4

 

 

Government Exhibit 54A ........................ 197 10

Government Exhibit 54B, C, G, H, I, J, L, N ... 200 19

UNITED STATES vs SABRETECH, ET. AL - 11-22-99

5

 

COURTROOM DEPUTY: All rise. Court is in

session. The Honorable Judge James Lawrence King

presiding.

THE COURT: Ms. Raskin?

MS. RASKIN: Yes, Your Honor, I just wanted to

bring to the Court's attention one matter, as to whether

perhaps the Court might want to consider it before the jury

does come in.

My understanding is that the Government intends

to call a records custodian in an effort to put in a

contract, a purported contract between DynAir Tech of

Arizona and STS Services, a contract that dates from 1994,

before SabreTech purchased the stock of any of these

companies, a contract which is unsigned by even the

predecessor organization.

We object to it as immaterial and thought Your

Honor might want to deal with that issue before, as I said,

the jury comes in.

THE COURT: All right. Counsel?

MR. BRIGHAM: Your Honor, this witness will

probably testify this afternoon. There is an agreement and

also a release and indemnity statement between DynAir Tech

of Arizona which is a predecessor company to SabreTech.

There are corporate mergers where DynAir Tech of Arizona,

the liabilities and assets of that company effectively

 

UNITED STATES vs SABRETECH, ET. AL - 11-22-99

6

 

passed to SabreTech.

The importance of this is to show that in fact

there was a master/servant relationship between SabreTech

and the employee, Mauro Valenzuela, and to establish that

relationship, that employee relationship with SabreTech

itself.

Your Honor, I believe --

THE COURT: Tell me that again, please. You wish

to show that the defendant, the absent defendant who is not

on trial here today, you want to prove something against

him? Why?

MR. BRIGHAM: It's more proving something against

the corporation, because that same count includes the

corporation as a defendant.

THE COURT: What is it that you want to prove,

that the corporation actually owned this company and

performed this work that we have been hearing about?

MR. BRIGHAM: That there was a master/servant

relationship between SabreTech and the employee Mauro

Valenzuela, who was a contract employee.

THE COURT: You want to show that SabreTech had a

contract with Valenzuela. But Valenzuela is not on trial

here today, so what does that prove?

MR. BRIGHAM: It shows that Mr. Valenzuela was

acting as an agent of SabreTech.

 

UNITED STATES vs SABRETECH, ET. AL - 11-22-99

7

 

THE COURT: Why do you care since you're going to

try him whenever they catch him?

MR. BRIGHAM: Because in that same count, Your

Honor, the corporation SabreTech is charged and the

corporation acts through its agent. Mauro Valenzuela was

one of the agents of SabreTech. Although not technically

an employee of SabreTech, he was a contract employee who

would respond, who was held responsible to SabreTech.

THE COURT: Well, none of that has been raised.

I guess you are anticipating a defense. You haven't proven

anything about contracts of employment with any of the

people that are on trial here.

MR. BRIGHAM: We anticipate doing that with

Mr. Eugene Florence. However, if defense counsel is

willing to stipulate to that master/servant relationship --

THE COURT: With Mr. Eugene Florence?

MR. BRIGHAM: Yes. Mr. Florence was also a

contract employee for --

THE COURT: You are going to call Mr. Florence as

a witness, are you?

MR. BRIGHAM: No, Your Honor. We would prove

that up through the contract. It's sort of a similar

circumstance as --

THE COURT: Let me interrupt you just a moment.

Is there any doubt in anybody's mind that these people who

 

UNITED STATES vs SABRETECH, ET. AL - 11-22-99

8

 

worked at this facility were employees of SabreTech?

Let's find out if there's any issue about the fact

that these people worked at SabreTech. Ms. Raskin.

MS. RASKIN: I think that there has been

testimony, certainly, that these individuals worked at the

SabreTech facility. That's not what is at issue here.

Mr. Brigham is attempting to introduce a contract between

the corporation --

THE COURT: I know what he is trying to do.

Excuse me for interrupting you, then I'll let you all talk

about this all day long. I'm trying to get to a practical

resolution of it.

Is there a defense that Valenzuela did not work as

a contract employee at the SabreTech facility working on the

Aserca Airlines and the planes that were being brought in,

whoever they were, ValuJet, Aserca? Is there any issue over

the fact that Valenzuela and Eugene Florence worked there,

whether they were contract employees or actual employees of

SabreTech? Is there any issue about that?

MS. RASKIN: Not that they worked there, no, Your

Honor.

THE COURT: Are you going to get up and argue to

the jury that the Government has not proven its case with

respect to Mr. Florence? It's not your argument any way.

Ms. Moscowitz, is there any defense to this, that

 

UNITED STATES vs SABRETECH, ET. AL - 11-22-99

9

 

Mr. Florence didn't work -- wasn't authorized to work for

SabreTech, did sign or not sign these documents, as the case

may be?

MS. MOSCOWITZ: It's not that, Your Honor. There

is a technical issue as to the master/servant relationship.

THE COURT: Why?

MS. MOSCOWITZ: The Government put it in its

Indictment.

THE COURT: You mean the Government has suggested

that they have to prove that Valenzuela worked for

SabreTech; is that it?

MS. MOSCOWITZ: Not exactly. They have to prove,

because they have assumed the burden to prove, that there

was a master/servant relationship.

THE COURT: All of this legal jargon, just tell

me a fact. Are you suggesting that the Government has to

prove that Mr. Valenzuela was employed by SabreTech?

MS. MOSCOWITZ: No, Your Honor, but supervised by

them with a master/servant relationship. The Government

assumed that burden by --

THE COURT: Supervised by them. Let's deal with

facts, not the legal theory.

So you say that in your analysis of the

Indictment the Government must prove that Mr. Florence

worked for somebody. Do we know who?

 

UNITED STATES vs SABRETECH, ET. AL - 11-22-99

10

 

MS. MOSCOWITZ: PDS it's called, one of the

contract organizations, Your Honor.

THE COURT: PDS, that he worked for PDS, and that

SabreTech had the right, authority and so on to supervise

him?

MS. MOSCOWITZ: Yes, sir.

THE COURT: Now, then you suggest, Mr. Brigham,

that you want to prove that fact by introducing a contract

between DynAir Tech and SabreTech. Now, how does that

prove that?

MR. BRIGHAM: Because, Your Honor, it's a

contract between a predecessor company of SabreTech and the

contract company. In the case of Mr. Florence, that would

be the PDS contract company. These would be companies that

contract out mechanics to SabreTech. That contract was

with a predecessor company.

Subsequent to that contract there were --

THE COURT: Time out. You've lost me again.

You're saying DynAir Tech, the Arizona aircraft company,

had a contract with SabreTech; is that right?

MR. BRIGHAM: With the contract company PDS,

that's correct.

THE COURT: With PDS, all right. So this

contract, the principals are the Arizona aircraft company

and PDS, right?

 

UNITED STATES vs SABRETECH, ET. AL - 11-22-99

11

 

MR. BRIGHAM: Yes, sir.

THE COURT: Now, you wish to offer that contract

in evidence. Do you have a signatory to it or somebody

that can identify it?

MR. BRIGHAM: The custodian, yes.

THE COURT: No, no, no. See, anybody can go out

to the Arizona company's offices or to SabreTech's offices

and there are thousands and thousands of pieces of paper,

show me on a piece of paper. There has to be something

more trustworthy than that to get it into this case.

Do you have anybody that can identify that

contract as being the contract that was in place between

PDS and the Arizona company?

MR. BRIGHAM: Yes, Your Honor, I believe so. The

custodian, I believe, will be able to do that.

THE COURT: He or she will be able to say they

saw it signed, correct?

MR. BRIGHAM: Not that they saw it signed.

THE COURT: It wasn't even signed; is that right?

MR. BRIGHAM: The PDS contract is signed, Your

Honor.

THE COURT: You have the PDS contract?

MR. BRIGHAM: Yes.

THE COURT: You have it signed by both parties?

MR. BRIGHAM: Yes.

 

UNITED STATES vs SABRETECH, ET. AL - 11-22-99

12

 

MS. RASKIN: I don't believe that's accurate.

THE COURT: Well, let's take a look at it and

see. We'll know in about five seconds, won't we?

Marshal, would you hand it to me, please?

What number do you have on this for

identification?

MR. BRIGHAM: That would be Government Exhibit

73, Your Honor.

THE COURT: 73 for identification. This is the

one that is objected to. This document appears to be a

contract between PDS and DynAir, D-y-n-A-i-r, Tech of

Arizona, DynAir Tech of Florida, DynAir Tech of Texas,

DynAir Avionics, Inc., executed December 5, 1993.

What provision in this contract is the one that

you are relying on as being material to this particular

case?

MR. BRIGHAM: Your Honor, that's my only copy,

but there is a clause in there which does indicate a

relationship between DynAir Tech of Arizona and PDS, one in

which the employees would be working for DynAir Tech of

Arizona which is the predecessor company to SabreTech.

THE COURT: So this contract, you say,

establishes that DynAir had the right to work and use PDS

employees. Is that what it is? That's the purpose of

this. This is a copy. All the signatures are pretty

 

UNITED STATES vs SABRETECH, ET. AL - 11-22-99

13

 

illegible.

What is your objection to it aside from your

first objection on the admissibility?

MS. RASKIN: Well, Your Honor, the copy that I

have of that agreement does not reflect any signature from

PDS.

THE COURT: All right. This matter won't come up

until this afternoon, you say?

MR. BRIGHAM: That's correct, Your Honor.

THE COURT: We will give this to my courtroom

deputy and she'll make copies for everybody, then we will

all be operating on the same page.

What else? Is there anything else other than

this? This we will take up at the noon hour.

MS. RASKIN: I understand.

THE COURT: Anything else?

MS. RASKIN: No, sir.

THE COURT: Yes, Ms. Miller.

MS. MILLER: Your Honor, in anticipation, the

Government's case is more than halfway finished. We

anticipate that we will rest probably early next week. We

would like to make a request for provision of defense

Jencks material and exhibit lists.

We have received an exhibit list from

Ms. Moscowitz, but not yet from defense counsel. With

 

UNITED STATES vs SABRETECH, ET. AL - 11-22-99

14

 

regard to any defense Jencks material also, we would

appreciate of that in advance of the end of direct

examination of defense witnesses.

THE COURT: Counsel, when can you make this

available?

MR. RASKIN: Your Honor, we are still formulating

what we believe the defense will be in light of what the

Government has presented and what they have not presented.

We went through our first run-through this weekend trying

to come up with who we believed would be appropriate

defense witnesses. That process is not yet complete.

Once it is complete and once we know who we are

going to present in response to the Government's case, we

will be pleased to furnish whatever materials are

appropriate to the Government.

THE COURT: Any other comments? Mr. Dunlap,

anybody?

MR. DUNLAP: I would concur with Mr. Raskin, Your

Honor.

THE COURT: Under the rules, when are they

required to furnish this to you?

MS. MILLER: Your Honor, I believe the rules for

the defense are just the same as for the Government, which

is at the close of direct examination. But just as Courts

are always concerned that there not be a need for a

 

UNITED STATES vs SABRETECH, ET. AL - 11-22-99

15

 

continuance of a trial for counsel to be able to examine

Jencks that come in at that deadline, Courts often request

parties to provide Jencks material early, as was done with

the Government, and we make a similar request with regard

to the defense.

THE COURT: And the requirement on you was to

produce it the Friday before the Monday we started?

MS. MILLER: That is correct, Your Honor.

THE COURT: Well, then we will have the same

rule. at the conclusion of the Government's case and after

we have considered the Rule 29 motions, then we will ask

you to furnish whatever, on a similar basis that the

Government was required to furnish it to you. It will work

the same way.

If it should occur that they need a day or

something, or a half a day or something, if we finish Rule

29 motions at 10:00 in the morning and they get them and

they say they can't proceed, they have to take time to

study it and do all that, then so be it. That's what we

will have to do if that is the case.

MS. MILLER: On exhibit lists, Your Honor, the

Government did have an earlier schedule to meet.

Ms. Moscowitz has produced an exhibit list to us.

THE COURT: What was your schedule?

MS. MILLER: I believe it was ten calendar days

 

UNITED STATES vs SABRETECH, ET. AL - 11-22-99

INGRAM - Direct 16

 

before the trial. It was at least ten days. I just don't

recall if it was ten calendar days or ten business days.

THE COURT: Can you help her out with an exhibit

list, tentative exhibit list at this point in time?

MR. RASKIN: We can start to put something

together based on who we tentatively believe might be a

witness.

THE COURT: All right. Ms. Kramerman, can you

make copies of this? And that is Government Exhibit 73 for

identification.

MS. RASKIN: Your Honor, might I just suggest

that Ms. Kramerman do the same with the other contract that

is at issue so that they are all ready?

THE COURT: Fine. Marshal, bring the jury in.

[The jury returns to the courtroom].

THE COURT: Thank you. Be seated, ladies and

gentlemen. Thank you very much.

Mr. Brigham.

MR. BRIGHAM: Thank you, Your Honor. The United

States calls Mr. Robert Ingram.

ROBERT INGRAM, GOVERNMENT'S WITNESS, SWORN.

DIRECT EXAMINATION

BY MR. BRIGHAM:

Q. Good morning, Mr. Ingram.

A. Good morning.

 

UNITED STATES vs SABRETECH, ET. AL - 11-22-99

INGRAM - Direct 17

 

Q. Sir, are you testifying pursuant to an immunity letter

in this case?

A. Yes, I am.

Q. I would like to show you what's been marked as

Government Exhibit 77D, and ask if you recognize it as that

letter.

A. Yes, I do.

MR. BRIGHAM: Move to admit.

MR. RASKIN: No objection.

THE COURT: Admitted into evidence, that's

Government Exhibit --

MR. BRIGHAM: 77D.

THE COURT: 77D

[Government Exhibit 77D received in evidence].

BY MR. BRIGHAM:

Q. Mr. Ingram, did you at one time work at SabreTech,

Incorporated in Miami?

A. Yes.

Q. When was that, approximately?

A. '94 to '96.

Q. Were you working there after the crash?

A. Yes, I was.

Q. For approximately how long after the crash?

A. A month and a half.

Q. What position did you hold at SabreTech, Incorporated?

 

UNITED STATES vs SABRETECH, ET. AL - 11-22-99

INGRAM - Direct 18

 

A. I was a lead clerk in the shipping and receiving

department.

Q. What is the shipping and receiving department?

A. That's where materials are received and shipped.

Q. What kind of materials?

A. Aircraft material.

Q. These would include aircraft components and parts?

A. Yes.

Q. Who was your immediate supervisor?

A. Bill Gerald.

Q. Who did you work with in shipping and receiving?

A. Bill Ligmann, Mitch Perez, Andy Salis, Carlos Diaz.

Q. Who was Mr. Ligmann?

A. Mr. Ligmann was a receiving clerk.

Q. Mr. Perez?

A. He was our driver.

Q. Who was Mr. Diaz?

A. Mr. Diaz assisted with the shipping.

Q. Who was Mr. Salis?

A. The shipping clerk.

Q. These individuals, who did they work for?

A. Bill Gerald.

Q. And what corporation did they work for?

A. SabreTech.

Q. What was your primary responsibility working in the

 

UNITED STATES vs SABRETECH, ET. AL - 11-22-99

INGRAM - Direct 19

 

shipping and receiving department of SabreTech?

A. To receive and process aircraft material.

Q. I would like to show you, with the Court's permission,

Government Exhibit 21. Do you recognize this?

A. It appears to be a way out of the facility, yes.

Q. With the Court's permission, I would like to ask you to

step down.

MR. BRIGHAM: I believe this has been admitted

into evidence, Your Honor.

BY MR. BRIGHAM:

Q. If you could come over to this chart please,

Mr. Ingram, and show the members of the jury on this diagram

where the shipping and receiving department was?

A. That would be this area right here.

Q. Which side was the shipping side?

A. The shipping was, well, basically in the same general

area.

Q. And the receiving?

A. The receiving would be more to this side of this area.

Q. What is the hold area?

A. That would be where the material would be hold, away

from -- in this position.

Q. Thank you, sir. I would like to show you three

other -- you may take your seat.

I would like to show you what has been marked as

 

UNITED STATES vs SABRETECH, ET. AL - 11-22-99

INGRAM - Direct 20

 

Government 62, chart. Do you recognize that?

A. Yes, I do.

Q. Does it fairly and accurately depict what you

recognize?

A. Yes, it is.

MR. BRIGHAM: I would move to admit, Your Honor.

THE COURT: Number?

MR. BRIGHAM: Government Exhibit 62, chart.

MS. RASKIN: No objection.

THE COURT: The chart is admitted into evidence,

Government Exhibit 62.

[Government Exhibit 62 received in evidence].

BY MR. BRIGHAM:

Q. Sir, what is this a photograph of?

A. That would be the shipping and receiving area.

Q. Can you explain to us which side is the receiving area

of the shipping and receiving department?

A. The receiving would be more toward this side.

Q. Where is the shipping?

A. It would be off to the side here.

Q. I would like to show you what's been marked as

Government Exhibit 63, chart. Do you recognize that?

A. It appears to be a customer hold area.

Q. Does this fairly and accurately depict that area?

A. Yes, it does.

 

UNITED STATES vs SABRETECH, ET. AL - 11-22-99

INGRAM - Direct 21

 

MR. BRIGHAM: Move to admit, Your Honor.

THE COURT: Number?

MR. BRIGHAM: 63.

THE COURT: Any objection?

MR. RASKIN: No, Your Honor.

THE COURT: Government Exhibit 63 is admitted

into evidence.

[Government Exhibit 63 received in evidence].

BY MR. BRIGHAM:

Q. Referring to Government Exhibit 63, explain to us what

this photograph depicts.

A. It appears to be the material that was removed off the

aircrafts.

Q. Do you recognize this as a specific area that you just

testified about?

A. Yes, it's identified as ValuJet.

Q. Would this be the hold area?

A. Yes, it would be.

Q. Finally, I would like to show you what has been marked

as Government Exhibit 61, chart. Do you recognize that?

A. Yes, I do.

Q. Does this fairly and accurately depict what you

recognize in this photograph?

A. Yes.

MR. BRIGHAM: I would move to admit, Your Honor.

 

UNITED STATES vs SABRETECH, ET. AL - 11-22-99

INGRAM - Direct 22

 

MR. RASKIN: May I see it a moment?

No objection.

THE COURT: Government Exhibit 61 is admitted

into evidence.

[Government Exhibit 61 received in evidence].

BY MR. BRIGHAM:

Q. Sir, could you please explain to the members of the

jury what that is?

A. It appears to be an area where we kept our office

supplies, and then, that is a roll of bubble wrap.

Q. Where is this roll of bubble wrap located?

A. It appears to be to the rear of the shipping and

receiving department.

Q. While working in the shipping and receiving department,

how often did you have bubble wrap available?

A. We tried to keep it stocked at all times.

Q. For what purpose do you use the bubble wrap?

A. It's used for shipping out materials in order to

protect the shipment.

Q. While working at SabreTech, did there come a time when

you received any boxes of oxygen generators?

A. Yes.

Q. When was that, approximately, in relationship to the

crash?

A. Approximately a month and a half prior, the best that I

 

UNITED STATES vs SABRETECH, ET. AL - 11-22-99

INGRAM - Direct 23

 

can recall.

Q. Describe what you saw on the boxes.

Let me ask, these oxygen generators were in boxes?

A. Yes.

Q. What did the boxes look like?

A. Well, they were brown and they had the yellow stickers

on them.

Q. Describe the yellow stickers, please.

A. It was either a square or a triangle.

Q. What was on the yellow stickers?

A. I believe it was an oxidizer.

Q. What obstruction, if any, was there on this yellow

sticker?

MR. RASKIN: Objection, leading.

THE COURT: All right. Ask him if there was any

obstruction.

BY MR. BRIGHAM:

Q. Was there any obstruction on the yellow sticker?

A. I don't believe so, no.

Q. How did these oxygen generators come into the shipping

and receiving area?

A. If I recall, it was via Federal Express.

Q. I would like to show you what's been marked as

Government Exhibit 30E. Do you recognize that?

A. Yes, I do.

 

UNITED STATES vs SABRETECH, ET. AL - 11-22-99

INGRAM - Direct 24

 

Q. What is that?

A. It's a hazardous material label.

Q. With respect to the labels you saw on the oxygen

generator boxes, how did that correspond?

A. I don't quite understand your question there.

Q. Was it like this or different from Government Exhibit

30E?

A. It appears to be the same.

Q. I would like to show you what has been marked as

Government Exhibits 49A and B. Would you please look at

those two documents. Do you recognize that type of

document?

A. Yes, I do.

Q. Where have you seen that type of document?

A. Just at various times working in the aviation industry.

Q. What kind of document is it?

A. It's a shipper's declaration.

Q. When, if ever, have you seen that document in

relationship to oxygen generators?

A. I don't recall seeing one of these in relation to the

oxygen generators.

Q. Have you seen documents -- when, if ever, have you seen

documents like this at SabreTech?

A. On occasions, not very often.

Q. Where have you seen those documents?

 

UNITED STATES vs SABRETECH, ET. AL - 11-22-99

INGRAM - Direct 25

A. Normally they accompany a shipment that is coming into

a facility if it is a hazardous item.

Q. With respect to the oxygen generators that you

testified about that were being shipped by Federal Express,

how were the individual generators packaged?

A. They were on like a flat piece of cardboard that

folded. They were basically held on to that by a piece of

stretch wrap.

Q. How were they grouped in the packaging?

A. I'm going to say maybe there was, I don't know, maybe

eight to ten in a carton.

Q. How were they separated, if at all?

A. They were only separated by the individual cardboard,

piece of cardboard.

Q. Would you elaborate? Please explain what you mean.

A. They basically were individually contained in this

cardboard-like folder, you might say.

Q. I would like to show you what has been marked as

Government Exhibit 48A and 48B. Do you recognize what is

depicted in these photographs?

A. Yes, I do.

Q. Do these fairly and accurately depict what is

represented in these photographs?

A. Yes.

MR. BRIGHAM: I'll move to admit, Your Honor.

 

UNITED STATES vs SABRETECH, ET. AL - 11-22-99

INGRAM - Direct 26

 

MR. RASKIN: No objection.

