United States v. Campa

459 F.3d 1121, 2006 U.S. App. LEXIS 21513, 2006 WL 2277898

• Court: Court of Appeals for the Eleventh Circuit
• Decided: August 9, 2006
• Docket: Nos. 01-17176, 03-11087
• Status: Published

Opinions

WILSON, Circuit Judge:

This case involves the Miami trial and conviction of five defendants for acting and conspiring to act as unregistered Cuban intelligence agents working within the United States and for conspiring to commit murder. The defendants, Ruben Cam-pa, Rene Gonzalez, Gerardo Hernandez, Luis Medina, and Antonio Guerrero, appealed their convictions and sentences, arguing that the pervasive community prejudice against the Cuban government and its agents and the publicity surrounding the trial that existed in Miami prevented them from obtaining a fair and impartial trial. We reviewed this case en banc to determine whether the district court abused its discretion when it denied their multiple motions for change of venue and for new trial. We now affirm.¹

I. BACKGROUND

A. The Indictments

On September 12, 1998, the five defendants were arrested, and were subsequently indicted on October 2, 1998, for acting and conspiring to act as agents of the Republic of Cuba without prior notification to the Attorney General of the United States in violation of 18 U.S.C. §§ 951(a) and 2 and 28 C.F.R. § 73.1 et seq., and of defrauding the United States concerning its governmental functions, in violation of 18 U.S.C. § 371.² The indictment alleged:

[The defendants] function[ed] as covert spies serving the interests of the government of the Republic of Cuba within the United States by gathering and transmitting information to the Cuban government concerning United States military installations, government functions and private political activity; by infiltrating, informing on and manipulating anti-Castro Cuban political groups in Miami-Dade County; by sowing disinformation within these political groups and in dealings with United States private and public institutions; and by carrying out other operational directives of the Cuban government.³

Hernandez, Medina, and Guerrero were also charged with conspiring to deliver to Cuba “information relating to the national defense of the United States, ... intending and having reason to believe that the [information] would be used to the injury of the United States and to the advantage of [Cuba],” in violation of 18 U.S.C. §§ 794(a), (c), and 2.⁴ Hernandez was also indicted for conspiracy to perpetrate murder in the special maritime and territorial jurisdiction of the United States, in violation of 18 U.S.C. §§ 1111 and 2, in connection with the Cuban military’s shootdown of two United States-registered civilian aircraft on February 24, 1996, in violation of 18 U.S.C. §§ 1117 and 2.⁵ Hernandez, Medina, and Campa were indicted for possession of a counterfeit United States passport, in violation of 18 U.S.C. §§ 1546(a) and 2, and possession of fraudulent identification documents in violation of 18 U.S.C. §§ 1028(a)(3), (b)(2)(B), (c)(3), and 2.⁶ Medina was indicted for making a false statement to obtain a United States passport, in violation of 18 U.S.C. §§ 1542 and 2.⁷ Hernandez, Medina, and Campa were indicted for causing individuals they oversaw to act as unregistered foreign agents without prior notification to the Attorney General, in violation of 18 U.S.C. §§ 951 and 2 and 28 C.F.R. § 73.1 et seq.⁸ Their trial was set to proceed in the Southern District of Florida in Miami.

Shortly after the indictments were returned and upon the government’s motion, on October 20, 1998, the court entered a gag order ordering all parties and their attorneys to abide by Southern District of Florida Local Rule 11.2.9 The parties and their attorneys were ordered to “refrain from releasing ‘information or opinion which a reasonable person would expect to be disseminated by means of public communication, in connection with pending or imminent criminal litigation’ where ‘ such dissemination will interfere with a fair trial or otherwise prejudice the due administration of justice.’ ”¹⁰

B. Pretrial Change of Venue Motions

On August 16, 1999, Medina filed a motion for authorization of funds to conduct a survey of the Miami-Dade County community, as a predicate for a motion for change of venue.¹¹ Medina requested authorization to engage Florida International University Psychology Professor Gary Patrick Moran for $9,500 to conduct a poll of a representative sample of the population of Miami-Dade County to determine whether it was a fair venue for the trial.¹² Moran proposed a “standard” telephone poll of 300 people.¹³ The district court granted Medina’s motion.¹⁴

In January of 2000, Campa, Gonzalez, Guerrero, and Medina each moved for a change of venue out of the Southern District of Florida.¹⁵ They argued that they would be denied due process and a fair trial with an impartial jury as a result of the pervasive community prejudice in Miami against anyone associated with the Cuban government.¹⁶ In support of their motions, they submitted the results of Professor Moran’s survey and numerous news articles.¹⁷

Moran’s survey consisted of 11 opinion and 21 demographic questions designed “to examine prejudice against anyone alleged to have assisted the Castro Cuban government in espionage activities.”¹⁸ Focus On Miami, a data collection company located in Miami-Dade County, was retained to conduct the survey by telephone.¹⁹ In Section 1 of the survey, the interviewer made a series of 11 statements and questions regarding the defendants’ alleged illegal conduct and general statements about Cuba and Castro to which the respondent was instructed to answer either “agree strongly,” “agree,” “disagree,” “disagree strongly,” or “don’t know.”²⁰ In Section 2 of the survey, the interviewer asked a series of 21 demographic questions designed to gather information about the respondent’s background, lifestyle, media exposure, and involvement in pro- or anti-Cuba groups.²¹

According to Professor Moran, the results of the survey indicated that 69% (with a sampling error of 5.3%) of eligible jurors were prejudiced.²² Around 40% of the respondents (60% of the Hispanic respondents) “indicatefd] that they would find it difficult to be impartial.”²³ Around 90% “would not change their minds under any circumstances.”²⁴ Finally, approximately one-third of the respondents were “at least somewhat worried about community criticism in the event of a ‘not guilty’ verdict.”²⁵ Based on these results, Professor Moran concluded the following:

I conclude ... to a reasonable scientific certitude that a change of venue from the Miami Division of the Southern Federal District of Florida is the only viable means of assuring the defendant a fair and impartial jury. The results of the survey suggest that a jury chosen from the District will hold firm opinions prejudicial to this defendant that cannot be put aside. A reasonable likelihood of prejudice endangering the right to a fair trial exists.²⁶

Moran further noted that two prior surveys from the early 1980’s and from 1997, which also evaluated the Southern District of Florida, reached similar conclusions.²⁷ According to Moran, this suggested that prejudicial opinions in the Southern District of Florida were “fixed” and “[could not] be set aside.”²⁸

In addition to Moran’s survey, the defendants also submitted numerous newspaper articles on their case and other Cuba-related issues.²⁹ They argued that these articles demonstrated that the community atmosphere is “so pervasively inflamed” that “resort to questioning in the cool reflection of a courtroom is not sufficient to cleanse the record.”³⁰

The government opposed the defendants’ change of venue motion and maintained that an extensive voir dire of prospective jurors would ensure a fair and impartial jury.³¹ It disputed that pervasive community prejudice existed and instead argued that the Miami-Dade population was “heterogenous” and “highly diverse.”³² It further noted that many of the news articles that the defendants submitted either did not relate to the instant case, or were accurate, objective, and unemotional.³³ The news coverage “pale[d] in comparison” with the biased coverage and sensationalism found in the rare cases in which previous courts had found presumed prejudice.³⁴

The government further argued that Professor Moran’s survey was unreliable due to numerous flaws in his procedures and conclusions.³⁵ In particular, it disputed Professor Moran’s reliance on the two surveys that were used in prior, unrelated cases, which concluded that a substantial prejudice existed in the Southern District of Florida against defendants alleged to have helped the Castro government.³⁶ The first was the survey put forth in support of an unsuccessful change of venue motion in United States v. Fuentes-Coba,³⁷ a case involving illegal shipments of goods in violation of the Trading with the Enemy Act. We affirmed the district court’s refusal to change venue, after the court reviewed the survey, determined no pervasive community prejudice had been shown, and conducted a thorough voir dire, thus ensuring a fair and impartial jury.³⁸ The government argued here that the court should follow this course of action by proceeding to voir dire to explore any potential jury bias.³⁹ The second survey that Moran relied on was the one he designed for United States v. Broder,⁴⁰ another Trading with the Enemy Act case involving Cuba in which the district court denied the defendants’ motion for change of venue. One of the Broder defendants proceeded to trial and was acquitted of all charges, disproving Moran’s conclusion that the Miami-Dade jury pool was hopelessly prejudiced against defendants charged with associating with Castro’s Cuba.⁴¹ In other words, the government argued that the very surveys which Moran relied upon in the instant case discredited his theory and instead demonstrated that Miami-Dade jurors would base their verdict on evidence, not prejudices.⁴²

The government argued that Moran’s survey was not well-designed, did not measure prejudice accurately, and engaged in broad, unsupported characterizations of the South Florida community.⁴³ For example, the government noted the near-verbatim similarity between Moran’s Broder survey and affidavit and his survey and affidavit in the present case, suggesting that Moran’s conclusions revealed “the foreordained conclusions of a predisposed and partisan expert, who has not even bothered to change the wording of his purportedly scientific results.”⁴⁴ Many of the questions were ambiguous or were written in non-neutral terms, which demonstrated Moran’s failure to follow scientific procedures.⁴⁵ To further support its position, the government submitted the affidavit and curriculum vitae of Professor J. Daniel McKnight⁴⁶ who opined that Professor Moran’s Broder survey “lack[ed] empirical rigor, scientific validity and provide[d] no estimation of its scientific reliability.”⁴⁷ Although McKnight’s analysis was of the Broder survey and affidavit, McKnight’s evaluation was germane to the instant case given the striking similarities between two sets of surveys and affidavits.⁴⁸

Following extensive oral argument, on June 27, 2000, the district court denied the defendants’ motion without prejudice, finding that they had failed to present sufficient evidence “to raise a presumption of prejudice against [them] as would impair their right to a fair trial by an impartial jury in Miami-Dade County.”⁴⁹ The court found that most of the news articles related to events other than the defendants’ alleged activities, and that except for articles regarding the codefendants’ sentences and one editorial noting the Brothers to the Rescue shootdown anniversary, the articles about the shootdown were more than one year old and were largely factual.⁵⁰ Accordingly, the court found that pretrial publicity was not sufficiently pervasive and inflammatory to raise a presumption of prejudice.⁵¹

