DE##978# Court#opinion#and# memorandum#on#Motion# to#enforce#Court# directive#re:#Witness# comments#to#media# # Issued#Feb.#16,#2001# [Case Document 978 Entered on FLSD Docket 02/20/2001 Page 1 of 20 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA Case No. UNITED STATES OF AMERICA, Plaintiff, VS. GERARDO HERNANDEZ, et al., Defendants. OPINION AND MEMORANDUM OF LAW THIS CAUSE is before the Court on the Motion to Enforce Court's Directive Concerning Witness Comments to News Media (DE. 818), ?led December 26, 2000 by the Government, and the Motion to Enforce Court's Gag Order against Witnesses (DE. 93 8), ?led February 9, 2001 by Defendant Gerardo Hernandez. Defendant Luis Medina ?led a Response to the Government's Motion on December 28, 2000. The Government ?led a Response to Defendant Hemandez?s Motion on February 12, 2001. Witness Jose Basulto also ?led a Response to Defendant Hemandez's Motion on February 9, 2001. On February 14, 2001, the Court heard oral argument on Defendant Hemandez's Motion. Having reviewed the Motions, the Responses, the record, and after hearing the argument of counsel, the Court ?nds as follows. I. Introduction Case Document 978 Entered on FLSD Docket 02/20/2001 Page 2 of 20 Defendant Hernandez moves the Court to enforce its Gag Order of November 27, 20001 as to all witnesses, including Jose Basulto and Guillermo Lares, whom Defendant Hernandez alleges held a press conference, at which they allegedly spoke with the press about the February 24, 1996 shootdown of the Brothers to the Rescue aircraft and their planned activities for February 24, 2001.2 Defendant Hernandez seeks to hold Basulto and Lares in contempt for having violated the Court's Gag Order.3 From the bench, the Court announced that it will not hold Basulto or Lares in violation of its Gag Order of November 27, 2000, but that the Court will supplement the November 27, 2000 Order "so that all The Court?s minutes re?ect that voir dire began in this case on November 27, 2000. Although the parties and transcript refer to this initial date as November 26, 2000, it is a sorivener's error. 2 In its Response to Defendant Hernandez's Motion, the Government attached an English translation of the anchorwoman discussing Basulto's press conference, discussed in Defendant Hernandez's Motion. The anchorwoman stated, And to solemnly remember the four pilots who were shot down on February 24, 1996, Brothers to the Rescue will take part in a mass that will be celebrated at the Hermita de la Caridad on February 23rd at 8 pm. On the following day, their planes will ?y over the Point and will drop lea?ets which depending on how the weather is could reach Cuba. They are also asking exiles to sign the documents which request the Bush administration to order the indictment of Fidel Castro for the assassination of the pilots. (Gov't?s Resp. of 2/9/undisputed that Feburary 24, 1996 is the day of the Brothers to the Rescue shootdown. 3 At oral argument, counsel for Defendant Hernandez withdrew his request to hold Basulto and Lares in contempt for having violated the Court's Gag Order. 2 Case Document 978 Entered on FLSD Docket 02/20/2001 Page 3 of 20 participants, lawyers, witnesses, family members of the victims will be on proper notice as to . . . what they may or may not do and what they may or may not discuss with members of the media during the pendency of this trial." (Tr. Hr'g of 2/14/01 at 6760.) This Order therefore memorializes the supplementation of the November 27, 2000 Gag Order as follows. II. Factual Background On November 27, 2000, during the ?rst day of voir dire, at the lunchtime recess, it came to the Court's attention that family members of the victims of the Brothers to the Rescue shootdown were congregated in front of the press, immediately outside the courthouse. Counsel for the Government acknowledged that two of these family members are Government witnesses in this case. Counsel for Defendant Hernandez requested that the Court, rather than the Government, admonish those witnesses in order to prevent further communications about the case between witnesses and the press. The Court's initial Gag Order (DE. 122), issued on October 20, 1998, directed the parties and their counsel to adhere to Southern District of Florida Local Rule 77.2. In addition, at the beginning of trial, the parties invoked the Rule of Sequestration, pursuant to Federal Rule of Evidence 615. On November 27, 2000, counsel for Defendant Hernandez requested that the Court extend the Sequestration Order to preclude the witnesses from speaking with the press about the case. Counsel for the Government then articulated the following position on that request: Certainly that hadn't been the rule so far. I have no problem Case Document 978 Entered on FLSD Docket 02/20/2001 Page 4 of 20 telling those