THE COURT: 48A and 48B are admitted into

evidence.

[Government Exhibits 48A and 48B received in evidence].

BY MR. BRIGHAM:

Q. With respect to 48A, explain to us what that is,

please.

A. It appears to be a cardboard box, or four of them.

Q. How did the cardboard boxes that the new generators

came in correspond to these boxes?

MS. MOSCOWITZ: Objection, leading.

MR. BRIGHAM: How did they correspond, Your

Honor.

THE COURT: You are asking him to describe what

he sees in the picture; is that it?

MR. BRIGHAM: Yes, Your Honor.

BY THE COURT:

Q. What do you see in the picture?

A. I see four cardboard boxes.

BY MR. BRIGHAM:

Q. Compare these boxes to the boxes that you saw with

respect to the oxygen generators.

A. I honestly cannot say if they were the same.

Q. How do they compare in size?

A. Maybe, I don't know, a little bigger or a little

 

UNITED STATES vs SABRETECH, ET. AL - 11-22-99

INGRAM - Direct 27

 

smaller.

Q. How do they compare with respect to the yellow label

that you testified about?

A. It appears to be the same label.

Q. With respect to the tape, how do these photographs

compare with respect to the presence of the tape?

A. Well, it appears that the box has been opened and

resealed.

Q. Was the tape present when the other boxes came in, the

new generators came in?

A. Yes, it would have had to have been.

Q. Did you see the tape on the new boxes when they came

in?

A. All I can tell you is the boxes were sealed.

Q. So you cannot tell us one way or the other whether you

saw the tape?

A. No, the boxes were sealed.

Q. I would like to show you Government Exhibit 48B, and

does that fairly and accurately depict what you saw in that

picture?

A. The previous picture? Yes.

Q. What does this depict?

MR. BRIGHAM: I'll move to admit if I haven't

already, Your Honor. I believe I have.

THE COURT: They have both been admitted.

 

UNITED STATES vs SABRETECH, ET. AL - 11-22-99

INGRAM - Direct 28

 

BY MR. BRIGHAM:

Q. What does this depict?

THE COURT: Well, he just told us, boxes.

BY MR. BRIGHAM:

Q. Compare the packaging on these boxes with the packaging

you saw with respect to the new generators.

A. It looks fairly similar.

Q. After you received the boxes of new generators, what

did you see done with them?

A. I don't recall what was done with them as soon as they

were received. But they would have been staged and prepared

for the inspectors to look at them.

Q. Explain that process, please.

A. Well, any material that comes into the facility has to

go through a quality process to make sure all the paperwork

is there.

Q. What is that quality process?

A. That is just to ensure that the material is shipped

with the proper documentation.

Q. I would like to show you what has been marked as

Government Exhibit 25. Strike that.

I would like to show you what has been marked as

Government Exhibit 26, and direct your attention to blue

tags that are attached to that exhibit.

What are those blue tags?

 

UNITED STATES vs SABRETECH, ET. AL - 11-22-99

INGRAM - Direct 29

 

A. Those blue tags indicate that the material that came

into the facility has been inspected and it is ready to be

processed.

Q. Who fills out those tags?

A. The inspector.

Q. Who does the inspector work for?

A. Quality control.

Q. For what corporation?

A. SabreTech.

Q. Did there come a time that old generators were received

at shipping and receiving?

A. There was a time.

Q. When was that in relationship to the crash?

A. I can't be for sure. Two to three weeks.

Q. How were those old generators packaged?

A. If I remember correctly, they were just laid in boxes.

Q. Where did you see them?

A. In the ValuJet hold area.

Q. Were the boxes open or closed?

A. I believe they were open.

Q. What, if any, bubble wrap did you see in the area?

A. I recall seeing maybe a little bit of bubble wrap in

the area.

Q. How did that bubble wrap correspond to the bubble wrap

that you identified in Government Exhibit 61, the photograph

 

UNITED STATES vs SABRETECH, ET. AL - 11-22-99

INGRAM - Direct 30

 

I just showed you?

A. It appeared to be the same.

Q. I would like to show you Government Exhibit 18F1. Do

you recognize that?

A. Yes, I do.

Q. What is that?

A. It is a shipping ticket.

Q. Who issues that shipping ticket?

A. Normally the shipping clerk.

Q. At SabreTech?

A. Yes.

Q. How many -- that shipping ticket consists of how many

different forms?

A. There are three copies to this form.

Q. Explain to us what those three copies are.

A. The white copy would go to accounting, the yellow would

be the store's copy, and the pink would go to the customer.

Q. Sir, I would like to direct your attention to the

bottom of Government Exhibit 18F1, to a signature line which

is marked "shipped by" in the bottom right-hand corner of

that ticket.

Do you recognize that signature?

A. Yes, I do.

Q. Whose signature is it?

A. Andy Salis.

 

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INGRAM - Direct 31

 

Q. How many times have you seen him sign his name?

A. Quite a few.

MR. BRIGHAM: I move to admit Government Exhibit

18F1.

MR. RASKIN: One moment, Your Honor, please.

No objection.

THE COURT: Government Exhibit 18F1 for

identification is admitted into evidence as 18F1.

[Government Exhibit 18F1 received in evidence].

BY MR. BRIGHAM:

Q. Now, sir, in addition to the oxygen generators that you

received, when, if ever, did you receive other boxes with

similar yellow labels?

A. Not very often.

Q. Had you received similar boxes before?

A. I'm sure somewhere along the line, yes.

Q. What kind of components were those?

MR. RASKIN: Objection, Your Honor. It's

irrelevant.

THE COURT: Well, time, place, relevance.

BY MR. BRIGHAM:

Q. When did you receive those?

A. I can't recall the last time.

Q. How often would you receive them?

MR. RASKIN: Your Honor, it was asked and

 

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INGRAM - Direct 32

 

answered. He said infrequently.

MR. BRIGHAM: I don't believe we have asked how

often, Your Honor.

THE COURT: You may answer the question.

THE WITNESS: A couple of times every three

months maybe.

BY MR. BRIGHAM:

Q. What were you receiving a couple of times every three

months?

A. I couldn't tell you that.

Q. Did you ever receive evacuation slides?

A. Yes.

Q. How were those slides marked?

MR. RASKIN: Object to relevance, Your Honor.

THE COURT: Sustained. Next question.

He received all the yellow labels a couple of

times every three months. What else?

BY MR. BRIGHAM:

Q. Who handles those boxes when they came in?

A. That would be the receiving clerk.

Q. Now, sir, during your time at SabreTech, when, if ever,

did you receive hazardous material training?

A. The hazardous material training was received after the

crash.

Q. Restricting the time period to before the crash, when,

 

UNITED STATES vs SABRETECH, ET. AL - 11-22-99

INGRAM - Cross 33

 

if ever, have you received hazardous material training?

A. I had not.

Q. When, if ever, did you receive training with respect to

the handling of oxygen generators?

A. I had not.

MR. BRIGHAM: May I have a moment, Your Honor?

THE COURT: Yes.

MR. BRIGHAM: No further questions.

THE COURT: Mr. Raskin?

CROSS EXAMINATION

BY MS. RASKIN:

Q. Good morning. I'm Marty Raskin and I represent

SabreTech.

How many people work in the shipping and receiving

department?

A. Approximately seven.

Q. That was over three shifts, correct?

A. Yes.

Q. And shipping and receiving worked 24 hours a day?

A. Yes.

Q. Of those seven people who worked in shipping and

receiving, isn't it true that only one of those people spent

any significant time doing shipping?

A. That's correct.

Q. And that was Andy Salis?

 

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INGRAM - Cross 34

 

A. Yes.

Q. Isn't it also correct that Mr. Salis spent very little

time doing receiving?

A. Yes.

Q. The rest of you spent most of your time doing

receiving; is that correct?

A. That is correct.

Q. And that's because SabreTech was constantly receiving

new parts and components for installation on the planes that

it was repairing; isn't that true?

A. Yes.

Q. And that receiving was done 24 hours a day, seven days

a week; is that correct?

A. That's correct.

Q. Parts would come in in the middle of the night,

wouldn't they?

A. Yes.

Q. When those parts came in, you testified that you had

them inspected -- or you prepared them for inspection, the

receiving clerks; is that correct?

A. That's correct.

Q. You then had people from the quality control department

come in and inspect them and prepare them?

A. Yes.

Q. Now, you told Mr. Brigham that the people from quality

 

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INGRAM - Cross 35

 

control were also SabreTech employees. That's correct,

isn't it?

A. That's correct.

Q. They don't work for shipping and receiving, do they?

A. No, sir.

Q. That's a totally department with a different function;

is that correct?

A. Yes.

Q. And isn't it true that the quality control people

report to an entirely different chain of command than your

chain of command?

A. Yes.

Q. Now, Mr. Brigham showed you the chart which has been

marked Government Exhibit 71. Do you recall that, sir?

A. Yes, sir, I do.

MR. RASKIN: Your Honor, may I approach?

THE COURT: Yes.

BY MR. RASKIN:

Q. You identified the shipping and receiving area and

that's the area to the top of the chart; is that correct?

A. Yes.

Q. It looks pretty small on this chart. Why don't you

tell the jury how big an area this really was.

A. Actually, it was about 35 by about 80 feet.

Q. So it's a fairly large area?

 

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INGRAM - Cross 36

 

A. Yes, much larger than indicated on the chart.

Q. Once the parts were inspected -- let's talk about the

ValuJet parts in particular. Once ValuJet parts were

inspected by the quality control people what would happen to

them?

A. They would be received and then routed to the customer

hold area.

Q. Is that customer hold area different than the ValuJet

customer hold area for shipping and receiving?

A. Yes, it is.

Q. Where was that second ValuJet customer hold area?

A. That was located on the second floor, above the main

storage area.

Q. And parts would remain there until mechanics needed

them for installation on the plane; is that correct?

A. Yes, that's correct.

Q. Now, while you were employed at SabreTech, did anyone

ever ask you to falsify any paperwork?

A. No.

Q. Did you ever falsify any paperwork?

A. No.

Q. While you worked at SabreTech, did you ever see anyone

else falsify any paperwork?

A. No, I did not.

MR. RASKIN: I have nothing further.

 

UNITED STATES vs SABRETECH, ET. AL - 11-22-99

Ingram - Redirect 37

 

THE COURT: Mr. Dunlap?

MR. DUNLAP: No questions, Your Honor.

THE COURT: Ms. Moscowitz?

MS. MOSCOWITZ: No, sir. Thank you.

THE COURT: Redirect.

REDIRECT EXAMINATION

BY MR. BRIGHAM:

Q. With respect to Government Exhibit 62, there is a

person on the right-hand side in front of a computer. Who

is that?

A. That is Mr. Bill Ligmann.

Q. What part of the shipping and receiving department is

he in charge of?

MR. RASKIN: Objection, Your Honor, beyond the

scope.

THE COURT: Sustained. You can redirect on

whatever was brought out on cross-examination.

BY MR. BRIGHAM:

Q. What section of the shipping and receiving department

is the right-hand of this photograph?

MR. RASKIN: Beyond the scope.

THE COURT: Well, if he's getting into the size,

he can inquire. Is that what you are getting at?

MR. BRIGHAM: Yes, Your Honor.

THE COURT: Well, ask him questions about the

 

UNITED STATES vs SABRETECH, ET. AL - 11-22-99

Ingram - Redirect 38

 

size, whatever you wish to ask about size.

MR. BRIGHAM: May I preface it by, what section

is this?

THE COURT: I think, actually, if you just ask

him from his memory, instead of showing him things -- the

jury can look at the picture.

You've said the size was about 35 by 80. Could

you approximate to this courtroom, was the shipping and

receiving area -- you said the shipping and receiving area

was 35 by 80?

THE WITNESS: Yes, Your Honor.

BY THE COURT:

Q. Tell us, in reference to this courtroom, just your

estimate of what the size of the shipping area was, if you

can.

A. Well, the receiving and the shipping area were in the

same general area.

Q. Okay. Just for the jury, just look around and pick out

something and show us in the courtroom how big it was.

A. Approximately the length of the back wall.

Q. Up to where?

A. Up to maybe the end of the building.

Q. So it would be about the size of this courtroom?

A. Excluding that portion from the door back.

Q. So, if you took from the front of the jury box over to

 

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DIAZ - Direct 39

 

this wall and from the south wall to the north wall, that

would be about the size, as you recollect?

A. Yes, Your Honor.

THE COURT: Very good.

BY MR. BRIGHAM:

Q. What wall, if any, was separating the shipping and

receiving?

A. There was no wall that separated shipping and

receiving.

MR. BRIGHAM: No further questions.

THE COURT: You may step down, thank you.

MR. BRIGHAM: Your Honor, at this time the United

States calls Mr. Carlos Diaz. Mr. Diaz will need an

interpreter, Your Honor.

CARLOS ALBERTO DIAZ, GOVERNMENT'S WITNESS, SWORN.

DIRECT EXAMINATION

THE COURT: State your full name and spell your

last name for the court reporter, please.

THE WITNESS: Carlos Alberto Diaz, my last name

is D-i-a-z.

THE COURT: Mr. Brigham.

BY MR. BRIGHAM:

Q. Mr. Diaz, you are testifying pursuant to an immunity

agreement; is that correct?

A. Correct.

 

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DIAZ - Direct 40

 

Q. I would like to show you Government Exhibit 77A. Do

you recognize that?

A. Yes, sir.

Q. Is that the immunity agreement?

A. Yes, sir.

MR. BRIGHAM: Move to admit.

MR. RASKIN: No objection.

THE COURT: 77A is admitted into evidence.

[Government Exhibit 77A received in evidence].

BY MR. BRIGHAM:

Q. Sir, was there a time that you worked at SabreTech,

Incorporated in Miami, Florida?

A. Yes, sir.

Q. This was at Miami International Airport?

A. Yes, sir.

Q. When did you begin working there?

A. Approximately in January, February -- about March,

April, something like that.

Q. Of what year?

A. Of the same year when the crash occurred.

Q. What were your responsibilities at SabreTech?

A. At the beginning, it was for receiving parts, and I

also did pickup of parts as a driver.

Q. What part of SabreTech, Incorporated did you work in?

A. In receiving.

 

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DIAZ - Direct 41

 

Q. Who was your supervisor?

A. His name was Oscar Woodberry.

Q. And who did he work for?

A. For SabreTech.

Q. Did you work in the shipping and receiving area?

A. Yes, sir.

Q. Do you know a person named Andrew Salis?

A. Yes, sir.

Q. Who is he?

A. He was someone else who received parts and also shipped

them.

Q. How often did you work with him?

A. With him not very much because he would work in the

morning and later I was changed to the afternoon shift.

Q. Are you familiar with his responsibilities?

A. Well, not familiarized, but I did know what he did.

Q. What did he do?

A. Part of the time he would do the paperwork to ship the

parts.

Q. What kind of paperwork?

A. Like the shipping tickets.

Q. How often did you see him preparing shipping tickets?

A. Well, he always had some ready. When I arrived he

would always have some ready.

Q. How often did you see him preparing shipping tickets?

 

UNITED STATES vs SABRETECH, ET. AL - 11-22-99

DIAZ - Direct 42

 

A. Within the day, I would see him at least two or three

times.

Q. For what kind of items did he prepare shipping tickets?

A. Well, names I don't remember, but for many things.

Q. What was his routine practice in preparing shipping

tickets?

MR. RASKIN: Object to routine practice.

THE COURT: Sustained, sustained. You're asking

about somebody else's work and what his routine practice

was. Let's see what he knows about his work was, what he

saw and what he did. He saw Salis preparing shipping

tickets occasionally.

MR. BRIGHAM: With the Court's permission, I'll

return to that area later.

THE COURT: All right.

BY MR. BRIGHAM:

Q. Sir, did you ever see oxygen generators delivered to

the shipping and receiving area?

A. Yes, some new ones did arrive. But as far as I can

remember, it was not I who received them.

Q. You saw them, though; is that correct?

A. After the morning shift had uncovered them, yes.

Q. How were they packaged?

A. It was a cardboard box and they came in sections, if I

am not mistaken, of four rows and they were wrapped in

 

UNITED STATES vs SABRETECH, ET. AL - 11-22-99

DIAZ - Direct 43

 

plastic, each one separated by some little cardboard sheets.

Q. I would like to show you what has been admitted as

Government Exhibits 48A and B. The boxes that you saw, how

did they correspond -- how did they compare to these boxes?

A. They were -- I think those were the very boxes.

Q. What tape, if any, did you see on the boxes that you

saw?

A. In the new ones I cannot recall, but that tan colored

tape was not on them.

Q. What labels, if any, did you see on the boxes that you

saw?

A. Labels I do not recall.

Q. What stickers -- let me ask you this. What stickers,

if any --

THE COURT: Don't show him the picture. Ask him

what he remembers. You're just showing him a picture and

asking him to tell the jury if he sees it. Ask him if he

remembers the labels; and if so, what they looked like. If

he needs to be refreshed, his recollection, then he will

tell you so.

BY THE COURT:

Q. Do you remember seeing any labels, any yellow labels or

stickers on the boxes when they came in?

A. The only thing that I remember was that there was the

packing list with everything that was coming inside the

 

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DIAZ - Direct 44

 

boxes.

BY MR. BRIGHAM:

Q. Now, with respect to Government Exhibit 48B, how did

the packaging of the boxes you saw compare to the packaging

in this photograph?

MR. RASKIN: Asked and answered, Your Honor.

THE COURT: Sustained.

Why don't you put the documents down and just ask

him to tell us about the boxes. He can do that. If he

needs to read from something, then you can give it to him.

But in the meantime, let's find out what he knows.

BY THE COURT:

Q. These boxes with the generators, they came in; is that

correct? Did you see them come in?

A. I did not see them come in. Like I said, the people

from the morning shift had already received the boxes.

Q. What did you see, if anything? You personally, what

did you see?

A. The little package, the little package with the packing

list is what I saw.

Q. Did you ever see the big boxes yourself?

A. Yes.

Q. And when you saw the big boxes, what did you see?

A. The generators inside.

Q. How many?

 

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DIAZ - Direct 45

A. Like I said, four, like a row of four with four in them

as well.

Q. Describe the packaging.

A. Four wrapped in plastic with a cardboard sheet

separating each one.

Q. All right. How many times did you see boxes like that

come in?

A. About two times.

Q. Did they have any labels on them, any yellow stickers

on them?

A. Not that I remember. The only thing that I saw was the

package with the packing list.

THE COURT: All right. Next question.

BY MR. BRIGHAM:

Q. What caps, if any, did you see on the generators?

A. On the new ones I saw some small, little yellow caps.

Q. Now, sir, did you become aware at any time about an

upcoming inspection or audit?

MS. MOSCOWITZ: Objection, foundation.

THE COURT: Yes. You will have to ask him if he

had a conversation with someone and who and when and where

and then we will get into what the conversation is about.

BY MR. BRIGHAM:

Q. Sir, did you ever have a conversation with any

SabreTech employee concerning an upcoming audit?

 

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DIAZ - Direct 46

 

MS. MOSCOWITZ: Objection, calls for hearsay.

THE COURT: Well, we don't know who it was. He

may answer that question. Overruled.

THE WITNESS: Well, everybody was prepared

because of what the bosses say.

BY MR. BRIGHAM:

Q. What bosses?

A. Bill Gerald.

Q. Who is Mr. Gerald?

A. Well, he was our boss. He was our boss, yes.

Q. What did he tell you?

A. He told not just me, he told various people that there

was an inspection coming from Continental, I believe, and

that everything had to be organized.

Q. When did he tell you that?

A. The date I don't remember, but he did tell me.

Q. In relationship to the crash, when did he tell you?

A. I calculate two weeks to one -- two weeks I would say.

Q. Did you ever hear a conversation between a Mr. Bill

Simons and a Mr. Gerald?

A. Yes, sir.

Q. When was that?

A. The date I don't remember, but I did hear them when

they were speaking, the two of them.

Q. In relationship to the crash, when did this

 

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DIAZ - Direct 47

 

conversation take place?

A. When? I don't know. I don't remember.

Q. Was it more or less than two days before the crash?

A. It was before.

Q. How much before?

A. Two or three days.

Q. You indicated that, to clarify, that approximately one

to two weeks Mr. Gerald had told you about the audit. Was

that one or two weeks before the crash or after the crash?

A. Can you repeat, please.

Q. When you have given us times in relationship to the

crash, was it before the crash or after the crash?

A. Before the crash.

Q. Now, in relationship -- with respect to the

conversation you had with Mr. Simons and Mr. Gerald before

the crash, what was said?

A. They two were talking more or less in the middle of the

receiving, almost at the entrance. Bill Simons was telling

Bill Gerald as to when the things, the parts for ValuJet

were going to be shipped, and Bill Gerald told him, we are

going to start with that.

Q. Did you subsequently hear a conversation with

Mr. Gerald and Mr. Salis?

A. Yes, sir.

Q. When did this conversation take place in relationship

 

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DIAZ - Direct 48

 

to the crash?

A. Almost in the same position where Bill Simons and Bill

Gerald were talking.

Q. When did this conversation take place?

A. On the same day, after Bill Simons went out to the

parking area to finish smoking his cigarette.

Q. What did Mr. Gerald say to Mr. Salis?

A. He told him a phrase in Spanish, which is de lagiso,

which will be translated as "get on with it."

Q. What was Mr. Gerald referring to?

A. To the parts of Valujet's that were ready.

Q. Mr. Diaz, I would like to show you what has been

admitted as Government Exhibit 62.

A. All right.

Q. Do you recognize this exhibit?

A. Yes.

Q. What is this?

A. It's a part of receiving, the area of receiving.

Q. What part is the receiving part in this photograph?

A. It doesn't show very well, but if you look at the big

door, there are two big tables, one to the left and one to

the right.

Q. Is that receiving?

A. Yes, sir.

Q. Where is shipping on this?

 

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DIAZ - Direct 49

 

A. If you look where the tubes are, there is another table

behind that that's bigger.

Q. And that is shipping?

A. Yes, sir.

Q. I would like to direct your attention to the day before

the crash, May 10, 1996.

