'Cuban 5' fail in appeal of spy case
An appellate court in Atlanta ruled that the 2001 espionage convictions
of five Cuban men must stand, but three of their sentences must be
reconsidered.
Posted on Thu, Jun. 05, 2008
BY JAY WEAVER AND LUISA YANEZ
jweaver@MiamiHerald.com
A federal appeals court on Wednesday upheld the convictions of five
Cuban men accused of spying on the U.S. government, but threw out three
of their sentences by a Miami judge -- including two life prison terms.
The decision by a three-judge panel in Atlanta was considered a major
victory for federal prosecutors against the so-called Cuban Five. The
decade-old case was steeped in controversy because prosecutors argued
the Wasp spy network was linked to the Cuban government's 1996
shoot-down of two Brothers to the Rescue planes over the Florida Straits.
In a 2-1 vote, the panel upheld the central conviction and life sentence
of the one defendant implicated by the Miami federal jury in that murder
conspiracy, Gerardo Hernández. He was held responsible for the deaths of
three Cuban Americans and a Cuban exile who were killed on Feb. 24,
1996, when Cuban fighter jets shot down two of their planes over
international waters.
''Hernandez argues that his conviction should be reversed because the
government failed to prove he intended the murder to occur within the
jurisdiction of the United States, failed to prove that he knew of the
object of the conspiracy, and failed to prove that he acted with malice
aforethought,'' wrote appellate judge William H. Pryor Jr. in the
99-page ruling.
``Each of these arguments fails.''
Maggie Khuly, whose brother Armando Alejandre Jr. was among the four
Brothers to the Rescue fliers shot-down, was relieved Wednesday.
`VICTORY FOR JUSTICE'
''We are very pleased the appeals court upheld the conviction of all the
spies. It was truly a victory for justice,'' said Khuly, who attended
almost every day of the six-month trial in 2001. ``The court confirmed
what we knew all along -- that these men had received a fair trial.''
Khuly said she was mainly relieved Hernández's conviction -- linked to
his involvement with the shoot-down -- was upheld.
''He's the one we're most concerned with because of the role he played
in my brother's death,'' she said. ``We're very happy there will be no
change to his sentence.''
On the Cuban Five's website, Hernández declared: ``Ours may be one of
the most ridiculous accusations of espionage in the history of this
country.''
The ruling by the 11th U.S. Circuit Court of Appeals does not mean the
case of the Cuban Five is over.
In addition to the key ruling on Hernández, the appellate panel upheld
the conviction and sentence of Rene González, who is serving a 15-year
prison sentence for acting as an unregistered foreign agent for the
Cuban government.
REDO SENTENCES
But the panel ordered U.S. District Judge Joan Lenard to redo her
sentences for three of the convicted defendants: Ramón Labañino and
Antonio Guerrero, who received life sentences for espionage conspiracy,
along with Fernando González, who got 19 years for acting as an
unregistered foreign agent.
Lenard, criticized by the appellate panel for handing down excessive
sentences, could still send them to prison for a long time. No date has
been set for the resentencings.
The panel found there were unproven claims that Labañino, Guerrero and
Fernando González were leaders of the spy network, collected or
transmitted top secret information or took part in a drug-trafficking
operation.
MISTAKES MADE
In the case of Fernando González, the panel said Lenard wrongly
''enhanced'' his sentence based on a finding by prosecutors that he was
``a manager or supervisor.''
The appellate judges agreed with González, saying: ``Enhancement cannot
be based solely on a finding that a defendant managed assests for a
conspiracy.''
In the case of Labañino, the panel said Lenard made three mistakes when
sentencing him -- including declining to go ''downward based on his
minor role'' in the conspiracy.
The panel said the judge erred by finding that his objective in the
conspiracy was to obtain top secret information.
But the panel did reject several of his other claims, including that the
president of the United States should have been allowed to say if his
action had truly endangered national security.
In Guerrero's case, the panel found that he deserved a new sentence
because there was no evidence that top secret information was ``gathered
and transmitted.''
Hernández made the same argument, to no avail. The panel ruled that
judicial error was irrelevant because he was sentenced to life
imprisonment on his murder-conspiracy conviction.
Hernández's lawyer, Paul McKenna, did not return calls for comment.
A former federal prosecutor in the Cuban Five case, David Buckner,
called the appellate decision a ``huge win for the United States.''
Buckner also said there were several ''significant holdings'' in the
ruling that could benefit the government in future murder conspiracy,
espionage or terrorism cases.
Back in Cuba, the convicted spies are national heroes and martyrs,
frequently featured in the island's government newspaper Granma.
SUPPORTERS INCENSED
In the United States, the San Francisco-based National Committee to Free
the Cuba Five, which has called for their release, issued an angry
response to the court's upholding of the convictions.
''This is a total outrage,'' said the committee's coordinator, Gloria La
Riva. ``That a terrorist like Luis Posada Carriles, who is being
protected by the Bush administration, is allowed to walk the streets of
Miami and these men kept in jails is incomprehensible.
``They should be freed immediately. They should have never been
arrested. They were working to protect the Cuban and American people
from terrorist attacks.''
She called the vacating of the sentences for three of the men ``a step
forward, but not enough.''
La Riva said the group will hold press conference Thursday in Miami and
rallies across the world on Friday.
The five are currently serving their time in federal prisons in Florida,
California, Colorado, Kentucky and Indiana.
http://www.miamiherald.com/news/americas/cuba/story/558696.html
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