individuals who are on our witness list they should not contact the press; but what I am concerned about is, any implication or record that is being boot-strapped here that these individuals have done something improper. (Tr. of 1 1/27/00, vol. 1 at 1 18.) Following this stipulation, the Court modi?ed the sequestration order to preclude witnesses from speaking with each other and with the media about the case. at 119.) On December 27, 2000, the Government ?led a Motion to Enforce Court's Directive Concerning Witness Comments to News Media. In that Motion, the Government urges the Court "to conduct an inquiry into the nature, degree and reasons for the apparent violation of the pre-trial directive regarding public comment by witnesses, and take whatever steps it deems necessary in order to enforce that directive." (Gov?t's Mot. Enforce Ct.'s Directive at 3.) In a footnote, the Government explained that the "pro-trial directive" to which it refers is the aforementioned November 27, 2000 Order. The Government alleges that Richard Nuccio, who appears on Defendants' list of witnesses, was quoted directly by the Mia_mi_ Md on December 23, 2000 about the Federal Bureau of Investigation's knowledge of the February 24, 1996 Brothers to the Rescue shootdown. The Government argues that such statements to the media are in violation of the Court's November 27, 2000 ?pre-trial directive" and have "severely prejudiced" the Government. at 2.) Though Defendant Luis Medina ?led a Response to the Government's Motion on December 28, 2000, Defendants ultimately conceded the Government's argument and Case Document 978 Entered on FLSD Docket 02/20/2001 Page 5 of 20 instructed Nuccio not to speak with the news media about the case. On February 9, 2001, Defendant Hernandez ?led a Motion to Enforce Court's Gag Order against Witnesses, in which Defendant Hernandez urges the Court to issue an order to show cause why witnesses Jose Basulto and Guillermo Lares should not be held in contempt for violating the Court's Gag Order of November 27, 2000. Lares is a witness for the Government, and Defendant Hernandez has subpoenaed Basulto to testify as a witness in this matter.4 In the Motion, Defendant Hernandez alleges that Basulto and Lares held a press conference in Coconut Grove where they appeared on television with the mother of one of the victims of the Brothers to the Rescue shootdown. Basulto announced that on February 24, 2001 Brothers to the Rescue aircraft will ?y to the spot that he decrees is the point of the shootdown in international waters and drop lea?ets there and other materials with the hope that the wind will carry them to Cuba. In addition, Basulto held up a document before the t.v. cameras asking that the Bush administration proceed immediately to an indictment of Fidel Castro for murder in the shootdown of the pilots. (Def. Hernandez's Mot. Enforce Gag Order 1] 2.) Defendant Hernandez argues that these statements and actions violate the Court's Order of November 27, 2000. In its Response to Defendant Hernandez's Motion, ?led February 12, 2001, the Government does not dispute either the enforceability or scope of the Court's November 27, 4 Guillermo Lares has already testi?ed as a witness for the Government. Jose Basulto?s name appears on the Government?s witness list, although the Government has yet to call him. Defendant Hernandez has Basulto under subpoena and has stated in open court that if the Government does not call Basulto as a witness, Defendant Hernandez will call him to testify during the presentation of his defense case. 5 n4, Case Document 978 Entered on FLSD Docket 02/20/2001 Page 6 of 20 2000 Order. Rather, the Government argues that Basulto "understands and intends to comply with the letter and spirit of the court order," and that he has done so, as his remarks to the media "are not comments on the nature, quality or meaning of any evidence in this trial," as opposed to Nuccio's quotations in the Miami Herald. (Gov't's Resp. of 2/12/01 at 2.) The Government requests that the Court not issue an order to show cause regarding Basulto's statements and "instead further direct the United States to inform Mr. Basulto of the court's pretrial gag order." at 4.) Jose Basulto ?led a Response to Defendant Hemandez's Motion on February 9, 2001 . In this Response, Basulto typi?es the scope of the Gag Order as precluding the parties, counsel, and witnesses from speaking to the media about the pending case. Basulto argues, however, that the Order does not eliminate "demonstrations" by the witnesses. (Basulto's Resp. of 2/9/01 at 2.) Basulto further contends that the statements he made to media were not in regard to the instant case and are protected by the First Amendment. At oral argument, counsel reiterated the foregoing arguments. Without citing any case