DE##999# Order#granting#in#part# and#denying#in#part# Motion#for#Clarification# and/or#Modification# re:#Witness#comments# to#media# # Issued#Feb.#22,#2001# Case Document 999 Entered on FLSD Docket 02/23/2001 Page 1 of 6 Ll D.C- UNITED STATES DISTRICT COURT by SOUTHERN DISTRICT OF FLORIDA FEB 2 2001 Case NO. CLARENCE v.5. mar- CT- s.p. 0F FLMIAMI UNITED STATES OF AMERICA, Plaintiff, VS. GERARDO HERNANDEZ, et aL, DefendantsTHIS CAUSE is before the Court on the Re?Filing of Notice of Impending Action and Request for Clari?cation, If Necessary, ?led February 21, 2001 by Witness Jose Basulta. The Court treats this Notice as a Motion for Clari?cation and/or Modi?cation of the Court's February 16, 2001 Order. The Government and Defendants Rene Gonzalez, Ruben Campa, Gerardo Hernandez, and Antonio Guerrero ?led Responses on February 22, 2001. Having reviewed the Motion, the Responses, and the record, the Court ?nds as follows. I. Intradu ction On November 27, 2000, the Court issued a Gag Order, which Defendant Gerardo Hernandez songht to enforce against Witnesses Jose Basulto and'Guillermo Lares, who allegedly held a press conference, at \ivhieh they allegedly spoke with the press about the an? Case Document 999 Entered on FLSD Docket 02/23/2001 Page 2 of 6 February 24, 1996 shootdown of the Brothers to the Rescue aircraft and their plannc activities for February 24, 2001.1 After reviewing Responses to Defendant Hernandezg Motion to Enforce the Court's November 27: 2000 Old? 511d 3ft? hearing ?1'31 ?Igument on the Motion, at which the Gettermucnt: Defendants: defmc Counsel, Witness Beaulto, and his eounsel appeared and made argum?nt: ?19 its November 27, 2000 Order on February 16, 2001. OniFehmary 16, 2001, the Courtptovided in pertinentpart that, while not eliminating the ttial participants? freedom to express themselves publicly, all trial participants are precluded ?from making extrajudicial stater'uents or taking actions that would have a meaningful likelihood of materially impairing the court's ability to conduct a fair trial." (Order of 2/16/01 18.) In that order, the Court also expressly precluded ?extrajudicial In its Response?to Defendant Hemmdez's Motion. the Gouemment attached an Eng translation of the anchorwoman discussing Basulte's press conference, discussed in Defendant Hemandez's Motion. The anchorwoman stated, And to solemnly remember the four pilots who were shot 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 231d at 8 pm. On the following day, their planes will ?y over the Point and will drop lea?ets wh'leh - depending on how the weather is could reach Cuba. They am also asking exiles to sign the documents which request the Bush adtrtinisu'atien to order the indietment 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?m Brothers to the Rescue shootdown. Case Document 999 Entered on FLSD Docket 02/23/2001 Page 3 of 6 statements and conduct intended to in?uen oe public opinion or the ury regarding the merits of the case." (151,) On February 21, 2001, Witness Basulto ?led the instant Motion for Clari?cation and/or Modi?cation of the Court?s February 16, 2001 Order. In this Motion, Witness Basulto noti?es the Court of what actions he is planning on takingduring theupeoming weekend of February 23 and 24, 2001 and requests whether these actions would be in violation of the Court's February 16, 2001 Order. Witness Basulto emphasizes that these activities have persisted annually on the anniversary of the February 24, 1996 shootdown. In its Response, ?led February 22, 2001 the Government argues that Witness Basulto be allowed to participate in each. of the actions of which he noti?es the Court. In their Reaponses, ?led February 22, 2001. Defendants Rene Gonzalez and Ruben I Campa maintain that the Court?s Order of Februaryll?, 2001 is clear arithout modi?cations. Defendant Gonzalez also contends that ?the witness seeks this Court to either bless or reject actions that they may or may not take to commemorate the events of February 24, 1.996. Such a ?blessing? by this Court would be tantar?noun't to this Court providing an advisory opinion which it is strictly prohibited from doing.? (Def. Gonzalez's Resp. of 2/22/01 at 1.) Defendant Antonio Guerrero, his Response ?led February 22, 2001, agrees that Witness Basulto is seeking an advisory opinion. i I In his Response, ?led February 22, 2001, Defendant Gerardo Herandez argues that Witness Basulte should not be allowed to violate the Court's Feburary 16, 2001 Order. 