Cuban agent faces possible life term

 BY GAIL EPSTEIN NIEVES

 To convicted Cuban spy master Gerardo Hernández, secretly snooping on the United States put him in the same ranks as the men and women of the U.S. military who attempted to "neutralize the plans'' of Osama bin Laden's terrorist organization before the Sept. 11 attacks.

 ``I am sure that the sons and daughters of this country who carry out this mission are considered patriots,'' Hernández wrote in a defiant letter to his probation officer.

 But in court Tuesday, when Hernández will be sentenced, federal prosecutors will paint a far more condemning portrait -- that of a man who was a party to murder and espionage, a man who they say should spend the rest of his life behind bars, not be hailed as a hero.

 Central to their position: Hernández's role in the Cuban shoot-down of two Brothers to the Rescue planes over the Straits of Florida on Feb. 24, 1996.

 ``Four lives were unlawfully extinguished due to the conspiracy the defendant joined, and the value of those lives must be affirmed in the sanction applied to him . . . the prescribed life sentence,'' lead prosecutor Caroline Heck Miller wrote in court filings.

 Of five Cuban spies who were convicted in June after a six-month trial, Hernández will be the first sentenced. The others are scheduled to learn their fates in the coming days and weeks.

 Like Hernández, spies Ramón Labañino and Antonio Guerrero were convicted of espionage conspiracy and face life in prison. Fernando González and René González (not related) were convicted of lesser charges and face maximum penalties of 10 years.

 POLICY SHIFT

 In an unusual move, relatives of four of the men obtained U.S. visas and traveled to Miami on Friday to attend the sentencings. The father and daughter of the fifth agent, whose mother is deceased, are still waiting for visas to make the trip.

 The relatives could be allowed to address U.S. District Judge Joan Lenard and ask for leniency -- just as kin of the four slain Brothers fliers are expected to ask for the maximum sentence. The defendants also are expected to speak.

 The attendance of Cubans from the island represents a shift for the Cuban government, which cited security concerns when it refused to allow all but one key Cuban
 witness to testify in person at the heavily guarded trial.

 The island relatives' presence also reflects the political importance that Cuba places on the fate of the five spies, who, through billboards, marches and nightly round-table discussions on state-controlled television, became the biggest cause célbre since Cuban raft survivor Elián González was plucked from the sea in 1999.

 ``I hope that they do not commit that error,'' of sentencing some of the men to life sentences, said Cuban leader Fidel Castro during a five-hour speech early Saturday.

 So many spectators are expected for Hernández's sentencing that Lenard has moved the proceeding from her regular courtroom to the district's stately Central Courtroom, which seats about 200 people. It's always been tapped for major trials, including those of former Panamanian strongman Gen. Manuel Noriega, former U.S. Judge Alcee Hastings and Hialeah Mayor Raul Martinez. Heavy security is expected again.

 Hernández and the other men were among 14 people originally arrested in September 1998 as members of the La Red Avispa, the Wasp Network, the biggest Cuban spy ring known to have been dismantled in the United States.

 Trial evidence showed that ring members, some using fake identities, tried to infiltrate U.S. military installations and Cuban exile groups in an effort to feed military and political information back to Havana and discredit the Cuban-exile community.

 The spies disputed the charges. While they acknowledged they were Cuban intelligence agents, they claimed they were sent to South Florida to protect Cuba from a U.S. attack and from ``extremist'' Cuban exiles believed to be responsible for hotel bombings in Havana.

 But most of the trial focused on the Brothers shoot-down, which claimed the lives of Carlos Costa, Mario de la Peña, Armando Alejandre and Pablo Morales.

 Shortwave radio transmissions between the spies and their handlers in Havana showed that in the days leading to the fatal air attack, Cuba was preparing for a violent confrontation with Brothers' planes and even warned its Miami-based agents not to fly on the Brothers' planes.

 Prosecutors argued that the messages showed Hernández, a career agent for Cuba's Directorate of Intelligence, had prior knowledge of the attacks.

 In recently videotaped interviews from Hernández's family home in Vedado, an upscale neighborhood of Havana, his family and friends praised him as a bright,
 considerate, quick-witted man who always made them proud.

 ``When at the beginning they talked about the possibility of premeditated crime, I knew that Gerardo was incapable of doing such a thing, because he always tried to do good and to keep all of us as one,'' brother-in-law Pedro Pablo Pérez said on the tape, which Hernández's defense lawyer, Paul McKenna, gave the judge.

 ``Now we are even prouder because he is showing us that we have to follow his example and continue fighting in the same trench,'' said another brother-in-law, Juan
 Carlos Castro.

 During the trial, McKenna blamed the shoot-down on Brothers' co-founder José Basulto, calling Basulto's repeated incursions into Cuban airspace ``provocations.''

 McKenna is using that same reasoning in seeking a reduced sentence for Hernández, who faces two life sentences for murder conspiracy and espionage conspiracy.

 In court filings, McKenna invokes parallels between the Sept. 11 terror attacks and Brothers to the Rescue search-and-rescue flights, posing this rhetorical question:

 ``Who could argue, after the fatal attacks by civilian aircraft against the World Trade Center in New York as well as the Pentagon in Washington, D.C., that unarmed civilian aircraft pose no threat?''

 Basulto, whose plane was the only one not shot down during the mission, does argue, calling McKenna's comparison ``senseless.''

 ``The day that the shoot-down took place we were more than 12 miles away from the shoreline of Cuba in international airspace. What threat to buildings?'' he said. ``We communicated with them and told them where we were at all times.''

 NO `GRAVE DANGER'

 Defense attorneys also are attacking the espionage conspiracy convictions, saying their clients should not get life because the spies never had any intent to get
 information which could have caused ``exceptionally grave danger'' to U.S. national security and because they were so far from completing the espionage.

 The spies never obtained any classified documents, prosecutors have acknowledged -- but they say that was not for a lack of trying.

 ``Mr. Labañino caused no harm at all,'' particularly when compared to other spies in the past, so should not be subject to life, wrote defense lawyer William Norris.

 Joaquín Méndez, who represents Fernando González, and the other defense lawyers also are seeking ``downward departures'' from their clients' sentences as credit for the approximate year they spent in solitary confinement in the special housing unit of the Federal Detention Center in Miami.

 It was from that detention center that Hernández wrote his unapologetic letter to the probation office, dated Aug. 13, 2001, stating that ``only in Miami,'' where ``fear and prejudice accumulated for more than 40 years,'' could guilty verdicts have been returned in his case.

 ``But the reality is that here, in Miami,'' Heck Miller responded in her filing, ``before a jury with no Cuban Americans on it, just as he wished, the defendant received an eminently fair trial and now justice must be served.''

                                    © 2001