A. Yes, sir.

Q. Were you working on that day at SabreTech?

A. Yes, sir.

Q. Was Mr. Salis also working that same shift?

A. Yes, sir.

Q. Did there come a time that Mr. Salis asked you to

perform a certain task for him?

A. Yes, he asked me for help.

Q. Specifically, what kind of help did he ask for?

A. When I arrived, I arrived early and then I saw him

doing some paperwork. I asked, Andy, what are you doing?

And he said, I have a lot of work. Would you like to help

me? I said, of course, and he told me what it was that I

had to do.

Q. What was that?

A. We went to about the middle of receiving and he tore

out a little piece of paper, and he wrote "oxy canisters

empty."

Q. What kind of sheet of paper did he write that on?

 

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DIAZ - Direct 50

 

A. Brown bags, like from the supermarket.

Q. And after writing that down on that piece of paper,

what else did he do?

A. I don't know whether he went or I went to the desk

where I worked and we took out a shipping ticket, then I

copied what he had written down on a little piece of paper.

Then we went back to around the middle of the receiving area

again. Then we took out another shipping ticket with the

address of Atlanta, Georgia. He said to me, copy it exactly

the way it is there.

Q. I would like to show you what has been marked as

Government Exhibit and admitted as Government Exhibit 18F1.

A. Yes, sir.

Q. Do you recognize that?

A. Correct.

Q. You do recognize it?

A. Correct.

Q. What is it?

A. That was the shipping ticket that Andy gave me, the

little piece of paper so that I would copy the things.

Q. And who filled out that shipping ticket?

A. Part was me, part was Andy, and the signature, I don't

know whose that is.

MR. BRIGHAM: Your Honor, with the Court's

permission, we have an enlargement of that shipping ticket.

 

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DIAZ - Direct 51

 

THE COURT: Is it in evidence?

MR. BRIGHAM: Yes, sir.

THE COURT: Show it to the jury.

MR. BRIGHAM: What I would like to do, if

possible, Your Honor, is have the witness explain which

part he filled out, which part Mr. Salis filled out.

THE COURT: Show it to the jury and have him do

it.

MR. BRIGHAM: Thank you. May I do that with the

enlargement?

THE COURT: Any way you want to.

BY MR. BRIGHAM:

Q. Mr. Diaz, I would like to ask you to step down. And if

I could ask the interpreter to let me grab these.

I would like to show you an enlargement of the

Exhibit 18F1 that has been admitted into evidence. If I

could ask you to step to the side of this exhibit, please,

and take this pointer and explain to us what parts of the

shipping ticket you filled out.

A. All right. Everything that is here is mine. From 1 to

4, all of that is mine. The date is mine. This is Andy's

handwriting. From this line on, everything is Andy's.

Where it says, tire, wheel, and the slash, that is Andy's.

This part here is Andy's. The date is Andy's. The

signature is Andy's. And that's all.

 

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DIAZ - Direct 52

 

Q. Mr. Diaz, if I could ask you to step to the side so all

the members of the jury can see.

At whose direction did you fill out the

information on this shipping ticket?

A. Andy Salis'.

Q. Based on what information did you fill out this

"shipped to" portion of the shipping ticket in the upper

left-hand corner?

A. As I have told you, we went to another drawer and we

took out another shipping ticket and he told me to copy the

same address that appeared on that one on to the one that we

were working on.

Q. Who told you to copy that address?

A. Andy Salis.

Q. Thank you, Mr. Diaz. If I could ask you to retake your

seat. Thank you.

After you filled out part of that shipping ticket,

what else did you do?

A. He told me to make eight copies on a blank piece of

paper of the address of Atlanta, Georgia.

Q. Now, who told you that?

A. Andy Salis.

Q. What were you putting on the blank sheets of paper?

A. The address.

Q. Was that the same address that appeared on the shipping

 

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DIAZ - Direct 53

 

ticket?

A. Correct.

Q. What did you then do with those eight pieces of paper

with the shipping address?

A. I cut them and I affixed them to the boxes and to the

tires with transparent tape.

Q. What boxes are you talking about?

A. To some boxes that were ready to go, which is what we

filled out the shipping ticket for.

Q. Where were those boxes located?

A. In the receiving area, around the middle of the

receiving area, on the floor.

Q. You mentioned tires. What kind of tires?

A. Airplane tires, there were two of them outside.

Q. The five boxes you referred to, were they open or were

they closed?

A. One of them was a little bit open, about half an inch

to an inch open.

Q. What, if anything, were you able to see in that one box

that was open?

A. Just the plastic for those little pumps, just the

plastic could be seen, bubble wrap.

Q. I would like to show you what has been admitted as

Government Exhibit 61. How did the bubble wrap that you saw

compare to the bubble wrap in this photograph?

 

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DIAZ - Direct 54

 

A. It's identical.

MR. BRIGHAM: May I have a moment, Your Honor?

THE COURT: Yes.

BY MR. BRIGHAM:

Q. Sir, during your time at SabreTech, when, if ever, did

you receive training in the area of hazardous materials?

A. I never received any training. After the accident

occurred there was training.

Q. I am limiting my question to before the crash.

A. Never.

Q. When, if ever, did you receive training with respect to

the handling of dangerous materials before the crash?

A. I never received training in that company.

Q. Sir, finally, with respect to the shipping ticket,

there are quotation marks around the words "five boxes" and

"empty."

A. Correct.

Q. Who wrote those?

A. I did.

Q. Why did you put quotation marks around those words?

A. No reason.

Q. What training, if any, have you received with respect

to the handling of oxygen generators during your time at

SabreTech before the crash?

A. No, never.

 

UNITED STATES vs SABRETECH, ET. AL - 11-22-99

DIAZ - Cross 55

 

MR. BRIGHAM: No further questions.

THE COURT: Mr. Raskin.

MR. RASKIN: Thank you, Your Honor.

CROSS EXAMINATION

BY MR. RASKIN:

Q. Good morning, Mr. Diaz. I'm Marty Raskin. I represent

SabreTech.

A. Good morning.

Q. Mr. Diaz, I understand that you do speak, read and

write the English language; is that correct?

A. Correct.

Q. And you are testifying with an interpreter because this

is an important proceeding and you are more comfortable that

way, right?

A. Correct.

Q. Let's talk about the conversation that you described

two or three days before the crash between Bill Simons and

Bill Gerald. Do you remember that conversation?

A. Yes, sir.

Q. Now, Bill Simons was the technical representative from

ValuJet, wasn't he?

A. Yes, sir.

Q. Bill Simons was in the shipping and receiving area of

SabreTech on a regular basis, wasn't he?

A. Yes, sir.

 

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DIAZ - Cross 56

 

Q. He was actually there almost on a daily basis; is that

correct?

A. Yes, sir.

Q. Did Mr. Simons inspect ValuJet's parts in the ValuJet

hold area when he was present in the shipping and receiving

department?

A. During the time that I was there I never observed him

to inspect anything. He simply waited for the new ones to

come in.

Q. Are we talking about oxygen generators now?

A. No, we are talking about the parts that would arrive.

Q. You are saying that he mainly waited for new parts

which were to arrive at the SabreTech facility?

A. That's correct.

Q. And he would have fairly frequent conversations with

Mr. Gerald, who was the head of the shipping and receiving

department; is that correct?

A. Correct.

Q. Going to that specific conversation that you described,

which I believe you said took place two or three days prior

to the crash, do you have that in mind, sir?

A. About the conversation, yes.

Q. Now, during the course of that conversation Mr. Simons

asked Mr. Gerald when Valujet's parts were going to be sent

back; is that correct?

 

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DIAZ - Cross 57

 

A. Correct.

Q. Mr. Gerald responded with words to the effect "we are

going to start on that right away"; is that correct?

A. Yes.

Q. Isn't it also true, Mr. Diaz, that Andy Salis was

present when that conversation took place?

A. He wasn't present, but he was three or four feet behind

him.

Q. So he was only three or four feet from them during this

conversation?

A. Correct.

Q. You then testified that Mr. Simons left, I think you

said to go out and smoke a cigarette; is that correct?

A. Correct.

Q. And almost immediately thereafter Mr. Gerald told

Mr. Salis to start preparing Valujet's parts to be sent

back; is that correct?

A. Correct.

Q. On Government Exhibit 18F1, the chart that you have

identified, sir, up in the right-hand corner, I think you

stated that Andy Salis wrote "ValuJet comat"; is that

correct?

A. Correct.

Q. Now, sir, ValuJet comat simply means it's ValuJet's own

parts to be returned; isn't that true?

 

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Diaz - Redirect 58

 

MR. BRIGHAM: Objection, Your Honor.

BY MR. RASKIN:

Q. Do you know what comat is?

A. No, sir.

Q. Okay. That makes that easy.

Sir, during the entire time that you worked at

SabreTech, did anyone ever ask you to falsify any paperwork?

A. Never.

Q. And, sir, you never did falsify any paperwork while

working at SabreTech, did you?

A. That's correct.

Q. And you don't know if anyone else at SabreTech, any of

your colleagues falsified paperwork, do you?

A. That's correct.

MR. RASKIN: I have nothing further, Your Honor.

Thank you, sir.

THE COURT: Mr. Dunlap?

MR. DUNLAP: Nothing, thank you, Your Honor.

THE COURT: Ms. Moscowitz?

MS. MOSCOWITZ: No, Your Honor, thank you.

THE COURT: Redirect.

REDIRECT EXAMINATION

BY MR. BRIGHAM:

Q. Mr. Diaz, you are not a mechanic; is that correct?

A. Correct.

 

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Q. What knowledge did you have at the time that you filled

out the paperwork as to the contents of those five boxes?

MS. MOSCOWITZ: Objection, scope.

THE COURT: Well, he told us on direct

examination that he saw one box that was opened a half inch

and he saw some of this bubble wrap. They did not go into

that on cross-examination.

Cross-examination was limited to the conversation

that Mr. Gerald, Mr. Simons and Mr. Salis and this witness

had and/or observed or listened to. You are limited here,

at this point, to what was gone into on cross-examination.

MR. BRIGHAM: May I respond, Your Honor, or is

that the Court's ruling?

THE COURT: We will take a recess and I will hear

from you. It is recess time anyway, ladies and gentlemen,

it is 11:00. If you will step into the jury room.

[The jury leaves the courtroom].

THE COURT: Mr. Brigham?

MR. BRIGHAM: Your Honor, the defense did ask if

he had ever made a false statement. He did testify that he

had filled out that particular shipping ticket which refers

to the oxygen canisters, and for that reason his knowledge

of what was in the box is relevant and was brought out

during the cross-examination. That would be our last

question.

 

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THE COURT: You mean you are suggesting that by

saying that he has never made a false statement, that that

entitles you now to ask him if he knew what was in those

boxes? What would you anticipate his answer to be?

MR. BRIGHAM: He did not.

THE COURT: Is that a false statement?

MR. BRIGHAM: No, it's an inaccuracy, Your Honor.

It may not be an intentional false statement.

THE COURT: The question is whether or not he

made a false statement. If you can prove that he made a

false statement about something you are entitled to go into

it. If all you're going to do is prove that he didn't make

a false statement, that wouldn't be any redirect

examination at all.

If he knew what was in the boxes you had ample

opportunity to ask him that. You started your direct

examination at 10:13 and finished it about 45 minutes

later. The only thing that you asked him about was that he

saw some bubble wrapping in there. I presume that's all he

saw. That's all you brought out. I presume correctly that

you were bringing out what he knew.

But now to ask him what is in the boxes, I don't

see it. I think this generalized question that counsel has

been asking of these witnesses, did anybody ask you to make

a false statement, no; did he ever see of any, no; does he

 

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know of any others, no, it's just a generalized statement.

I don't think you can particularize that now to leverage it

into he knew what was in the boxes because somebody told

him or some other reason.

The objection is sustained. Do you have any

other questions?

MR. BRIGHAM: No, Your Honor.

THE COURT: We will take a brief recess before we

call the next witness.

MR. BRIGHAM: Your Honor, I'm sorry, we do have

one other question. It would be whether he knew what

Mr. Simons was referring to when he was referring to the

boxes.

THE COURT: Well, you asked him that question.

MR. BRIGHAM: Not to the boxes, to the parts.

THE COURT: You asked him that question. You

said -- Simons, on direct examination, this witness said

asked Gerald, when are you going to ship the parts?

Answer: We are going to ship them now. Gerald told Salis,

get on with it. This is his exact testimony.

You then ask him, and I was waiting for the

objection which didn't come, Mr. Brigham: What was he

referring to? The witness: The ValuJet parts. Okay.

That is all in the record. You can argue it to the jury if

that's what you were going to go back into.

 

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This is why it's helpful, really, if all of you

ask what was said. Then they tell us the way it was. Just

generally what was he referring to, that's his opinion.

It's in there, the ValuJet parts was what the subject of

conversation was and what he was told to get on with. So

the objection is sustained.

COURTROOM DEPUTY: All rise.

[There was a short recess].

COURTROOM DEPUTY: All rise. Court is in

session. The Honorable Judge James Lawrence King

presiding.

THE COURT: Bring in the jury.

[The jury returns to the courtroom].

THE COURT: Thank you, be seated.

Your next witness, please.

MR. BRIGHAM: The United States calls

Mr. Mitchell Perez.

MITCHELL PEREZ, PLAINTIFF'S WITNESS, SWORN.

DIRECT EXAMINATION

THE COURTROOM DEPUTY: Be seated, please. State

your name for the record, please, spelling your last name.

THE WITNESS: Mitchell Perez, P-e-r-e-z.

BY MR. BRIGHAM:

Q. Mr. Perez, you are testifying pursuant to a letter of

immunity in this case, are you not?

 

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A. That's correct.

Q. I would like to show you what has been marked as

Government Exhibit 77E. Do you recognize that?

A. Yes, sir.

Q. Is that the letter of immunity?

A. Yes, it is.

MR. BRIGHAM: Move to admit.

MR. RASKIN: No objection.

THE COURT: 77E is admitted into evidence.

[Government Exhibit 77E received in evidence].

BY MR. BRIGHAM:

Q. Sir, did there come a time that you worked for a

corporation known as DynAir Tech?

A. Yes, sir.

Q. What is DynAir Tech? What was DynAir Tech?

A. It was a maintenance facility.

Q. When you say "maintenance facility" you mean an

aviation maintenance facility?

A. Yes, sir.

Q. When did you start working there, approximately?

A. I believe it was 1994, more or less.

Q. And you worked at that same facility for how long?

A. Approximately two and a half years.

Q. So that would be up through 1996?

A. Correct.

 

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Q. Were you working there at the time of the crash?

A. Yes, I was.

Q. Did the facility keep the name DynAir Tech throughout

that period?

A. No, they didn't.

Q. What happened?

A. They switched over to SabreTech.

Q. When you say they "switched over," what do you mean?

A. SabreTech came in and bought them out.

Q. Then you operated under what name?

A. SabreTech.

Q. If you know, who is the parent company -- if you know,

who is the parent company of Sabre Liner?

MR. RASKIN: Objection, relevance.

THE COURT: Well, it may be relevant, but would a

mechanic be your best witness to establish corporate

ownership? I'm not sure.

BY THE COURT:

Q. Do you know who owns these various corporations?

A. No, I don't.

Q. All you know is general talk around the shop, correct?

A. Yes.

THE COURT: I'll sustain it on a different basis.

You can prove this, but in a different way.

MR. BRIGHAM: Thank you, Your Honor.

 

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PEREZ- Direct 65

BY MR. BRIGHAM:

Q. Mr. Perez, if you may ask you to bring the microphone

closer to you so everyone can hear your responses.

A. Is that better?

Q. I think so.

Sir, I would like to direct your attention to May

of 1996, the month of the crash.

What were your responsibilities at that time?

A. I was a driver then, slash stock clerk.

Q. Now, when you say "driver," what do you mean? Explain

a little bit more what your responsibilities were.

A. I went and picked up parts from different places where

we sent the repairs, different parts that they ordered to

fix up a plane, dropped off parts to get repaired.

Q. What part of the SabreTech facility were you working

out of?

A. Mainly stock room, but I was most of the time in the

van.

Q. When you say "stock room" are you also referring to the

shipping and receiving area?

A. Yes, sir.

Q. Who was your immediate supervisor?

A. Keith Ingram.

Q. Who else did you work with within shipping and

receiving?

 

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A. I worked with Andy Salis. I worked with Bill Ligmann.

Q. Who is Bill Ligmann?

A. He was a receiving clerk.

Q. He worked exclusively on the receiving side?

A. Yes, sir.

Q. Who was Mr. Ligmann's supervisor?

A. Keith Ingram.

Q. Directing your attention to May of 1996, did you have

any conversations with anyone about an upcoming audit?

A. Yes, sir.

Q. Who did you have that conversation with?

A. It was just the talk was around.

Q. Who in shipping and receiving did you talk to about

that?

A. Keith, Bill, Andy, everybody.

Q. When did these conversations take place?

A. During the day, during the work hours.

Q. What was said about the audit?

A. That Continental was coming in for an audit.

Q. When was that audit supposed to take place?

A. I don't know when it was exactly.

Q. In relationship to the crash, when were these

conversations taking place?

A. Before the crash.

Q. I would like to direct your attention to May 10th of

 

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PEREZ- Direct 67

 

1996.

On that particular day, did you make any

deliveries?

A. Yes, I did.

Q. What delivery was that?

A. Different deliveries to different places.

Q. Was there a time that you were requested to transport

boxes and tires?

A. Yes, I was.

Q. Who asked you to do that?

A. Andy Salis.

Q. When did he ask you to do that?

A. Toward the end of the day.

Q. This was May 10?

A. Correct.

Q. What day of the week was that?

A. Friday.

Q. Specifically, what did Mr. Salis ask you to do?

A. He told me that he had some boxes that had to go over

to ValuJet whenever I got a chance.

Q. Did he refer to anything else?

A. No, that's it, boxes and tires.

Q. How many tires?

A. Three tires.

Q. I'm sorry?

 

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A. Three tires.

Q. How many boxes?

A. Five boxes.

Q. Did he show you where the boxes and tires were?

A. Not at that time, no.

Q. What were the instructions that Mr. Salis gave you?

A. That they needed to be returned to the customer.

Q. Where did he tell you to take them?

A. To the ValuJet ramp.

Q. When you say "the ValuJet ramp," was that at the

airport?

THE COURT: Where was that? Just ask him where

it was.

BY MR. BRIGHAM:

Q. where was that?

A. Gate G-2 inside the airport.

Q. I'm sorry. You said gate J-2, was it?

A. Gate G-2.

Q. When you say gate G-2, you are talking about --

MR. RASKIN: Objection.

THE COURT: Sustained. Don't lead him, just ask

him.

BY MR. BRIGHAM:

Q. What does that mean?

A. That's where the planes usually depart.

 

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Q. Now, why did he ask you to take them --

MR. RASKIN: Objection.

THE COURT: That calls for a conclusion. For him

to read the other man's mind and tell us what the man was

thinking, that calls for an opinion, his opinion of the

other man's mental process. The objection is sustained.

You can elicit from him what the other man said.

The jury can make the determination what he meant. If you

wish to do that, you can. Otherwise the objection is

sustained.

BY MR. BRIGHAM:

Q. Did Mr. Salis tell you why he wanted you to take those

boxes?

A. Just returning customer property.

Q. In relationship to the clean-up, what, if anything, did

he say?

A. That we just needed to get it out of there to clean up

the area.

Q. What did you tell him?

A. That I couldn't on Friday because it was toward the end

of the day and I had no time, so I would come in on Saturday

and do it. I was coming in any way to do overtime.

Q. So you did nothing with the boxes that particular day?

MR. RASKIN: Objection.

THE COURT: Overruled.

 

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BY THE COURT:

Q. Did you do anything with the boxes that particular day?

A. No, sir.

THE COURT: This was May 10th, I think you were

saying?

MR. BRIGHAM: Yes, Your Honor.

THE COURT: Next question.

BY MR. BRIGHAM:

Q. I would like to now direct your attention to May 11,

1996.

Did you do anything in relationship to those boxes

and tires on that date?

A. Yes, I did.

Q. When did you start work on that day?

A. I started, I believe it was 7:00 in the morning.

Q. What did you do with respect to the boxes and tires?

A. At that time nothing until after lunch. Then I decided

to take them over.

Q. Tell me what you did specifically after lunch.

A. All right. After lunch, I did some more preparations

that I had to do cleaning up the area for the audit, and

then around 1:00 Andy told me if I was ready to take the

boxes over and I said, yeah, I'll take them over. I went

ahead and got them prepared, loaded them on the pickup and

took them over.

 

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PEREZ- Direct 71

 

Q. How did you prepare them?

A. Well, the boxes were already prepared, but I loaded

them on the pickup with the tires.

Q. Were they open or shut?

A. They were shut.

Q. What, if anything, did you notice on the exterior of

the boxes?

A. Just the ValuJet comat sticker.

Q. Did you lift the boxes?

A. Yes, I did.

Q. Approximately how much did they weigh?

A. It might have been 30 pounds each, a little bit more or

less.

Q. How would you describe the sizes of the boxes?

A. Average size.

Q. Explain to us what you mean.

A. Medium.

Q. Can you give us an estimate?

A. I would say maybe three feet by -- it was about like

this.

Q. Approximately two and a half to three feet by one and a

half?

A. Yes.

Q. Now, other than the comat label, what -- excuse me --

what labels, if any, did you see on the boxes?

 

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PEREZ- Direct 72

 

A. That's it.

Q. What hazardous material stickers, if any, did you see

on the boxes?

A. None.

MR. RASKIN: Objection.

THE COURT: Let's ask him what he saw on the

boxes, if anything.

BY THE COURT:

Q. Did you see anything on the boxes indicating the

contents of the boxes?

A. No, sir.

Q. Describe to the jury in your own words what the boxes

looked like to you.

A. The boxes just looked like regular brown cardboard

boxes that had a sticker on top that said "ValuJet comat" on

it.

Q. Was that the only sticker on the box that you saw?

A. Yes, sir.

THE COURT: Next question.

BY MR. BRIGHAM:

Q. What did you do with those boxes?

A. I loaded them on to the pickup.

Q. Now, before loading them up to the pickup, did you have

a conversation with Andy Salis as to what to do with those

boxes?

 

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A. Just to take them over to the gate.