The court also found Professor Moran’s survey and affidavit insufficient to establish pervasive community prejudice for six reasons.⁵² The court faulted the survey for: (1) including respondents who were completely unaware of this case in quantifying alleged community prejudice against the defendants; (2) failing to measure prejudice toward a particularized group of people, i.e., a “social target,” making prejudice calculations “unreliable” and “without substantial support”; (3) failing to use neutral terminology, contrary to standard scientific procedure; (4) asking ambiguous questions; and (5) using an inadequate sample size, representing only 0.003% of eligible Miami-Dade jurors.⁵³ “[M]ost significantly,” Professor Moran relied on the same study that we rejected in Fuentes-Coba to bolster his conclusion that community prejudice existed in Miami-Dade.⁵⁴ Under these circumstances, the court was unwilling to afford the survey and Professor Moran’s conclusion the weight attributed by the defendants.⁵⁵ However, the court promised a thorough voir dire and invited the defendants to renew their motions if voir dire showed “that a fair and impartial jury [could not] be empaneled.”⁵⁶

C. Voir Dire

The case proceeded to voir dire. The court held two status conferences to develop the voir dire questions.⁵⁷ Although the defendants stipulated to the government’s proposed questions,⁵⁸ the parties argued at length regarding the terminology of the questions and made suggestions for revisions.⁵⁹ The court deliberated extensively and carefully over the questions, keeping in mind the defendants’ unsuccessful motions for change of venue: “I promised you all and [especially the defendants when I denied your motions for change of venue, that I would consider extensively your request for voir dire .... ”⁶⁰ Ultimately, the court developed an exhaustive list of questions for a two-phase voir dire.⁶¹ The court noted, “[m]ore questions are being asked of this jury as far as their background than questions that are ever asked or have been asked of jurors that certainly have appeared before me in cases; but I have agreed that this is a case that requires additional inquiry and certainly there is additional inquiry here .... ”⁶²

Phase one would consist of the general questioning of the voir dire, which was aimed at determining the jurors’ qualifications to serve in the case.⁶³ During this phase, panels of approximately 34 prospective jurors would be in the courtroom at a time.⁶⁴ The court would ask the group a set of 16 general questions, and then each juror would read aloud to the court their answers to a 28-question written questionnaire.⁶⁵ It would ask additional, follow-up questions when necessary.⁶⁶ The court rejected the parties’ requests for attorney-conducted voir dire, and determined that it would ask all of the questions during both phases of the voir dire.⁶⁷ The court did, however, promise to inquire whether there were any additional questions that the parties wished the court to ask any individual juror, or the panel as a whole, after the completion of the general questions and the questionnaires.⁶⁸ The parties would then exercise challenges for cause and hardship for each panel.⁶⁹

Once the court had questioned several venire panels of 34 prospective jurors, it would proceed to phase two with the remaining jurors who had not been challenged for cause or for hardship.⁷⁰ During phase two, small groups of approximately ten jurors would be instructed to be present in the lobby of the courtroom at staggered times throughout the day, and one-by-one the jurors would enter the courtroom for individual questioning.⁷¹ The court would individually pose a set of 20 “community impact” questions⁷² and 7 “pretrial publicity” questions⁷³ to each juror. These questions centered around more sensitive subjects, such as the jurors’ media exposure, knowledge and opinions of the case, connections to Cuba, the United States policy toward Cuba, and the Cuban exile community in the United States.⁷⁴ After the individual questioning, the parties would be permitted to exercise additional challenges for cause and hardship, if there were any, and peremptory challenges.⁷⁵

On November 27, 2000, the trial began, and the voir dire proceeded as planned.⁷⁶ During phase one, the court questioned 168 jurors through the oral voir dire and the written questionnaire to screen for language, hardship, and scheduling problems.⁷⁷ The court questioned whether the jurors knew any of the parties, attorneys, or witnesses in the case, and questioned the jurors on their ability to reach a verdict based solely on the evidence and the court’s instructions.⁷⁸ Based on these generalized questions, the court struck 49 jurors for cause; 10 due to the court’s concern over their ability to be fair and impartial because of their opinions regarding Cuba or their acquaintance with persons involved in the case, and the remaining 39 for hardship, health, or language problems.⁷⁹

In phase two, the court individually questioned 82 prospective jurors.⁸⁰. Jurors who had heard media accounts about the case were asked to provide details regarding their exposure.⁸¹ The court asked probing questions to potential jury members who acknowledged having opinions about Cuba to determine whether those opinions would affect their ability to weigh the evidence and follow the court’s instructions.⁸² As promised, the court asked additional, follow-up questions sua sponte and when the parties requested.⁸³ At the conclusion of phase two, the court struck an additional 30 potential jurors for cause: 22 were struck for Cuba-related animus and the remaining 8 were dismissed for reasons unrelated to attitudes about Cuba or the defendants.⁸⁴

The court and the parties then proceeded to peremptory challenges. The court twice granted the defendants’ requests for additional peremptory challenges, giving the defendants a total of 18 and the government 11, and 2 each for alternates.⁸⁵ However, the defendants exercised only 15 of their 18 challenges to the jury pool, as well as their two allotted alternate challenges, to excuse jurors whose answers revealed biases against them.⁸⁶ The defendants struck every Cuban-American prospective juror, notwithstanding the government's reverse-Batson objection.⁸⁷

The voir dire lasted seven days. On each day of the voir dire, before every recess, and at the end of every day, the court admonished prospective jurors not to discuss the case amongst themselves or with others, not to have contact with anyone associated with the trial, and not to expose themselves, read, or listen to anything related to the case.⁸⁸

During the lunch break on the first day of voir dire, the court observed that the family members of the victims of the Brothers to the Rescue shootdown were congregated in front of the press, immediately outside the courthouse.⁸⁹ The family members’ statements were “fairly innocuous” in that they merely commented that “they were looking forward to the jury process going forward.”⁹⁰ Some of the jurors were approached by the media as they were leaving the courthouse,⁹¹ but they were not interviewed.⁹² Regardless, the court instructed that it would no longer permit the victims’ families to be present during voir dire “if there are efforts made to pollute the jury pool”⁹³ and instructed the government to speak to the victims’ families regarding their conduct.⁹⁴ The court entered a sequestration order precluding witnesses from speaking with each other and with the media about the case.⁹⁵ It also extended the gag order to “all [trial] participants, lawyers, witnesses, family members of the'victims” and clarified that it covered all “statements or information which is intended to influence public opinion or the jury regarding the merits of the case.”⁹⁶ The court thereafter instructed the jurors to remove their juror tags as they left the courtroom, and instructed the marshals to accompany the jurors out of the building.⁹⁷ The court sealed the voir dire questions during the jury selection so as to prevent the media from accessing them.⁹⁸

Later that day, when a copy of the Miami Herald, which contained an article about the case, was found in the jury assembly room, the court ordered the newspaper removed.⁹⁹ The following day, Guerrero’s counsel reported that he had viewed one of the potential jurors reading the article while in the courtroom.¹⁰⁰ The district court responded that “[t]he issue is not whether [venire] persons have read or been exposed to publicity about the case of the defendants, but whether they have formed an opinion based upon what they have read. We will go into all of this as we go through individual voir dires.”¹⁰¹ Later, a potential juror who evidenced prejudice was isolated and removed from the venire so as to eliminate contact with other potential jurors.¹⁰²

The court also issued assigned seating in the courtroom.¹⁰³ The government agents were assigned to the first row, the victims’ families were seated in the second row and were removed from the government attorneys, the defendants’ families were seated in the third row, and the back row was designated for the media.¹⁰⁴

At the conclusion of voir dire, the district court empaneled the jury without objection.¹⁰⁵ The defendants did not renew their motions for change of venue, despite the court’s prior invitations.¹⁰⁶ Instead, Medina’s counsel complimented the manner in which the court conducted the voir dire stating, “The Court’s conduct of this voir dire both in terms of its planning and its execution has been extraordinary. What we have accomplished here in the last seven days or six days has been more than I think the defense anticipated we would be able to do.”¹⁰⁷ He added, “quite frankly, if Professor Moran could interrogate his pool members the way this Court has interrogated some of the prospective jurors, the social sciences wouldn’t be soft sciences, they would be hard sciences.”¹⁰⁸ He admitted, “[generally ... the people who prejudged or who had strong opinions were candid about them.”¹⁰⁹ Later in the trial, when faced with the prospect of a juror being dismissed due to scheduling problems, the defendants vigorously objected without even knowing the juror’s identity.¹¹⁰ The court retained the juror at the defendants’ insistence.¹¹¹ The defendants reiterated their satisfaction with the voir dire stating, “[w]e worked very hard to pick this jury and we got a jury we are very happy with.”¹¹²

D. The Trial

At trial, the government presented evidence¹¹³ that revealed that the Directorate of Intelligence, Cuba’s primary intelligence collection agency, maintained a spy operation in South Florida known as “La Red Avispa,” or the “The Wasp Network.”¹¹⁴ Campa, Hernandez, and Medina were illegal intelligence officers of the operation and supervised agents, including agents Gonzalez and Guerrero.¹¹⁵ The Wasp Network reported information to Cuba on the activities of anti-Castro organizations in Miami-Dade County,¹¹⁶ the operation of United States military installations,¹¹⁷ and United States political and law enforcement activities.¹¹⁸ The operation was also directed to intimidate Cuban-American individuals and organizations with anonymous letters and threatening telephone calls;¹¹⁹ to penetrate United States Congressional election activity;¹²⁰ to scout and assess potential sources of information and possible new recruits;¹²¹ and to carry communications, cash, and other items between Miami and other United States-based Directorate of Intelligence officers and agents.¹²² None of the defendants notified the United States Attorney General that they were acting as agents of the Cuban government.¹²³

During the defendants’ case, Hernandez called as a hostile witness Jose Basulto, founder of Brothers to the Rescue and the pilot of the only plane that escaped the February, 24, 1996, shootdown.¹²⁴ After a series of questions about Basulto’s travel outside of the United States, in which Hernandez’s counsel suggested that Basulto had attempted to smuggle weapons into Cuba,¹²⁵ Basulto retorted, “Are you doing the work of the intelligence government of Cuba [?]”¹²⁶ Campa’s attorney argued that Basulto’s insinuation was “precisely the kind[ ] of problem! ] that we were afraid of when we filed our motions for a change of venue .... ”¹²⁷ He argued, “This red baiting is absolutely intolerable, to accuse [Hernandez’s attorney] because he is doing his job, of being a communist .... These jurors have to be concerned unless they convict these men of every count lodged against them, people like Mr. Basulto who hold positions of authority in this community ... are going to ... accuse them of being Castro sympathizers ... .”¹²⁸ The court struck Basulto’s remark, admonished him, and instructed the jury to disregard the comment, noting that the remark was “inappropriate and unfounded” and that Hernandez’s counsel was properly providing “a vigorous defense for his client.”¹²⁹