authority, counsel for Basulto claimed that enforcement of the November 27, 2000 Gag Order, as typi?ed by Defendant Hernandez, would unlawfully detain Basulto in violation of his Fourth Amendment rights. Counsel for Basulto further argued that the only subject which the Court may preclude witnesses from addressing to the press is in-court testimony. The parties also stipulated that trial participants are not proscribed from participating in religious Observances, including, but not limited to, a memorial mass for the victims of the Case Document 978 Entered on FLSD Docket 02/20/2001 Page 7 of 20 shootdown. At the conclusion of the hearing, the Court found, in order "to exercise [the Court's] responsibility, to preserve the rights of a fair trial, . . . there is a substantial likelihood that extrajudicial commentary by trial participants including witnesses will undermine a fair trial." (Tr. Hr'g of 2/14/01 at 6759.) As such, the Court stated that it will impose a narrowly tailored gag order using the least restrictive means possible so that a fair trial will be preserved, and the jury in this matter who has been working very diligently day after day since November 27 . . . will not be tainted . . . and make a determination in this trial on the evidence that is presented here in this courtroom. The Court added that this Order "will be speci?c in nature, but will extend to the statements or information which is intended to in?uence public Opinion or the jury regarding the merits of this case." (Id at 6760.) Analysis The imposition of a gag order demands that the Court balance two competing constitutional rights, speci?cally a trial participant's right to free speech under the First Amendment and a criminal defendant's right to a fair trial under the Sixth Amendment. The News-Joumal Corn. v. Foxman, 939 F.2d 1499, 1512 (1 1th Cir. 1991) (?nding that "when First Amendment claims impinge upon the Sixth Amendment right to a trial by an impartial jury, asserted First Amendment interests must yield to the 'most fundamental of all freedoms,? the right to a fair trial for the accused") (quoting Estes v. Tex., 381 US. 532, 540 (1965)). Case Document 978 Entered on FLSD Docket 02/20/2001 Page 8 of 20 In United States v. Brown, 218 .3d 415, 424 (5th Cir. 2000), the Fifth Circuit characterized a gag order as a prior restraint, but explained why the First Amendment freedom of speech is often subordinate to the Sixth Amendment right to a fair trial, as follows: This duty comports with the constitutional status of all First Amendment freedoms, which are not absolute but must instead be "applied in light ofthe Special characteristics of the [relevant] environment." Tinker v. Des Moines Indep. Communig Sch. Qi_s_t., 393 US. 503, 89 S. Ct. 733, 736, 21 L. Ed.2d 731 (1969). Indeed, "[a]1though litigants do not 'surrender their First Amendment rights at the courthouse door,? those rights may be subordinated to other interests that arise" in the context of both civil and criminal trials. Seattle Times Co. v. Rhinehart, 467 US. 20, 104 S. Ct. 2199, 2207-08 n. 18, 81 L. Ed.2d 17 (1984). several occasions this Court has approved restriction on the communications of trial participants where necessary to ensure a fair trial for a criminal defendant." 1d; There can be no question that a criminal defendant's right to a fair trial may not be compromised by commentary, from any lawyer or party, offered up for media consumption on the courthouse steps. Em, 218 F.3d at 424. Courts have given deference to gag orders restricting trial participants' communications with the news media. As the Fifth Circuit found, "The Supreme Court and other Courts of Appeals have recognized a 'distinction between participants in the litigation and strangers to it,? pursuant to which gag orders on trial participants are evaluated under a less stringent standard than gag orders on the press." Brown, 218 F.3d at 428 (quoting Gentile v. State Bar ofNev., 501 US. 1030, 1072-73 (1991)) (other citations omitted). The Brown court explained that this well settled dichotomy stems from Sheppard v. Maxwell, Case Document 978 Entered on FLSD Docket 02/20/2001 Page 9 of 20 384 U.S. 333, 86 S. Ct. 1507 (1966), involving the much-ballyhooed prosecution of Dr. Sam Sheppard. After ?nding that the onslaught of the media in Sheppard created a "bedlam" that "reigned over the courtroom," id, at 355, the Sheppard Court urged lower courts handling heavily publicized cases to "censure" trial participants. I_d, at 363. By proscribing "extrajudicial statements by any lawyer, party, witness, or court of?cial which divulged prejudicial matters," the Sheppard Court remarked that a gag order on trial participants "might well have prevented the divulgence of inaccurate information, rumors, and accusations that made up much of the in?ammatory publicity, at least after Sheppard's indictment, . . . without a corresponding curtailment of the news media." Sheppard, 384 U.S. at 361-62.5 In KPNX v. Broad. Co. v. Ariz. Suoerior Ct., 459 U.S. 1302, 1307 (1982), the Supreme Court denied an application to stay a gag order imposed on trial participants. 