subjects, would focus on anything having to do with Cerro Maravilla ...” (Emphasis added).
The Governor’s State of the Commonwealth Address
As previously indicated, in his inaugural address on January 2, 1985, an address which received live television coverage throughout Puerto Rico as well as wide press and radio coverage, the newly elected governor made various references to the Cerro Maravilla incident, including a condemnation of the “entrapment and summary execution of [the] two independence supporters by police at Cerro Maravilla.” These statements were made barely one month before the commencement of the trial on February 5, 1985.
The district court’s remarks regarding the Governor of Puerto Rico, however, referred to an episode which took place on the night of the 14th of February, the ninth day of the selection of the jury, as part of the Governor’s annual State of the Commonwealth speech before a joint session of the Legislature. This event also received *767news coverage throughout the Island, including live television and radio attention. It was front page news in the newspapers that appeared throughout Puerto Rico on February 15.
The Governor, during the course of his speech, stated that Soto-Arrivi and Dario Rosado had been the “victims of official acts of violence.”42 He expressed sympathy for the families of the deceased and indicated that he would introduce a special bill in the legislature to compensate them for their losses.
On the day following the speech, all appellants moved for a finding of contempt against the Governor, claiming a violation of the court’s order of January 18, 1985. They also moved for mistrial, alleging in substance three basic points: (1) that prospective jurors, even if they followed the court’s instructions not to expose themselves to Cerro Maravilla publicity, had no way of knowing beforehand that this would be a topic included in the Governor’s speech; (2) that because of the nature and circumstances of the speech, there was great likelihood that prospective jurors, including those as to whom voir dire had been completed, had been exposed to the Governor’s remarks regarding Cerro Mara-villa; and (3) that the Governor’s speech amounted to an official statement that defendant-app ellants were guilty.
The court denied both motions, ruling that the Governor was not covered by the order of January 18th, and opting on the second point to inquire in the voir dire regarding juror exposure to the Governor’s speech. Those jurors already questioned would be recalled for questioning regarding their possible post-wnr dire contamination.
Fifty-three prospective jurors admitted to having seen, heard or read the Governor’s address. These included three of the jurors who actually heard the case (No’s. 130, 227 and 245) and one alternate (No. 176). The testimony of several of the prospective jurors on this issue is of interest:
Juror No. 29:
... I heard he was recommending the legislature to some legislation about compensating the victims of the persons that died in Cerro Maravilla ... I think it was a mistake on the Governor to make such a recommendation to the legislature ... I think that the Government should wait till the cases that are being here in the court, should be resolved.
Juror No. 55:
... [Tjhat he was going to compensate the families for the death of the boys ... Well, I think he was not supposed to talk about that, because he knows right now is a trial.
On the eighteenth day of trial, February 28, 1985 the jury was finally empanneled, and forthwith sequestered.
Conclusions regarding the pretrial publicity issue
From the record of the publicity and the voir dire it is clearly established that its volume and reach were all-encompassing. The issues surrounding this case received massive media attention throughout the District of Puerto Rico, commencing immediately after the Cerro Maravilla events took place in 1978, and continuously there*768after until the jury was empanneled in mid-February, 1985.
The notoriety of Cerro Maravilla reached such proportions that it became a popular pastime to visit the scene of the incident. For example, Juror No. 169, who sat on the panel that decided appellants’ fate, visited Cerro Maravilla with his wife and children about six months prior to the time of his voir dire. When he arrived there were so many cars he could not drive in. He found a grotesque circus-like spectacle, with “music [playing and] people dancing in the main road.” Hot dogs were for sale as well as “[T-]shirts ... [with] the picture of Hector Rivera-Cruz [chief Senate investigator].” 43
The evidence also abundantly proves the “pervasive, intense and inflammatory” nature of this publicity. Cf United States v. Medina, 761 F.2d at 19. The very issues tried before the district court were first litigated in the news media and, more specifically, in the televised vistas. In this first “trial” before the populace, appellants were publicly branded as murderers and perjurers, a viewpoint repeatedly echoed by the news media and by exalted community representatives. This continued up to and including the time of trial.
The passage of time is irrelevant in this case, because there was no hiatus in the barrage of pretrial publicity. It continued unabated for eight years, up to the trial of appellants. We cannot discount the cumulative effects that eight years of unremitting publicity had on the conscious and unconscious attitudes and opinions of those subjected to its influence. See generally Irvin, Public Opinion and Propaganda, Crowell Company, New York (1950); Goggin & Hanover, Fair Trial v. Free Press: The Psychological Effect of Pre-Trial Publicity on the Juror’s Ability to be Impartial; A Plan for Reform, 38 So.Cal.L.Rev. 672, 676-83 (1965); Surette, supra, at 20-21,36-37, 127, 153-56,247-49; Hennessy, supra, at 305-06, 313-14; Graber, Crime News and the Public, Praeger Publishing, New York (1980), pp. 26, 28-29,40-42,50-51. See also Padower-Singer, Singer & Singer, Legal and Social-Psychological Research on the Effects of PreTrial Publicity on Juries, Numerical Makeup of Juries, Non-Unanimous Verdict Requirements, 3 Law & Psychology Rev., pp. 71, 75-76 (1977); Kline & Jess, Prejudicial Publicity: Its Effect on Law School Mock Juries, 43 Journalism Quarterly, pp. 113-114, 116. Although the vistas, with their reenactment of the Cerro Mara-villa shoot-out and the adverse testimony of Marte and the unindicted co-conspirators, took place in the later half of 1983, the voir dire testimony of the prospective jurors makes it clear beyond reasonable doubt that its dramatic impact was still fresh in the minds of the venire. Even as late as February 28,1985, the district court, in ruling on a “Jencks” motion indicated that “[o]ne must not forget that ... the abundant pretrial publicity and televised investigation surrounding this case was undoubtedly harmful to defendants in the sense that they were tried by the Senate and the media without the due process safeguards afforded to any defendant ...” Furthermore, from the nature of the voir dire answers it is impossible not to conclude that a general opinion prevailed regarding appellants’ guilt or innocence.