Q. What specification, if any, did he give?

MS. MOSCOWITZ: Objection, asked and answered.

MR. RASKIN: Asked and answered.

THE COURT: It would be helpful, I think, if we

asked him what was said, then the jury can decide what he

meant by the statement. I don't believe he has been asked

what Mr. Salis said, if anything.

BY THE COURT:

Q. Did Mr. Salis say anything when he told you what to do

with the boxes?

A. He just told me that we had to take them over to

ValuJet, to drop them off. He said, if they can get on this

flight, fine. If they can't, you know, just make sure they

are there. We need to get the area cleaned out.

Q. Which flight?

A. 592. He didn't tell me specifically. He just told me

to make sure that they are on the ramp so they can put them

on whenever they can.

Q. Now, what, if anything, did he say about the time of

that flight?

A. He told me there was a flight leaving at 1:45, that if

I could try to get there on time, maybe they could get it on

that plane.

Q. What time did you leave?

 

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A. Approximately 1:30.

Q. And how did you -- explain how you transported the

boxes and the three tires.

A. I went inside via the service road inside.

Q. Could you please explain that?

A. It's a road that goes inside the airport, on the inside

where the planes park and all that.

Q. And you drove down that road?

A. Correct.

Q. How long did that take you?

A. About ten minutes.

Q. What paperwork, if any, did you have with you at that

time?

A. I had the shipping ticket.

Q. I would like to show you what has been marked as

18F1 -- what has been admitted as 18F1.

Do you recognize that?

A. Yes, I do.

Q. What is that?

A. A shipping ticket.

Q. I would also like to show you what has been marked as

18F2.

MR. BRIGHAM: May I have a moment, Your Honor?

THE COURT: Yes.

MR. BRIGHAM: Thank you.

 

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BY MR. BRIGHAM:

Q. What has been marked as Government Exhibit 18F2.

Do you recognize that?

A. Yes, sir.

Q. What is that?

A. The same copy of the shipping ticket.

Q. Explain to us the relationship between the white copy

and the pink copy.

THE COURT: Can't the jury look at the two copies

and make their own determination of what the two of them

looked like? Let's ask him what he knows about this

situation.

He left at 1:30. He was racing to the airport.

He had 15 minutes to catch -- to get a flight to the ramp

and it took him ten minutes. That's where you stopped.

Now, we are on to comparing shipping tickets which the jury

can do or you can argue to the jury.

Is there something unusual there that you want

him to explain?

MR. BRIGHAM: I think I will expedite this, Your

Honor.

BY MR. BRIGHAM:

Q. Who gave you those tickets?

A. Andy Salis.

Q. How were they attached at the time, if at all, when he

 

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PEREZ- Direct 76

 

gave them to you?

A. White on top, the other one in the middle and the pink

on the bottom.

Q. The white on top is the one before you?

A. Correct.

Q. And the pink at the bottom is the one before you?

A. Correct.

Q. And how did you transport those documents with you?

A. I put them on the front seat.

Q. Now, once you arrived -- did you eventually arrive at

the ramp?

A. Yes.

Q. What took place there?

A. I got off and I saw the guys loading the airplane and I

went ahead up to one of them and I asked them -- I told them

that I had some packages for them. They needed to be

returned back to Atlanta, and that if they could get on that

flight, fine. If they couldn't, just tell me where to put

it and I would go ahead and put it there, so whenever they

were ready to put it on the plane they could go ahead and do

that.

Q. What was the name of the individual that you talked to?

A. Christopher.

Q. What took place after you said that?

A. He told me that he didn't know if they could get it on

 

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PEREZ- Direct 77

 

that plane at that time or not because they were still

loading it and it needed to be weighed. So, he directed me

over to the baggage cart where I had to drop them off.

Q. At that time, what, if anything, did you see at the

ramp?

A. What do you mean?

Q. Was there an airplane there?

A. Yes, there was.

Q. I would like to show you what has been marked and

admitted as Government Exhibit 1.

Do you recognize that?

A. Yes.

Q. What is that?

A. A ValuJet plane.

Q. Was the plane that was in the ramp like that plane?

A. Yeah, it might have been. I don't remember exactly,

but I'm sure it looked like that one.

Q. At that time, what, if anything, were Christopher and

others doing with respect to that airplane?

A. They were loading it up.

Q. Did you see cargo doors on the plane?

A. Yes, I did.

Q. Were they open or closed?

A. Open.

Q. What did you do with respect to the paperwork you were

 

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bringing over at that time?

A. I gave it over to Chris so he could sign it.

Q. What did you see him do?

A. Sign it.

Q. Do you see his signature on that?

A. Yes, I do.

Q. Where is it on the shipping ticket you have before you?

I'm now referring to 18F1.

A. It's on the bottom.

Q. Now, what specifically did you do with respect to the

five boxes and three tires you took over?

A. I took them over to the baggage cart where he told me.

Q. Where was the baggage cart located?

A. It was toward the side of the airplane.

Q. Did there come a time that you had a conversation with

Andrew Salis after the crash?

A. Yes.

Q. When was that, approximately?

A. Monday morning.

Q. And what did he tell you, if anything?

MS. MOSCOWITZ: Objection, hearsay.

THE COURT: Is Salis going to be a witness?

MR. BRIGHAM: He is a corporate employee, Your

Honor.

THE COURT: Is he going to be a witness? Answer

 

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my question, please.

MR. BRIGHAM: No, I don't believe so.

THE COURT: Well, sustained at this time without

prejudice to reoffer it at a subsequent time.

MR. BRIGHAM: May I have a moment, Your Honor?

THE COURT: Yes.

BY MR. BRIGHAM:

Q. You worked at the facility where SabreTech was located

for approximately how many years?

A. I believe two and a half.

Q. During that period, what training, if any, did you have

with respect to hazardous materials?

A. Before the crash or after the crash?

Q. Before the crash.

A. None.

Q. What training, if any, did you have with respect to the

handling of dangerous goods?

A. None.

Q. What training, if any, did you have with respect to the

handling of oxygen generators?

A. None.

MR. BRIGHAM: No further questions.

THE COURT: Subject to this one item that we have

left over.

Mr. Dunlap, go ahead.

 

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PEREZ - Cross 80

 

MR. DUNLAP: No questions, Your Honor.

THE COURT: I'm sorry, Mr. Raskin.

CROSS EXAMINATION

BY MR. RASKIN:

Q. Mr. Perez, I am Marty Raskin and I represent SabreTech.

I only have a couple of questions for you.

You described the boxes that you drove over to the

ValuJet plane as containing a ValuJet comat label; is that

correct?

A. Yes, sir.

Q. And that means, does it not, that this is Valujet's own

material being returned to ValuJet?

MR. BRIGHAM: Objection, Your Honor.

THE COURT: You are entitled to lead him, but

let's just ask him.

BY THE COURT:

Q. Do you know what the word "co-mat" means?

A. Yes.

Q. What does it mean?

A. Customer material.

THE COURT: Go ahead.

BY MR. RASKIN:

Q. Mr. Perez, during the time that you worked at SabreTech

no one ever asked you to falsify any paperwork, did they?

A. No, sir.

 

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Q. And you didn't falsify any paperwork during the time

that you worked there, did you?

A. No, sir.

Q. Did you ever see any of your other colleagues falsify

paperwork while you worked there?

A. No, sir.

MR. RASKIN: Nothing further. Thank you.

THE COURT: Mr. Dunlap?

MR. DUNLAP: No questions, Your Honor.

THE COURT: Ms. Moscowitz?

MS. MOSCOWITZ: No, sir. Thank you.

THE COURT: Anything on redirect of this brief

cross?

MR. BRIGHAM: No, Your Honor.

THE COURT: Who is your next witness, please?

MS. MILLER: Your Honor, our next witness is

Christopher Ramkissoon.

THE COURT: I have another matter at 12:30 which

is going to take me about 45 minutes to do unrelated to

this case. How long do you think this next witness's

testimony will take?

MS. MILLER: I would say direct examination would

be around 25 to 35 minutes, Your Honor.

THE COURT: Then, ladies and gentlemen, we will

resume this afternoon at 1:30. 1:30, please. Please

 

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remember the instruction not to discuss the case with

anyone or permit anyone to talk to you about the case. If

there's anything in the newspaper don't read it, watch it

or listen to it. Thank you. You folks are excused.

Marshal, if you will see that they get to the

elevators.

Mr. Diaz, I'm going to ask you to stay.

Mr. Perez, I'm going to ask you to stay just for a minute.

[The jury leaves the courtroom].

THE COURT: All right. Be seated.

Mr. Brigham, let's have a proffer through the

witness's own words of what you were getting into about a

conversation following the crash with -- I'm not sure, with

someone.

MR. BRIGHAM: With Mr. Salis.

BY MR. BRIGHAM:

Q. You had a conversation with Mr. Salis the Monday

following the crash; is that right?

A. Correct.

Q. What did Mr. Salis tell you?

A. He just wanted to know whether those boxes and tires

got on that plane or not.

Q. How did he describe the contents of that box?

THE COURT: "How did he describe," that leaves it

wide open for him to give his opinion.

 

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BY THE COURT:

Q. Just tell us, when you had this conversation with

Mr. Salis, what did he say to you and what did you say to

him, if anything, about the boxes?

A. He told me whether those boxes got on the plane or not.

To me, it seemed more like he was more worried about the

customer material than anything. Then he found out -- I

guess over the weekend they found out about the oxygen

generators, and then he asked me, did they get on there or

not? I said, I don't know. I just left it in the baggage

cart and I left. That was basically about it.

THE COURT: Thank you. If you will wait outside

just one minute. In a few minutes I will have the Marshal

come tell you when you are next needed. Okay?

THE WITNESS: Okay.

THE COURT: Wait outside.

[Witness exits the courtroom.]

THE COURT: I don't really know or understand why

instinctively I know when something outrageously bad is

about to happen through testimony. I don't want to say

outrageously bad, but outrageously off the wall in terms of

being admissible.

What he is saying here is that this man Salis

over the weekend found out some things and started to check

on some things and must have gotten worried, I guess, I

 

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PEREZ - Cross 84

 

assume, I surmise, I opine, and therefore he seemed to be

more concerned about getting the stuff up to Atlanta than

whether or not anybody died. Goodness sakes.

All that he can tell us is what Salis said to

him, and what Salis said to him was, did the boxes and the

tires get on the flight, to which this man said, I don't

know, or whatever he said. I don't know, I presume so, or

whatever. All the rest of that is hearsay, rumor,

supposition, and really a very dangerous area to get into.

The implication being of what he just said to us

was that Salis didn't care whether anybody died or not, but

he was only worried about getting the boxes to Atlanta. He

can't say that because that's his supposition.

So, when we boil it down to what he can tell us,

which is -- the question was, what did he mean by that, or

what was he thinking of. Boy, that is wide open. He can

say anything. You have to ask him what he said at that

time. Now we know what he said, which was, did the boxes

get on, to which he replied, I don't know.

Well, I don't think that that is really very

material. You all think about it and if you want to bring

him back after lunch to ask him that question -- he has got

to be cautioned very carefully not to tell us what he

thinks Salis meant by that or what Salis was thinking of or

not thinking of or whether he was callously indifferent or

 

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PEREZ - Cross 85

whatever. All of those opinions, he can't get into any of

that.

He can just answer the question, what did Salis

say and what did you say. Then you all can argue to the

jury that it meant whatever it meant if you think it

important. If you think it important to show that -- the

facts are the facts. They loaded up these boxes, sent him

speeding to the airport, he had 15 minutes to get there,

threw them on the plane and off it went and the plane

crashed tragically. Those are the facts. You all can

argue from that.

What Salis was thinking about would not be in

furtherance of his employer's work or his binding

commitment. The employer might have been shocked to death

and Salis might have been indifferent. I don't say he was,

I don't know, but that would be very unfair to leave in the

jurors' minds.

So, for those reasons, I'm going to sustain the

objection to all the hearsay and rumor, opinion and all

that. He is able to say and can testify to what Salis

said, except I think it's such a dangerous area that I am

not sure you want to get into that. You've got all of that

evidence any way.

You can decide. If you want him in here tell the

Marshal and the Marshal will tell him to come back in here

 

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at 1:30. If you want to excuse him, tell the Marshal and he

will tell him he is excused.

I would rather you not have any contact with the

witnesses. I don't think there's any problem with that. I

think you are honorable people. Somebody can say, well, I

overheard something and then I've got a three-hour hearing

on that. The simplest way is to have the Marshal tell him.

If you want him here, that's fine. But limit it just to

that one question.

MR. BRIGHAM: Yes, Your Honor.

THE COURT: All right. 1:30. Thank you. The

courtroom will be locked.

[There was a recess for the noon hour].

AFTERNOON SESSION

1:30 P.M.

COURTROOM DEPUTY: All rise. Court is in

session. The Honorable Judge James Lawrence King

presiding.

THE COURT: Before we bring in the jury,

Mrs. Gonzalez, juror number nine, has advised Ms. Kramerman

that she is having a problem at work, in that apparently,

it is a small office, a dental office, and her employer --

I don't know who she spoke to -- but they are telling her

that they want her back to work and that they can't let --

well, they need her back to work. It's a monthly billing

 

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cycle, or something, and she does that.

She is having difficulty about it, and we really

only have, I guess, three options.

One, I can ask the Court Executive, Clerk of the

Court, Mr. Maddox, to call her employer and explain to him

or her that the lady is on jury duty, and that under the

ordinances of the county and state and I believe there is a

Federal regulation on it, that they are obliged to let her

be here to continue her service, and try to talk with the

employer and reason with them about it. Or, of course,

excuse her and seat alternate number one.

The pros and cons about having the Court

Executive, Clerk of Court call and talk to the employer are

that it may well be that the employer would not say anything

to the Clerk of Court that would indicate that they are so

upset that they are going to get rid of the lady, let her go

or fire her, or whatever. But that is the danger you run.

You know all of this. She is nervous about it and expressed

it this morning. And its a problem and she's concerned

about it.

Vicki, was there anything that I have left out or

is there anything you can add?

COURTROOM DEPUTY: There is a possibility of her

not getting paid. They were going to withhold her salary.

MS. MOSCOWITZ: I think she is a single parent of

 

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two small children to add to it.

THE COURT: Yes. She definitely needs her salary

check. As she explained to Ms. Kramerman, she cannot do

without being paid. They get paid a small amount that

Congress provides for jurors. But, at least that's true if

Congress passed a continuing resolution. Does anybody

know? We might not have any money to pay anybody, I don't

know. I guess Congress passed the third continuing

resolution, did they, to keep government working.

We can make arrangements for the jurors to be paid

weekly or something. There are things we can do, but

whether that alleviates her concern or anxiety or not, I

don't know. I don't know how you all feel about it.

Ms. Miller?

MS. MILLER: Your Honor, the government suggests

that she should not be excused at this time. The trial is

moving more quickly than we have anticipated. Certainly,

the recourse should be tried of speaking to her employer.

When, the jury was impaneled, all of the parties

relied on this array of jurors in exercising their

challenges. We do not think it's desirable or necessary at

this point to start losing jurors. We think that the

Court's suggestion of having the Court Executive speak to

her employer should be used in this instance.

THE COURT: I would not do that without asking

 

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her -- without ascertaining her feelings first. Certainly,

if she says, "don't do that, it will get me fired," it will

does her little good to remain here another week or two,

and then end up without a job. So, I would like to ask her

if she would like us to do that. We could do that.

What is the defense's position?

MS. MOSCOWITZ: Your Honor, I think we should go

through that inquiry. However, I think we are inclined

not, if she feels that that jeopardizes her job, then we

shouldn't get into somebody's life in that fashion.

THE COURT: All right.

MS. MOSCOWITZ: We would rather keep her, but not

if it's at the price of her job.

THE COURT: Is there any objection to the Court

asking her to step down just briefly, and we'll make the

brief inquiry as to what she would like for us to do.

MR. DUNLAP: Could I, perhaps, relate? I don't

know if the Court's aware of this option, but I was in a

case with Judge Marcus in a similar circumstance, wherein

Judge Marcus selected a lawyer appointed.

In that case, it was Ed Shohat to represent the

juror and confer with the juror about the juror's wishes,

and they contact counsel appointed by the Court, the

employer to try to take care of the concern to see that

nothing untoward happened to the juror, as a result of the

 

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service of the court.

THE COURT: That's a very good idea, because it's

a little difficult for the lady to sit here in the presence

of all these people and tell us in a confidential,

reasonable way what she is concerned about. If she is not

concerned about losing her job, then it's a different

thing. If she is, I would hate to have that weigh-in on

her conscience, as a fallout of this case. It's just one

more tragedy. That makes a lot of sense. Any objection to

doing that?

MR. RASKIN: No, Your Honor.

THE COURT: How about the government?

MS. MILLER: I'm sorry, Your Honor. I --

THE COURT: Any objection to selecting somebody

to sit down and talk to her confidentially and represent

her, if you please, being the one to contact her employer,

if she chooses to go that route. Explains to her, she has

certain rights, but those rights may avail her a little, if

she loses her job, maybe even three months down the road.

A lot of this is very delicate.

MS. MILLER: Yes, Sir. However, the Court would

first make inquiry?

THE COURT: No, this is an idea that procedure

that Judge Marcus used that I was not familiar with. It

has a lot of good features to it, in the sense that a

 

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PEREZ - Cross 91

 

person can speak one on one with a lawyer that is court

appointed, and her lawyer, not anyone else's lawyer, could

speak in confidence, and that lawyer could then make an

evaluation as to what ought to be done, and make a

recommendation to us, and we can listen to it. That seems

to make a lot of sense.

If we bring the lady in here now, and what, there

are forty or fifty people in the courtroom, and she has to

sit here and look back, and answer my question, no matter

what, how friendly I ask her, it's nonetheless, it ends up a

lot of pressure on her. I'm not sure we will get an

absolutely candid, truthful answer. I think we would get a

truthful answer, but whether it's what she really believes

or doesn't believe about her job is another problem.

MS. MILLER: Your Honor, I would simply ask that

it not be a criminal defense lawyer, because I think it

would be a natural tendency, even unconsciously, to be

trying to determine if this is a good juror or not.

THE COURT: I don't care. Is Tom Scott all

right?

MS. MILLER: Somebody that both parties would

feel comfortable with as being neutral, that's why I don't

think Mr. Scott --

THE COURT: You don't want to use Tom Scott, if I

can find him?

 

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MS. MILLER: He is recused from this case, Your

Honor.

THE COURT: Then he can't be involved. Can he?

He used to represent SabreTech. There it is. It's

balanced.

MS. MILLER: We would want it to be somebody that

both parties were in agreement with.

THE COURT: Give me a list then, if you really

want to make this thing complicated. You all exchange

lists and we will strike them down, whatever, I don't know.

I would pick whoever just happens to be out there in the

lobby right now.

MS. MOSCOWITZ: There's Mr. Bernstein right

here, but unfortunately, he represents a witness in the

case, Your Honor. So, I --

THE COURT: Well, we need to get somebody not

connected with the case present. I don't have anybody in

mind. I don't care, but we need to get it done today,

because it's on her mind, and I want to get it resolved.

MR. DUNLAP: Could we take a few minutes break

right now, and write down several names.

THE COURT: Why don't we phone somebody and get

them over here? Why don't we say the next person who drops

off pleadings in my office, Vicki, whoever that may be. We

get them coming in every half hour, don't we? Filing

 

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PEREZ - Cross 93

 

pleadings late, and stuff like that.

I don't know. Is there anybody in the courthouse,

Judge Davis has got a trial going on, I know.

MS. MOSCOWITZ: Mr. Josefsberg is over there.

THE COURT: Oh, I have Mr. Josefsberg over there

in that case. He's a pretty reputable guy.

MS. MILLER: Your Honor, it's not a question of

reputable, it's a question that we would really feel

comfortable with somebody who is not a criminal defense

attorney.

THE COURT: How is she going to know it, if we

tell him not to tell her?

MS. MILLER: Your Honor. It's the outlook of the

attorney that is involved.

THE COURT: The outlook of the attorneys?

MS. MILLER: Yes, sir.

THE COURT: If the American Bar Association

representative and all of that, if he is willing to do it,

he is right across the hall.

MS. MILLER: I believe that he is conflicted out,

Your Honor.

MS. MOSCOWITZ: We just remembered, Your Honor,

that his firm represents -- is the head of the plaintiffs'

steering committee in the civil litigation.

THE COURT: What?

 

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MR. DUNLAP: What about Bob Martinez, Judge? You

can call him.

THE COURT: I beg your pardon?

MR. DUNLAP: Robert Martinez. He used to be the

U.S. Attorney.

THE COURT: He is there? Is he up on the floor?

MR. DUNLAP: He is not over there, but I --

THE COURT: Any objection to Mr. Martinez?

MS. MILLER: No, that would be a good suggestion.

THE COURT: Vicki, see if you can get him to come

in and see me at the first recess. We will bring him in

here and explain his responsibility to him and so on.

Let's tell him, Vicki, at about 3:30, if he can

come over. All right.

MS. MOSCOWITZ: Your Honor, before the jury comes

in, I understand that the government is going to put

Mr. Perez back on the stand, and ask about this post-crash

conversation with Mr. Salis. My objection is that it is in

no way admissible against Mr. Florence. It can not be a

question of co-conspirator hearsay.

THE COURT: So you're asking for a limited

instruction?

MS. MOSCOWITZ: At a minimum, Your Honor.

THE COURT: Granted.

MS. MOSCOWITZ: Thank you.

 

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PEREZ - Redirect 95

 

MR. DUNLAP: Could I have the same instruction,

please, Your Honor?

THE COURT: All right.

Bring in the jury, please. If somebody could ask

Mr. Perez to come back in.

[The jury returns to the courtroom].

THE COURT: Mr. Brigham, would you make sure

Mr. Perez knows he's not to volunteer any information or do

anything like that.

MR. BRIGHAM: Yes, sir.

THE COURT: Thank you. Be seated, please.

Ask Mr. Perez to step in, please.

Mr. Perez, you are reminded you are still under

oath. We are going to ask you one or two questions.

Mr. Brigham?

REDIRECT EXAMINATION

BY MR. BRIGHAM:

Q. Mr. Perez, you have indicated you have had a

conversation with Mr. Salis after the crash the following

Monday, is that correct?