Throughout the trial, the defendants twice renewed their motions for change of venue through motions for a mistrial based on community events and trial publicity.¹³⁰ In February 2001, Campa moved for a mistrial based on activities during the weekend of February 24, 2001, to honor the fifth anniversary of the Brothers to the Rescue shootdown, including commemorative flights, as well as television interviews and newspaper articles regarding that event.¹³¹ He argued that “some news events ... are so great and are so explosive ... that any amount of instructing the jury cannot cure the taint.”¹³² The government objected, noting that there was nothing in the record to indicate that the jury had ignored the court’s repeated admonitions that they not read or view case-related news accounts.¹³³ The court granted the defendants’ request for a juror inquiry, and asked if any one of them had seen, heard, read, or been spoken to about any media accounts related to this case, seeking a show of hands.¹³⁴ The trial continued after no juror responded affirmatively.¹³⁵

On May 24, 2001, the district court denied the pending motions on the basis of its earlier orders denying a change of venue and finding that “the February 24th issues and events as well as the reporting of these events do not necessitate and did not necessitate a change of venue .... ”¹³⁶ The court noted that “[t]he jurors were instructed each and every day ... at each and every break and at the conclusion of the day ... not to read or listen or see anything reflecting on this matter in any way and there has been no indication that the jurors did not comply with that directive by the Court .... ”¹³⁷

During closing arguments, the government commented that Hernandez’s attorney called the Brothers to the Rescue shootdown “the final solution” and noted that such terminology had been “heard ... before in the history of mankind..”¹³⁸ It argued that the defendants were “bent on destroying the United States” and were “paid for by the American taxpayer.”¹³⁹ It summarized that the defendants had joined a “hostile intelligence bureau ... that sees the United States of America as its prime and main enemy” and that the jury was “not operating under the rule of Cuba, thank God.”¹⁴⁰ The defense objections throughout the closing arguments were sustained.¹⁴¹ The district court instructed the jury to consider only the evidence admitted during the trial, and to remember that the lawyers’ comments were not evidence.¹⁴²

For deliberations, the jury was moved to another floor of the courthouse with controlled access.¹⁴³ No one but the court staff was permitted on the floor.¹⁴⁴ The court also denied the media’s request for the names of the twelve jurors.¹⁴⁵ When the jurors were filmed leaving the courthouse one day during deliberations, the court modified the jurors’ entry and their exit from the courthouse to prevent further exposure to the media.¹⁴⁶ The court provided the jurors transportation to and from their vehicles or mass transit and brought them up to their secured floor through the courthouse garage.¹⁴⁷ The jury deliberated for five days.¹⁴⁸ The defendants were convicted on June 8, 2001.¹⁴⁹

E. Post-Trial Motions for Change of Venue and for New Trial

In July and August of 2001, the defendants reasserted their claims of improper venue in post-trial motions for judgment of acquittal and for new trial.¹⁵⁰ They argued a new trial was merited “in the interest of justice” because of the prejudice inured to them from the venue and the prosecution’s misconduct.¹⁵¹ Guerrero argued that, although he did “not seek to criticize the Court’s voir dire procedure nor could he,” the jurors’ responses in voir dire were “ ‘politically correct,’ ” in that they “all agreed that they would be fair and impartial.”¹⁵² Medina similarly argued that, “[djespite the extraordinary care this Court exercised in the jury selection process,” a fair and impartial jury could not be seated in Miami-Dade County.¹⁵³ Campa and Gonzalez argued that witness Jose Basulto’s remarks were highly prejudicial because they implied that Defendant Hernandez’s counsel was a spy for the Cuban government.¹⁵⁴ Campa also asserted that the jury’s quick verdicts without asking a single question in the complex, almost seven-month trial indicated that the jury was subject to community pressure and prejudice.¹⁵⁵ He further argued that the government prejudiced the defendants by stating in closing argument that they “were ‘people bent on destroying the United States’ whose defense had been ‘paid for by the American taxpayer.’ ”¹⁵⁶

On November 28, 2001, the district court denied the motions for new trial in a detailed written order.¹⁵⁷ It referenced its prior orders denying a change of venue and denying reconsideration of the denial of the change of venue, and stated that because it was “[a]ware of the impassioned Cuban exile-community residing within this venue, the Court implemented a series of measures to guarantee the Defendants’ right to a fair trial.”¹⁵⁸ These efforts included a searching, seven-day voir dire process, daily instructions to the jury not to speak with the media about the case or to read or listen to any reports about the case, and gag orders on all trial participants.¹⁵⁹ The court also struck witness Jose Basulto’s statement and instructed the jury to disregard it.¹⁶⁰ The court found that the jury’s prompt, inquiry-free verdict at most was speculative, circumstantial evidence of the venue’s impact on the jury.¹⁶¹ The court concluded that “any potential for prejudice ... was cured” “through the Court’s methodical, active pursuit of a fair trial from voir dire, to the presentation of evidence, to argument, and concluding with deliberations and the return of verdict.”¹⁶² As to the defendants’ claims of prosecutorial misconduct, the court found that it upheld each of defense counsel’s objections and specially instructed the jury that it was to disregard the improper statements.¹⁶³ In light of the entire record, the interests of justice did not merit a new trial.¹⁶⁴

On November 12, 2002, the defendants renewed their motion for a new trial on two grounds: newly discovered evidence and the interests of justice.¹⁶⁵ They argued that they were entitled to a new trial based on the government’s motion for change of venue filed June 25, 2002, in the case of Ramirez v. Ashcroft,¹⁶⁶ a Title VII action brought by a Hispanic employee of the INS.¹⁶⁷ Ramirez alleged he was subjected to a hostile work environment, unlawful retaliation, and intimidation by his employer as a result of the INS’s removal of Elian Gonzalez from the United States and his return to his father in Cuba on April 22, 2000.¹⁶⁸ According to the defendants, the government’s decision to seek a change of venue in Ramirez, based upon the alleged prejudicial effect of the pervasive community sentiment following the custody battle over Elian Gonzalez, constituted newly discovered evidence of prose-cutorial misconduct because the same United States Attorney opposed the defendants’ repeated motions for change of venue in the instant case and misrepresented the pervasive community prejudice in the Miami community.¹⁶⁹ In support of this argument, the defendants filed the government’s Ramirez motion for change of venue, in which it argued that “the Miami-Dade community has developed and maintains strong emotional feelings and opinions regarding the handling of the Elian Gonzalez affair- by INS and the Attorney General’s office.”¹⁷⁰ The government asserted, “it is extremely unlikely that a venire from Miami-Dade County would be able to put aside such deeply held opinions and feelings and afford the [government] a fair trial .... ”¹⁷¹

The defendants further argued that a néw trial should be granted in the interests of justice.¹⁷² They argued that surveys of the Miami-Dade community, the responses given by prospective jurors during voir dire, and the atmosphere surrounding the voir dire demonstrated that a fair and impartial jury could not be selected in this case.¹⁷³ In support, they filed an affidavit by legal psychologist Dr. Kendra Brennan and a study by Florida International University’s Professor of Sociology and Anthropology Dr. Lisandro Pérez.¹⁷⁴ Dr. Brennan evaluated Professor Moran’s survey and concluded that it “accurately reflect[ed] profound existing bias against those associated with the Cuban government in Miami-Dade County.”¹⁷⁵ Dr. Pér-ez concluded that “the possibility of selecting twelve citizens of Miami-Dade County who can be impartial in a case involving acknowledged agents of the Cuban government is virtually zero.”¹⁷⁶ The defendants also supported their interests of justice argument with news articles and reports by Human Rights Watch, which addressed the harassment, intimidation, and violence that Miami Cuban exiles suffered for expressing moderate political views toward Castro or Cuban relations.¹⁷⁷

The district court denied the renewed motion for new trial holding that the government’s decision to move for a change of venue in Ramirez did not constitute newly discovered evidence of prosecutorial misconduct with respect to the government’s opposition to the defendants’ motions for change of venue in this case.¹⁷⁸ The court reasoned that Ramirez differed from this case in that it “related directly to the INS’s handling of the removal of Elian Gonzalez from his uncle’s home, an event which, it is arguable, garnered much more attention here in Miami and worldwide than this case.”¹⁷⁹ The government’s position in Ramirez “was premised specifically upon the facts of that case,” including the fact that Ramirez “had stirred up extensive publicity in the local media focusing directly on the facts he alleged in the lawsuit .... ”¹⁸⁰ The court also ruled that it lacked jurisdiction to grant a new trial based on the defendants’ interests of justice argument because such a motion must be filed within seven days after the guilty verdict, or within an extension of time granted by the trial judge.¹⁸¹ This time period had expired more than 19 months before the motion was filed, and therefore, the court declined to consider that argument, or any of its supporting exhibits.¹⁸²

In a published opinion addressing only the motions for change of venue and motions for a new trial, a panel of this court concluded that the defendants were entitled to a pretrial change of venue and were denied a fair trial because of the “perfect storm” created by the pretrial publicity surrounding this case, the pervasive community sentiment, and the government’s closing arguments.¹⁸³ We vacated the panel opinion and granted the government’s petition for rehearing en banc to consider whether the defendants were denied a fair and impartial trial.¹⁸⁴

II. DISCUSSION

On appeal, we first consider whether the district court abused its discretion in denying the defendants’ Rule 21 motion for change of venue for failure to make a sufficient showing of prejudice due to either pretrial publicity or pervasive community prejudice. The second issue we consider is whether the court abused its discretion in denying their Rule 33 motions for new trial based on newly discovered evidence and the interests of justice.

A. Denial of Motions for Change of Venue

We review a district court’s denial of a Rule 21 motion for change of venue for an abuse of discretion.¹⁸⁵ Rule 21 provides that, “[u]pon the defendant’s motion, the court must transfer the proceeding ... to another district if the court is satisfied that so great a prejudice against the defendant exists in the transferring district, that the defendant cannot obtain a fair and impartial trial there.”¹⁸⁶ A defendant can establish that prejudice against him prevented him from receiving a fair trial and necessitated a change of venue by two methods. He can demonstrate that a fair trial was impossible.because the jury was actually prejudiced against him.¹⁸⁷ Or, he can show that juror prejudice should have been presumed from prejudice in the cpmmunity and pretrial publicity.¹⁸⁸ Here, the defendants argue that a presumption of prejudice was warranted because of the pervasive community prejudice against the Cuban government and its agents and the pretrial publicity that existed in Miami.

