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The appeal process lasted 9 years. On August 2005 a three-judge panel of the court of appeals revoked all of the convictions on the grounds that the five accused had not received a fair trial in Miami. In an unexpected move, the government asked the twelve judges of the Court of Appeals of the Eleventh Circuit to review the panel’s decision through a so-called en banc procedure. Exactly one year later, on August 2006, in spite of the strong disagreement voiced by two of the three judges who made up the panel, the Court revoked, by majority, the decision of the three judges
The lack of evidence needed to substantiate the two main charges —conspiracy to commit espionage and conspiracy to commit first-degree murder—and the imposition of completely irrational and unjustifiable life sentences, has been in the course of all the appeal process another key argument advanced by the defense in its efforts to reveal the arbitrary nature of the process.
On September 2, 2008, the Court of Appeals ratified the guilty verdicts of the Five; ratified the sentences of Gerardo Hernandez and René Gonzalez; considered wrongful the sentences of Antonio Guerrero, Fernando Gonzalez and Ramón Labañino and revoked them, referring the cases once again to the Miami District Court so they could be re-sentenced
In that occasion the full Court of Appeals recognized that not secret or national defense information was obtained or transmitted in the case of the defendants in the charge of conspiracy to commit espionage.
On the other hand, one of the three judges, the Hon. Phyllis Kravitch, affirmed in a 16-page dissident opinion that the government did not present sufficient evidence to find Gerardo guilty of the charge of conspiracy to commit murder.