This jury, with its intimate knowledge of the case, would have made an ideal jury in England during the Middle Ages. See 3 W. Blackstone, Commentaries 375. But that notion of what a jury should be “was explicitly rejected by the Sixth Amendment provision that a defendant is entitled to be tried by an ‘impartial jury’.” Gannett Co. v. DePasquale, 443 U.S. 368, 385, 99 S.Ct. 2898, 2908, 61 L.Ed.2d 608 (1978). If to this we add the Governor’s speech, taking place in the middle of perhaps the most delicate stage in the process, the jury selection, we should forcefully conclude that there existed a probability of prejudice by reason of the pretrial publicity.
*769At first glance, it would appear that Patton v. Yount, supra, presents a difficult hurdle for appellants to overcome. In that case the voir dire showed that all but 2 of the 163 veniremen had heard about the case, and that 126, or 77%, admitted they would carry an opinion into the jury box. Patton, supra, 467 U.S. at 1029, 104 S.Ct. at 2887. Furthermore, 8 of the 14 jurors and alternates actually seated admitted that at some time they had formed an opinion as to defendant’s guilt. Id. The Court of Appeals overruled the trial court’s finding of impartiality, holding that under Irvin, supra, the adverse pretrial publicity had created a presumption of prejudice which overcame the jurors’ claims of impartiality. Id. at 1031, 104 S.Ct. at 2888. In reversing, the Supreme Court indicated that the Court of Appeals had failed to apply the appropriate standard of review for overturning the trial court’s findings of impartiality, which the Court ruled was a question of “historical fact.” Id. at 1036, 104 S.Ct. at 2891. Such a finding could only be reversed on appeal for “manifest error.” Id. at 1031, 104 S.Ct. at 2889.
The Court then proceeded to enumerate the factors present in Patton, which in contrast to Irvin, prevented a finding that the district court had committed manifest error. In Patton, when defendant was first tried in 1966, there existed extensive adverse publicity and a sense of outrage in the community. However, defendant’s second trial occurred four years later, in 1970, “at a time when prejudicial publicity was greatly diminished and community sentiment had softened.” Id. at 1032, 104 S.Ct. at 2889. In support of this conclusion the Court pointed to the fact that in the year and a half preceding the commencement of voir dire, each of the two county newspapers had an average of less than one article per month related to the trial; that even then, most of the articles that appeared were brief announcements related to trial dates and scheduling; and that the transcript of the voir dire not only showed the sparse nature of the publicity and minimal public interest in the second trial, but also that the lapse of time had softened or effaced previously held opinions. Id. at 1032-33,104 S.Ct. at 2889-90.
Those circumstances, ruled the Court, contrasted with the Irvin situation, where there had existed “during the six or seven months immediately preceding [that trial], 'a barrage of newspaper headlines, articles, cartoons and pictures ... unleashed against [the defendant]’.” Id. at 1032, 104 S.Ct. at 2889.
There is no question but that the present situation more closely resembles that faced by defendant in Irvin, than that in Patton.
To begin with, as I have previously indicated, the evidence is clear that in the present case the prejudicial publicity una-batedly pursued appellants for 8 years and into the trial. The appendix to the January 15, 1985 motion for continuance alone points to 189 newspaper articles dealing with the Cerro Maravilla incident in the period since October 9, 1984. To this we must add at a minimum the Governor’s inaugural speech on January 2, and the critical State of the Commonwealth Address in the middle of voir dire on February 14, 1985. In contrast to Patton, the voir dire record shows that the jury in this case was still fully cognizant of Cerro Ma-ravilla and of the “first trial” of appellants before the television cameras of the Senate of Puerto Rico. As the district court indicated:
As [the hearings] developed, defendants, in effect stood trial before an entire community and guilt was adjudicated ...
Perez-Casillas, supra, at 805.
The majority emphasizes that in Patton, Tl% of the venire members had an opinion as to defendant’s guilt or innocence, while in this case, even if my statistical analysis is accurate, only 42.85% of the venire is so contaminated. See ante at 735 n. 12. There is no question that such a distinction between the Patton and the present situation exists. But focusing on such a distinction misses the forest for the trees. The whole point of this exercise is, that when the pretrial publicity reaches a certain level, there is a presumption of prejudice irrespective of jurors’ answers. Holbrook v. Flyns, supra; Coleman v. Kemp, su*770pra; Delaney v. United States, supra. Statistics are then irrelevant, because regardless of whether the jurors claim they have or have not opinions, or whether they say they will put them aside, the risk of trying defendants before jurors so exposed is too great. As I have indicated the publicity surrounding the present case establishes a situation clearly distinguishable from Patton.