A district court must presume that so great a prejudice exists against the defendant as to require a change of venue under Rule 21 if the defendant shows: (1) that widespread, pervasive prejudice against him and prejudicial pretrial publicity saturates the community where he is to be tried and (2) that there is a reasonable certainty that such prejudice will prevent him from obtaining a fair trial by an impartial jury.¹⁸⁹ The presumed prejudice principle is “ ‘rarely’ applicable” and is reserved for an “extreme situation.”¹⁹⁰ “[T]he burden placed upon the [defendant] to show that pretrial publicity deprived him of his right to a fair trial before an impartial jury is an extremely heavy one.”¹⁹¹ Once the defendant puts forth evidence of the pervasive prejudice against him, the government can rebut any presumption of juror prejudice by demonstrating that the district court’s careful and thorough voir dire, as well as its use of prophylactic measures to insulate the jury from outside influences, ensured that the defendant received a fair trial by an impartial jury.¹⁹²

1. The News Articles

Here, the district court concluded that the defendants failed to present evidence sufficient to raise a presumption of prejudice against them that would impair their right to a fair trial by an impartial jury.¹⁹³ In support of their motion for change of venue, the defendants first relied on numerous news articles, which they argued demonstrated that the community atmosphere was “so pervasively inflamed” that it would impair any juror’s ability to reach a fair verdict.¹⁹⁴

The district court did not abuse its discretion in finding that the pretrial publicity was not “ ‘so inflammatory and pervasive as to raise a presumption of prejudice.’ ”¹⁹⁵ Prejudice against a defendant cannot be presumed from pretrial publicity regarding peripheral matters that do not relate directly to the defendant’s guilt for the crime charged.¹⁹⁶ In fact, we are not aware of any case in which any court has ever held that prejudice can be presumed from pretrial publicity about issues other than the guilt or innocence of the defendant.¹⁹⁷

Moreover, the Supreme Court has ruled that we cannot presume prejudice in the absence of a “trial atmosphere ... utterly corrupted by press coverage.”¹⁹⁸ The Court distinguished between publicity that is “largely factual publicity” and “that which is invidious or inflammatory,” in Murphy v. Florida,¹⁹⁹ a case in which the Court ruled that the defendant was not denied due process when he was denied a change of venue, despite extensive publicity about the defendant’s crime and criminal history. The Court found that there was no inflamed community atmosphere because the news articles appeared seven to twenty months before the jury was selected and the articles were largely factual in nature.²⁰⁰ The Court also distinguished between jurors’ “mere familiarity [with the defendant and his past crimes] and an actual predisposition against him.”²⁰¹ Some of the juroi’s had a vague recollection of the alleged crime, but none believed that the defendant’s past crimes were connected to the present case, nor did the voir dire indicate that the jurors were prejudiced against him.²⁰² Therefore, the defendant failed to show that the trial was “inherently prejudicial” or that the jury selection process permitted an “inference of actual prejudice.”²⁰³

Here, the news materials submitted by the defendants fall far short of the volume, saturation, and invidiousness of news coverage sufficient to presume prejudice. Of the numerous articles submitted, very few related directly to the defendants and their indictments.²⁰⁴ The articles primarily concerned subjects such as the community tensions and protests related to general anti-Castro sentiment, the conditions in Cuba, and other ongoing legal cases, such as the Elian Gonzalez matter.²⁰⁵ Of the articles about the Brothers to the Rescue shootdown, most were published approximately one year before the court first ruled on the change of venue motion.²⁰⁶ Therefore, the few articles that did relate to the defendants and their alleged activities in particular were too factual and too old to be inflammatory or prejudicial. Moreover, the record reflects that not a single juror who deliberated on this case indicated that he or she was in any way influenced by news coverage of the case.²⁰⁷ Nor does the record reflect that any one of them had formed an opinion about the guilt or innocence of the defendants before the trial began.²⁰⁸ In fact, most of the venire revealed that they were either entirely unaware of the case, or had only a vague recollection of it.²⁰⁹ “To ignore the real differences in the potential for prejudice would not advance the cause of fundamental fairness, but only make impossible the timely prosecution of persons who are well known in the community, whether they be notorious or merely prominent.”²¹⁰ Accordingly, the defendants have failed to demonstrate that this trial was “utterly corrupted by press coverage.”²¹¹

2. The Moran Survey

The district court also considered the results of the random survey of 300 registered Miami-Dade voters conducted by Professor Moran, which was purportedly designed to examine prejudice against anyone alleged to have assisted the Cuban government in espionage activities.²¹² According to Professor Moran, the survey indicated that “the only viable means of assuring the defendant a fair and impartial jury” was to transfer the case out of the Miami District of the Southern District of Florida.²¹³ The court declined to afford the survey and Professor Moran’s conclusions substantial weight in determining whether to change the venue, but invited the defendants to renew their motions for change of venue if the-voir dire showed that an impartial jury could not be empaneled.²¹⁴

It was entirely within the district court’s prerogative to reject outright Professor Moran’s survey as a basis upon which to grant a motion to change venue. The record reflects that the district court carefully considered the survey and Professor Moran’s conclusions, finding six specific reasons why the survey was unpersuasive.²¹⁵ The strongest support for the court’s conclusion was the fact that Moran relied on the very same survey that we previously rejected in Fuentes-Coba as a basis for his conclusion that a substantial prejudice existed in the Southern District of Florida against defendants alleged to have helped the Castro government.²¹⁶ Moreover, the survey was riddled with non-neutral questions, such as the question that asked the respondent to agree or disagree whether “Castro’s agents have attempted to disrupt peaceful demonstrations such as the Movimiento Democracia’s flotillas which honor fallen comrades.”²¹⁷ The survey was too ambiguous to be reliable. For example, it asked if there are “any circumstances” that would change the respondent’s “opinion,” but it did not clarify to which “opinion” the question refers.²¹⁸ Moreover, only two questions in the entire survey directly referenced the defendants.²¹⁹

Our deferential standard of review requires us to affirm the district court’s conclusion that the Moran survey was not sufficiently persuasive to support a motion for change of venue. “The well established rule vests substantial discretion in the district court as to the granting or denying of a motion for transfer .... ”²²⁰ “The trial court is necessarily the first and best judge of community sentiment and the indifference of the prospective juror. Appellate courts ... will interfere only upon a showing of manifest probability of prejudice.”²²¹

Furthermore, the court’s decision to deny the defendants’ pretrial change of venue motions without prejudice in favor of proceeding to voir dire was a well-supported exercise of discretion. When a defendant alleges that prejudicial pretrial publicity would prevent him from receiving a fair trial, it is within the district court’s broad discretion to proceed to voir dire to ascertain whether the prospective jurors have, in fact, been influenced by pretrial publicity.²²² Once .the court has conducted an appropriate voir dire examination, it also has the broad discretion to rule whether prejudice resulted from the pretrial publicity such that the defendant would be denied a fair trial.²²³ Indeed, we have ruled that a trial court’s method of holding its decision on a Rule 21 motion for change of venue in abeyance until the conclusion of the voir dire “is clearly the preferable procedure.”²²⁴ Even the defendants themselves admitted that the district court’s voir dire more .thoroughly evaluated the sentiment of the Miami-Dade community. They admitted, “quite frankly, if Professor Moran could interrogate his pool members the way this Court has interrogated some of the prospective jurors, the social sciences wouldn’t be soft sciences, they would be hard sciences.”²²⁵

3. The Voir Dire

The voir dire in this case was a model voir dire for a high profile case. The court conducted a. meticulous two-phase voir dire stretching over seven days.²²⁶ In contrast to the generalized, pre-fabricated, and sometimes leading questions of Professor Moran’s survey were the detailed and neutral voir dire questions that the court carefully crafted with the parties’ assistance.²²⁷ In the first phase of voir dire, the court screened 168 prospective jurors for hardship and their ability to reach a verdict based solely on the evidence.²²⁸ In the second phase, the court extensively and individually questioned 82 prospective jurors outside the venire’s presence regarding sensitive subjects, such as involvement in pro- and anti-Castro political groups and immigration into the United States from Cuba.²²⁹ Phase two questioning revealed that most of the ■ prospective jurors, and all of the empaneled jurors, had been exposed to little or no media coverage of the case.²³⁰ Those ■ who had been exposed to media coverage of the case vaguely recalled a “shootdown,” but little else.²³¹ Ultimately, the court struck 32 out of 168- potential jurors (19%) for Cuba-related animus, which was well within an acceptable range.²³² Qualified jurors need not be totally ignorant of the facts and issues involved:

To hold that the mere existence of any preconceived notion as to the guilt or innocence of an accused, without more, is sufficient to rebut the presumption of a prospective juror’s impartiality would be to establish an impossible standard. It is sufficient if the juror can lay aside his impression or opinion and render a verdict based on the evidence presented in court.²³³

At the conclusion of the voir dire, the . defendants failed to express any dissatisfaction with the selected jurors in terms of their ability to serve fairly and impartially,²³⁴ and even complimented the court’s voir dire as “extraordinary”²³⁵ and stated that they were “very happy with” the jury.²³⁶ The court’s voir dire was so effective in screening potential jurors that the defendants did not exercise all of their peremptory challenges.²³⁷ We have ruled that a defendant’s failure to use all peremptory challenges “indicates the absence of juror prejudice.”²³⁸ Moreover, the defendants failed to renew their change of venue motions at the end of the voir dire, despite the court’s invitation to do so, further indicating their satisfaction with the jury and a lack of juror prejudice.²³⁹ Accordingly, the court’s careful and thorough voir dire rebutted any presumption of jury prejudice.²⁴⁰

“A trial court’s finding of juror impartiality may ‘be overturned only for manifest error.’ ”²⁴¹ We owe the district court “wide discretion” in “conducting voir dire in the area of pretrial publicity and in other areas that might tend to show juror bias.”²⁴² “The judge of that court sits in the locale where the publicity is said to have had its effect and brings to his evaluation any of such claim his own perception of the depth and extent of news stories that might influence a juror.”²⁴³

In sum, the record in this case amply demonstrates that the district court took extraordinary measures to carefully select a fair and impartial jury. The court extensively and individually questioned the prospective jurors* repeatedly cautioned them not to read anything or talk to anyone about the case, insulated the jurors from media publicity, provided the defendants with extra peremptory challenges, struck 32 persons for cause, and struck all of the Cuban-Americans over the government’s Batson objection.²⁴⁴ Under these circumstances, we will not disturb the district court’s broad discretion in assessing the jurors’ credibility and impartiality.