5 Both Knight Ridder, Inc., which publishes the Miami Herald and El Nuevo Herald, and the National Broadcasting Company have intervened in this matter. In an Order (DE. 808), issued on December 18, 2000, that balanced the competing Sixth Amendment right to a fair trial with the press's common law right to access, the Court granted Intervenors Knight Ridder, Inc. and NBC access to the evidence admitted into the trial record. At the conclusion of each trial day, the news media views the evidence admitted into the trial record. The Court has also made copying facilities available to the news media. Moreover, the members of the news media have been present inside the courtroom for each day of trial. The Court has reserved seating for members of the press and media and has furnished computer monitors for those in the gallery, including the news media representatives, to view video or computer evidence admitted into the trial record. Articles about this case have appeared daily in the Miami Herald and El Nuevo Herald and weekly in the national and international press. Local televised news programs, particularly those af?liated with the Spanish-speaking channels, have featured coverage of the trial since it began. Case Document 978 Entered on FLSD Docket 02/20/2001 Page 10 of 20 ustifyin the imposition of that gag order, Justice Rehnquist, writing for the Court in concluded that "[t]he mere potential for confusion if unregulated communication between trial participants and the press at a heavily covered trial were permitted is enough to warrant a measure such as the trial judge took in this case." Li. at 1307 of the proscription against communication to hours and places where the court is not in session appears . . . warranted") (Rehnquist, J.). Examining the conditions upon which the imposition of a gag order on trial participants may be appropriate, the Court will adopt the standard for determining whether extrajudicial statements or demonstrations of trial participants would prejudice the Court's ability to conduct a fair trial; determine the scope of a gag order imposed upon trial participants; and explain why the gag order must be the least restrictive means of preserving a fair trial, given the Court's ?nding of a substantial likelihood of potential prejudice. The Court will then fashion its supplement to the November 27, 2000 ruling. A. Court Must Find Substantial Likelihood That Extrajudicial Comments of Trial Participants Would Prejudice Court's Ability to Conduct Fair Trial The Fourth and Tenth Circuit have adopted the threshold that gag orders may be imposed on trial participants upon a ?nding that there is a "reasonable likelihood" that extrajudicial commentary will prejudice a fair trial. In re Russell, 727 F.2d 1007, 1010 (4th Cir. 1984); United States v. Tiierna, 412 F.2d 661, 666-67 (10th Cir. 1969). By contrast, the Supreme Court "approved" the comparatively more rigorous standard that courts find a 10 Case Document 978 Entered on FLSD Docket 02/20/2001 Page 11 of 20 "substantial likelihood" of prejudice to the Court's ability to conduct a fair trial. gig-?g, 501 US. at 1072 (favoring "substantial likelihood" as opposed to "clear and present danger"as standard). ustifying the approval of the "substantial likelihood" standard, the Court stated that prior precedent "rather plainly indicate[d] that the speech of lawyers representing clients in pending cases may be regulated under a less demanding standard than that established for regulation of the press." at 2744. Discussing the Gentile Court's approval of the "substantial likelihood" standard, the Fifth Circuit remarked, In Gentile, the Supreme Court approved Nevada's "substantial likelihood" standard when applied to gag orders imposed on attorneys, but did not mandate it as a constitutional minimum necessary to justify a judicially-imposed restriction on attorney speech. Moreover, neither the Supreme Court nor this Court has articulated a standard to apply when evaluating gag orders directed at attorney or non-attomey trial participants. Brown, 218 F.3d at 427. Without deciding between the "substantial likelihood" and "reasonable likelihood" standards, the Fifth Circuit in Brown, 21 8 F.3d at 427, assuming that "substantial likelihood" connotes a stronger showing than "reasonable likelihood," held that a district court may impose a gag order on trial participants after determining that "extrajudicial commentary by those individuals would present a 'substantial likelihood' of prejudicing