The present situation is more akin to Rideau v. Louisiana, 373 U.S. 723, 83 S.Ct. 1417, 10 L.Ed.2d 663 (1962), wherein defendant’s act of confession was broadcast over the local television station. I find the majority’s attempt to distinguish that case from the present situation totally unconvincing. In overturning defendant’s conviction in the face of prejudicial pretrial allegations, the Court stated:
For anyone who has ever watched television the conclusion cannot be avoided that this spectacle, to the tens of thousands of people who saw and heard it, in a very real sense was [defendant’s] trial — at which he pleaded guilty to murder. Any subsequent court proceeding in a community so pervasively exposed to such a spectacle could be but a hallow formality.
Id. at 726, 83 S.Ct. at 1419 (emphasis in original).
The transcript of the voir dire in the present case shows not only that the veniremen were fully aware of the evidence presented at the “first trial” in the Senate, but some of them actually believed that the Senate vistas were a trial.44
As previously indicated, I am concerned also with a related matter, posed by the Court in Gannett Co. v. DePasquale, 443 U.S. 368, 378, 99 S.Ct. 2898, 2904, 61 L.Ed.2d 608 (1978), in the context of publicity concerning a suppression hearing:
Publicity concerning pretrial suppression hearings such as the one involved in the present case poses special risks of unfairness. The whole purpose of such hearings is to screen out unreliable or illegally obtained evidence and insure that this evidence does not become known to the jury. Publicity concerning the proceedings at a pretrial hearing, however, could influence public opinion against a defendant and inform potential jurors of inculpatory information wholly inadmissible at the actual trial.
The danger of publicity concerning pretrial suppression hearings is particularly acute, because it may be difficult to measure with any degree of certainty the effects of such publicity on the fairness of the trial. After the commencement of the trial itself, inadmissible prejudicial information about a defendant can be kept from a jury by a variety of means. When such information is publicized during a pre-trial proceeding, however, it may never be altogether kept from potential jurors.
Citations and footnotes omitted. As previously alluded to, one of the problems faced by appellant-defendants was an apparent supplementation by the jury of facts not in the record. In this respect, it should be remembered that eleven of the twelve panel members, and all four alternates admitted having watched or heard the Senate hearings.
The political prominence of Cerro Mara-villa, as evidenced by its electoral importance as well as its being the subject of island-wide speeches by the Commonwealth’s chief executive, are in sharp contrast with the situation in Patton. Last, but not least, the volume of press attention, both before and after August 22, 1984, also show a dissimilar factual setting to Patton, with this case receiving a tremendous amount of coverage in contrast to Patton. When all of this is taken together with the findings of the district court in its August 22, 1984 order, see ante at 755-57, particularly regarding statements made against appellants by prominent Puerto Rico community and religious leaders, ante at 755-56, I find the majority’s conclusion that a quasi-benign attitude existed in the “Puerto Rico public” towards *771appellants to be nothing short of remarkable. See ante at 736-737.
From the totality of the circumstances it must forcefully be concluded “that the pretrial publicity was so pervasive, intense and inflammatory as to produce a ‘trial atmosphere utterly corrupted’ ” by this publicity. United States v. Medina, 761 F.2d 12, 19 (1st Cir.1985).
I reach this conclusion even in the face of the district court’s efforts to preserve an atmosphere appropriate to a trial in which citizens’ liberties were at stake. Notwithstanding such efforts, there comes a point when only so much can be expected from the efficacy of voir dire45 Sheppard, supra, 384 U.S. at 351, 86 S.Ct. at 1516; Irvin, supra, 366 U.S. at 728, 81 S.Ct. at 1645. The propriety of a trial court’s acceptance, at face value, of jurors’ denials of bias also has its limit. This limit is surpassed when circumstances such as have coalesced in this case take place. As observed by this court in Delaney v. United States, 199 F.2d 107, 112-13 (1st Cir.1952):
One cannot assume that the average juror is so endowed with a sense of detachment, so clear in his introspective perception of his own mental processes, that he may confidently exclude even the unconscious influence of his preconceptions as to probable guilt, engendered by a pervasive pre-trial publicity.
In view of its findings in its August 22, 1984 order and the events that transpired thereafter, the trial court committed manifest error by not continuing the trial. Id.
In so ruling I cannot overlook the fact that this error was induced at least in part by the government’s insistence that the court set the case for trial, even after the findings in the August 22 order, and while the electoral process in Puerto Rico continued full blast. Unless the government sought to gain advantage from the effects of the pretrial publicity, its insistence on an immediate trial is particularly incomprehensible if we consider the government’s admission during oral argument that its case would not have been prejudiced in any way by a continuance of even up to a year’s duration. This is a position in marked contrast to that taken by the government before the district court. It would appear that in its eagerness to win convictions, the government lost sight of the affirmation of the Supreme Court in Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 1196, 10 L.Ed.2d 215 (1962) to the effect that: “Society wins not only when the guilty are convicted but when criminal trials are fair; our system of the administration of justice suffers when any accused is treated unfairly. An inscription on the walls of the Department of Justice states the proposition candidly for the federal domain: ‘The United States wins its point whenever justice is done its citizens in the courts.’ ”
Failure to seek a change in venue
The majority, although not directly hanging its hat on this point devotes sufficient attention to it to warrant a response. Without quite deciding the issue, the majority implies that defendant-appellants’ failure to move for a change in venue affects their pretrial publicity claim, or at least “is significant.” See ante, at 739.
In my view what is significant is why this was not done and why the failure to so move is in any event irrelevant.