4. The Trial

A review of the record reveals that this trial “comported with the highest standards of fairness and professionalism.”²⁴⁵ The court maintained strict control over the proceedings by employing various curative measures to insulate the jury from any outside influence, from the beginning of the trial to the jury’s verdict. From the commencement of the case, the parties, counsel, and witnesses were under a strict gag order, as well as a sequestration order, which prohibited them from releasing information or opinion that would interfere with the trial or otherwise prejudice the defendants.²⁴⁶ On each day of the trial, before every recess, and at the end of every day, the court admonished the jurors not to discuss the case amongst themselves or with others, not to have contact with anyone associated with the trial, and not to expose themselves, read, or listen to anything related to the case.²⁴⁷ The court maintained control over the seating in the courtroom as well, designating certain rows to certain groups and requiring the media to sit in the back row.²⁴⁸ The court prevented the media from accessing the voir dire questions by sealing them during jury selection.²⁴⁹

The court fiercely guarded the jury from outside intrusions. From the first day of trial, the court instructed the marshals to accompany the jury, with their juror tags removed, as they left the building.²⁵⁰ The court rejected the media’s request for the twelve jurors’ names.²⁵¹ The court took extra steps to insulate the jurors during their deliberations, arranging for them to enter the courthouse by a private entrance and providing them with transportation to their vehicles or mass transit.²⁵²

5. Supreme Court Precedent

This case was nothing like the cases in which the Supreme Court has previously found that defendants were denied a fair trial by an impartial jury because of pretrial publicity or pervasive community prejudice. The record reflects that the pretrial community atmosphere in this case was unlike that which existed in Irvin v. Dowd. In that case, the rural, Indiana community of 30,000 where the defendant was tried was subjected to a barrage of inflammatory publicity immediately before trial, including information on the defendant’s prior convictions, his confession to 24 burglaries and six murders, including the one for which he was tried, and his unaccepted offer to plead guilty in order to avoid the death sentence.²⁵³ The Supreme Court ruled that the defendant was entitled to a change of venue because the prejudice against him was “clear and convincing,” as reflected by the fact that eight of the twelve jurors had formed an opinion that he was guilty before the trial began.²⁵⁴

Also distinguishable from this case is Rideau v. Louisiana;,²⁵⁵ a case in which the police illegally obtained a confession from the defendant, which a local television station filmed and broadcast three times in the community where the crime and the trial occurred. ' “[Without pausing to examine a particularized transcript of the voir dire examination of members of the jury,” the Supreme Court overturned the conviction, holding that the widespread dissemination of this highly damaging material rendered the defendant’s trial nothing more than “a hollow formality.”²⁵⁶ The Court ruled that the “kangaroo court proceedings” deprived the defendant of due process.²⁵⁷

The district court’s implementation of numerous curative measures to insulate the jury from disruptive influences in this case also sits in stark contrast to the “carnival atmosphere” that warranted a reversal of the defendant’s conviction in Sheppard v. Maxwell.²⁵⁸ In Sheppard,, the judge did not adequately direct the jury not to read or listen to anything concerning the case, but merely suggested that the jury not expose themselves to media reports.²⁵⁹ The jurors were “thrust into the role of celebrities by the judge’s failure to insulate them from the reporters and photographers,” when numerous pictures of the jurors and their addresses appeared in the newspaper.²⁶⁰ Likewise, in Estes v. Texas,²⁶¹ the defendant was denied his due process rights because the courtroom was a “mass of wires, television cameras, microphones, and photographers.” At least twelve cameramen were allowed to photograph the proceedings, “[c]ables and wires were snaked across the courtroom floor, three microphones were on the judge’s bench and others were beamed at the jury box and the counsel table.”²⁶²

The rare instances in which the Supreme Court has presumed prejudice to overturn a defendant’s conviction are far different from this case. In those cases, the “kangaroo court proceedings” in combination with the “circus atmosphere” generated by sensational pretrial publicity deprived the defendant of a fair trial. Here, the district court carefully and meticulously evaluated the defendants’ evidence of pretrial publicity and then made specific factual findings to discount that evidence. At trial, the court used numerous curative measures to prevent any publicity from affecting the jury’s deliberations.

In sum, to establish a presumption of juror prejudice necessitating Rule 21 change of venue, a defendant must demonstrate that (1) widespread, pervasive prejudice and prejudicial pretrial publicity saturates the community, and (2) there is a reasonable certainty that the prejudice prevents the defendant from obtaining a fair trial. We find that the defendants in this casé failed to meet this two-pronged test. They failed to show that so great a prejudice existed against them as to require a change of venue under Rule 21, in light of the court’s effective use of prophylactic measures to carefully manage individual voir dire examination of each and every panel member and its successful steps to isolate the jury from every extrinsic influence. Under these circumstances, we will not disturb the district court’s broad discretion in ruling that this is not one of those rare eases in which juror prejudice can be presumed.

B. Denial of Motions for New Trial

We review a district court’s denial of a motion for new trial for abuse of discretion.²⁶³ Rule 33 of the Federal Rules of Criminal Procedure provides:

(a) Defendant’s Motion. Upon the defendant’s motion, the court may vacate any judgment and grant a new trial if the interest of justice so requires. If the case was tried without a jury, the court may take additional testimony and enter a new judgment.

(b) Time to File.

(1) Newly Discovered Evidence. Any motion for a new trial grounded on newly discovered evidence must be filed within 3 years after the verdict or finding of guilty. If an appeal is pending, the court may not grant a motion for a new trial until the appellate court remands the case.

(2) Other Grounds. Any motion for a new trial grounded on any reason other than newly discovered evidence must be filed within 7 days after the verdict or finding of guilty.²⁶⁴

Thus, there are two grounds upon which a court may grant a motion for new trial: one based on newly discovered evidence, which must be filed within three years of the verdict pursuant to Rule 33(b)(1); and the other based on any other reason, typically the interest of justice, which must be filed within seven days of the verdict, pursuant to Rule 33(b)(2).²⁶⁵

“Motions for a new trial based on newly discovered evidence are highly disfavored in the Eleventh Circuit and should be granted only with great caution. Indeed, the defendant bears the burden of justifying a new trial.”²⁶⁶ Newly discovered evidence need not relate directly to the issue of guilt or innocence to justify a new trial, “but may be probative of another issue of law.”²⁶⁷ For instance, the existence of a Brady violation, as well as questions regarding the fairness or impartiality of a jury, may be grounds for a new trial.²⁶⁸

The defendants are not entitled to a new trial on the basis of newly discovered evidence under Rule 33(b)(1) because the government’s decision to move for a change of venue in Ramirez does not constitute newly discovered evidence of prosecutorial misconduct with respect to the government’s earlier opposition to the defendants’ motions for change of venue in this case. Ramirez was entirely different from this case in that it was a Title VII employment discrimination case arising out of the INS’s role in the removal of Elian Gonzalez from his uncle’s home, whereas this case involved agents of the government of Cuba operating unlawfully in the United States and conspiring to commit espionage and murder.²⁶⁹ Moreover, Ramirez’s conduct in procuring and exploiting partisan media coverage of the evidence and the issues in his case distinguished Ramirez from the instant case. On the day Ramirez filed his lawsuit, he held a press conference on the steps of the courthouse, during which he displayed one of the items featured in his complaint, an example of a cup holder with a picture of the Cuban flag and the international “no symbol.”²⁷⁰ The Miami Herald quoted Ramirez saying that the INS was “the most corrupt agency in the country” with a “deep hatred toward Hispanics.”²⁷¹ He appeared on several radio and television shows, local rallies, and protests, and his photograph appeared on banners carried by protestors demonstrating outside of the INS building.²⁷² On one television show, Ramirez disclosed a document produced during a videotaped deposition taken during discovery and caused the deposition itself to be broadcast on the show, in violation of Local Rule 77.2.²⁷³

The defendants’ argument that the government’s subsequent legal position in the Ramirez case constituted prosecuto-rial misconduct that warrants a new trial is essentially a claim of judicial estoppel. Judicial estoppel bars a party from asserting a position in a legal proceeding that is inconsistent with its position in a previous, related proceeding.²⁷⁴ It “is designed to prevent parties from making a mockery of justice by inconsistent pleadings.”²⁷⁵ Courts consider two factors in determining whether to apply the doctrine: whether the “allegedly inconsistent positions were made under oath in a prior proceeding” and whether such inconsistencies were “calculated to make a mockery of the judicial system.”²⁷⁶ Judicial estoppel is not applicable here because Ramirez was not a related proceeding, but rather an employment discrimination lawsuit. Moreover, the position that the government took in Ramirez occurred subsequent to — not before — its position in this case. The government filed its motion for change of venue in Ramirez on June 25, 2002, more than one year after the defendants were convicted.²⁷⁷ Therefore, the defendants’ argument that the government should have been estopped from opposing its change of venue motions in a prior proceeding is chronologically unsound, and the court did not abuse its discretion in denying the defendants’ motion for new trial based on newly discovered evidence.

Nor are the defendants entitled to a new trial in the interests of justice under Rule 33(b)(2). The defendants timely filed their initial motion by the court-extended August 1, 2001, deadline²⁷⁸ for filing post-trial motions, arguing that a new trial was warranted in the interests of justice due to the prejudice inured to them from the venue and the prosecution’s misconduct at trial.²⁷⁹ The district court, denied the motion, citing the numerous curative measures it implemented to guarantee the defendants’ right to a fair trial.²⁸⁰ The record reflects that any potential for prejudice against the defendants was cured by the court’s methodical pursuit of a fair trial. Basulto’s comment that Hernandez’s counsel was a spy for Cuba did not prejudice the defendants because it was merely a single remark during a seven-month trial by the defense’s own witness, which the court struck and instructed the jury to disregard.²⁸¹ Moreover, the prosecution’s closing arguments did not prejudice the defendants because the court granted the defendants’ objections and specifically instructed the jury to disregard the improper statements.²⁸² These alleged incidents of government misconduct “were so minor that they could not possibly have affected the outcome of the trial.”²⁸³

Thereafter, in November 2002, the defendants filed a renewed motion for new trial on both newly discovered evidence and interest of justice grounds.²⁸⁴ ■ The defendants based their renewed motion almost entirely on the interests of justice argument, devoting 20 of the 32 pages of the motion and 7 of the 12 supporting exhibits to that issue.²⁸⁵ The defendants filed an affidavit and a survey from two new experts, an additional affidavit from Professor Moran defending his survey, and additional news articles and reports by the Human Rights Watch.²⁸⁶ None of these materials were presented to the district court for consideration with the initial new trial motions. The district court declined to consider the defendants’ renewed interests of justice argument and supporting materials, ruling that because “the seven-day period ... expired more than nineteen months ago,” it lacked jurisdiction to grant the motion on that basis.²⁸⁷

The district court did not abuse its discretion in refusing to consider the defendants’ renewed motion based on the interests of justice. A court may not consider motions for new trial based on any other argument than newly discovered evidence outside the 7-day period.²⁸⁸ “This deadline is rigid .... [C]ourts ‘may not extend the time to take any action under [Rule 33], except as stated’ in Rule 33 itself.”²⁸⁹ Nor does a district court have the power to regard an untimely motion for new trial as a supplement to a timely motion.²⁹⁰ The time for the defendants to present the entirety of their interests of justice argument was when they initially filed it in July and August of 2001, within the court-extended August 1st deadline. The defendants’ renewed motion for new trial based on the interests of justice was essentially the defendants’ attempt to relitigate the merits of the venue issue that the court had previously considered four times. The defendants could have commissioned Drs. Brennan and Pér-ez to provide affidavits in support of their position during any one of those times when the court previously considered the issue. We will not permit, nor does Rule 33 permit, the defendants to take a second — or fifth' — -“bite at the apple.”²⁹¹ Because the defendants’ renewed interest of justice motion was filed outside the extended time period during which a court may consider new trial motions, and because the government preserved its argument that the claim was untimely,²⁹² the court did not abuse its discretion in declining to consider the issue.

