In U.S. v. Campa, No. 01-17176 (June 4, 2008), the Court affirmed all convictions of all defendants convicted of espionage and related offenses.
The Court rejected the challenges to evidence obtained from searches authorized under the Foreign Intelligence Surveillance Act. The Court noted that the government certifications in the search application were not clearly erroneous.
The Court rejected the argument that the district court should not have held an ex parte hearing regarding the government’s discovery obligations under the Classified Information Procedures Act, noting that the Act did not prohibit such a hearing. The district court also did not err when it declined to unseal the record of its ex parte hearing, as the statute has no provision for unsealing, and the government’s right to keep some classified information from defense counsel would be ineffective if, after the trial, the government had to expose the information.
The Court also rejected a Batson challenge to the government’s challenges of black venire members, noting that the unchallenged presence of blacks on the jury.
The Court held that the failure to register as a foreign agent offense was a general intent crime, and therefore rejected the claim that a defendant’s knowledge of the registration requirement was an element of the offense.
The Court also rejected challenges to the sufficiency of the evidence, noting, among other things, the defendants’ overt acts in furtherance of a conspiracy, such as flying over Homestead Air Base, encrypted work directions, an "escape plan," and a counterfeit passport.
The Court rejected the argument that the conspiracy to murder must involve an intent to murder within the special jurisdiction of the United States, noting that mens rea does not extend to the jurisdictional elements of an offense.
The Court rejected the argument that a defendant did not know the object (murder) of the conspiracy, pointing out that he wrote a message after the shootdown of Brothers to the Rescue planes that called the "operation to which we contributed" a "success." The Court also rejected the argument that the government should have called an expert witness to interpret the messages that the defendant received from the Cuban government: "the meaning of the messages was evident." The Court added that the "malice aforethought" element of murder was established by proof of the defendant’s knowledge of the plan to shoot down planes, and that the death of persons on board was "substantially certain." (Judge Kravitch dissented, stating that the government had only proved an intent to "confront" airplanes, not to shoot them down).
Turning to sentencing, the Court agreed with Campa that he should not have received a USSG § 3B1.1 "manager or supervisor" enhancement. The enhancement was based on his managing the assets of the conspiracy, which is an insufficient basis for imposing this enhancement. The Court therefore vacated this portion of the sentence and remanded for resentencing.
As to Medina, the Court agreed that the district court should have considered whether a downward departure was warranted in light of the "little harm" that his information would caused, even if it were categorized as "top secret." The Court affirmed Medina’s obstruction enhancement, finding that giving a false name to a magistrate at a detention hearing qualifies for this enhancement.
As to Guerrero, the Court affirmed a "special skills" enhancement: "Skills in civil engineering, radio technology, and computer technology are legitimate skills that Guerrero turned to criminal purposes."
