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August 20, 2007 | 'Cuban Five' appeal to be heard today

Almost nine years after their arrest, five Cubans convicted of spying on the U.S. government and South Florida exile groups will appeal today to judges in Atlanta, arguing that their sentences are excessive and they should be free.

A three-judge panel of the 11th Circuit Court of Appeals will hear the latest appeal -- the third time the case has come before that court. The so-called Cuban Five, who are called heroes on the communist-run island, were convicted in 2001 in Miami and handed sentences ranging from 15 years to life.

Four years later, a three-judge appeals panel in Atlanta concluded the five did not receive a fair trial in Miami. But the full appeals court reversed that ruling last year, noting no Cuban Americans were part of the jury and that some of the defendants' evidence to show bias was flawed. So the original sentences still stand.

Today, defense lawyers will take another stab at seeking lighter sentences.

"This court of appeals already has an immense task in front of it, " said former Assistant U.S. Attorney David Buckner, who prosecuted the original case in 2001. "The printed record is immense. It covers one long folding table, tens of thousands of pages."

At trial, prosecutors presented evidence of the five men infiltrating Miami-area exile groups and trying to pass U.S. military secrets to Havana.

They also linked some of the men's spying to the Cuban government's 1996 shootdown of two planes belonging to the exile organization Brothers to the Rescue. Three Cuban Americans and a Cuban exile died when Cuban government MiGs shot down two of the Brothers' small planes over international waters.

WAITING ON DECISION

The families of the victims have been waiting for a decision for a long time, said Maggie Khuly, whose brother, pilot Armando Alejandre Jr., was killed on Feb. 24, 1996.

"I prefer that it be this way so there are no doubts, " Khuly said. "We firmly believe in the U.S. justice system. So far it hasn't let us down."

The defense will be focusing on three main arguments:

* That there was not enough evidence to convict Gerardo Hernandez, one of the five, on charges of murder conspiracy for the Brothers' deaths in the plane shootdown.

* That prosecutors in the original trial, particularly during the closing arguments, made statements that were improper and prejudiced the jury.

* That the sentences handed down to all five men are excessive.

"The case is a festering injustice, which somehow this system cannot digest, " said defense attorney Leonard Weinglass.

Weinglass represents Antonio Guerrero, who received a life sentence for espionage conspiracy.

"Hopefully this time, we're going to begin the process of getting them out of prison and home, " Weinglass said.

The U.S. Attorney's Office would not comment on the arguments in advance of the hearing.

Jose Basulto, who was piloting one of the Brothers to the Rescue planes that survived the 1996 shootdown, said the comings and goings of the trial amount to little more than a smoke screen.

"This is purely formal. This is cosmetic, " Basulto said. "If you don't touch Raúl and Fidel Castro, this is completely secondary."

The five men have been touted as heroes in Cuba. Their faces appear on posters and billboards. Paul McKenna, a Miami lawyer who is representing Gerardo Hernandez, said he himself was recognized in a restaurant on one of his trips to Cuba.

LAWYER ON TV

"They have programs on the TV. I guess they put my picture up there or something, " McKenna said.

The five's fame will not wane any time soon. If the appeal fails, the defense could call for a review by a full panel of judges. And even if they lose again, the case will still live on, Weinglass said.

"If we lose on everything, we're going to the Supreme Court, " he said.

CUBAN FIVE'S CRIMES

Gerardo Hernández: espionage conspiracy and murder conspiracy; sentenced to life.

Ramón Labañino: espionage conspiracy; life imprisonment.

René González: functioning as unregistered foreign agent; 15 years.

Fernando González: functioning as unregistered foreign agent; 19 years.

Antonio Guerrero: espionage conspiracy; life imprisonment.

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