Accordingly, because neither newly discovered evidence nor the interests of justice warrant a new trial, we affirm the court’s decision to deny the defendants’ motions for new trial.

III. CONCLUSION

Based on our thorough review of this case, we rely on the trial judge’s judgment in assessing juror credibility and impartiality. The trial judge, as a member of the community, can better evaluate whether there is a reasonable certainty that prejudice against the defendant will prevent him from obtaining a fair trial. The judge brings to the courtroom her own perception of the depth and extent of community prejudice and pretrial publicity that might influence a juror.

Miami-Dade County is a widely diverse, multi-racial community of more than two million people. Nothing in the trial record suggests that twelve fair and impartial jurors could not be assembled by the trial judge to try the defendants impartially and fairly. The broad discretion the law reposes in the trial judge to make the complex calibrations necessary to determine whether an impartial jury can be drawn from a cross-section of the community to ensure a fair trial was not abused in this case. Although it is conceivable that, under a certain set of facts, a court might have to change venue to ensure a fair trial, the threshold for such a change is rightfully a high one. The defendants have not satisfied it.

For the reasons given, we AFFIRM the district court’s denial of the defendants’ motions for change of venue and for new trial. Having decided these issues upon which we granted en banc review, we REMAND this case to the panel for consideration of the remaining issues.

1 . The defendants raised the following additional issues on appeal: prosecutorial misconduct regarding the testimony of a government witness and during closing argument; improper use of the Classified Information Procedures Act; improper denial of a motion to suppress fruits of searches under the Foreign Intelligence Surveillance Act; Batson violations; insufficiency of the evidence regarding the conspiracy to transmit national defense information to Cuba, violations of the Foreign Services Registration Act, and conspiracy to commit murder; improper denial of a motion to dismiss Count 3 based on Foreign Sovereign Immunities Act jurisdictional grounds; improper denial of jury instructions regarding specific intent, necessity, and justification; and sentencing errors. We remand this case to the panel for consideration of these outstanding issues.

2 . Rl-224. The government filed a second su-perceding indictment on May 7, 1999. Id.

3 . Id. at 3-4.

4 . Id. at 11-13.

5 . Id. at 13-16.

6 . Id. at 16-22.

7 . Id. at 20.

8 . Id. at 23-31.

9 . 2SR1-122 at 1.

10 . Id. at 1-2 (quoting S.D. Fla. L.R. 77.2(A)(1)).

11 . Rl-275.

12 . Rl-280 at 3.

13 . Id.

14 . R2-303.

15 . R2-317. 321. 324. 329. 334: R3-397. 455.

16 . See id. Later, at oral argument on the motions, they agreed that they would be satisfied with a transfer of the case within the Southern District of Florida from the Miami Division to the Fort Lauderdale Division. R5-586 at 2, n.l.

17 . See id.

18 . R2-321, Ex.A at 16.

19 . Id. at Ex.C at 1.

20 . Id. at Ex.D at 1-3. The interviewer began each survey by stating, "We are conducting a survey of south Florida voters to see how they feel about the upcoming trial of some people charged in federal court with spying for Castro’s Cuba. Your house has been randomly selected to provide a participant for this survey.” Id. at 1. The interviewer then asked whether the interviewee was "aware of the case involving the alleged Cuban spies who were arrested in Miami?” Id. The interview then proceeded with Section 1 of the survey, which included the following statements and questions:

1. Cuban born persons carrying false identification documents and engaging in intelligence gathering activities in south Florida are Castro spies.

2. These defendants are charged with setting up the ambush of the Brothers to the Rescue planes in which four people were killed. This type of activity is characteristic of the Castro regime.

3. The aim of Castro is to undermine legitimate Cuban exile organizations.

4. An aim of Castro is to infiltrate U.S. military bases in South Florida.

5. Castro’s agents have attempted to disrupt peaceful demonstrations such as the Mov-imiento Democracia’s flotillas which hon- or fallen comrades.

6. Castro’s Cuba is an enemy of the United States.

7. Castro poses a real threat to the lives of Cuban [sic] exiles.

8. Castro’s spies should not be given a public trial if this threatened national security-

9. Because of my feelings and opinions about Castro's government I would find it difficult to be a fair and impartial juror in a trial of alleged Cuban spies.

10. You have told me that you would find it (difficult/not difficult) to be a fair and impartial juror. Are there any circumstances that would change your opinion? If so, what?

11. Suppose your jury found these spy defendants not guilty. How worried would you be that you might be criticized in your community?

Id. at 2-3.

21 .Id. at 3-5. Section 2 of the survey asked the following questions:

12. In what community do you live?

13. What is your zip code?

14. In what country were you born?

15. How long have you lived in South Florida?

16. Do you subscribe to, buy, or read a daily newspaper?

17. If you read a daily newspaper is it in English or Spanish?

18. Do you regularly listen to the news on the radio?

19. If you listen to the news on the radio is it in English or Spanish?

20. Do you regularly watch the news on the television?

21. If you watch the news on television is it in English or Spanish?

22. Do you have close friends or family members in Cuba now?

23. Are you an active member of any Pro-Cuba/Anti-Castro groups?

24. Do you donate money to Pro-Cuba/Anti-Castro groups or causes?

25. What is (was) your occupation?

26. What is your age today?

27. What is your marital status today? ...

28. What is the highest level of education that you have COMPLETED? ...

29. Aside from the political party with which you are registered, how would you describe your current political views or beliefs? .. .

30. Which [ethnicity] best describes your background? ...

31. Which [monetary range] best describes your total household annual income ....

32. Respondent's sex.

Id.

22 . Id. at Ex.A at 16.

²³

²⁴

²⁵

²⁶

27 . Id. at 8-11, 16.

28 . Id. at 11.

29 . R2-317, 321, 324, 329, 334; R3-397, 455.

30 . R2-317 at 3.

31 . R3-443 at 3.

³²

33 . Id. at 5, n. 3.

³⁴

35 . Id. at 6-12.

36 . Id. at 6-9.

37 . 738 F.2d 1191, 1194 (11th Cir.1984).

38 . Id. at 1195.

39 . R3-443 at 7.

40 . No. 97-267 (S.D.Fla.1997).

⁴¹

⁴²

43 . Id. at 8-9.

44 . Id. at 8. The government noted the close similarity between the two surveys and the “echo-like nature” of Moran's affidavit by referencing the following example. Id. In Moran’s 1997 Broder affidavit, Moran concluded:

Inability to be Fair and Impartial Finally, note item 14:

"Because of my feelings and opinions about the U.S. trade embargo on Cuba, I would find it difficult to be a fair and impartial juror in a case about an alleged violation of the Cuban embargo.”

Circa 59% of the respondents are unable to agree that they can be impartial. This is very unusual!

Id. at Ex.A at 15. By comparison, Moran's affidavit in the present case uses similar language and structure:

Inability to be Fair and Impartial Finally, note item 9:

"Because of my feelings and opinions about Castro's government, I would find it difficult to be a fair and impartial juror in a trial of alleged Cuban spies.”

Circa 39.6% (57.4% of the Hispanic sub-sample) of the respondents are unable to affirm that they would be impartial and fair. This is very unusual!

R2-321, Ex.A at 12.

45 . R4-443 at 9-11.

46 . Id. at Ex.B at 1. Professor McKnight is a social psychologist specializing in social perception, research methodology, and psycho-metrics. Id.

47 . Id. at Ex. B at 2.

48 . Id. at 9.

49 . R5-586 at 16.

50 . Id. at 11. Brothers to the Rescue is a Miami-based Cuban exile group founded in 1991 to rescue rafters fleeing Cuba in the Straits of Florida and to bring them to the United States. See id. at 2; R80 at 8836-37. On February 24, 1996, three Brothers to the Rescue planes flew into the Florida Straits, toward Cuba, in search of reported rafters. R83 at 9161-70. When the three planes reached international airspace between the United States and Cuba, Cuban military ground control authorized Cuban aircraft to fire on and destroy the Brothers to the Rescue planes. Id. at 9181-85; Govt. Ex. 483 at 8-16. The Cuban military aircraft shot down two of the planes, but one escaped. Id.

51 . R5-586 at 11.

52 . Id. at 13-15.

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54 . Id. at 15.

55 . Id. at 13-14.

56 . Id. at 17. On September 15, 2000, Campa moved for reconsideration of the denial of the motion for change of venue, arguing that the court failed to consider how the defendants' theory of defense affected their ability to receive a fair trial in Miami. R5-656. The court denied reconsideration without prejudice, stating that it had previously addressed the defendants’ arguments. R6-723 at 2. The court explained that it could explore any potential bias during voir dire examination and carefully instruct the jurors during the trial. Id. The court again invited the defendants to renew their motion for change of venue, if it determined after voir dire that a fair and impartial jury could not be empaneled. Id. at 2-3.

57 . 1SR1; 1SR2.

58 . 1SR1 at 42.

59 . 1SR1; 1SR2. One of the most heated debates was whether and how the court should question prospective jurors’ support of pro- or anti-Castro political groups, and whether the court should specifically delineate nine of those groups, a question suggested by the defendants. 1SR2 at 63-74; 1SR1 at 48-55. Over the government's objection that such a question improperly implied an association between the Brothers to the Rescue and other historically violent groups, the court decided to include the question. 1SR1 at 51-54. Another debate centered around whether and how the court should question prospective jurors who formerly lived in Cuba regarding how they came to live in the United States. 1SR1 at 29-36. The defendants suggested that the court ask whether they had an exit visa because those who left Cuba illegally would have a different outlook on the case than those who left the country legally. 1SR1 at 29-30, 35. The government objected, arguing that such questions would make the prospective jurors feel extremely uncomfortable, but the court decided to ask the question anyway. 1SR1 at 32-33, 35.

60 . 1SR2 at 73-74.

61 . 1SR1 at 5.

62 . 1 SRI at 29.

63 . Id. at 5.

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65 . Id. at 5; R6-766.

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67 . Id. at 4.

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71 . Id. at 7.

72 . The “community impact” questions consisted of the following:

1. The charges in this case include allegations that the defendants were agents acting on behalf of the Republic of Cuba. Is there anything about that proposition that would affect your ability fairly and impartially to consider the evidence in this case and the court’s instructions?