This Court is at least partially responsible for defendant-appellant’s failure to move for a change in venue. Our decision in In re San Juan Star Co., 662 F.2d 108 (1st Cir.1981) cannot be as lightly treated as is done by the majority. That case involves the civilian counterpart of the present criminal case. See also Colon-Berrios v. Hernandez-Agosto, 716 F.2d 85 (1st Cir.1983). That action involved a suit by the relatives of the two suspected Cerro Maravilla terrorists alleging violation of their federal civil rights by, among others, the present appellant-defendants. At the request of the civilian defendants the district court issued a protective order to prohibit dissemination to the news media of *772material discovered through depositions taken in that proceeding. The district court determined that this order was necessary because “the amount of publicity being generated would make it ‘difficult if not impossible for the defendants to obtain an impartial jury’.” Id. at 116. In upholding the district court’s ruling, we said:
[I]t is clear that the court found at least a reasonable likelihood of a material harm to defendants’ right to a fair trial. We think this conclusion well-supported by both the massive amount of publicity undisputably attending this case and by the emotionally-charged nature of the trial itself ...
Id. at 117. This court answered a challenge of overbreadth in the protective order by saying that:
[G]iven the probability that any additional publicity of deposition contents would be damaging to defendants’ fair trial rights ... we think this arguable over-breadth alone insufficient to invalidate the court’s order.
Id. (Emphasis in the original). It is important to keep in mind, that at the time of this pronouncement by this court, the televised hearings had not even begun. I therefore fail to see how, if in 1981, this court ruled that any additional publicity to mere deposition contents was damaging to defendants’ rights in a civil trial, a similar result is not mandated for a criminal trial commencing in early 1985, after the televised hearings of 1983, the election of 1984 and the other incidents previously recounted, which really generated massive publicity-
More directly on the change of venue issue, this court went on to say that “Puer-to Rico is singularly unsuited to a change of venue.” In re San Juan Star Co., 662 F.2d at 117. The majority downgrades this holding by implying that this citation is out of context with the ruling and because it “was not a major pronouncement.” Id. Considering the latter statement first, I was not aware, until now, that the decisions of this court were subject to some type of ranking. I was under the impression that the public was entitled to rely, to the same extent, on all of our decisions.
As to the first point, whether or not this statement is out of context, it is perhaps best to reproduce the entire pronouncement:
The conclusion that the alternatives that should be considered [i.e., alternatives to the protective order], would be unavailing finds support in several factors peculiar to this case. As appellees have argued, Puerto Rico, is singularly unsuited to a change of venue, and postponement of a trial of such urgent proportions could seriously jeopardize important interests in its resolution. On the district court’s conclusions that such intermediate measures as voir dire, instructions, or sequestration would be unavailing in the face of the jury pool’s “saturation,” we must defer to that court’s discretion and its closer familiarity with the nature of the publicity involved.
Id. (citation and footnote omitted). It appears to me that the cited language regarding venue is in context and on point. This court was considering the very issue before us, i.e., the effect of pretrial publicity on the ability of the district court to select an uncontaminated jury in Puerto Rico in a case involving substantially the same issues as are presented in this appeal. Defendant-appellants in this case had good grounds for relying on that ruling and thus not requesting a change in venue. Any error in this respect was induced by this court. We are at least morally estopped in this regards.
The government, however, is legally es-topped from raising this issue on appeal. The government in opposing the various requests for continuance never once suggested a change in venue as an alternative. In fact at oral argument counsel for the government candidly admitted that the government would have opposed such a motion had it been filed by defendant-appellants. I might add also, that the district court never invited such a motion either, obviously cognizant of the inappropriateness of such a procedure because of the “several factors peculiar to this case.” Id. *773Cf. Dennis v. United States, 302 F.2d 5, 8 (10th Cir.1962) (“In ruling on [defendant’s] pretrial motions for severance and continuance on the grounds of prejudicial publicity, the trial court indicated that the proper remedy was change of venue, and invited such motion.”), rev’d on other grounds, 384 U.S. 855, 86 S.Ct. 1840, 16 L.Ed.2d 973 (1966).
The reason why the government raises this issue on appeal, but failed to promote a change in venue before the district court is obvious: it was quite content with reaping the benefits of a situation which it helped to promote.46 The testimony of the key witnesses in the Senate hearings, Marte, Cartagena, Carmelo Cruz and Martinez, the same persons who were key witnesses for the government in this case, could not have taken place without the granting of immunity from prosecution by the federal government from the various perjuries they had previously committed. It was these grants of immunity that permitted them to appear with impunity in the Senate hearings. The federal authorities, in granting this immunity had full knowledge that these persons would incriminate defendant-appellants in a proceeding which would receive the widest possible diffusion in the news media, including television. Their testimony would include a reenactment on television of the Cerro Maravilla incident amounting to a “trial.” See ante 762 note 41. The federal government is thus accountable for the pretrial effects of this massive pretrial publicity and should be the one to bear the burden of its impact on the trial, not appellant-defendants. See Ri-deau v. Louisiana, supra.