A. Correct.

Q. I want you to only tell me what he said, nothing more.

What did he tell you? Only his words.

A. Okay. He asked me if the oxygen generators ever got on

that plane.

 

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RAMKISSOON - Direct 96

 

MR. BRIGHAM: No further questions.

THE COURT: What did you say in response?

THE WITNESS: No. That I don't know.

THE COURT: That you did not know.

THE WITNESS: That I did not know.

THE COURT: Anything else? Thank you. You may

step down. Next witness please.

MS. MILLER: United States calls Christopher

Ramkissoon.

COURTROOM DEPUTY: Please raise your right hand.

Do you solemnly swear the testimony you are about to give

will be the truth, the whole truth, and nothing but the

truth, so help you God?

THE WITNESS: I swear.

COURTROOM DEPUTY: Thank you. Please be seated.

State your full name, spelling your last name for the

record.

THE WITNESS: Christopher R. Ramkissoon,

R-a-m-k-i-s-s-o-o-n.

CHRISTOPHER RAMKISSOON, GOVERNMENT'S WITNESS, SWORN.

DIRECT EXAMINATION

BY MS. HECK MILLER:

Q. Sir, please be sure to pull that microphone well toward

you.

Where do you work?

 

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A. AirTran Airways at Miami Airport.

Q. What is your job there?

A. Customer service supervisor.

Q. Did AirTran Airways used to have a different name?

A. Yes.

Q. What was its name formerly?

A. ValuJet Airlines.

Q. When did you first go to work at ValuJet airlines?

A. September of '95.

Q. Who was your employer when you first started working at

ValuJet Airlines?

A. Jordan Temporary.

Q. What is Jordan Temporary?

A. When you are on probation, they put you on Jordan

Temporary.

Q. Did there come a time when you were off probation and

became an employee of ValuJet?

A. Yes.

Q. When was that?

A. '96.

Q. Prior to going to work at ValuJet airlines, what was

your occupation?

A. I was a ramp agent with another airline.

Q. What airline?

A. Paradise Airline.

 

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Q. How long were you a ramp agent at Paradise Airline?

A. Three and a half years.

Q. In May of 1996, what was your job with ValuJet?

A. I was the lead ramp agent.

Q. What is a lead ramp agent?

A. I take the place of a supervisor.

Q. What task does a lead ramp agent oversee?

A. Supervise the turn around of an aircraft coming in and

out.

Q. You've used this term turn around of an aircraft, what

does that mean?

A. When the aircraft comes in, we off load it, off load

the bags, load the baggage belt, and then set it back up.

Q. Where were you, Mr. Ramkissoon, on Saturday, May 11,

1996?

A. At Miami Airport on the ramp.

Q. Were you working?

A. Yes.

Q. What shift were you working?

A. The morning shift.

Q. How long was that shift?

A. Until about 2:30, from 7:00.

Q. By early afternoon, approximately how many flights had

you worked?

A. Two flights.

 

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Q. Were these passenger flights or cargo flights?

A. Passenger flights.

Q. Around midday, did you work an incoming flight?

A. Yes.

Q. What flight was that?

A. 591.

Q. And whose airline?

A. ValuJet Airline.

Q. Was flight 591 on time, or not on time?

A. Not on time.

Q. Was it early or late?

A. It was late.

Q. Approximately how late?

A. Approximately, half an hour.

Q. What, if anything, did you do as a result of flight 591

incoming, being approximately half an hour late?

A. Could you ask that one more time.

Q. What, if anything, did you do as a result of flight 591

incoming, being approximately half an hour late?

A. The usual turn around.

Q. What flight were you turning 591 around into?

A. 592.

Q. Where was flight 592 supposed to go?

A. Atlanta.

Q. Did flight 592 leave on time?

 

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A. No.

Q. What is co-mat?

A. Company material, any material going on ValuJet into

Atlanta.

Q. What, if any, co-mat were you expecting on flight 592?

A. I was not expecting any.

Q. Did some co-mat appear?

A. Yes.

Q. Did you observe anybody come to the ramp with any

co-mat?

A. Yes.

Q. What did you observe?

A. A pick-up truck came from SabreTech.

Q. How do you know the pick-up truck was from SabreTech?

A. It was marked, SabreTech.

Q. And how many people were in the pick-up truck?

A. Just the driver.

Q. What did the driver do?

A. He came out of the pick-up truck.

Q. What did he do after he came out of the pick-up truck?

A. He gave me a slip for the co-mat he had.

Q. When you say a slip, Mr. Ramkissoon, are you talking

about paper?

A. Papers.

Q. You are saying papers, more than one paper?

 

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A. Yes.

Q. What color or colors were the paper?

A. The top one was white.

Q. Were there any other color papers?

A. There was a pink.

Q. Any other colors, that you recall?

A. I cannot recall any others.

Q. In front of you are Government's Exhibit 18F1 and 18F2

previously received in evidence, do you recognize those

papers?

A. Yes.

Q. What are they?

A. The shipping papers for the co-mat.

Q. What colors are they?

A. One is white, and one is pink.

Q. Are those the colors that you saw that day?

A. Yes.

Q. What, if anything, did the driver say to you?

A. We have some co-mat.

Q. And did he say what or where that co-mat was for?

A. When we receive co-mat, it usually goes to Atlanta.

MS. MOSCOWITZ: Objection. Non-responsive.

BY THE COURT:

Q. What did he say to you, if anything, when he handed you

the slips? What did he say?

 

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A. He had some co-mat.

BY MS. HECK MILLER:

Q. Did you say anything to him?

A. I took the slip from him. I told him I couldn't load

the co-mat at the time, because we were off loading the

aircraft.

Q. And what did he say?

A. I can't remember at this moment.

Q. I'm sorry?

A. I cannot remember at this moment.

Q. Is there anything that would refresh your recollection?

Would it refresh your recollection to look at a report of

what you said?

A. Yes.

MS. MILLER: Your Honor, I am going to move on.

BY MS. HECK MILLER:

Q. What, if anything, did the driver do?

A. He wanted to leave, so I told him he can put the co-mat

on a cart.

Q. What, if anything, did he do?

A. Back up the truck to the cart and started off-loading

the co-mat.

Q. What kind of cart are you talking about?

A. A baggage cart.

Q. Was this a ValuJet cart?

 

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A. Yes.

Q. How close was it to the airplane?

A. About 20 feet away.

Q. What, if anything, was discussed about what flight the

co-mat would go on?

MS. MOSCOWITZ: Objection. States facts not in

evidence.

THE COURT: Well, those facts are in evidence at

this point. That objection on that basis would have to be

overruled.

Q. Do you recall the question, Mr. Ramkissoon?

BY THE COURT:

Q. Did you say anything to him, did you have any

conversation about which flight you were going to put the

co-mat on?

A. It was marked "flight 592" and I told him we may not

have room, and he said, if it doesn't go on this flight, it

can go on the next flight.

Q. When he told you that what did you say?

A. I can't recall.

THE COURT: Next question.

BY MS. HECK MILLER:

Q. What did the driver do with regard to the co-mat in the

truck?

A. He packed up his truck to the cart, and he started

 

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off-loading the co-mat onto the cart.

Q. What did you do?

A. I off-loaded one box onto the cart.

Q. And did you do anything with regard to the papers that

he handed you?

A. I took the paperwork. I went up stairs to the cockpit.

Q. Did you place anything on the paperwork?

A. My signature.

Q. Did you place your signature on the paperwork before

you took it up to the cockpit or after?

A. Before I got up to the cockpit.

MS. MILLER: Your Honor, if I might ask the

witness to step down for a moment with blow up of

Government Exhibit 18F1 to show the jury, please.

THE COURT: All right.

BY MS. HECK MILLER:

Q. Mr. Ramkissoon, could you step down here for a moment?

I would ask you to step in front of this placard, and ask if

you recognize this?

A. Yes.

Q. What is this?

A. This is a copy of the shipping slip for the co-mat.

Q. Does your signature appear here?

A. Yes, down here.

Q. Can you put your finger on it so everybody can see.

 

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And what does that say?

A. Christopher.

Q. Thank you. You can resume your seat.

What, if anything, did you do with the shipping

ticket or tickets after you signed it?

A. After I signed it, I went up to the cockpit.

Q. Did you give any part of it to anyone?

A. I showed it to the first officer.

Q. Did you give any part of the shipping ticket physically

to anyone before you showed it to the shipping officer, the

first officer?

A. The rest of the shipping ticket went back to the

driver.

Q. Who gave it back to the driver?

A. I gave it back to the driver.

Q. Did you read the shipping ticket before you signed it?

A. Yes.

Q. What date appears on the shipping ticket?

THE COURT: That's in evidence. Why don't you

tell him assume the date and go on from there. It's all in

evidence.

BY MS. HECK MILLER:

Q. Mr. Ramkissoon, the date on the shipping ticket that

appears is 5-10-96, is that correct?

A. Yes.

 

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Q. These events were occurring on what date?

A. The 11th.

Q. Did you discuss with anyone the date issue?

A. No.

Q. Did you read the date?

A. Yes.

Q. Before you went upstairs to the cockpit, did you look

at the co-mat?

A. Yes.

Q. What do you recall seeing?

A. Two wheels, a nose wheel and five boxes.

Q. Can you describe the boxes?

A. They were white boxes, cardboard boxes. Four of them

were one size, and one was a little smaller. They were

taped up with white tape with a co-mat sticker on it.

Q. Were there any other stickers on the boxes besides the

co-mat sticker?

A. No.

Q. Now, you've told us that you pick up one of these

boxes, is that correct?

A. Yes.

Q. Where did you put it?

A. From the pick-up truck to the cart.

Q. Approximately how much did it weigh?

A. Between 40 to 50 pounds.

 

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Q. Were there any labels or stickers on the tires?

A. Co-mat stickers.

Q. Were there any other labels or stickers on the tires

besides co-mat?

A. No.

Q. Was there anything covering the tires?

A. There were hubs that the tires fit onto.

Q. Now, you've told us that you went to the cockpit, is

that correct?

A. Yes.

Q. How did you get to the cockpit from where you were?

A. In the stairway of the jetway to the aircraft.

Q. Did you meet with somebody in the cockpit?

A. The first officer.

Q. And did you have a conversation with the first officer?

A. Yes.

Q. What, if anything, did you say to the first officer?

A. I showed him my baggage, let him know what I had, and

where I'm going to put it. I also showed him my co-mat

slip, stating what I had on the co-mat slip.

Q. What, if anything, did the first officer say to you?

MR. RASKIN: Objection.

THE COURT: Ladies and gentlemen, if you'll step

into the jury room, please.

[The jury returns to the jury room.)

 

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Mr. Ramkissoon, could you step out to the lobby, please and

wait just a minute.

Thank you, be seated. State your objection.

MR. RASKIN: I think it's hearsay, Your Honor.

This is a ValuJet employee.

THE COURT: Use the microphone, either one of

them.

MR. RASKIN: It's a ValuJet employee. It's

hearsay.

THE COURT: All right. Ms. Miller?

MS. MILLER: Your Honor, it's not offered for the

truth. It's offered for the state of mind of the two

speakers, and also to explain the actions of

Mr. Ramkissoon.

THE COURT: Part of that depends on how dramatic

it may be, because we are hearing from obviously a person

now deceased, a dead man. I thought maybe that was part of

what you were going to get into, but apparently, it's not.

But I don't know. If he says "don't give me any explosives

or anything". What is he going to say?

MS. MILLER: The witness will say, Your Honor,

that they discussed the weight of the co-mat, that they

discussed that a main wheel weighed around 250 pounds, a

nose wheel 50 pounds, that the one box 40 to 50 pounds.

They discussed where the material would be

 

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placed. Mr. Ramkissoon said there was no room in the back

hold, only in the front hold, and could we take it. The

first officer said they could take it.

They doubled the amount of the total weight to

account for late bags. That was it, Your Honor.

THE COURT: Now, you were suggesting, Mr. Raskin,

that this is hearsay. She says she is not offering it.

MR. RASKIN: Your Honor, Mr. Ramkissoon's state

of mind is irrelevant here. We don't really care why he

loaded the bags. The only thing that we should be caring

about is that he did.

We, of course, don't contend that he didn't. He

is prepared to testify that he did exactly that, loaded the

bags on to the plane. What is in his mind isn't really an

issue, as far as I can see in this trial. And it's

hearsay.

THE COURT: Ms. Miller, it is a statement by a

non-party to the case, given outside the presence of the

Court, not under oath, not subject to cross-examination. It

seems to qualify under most of the traditional aspects of

hearsay.

MS. MILLER: If it's offered for the truth.

THE COURT: I'm sorry.

MS. MILLER: If it's offered for the truth.

THE COURT: That's always a good fall back

 

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position. But I, frankly, don't see that this testimony is

very, is necessarily damaging to any defendant. But they

seem to feel that it is terribly important, and they have

objected to it.

When you are dealing with the state of mind, do

you have to balance the potential, the words that are

spoken and the events described? I think in this instance,

the objection is a good one. It is hearsay. It will be

sustained.

MS. MILLER: Yes, sir.

THE COURT: Bring in the jury.

I don't believe it's part of the government's

proof, burden of proof, to bring in this man's state of mind

or even the first officer's state of mind.

[The jury returns to the courtroom].

THE COURT: Thank you. Be seated, please.

Ms. Miller.

BY MS. HECK MILLER:

Q. Mr. Ramkissoon, did you do anything as a result of your

conversation with the first officer?

A. Yes, I showed him the co-mat was loaded onto the cart

from the pick-up truck.

Q. Where were you showing him that?

A. In the cockpit, I showed him it through the window.

Q. Did you write anything?

 

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A. I signed my name on the shipping slip.

Q. I'm handing you what has been marked for identification

purposes as Government Exhibit 101. Do you recognize 101?

A. Yes.

Q. Did you make Government Exhibit 101?

A. Yes, this is our bag sheet.

Q. Just tell us please, if you made it?

A. Yes.

Q. Is that your handwriting on it?

A. Yes.

Q. Did you make it on May 11, 1996?

A. Yes.

MS. MILLER: Government offers 101 into evidence.

MR. RASKIN: No objection, sir.

THE COURT: Exhibit 101 is admitted into

evidence.

[Government Exhibit 101 received in evidence].

BY MS. HECK MILLER:

Q. What is 101?

A. It's a bag sheet.

Q. What is a bag sheet?

A. This is what is a sheet that checks out bags that comes

down here and goes to different destinations.

Q. Did you write anything on that bag sheet?

A. Yes, where we placed the bags.

 

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Q. Did you write anything on the back of that paper?

A. This is how we were going to load it onto the aircraft.

Q. What did you write on the back? Could you read it to

us, please?

A. Forward bin 67 bags, back 44 bags, 1,500 pounds for the

co-mat.

Q. Was that an exact estimate of the weight of the co-mat?

A. No, it was given more than the average weight of the

co-mat.

Q. What was the reason that more was stated than the

actual weight of the co-mat?

A. Sometimes, we have late bags checking in. We give the

extra weight of that, when the first officer made a weight

and balance, it would compensate for the bags.

Q. After your conversation with the first officer, did you

leave the cockpit?

A. Yes.

Q. Where did you go?

A. I went back down to the ramp.

Q. On the ramp, did you see the driver there any longer?

A. No.

Q. What did you do after you got back down to the ramp?

Withdrawn.

Did you see the co-mat?

A. Yes.

 

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Q. Where was the co-mat?

A. Still in the cart.

Q. What did you do after you got back to the ramp?

A. I started helping load back the aircraft.

Q. I'm sorry.

A. I was helping load back the aircraft.

Q. Helping to load back the aircraft, is that what you

said?

A. Yes.

Q. What was loaded onto the aircraft first?

A. We had the co-mat and the passenger bags.

Q. What was the reason that the passenger bags from loaded

first?

A. The passenger bags have more priority than the co-mat.

Q. Was the co-mat loaded on to the aircraft?

A. Yes.

Q. Who, if anybody, gave instructions as to where to put

the co-mat?

A. The first officer.

Q. On the ramp, who, if anyone, gave instructions as to

where to put the co-mat?

A. I did.

Q. Where did you instruct that the co-mat should be put?

A. In bin number 1, between 1 and 2 where they have room.

Q. Could you please repeat that, Mr. Ramkissoon?

 

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A. Bin 1 and 2.

Q. And bin 1 and 2 of what hold?

A. The forward hold.

Q. How many cargo holds, are there? Withdrawn.

What type of aircraft is it that you were loading

that day.

A. DC-9s.

Q. How many cargo holds are there in DC-9s?

A. 2 doors with 4 bins.

Q. How many different separate holds?

A. The forward bin with two, number 1 and 2, and there's a

half with 3 and 4.

Q. Are you talking about bins or holds?

A. Two doors and then the bins are 1 or 2, leading from

one door.

Q. Where does the other door go?

A. In the aft.

Q. The aft hold?

A. In the aft of the aircraft, there's another bin door,

leading to bin 3 and 4.

Q. Is that a separate compartment from where bin 1 and 2

are?

A. Yes.

MS. MILLER: Your Honor, the government wishes to

use a chart of Exhibit 1. Exhibit 1 is already in

 

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RAMKISSOON - Direct 115

 

evidence. With the Court's permission, I would like to use

a blow up of Exhibit 1.

THE COURT: All right. Any objection?

MS. MOSCOWITZ: No, Your Honor.

THE COURT: All right.

BY MS. HECK MILLER:

Q. Mr. Ramkissoon, do you recognize this type of aircraft?

A. Yes.

Q. What type of aircraft is it?

A. A DC-9.

Q. Is this similar to the type of aircraft you loaded on

May 11, 1996?

A. Yes.

Q. Can you point out to us, please, on this aircraft what

is the location of the forward cargo hold?

A. The cabin door to the wing, the door is on the right

side of the aircraft.

Q. The door is not visible in this picture?

A. No.

Q. Can you point out to us what is the location of the aft

cargo hold?

A. Up to the wing.

Q. Can you point out to us, please, which is the cargo

hold where you directed the co-mat to be placed?

A. Right to the doorway of bin number 1, the forward bin.

 

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Q. How did the co-mat get taken off of the cart?

A. We took it off the cart, and loaded it onto a belt

loader.

Q. Are you saying belt loader?

A. A belt loader.

Q. What is a belt loader?

A. A conveyer belt that will move the bags from the cart

toward the aircraft.

Q. Does the belt feed the bags right into the aircraft?

A. Yes.

Q. Who is the "we"? You said, "We took the bags off the

cart and put them on the belt loader."

A. Another agent and myself.

Q. And of the co-mat, what went on first?

A. The main wheels, two main wheels.

Q. What went on next?

A. The nose wheel.

Q. And what went on after the nose wheel?

A. The boxes.

Q. How many boxes?

A. Five boxes.

Q. Did you see the boxes go into the airplane?

A. Yes.

Q. After the boxes and the wheels were in the airplane,

what, if anything, did you do?

 

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RAMKISSOON - Cross 117

 

A. Remove the belt loader away from the aircraft, clear

everything away from the aircraft, and close the doors.

Q. After all the doors had been closed, what did you and

your crew do with regard to the aircraft?

A. After everything was put away, we proceeded to push the

aircraft back.

Q. Did you have any paperwork resulting from your work as

ramp agent with regard to flight 592?

A. Yes, we had the bag slips and the co-mat slips.

Q. What did you do with those papers?

A. They were given to the gate agent.

Q. What company did the gate agent work for?

A. ValuJet.

Q. Did you see the plane depart?

A. Yes.

Q. Did you have any other flights to work that day?

A. No.

Q. What did you do after ValuJet 592 departed?

A. I went home.

MS. MILLER: May I have a moment, Your Honor.

THE COURT: Yes.

MS. MILLER: Your Honor, no further questions.

THE COURT: All right.

CROSS EXAMINATION

BY MR. RASKIN:

 

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RAMKISSOON - Cross 118

 

Q. Good afternoon, Mr. Ramkissoon. I'm Marty Raskin. I

represent SabreTech.

Prior to the crash of this plane, Mr. Ramkissoon,

have you ever had any training concerning chemical oxygen

generators?

A. We had haz-mat training.

Q. Your training, if I'm correct, is to recognize labels,

is that true?

A. Yes.

Q. Did anybody ever tell you about chemical oxygen

generators?

A. No.

Q. Now, it's true, is it not, that the plane that you

loaded, flight 592, had no netting or straps in the cargo

compartment to hold down the luggage, is that true?

A. That's true.

Q. And you know from your experience that other airlines

do have those nets and straps, is that correct?

MS. MILLER: Objection, Your Honor.

THE COURT: He is asking him about his experience

as a ramp agent. He has worked for another airline.

BY THE COURT:

Q. Where you worked before, did the planes have the cargo

nets?

A. No.

 

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RAMKISSOON - Cross 119

 

THE COURT: No. Next question.

BY MR. RASKIN:

Q. Have you worked at any airline, or do you have any

personal experience where a plane has those nets or straps?

A. No, sir.

Q. Did you personally load the boxes on the plane or

someone else?

A. I had loaded the boxes on the aircraft.

Q. The boxes that Ms. Heck Miller was talking about, those

boxes?

A. Yes.

Q. What was the name of the other agent who was helping

you load those boxes?

A. There was another agent by the name of Neal Finley.

There was another one, Charles. I can't remember his last

name. There were two other agents inside the bin.

Q. Was there a Mr. Segurra who was also loading baggage?

A. He was in the bin of the aircraft.

Q. Did he deal with these boxes as well?

A. When they came into the aircraft.

Q. I understand.

When you loaded the boxes, it's true, is it not,

that you placed the boxes on the side of the tires, rather

than on top of the tires, is that true?

A. That's true.

 

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SEGURRA - Direct 120

 

MR. RASKIN: I have nothing further. Thank you.

THE COURT: Any other questions for the defense?

MS. MOSCOWITZ: No, Your Honor.

THE COURT: Redirect?

REDIRECT EXAMINATION

BY MS. HECK MILLER:

Q. Mr. Ramkissoon, what company trained you to recognize

haz-mat labels?

A. ValuJet.

Q. Was that before the crash?

A. Yes.

MS. MILLER: I have no other questions, Your

Honor.

THE COURT: You may step down. Thank you. Next

witness, please.