2. Witnesses may be called in this case who have admitted to spying as agents for Cuba or who are members of the Cuban military or government. Would you automatically disbelieve such a witness regardless of their testimony or without comparing it with other witnesses or physical evidence in this case?

3. Do you know of any reason why you may be prejudiced for or against the United States or the defendants because of the nature of the charges? Or because of any other reason?

4. Have you ever lived in Cuba? Under what circumstances did you come to the United States? When did you leave? Did you have an exit visa?

5. Have any of your family members or close friends lived in Cuba? Under what circumstances did they come to the United States?

6. Do you have family or close friends living in Cuba at this time?

7. Do you have any relatives or close friends who were ever politically involved in Cuba? When? What did they do?

8. Have you, a member of your family, or a close friend traveled to Cuba?

9. If you are chosen as a juror in this case, would you be concerned about returning a verdict of guilty or not guilty because of how other members of your community might view you?

10. Can you return a verdict in this case based only on the evidence and the court’s instructions, without being concerned over the impact the verdict might have on any individuals or community, in the United States, in Cuba, or anywhere?

11. Do you have an opinion about the current government of Cuba? What is that opinion? How strong is that opinion? Will that opinion affect your ability to weigh the evidence and the court's instructions in this case fairly and with an open mind?

12. Do you have an opinion about the way the United States handles its relations with Cuba? (for example the embargo against Cuba, the immigration policy or diplomatic relations) What is that opinion? How strong is that opinion? Will that opinion affect your ability to weigh the evidence and the court's instructions in this case fairly and with an open mind?

13. Are you or a relative or close friend a member of a group whose principal purpose is to advocate a position about Cuba or American policy towards Cuba? What group? Have you ever contributed money or time to this group?

14. Have you contributed money or time or do you support any of the following groups:

P.U.N.D.

Antonio Maceo Brigade

Alpha 66

Cuban Workers Alliance

Omega 7

Miami Committee for Lifting the Cuban Embargo

The Democracy Movement

Brothers to the Rescue

Cuban American National Foundation

15. Do you have an opinion about the Cuban exile community in the United States? What is that opinion? How strong is that opinion? Will that opinion affect your ability to weigh the evidence and the court's instructions in this case fairly and with an open mind?

16. Do you have an opinion about the Elian Gonzalez case? What is that opinion? How strong is that opinion? Will that opinion affect your ability to weigh the evidence and the court's instructions in this case fairly and with an open mind? Do you understand that the facts in that case have nothing to do with the facts in this case?

17. As a result of the Elian Gonzalez matter, certain members of the South Florida community, including some elected officials, publicly voiced their displeasure with the United States government's actions in that case. Will those statements, or your own feelings about the case, affect your ability to give either the defendants or the United States a fair trial in this case? If so, how?

18. Can you listen to and fairly evaluate the testimony of an individual who is or was closely allied with the current government of Cuba? Or who perhaps is or was a member of the communist party in Cuba?

19. If you have negative feelings about any of these issues, can you put those feelings aside and decide this case based on the evidence presented and the instructions of law as given by the court?

20. If you were the United States Attorney prosecuting this case, or if you were any of the defendants, or their counsel, do you know of any reason why you should not select yourself as a juror?

Gov’t Br. at App. G.

73 . The "pretrial publicity” questions consisted of the following:

1. What do you remember hearing, reading or seeing about this case in the news media?

2. What was the source of the information? Which newspaper/radio station/tv station!]?]

3. Has anyone ever talked to you about the facts of this case? What additional information did you get from this source?

4. Based on what you have heard or seen, have you formed any opinion as to whether the defendants are guilty or not guilty? What is that opinion? Have you ever expressed an opinion as to the guilt or non-guilt of the defendants? To whom?

5. A jury in a criminal case must base its verdict solely on the evidence presented at trial, and the instructions provided by the Court. Can you put whatever statements you may have seen, heard or read out of your mind, and consider this case with an open mind, based solely on the evidence presented at trial and the instructions provided by the Court?

6. Jurors in this case will be instructed that they must not read, listen to or otherwise allow themselves to be exposed to any information, news reports, or public or private discussions about this case, unless and until they have been permanently discharged by Judge Lenard from serving on the jury. Will you be able to follow such an instruction?

7. If you are chosen as a juror in this case will you be able to return a verdict of guilty or not guilty unaffected by the possibility that any verdict would receive news media attention?

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75 . 1SR1 at 7.

76 . See R21.

77 . R21-R24.

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80 . R25-28.

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85 . 1SR2 at 75; 1SR1 at 5-6, 11; R27 at 1382.

86 . R28 at 1513.

87 . Id. at 1508-11.

88 . See R21-2 8.

89 . R7-978 at 3.

90 . R23 at 194.

91 . R21 at 111-12; R62 at 6575-76.

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93 . R21 at 113.

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95 . Id. at 117-19.

96 . R7-978 at 3, 7; R64 at 6759-60.

97 . R21 at 112.

98 . R24 at 625-26.

99 . R21 at 171.

100 . R23 at 195-97. This juror was later stricken for cause as a result of his personal knowledge of Jose Basulto, a Brothers to the Rescue pilot and witness in this case. R24 at 537-40.

101 .R23 at 197.

102 . Id. at 300-10.

103 . R25 at 717.

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105 . R29 at 1564.

106 . R5-586 at 17; R6-723 at 2-3.

107 . R27 at 1373.

108 . Id. at 1374.

109 . Id. at 1375.

110 . R104 at 12094.

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112 . Id. at 12092.

113 . The original panel of this court will consider the remaining issues on appeal, including whether the government presented sufficient evidence to support the defendants’ convictions. This brief discussion of the evidence is only meant to aid in the discussion of the change of venue and new trial issues.

114 . R44 at 3703-07.

115 . Id. at 3711-13, 3719-23.

116 . R45 at 3870-71.

117 . R74 at 7910, 7920-21; R46 at 4009-10.

118 '. R103 at 11907-08, 11911-13.

119 . R45 at 3793-99.

120 . Govt. Ex. HF 143.

121 . Govt. Exs. DG 141 at 6-7; DAV 118 at 14-19.

122 . Govt. Exs. 384, 865.

123 . R61 at 6404-15.

124 . R80 at 8836-37.

125 .R81 at 8944-45.

126 . Id. at 8945.

127 . Id. at 8947.

128 . Id. at 8947-48.

129 . Id. at 8945-46, 8955.

130 . R70 at 7130-36; R8-1009.

131 . R70 at 7130.

132 . Id. at 7131,

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134 . Id. at 7136.

135 . Id. Two weeks later, on March 1, 2001, the defendants again filed a joint motion for a mistrial and change of venue, arguing that the events surrounding the anniversary of the Brothers to the Rescue shootdown "received a great deal of publicity, all of which was biased against the defendants and consistent with the government's position at trial.” R8-1009 at 2. They maintained that "[n]o amount of voir dire or instructions to the jury [could] cure the taint, whose ripple effects are difficult to measure.” Id. at 5. They also requested a mistrial "so that their trial can be conducted in a venue where community prejudices against the defendants are not so deeply embedded and fanned by the local media.” Id.

136 . R120 at 13894-95.

137 . Id. at 13895.

138 . R124 at 14474.

139 . Id. at 14482.

140 . Id. at 14475.

141 . Id. at 14482, 14483, 14493.

142 . R125 at 14583.

143 . R124 at 14546-47; R125 at 14624.

144 . R125 at 14624.

145 . R126 at 14643-44.

146 . Id. at 14645-47.

147 . Id. at 14647.

148 . R125-R126.

149 . R126 at 14668-69.

150 . R12-1338, 1342, 1343, 1347.

151 . R12-1338 at 2-3.

152 . Id. at 2.

153 . R12-1347 at 1.

154 . R12-1342 at 3; R12-1343 at 3-4.

155 . R12-1343 at 1-3.

156 . Id. at 8.

157 . R13-1392.

158 . Id. at 14.

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163 .. Id. at 15-16.

164 . Id. at 17. In December 2001, Guerrero, Hernandez, and Medina were sentenced to life, Campa was sentenced to 228 months, and Gonzalez was sentenced to 15 years. R14-1430, 1435, 1437, 1439, 1445. After sentencing, the defendants appealed.

165 . R15-1635, 1638, 1644, 1647, 1650, 1651.

166 . No. 01-4835 (S.D. Fla. June 25, 2002).

167 . R15-1635 at 8-11.

168 . R15-1636 at Ex.2 at 1-2.

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170 . R15-1636 at Ex. 2 at 16.

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172 . R15-1635 at 12-32.

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174 . R15-1636 at Exs. 4,5.

175 . Id. at Ex. 4 at 8.

176 . Id. at Ex. 5 at 2-3.

177 . Id. atExs. 7-10, 12.

178 . R15-1678 at 8.

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182 . Id. at 6.

183 . United States v. Campa, 419 F.3d 1219 (11th Cir.) (per curiam), reh’g granted, vacated, 429 F.3d 1011 (11th Cir.2005) (per curiam).

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185 . United. States v. Smith, 918 F.2d 1551, 1556 (11th Cir.1990).

186 . Fed.R.Crim.P. 21(a).

187 . Irvin v. Dowd, 366 U.S. 717, 727, 81 S.Ct. 1639, 1645, 6 L.Ed.2d 751 (1961).

188 . Rideau v. Louisiana, 373 U.S. 723, 726-27, 83 S.Ct. 1417, 1419-20, 10 L.Ed.2d 663 (1963).

189 . See Sheppard v. Maxwell, 384 U.S. 333, 363, 86 S.Ct. 1507, 1522, 16 L.Ed.2d 600 (1966) ("[W]here there is a reasonable likelihood that prejudicial news prior to trial will prevent a fair trial, the judge should continue the case until the threat abates, or transfer it to another county not so permeated with publicity.”); Pamplin v. Mason, 364 F.2d 1, 5 (5th Cir.1966) ("Where outside influences affecting the community's climate of opinion as to a defendant are inherently suspect, the resulting probability of unfairness requires suitable procedural safeguards, such as a change of venue, to assure a fair and impartial trial.”).

190 . Mayola v. Alabama, 623 F.2d 992, 997 (5th Cir.1980) (citing Neb. Press Ass’n v. Stuart, 427 U.S. 539, 554, 96 S.Ct. 2791, 2800, 49 L.Ed.2d 683, 694 (1976), Hale v. United States, 435 F.2d 737, 747 (5th Cir.1970)).

191 . Coleman v. Kemp, 778 F.2d 1487, 1537 (11th Cir.1985).

192 . See id. at 1541, n. 25; Mayola, 623 F.2d at 1000-01.

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195 . R5-586 at 11 (quoting Ross v. Hopper, 716 F.2d 1528, 1541 (11th Cir.1983)).