Irrespective of how it is phrased, the effect of the majority’s ruling regarding this issue is to require that defendant-appellants give up their constitutional right to vicinage47 in order to correct a situation that not only is not of their own making, but is one which they attempted to contain. See In re San Juan Star, supra; Colon-Berrios, supra. The majority, without citing any authority for its novel theory, imposes “a significantly heavier burden” upon appellants to show prejudice by reason of the widespread publicity, because they failed to seek a change in venue. See ante at 738. Cf. United States ex rel. Darcey v. Hardy, 351 U.S. 454, 463, 76 S.Ct. 965, 970, 100 L.Ed. 1331 (1956) (failure to move for change in venue not dispositive). The majority’s position is constitutionally unsupportable. See Johnston v. United States, 351 U.S. 215, 220-21, 76 S.Ct. 739, 742-43, 100 L.Ed. 1097 (1956); Salinger v. Loisel, 265 U.S. 224, 232-33, 44 S.Ct. 519, 522, 68 L.Ed. 989 (1924); Delaney v. United States, 199 F.2d 107 (1st Cir.1952). See also, Note, The Right to Venue and the Right to an Impartial Jury: Resolving the Conflict in the Federal Constitution, 52 Univ. of Chic.L.Rev. 729 (1985); Broeder, The Impact of the Vicinage Requirement: An Empirical Look, 45 Neb.L.Rev. 99 (1966). I know of no authority that allows placing a criminal defendant in such a “Catch 22” situation. Cf. Carter v. Kentucky, 450 U.S. 288, 301, 101 S.Ct. 1112, 1119, 67 L.Ed.2d 241 (1980) (“a defendant must pay no court-imposed price for the exercise of his constitutional privilege not to testify”); Griffin v. California, 380 U.S. 609, 614, 85 S.Ct. 1229, 1232, 14 L.Ed.2d 106 (1964) (same). I might add that I know of no other constitutional right that is guaranteed by two provisions of the Bill of Rights such as is the right to vicinage, an obvious indication of the importance of vicinage in the scale of constitutional rights.
*774The cases relied upon by the majority for its contention are inapposite. Although in many of them a change in venue was requested and denied, in none of them does the Court require such a procedure as the quid pro quo for validating a criminal defendant’s right to a fair trial. The only case on point is in fact one from this circuit. It holds contrary to the majority’s ruling. See Delaney v. United States, 199 F.2d 107 (1st Cir.1952).
In Delaney we reversed the district court’s failure to grant a third indefinite continuance because of pretrial publicity, notwithstanding defendant’s failure to file a motion for change of venue despite the district judge’s specific urging to said effect. Id. at 115. In rejecting the position taken by the panel majority in this appeal, our court said in Delaney:
Under the Sixth Amendment the accused enjoys the constitutional right to a speedy and public trial, “by an impartial jury of the State and district” wherein the alleged crimes are charged to have been committed — in this case the District of Massachusetts. The right to apply for a change of venue is given for the defendant’s benefit and at his option. He is not obliged to forego his constitutional right to an impartial trial in the district wherein the offense is alleged to have been committed; and under the circumstances of this case we do not think that the defendant’s appeal stands any worse for failure on his part to apply for a change of venue.
Id. at 116. In attempting to distinguish the circumstances referred to in this quotation from those in the present case, the majority distinguishes the “indistinguishable.” See Chardon v. Fernandez, 454 U.S. 6, 8, 102 S.Ct. 28, 29, 70 L.Ed.2d 6 (1981).
The publicity involved in Delaney came as a result of hearings conducted by a Congressional committee concerning Delaney, who had been Collector of Internal Revenue for the District of Massachusetts until suspended from office and indicted for various crimes. Motion pictures and sound recordings were permitted at the hearings, which received wide publicity,48 although it “was intensified in the Boston area.” Id. at 111. However, the nature and extent of the publicity was not even remotely comparable to that in the present case. As in the present case, however, many of the witnesses who testified at the hearings also testified against Delaney at his trial. Our court expressed its consternation about this situation:
In this respect the committee hearing afforded the public a preview of the prosecution’s case against Delaney without, however, the safeguards that would attend a criminal trial ... [T]he witnesses who testified were not subjected to cross examination by counsel for the accused. Even more damaging, perhaps, was the fact that the testimony thus publicly heard by the committee ranged far beyond matters relevant [i.e., admissible] to the pending indictments ...
Id. at 110.
We rejected the district court’s reliance on the efficacy of last minute trial procedures to cure the effects of the pretrial publicity, and said:
No doubt the district judge conscientiously did all he could, both in questions he addressed to the jurors at the time of their selection and in cautionary remarks in his charge to the jury, to minimize the effect of this damaging publicity, and to assure that defendant’s guilt or innocence would be determined solely on the basis of the evidence produced at the trial. But ... [quoting Mr. Justice Jackson] [T]he naive assumption that prejudicial effects can be overcome by instructions to the jury ... all practicing lawyers know to be unmitigated fiction. One cannot assume that the average juror is so endowed with a sense of detachment, so clear in his introspective perception of his own mental processes, that he may confidently exclude unconscious influence of his preconception as to probable guilt, engendered by a pervasive pretrial publicity. This is particularly true *775in the determination of issues involving the credibility of witnesses.
Id. at 112-13 (emphasis supplied).
I need only to remind the reader of the overwhelming, massive and continuous nature of the pretrial publicity in the present case up to and including the trial, in contrast to that in Delaney, which was mild by comparison. I cannot see how it is possible to ignore the unqualified circuit precedent established by Delaney, on the merits of the pretrial publicity issue as well as on the majority’s contention regarding venue.