the court's ability to conduct a fair trial."6 6 In Foxman, 939 F.2d at 1515 n.18, the Eleventh Circuit reviewed a district court gag order against all trial participants without addressing "the different standards,? gg, reasonable likelihood and substantial likelihood. ll 'Case Document 978 Entered on FLSD Docket 02/20/2001 Page 12 of 20 The Brown court determined that the district court met the burden of establishing a "substantial likelihood" that the extrajudicial comments of the trial participants would prejudice the court's ability to conduct a fair trial, based on the following two reasons. I_d.7 First, the district court found that the ?unrestricted statements by the participants in this trial would only serve to increase the volume of pre-trial publicity,'" ii at 428?29. Second, the district court found that the extrajudicial statements "would taint the unsequestered jury." 1; at 429. Explaining why the latter "was an entirely appropriate concern," the court stated, "?Extrajudicial comments on, or discussion of, evidence which might never be admitted at trial and ex parte statements by counsel [or parties] giving their version of the facts obviously threaten to undermine [the] basic tenet' that the outcome of a trial must be decided by impartial jurors." (quoting ??n_til_e, 111 S. Ct. at 2743) B. Gag Order Must Be Narrow in Scope Next, the Court examines to what degree the gag order must be tailored in order to protect the First Amendment rights of trial participants. In m, the court held that the district court?s gag order was suf?ciently narrow "to eliminate substantially only that Speech having a meaningful likelihood of materially impairing the court?s ability to conduct a fair trial." Brown, 218 F.3d at 429; see also Dow Jones Co. v. Kave, 90 F. Supp. 2d 1347, 7 By identifying a substantial likelihood that the extrajudicial comments of the trial participants "would" prejudice the court's ability to conduct a fair trial, Brown, 218 F.3d at 428, the Fifth Circuit does not require district courts to make a preliminary finding of actual prejudice in order to issue a gag order against trial participants. 12 ?Case Document 978 Entered on FLSD Docket 02/20/2001 Page 13 of 20 1360-61 (SD. Fla. 2000) (?nding gag order that "forever bars" trial participants from making "any public statement, written or oral, which pertains to any court proceedings in this case" to be overbroad, as inter alia it was "not limited to prohibiting only those extrajudicial statements that would in fact be likely to affect the fairness of the trial") (citations omitted). The court further found that the gag order's speci?c designation of "'statements or information intended to in?uence public opinion regarding the merits of the case' as matters the parties may not share with the public media" provided "suf?cient guidance regarding the nature of the prohibited comments." BM concerned the criminal prosecution of a state of?cial for charges relating to an alleged sham settlement between the state and the president of an insurance company. Upholding the scope of the gag order in that case, the Brown court observed that the "district court did not impose a 'no comment? rule, but instead left available to the parties various avenues of expression, including assertions of innocence, general statements about the nature of an allegation or defense, and statements of matters of public record." at 429-30. C. Gag Order Must Be Least Restrictive Means of Eliminating Potential Prejudice In an effort to protect the First Amendment rights of the trial participants, the Court is responsible for ensuring that a gag order imposed on trial participants is the least restrictive means of eliminating the potential prejudice. Foxman, 939 F.2d at 1515 (relying on district court's conclusion "that there was no less restrictive means of safeguarding the defendant?s 13 Case Document 978 Entered on FLSD Docket 02/20/2001 Page 14 of 20 Sixth Amendment rights") (citing In re Subpoena to Testifv before Grand Ju?, 864 F.2d 1559, 1564 (11th Cir. 1989) (?nding "compelling necessity" for gag order on grand jury participants)); see also Brown, 218 F.3d at 430 (stating that least restrictive means requirement for gag orders "appears to comport with the more general First Amendment principle that restrictions on speech should employ the least restrictive means possible") (citing Procunier v. Martinez, 416 U.S. 396, 412-13 (1974)). In Brown, the district court did not expressly discuss alternative options, about which the Brown court stated, "While it is undoubtedly good judicial practice for district courts to explicitly set forth on the record their consideration of such matters, we do not believe that this shortcoming requires us to vacate the present order." Brown, 218 F.3d at 431 (citing Nebraska