196 . See United States v. Awan, 966 F.2d 1415, 1428 (11th Cir.1992); see also Meeks v. Moore, 216 F.3d 951, 963 n. 19, 967 (11th Cir.2000) (ruling that only media reports linked directly to the defendant had "eviden-tiary value" in assessing his presumed prejudice claim, which failed absent a showing that “bias played any part in his convictions").

197 . See Awan, 966 F.2d at 1428.

198 . Dobbert v. Florida, 432 U.S. 282, 303, 97 S.Ct. 2290, 2303, 53 L.Ed.2d 344, 362 (1977) (alteration in original) (internal quotation marks omitted) (quoting Murphy v. Florida, 421 U.S. 794, 798, 95 S.Ct. 2031, 2035, 44 L.Ed.2d 589 (1975)).

199 . 421 U.S. 794, 800 n. 4, 95 S.Ct. 2031, 2036 n. 4, 44 L.Ed.2d 589.

200 . Id. at 802, 95 S.Ct. at 2037; see also Spivey v. Head, 207 F.3d 1263, 1270-71 (11th Cir.2000) (ruling that the defendant failed to establish that pretrial publicity was sufficiently prejudicial or inflammatory to require a change of venue because the numerous newspaper articles that the defendant put forth were either published years before the trial or only obliquely mentioned his case, and because the prejudicial articles were not typical or widespread); United States v. De La Vega, 913 F.2d 861, 865 (11th Cir.1990) (ruling that the 330 articles submitted by the defendants were largely factual and could not have created an inflamed community atmosphere sufficient to presume prejudice in the Miami-Dade community of 1.8 million people).

201 . Mwphy, 421 U.S. at 800 n. 4, 95 S.Ct. at 2036 n. 4.

202 . Id. at 800-01, 95 S.Ct. at 2036.

203 . Id. at 803, 95 S.Ct. at 2037.

204 . See R2-317, 321, 324, 334, 329; R3-397, 455.

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207 . See R21-28.

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210 . Murphy, 421 U.S. at 800 n. 4, 95 S.Ct. at 2036 n. 4.

211 . See id. at 798, 95 S.Ct. at 2035.

212 . R5-586 at 13-15.

213 . R2-321 at Ex. A at 16.

214 .R5-586 at 13-15.

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219 . See R2-321 at Ex. D. The dissent argues that the district court focused its analysis solely on prejudicial publicity and failed to make any findings regarding prejudice within the community. We disagree with this characterization of the district court’s ruling. The court "construe[d][the][d]efendants' Motions [for change of venue] as directed primarily toward the issue of 'pervasive community prejudice’ ...." R5-586 at 10, n.2 (emphasis added). And, while the court did not go so far as to find the community was "heteroge-nous” and “highly diverse,” as the government argued, R3-443 at 3, the court did make a specific finding as to prejudice in the community: that the defendants' evidence did not demonstrate that community prejudice warranted a change of venue under Rule 21. R5-586 at 16.

220 . United States v. Williams, 523 F.2d 1203, 1208 (5th Cir.1975).

221 . Bishop v. Wamwright, 511 F.2d 664, 666 (5th Cir.1975).

222 . See United States v. Nix, 465 F.2d 90, 96 (5th Cir.1972).

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224 . Williams, 523 F.2d at 1209 n. 10.

225 . R27 at 1374.

226 . R21-28.

227 . Gov’t Br. at App. G.

228 . R6-766; R21-R24.

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232 . Compare Patton v. Yount, 467 U.S. 1025, 1029, 1035, 104 S.Ct. 2885, 2888, 2891, 81 L.Ed.2d 847, 853, 856 (1984) (holding that the trial court did not err in finding that the jury was impartial, even though "77% [of the venire] admitted they would carry an opinion in to the jury box,” because the "relevant question is not whether the community remembered the case, but whether the jurors ... had such fixed opinions that they could not judge impartially”), and Murphy, 421 U.S. at 803, 95 S.Ct. at 2038 (holding that excusing 20 out of 78 prospective jurors [or, 26%] "by no means suggests a community with sentiment so poisoned against [the defendant] as to impeach the indifference of jurors who displayed no animus of their own”), with Irvin, 366 U.S. at 727, 81 S.Ct. at 1645 (reversing the defendant’s conviction because 268 of the 430 venirepersons, or 62%, had fixed opinions regarding the defendant's guilt).

233 .Irvin, 366 U.S. at 722-23, 81 S.Ct. at 1642-43.

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236 . R104 at 12092.

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238 . United States v. Alvarez, 755 F.2d 830, 859 (11th Cir.1985).

239 . United States v. Yousef, 327 F.3d 56, 155 (2d Cir.2003).

240 . See Coleman, 778 F.2d at 1541 n. 25; Mayola, 623 F.2d at 1000-01.

241 . Mu'Min v. Virginia, 500 U.S. 415, 428, 111 S.Ct. 1899, 1907, 114 L.Ed.2d 493, 508 (1991) (quoting Patton, 467 U.S. at 1031, 104 S.Ct. at 2889).

242 . Id. at 427, 111 S.Ct. at 1906.

243 . Id. The dissent suggests that the "plethora of media” and "ubiquitous electronic communications devices” that characterize this "high-tech age” spread community prejudice across the district, necessitating a change in venue. We think, however, that such advances in communication technology support the opposite conclusion. If prejudice could be spread through multiple forms of media, the spread of such prejudice would not stop at district lines, but would extend across the state of Florida. Following that rationale, the district court should have refused to change venue because a district outside Miami-Dade would have been no more capable of producing a panel of impartial jurors than Miami-Dade itself. This is why we afford deference to the district court's assessment of juror credibility and impartiality.

244 .The government objected to the striking of all Cuban-Americans, the district court denied the Batson challenge, and the government has not raised that issue in any way. Accordingly, we have no opportunity to review the propriety of striking all the members of a particular nationality. We simply note that although the defendants challenge their convictions based on an alleged pervasive anti-Cuban sentiment in the Southern District of Florida, every Cuban-American was struck from the venire.

245 . Alvarez, 755 F.2d at 859.

246 . 2SR1-122 at 1; R21 at 117-19; R7-978 at 3, 7; R64 at 6759-60.

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253 . Irvin, 366 U.S. at 725-27, 81 S.Ct. at 1644-45.

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255 . 373 U.S. at 724, 83 S.Ct. at 1418.

256 . Id. at 726-27, 83 S.Ct. at 1419-20.

257 . Id. at 726, 83 S.Ct. at 1419.

258 . 384 U.S. 333, 358, 86 S.Ct. 1507, 1520, 16 L.Ed.2d 600 (1966).

259 . Id. at 353, 86 S.Ct. at 1517.

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261 . 381 U.S. 532, 550, 85 S.Ct. 1628, 1636, 14 L.Ed.2d 543, 554 (1965).

262 . Id. at 536, 85 S.Ct. at 1629.

263 . United States v. Vallejo, 297 F.3d 1154, 1163 (11th Cir.2002).

264 . Fed.R.Crim.P. 33. Rule 33 was amended December 1, 2002, "as a part of the general restyling of the Criminal Rules to make them more easily understood and to make style and terminology consistent throughout the rules. These changes [were] intended to be stylistic only.” See Fed.R.Crim.P. 33 advisory committee's note 2002. We apply the current version of Rule 33, even though the defendants' new trial motions were filed before the 2002 amendments were effective.

265 . See Fed.R.Crim.P. 33; United States v. Devila, 216 F.3d 1009, 1015 (11th Cir.2000) (per curiam) vacated in part on other grounds, 242 F.3d 995, 996 (2001) (per curiam).

266 . Devila, 216 F.3d at 1015-16 (quotations and citations omitted).

267 . United States v. Beasley, 582 F.2d 337, 339 (5th Cir.1978) (per curiam).

268 . Id. at 339; United States v. Williams, 613 F.2d 573, 575 (5th Cir.1980) (stating that a motion for new trial is appropriate if the newly discovered evidence "afford[ed] reasonable grounds to question the fairness of the trial or the integrity of the verdict,” but affirming the denial of a new trial because there was no reasonable likelihood that a juror’s ex parte contact with the district judge impugned the integrity of the jury’s verdict (citing S. Pac. Co. v. Francois, 411 F.2d 778, 780 (5th Cir.1969))).

269 . R15-1660 at 7-8.

270 . Id. at 10.

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274 . New Hampshire v. Maine, 532 U.S. 742, 749, 121 S.Ct. 1808, 1814, 149 L.Ed.2d 968, 977 (2001).

275 . Burnes v. Perneo Aeroplex, Inc., 291 F.3d 1282, 1285 (11th Cir.2002) (internal quotation marks omitted) (quoting Am. Nat'l Bank of Jacksonville v. Fed. Deposit Ins. Corp., 710 F.2d 1528, 1536 (11th Cir.1983)).

276 . Id. at 1285 (quotations and citations omitted).

277 . R15-1636 at Ex. 2.

278 . R126 at 14672. The district court extended the seven-day time period within which the defendants could file post-trial motions, including a Rule 33 interests of justice motion, to August 1, 2001, in accordance with the version of Rule 33 in effect at the time, which permitted the court to grant a motion filed “within such further time as the court sets during the 7-day period.” See Fed. R.Crim.P. 33 advisory committee’s note 2005.

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281 . R81 at 8945-46, 8955.

282 . R124 at 14482, 14483, 14493.

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285 . R15-1635, R15-1636.

286 . R15-1636 at Exs. 4, 5, 7-10, 12.

287 . R15-1678 at 5. The district court relied on our precedent that states that “[t]here is no question that the seven-day time limit provided for in Rule 33 is jurisdictional.” United States v. Renick, 273 F.3d 1009, 1019 (11th Cir.2001) (per curiam). The court did not have the benefit of Eberhart v. .United States, - U.S. -, 126 S.Ct. 403, 403, 163 L.Ed.2d 14, 17 (2005) (per curiam) (internal quotation marks omitted), which clarified that Rule 33 is “an inflexible claim-processing rule,” rather than a rule "governing subject-matter jurisdiction.” The Court noted that this “is an error shared among the circuits .... caused in large part by imprecision in [the Supreme Court’s] prior cases.” Id. at 407. Here, any error by the district court in characterizing Rule 33 new trial motions as jurisdictional was harmless.

288 . See Fed.R.Crim.P. 33(b)(2).

289 . Eberhart, 126 S.Ct. at 403 (quoting Fed. R.Crim.P. 45(b)(2)).

290 . United States v. Hall, 854 F.2d 1269, 1271 (11th Cir.1988).

291 . United States v. Geders, 625 F.2d 31, 33 (5th Cir.1980).

292 . Eberhart, 126 S.Ct. at 406 (ruling that the government forfeits its defense of untimeliness if it fails to raise the defense before the district court reaches the merits of the Rule 33 motion).