Delaney has been cited with approval not only by the Supreme Court, but also by most circuits, including our own. See Sheppard v. Maxwell, 384 U.S. 333, 354 n. 9, 86 S.Ct. 1507, 1518 n. 9, 16 L.Ed.2d 600 (1965); Scales v. United States, 367 U.S. 203, 258, 81 S.Ct. 1469, 1501, 6 L.Ed.2d 782 (1960); Irwin v. Dowd, 366 U.S. 717, 727, 81 S.Ct. 1639, 1645, 6 L.Ed.2d 751 (1960); Smith v. American Indus. Research Corp., 665 F.2d 397, 399 (1st Cir.1981); Reinstein v. Superior Court, 661 F.2d 255, 258 (1st Cir.1981); United States v. Guido, 597 F.2d 194, 198 (9th Cir.1979); Ramos Colon v. U.S. Attorney for District of Puerto Rico, 576 F.2d 1, 8 (1st Cir.1978); United States v. Perrotta, 553 F.2d 247, 249 (1st Cir.1977); United States v. Bailey, 480 F.2d 518, 521 (5th Cir.1973); United States v. Dellinger, 472 F.2d 340, 373 n. 48 (7th Cir.1972); United States v. Spock, 416 F.2d 165, 180 n. 35 (1st Cir.1969); Rolon Marxuach v. United States, 398 F.2d 548, 552 (1st Cir.1968); United States v. Strom-berg, 268 F.2d 256, 270 (2d Cir.1959). We did not hesitate in that case to exercise our supervisory powers to prevent an injustice.
Nor will I concede, as the majority claims, that if my position prevails, in a situation in which a defendant fails to seek a change in venue, the result will be that he/she will be “insulated from trial indefinitely.” See ante at 734. The first thing to be kept in mind in this regard is that the holding of a speedy trial in criminal cases is principally a protection against the undue pretrial detention of a person who, although charged, is still presumed innocent. Although there is also an undisputed societal interest in seeing that justice be speedily applied, the paramount interest is to see that justice be done. A trial should not be so speedy as to bring about unfairness to a criminal defendant. The government should not be allowed to use its quest for a speedy trial as a weapon to place a criminal defendant at a disadvantage. More in point in this case, by the government’s own admission, a continuance of up to one year would have made no difference to its case. A continuance within such a period would have been appropriate and would have avoided this unseeming haste. Although no absolute assurance is possible, such a continuance, or one within such a period, would almost certainly have eliminated or greatly reduced the prejudice caused by the massive publicity and the election furor. Such a postponement would not have been an indefinite insulation from trial.
The record is patently clear that the pretrial publicity, particularly that generated by the Senate hearing, was prejudicial and inflammatory. See Order of August 22, 1984, Perez-Casillas, 593 F.Supp. at 805-06 (“From that moment onward, charges of murder against defendants were constantly voiced and exposed by the media ... [tjaking for granted the guilt of defendants as expressed by the last witnesses at the hearing.”). It is impossible for anyone who has read the record to deny that the jury pool, including the eventual petit jury that tried the case, was fully aware of this inflammatory publicity. It is thus the height of naivete to conclude that jurors exposed to such pernicious influence could, notwithstanding their good faith assertions to the contrary, give defendants a fair and impartial trial free from such pressures. I would not want such a jury for myself, or my brother, or my son — or for that matter, anyone.
II. Other Issues Raised
I shall not discuss further the majority’s conclusion regarding appellant Colon-Berr-ios, with which I concur, except to restate, that the jury’s verdict in that case was obviously influenced by its exposure to extra-judicial information received as a result *776of the massive pretrial publicity previously detailed. That is a problem pointedly censured by the Supreme Court in Gannett Co. v. De Pasquale, supra. There is every reason to believe that it also tainted the jury as regards the remaining defendants.
The remaining defendants, Rios-Polanco, Bruno-Gonzalez, Gonzalez-Perez, Quiles-Hernandez, Mateo-Espada, Torres-Marrero and Perez-Casillas, appeal rulings by the district court concerning (1) severance, (2) the admission of inflammatory evidence, and (3) the length of the sentences imposed. Although these are discrete issues and shall be so discussed, in my opinion these matters are inexorably related to the pretrial publicity issue, a problem which weaves through this entire case like a snake in the grass.
Appellants’ Motion in Limine to Exclude Details of the Alleged Murder
The remaining appellants contend that the district court erred in admitting evidence concerning the details of the alleged murders. The evidence vividly portrayed how the two young men, while unarmed, handcuffed and kneeling, were kicked and pummelled with rifle butts by several officers, until redfaced and crying. Evidence was presented to show that Dario Rosado was killed with a single shotgun blast to the chest while handcuffed and that Soto-Arrivi was shot twice. It is the same evidence presented before the Senate in the televised hearings by substantially the same witnesses. See Perez-Casillas, 593 F.Supp. at 805-06. Appellants argue that the evidence was unduly inflammatory and prejudicial, and was irrelevant to prove the elements of the government’s case, which charged conspiracy and perjury.
Rule 401, Fed.R.Evid. provides that evidence is relevant if it has “any tendency to make the existence of any fact that is of consequence to the determination more probable or less probable than it would be without the evidence.”
The trial court admitted the evidence at issue, without any limiting instruction, because it felt that it was necessary to prove the conspiracy and perjury charges.
All appellants were charged with perjury. However, only four of the perjury counts charged against two of the remaining appellants, Moreno-Morales, and Torres-Marrero, refer to whether the officers lied when they said that they neither assaulted, nor saw anyone else assault the two men.
