'Cuban Five' Plea for Freedom
Monday, August 20, 2007; 7:26 PM
ATLANTA -- The politically charged case of five men convicted of spying for communist Cuba came before a federal appeals court for the third time Monday, with defense attorneys alleging that prosecutors overemphasized Fidel Castro and committed other misconduct to win unjust convictions.
Defense attorneys seeking a new trial claim the government wrongly used "Castro's evil" to push for convictions on what they say are overblown charges of conspiracy to commit espionage and murder. Federal prosecutor Caroline Heck Miller dismissed what she called a defense "parade of horrors" and argued the trial was won by hard evidence, not anti-Castro sentiment.
"Red baiting. Communism. Your Honor, that was not the record of this case," Miller said. "It was a soberly tried case."
Dozens of people lined up outside the Atlanta courthouse more than two hours before the arguments began to watch the latest chapter of the decade-long saga unfold. The "Cuban Five" have been lionized as heroes in Cuba, while exile groups say they were justly punished.
Castro's government sent Gerardo Hernandez, Ramon Labanino, Rene Gonzalez, Antonio Guerrero and Fernando Gonzalez to South Florida to gather information about anti-communist exile groups and send it back to the island using encrypted software, high-frequency radio transmissions and coded electronic phone messages.
The five were convicted of being unregistered foreign agents, and three were found guilty of espionage conspiracy for failed efforts to obtain military secrets. Hernandez was also convicted of murder conspiracy in the deaths of four Miami-based pilots whose small, private planes were shot down in February 1996 by a Cuban MiG in international waters off Cuba's northern coast.
They were sentenced to terms ranging from 10 years to life in December 2001, but the case has ping-ponged through the court system the last six years due to a round of appeals.
In August 2005, a three-judge panel of the 11th U.S. Circuit Court of Appeals in Atlanta tossed the verdicts, saying the five didn't receive a fair trial because of anti-Castro bias in Miami. But the convictions were reinstated exactly a year later by the full 11th Circuit.
Monday's arguments before another three-judge panel of the court offered the five their latest shot at freedom.
Defense attorney Richard Klugh focused his arguments on Guerrero, who was accused of sending detailed reports on the Naval Air Station at Key West. He said his client could have used public information _ not clandestine espionage _ to piece together the reports.
"An enterprising reporter could have obtained the same info that Antonio Guerrero obtained on that base," Klugh said. "He's doing a life sentence for something that could have been published in the Miami Herald."
Fellow defense attorney Brenda Bryn told the judges that prosecutors breached 12 different categories of misconduct that "have never before been identified in one case."
She said the law demands the court reopen the case based on the "flagrancy" of the misconduct, noting that 28 of 34 objections lodged against prosecutors during closing arguments were sustained.
But Miller argued the government's conduct was proper, and told the judges that much of what is being alleged as misconduct passed without objection at the 2001 trial.
Although the five men's so-called "Wasp Network" spy ring recovered no U.S. secrets, federal prosecutors argued for stiff penalties, saying they were well-trained spies who ran afoul of federal law by failing to inform the government of their presence.
Defense lawyers said they were trying to gather information that might prevent exile groups from waging more attacks, such as the bombings at Havana hotels that killed an Italian tourist in 1997.
While serving their sentences, the men have become celebrities of sorts in Cuba. As Castro celebrated his 81st birthday last week, messages that the five hope to "celebrate all those future anniversaries together in our beautiful fatherland" were published in the Communist party newspaper.