MS. MILLER: Government calls Dennis Segurra.

INTERPRETER: [Sworn through interpreter.]

DENNIS SEGURRA, GOVERNMENT'S WITNESS, SWORN.

DIRECT EXAMINATION

THE COURT: Raise your right hand and be sworn,

please. Do you swear the testimony you are about to give

is the truth, the whole truth and nothing but the truth, so

help you God?

THE WITNESS: Yes.

THE COURT: Be seated. State your name and spell

 

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Segurra - Direct 121

 

your last name for the record please.

THE WITNESS: My name is Dennis L. Segurra.

DENNIS SEGURRA, GOVERNMENT'S WITNESS, SWORN.

DIRECT EXAMINATION

BY MS. HECK MILLER:

Q. Mr. Segurra, do you speak and understand English?

A. Yes.

Q. Do you read and write English?

A. Not much.

Q. Are you more comfortable testifying here today with a

Spanish interpreter?

A. In Spanish.

Q. Mr. Segurra, where do you work?

A. At the moment, I'm working for AirTran.

Q. Do you work for any other employer as well?

A. For American Airlines, part-time.

Q. In May of 1996, where were you working?

A. At that time, I was working for ValuJet.

Q. When did you start working at ValuJet?

A. I don't remember the month exactly.

Q. Was it earlier in the same year?

A. Yes.

Q. In May of 1996, who was your actual employer? Was it

ValuJet or another company?

A. I was working at ValuJet airlines, but I was working

 

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Segurra - Direct 122

 

for Jordan Temporaries.

Q. Where were you specifically on May 11, 1996?

A. On that day, I was working for specifically that

flight.

Q. What flight?

A. Coming in, it was 591. Outgoing, it was 592.

Q. And what duties did you have with regard to the turn

around from 591 to 592?

A. My job was to unload and to load the airplanes.

Q. With regard to flight 592, physically, where did you

work first?

A. I don't understand the question.

Q. Mr. Segurra, I'm showing you a photograph of an

airplane. Can you point out to us what area of this

airplane you were working in, at first?

A. Yes, I was working in the rear of the aircraft, in the

rear compartment.

Q. Did there come a time when you finished your work in

the rear compartment?

A. Yes.

Q. What work were you doing in the rear compartment of the

airplane?

A. I was unloading the plane.

Q. When you were finished with that job in the rear of the

airplane, did you go someplace else in the airplane?

 

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Segurra - Direct 123

 

A. Yes, when we finished loading the outbound of the 592,

I went to the front and I helped my other workmate, Alex, to

help him to settle in some tires and some boxes.

Q. Can you point out to us on this picture where on this

airplane was this front area where you were working with the

tires and the boxes?

A. Yes, here.

Q. Are you indicating the airplane where a little cartoon

figure of an airplane appears?

A. Yes. Specifically, there you don't notice the door of

the airplane because the way that they took this photograph,

it doesn't exactly present the front compartment.

Q. The door is on the other side of the airplane, is that

correct, Mr. Segurra?

A. Yes.

Q. Where were you, physically, as these tires and boxes

appeared?

A. When I first saw them was when I was first inside the

compartment, which is where Chris told me to help him.

Q. Were you inside the compartment or outside the

compartment?

A. When I saw the tires, I was already inside the

compartment.

Q. Which did you see first, the tires or the boxes?

A. The tires.

 

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Q. Can you describe the tires please?

A. Yes, I don't have much knowledge as a mechanic, but two

of them were large and one was small.

Q. Were there any stickers on the tires?

A. At this point, I don't remember.

Q. Can you describe to us, the boxes?

First of all, how many boxes did you see?

A. Five.

Q. What were these boxes made of?

A. Cardboard.

Q. Can you describe what they looked like?

A. I don't exactly know the color, but they were about a

foot and a half high, and two feet long.

Q. What, if anything, did you see on the outside of the

boxes?

A. The only thing I saw was a sticker that said co-mat.

Q. Mr. Segurra, on May 11, 1996, were you familiar with

hazardous materials stickers?

A. Yes.

Q. Did you see any such stickers on those five boxes?

A. No.

Q. How is it that you were familiar with hazardous

materials stickers as of May 1, 1996?

A. Because before that, I had been working with American

Eagle, and they had given me training in the recognition of

 

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Segurra - Direct 125

the various type of stickers. When I first started to work

at ValuJet, they first gave me a book and they gave me a

test, and I had to be able to recognize that.

Q. What did you do with the five boxes?

A. I put them on the tires.

Q. As you picked them up, approximately, how much did each

box weigh?

A. Approximately 25 pounds.

Q. As you handled the boxes, what, if anything, did you

hear?

A. Yes, several of the boxes or a couple of them, I heard

a sound that was like when metal touches metal or impacts

metal.

Q. How full was the belly of the airplane?

A. Compartment two was full. Compartment one, there was

enough space to accommodate the tires and the boxes, but the

rest of it was all full of suitcases.

Q. After the tires and the boxes were in, what did you do?

A. I got out of the compartment and I moved the loader

away.

Q. Did you close the door of the compartment?

A. I don't remember.

MS. MILLER: I have no further questions for this

witness.

THE COURT: Cross?

 

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Segurra - Cross 126

 

MR. RASKIN: Yes, Your Honor.

CROSS EXAMINATION

BY MR. RASKIN:

Q. Good afternoon. I'm Marty Raskin. I represent

SabreTech.

A. Good afternoon.

Q. Sir, you testified on direct examination that you were

trained by ValuJet, and I think you said American to

recognize hazardous materials labels, is that correct?

A. Yes.

Q. Prior to the crash of ValuJet 592, however, had you

ever received any training with reference to chemical oxygen

generators?

A. No, because I'm not a mechanic.

Q. Now, sir, is it true that ValuJet flight 592 had no

netting or straps to secure the cargo?

A. That is correct. It didn't have any.

Q. Do any of the other airlines that you have worked for

have planes in which there are such nets and straps?

A. Yes, I do.

Q. What airlines are those?

A. American Eagle, American.

Q. Now, you testified on direct, sir, that you loaded the

boxes on top of the tires, is that correct?

A. Yes.

 

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Segurra - Cross 127

 

Q. The boxes, were therefore, not on the side of the

tires, is that correct?

A. They were on top of the tires.

MR. RASKIN: Thank you very much. I have nothing

further, Your Honor.

THE COURT: Mr. Dunlap?

MR. DUNLAP: No questions, Your Honor.

THE COURT: Ms. Moscowitz.

MS. MOSCOWITZ: No, sir.

THE COURT: Redirect?

MS. MILLER: No redirect.

THE COURT: Thank you. You may step down.

MR. BRIGHAM: Your Honor, we do have the

custodians, but I believe there is an issue that needs to

be resolved before they testify.

THE COURT: All right. We will wait for just a

moment. I buzzed my courtroom deputy.

Ladies and gentlemen, if you will step into the

jury room please.

[The jury leaves the courtroom].

THE COURT: Be seated. Apparently, a message was

left for Mr. Martinez, and he hasn't called back, so this

doesn't do any good. We should have just gone down the

list of lawyers. Any lawyers in the courtroom just sitting

not connected with one of the parties? Okay. Let's go

 

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Segurra - Cross 128

 

over this evidentiary problem.

What is the objection to exhibit whatever it was?

I don't have a copy in front of me. They took it to make

copies and give to you. Have you all received them?

MR. BRIGHAM: Yes, Your Honor.

MS. RASKIN: Yes, sir.

THE COURT: Marshal, would you hand me one of the

copies, please?

We are talking now about Government Exhibit 73 for

identification being a service agreement. The government

wants to call a custodian to say that he or she has this

document in their files, found it in the files, pulled it

out and brought it here. What is your objection?

MS. RASKIN: The objection is, it is not fully

executed, so we would object to the relevance. The second

exhibit --

THE COURT: It's signed by DynAir. It appears to

be signed by DynAir all the way through, but it's not

signed by Peiking Design Service. Is that where they got

these people were from China?

MS. RASKIN: I believe it's Piping Design

Services.

THE COURT: Piping Design Services, nobody signed

it. You question its authenticity?

MS. RASKIN: Yes, Your Honor.

 

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THE COURT: What is the genuineness of it?

Anybody can pick anything out of the file and say "here, I

found this in the file." How do we know it's genuine?

MR. BRIGHAM: Your Honor, I have disclosed to

defense counsel, here is a copy that the custodian is

bringing has a signed off sheet. She will be able to

testify that, in fact, this agreement was the agreement

that was entered into --

THE COURT: Excuse me, you say, "signed off

sheet", is that one of these work things that everybody

checks and signs or what?

MR. BRIGHAM: No, Your Honor.

THE COURT: Is there a signature under Piping

Services.

MR. BRIGHAM: Not in the Court's copy.

THE COURT: I know that, but the one she is

bringing.

MR. BRIGHAM: Yes.

THE COURT: Good. Then let's assume he's making

the representation that its fully executed by all parties

and it will be here in a few minutes, let's assume that is

so, then what is your objection?

MS. RASKIN: Our objection is, it's an agreement

dated November 5, 1993, with predecessor corporation to the

corporation under indictment here.

 

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THE COURT: Well, I presume he is going to bring

in another agreement that ties up the link right down the

chain, aren't you or are you?

MR. BRIGHAM: Yes, I am bringing in certified

documents which will show the name change of the

corporation, and an acceptance of liability of the

predecessor corporation.

THE COURT: And you've given those to counsel for

the defense?

MR. BRIGHAM: Yes.

THE COURT: Assuming he does all that, and puts

it all into one big exhibit and labels it 73A, B, C, D, E,

F, and all that, and they show fully executed copies of

these documents, showing the agreement between Piping and

DynAir, and then DynAir, and then American and then

American Eagle and Original Blossom Trails, and then

finally, it gets to SabreTech.

I assume he has got that. He says he does. He

starts with the furthest one out. He could have started

either way with the furthest one in, and work his way back

to get to these people. Assuming, he's got all that, what

would be the objection?

MS. RASKIN: I would like to see them. I don't

believe I have. Assuming he has all that and he can tie it

all up, I suppose he is entitled to try to put on the

 

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evidence.

THE COURT: How would you tie it up? With a

custodian. Who is it? A woman or a man? That she just

reached in her file and brought them to court, and here

they are. That's what she would say?

MR. BRIGHAM: Yes. She would say that, but I

think it would be more substantive than that. She is the

custodian of documents, but also of the contracts

themselves. She is aware of the contract.

THE COURT: How? How? How?

MR. BRIGHAM: Because that is part of her role as

controller of the company.

THE COURT: Part of her role? Is she the

girlfriend of the president and slept with him at night and

he whispered it to her? How does she know it? Please.

Aware doesn't tell me anything. How would she know? Was

she Vice President of the company? Was she President?.

What was the relationship?

MR. BRIGHAM: She was the controller of the

company, Your Honor.

THE COURT: All right. Was she charged with

entering into these contracts?

MR. BRIGHAM: No, she did not sign these

contracts, but she has been the controller for 15 years.

She's responsible -- she is the keeper of the contracts for

 

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PDS, Inc. Her responsibility includes being current with

all current contracts.

She'll be able to say that there is a filing

system, that the contracts are filed according to the

parties, that this contract was in effect. She'll be able

to testify that this contract was in effect until the end

--

THE COURT: How does she know that? We are right

back to the same question. How does she know that?

MR. BRIGHAM: Because she is the corporate

employee who is responsible for keeping the contract and

monitoring the contracts.

THE COURT: Keeping them in a file, right?

MR. BRIGHAM: And keeping active with these

contracts.

THE COURT: Active by talking with the President

of the company once a week and saying, have you signed any

new contracts lately, boss? Nope, I haven't. Okay. Is

that how she knows? You see, we have got to find out how

she knows. She is a custodian. She keeps the contracts.

And being "aware" "unaware," that's doesn't convince me

they are genuine.

It seems to me a simply matter of calling

somebody in here that will say, "yes, I'm responsible for

signing contracts for the SabreTech and I entered into

 

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these contracts. Here they are, I looked at them and

that's what they are."

You are trying to call an employee, a lady who is

apparently a secretary, and she tells you that she is

responsible for knowing everything about these contracts.

But I don't know if I was sitting on the jury, if I would

believe her.

These are big airline companies that trade in

hundreds of thousands of dollars, and you are going to

prove up the contractual relationship between all of them,

relying on what some young lady found in her file.

MR. BRIGHAM: She is more than the clerk, Your

Honor. She is the controller of the company. Her

responsibilities include financial presentations. She is

the keeper of the contracts themselves. She, on her daily

routine, would know about new contracts. She has --

THE COURT: Did she negotiate contracts?

MR. BRIGHAM: No. I would not say that.

THE COURT: She didn't negotiate them, and she

didn't have any authority to enter into contracts and bind

anybody, right?

MR. BRIGHAM: I cannot say that she did that with

respect to these contracts.

THE COURT: Or any other contracts. She was

familiar with them and she is the comptroller of what,

 

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SabreTech?

MR. BRIGHAM: No, she is the controller of this

contract company, which is PDS, Inc. This contract is, of

course, a business record which she maintains. That's her

responsibility. She's more than a --

THE COURT: If you want to go with this flimsy

evidence, I suppose you are entitled to it, if you show it

all the way down the line. But boy, it's going to be

ripping cross examination on the fact that they are going

to end up, and establish that this lady is simply no more

than a person who kept careful records and maintained them.

That's all she knows about them. Can she identify any of

these signatures?

MR. BRIGHAM: That, I do not know, Your Honor.

THE COURT: Yeah. Well, she can't identify any

of the signatures. All she can say is, yup, she pulled

these out of her file. She had to stay tuned in

everything. She had to be "aware." She had to stay awake

to make sure that she didn't get an e-mail message that the

President had signed a new contract unbeknownst to her,

negotiated, entered into it, signed it, and dealing with

contract with all of these people. I think the

cross-examination should be a lot of fun on this one.

I think here, at a minimum, you have to bring in

the other contracts. When she gets here, you can pull them

 

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out and you can show them all to the defense.

I would think that if they have all these

contracts and it's a matter of putting it through -- jumping

over the hurdles of bringing whoever signed them in here,

which, frankly, is a pretty simple to do in a four to six or

eight week trial. What's the harm? Bring in one of these

presidents. Say, "did you sign this?" That's all you have

to ask him. He says, yes, and you offer it into evidence.

He doesn't have to be friendly or unfriendly or anything

else. I don't want to tell you how to try the case. I'm

doing too much of that.

The point is that you've got a series of contracts

entered into, I guess, between Piping and DynAir, the

predecessor. Who was the first contract?

MR. BRIGHAM: DynAir Tech of Arizona.

THE COURT: Peiking and DynAir, and then what?

MR. BRIGHAM: That is the only contract I have,

Your Honor.

THE COURT: How does that tie up to SabreTech?

MR. BRIGHAM: Because what I will introduce is

merger contracts and merger agreements, which show the

evolution of DynAir Tech Arizona into SabreTech. I have a

chart, Your Honor, which I believe depicts that evolution

in possibly a useful way, in respect to this particular

issue.

 

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THE COURT: Why complicate it so much for this

jury? Why don't you bring in somebody that says that's my

signature. And they say, yes. You put it in evidence.

Then you turn around and call somebody from DynAir, and say

did you sell your company to SabreTech, and they say, yes

and here's your contract.

Introducing these minor employees who says I

found these in the cabinet and say "Yeah, they're good,

they're all right." Well, if that's what you want to do.

He says in good faith that he's going to tie it up

between this outfit, DynAir Tech of Arizona and SabreTech.

He says he's going to prove that some way.

MS. RASKIN: Your Honor, I think all Mr. Brigham

has said is that he is going to introduce evidence that at

some point, after the date on these agreements that he has,

SabreLiner bought these entities and assumed certain of

their liabilities.

That says absolutely nothing about whether these

contracts were in effect when they said they were or when

the company bought the subsidiaries companies or what may

have happened in the interim. It doesn't address the issue

at hand, which is whether the contracts were authentic and

were in force at any time, before or after SabreLiner

bought DynAir Tech of Arizona, which by the way, is a

separate corporation than DynAir Tech of Miami, which is

 

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the only corporation about which they are any allegations

in this lawsuit.

THE COURT: What evidence do you have from this

custodian of records that all of these contracts were valid

and in force of the time that SabreTech was performing this

repair work?

MR. BRIGHAM: The contract itself, I think speaks

for itself, and it has a three-year time limit and it is

dated December of 1993.

THE COURT: So, DynAir sold it to 2, 3, 4 people

and they've got contracts all over the place? There has

got to be something here that ties this into this airline.

I think you're going to have to lay a foundation

to show that the employment contracts entered into between

Piping Airlines and DynAir and SabreTech, you are going to

have to show more direct route than by just saying that

some girl found them in a file. I don't think that's

sufficient.

All you have do is call those people. I'm sure

they are not going to deny their signatures. This is an

important case. I don't see what the problem is. You

can't call the SabreTech people because they are defendants

in this case. But you can call everybody else. And also,

you have to show that they were in effect at this time.

You say, well, that the contract says it was

 

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going to stay in effect for three years. If somebody sells

the airline or sells their interest and people assume

liabilities or don't assume liabilities.

I don't think a girl in charge of keeping the

files is a competent witness to express those kinds of

opinions. Those kinds of opinions are out. Now, she can

testify that she kept these record and found it her file.

It will be for identification. Then when you show some

competent evidence that is genuine and was in full force

and effect at the time of the crash, it will be admitted

into evidence.

If you have that evidence and show it to them,

the defense counsel, I don't know that they will even have

an objection to requiring you to bring these other people

in. They say they have a genuine issue over whether this

contract involving these people was in effect at SabreTech

at the time of the crash.

They make that objection and they are requiring

you to lay a proper foundation to show the genuineness of

the document. Unless this Judge gets convinced that the

genuineness of the document, it can't be let in. Simply

because, I can't let something in to the jury that I'm

uncomfortable about being genuine. And a custodian, just

doesn't cut it, in my judgment at this point and time.

All right. Let's see where we are. We have got

 

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plenty of time. We have got another month. If you want to

put this lady on to say that she found a bunch of papers in

her file and this is one of them, that's fine. When you ask

her what she is aware of, and what she learned from chatting

with others, that isn't going to go.

The only way she would know whether or not whoever

is President of the company hasn't sold the company during

this interval, is to have asked somebody or talked to the

corporate counsel, and that is all hearsay and opinion.

There is no way to lay the predicate to get this ultimately

in evidence. You can have it marked for identification as

one of her files. When you lay the other predicate, we will

be glad to get back into it again. All right. Let's take a

brief recess.

MR. DUNLAP: Your Honor, I don't know if the

Court would like to have three more names of potential

attorneys.

THE COURT: No, I don't think we can fool around

with it. Unfortunately, my staff simply went out and left

a message. Well, here we are, we were going to have this

done at 3:00, and we haven't even gotten in touch with

Mr. Martinez. I don't think it's a big deal, I think I can

appoint anybody in the world. People are bound by their

ethics.

Frankly, I'm going to walk over to Judge Davis's

 

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courtroom, and see if there's a lawyer in the courtroom.

I'll try to stay away from anybody that does criminal work,

but if I can find somebody sitting over there on a

deposition or discovery matter. I bet if I call a

Magistrate, I bet I can get a half of dozen lawyers who do

civil work. Send one over. It's just a simple matter. We

are making too big a deal of it.

[There was a short recess].

COURTROOM DEPUTY: All rise. Court is in

session. The Honorable Judge James Lawrence King

presiding.

THE COURT: During the recess I was able to reach

a law clerk of mine, but out of the vintage 1970s -- Jack

Ostrow. I asked him to come over and do the Court a favor

and he is going to be here at 5:00. I told him I wanted to

talk to the juror and find out what the problem is, and

make a recommendation to us in open court. And we would

listen to counsel and then we can make a decision so when

she goes home tonight, she'll know one way or the other

what we are doing.

Vicki, will you bring in the jury, please?

[The jury returns to the courtroom].

THE COURT: Thank you. Be seated. Call your

next witness, please.

MS. MILLER: The government calls, Al Ramos.

 

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COURTROOM DEPUTY: Raise your right hand please.

Do you solemnly swear the testimony you are about to give

is the truth, the whole truth and nothing but the truth so

help you God.

THE WITNESS: Yes, ma'am.

COURTROOM DEPUTY: Thank you. Be seated.

Pull the microphone towards you. State your

name, full name, spell your last name for the record,

please.

A. My name is Alberto Ramos, R-a-m-o-s.

ALBERTO RAMOS, GOVERNMENT'S WITNESS, SWORN.

DIRECT EXAMINATION

BY MS. HECK MILLER:

Q. Sir, what is your profession?

A. I'm an aviation consultant.

Q. Do you hold any licenses or certificates with regard to

aviation?

A. I have an airframe and power plant license, and I have

a Bachelors in Science degree in aviation and maintenance

management. I'm currently working on a masters degree in

aviation.

Q. How long have you held an A and P certification?

A. I obtained my power plant certificate in approximately

1997, 1998. My airframe certificate in 1978-1979 time

frame.

 

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Q. What do you do as an aviation consultant?

A. I provide consulting services to airlines, repair

stations.

Q. How long have you done that?

A. Approximately ten years.

Q. Did there come a time when you began working at a

location in Miami known as DynAir Tech in Miami?

A. Yes, ma'am.

Q. When was that?

A. Approximately, July of 1995?

Q. Was that the first time you ever physically worked in

DynAir in Miami?

A. No, it was November, 1994 for McDonald Douglas. That

was my first project at DynAir.

Q. When you say you worked for McDonald Douglas, Was that

as employee or a consultant?

A. I was a consultant for a company called Asforce Group

which was also consultant for McDonald Douglas. They

reported to McDonald Douglas.

Q. Did there come a time when you worked as a consultant

to a company called ValuJet?

A. Yes, sir.

Q. When did you first work as a consultant for ValuJet?

A. That was in July of 1995.

Q. Did somebody assist you in making the connection of

 

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becoming a consultant to ValuJet?

A. Yes.

Q. Who was that?

A. Mr. Bill Simons.

Q. Who was Bill Simons?

A. At the time, he was one of the technical

representatives, consultants for ValuJet.