In order to prove violations of 18 TJ.S.C. §§ 1621 and 1623, it is necessary to prove that the answer given to a question is false. That is, the government must show that the allegedly perjured statement is not true because it is contrary to fact. See generally 2 Modem Federal Jury Instructions § 48.02, p. 48-15 and cases cited therein. Accordingly, for the government to establish that these two lied when denying that Soto and Rosado were assaulted and struck by police officers while in custody and before being shot, it had to present evidence that the assault had indeed occurred. See, e.g., United States v. Kehoe, 562 F.2d 65, 67-68 (1st Cir.1977); see also United States v. Masters, 484 F.2d 1251, 1253 (10th Cir.1973). Thus, there was no way to avoid presenting the testimony at issue as regards the above-mentioned counts against appellants Moreno-Morales and Torres-Marrero.
Relevant evidence generally is admissible under Fed.R.Evid. 402. Fed.R.Evid. 403 states in part that relevant evidence “may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice____” Wide discretion as to the relevancy of evidence is vested in the trial judge, both as to its probative value and its prejudicial impact. United States v. Marler, 756 F.2d 206, 217 (1st Cir.1985). The trial judge’s ruling on the issue will not be disturbed absent an abuse of discretion. United States v. Coast of Maine Lobster Co., 557 F.2d 905, 908 (1st Cir.), cert. denied, 434 U.S. 862, 98 S.Ct. 191, 54 L.Ed.2d 136 (1977).
The correctness of the admission of this evidence as to the conspiracy and the remaining perjury charges presents a different picture, however. Under Count 1 of the indictment, the defendants were charged with conspiring to obstruct justice by participating in a cover-up of the Cerro *777Maravilla events. As overt acts, in furtherance of the conspiracy the government alleged that the appellants had: (1) agreed to conceal the identity of material witnesses; (2) met at the scene of the incident on August 2, 1978 and created a false version of the events; (3) given false written statements in August, 1978 reporting among other things, that there had been only one volley of shots with the two men when killed; (4) made false declarations before a federal grand jury regarding the same matters testified to in the written statements; and (5) given false testimony in depositions in the civil suit brought by the alleged victims’ relatives. It was additionally charged that (6) codefendant Angel Pérez-Casillas met with Miguel Marte-Ruiz, the Channel 7 television technician who had been at Cerro Maravilla on July 25, 1978, and urged him to give false testimony concerning the events at Cerro Maravilla before a federal grand jury; and (7) several codefendants, Angel Pérez-Casillas, Jaime Quiles-Hernández, Nazario Mateo-Espada, and other persons both known and unknown to the grand jury, had met at Cerro Maravilla and agreed to continue to tell their previously adopted version of the events of July 25, 1978. The remaining perjury charges involved the alleged false testimony given in support of the conspiracy.
As demonstrated by the above, the remaining charges are devoid of references to the details surrounding the killings. The government certainly could have proven them by presenting evidence of the facts alleged as overt acts in furtherance thereof. Thus, contrary to what the district court ruled, and the majority affirms, details on how the killings occurred were not a necessary link in the government’s conspiracy case, nor in the perjury charges against the defendants other than Moreno-Morales and Torres-Marrero.
The government argues that under Fed. R.Evid. 404(b) evidence of uncharged conduct may be offered to establish motive. In this instance the government contends that the challenged evidence is particularly probative of motive: given the heinousness of the offenses, the incentive to conceal them was great. Rulings under Rule 404(b) however, are also subject to the constraints of Rule 403 regarding cumulativeness and unfair prejudice.
The fact that two citizens were deliberately killed by law enforcement officers while in custody is in itself serious enough to have lead those involved to conspire as charged to prevent prosecution. Thus, there was no need to present additional testimony bearing on the issue of motive. Moreover, the impact of evidence of police officers assaulting them under the circumstances described is highly inflammatory. Considering the questionable additional probative value that it may have had in establishing motive, it would appear to me unquestionable but that this evidence should have been limited. It also appears to me that in admitting this evidence the jury was reminded of the inflammatory Senate hearings. Thus, the government again unduly reaped the benefits of this prejudicial pretrial publicity.
As conducted, this was not a conspiracy and perjury trial, it was a trial for murder. Failure to Sever
Admittedly, the government was entitled to present evidence as to the details of the deaths of the alleged terrorists in its case against defendants Moreno-Morales and Torres-Marrero. To prevent a miscarriage of justice, however the other appellants should have been separately tried. Given the massive pretrial publicity and the inflammatory nature of the evidence presented by the Government, it is pure fiction to conclude that the cumulative effect of this situation was not one that brought about a “spill over effect” against these other defendants.
A judge has a continuing duty at all stages of the trial to grant a severance if prejudice appears. See Schaffer v. United States, 362 U.S. 511, 516, 80 S.Ct. 945, 948, 4 L.Ed.2d 921 (1960). There is no question but that this prejudice appeared in all its force during voir dire and during the government’s presentation of the inflammatory evidence. Irrespective of which of the various standards enunciated by this *778circuit is used,49 the remaining appellants should have received a trial separate from defendants Moreno-Morales and Torres-Marrero. The unquestioned effect of admitting the inflammatory evidence and the failure to sever the trials, when taken together with the massive pretrial publicity, resulted in appellants’ trial, conviction and sentencing for murder, not for conspiracy and perjury as charged.
