Cuban Agents Appeal Convictions

ATLANTA — The long-running case of five men sent to prison for working as Cuban agents on U.S. soil returned to court Monday when their lawyers argued before a federal appeals panel that prosecutors made improper statements and the evidence used to convict them was insufficient.

"Every type of prosecutorial misconduct ever identified in the case law occurred here, in some cases repeatedly so," defense attorney Brenda Byrn told the three-judge panel, asking that a new trial be granted.

Prosecutors, however, insisted their conduct in the case was proper and there are no grounds to overturn the convictions or order a new trial.

The case of the five Cuban men — Rene Gonzalez, Antonio Guerrero, Fernando Gonzalez, Ramon Labanino and Gerardo Hernandez — has stirred strong emotion on both sides of the Florida Straits. Cubans praise them as heroes who were defending their country, while many in Miami's exile community consider them spies who were out to harm U.S. interests.

Arrested in 1998, all five were convicted in 2001 on charges of working in the United States as unregistered foreign agents. Three were also found guilty of conspiracy to commit espionage. Their Miami trial lasted seven months, and their sentences range from 15 years to life.

In 2005, defense lawyers won an initial appeal before a three-judge panel of Atlanta's 11th U.S. Circuit Court of Appeals, arguing that the trial should have been moved out of Miami because that city's large Cuban exile population made a fair proceeding impossible.

Prosecutors, however, appealed that ruling and the full 11th Circuit reinstated the convictions a few months later, but sent the case back to the three-judge panel on other issues.

In Monday's hearing, defense attorneys focused on the most serious charges that resulted in life sentences, including conspiracy to commit murder and conspiracy to commit espionage.

The five Cubans "were never directed to obtain espionage-level information," defense attorney Richard Klugh told the panel, saying the agents collected only superficial information available from public sources.

One of the defendants, Klugh argued, "is serving a life sentence for what could've been published in the Miami Herald."

Prosecutor Caroline Heck Miller, however, argued that the agents were in "close coordination" with Cuban military and intelligence services, pointing to dispatches intercepted by U.S. authorities that flowed between the men and their handlers in Cuba.

"There is extensive evidence that these defendants considered the U.S. their enemy," she said.

Much of the argument focused on a 1996 incident in which Cuban MiGs shot down two small private planes operated by a Miami exile group called "Brothers to the Rescue," killing four men inside the planes.

The Cuban agents had infiltrated the group, which flew repeatedly near Cuba to spot Cuban rafters and to drop leaflets.

During the trial, prosecutors convinced jurors that Hernandez had sent information the Cuban authorities used in their plans to attack the planes. Convicted on a count of conspiracy to commit murder, he was sentenced to two life terms.

Defense attorneys argued Monday that there was no evidence presented in the trial showing Hernandez had knowledge of Cuba's plans for the attack and that he could not be connected to the incident.

Miller, however, pointed to one of the secret dispatches from Cuba that ordered Hernandez not to fly on the planes on several days surrounding the shoot-down, and to confirm the dates of the planned flights.

Lawyers say the three-judge panel has no deadline for its ruling on the appeal, and both sides are likely to file further appeals should they lose. The full 11th Circuit would first hear such appeals, with later proceedings possibly being filed with the U.S. Supreme Court.