Q. Your first job as a consultant for ValuJet, where

physically did you carry that out?

A. My first assignment for ValuJet was to review aircraft

records on three aircrafts that ValuJet was looking to

purchase or lease. I had to go to Orlando and Dallas to

review those records.

Q. Did there come a time when you took on consulting work

for ValuJet which you performed at a facility in Miami?

A. Yes, ma'am.

Q. When was that?

A. Maybe August of 1995.

Q. Where did you physically perform those

responsibilities?

A. At the DynAir Tech hangars that were formerly Eastern

Airline hangars on 36th Street in Miami.

Q. So you began working for ValuJet as a consultant at the

DynAir Tech facilities in approximately the midsummer of

1995, is that correct?

 

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A. That is correct.

Q. How long did you continue working at the DynAir Tech

facilities in Miami as a consultant for ValuJet?

A. Until late May of 1996.

Q. By that time had DynAir Tech changed its name?

A. Yes, ma'am.

Q. What was its name by the time you finished working

there?

A. SabreTech.

Q. When did that name change take place?

A. I don't remember.

Q. Did that name change affect your engagement?

A. No, ma'am.

Q. Are you familiar with the term "technical

"representative"?

A. Yes, ma'am.

Q. What is a technical representative?

A. A technical representative is usually a person that has

been given a position to observe a maintenance facility

while the work for the client is being done.

Q. Were you a technical representative?

A. That was the title given to me.

Q. Did ValuJet have any other technical representatives on

site at the SabreTech facility in Miami?

A. Yes, ma'am.

 

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Q. Who were the other technical representatives?

Mr. Bill Simons was the lead technical

representative. There was a Richard Dearcy who came in on

the MD-80 project. There were various people from the

quality assurance group at ValuJet that would come down and

spend days, sometimes weeks assisting us. And then toward

the delivery of the MD-80s, there were about seven

different representatives from ValuJet in that April or May

time frame, including a FAA D.A.R., who was supposed to

issue certificates of their worthiness.

Q. You mentioned a MD-80 project, as a consultant or tech

rep for ValuJet, working at SabreTech, did you have any

responsibilities with regard to an MD-80 project?

A. My responsibilities included being a liason between the

SabreTech's planning department and records, and ValuJet's

planning departments and records department.

Q. When did those responsibilities begin?

A. For the MD-80 program, it was some time in January,

1996.

Q. You mentioned Valujet's planning department, where was

that located?

A. Atlanta.

Q. Where is SabreTech's planning department located?

A. In Miami.

Q. How did you perform liason between those two planning

 

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departments, one in Atlanta and one in Miami?

A. I processed the work scope and paperwork between the

two entities. In a maintenance check, there is usually a

lot of paperwork. My area of expertise is working with an

area of aircraft documentation and work scope development.

Q. What is work scope?

A. That's when the airline puts together what tasks need

to be done on the aircraft, and that's called a work scope.

Q. Generally, what was ValuJet engaging SabreTech to do

with regard to MD-80 aircraft in September 1995, early 1996?

A. To accomplish all the work and inspections as per the

work scope and return the airplane to service.

Q. How many airplanes were involved?

A. Regarding the MD-80 program?

Q. Yes, sir.

A. Three.

Q. What were the tasks to be performed generally?

A. Generally, it was to perform maintenance per the

ValuJet crew maintenance program, and accomplish several

modifications, major and minor.

Q. What sort of modifications?

A. Some were to galleys, some were to electrical system,

some were to the interior. Several modifications. I don't

remember them all right now.

Q. Were these new to the ValuJet?

 

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A. They were new to the ValuJet fleet, but these airplanes

were used aircraft.

Q. What, if any, tasks are involved with concerning the

MD-80s with regard to any life limitation on oxygen

generators?

A. There were several life limited or hard time items,

that term is used interchangeably, that needed to be changed

that ValuJet had determined per review of the aircraft

records that needed to be replaced because they had expired

their life limit.

Q. What is a hard time item?

A. It is a component that the manufacturer has set a

overhaul or a life limit to based on our cycles, which is

landings, or days or years. In other words, when the

component reaches that date or that number of flight hours,

it has to be removed or overhauled or discarded.

Q. Is there a difference between a hard time item and a

life limited item?

A. Yes.

Q. What is the difference?

A. A life limited item when it reaches that threshold or

that life limit, regardless of the condition of the

component, it must be removed and discarded. It can never

be used on another aircraft ever again. A hard time item

can be rotable component. For example, a break which can be

 

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removed off the airplane at its hard time limit and be

repaired or overhauled and put back on the same airplane or

on another aircraft.

Q. Mr. Ramos, you just used the term "rotable".

A. Yes.

Q. Can you spell that for us, please?

A. R-O-T-A-B-L-E

Q. What does rotable mean?

A. A rotable is an aviation term that signifies a

component that can be rotated between airplanes after it has

been repaired or overhauled or re-used.

Q. In your experience, are the terms hard time items and

life limited parts occasionally used interchangeably?

A. Yes, ma'am.

Q. What were your specific duties with regard to paperwork

for the jobs that SabreTech was doing for ValuJet?

A. First of all, I was involved in the work scope, making

sure that SabreTech or DynAir Tech received the

documentation. Then, I worked very closely with their

planning department to make sure that all the tasks were

issued on SabreTech paperwork. I would also monitor the

flow of paper between ValuJet and SabreTech, and I was

specifically interested in those life limited parts or hard

time items, air worthiness directives and modifications

because these items would have to be put into the computer,

 

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the information, prior to the delivery of the airplanes.

The reason for that is the FAA requires that you track these

items and you be able to demonstrate that these items are,

in fact, current.

Q. Mr. Ramos, you told us some roles you had with regard

to the paperwork being issued. Did you also have a role

with regard to paperwork being received back from SabreTech?

A. When the task work was completed by the mechanic and if

there was an inspection involved, and again, if it were

completed, they would make a copy of the paperwork, after

they had audited the paper and placed it in a little area

for my review.

Q. Who is they?

A. The planning department at SabreTech.

Q. What did you do with the copies that were provided to

you for your work?

A. The work cards had already been audited by SabreTech.

I was more interested in the hard time items, life limit

items because I can take that information and send it to

ValuJet, and they can put it in the computer before the

airplane was delivered. Those were the items I spent most

of my time on.

Q. What did you do with these items?

A. They were placed in a binder and they were kept until

the end of the check. Again, these were only copies, these

 

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were not the originals. The originals were kept by

SabreTech in their files and ultimately, they were delivered

to ValuJet. I also delivered my copies in a binder to

ValuJet sometimes even before the aircraft departed so,

again, they could put it into the computer system.

Q. In between receiving your copies from the planning

department at SabreTech and placing them into a binder which

went to SabreTech, what did you do with these papers?

A. Repeat that question.

Q. In between the time that you received the papers from

the planning department and put them into a binder and sent

them to ValuJet, what did you do with the papers in the

interim?

A. I would audit the papers for signatures and

completeness, because that was an indication that the work

was accomplished.

Q. Did you have any role with regard to checking the work?

A. No, ma'am.

Q. Now, you mentioned life limit parts. What, if any,

role did life limitation play with regard to work on oxygen

generators on the MD-80s?

A. The oxygen generators have a life limit of 12 years by

the manufacturer. During the review of the maintenance

records by ValuJet, they determined that these components

were either expired or, yeah, they were expired. So they

 

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asked as part of the work scope to replace all of the oxygen

generators on a least two of the aircraft.

Q. Did that test give rise to something that you needed to

audit?

A. Can you repeat the question.

Q. Did you need to audit something with regard to

replacement of life limited oxygen generators?

A. Yes, when the paperwork came in, I would check to see

what the manufacturer date and the serial numbers and I

would pass that onto ValuJet, so they could put it in their

computer systems.

Q. Did you check all papers with regard to the replacement

of the oxygen generators?

A. Yes, ma'am.

Q. In addition to the placement of life limited oxygen

generators, did ValuJet have SabreTech do any other tasks

with regard to oxygen generators?

A. There was another modification that needed to be done

regarding the number of masks that would be available in the

cabin. Here in the United States, I believe we have a ten

percent margin where we try to provide an extra mask for a

child that might be sitting on her mother's lap, in addition

to the passengers that are actually seated.

Q. What, if any, directive did ValuJet give SabreTech with

regard to performing that task?

 

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A. ValuJet had a company called MAAS write an engineering

order to do the task.

Q. Is this something different than replacing the oxygen

generators?

A. Yes, this is a totally different task.

Q. Mr. Ramos, you told us that you worked with copies of

documents, is that correct?

A. That's correct.

Q. Do you have knowledge of what would happen to the

originals of the copies to which you had?

A. Yes, they would be filed by the SabreTech planning

department.

Q. Where would they ultimately be sent?

A. To ValuJet upon completion of all the maintenance on

the aircraft.

Q. What, if any, function did you have with regard to

performing quality control?

A. None whatsoever, ma'am.

Q. Mr. Ramos, I have placed before you two folders that

contain items that have been entered into evidence. Each

folder containing a sleeve of papers that is connected

together with a clip. Could you take a look at what is

received as Government Exhibit 25 and 26.

Are you familiar with those papers?

A. Yes, ma'am.

 

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Q. Did you personally do anything with regard to those

papers or copies of those papers?

A. Yes, ma'am. These were given to me by the planning

department at SabreTech. I checked for signatures to make

sure they were signed properly. I made -- copies were

already made and I put them in my white binder.

Q. There are two different exhibits there, 25 and 26, do

they correspond to two different aircraft?

A. Yes, ma'am.

Q. What are the two different aircraft?

A. 802.

Q. Which one is 802, if you could relate that?

A. Exhibit 25. And 803, exhibit 26.

Q. Does each package relate to a set of related tasks?

A. Yes.

Q. What are the tasks that are set forth in exhibit 25 as

to aircraft 802?

A. Remove and replace the following hard time components,

all cabin oxygen generators per ValuJet card 0069, attached.

Q. With regard to Government Exhibit 26?

A. This one says, perform a hard time component

serialization utilizing attached V-J verification list.

Q. What is the attachment of the papers that is contained

in exhibit 26? Is it oxygen generators?

A. Yes, ma'am. In addition, they also talk about other

 

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components, other hard time components being changed.

Q. Was an oxygen generator a life limit part?

A. Yes.

Q. Could it be re-used?

A. No, upon reaching its life limit, no.

Q. Now, in Exhibit 26, is there anything that reflects

expiration dates for oxygen generators?

A. Yes, the expiration dates of the new oxygen generators

that were just installed on the aircraft were shown on

SabreTech forms.

Q. Did you audit that paper?

A. Yes.

Q. For what reason did you need to audit that paper?

A. So I could provide the information, for example, the

manufacturer date and the serial number for ValuJet, so they

could put it in the computer ahead of time.

Q. Did you audit any papers in relation to expiration

dates of old oxygen generators?

A. No.

Q. What was the reason for that?

A. We are only concerned about the new oxygen generators

being put into the system, because these are the ones that

the FAA is going to ask about during an inspection.

Q. Mr. Ramos, I'm going to use -- I would like to turn

your attention in Government Exhibit 65 to a particular

 

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document and ask if you recognize the document that I've

turned the exhibit over to?

A. Yes, ma'am.

Q. Do you recognize that document?

A. Yes, ma'am, I do.

Q. What is it?

A. Card number 69, ValuJet work card number 69, and it

provides instructions to the mechanic on removing and

replacing the oxygen generators.

Q. Is this a true and correct photocopy of the pages that

this exhibit is opened to?

A. Yes, ma'am.

Q. Mr. Ramos, if you could please follow along from the

original while I place this document on the magnifier. --

Mr. Ramos, do you also recognize the copy of the work card

that I'm showing you?

A. Yes, ma'am.

MS. MILLER: Your Honor, I would ask to have

admitted into evidence this chart which is labeled Exhibit

5. It is a blow up of a page in evidence.

MS. MOSCOWITZ: Your Honor, I object to it being

admitted into evidence.

THE COURT: Sustained. The document is in

evidence. You can use it for demonstrative purposes.

There is no objection to that.

 

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MS. MILLER: Thank you.

BY MS. HECK MILLER:

Q. Mr. Ramos, did you audit this work card?

A. Yes, ma'am.

Q. How many different items appear on this work card on

this particular page?

MS. RASKIN: Objection. The document speaks for

itself.

THE COURT: Yes, you can count them and say

whatever there are. It's in evidence.

BY MS. HECK MILLER:

Q. Mr. Ramos, when you check a work card do you check to

see if every item is signed?

A. For signatures and completion, yes.

Q. On this work card, how did you determine whether every

work item was signed?

A. Here the mechanic wrote item 1 A through D, and then he

signed.

Q. Is that where the pointer is pointing on the video

frame?

MS. MOSCOWITZ: Objection. Move to strike.

MS. MILLER: Your Honor, I can ask the witness to

come down.

MS. MOSCOWITZ: It's a foundation objection. I

don't care where he points. It's foundation as to whether

 

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he knows who signed what.

THE COURT: The last question of the witness as I

understand it was asking him to read the document and tell

the prosecutor whether or not she was pointing to a place

on the exhibit that had not been signed. So, the question

is she pointing to such a place. You may answer that.

MS. MILLER: Your Honor, I believe I was pointing

to the letters 1 A through D.

THE COURT: What is your question with respect to

the letters 1 A through D?

BY MS. HECK MILLER:

Q. Did you check those letters?

A. Yes. If you go down the page --

THE COURT: The answer is "yes". What is the

next question?

BY MS. HECK MILLER:

Q. What is the reason you checked for those letters?

THE COURT: You are asking him his opinions, and

he has not been tendered an expert subject to voir dire

examination.

BY MS. HECK MILLER:

Q. Have you seen the work cards satisfactorily signed?

A. Yes.

Q. Now, Mr. Ramos, if you could turn your attention now to

another page in this Exhibit 25 that correspond to this

 

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photocopy that I'm showing you. Can you turn to that page

please?

A. Yes, ma'am.

Q. What type of document is that page?

A. This is called a non-routine work card.

Q. What, if any, relationship exist between this

none-routine work card and the routine work card?

A. In this particular case, they would travel together

through the paperwork flow.

Q. And did you audit this non-routine work card?

A. Yes.

Q. What is it that you audited?

A. Again for signatures and completeness.

Q. Did you find it to be complete?

A. Yes.

Q. Did this non-routine work card reference the routine

work card?

A. Yes, it did.

Q. Can you read to us the words where that reference is

stated?

A. Oxygen generators per ValuJet card 0069 attached.

Q. And is there any other place on that document where

0069 is also referenced?

A. Yes, ma'am.

Q. Read us that.

 

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A. Remove and replace all cabin generators for ValuJet

card 0069.

Q. Is that where the pen is indicating?

A. Yes, ma'am.

Q. Now, if you could turn your attention please to

Government Exhibit 25, to Government Exhibit 26. Is there a

work card within Government Exhibit 26 that corresponds for

aircraft 803 to the same work card that you were just

discussing with regard to 802?

A. Yes, ma'am.

Q. Is this a photocopy of the routine work card 0069 for

aircraft 803?

A. Yes, it is.

Q. I'm placing this on the magnifier. Did you also audit

this work card?

A. Yes, ma'am. I did.

Q. Did you find it to have been fully executed?

A. I found all the required signatures on the card.

Q. Including item B?

A. Yes.

Q. What is item B?

MS. MOSCOWITZ: Objection. Speaks for itself.

THE COURT: Why don't you just incorporate it

into your question and ask him. It's before the jury and

you can say whatever your question may be.

 

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BY MS. HECK MILLER:

Q. Item B says, if generator has not been expended,

install shipping cap on firing pin. Caution, use caution

not to pull firing pin while disconnecting lanyards. Has

that item indicated as being completed on this work card?

MS. MOSCOWITZ: Objection. Calls for an opinion.

THE COURT: Can he see it? Was it was signed off

on by the mechanic that did the work.

THE WITNESS: Yes, sir, it was signed.

THE COURT: Okay. Next question.

BY MS. HECK MILLER:

Q. Do you know what an inspection item is?

A. An inspection item can be meant as a couple different

things, ma'am.

Q. Are there work cards that are not inspection items?

A. Yes.

Q. Is work card 0069, as it appears in Government Exhibit

25 and 26, such a work card?

A. Yes, it is not an inspection item.

Q. What about the non-routine work card that was

associated with 0069 in Government Exhibit 25?

A. That is an inspection item.

Q. What is called for to be inspected?

A. The removal of O2 generators per card attached.

Q. Has that removal been executed?

 

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A. There's a final inspection signature in the final

inspection box.

Q. Mr. Ramos, turning your attention to Government Exhibit

26, could you just turn it over and look at the very back of

it, the whole packet of papers. If you could pick up the

whole packet please. Is there something blue on the back?

A. Yes.

Q. Do you know what those blue things are?

A. Yes, these are receiving inspection documents from

SabreTech. This means that a quality control inspector, as

a component, came in to SabreTech, was inspected for correct

part number, serial number and some other criteria.

Q. Mr. Ramos, I would like to turn your attention for a

moment, please, to the non-routine work card that appears on

the very first page of Government Exhibit 25. Does your

name appear on that non-routine work card?

A. Yes, it does.

Q. Does it appear to the place that I'm pointing with the

pointer on the video screen?

A. Yes.

Q. And it says generated by Ramos. R-a-m-o-s?

A. Correct.

Q. Mr. Ramos, what role did you play with regard to

generating that non-routine work card?

A. That would have been written in error. I gave the work

 

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scope from ValuJet to the planner. Because I was the person

who actually gave him the work scope, he probably wrote my

name in there for that reason.

Q. If you could set aside Government Exhibit 25 and 26, I

would ask you to turn your attention to a point in time when

the project on the MD-80s had been completed at SabreTech?

When was the work on the MD-80s completed.

A. On all three, sometime in May, 1996.

Q. With the end of the project on the MD-80s, do you know

whether there was going to be any change in Valujet's on

site technical representatives at SabreTech in Miami?

A. Yes.

Q. What change did you know of?

A. Bill Simons was going to take a few days off, and he

was going to be reassigned. There were no aircrafts

scheduled for at least two to three weeks. So basically, I

was going to be left behind. There was no work, no

immediate work, but I would probably come back to assist in

acting as a technical representative on future work.

Q. Did you and Bill Simons have any discussions about his

transitions? -- Just tell us, yes or no, please.

A. Yes.

Q. Did there come a time in early May 1996, when you had a

particular meeting or discussion with Bill Simons?

A. Yes.

 

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Q. When did that meeting or discussion take place?

A. Just before his departure he wanted to walk around and

show me where all the --

MS. MOSCOWITZ: Objection.

BY MS. HECK MILLER:

Q. If you could just tell us when the discussion took

place?

A. May 9 or May 10 of 1996.

Q. That being Thursday, May 9 or Friday, May 10, if you

recall?

A. Correct.

Q. This discussion that you had with Bill Simons, was

anyone else present?

A. Not initially.

Q. Where did you and Mr. Simons have your initial

discussion?

A. We started touring the facility. He wanted to show me

--

Q. Please don't tell us again what it was that Mr. Simons

had been telling you. I just wanted to know when that first

discussion was and where.

A. We started in the office, and I think it was midday or

early that morning, some time mid-morning.

Q. Following your discussion with Mr. Simons, did you and

Mr. Simons do anything?

 

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A. Yes.

Q. What did you do?

A. Again, we proceeded to walk around the facility.

Q. What facility?

A. The SabreTech facility.

Q. Did you go to a particular part of the SabreTech

facility?

A. Yes, ma'am, we went to several different parts of the

facility.

MS. MILLER: Your Honor, if I might have a

moment. I am looking for a particular layout chart. May I

ask the witness to step down and show us on the chart where

is the area that you walked around with Mr. Simons.

BY MS. HECK MILLER:

Q. Mr. Ramos, if you could hold this microphone and use

this pointer to just tell us the areas that you walked

around, and then I'll ask you to take your seat and describe

it in a little bit more detail.

A. We started on the third floor and unfortunately, you

can't see that here. But the third floor of the hangar

would be in this area, right above this area here.

Q. Where did you go from there?

A. From there, we proceeded down to the mezzanine area

where the new parts were in this area here.

Q. Where did you go from there?

 

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A. From there, we went downstairs and went to the storage

area, right at the shipping and receiving is where we ended

our tour.

Q. Thank you. If you could resume your seat, please. On

the first part of your walking around on the third floor

with Mr. Simons, where did you go? What did you do?

A. We went up to the third floor, it was full of galley

equipment that was removed off the aircraft, as well as new

galleys.

Q. Whose galley equipment was this?

A. Valujet's galley equipment.

Q. Did you proceed further in your walk around?

A. Yes, after we took a quick look at what was upstairs we

proceeded down to the second floor mezzanine area where new

parts are stored.

Q. Was there any particular area of the mezzanine that you

went to?

A. Yes, the ValuJet lock up area.

Q. What was the ValuJet lock up area?

A. Two areas behind a chain link fence with a lock that

contained new or serviceable ValuJet components.

Q. Did you go into this locked up area?

A. No, we did not go inside the lock up area. We were

outside looking in.

Q. How is it that you were able to look in?

 

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A. It's a chain link fence. You can look through.

Q. Did you see items in there?

A. Yes, ma'am.

Q. Did you see any oxygen generators?

A. I did not see any oxygen generators in the lock up

area. I did see a box of new parts that was just outside

the lock up area. It appeared that there might have been

some O2 generators. I know it was new material because it

was new wrapping, but I don't remember exactly if there were

O2 generators in there.

Q. After you had been on that lock up area on the

mezzanine, where did you go?

A. We proceeded down to the shipping and receiving area

where the unserviceable parts are kept for the various

airlines doing work at SabreTech, including ValuJet.

Q. Did you view any items there?

A. No, before we actually looked at any items the place

was pretty busy. I've been there before, because I have

been at the facility for over a year, I knew more or less

what was back there from previous projects. I knew it was

unserviceable material. Plus Bill and I, in our walk around

had had --

Q. Please don't tell us what you and Bill concluded.

On the first floor, did you encounter any

SabreTech personnel?

 

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A. Yes.

Q. Whom do you encounter?

A. Bill Corral. (phonetic)

Q. Who is Bill Corral?

A. He is responsible for purchasing, stores, shipping and

receiving.