Press Assoc. v. Stuart, 427 U.S. 539,563 (1976)). The Brown court then listed the following gag-order?altematives, discussed in Sheppard and Nebraska Press: "change of venue, jury sequestration, 'searching' voir dire, and ?emphatic' jury instructions." Brown, 218 .3d at 431. IV. The Supplement to the Court's Gag Order of November 27, 2000 After the oral argument on February 14, 2001 and to supplement to its Gag Order of November 27, 2000, the Court ?nds that there is a substantial likelihood that the extrajudicial comments of the trial participants would prejudice the Court's ability to conduct a fair trial; limits the scope of the Order; and ?nds that imposing the Gag Order, consistent with this Order, on the trial participants is the least restrictive means of preserving l4 ?Case Document 978 Entered on FLSD Docket 02/20/2001 Page 15 of 20 Defendants? Sixth Amendment rights to a fair trial. A. Court Finds Substantial Likelihood of Potential Prejudice Following Brown, 218 F.3d at 428, the Court seeks to determine whether there is a "substantial likelihood" that extrajudicial comments by trial participants would prejudice the Court's ability to conduct a fair trial. The Court ?nds that local and national media coverage of this case has been signi?cant since the Government's ?ling of the original Indictment on September 14, 1998, and that this coverage has only intensi?ed as the trial has progressed. (_S_eg s_upr_a at note 4.) As the February 24 anniversary date approaches, the Court thus ?nds that unrestricted statements by trial participants would only serve to increase the already voluminous publicity attached to this trial. Moreover, the Court ?nds that publication of extrajudicial statements and actions by the trial participants may very well taint the unsequestered jury in this case. Based on these ?ndings, the Court concludes that there is a substantial likelihood that the extrajudicial comments and conduct by the trial participants in this case would prejudice the Court's ability to conduct a fair trial. Furthermore, the Court ?nds that on November 27, 2000, neither party objected to the Court's Order while at sidebar, and that subsequent to the articulation of that Order, both the Government and Defendant Hernandez independently ?led Motions to enforce that Order. The Eleventh Circuit found similar circumstances uniquely compelling: "Most signi?cantly, counsel for all defendants and the state had encouraged and agreed to the restrictive order, the impetus for which was the sensationalized reporting of the media, including the News- 15 Case Document 978 Entered on FLSD Docket 02/20/2001 Page 16 of 20 Journal." Foxman, 939 F.2d at 1515?16 (?nding restrictive order against all trial participants would not cause irreparable injury to newspaper). B. Scope of the Gag Order Supplementing the Court's November 27, 2000 ruling, the Court proscribes, for the duration of the trial, extrajudicial statements and conduct by trial participants, made to, or in the presence of, the news media, that have "a meaning?ll likelihood of materially impairing the court's ability to conduct a fair trial." m, 218 F.3d at 429. Trial participants may not make extrajudicial statements or take actions intended to in?uence the unsequestered jury regarding the merits of the case. The Order does not eliminate the trial participants' freedom to express themselves publicly, but rather only restricts them from conducting themselves in such a way that would have "a meaningful likelihood of materially impairing the court's ability to conduct a fair trial." at 429. Pursuant to this Order, statements or conduct intended to in?uence public opinion or the jury regarding the merits of the case are prohibited. C. Imposing Gag Order on Trial Participants Is Least Restrictive Means of Protecting Defendants? Sixth Amendment Rights to a Fair Trial The following examination of the alternatives to imposing this Gag Order, such as change of venue, jury sequestration, a searching voir dire, and emphatic jury instructions, demonstrates that the imposition of the Gag Order on the trial participants is the least restrictive means of protecting Defendants' Sixth Amendment rights to a fair trial. 