Published Tuesday, October 6, 1998, in the Miami Herald

Prosecutors seek to withhold papers

By DAVID KIDWELL
Herald Staff Writer

The criminal trials of 10 alleged Cuban spies could be delayed for months -- even longer -- because of an infrequently used law that gives prosecutors the ability to withhold secret documents vital to national security.

Defense attorneys face extensive -- some say intrusive -- personal background checks, and prosecutors already have asked for delays in procedures that under normal circumstances would force them to begin handing over evidence by mid-October.

``We're all standing around like a bunch of idiots with literally nothing to do right now,'' said Paul McKenna, defense attorney for alleged ring mastermind Manuel ``Giraldo'' Viramontes. ``The government has made these broad allegations, and it appears we're not going to see any actual evidence for quite some time.''

All 10 suspects are being held in federal detention without bail on charges of conspiracy and failing to register as a foreign agent.

Federal prosecutors Caroline Heck-Miller and Guy Lewis are expected to file a motion this week seeking to keep certain records secret for national security interests, Heck-Miller said during a hearing Monday. At the same hearing, eight of the 10 suspected spies pleaded not guilty before U.S. Magistrate William Turnoff.

Even the motion itself, defense attorneys said, will be held under seal.

``It's kind of ironic,'' McKenna said. ``I've got to go explain all this to my client, and I'm sure he won't be surprised. After all, he is from Cuba.''

Meanwhile, two suspects who were not arraigned Monday have been negotiating a plea agreement, as prosecutors maneuvered behind the scenes in attempts to nudge cooperation.

The plea deal, which would have kept the husband/wife team of Nilo and Linda Hernandez from being named in Friday's indictment, fell through late last week, their attorneys said.

``Prosecutors are shopping deals and possibly flips,'' said Richard J. Diaz, who represents Nilo Hernandez, 44. ``We listened, but in the end decided to reject the offer. It would be malpractice for me to advise my client to plead guilty to a crime when we haven't been afforded an opportunity yet to see the government's hard evidence.''

Other defense attorneys suggest its a typical case of ``first rats to the cheese,'' a saying attorneys use to describe the practice of defendants lowest in the criminal hierarchy racing to cut early deals with prosecutors.

The 10 alleged Cuban spies were arrested last month in what authorities said was a sophisticated -- although low budget -- conspiracy to infiltrate Cuban exile groups and U.S. military installations and send information back to Cuba.

A federal grand jury on Friday indicted three on charges of conspiracy to deliver national defense information to Cuba and seven others on much less serious charges of acting as agents of Cuba without notifying the U.S. attorney general.

Defense attorneys rushed to point out that while the 19-page indictment alleges a conspiracy, and specific acts of deception and attempts at infiltration, it does not make any specific allegations of espionage, the actual transfer of sensitive information to Communist Cuba.

``There are no substantive charges here at all,'' said Jack Blumenfeld, the court-appointed attorney for Antonio Guerrero, one of three facing a life prison sentence on the conspiracy charge. ``They have three years of wiretaps, room bugs, even surreptitious entries -- burglaries -- and they don't have any specifics.''

The three-year federal investigation allegedly began after an alleged conspirator's computer was stolen in a Los Angeles burglary and later was given to authorities, a government assertion defense attorneys say they view with skepticism.

Defense attorneys for each of the alleged spies are also being forced to apply for security clearance -- answering personal questions about unpaid bills, mental health maladies or previous drug use -- before they are allowed to inspect evidence.

It remains unclear what documents or evidence against the alleged spies would remain secret. Prosecutors have been mum. But attorneys interviewed suggest that the records in dispute will have to be reviewed in secret by Magistrate Turnoff, who will make a decision how to handle sensitive evidence.

Defense attorneys in South Florida were asked to submit to similar procedures during the 1992 trial of former Panamanian dictator Manuel Noriega, when sensitive documents were inspected in a secured basement at the federal courthouse.

But aside from the inconvenience, some defense attorneys are lamenting an invasion of privacy. ``The whole process is pretty extensive, and intrusive,'' said Gary Kollin, a Fort Lauderdale attorney appointed to represent Amarylis Silverio. ``Especially with the kind of weak case they've got.

``What bothers me is that this could really grind everything to a halt for months, while our clients sit in jail,'' he said.

Copyright © 1998 The Miami Herald