Mixed Appeals Verdict for Cuban Five
by Jonathan Springston
June 6, 2008
Reprinted from Atlanta Progressive News
ATLANTA, Georgia, Jun 6 (IPS) - Activists plan to protest a federal appeals court ruling Wednesday to uphold the convictions of five Cuban intelligence agents accused of spying in the United States.
However, the three-judge panel of the 11th Circuit Court of Appeals also vacated three sentences -- two of which were for life -- and sent them back to a federal court in Miami for resentencing based on Wednesday's opinion that none of the five men gathered classified military information while in the United States.
Defence attorneys for the so-called "Cuban Five" had challenged a Miami judge's refusal to suppress evidence from searches conducted under the Foreign Intelligence Surveillance Act, citing sovereign immunity, flawed discovery procedures and jury selection, and alleged lack of evidence to support the convictions.
Judge William H. Pryor, writing the majority opinion, rejected those arguments as "meritless" and concluded that "sufficient evidence supports each conviction."
In 2001, a Miami court sentenced Gerardo Hernandez, Ramon Labanino, Antonio Guerrero, Fernando Gonzalez, and Rene Gonzalez (no relation to Fernando) to four life sentences and a combined 75 years in prison for, among other charges, conspiracy to commit murder and conspiracy to commit espionage against the United States.
The ANSWER coalition and National Committee to Free the Cuban Five plans to hold a protest in San Francisco Friday, and has called on supporters in the U.S. and abroad to organise rallies in front of U.S. federal buildings, embassies, consulates and other "appropriate symbols".
The five, who are part of what Cuban intelligence calls "The Wasp Network", have admitted that they are Cuban agents but denied spying on the United States or gathering and transmitting classified military secrets, and denied involvement in a 1996 shoot down of two planes that resulted in the deaths of four men.
On Feb. 24, 1996, the Cuban Air Force shot down two of three planes flying away from Cuba in international airspace. The incident resulted in the deaths of two pilots and two passengers belonging to Miami-based Brothers to the Rescue, an anti-Castro group that worked to rescue those fleeing the island in rafts and which dropped pro-democracy pamphlets on Cuba.
Hernandez received a life sentence for conspiracy to commit murder and the three-judge panel upheld that conviction Wednesday 2-1. Judge Phyllis Kravitch, in a dissenting opinion, argued the United States does not have sufficient evidence to uphold this conviction.
The Cuban Five have always maintained they were not attempting to overthrow the U.S. government but rather trying to protect citizens in Cuba from attacks plotted by anti-Castro elements.
"I represent a number of Cuban-American organisations, six altogether, that agree with the fact that these men are innocent," Andres Gomez, a coordinator of the National Committee to Free the Cuban Five, said Thursday. "These five men were in the United States in order to protect the Cuban people against terrorist acts that were being planned in the United States."
The three-judge panel Wednesday vacated the life sentences of Rene Gonzalez and Guerrero and Fernando Gonzalez's 19-year sentence, concurring with their argument that their sentences were improperly configured because they did not gather or transmit classified information.
The judges ruled Fernando Gonzalez's sentence to be too harsh because he was not a supervisor of The Wasp Network.
"After seven years of the appellate process, this is the first resolution of all the appellate claims. Now that we have the first resolution, we are considering requesting review by the full 11th circuit of these issues," Richard Klugh, attorney for Fernando Gonzalez and deputy chief of appeals for the federal public defender's office in Miami, said Thursday.
"We are further continuing to prepare for the possibility of [taking the case to] the United States Supreme Court, as two of the three judges of this [11th Circuit] panel have strongly urged."
The case of the Cuban Five has come before the 11th Circuit three times. A three-judge panel overturned the 2001 convictions in 2005 on the grounds there should have been a change of venue from Miami, where the trial received negative coverage and prevented the men from receiving a fair trial, to another location.
But the full 11th Circuit reversed that decision in August 2006, rejecting the claim the trial should have been moved from Miami.
The three-judge panel that issued Wednesday's decision heard oral arguments from U.S. attorneys and the defence in Atlanta in August 2007.
While anti-Castro groups in the United States maintain the men got what they deserved, Cuba and others around the world hold the men up as heroes.
"While I'd be lying if I didn't say I was very disappointed by the opinion I read yesterday...I'd also be lying if I didn't say that I have a lot of hope and still have a lot of expectations in this case that we could do better," Paul McKenna, attorney for Gerardo Hernandez, said Thursday.
"When you know that you are so close and then you don't get there, that's very disappointing after seven years, 10 years of working on this case," McKenna added. "But I can tell you the fight is definitely not over. The fight is far from over. This fight may go on for years."
The National Committee to Free the Cuban Five is planning protests that will take place in several cities in the United States and Canada over the coming days and weeks.
"The Cuban Five should never have been arrested," Gloria La Riva, coordinator for the committee, said Thursday. "They were saving lives, they repeatedly opposed terrorism and we are going to continue until they are free."