<p>Lawyers for five Cuban intelligence agents will argue Tuesday that their trial shouldn't have been in Miami, claiming a "pervasive anti-Castro sentiment" made finding a fair jury impossible, despite the prosecution's assertion that impartial jurors convicted the men _ some of espionage _ in 2001.</p><p>"There was too much going on on the heels of the Elian Gonzalez saga. There was too much pressure on jurors to return a fair verdict," said defense attorney Paul McKenna, referring to the young Cuban castaway who sparked a high-profile custody battle in 2000 between his relatives in Miami and his father in Cuba.</p><p>Even though a three-judge panel from the 11th Circuit Court of Appeals ruled in August that the five men deserved a new trial, the full court's 12 judges have agreed to rehear the appeal Tuesday. The five men remain in prison.</p><p>Prosecutors argue in a brief filed with the court that there wasn't enough pretrial publicity to justify moving the trial out of Miami and the jury _ which did not include Cuban-Americans _ was approved by the defense.</p><p>The defense will argue that any juror living in a community so saturated with strong feelings couldn't be impartial, regardless of their background. McKenna had originally asked the trial be moved 23 miles north to Fort Lauderdale, Fla.</p><p>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 instead on U.S.-based exile groups planning "terrorist" actions against the Castro regime.</p><p>They all were convicted of serving as unregistered agents of a foreign government. Three of them, who also were convicted of espionage conspiracy for efforts to penetrate U.S. military bases, were sentenced to life in prison. 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.</p><p>The three-judge panel threw out all the convictions for what it called "the perfect storm" of publicity and community feelings. The Miami community was so pervasively anti-Castro that holding a trial there for the five Cubans was akin to trying bombing conspirators Timothy McVeigh in Oklahoma City, the defense argued.</p><p>The panel also cited inflammatory remarks by the prosecution, which included saying the Cubans wanted to destroy the United States, McKenna said, adding one witness accused him of also working for Cuba. The U.S. Attorney's brief argued that the defense raised no objection at the trial and can't allege misconduct now.</p><p>Alicia Valle, special counsel to the U.S. Attorney for the Southern District of Florida, has declined to comment on the case before the hearing.</p><p>The panel's decision was applauded in Cuba, where the men are celebrated as the "Five Heroes." Since Castro took power in 1959, there has been a long line of Cuban spying in the United States, much of it involving exile groups in Florida.</p><p>While most exile groups push for peaceful democratic reform in the island nation, other anti-Castro militants have been accused of sabotage, including the suspect in the bombing of a Cuban airliner that killed 73 people in 1976.</p><p>Some activists who think Cuba has the right to spy on those groups to protect itself were in Atlanta on Monday to call for the Cubans' release.</p><p>"They were peaceably opposing terrorism against Cuba. We're calling for their immediate release so they can return to Cuba," said Gloria LaRiva with the San Francisco-based National Committee to Free the Cuban Five.</p><p>However, Cuban-American organizations, including the 20,000-member Cuban-American National Foundation in Miami, say their programs are nonviolent.</p><p>"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."</p>
