Federal prosecutors tell an appellate panel that five convicted Cuban agents received a fair trial; defense attorneys say that wasn't possible in Miami.

BY LARRY LEBOWITZ

Lawyers for five Cuban spies argued Wednesday that they were unfairly convicted in a flawed 2001 trial that never should have been held in an anti-Castro hotbed like Miami.

Federal prosecutors countered the trial was fair, the judge gave the defense plenty of chances to seek a new venue and the life sentences handed down to three of the spies were justified.

At the center of the debate was the Feb. 24, 1996, shooting down of two Brothers to the Rescue planes by Cuban Air Force MiGs. Exiles say the incident occurred over international waters, while Cuban officials contend the exile group's planes crossed into Cuban airspace.

The three-judge panel of the 11th U.S. Circuit Court of Appeals asked pointed questions about the government's evidence underlying the murder conspiracy conviction of spy ringleader Gerardo Hernández. Defense attorneys contend no evidence directly links Hernández, a career agent with the Cuban Directorate of Intelligence, to the shoot-down.

Appeals Judge Stanley Birch asked what was the proof Hernández ``was going to know that it would be a murderous shoot-down as opposed to one justified by [Cuban] sovereignty.''

WARNINGS

Federal prosecutor Caroline Heck Miller responded that the Cuban government had told Hernández in coded radio messages that a ''confrontation'' was imminent and to make sure his operatives stayed off the Brothers' planes in the days before the fatal attack.

But Hernández ''had no control over what they told him,'' Birch shot back.

Judge Phyllis Kravitch noted that the conviction required a plot to down planes in international airspace -- not over the communist island. Her point: The Castro government had been warning the United States and the rest of the international community that the Brothers group, which mainly searched for Cuban rafters, had made 25 incursions into Cuban airspace in the 20 months before the shoot-down.

The case has few legal precedents and it may be a while before the appeals court issues a ruling.

If the defense succeeds in vacating the murder conspiracy conviction against Hernández, it could have an effect on the life sentences handed down against codefendants Antonio Guerrero and Ramón Labañino. All three were convicted of espionage conspiracy and their life sentences were based, in large part, on the murder evidence.

Federal public defender Richard Klugh argued there was no evidence the espionage created an ''exceptionally grave danger'' to U.S. national security interests. ''It was nothing more than a flea on a pimple of the United States,'' he said.

Heck Miller acknowledged that the spies never obtained classified documents -- but it wasn't for a lack of effort.

Ring members, some using fake identities, tried to spy on U.S. military installations and Cuban exile groups to feed military and political information back to Havana and discredit the exile community.

CHANCE OF RETURN

If the appeals court overturns the murder conspiracy count, Hernández, Guerrero and Labañino could face considerably less prison time at a resentencing hearing -- and perhaps a chance of returning to Cuba one day, said Hernández trial attorney Paul McKenna.

''There's no way [the U.S] is even going to consider a trade as long as murder is hanging over this proceeding,'' McKenna said after the hearing. ``But if we can get rid of that stigma, we might be able to trade them someday.''

The change-of-venue issue was raised by attorneys for all five spies. Attorney Leonard Weinglass said the trial should never have been permitted in a community with more than 500,000 residents who left their homeland because of the Castro regime.

Heck Miller countered that U.S. District Judge Joan A. Lenard, who presided over the trial, gave defense attorneys ample chances to argue their change of venue motions and gave them extra chances that effectively removed all Cuban Americans from the jury.

The defense attorneys repeatedly praised the jury during the trial, she said.

''That happiness persisted until the convictions took place,'' Heck Miller said.

The spies have been turned into national heroes in Cuba, their faces splashed on billboards, and are the subject of a government-sponsored international campaign to sway support against the U.S.