By GIOVANNA DELL'ORTO
The Associated Press

ATLANTA -- Government and defense lawyers sparred Tuesday over whether five Cuban intelligence agents could have gotten a fair trial in Miami at the same time that the politically charged Elian Gonzalez custody case was topping the headlines.

The government argued that the 11th Circuit Court of Appeals should deny the agents' request for a new trial because there was no evidence the jurors had any prejudice about the guilt or innocence of the defendants.

``Nothing indicates that any member of the jury was influenced by anything going on outside,'' said David Buckner, assistant U.S. attorney for the Southern District of Florida.

But two defense lawyers said the events surrounding the Gonzalez case inflamed the community, making it impossible to be impartial about any case dealing with Cuban Americans.

The Cubans were convicted in 2001 of being unregistered foreign agents. In addition, one was convicted of conspiracy to murder. All the convictions were thrown out in August by a three-judge panel of the appeals court, which found pretrial publicity combined with pervasive anti-Castro feeling in Miami didn't allow for a fair trial there.

``I believe this court won't convert the 'perfect storm' of prejudice into a bright and sunny day of neutrality,'' defense lawyer Leonard Weinglass told reporters, quoting the panel's language.

While the five men _ Gerardo Hernandez, Rene Gonzalez, Antonio Guerrero, Fernando Gonzalez, a.k.a. Ruben Campa, and Ramon Labanino, a.k.a. Luis Medina _ have acknowledged being Cuban agents, they said they weren't spying on the United States but on U.S.-based exile groups planning ``terrorist'' actions against the Castro regime.

The defense's Richard Klugh suggested the jurors were afraid to return a not-guilty verdict in a community that had just rioted over Elian's return to his father in Cuba. The government's case inflamed that passion because it focused on the agents' intent to disrupt the exile community, he said.

``Nothing could be more offensive,'' Klugh told the court. ``The case played to themes other than crime and espionage.'' He added that it might be possible to have a fair trial now, but the defense would still ask for a new trial not to be in Miami.

Buckner insisted the trial was fair because the court took ``vigorous and ultimately successful steps'' to select and isolate jurors _ none of whom were of Cuban descent. Just because they might have disliked Castro didn't imply they couldn't judge the men impartially, he said.

``It comes down to the jury,'' Buckner told the 13 judges. ``Not one expressed an opinion to the defendants' guilt.''

The five agents of the so-called Wasp Network remain in prison. Three of them, who also were convicted of espionage conspiracy for efforts to penetrate U.S. military bases, were sentenced to life. Hernandez was also convicted of murder conspiracy in the deaths of four Miami-based pilots whose planes were shot down by Cuban jets in 1996 off the island's coast.

Some activists who think Cuba has the right to spy on exile groups to protect itself held a press conference Tuesday afternoon to call for the Cubans' release.

``They are called heroes because they stopped terror threats against civilians and it's time to free them immediately,'' said Gloria LaRiva with the San Francisco-based National Committee to Free the Cuban Five.

The men were celebrated as ``five patriotic heroes jailed in the empire'' in Cuban newspapers Tuesday morning.

But anti-Castro Cuban-American organizations, including the 20,000-member Cuban American National Foundation in Miami, say they don't advocate violent change in the island nation.

``I don't think there are groups out there promoting violent attacks,'' said the foundation's Camila Ruiz-Gallardo. ``And even if they do exist, they don't represent the Cuban-American community.''

Miriam de la Pena, the mother of one of the pilots Hernandez is accused of shooting down, was in court Tuesday. She said she trusted U.S. justice would make the convictions stand.

``We're the victims of Castro's terrorism,'' she said.

Representatives of the Brothers to the Rescue group, to which the four pilots belonged, also called the defense arguments absurd.

``If you accept their argument, you can't try any terrorist against America in the United States,'' Sofia Powell-Cosio said.