The Length of the Sentences
In my view, appellants have no valid grounds for overturning the sentences imposed, as they do not exceed the allowable statutory limits nor do they per se constitute cruel and unusual punishment. United States v. Francesco, 725 F.2d 817, 828 (1st Cir.1984). However, even though they may not provide independent grounds for reversal, the length of the sentences imposed is relevant to the issues previously discussed because they are demonstrative of the extent to which the massive pretrial publicity and the inflammatory evidence presented at trial influenced even the trained mind of the judge who supervised the trial. Although undoubtedly perjury is a serious offense, I doubt that there are many, if any, cases in which sentences as harsh as those imposed in this case have been imposed for such violations. Even admitting to their legality, when I see how a seasoned trial judge is carried away under the influence of the events previously described in this opinion, I cannot but reaffirm my belief that appellants are constitutionally entitled to a new trial.
I dissent.50
. S.Res. 91, 9th Leg., 1st Ord.Sess. (1981).
[8 Just recently, Life Magazine gave the Cerro Maravilla incident national exposure by publishing an article with photographs of dramatized reenactments of both the original police version of self-defense and the summary execution version given by the policemen who received immunity. On August 20, 1984, El Mun-do published an article on the Life coverage of Cerro Maravilla and reprinted a Life photograph of one of the reenactments. The Life photograph chosen that appeared in El Mundo’s front page was the one reenacting the execution version].
. The "new Commonwealth Secretary of Justice” referred to, Hector Rivera Cruz, was the chief investigator of the Puerto Rico Senate. He was propelled into media prominence by the vistas.
Ortiz-Molina, who was kidnapped by Soto-Ar-rivi and Rosado and forced to drive them to Cerro Maravilla, supported the “one volley" version of the shoot out and was one of the principal witnesses against appellants at both the Senate hearings and the trial of this case.
. Shakespeare, Hamlet, Act I, Scene IV, line 90.
. See "Amended Plan for the Random Selection of Grand and Petit Jurors Pursuant to the Jury Selection and Service Act of 1968, as Amended,” for the United States District Court for the District of Puerto Rico, February 22, 1982; Jury System Improvements Act of 1978, 28 U.S.C. §§ 1861, et seq.
. This is not an insignificant statistic considering the added credibility and retention span given by the public to information received through television. See, Surette, Justice and the Media, Charles C. Thomas Publ., Springfield, Illinois, (1984) pp. 21, 153-155, 247-248; Hennessy, Public Opinion, 2d Ed., Duxbury Press, Belmont, CA (1970), pp. 313-314. See also Rideau v. Louisiana, 373 U.S. 723, 726, 83 S.Ct. 1417, 1419, 10 L.Ed.2d 663 (1962).
. I make no attempt to correct gramatical errors throughout in the testimony of the jurors, but merely reproduce the transcript as recorded.
. I believe this is an incorrect translation of the Spanish indefenso, which means helpless or without any means of defense.
. The following are the relevant sections of the Governor’s speech: "In closing these words about the security of the citizenry, I cannot overlook that there are two cases that have caused much pain to our people, in which the victims of official acts of violence cannot be compensated because it is not authorized by any legislation. I will submit to you legislation to authorize the payment of compensation to the families of Arnaldo Dario Rosado and Carlos Soto-Arrivi, for the pain and suffering which were caused to them by the happenings at ... Cerro Maravilla, so that the People of Puerto Rico will thus communicate to them their solidarity with their many tribulations. But even beyond this material thing, the People of Puerto Rico will honor these deaths with a rebirth of respect for life and the dignity of human beings within the heart of every Puerto Rican. Even beyond this material thing, our people will honor these deaths by valuing tolerance regarding the beliefs of all, living in profound peace in democracy and justice and turning into reality the rights that protect our individual liberty and which are protected by our Constitution. Our administration will work towards that end.” Message of the Hon. Rafael Hernández-Colón, Governor of Puerto Rico, 10th Leg.Sess., 1st Ord.Sess., Feb. 14, 1985 (translation ours).
. The voir dire revealed that considerable interest weis generated throughout in visiting Cerro Maravilla.
. Juror No’s. 118 ("[I see] the first Maravilla case”), 198 (”[I]t is the same case”), 242 (”[T]here were a couple of policemen there on trial”), 72 ("I thought that was the trial").
. See Broeder, Voir Dire Examinations: An Empirical Study, 38 So.Cal.L.Rev. 503, 505 (1965).
. Another Spanish saying refers to this as "throwing a rock and hiding your hand” (tiran-do la piedra y escondiendo la mano ).
. U.S. Const. Art. Ill, Sec. 2, cl. 3:
The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury; and such Trial shall be held in the State where the said Crimes shall have been committed; but when not committed within any State, the Trial shall be at such Place or Places as the Congress may by Law have directed.
U.S. Const. Art. VI:
In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law ...”
. As in this case, Life magazine published an article.
. United States v. Albert, 773 F.2d 386, 388 (1st Cir.1985) ("miscarriage of justice”); United States v. Ciampoglia, 628 F.2d 632, 643 (1st Cir.), cert. denied, 449 U.S. 956, 101 S.Ct. 365, 66 L.Ed.2d 221 (1980) ("clear showing of substantial prejudice”); United States v. Cleveland, 590 F.2d 24, 29 (1st Cir.1978) (“significant degree of prejudice”).
. I also concur with the majority regarding the ineffective assistance of counsel issue.