16 ?Case Document 978 Entered on FLSD Docket 02/20/2001 Page 17 of 20 The Court denied Defendants? Motions for Change of Venue on July 27, 2000 and denied the Motion for Reconsideration of the Court's Order Denying the Motions for Change of Venue on October 24, 2000. In so doing, the Court found that Defendants had "not demonstrated the degree of pervasive community prejudice," which a searching voir dire and emphatic jury instructions would not be able to cure. (Order Denying Mots. Change Venue of 10/24/00 at 17.) Prior to the Court's denial of those Motions, Defendants voiced their concern that the onslaught of publicity would prejudice both the jury pool prior to trial and the jury during trial. Electing not to change venue, the Court thus bears the responsibility of protecting the trial jury from outside in?uences that would taint their impressions of the case?s merits. The Court conducted an extensive, 'searching' voir dire (both panel and individual) and has ?emphatically' instructed the jury, on a daily basis, not to read or listen to anything regarding the trial immediately prior to the jury's departure each and every time from the courtroom. The Court finds, however, that not even the most emphatic instruction or the most searching voir dire question can shield the jurors from banner headlines or ex parte statements and conduct by witnesses or counsel that would undoubtedly receive extensive coverage. Since the trial began, this case has been the daily bread for the local press and media. This understandable attention notwithstanding, the Court remains accountable for protecting the jury from extrajudicial statements and actions regarding the merits of the case. The presentation of evidence in the Government's case has proceeded for approximately 17 I Case Document 978 Entered on FLSD Docket 02/20/2001 Page 18 of 20 three months before ??een citizens who have negated their own personal commitments to labor day after day in this trial. As the trial continues, the Court ?nds that it would be imprudent at this stage of the proceedings to change venue or sequester the jury, both of which will further disrupt the lives of these jurors and those in the community who follow this matter with interest. Finding no other alternative, the Court ?nds that a narrowly tailored gag order is the least restrictive means of curing the potential prejudice to the Court's ability to conduct a fair trial.8 V. Conclusion Therefore, the Court ?nds a substantial likelihood that the extrajudicial comments and conduct of the trial participants9 in this case would prejudice the Court?s ability to conduct a fair trial. The Court further ?nds that this Order precluding all trial participants from making extrajudicial statements or taking actions that would have a meaningful likelihood of materially impairing the court's ability to conduct a fair trial is narrowly tailored. The Court ?nds that this Order precludes extrajudicial statements and conduct intended to in?uence public opinion or the jury regarding the merits of the case. Finally, the Court ?nds 3 Having found that the imposition of the gag order, consistent with this Order, is the least restrictive means of preserving a fair trial, the Court ?nds that its imposition on the trial participants does not violate their Fourth Amendment rights. Trial participants are de?ned, for purposes of this Order, as the parties, their counsel, witnesses, and their counsel. Witnesses are de?ned, for purposes of this Order, as any witness who is under subpoena or whose name appears on one of the parties' witness lists. 18 'Case Document 978 Entered on FLSD Docket 02/20/2001 Page 19 of 20 that the imposition of this Order on trial participants is the least restrictive means of protecting Defendants' Sixth Amendment rights, the "most fundamental of all freedoms." Ewan, 939 F.2d at 1512 (quoting 381 US. at 540). Accordingly, it is ORDERED AND ADJ UDGED that: 1. The Motion to Enforce Court's Directive Concerning Witness Comments to News Media (DE. 818), ?led December 27, 2000 by the Government, and the Motion to Enforce Court's Gag Order against Witnesses (DE. 938), ?led February 9, 2001 by Defendant Gerardo Hernandez, are GRANTED consistent with this Order. 2. Legal counsel for the parties shall aid the Court by providing copies of this Order to all trial participants, including all lay witnesses, and by counseling them as to the parameters and consequences of this Order. DONE AND ORDERED in Chambers at Miami, Florida this day of ebruary, 2001. AN A. LENARD g?V ITED STATES DI RICT JUDGE cc: United States Magistrate Robert L. Dub? Caroline Heck Miller, AUSA William M. Norris, Esq. 99 NE 4th Street 3225 Aviation Avenue, Suite 300 Miami, Florida 33132-21 ll Coconut Grove, Florida 33133-4741 19 Case Document 978 Entered on FLSD Docket 02/20/2001 Page 20 of 20 Joaquin Mendez, Esq. Jack Blumenfeld, Esq. Federal Public Defender?s Of?ce 2700 Douglas Road, Suite 911 150 West Flagler Street, Suite 1500 Coral Gables, Florida 33134 Miami, Florida 33130-1555 Paul A. McKenna, Esq. Philip Horowitz, Esq. 266 Tigertail Avenue, Suite 104 12651 South Dixie Highway, Suite 328 Miami, Florida 33133 Miami, Florida 33156-5964 Larry Klayman, Esq. So?a Powell-Cosio, Esq. Suite 725 1390 Brickell Ave., Ste. 200 50] School Street, SW. Miami, FL 33131 Washington, DC 20024 Silvia B. Pinera-Vazquez, Esq. 321 Ponce de Leon Blvd, Ste. 206 Coral Gables, FL 33134 Case No. 20