3 Case Document 999 Entered on FLSD Docket 02/23/2001 Page 4 of 6 Defendant Hernandez argues that the press statements attached as Exhibit to Witness Basulto?s Motion are ?directly related to facts in this trial." Defendant Hernandez further argues that Witness Basulto's ?proposed ?ight, lea?et (hep, and press release are geared toward igniting emotions in the community with regard to the issue of the nature of the shootdown, where the fault lies, and a host of other issues." (Def. Hernandez?s Resp. 1] 3.) Defendant Hernandez continues, ?Basulto is a subpoenaed witness in this case that the defense call. He should not be allowed to violate the Comt's fairly tailored gag order.? (ld? (emphasis in original) 11. Analysis As the Court highlighted in its Order of February 16, 2001, the issuance of gag orders necessarily centenaplates the balancing of two ?mdamental rights, the First Amendment right to free speech and the Sixth Amendment right to a fair trial, ?the most ?mdamental of all ?reedorns.? 939 F.2d 1499, 1512 (11th Cir. 1991) (?nding that ?when First Amendment claims impinge upon the Sixth Amendment right to a trial by an impartial jury, asserted First Amendmtent interests must yield to the ?most ?mdamental of all freedoms,? the right to a fair trial for the accused") (quoting 381 U.S. 532, 540 (1965)). As the Fifth Circuit and Supreme Court have noted, a ?trial by newspaper" jeopardizes the Court's ability to conduct a fair trial. 218 F.3d 415, 423 (5th Cir. .2000) (quoting v. State 9f m, 323 U.S. 331, 366 (1946) (Frankfurter, J., concurring?. Justice explained why, during the course of trial, 4 Case Document 999 Entered on FLSD Docket 02/23/2001 Page 5 of 6 of the case." ad.) Witness Barmlto, who is under subpoena, is a fact witness in this case. One of the areas of his testimony surrounds the February 24, 1996 Brothers to the Rescuo shootdown. The facts of this event, as well as others, are at issue before the jury in this case. Issues of fact relate directly to the case's merits. For the duration of this trial, fact witnesses are therefore precluded ?om making extrajudicial statements or conduct with regard to issues of fact that are before the jury. Our country is protective of many rights and liberties. The courts are frequently in the position ofbalanciug these liberties because our constitutions]. democracy - empowered by the people - has entrusted this duty to?the courts. The task is often not easy, but required by the rule of law and must be respected. Lawyers have entered appearances on behalf of the lay- witness, Jess Basulto. These attorneys are both experienced and studied. They are capable of rendering thought?il counsel to their client. I Accordingly, it is ORDERED AND ADJUDGED that the Motion for Clari?cation and/or Modi?cation .- of the Court's Febmary 16, 2001 Order; ?led February 21, 2001 by Witness Besulto, is GRANTED IN PART AND DENIED IN PART consistent with this Order. DONE AND ORDERED in Chambers etMimii, Floridathis ofFebrusry, 2001. Case Document 999 Entered on FLSD Docket 02/23/2001 Page 6 of 6 We e?w A. LENARD ED STATES CT JUDGE cc: United Statts Magistrate Robert L. Dub? Camiine Heck Miller, AUSA William M- Norris, Esq. 99 NE 4111 Street 3225 Aviation Avenue. Suite 300 Miami, Florida, 33132-2111 Coconut Grove, Horida 331334741 Paul A. Momma, Esq. Philip Horowilz. Esq. 266 Tigcmil Avenue. Suite 104 12651 South Dixie Highway. Suitc 328 Miami, Florida 33133 Miami, Flon'da 33156-5964 Klaymm, Esq. So?a Powell-Casio, Esq. Suite 725 1390 Bristol] 511:. 200 501 School Street. SW. 'Miarni, FL- 33131 Wishington, DC 20024 Silvio. B. Pinon-Vazquez. Elq. 3211 Ponce de Leon Blvd., Ste. 206 Coral Gablcl, FL 33134 Randall C. Marshall. Esq. 3000 Biscayne Blvd, Ste. 215 FL 33137-4129