Q. For which company?

A. SabreTech.

Q. Did you and Mr. Simons have any discussion or

conversation with Bill Corral?

A. Yes.

Q. Who was present?

A. Mr. Bill Simons and myself.

Q. And who else?

A. Mr. Corral.

Q. What did you say to Mr. Corral or Mr. Simons say to

Mr. Corral, and did he say to you?

MS. MOSCOWITZ: Objection. Hearsay as to

Mr. Corral.

THE COURT: This is in the presence of the

SabreTech clients? You're asking for a limiting

instruction as to the two individual defendants?

MS. MOSCOWITZ: Yes, sir.

THE COURT: Ladies and gentlemen, you may

consider this with respect to the corporate entity

 

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SabreTech, but not as to the individual defendants. Go

ahead and answer the question.

BY MS. HECK MILLER:

Q. Do you recall the question?

A. Yes. Before we arrived to that storage or shipping and

receiving area, I had mentioned to Bill, "Gee, Bill, there's

a lot of material --

Q. Are you talking about Bill Simons or Bill Corral?

A. Bill Simons.

Q. Please don't tell us what was said to Bill Simons, that

was outside of this discussion. Do you understand my

instruction? What was said in the discussion that you had

when Bill Corral was there as well, do you understand?

A. Yes.

Q. Could you please tell us what was said in that

discussion and by whom?

A. I spoke to Bill Corral and explained to him that we had

a lot of material at the SabreTech facility and that an

inventory would be warranted. I asked him not to ship

anything at this time, that we would first do an inventory

of all the stuff, and I would try to get ValuJet people from

their storage and purchasing people, to come down to Miami

and do the inventory.

Q. Was anything discussed about the box that you had seen?

A. I mentioned that there was a box up there that should

 

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be put into lock up area that there were new parts.

Q. Was there any discussion concerning exchange parts?

A. Yes, I believe that Bill Corral said that they had a

handful of exchange parts that needed to be shipped to

vendors.

Q. What is an exchange part?

A. The best way to describe it is if you go to Sears and

you buy a battery, Sears will discount that new battery if

you give them your old one.

Q. Where then are exchange parts sent?

A. They are sent back to the vendor that SabreTech had

purchased the new part from.

Q. Anything else about this conversation in the presence

of Bill Corral that you recall?

A. No, ma'am, not at the time.

Q. Did you have a subsequent conversation with Bill Corral

after the one that you told us about but before May 11,

1996, the day of the crash?

A. Yes, after that conversation I went back to the office

and I called Fred Whatley, who was the director of

purchasing for ValuJet.

Q. Without telling us what you said to Whatley or what

Mr. Whatley said to you, Mr. Whatley of ValuJet, did you do

anything as a result of that conversation?

A. No, because I could not get a hold of Mr. Whatley at

 

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that time.

Q. Did you get a hold of him eventually?

A. Yes, I left a voice mail at that time and later on, I

did speak to him.

Q. After you eventually spoke to Mr. Whatley, did you do

anything as a result of your conversation with Mr. Whatley?

What did you do?

A. Went downstairs and had another conversation with Bill

Corral.

Q. Who was present at that conversation?

A. I believe Mr. Simons was also present at that

conversation.

Q. What was said in this conversation and to the best of

your ability, please tell us who said what thing?

A. I think both -- well, I told him that.

Q. You told whom?

A. I told Bill Corral that SabreTech personnel was not

immediately available to do the inventory, but that I was

given the permission to hire outside people to go ahead and

do the inventory.

Q. What did Mr. Corral say in response?

A. That that wasn't necessary. That SabreTech's afternoon

shift can perform the inventory.

Q. What, if anything, did you reply?

A. I said that would be okay.

 

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Q. What, if anything, was said about shipping anything

out?

A. There was no mention of shipping anything out at that

time.

Q. What, if anything else, was said in the conversation to

the best of your recollection?

A. Ma'am, I don't remember anything else at that time.

MS. MILLER: If I may have a moment, Your Honor.

THE COURT: Yes.

MS. MILLER: No further questions.

THE COURT: Mrs. Raskin?

CROSS EXAMINATION

BY MS. RASKIN:

Q. Good afternoon, Mr. Ramos. My name is Jayne Raskin and

I represent SabreTech.

You testified on direct examination about the

definition of hard time parts and life limit parts. Do you

remember that, sir.

A. Yes, ma'am.

Q. I believe you said a hard time part is a part with

respect to which the manufacturer has set a limit for

overhauled, meaning you have to remove that part and have it

overhauled before it can be returned to service?

A. A hard time can also be a life limited part but, yes.

Q. You gave a separate definition for life limit?

 

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A. Yes, but it's also interchangeably.

Q. If you would just answer my questions, first then we

will get to the interchangeability. A hard time part is a

part that a manufacturer sets a time limit on and can be

overhaul, isn't that correct?

A. Yes.

Q. A life limited part has a more specific definition, it

means that the part must be removed or discarded, isn't that

right?

A. Yes.

Q. You testified that they can be used interchangeably?

A. Unfortunately, people use it interchangeably.

Q. Well, you use it interchangeably, is that correct?

A. I do not usually use it interchangeably. A life

limited part is a life limited part, but it has a hard time

limit.

Q. The fact is, Mr. Ramos, that these are very specific

terms that have very specific meanings in the aviation

maintenance industry, isn't that correct?

MS. MILLER: Your Honor. This has been asked and

answered.

THE COURT: Yes, and you're eliciting opinions

from what is otherwise a lay witness and he's not been

qualified to express these types of opinions. So --

MS. RASKIN: Sir, I'm just questioning him about

 

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what he testified to on direct.

THE COURT: Well, I know that. But if you had

objected to the opinion type testimony, I would have

sustained it then. But we are not in a traffic case,

where people sit back and let these people say anything

they want to say, without being qualified as experts and

able to express opinions.

Ladies and gentlemen of the jury, factual

witnesses are here to give you facts on what they said and

did. They are not here to express opinions. This man was

an employee on the job. His testimony, he can tell us

whatever happened, whatever he heard, conversation, but his

opinions about these things, now they were elicited, and

now Ms. Raskin has the opportunity to go into this to some

limited degree.

You can argue that to the jury and there's no

difference in that and what he said on his direct

examination that I discern. So why don't we move into a new

area.

BY MS. RASKIN:

Q. Mr. Ramos, you testified that you do hold an A and P

certificate?

A. Yes, sir.

THE COURT: That's what he said.

BY MS. RASKIN:

 

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Q. And you have for 20 years?

A. Since 1977.

Q. Since that time you have been involved continuously in

the aviation industry in various capacities, isn't that

correct?

A. If you include going to the university, yes.

Q. Prior to the ValuJet crash, sir, did you receive any

training in hazardous materials?

A. No, ma'am. I've never received any hazardous materials

training in my career.

Q. And prior to the crash, have you had any occasion to

work with oxygen generators?

A. No, ma'am.

In fact, prior to the crash you didn't even

realize that they got hot when they were activated, is that

correct, sir?

A. This is correct.

Q. You said you were the tech rep at SabreTech during the

period that the MD-80s were being modified?

A. No, ma'am, I was one of the tech reps and I was

responsible for paperwork.

Q. You were one of three tech reps?

A. Yes, and later on, there were several others.

Q. You were one of the three tech representatives on site

during the time the MD-80s were being modified, is that

 

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correct, Mr. Ramos?

A. Yes, sir.

Q. The other two being Mr. Simons and Mr. Dearcy?

A. Yes, sir.

Q. And you were in charge of the paperwork, that was your

job?

A. I wasn't in charge of the paperwork but I dealt with

the paperwork, yes.

Q. That was a full-time job for you?

A. Yes.

Q. Your job was from 7 in the morning until 5 in the

evening, is that correct, sir?

A. Most of the time, but sometimes I would work later

hours.

Q. And you generally worked 7 days a week, didn't you,

Mr. Ramos?

A. This is true.

Q. How about Mr. Simons, what was his responsibilities as

a tech rep?

A. He was more of a --

MS. MILLER: Your Honor, I object. This is

outside the scope of the direct.

THE COURT: I think he's been asked questions on

direct about Mr. Simons' responsibility and what he

observed. The last question was what was his

 

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responsibility as a tech rep.

THE WITNESS: He was the lead tech rep. He was

downstairs observing the work, and he assisted with parts

and many other logistical things.

BY MS. RASKIN:

Q. He spent most of his time down on the floor, is that

right, sir?

A. That's correct.

Q. And by that I mean on the first floor of the facility

where the aircraft are?

A. That's correct.

Q. And his job was to walk around the aircraft, talk to

the mechanics and talk to the supervisors, etc.?

THE COURT: Wait just a minute. Now we are

getting way off into opinions and things like that. You

can ask him what he observed him doing, or what he saw him

doing, or if he was present when he had conversations that

they discussed that's not otherwise objected to as hearsay.

But just this generalization, I have to sustain that

objection.

BY MS. RASKIN:

Q. During the time period the modifications were going on,

Mr. Ramos, did you have occasion to observe what Mr. Simons

did during the day?

A. Yes, ma'am.

 

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Q. And what did you observe him to do?

A. He would basically walk around the aircraft, observe

mechanics, observe the supervisors. He would try to help to

solve problems that may occur, questions that may occur. He

would get involved in parts, when somehow parts were not

available and SabreTech was unable to get them, he would try

to contact ValuJet so they could get the parts.

Q. Mr. Simons also worked full days, did he not, sir, 7 to

5 or longer?

A. Yes.

Q. Did you also observe that Mr. Simons was frequently at

SabreTech 7 days a week during this period of time?

A. Yes, ma'am.

Q. In your experience, Mr. Ramos, in the aviation industry

that's not unusual, is it?

A. No, ma'am, not at all.

Q. The conversation that you testified to that occurred

the day before the crash, I believe you said, involving

yourself, Mr. Simons and Mr. Corral. Where, sir, did that

take place?

A. That took place in the shipping and receiving area.

Q. Was anyone else present during that conversation?

A. I don't remember anybody else being present, ma'am.

MS. RASKIN: Thank you. I have no further

questions.

 

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THE COURT: Ms. Moscowitz?

CROSS EXAMINATION

BY MS. MOSCOWITZ:

Q. Mr. Ramos, I'm Jayne Moscowitz, I represent Eugene

Florence.

Sir, the non-routine card that you described

stated remove and replace the following hard time

components, correct?

A. Can you please show the exhibit to me?

Q. Sure, it is in exhibit 25. Remove and replace hard

time components, and it refers to the oxygen generators,

right?

A. Is it okay if I see the actual exhibit?

Q. It's fine with me, sir. Take your time. The card says

hard time components, right?

A. Yes.

Q. And oxygen generators are not hard time components, are

they?

A. They are hard time components in the sense that they

have a hard time limit just like a life limit.

Q. They are not overhaulable, are they, sir?

A. No, ma'am.

Q. And that term is not correct, is it?

A. It's used interchangeably in the aviation industry.

Q. You said before, "regrettably, it's used

 

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interchangeably", didn't you?

A. Yes.

Q. And you didn't correct the card, right?

A. No.

Q. You audited the card and left it just the way it was

with the wrong information on it, is that correct?

No, ma'am. I don't think it's the wrong

information. Right here it says remove and replace all

oxygen generators for ValuJet work card 69.

Q. But the part we are talking about, is the hard time

component?

A. They are calling it a hard time component, and again,

it's used interchangeably in the industry. The card says

all cabin oxygen generators per ValuJet work card.

Q. When you say they're calling it, this is a card --

A. This is a card written by SabreTech.

Q. This is a card audited by you in your capacity --

A. Only signatures and completeness.

BY THE COURT: Let her finish her sentence,

please. Let's start all over again. Ask your question,

please.

BY MS. RASKIN:

Q. This -- I'm sorry, Judge. This was a card audited by

you in your technical capacity to audit the work cards for

correctness, correct?

 

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A. For signatures and completeness.

Q. But you had no responsibility to make sure that the

work was described accurately?

A. If I noticed something out of the unusual, yes, I would

have corrected it. But again, I see hard time component and

life limited part interchangeably used.

Q. Now sir, that none-routine card that you are looking

at, the one that says, 178, and the 69 work card, they

describe the same work, do they not?

A. Yes.

MS. MOSCOWITZ: Nothing further, Your Honor.

THE COURT: Redirect?

REDIRECT EXAMINATION

MS. MILLER: Your Honor, it's not redirect

examination. It's really a question that I should have

asked in direct. It's to explain an abbreviation. May I

ask that question?

THE COURT: Let me see if counsel has any

objection. Maybe you can show them what it is you are

talking about.

MS. MILLER: Your Honor, counsel objects.

THE COURT: You wish to recall him for the

purpose of asking one question, is that correct?

MS. MILLER: Yes, sir.

THE COURT: All right. Motion granted. And you

 

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will have an opportunity to cross, counsel.

BY MS. HECK MILLER:

Q. Mr. Ramos, I'm showing you a work card that contains

I.A.W., are you familiar with that abbreviation?

A. Yes, ma'am.

Q. What is does it stand for?

MS. RASKIN: Objection.

THE COURT: What is your objection?

MS. RASKIN: The document speaks for itself.

THE COURT: Overruled. What do they stand for?

THE WITNESS: In accordance with.

MS. MILLER: Thank you, Your Honor. I have no

further questions.

THE COURT: You may step down.

Ladies and gentlemen, let's take about a five or

ten minute recess, please.

[There was a short recess].

COURTROOM DEPUTY: All rise. Court is in

session.

THE COURT: All right, bring in the jury please.

[The jury returns to the courtroom].

THE COURT: Thank you. Be seated. Your next

witness, please.

MR. BRIGHAM: United States calls Mr. Mark

Gentile.

 

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COURTROOM DEPUTY: Raise your right hand, please.

Do you solemnly swear the testimony you are about to give

will be the truth, the whole truth, and nothing but the

truth, so help you God?

THE WITNESS: I do.

COURTROOM DEPUTY: State your name please. Spell

your last name.

THE WITNESS: Mark James Gentile, G-e-n-t-i-l-e.

MARK GENTILE, GOVERNMENT'S WITNESS, SWORN.

DIRECT EXAMINATION

BY MR. BRIGHAM:

Q. Mr. Gentile, where do you presently work?

A. With the Federal Aviation Administration, the Civil

Aviation Civil field office in Orlando.

Q. Feel free to bring the microphone close to you so

everybody can hear you. What is your position with the FAA?

A. I'm a Special Agent with responsibilities in

investigation and inspections of our hazardous materials

program.

Q. What department is the Federal Aviation Administration

part of?

A. Department of Transportation.

Q. In the area of hazardous materials, what are the

responsibilities of the Department of Transportation?

A. It --

 

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MS. RASKIN: Objection.

THE COURT: Yes?

MS. RASKIN: Foundation.

THE COURT: All right. You are asking him for an

opinion about the responsibilities of a large government

agency. Establish that he is a qualified expert, and

tender him for voir dire, and we will see where we'll go

from there.

MR. BRIGHAM: Thank you, Your Honor. I think

I'll proceed from there.

BY MR. BRIGHAM:

Q. Sir, where were you in May of 1996?

A. I was at the Federal Aviation Security field office in

Miami.

Q. What were your responsibilities there?

A. My main responsibilities was our hazardous materials

program. I was again, a Special Agent.

Q. Sir, were you ever called upon to participate in an

investigation after the ValuJet crash on May 11, 1996?

A. Yes, I was.

Q. What was your role during that investigation?

A. I was to perform -- well, there was a possible

violation of civil law involving the hazardous materials

regulations, and I was going to do an investigation.

Q. Sir, as part of your investigation -- let me stop.

 

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MR. BRIGHAM: Your Honor, I am going to address

an area where I believe a limiting instruction will be

appropriate with respect to the corporation and the

individual defendants.

BY MR. BRIGHAM:

Q. As part of your investigation, did you interview an

Andrew Salis?

A. Yes, I did.

Q. Who is Andrew Salis?

A. He was the shipping clerk for SabreTech.

Q. When you interviewed him, where was he working?

A. At SabreTech in Miami.

Q. In what capacity were you interviewing him?

A. As an FAA Special Agent doing an investigation.

Q. I would like to direct your attention to May 14 at

approximately 9 a.m. Did you interview him then?

A. Yes, I did.

Q. How did that interview commence?

A. I introduced myself. I told him who I worked for and

who I was. And that I needed some information from him. I

had a copy of a shipping ticket. I wanted to find out what

five boxes of oxy canisters empty were.

Q. I would like to show you what has been marked as

Government Exhibit 18F1.

Do you recognize that?

 

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A. Yes, I do.

Q. What is that?

A. This seems to be an original copy of the copy that I

had.

Q. Now, what did you ask Mr. Salis?

A. I asked him on the description, what were five boxes of

oxy canisters empty.

Q. What did he tell you?

MS. MOSCOWITZ: Objection. Calls for hearsay and

for a limiting instruction with respect to Mr. Florence.

THE COURT: Mr. Salis was a shipping clerk for

SabreTech?

MS. MOSCOWITZ: Yes, sir.

THE COURT: This is a question of one of the

parties or the parties' representatives in this case. That

is not hearsay. The objection is overruled.

MS. MOSCOWITZ: Your Honor, it's after the time

of the accident.

The COURT: I beg your pardon.

MS. MOSCOWITZ: It's after the time of the

accident.

The COURT: I know, but the events occurred prior

to the accident, and that's what's being investigated. The

shipping ticket was filled out before the accident. The

objection is overruled. Are the individual defendants

 

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named in Count I, the alleged conspiracy?

MS. MOSCOWITZ: Yes, Your Honor.

The COURT: The objection is overruled. What did

you say to Mr. Salis about that document and what did he

say to you, if anything?

The WITNESS: Mr. Salis did not know exactly what

oxy canisters empty were, but if I gave him a few minutes

he could find out. He called somebody and the lady came

down with a rather thick file, and they both went through

it until they found a purchase order with an attached

declaration of hazardous materials attached to it. He told

me that was the particular nomenclature for the marked

canisters.

BY MR. BRIGHAM:

Q. I would like to show you Government Exhibit 49B. Do

you recognize that document?

A. Yes, I do.

Q. What is it?

A. That is the shippers declarations for dangerous goods

which is attached to the purchase order which Andrew Salis

showed me that that's what he believed were the oxygen

canisters.

Q. That is the document itself?

A. The is the document itself.

MR. BRIGHAM: Move to admit, Your Honor.

 

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MS. MOSCOWITZ: Objection.

The COURT: I beg your pardon. I can't hear you

when you're sitting down. Did somebody speak?

MS. MOSCOWITZ: Objection, Your Honor.

Foundation and whether it's admissible against us after the

time of the document.

BY the COURT:

Q. The document was handed to you in the interview by

Mr. Salis?

A. Yes.

The COURT: Objection overruled. It's admitted

into evidence as Government Exhibit 49B.

[Government Exhibit 49B received in evidence].

BY MR. BRIGHAM:

Q. I would like to direct your attention to May 15, early

in the morning. Did you have a subsequent telephone

conversation with Mr. Andrew Salis?

A. Yes, I did.

Q. Did you then have a subsequent conversation with him on

May 15, later that morning at 8:30?

A. Yes, I did.

Q. Substantively was everything said in the early morning

conversation repeated during the conversation on May 15 at

8:30?

A. Yes, it was.

 

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Q. With that, I would like to direct your attention to

that conversation you had with them on 8:30 on May 15. What

did Mr. Salis tell you during that interview?

MR. DUNLAP: Objection. May I have an ongoing

objection?

The COURT: All right. Overruled. Answer the

question.

The WITNESS: He told me that he had the oxygen

canisters in question and he had five boxes of them. He

believed there were 10 to 20 in each box. He had taken the

five boxes, placed bubble wrap on top of the boxes, sealed

the boxes with tape. He then put labels on each box which

he labeled co-mat, ValuJet co-mat, and that stands for

company material. He indicated on the label that it was

the aircraft parts.

He then had another worker at SabreTech, I

believe his last name was Diaz, fill out the shipping

ticket. He instructed Diaz to put five boxes of oxy

canisters on the shipping ticket and empty also. I

inquired why "empty" and he told me that they had a green

unserviceable tag attached to the oxygen generators. He

believed that they were empty.

Along with the five boxes of oxy canisters, he

also told me that he put three tires and tire assemblies

also. I believe he said that that was done approximately

 

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May 8.

On May 11, he instructed another SabreTech

employee, Mitchell Perez, I believe it was, to deliver the

five boxes to ValuJet along with the three tires.

BY MR. BRIGHAM:

Q. Where did he say he was shipping those boxes?

MS. MOSCOWITZ: Objection.

MS. RASKIN: Objection.

The COURT: This is still Mr. Diaz? Who is

speaking at the time?

BY MR. BRIGHAM:

Q. Who is speaking at the time?

A. Andrew Salis.

The COURT: All right. You may answer the

question. Overruled.

The WITNESS: Andrew Salis, along with the co-mat

label, also labeled each box as shipped to ValuJet,

Atlanta, Georgia.

I also asked Mr. Salis if he had ever had any

training in hazardous materials. He had said, he had not,

not at SabreTech but he had in 1989 but it was just a

limited amount of training.

BY MR. BRIGHAM:

Q. What, if anything, did he say with respect to labeling

the box as hazardous material, the boxes as hazardous

 

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materials?

A. I asked him specifically if he had shipped the box as

hazardous material or dangerous goods, and he said he had

not.

Q. Did there come a time that you returned to SabreTech on

May 16, 1996?

A. Yes.

Q. What parts of SabreTech did you view at that time?

A. The shipping, receiving area and the stores areas.

Q. I would like to show you what has been admitted as

government exhibits 61, 62 and 63. Do you recognize what

these are?

A. Yes, I do.

Q. What is 61?

The COURT: Well, they are all in evidence and

the jury knows what they are. If he recognizes them I

think that is the point you are trying to make.

BY the COURT:

Q. Was this all part of the SabreTech facility out there?

A. Yes, it is, Your Honor.

BY MR. BRIGHAM:

Q. Did you take those photographs?

A. Yes, I did.

Q. On what date?

A. May 16th, 1996.

 

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Q. Had you visited SabreTech two days earlier on the 14th?

A. Yes, I had.

Q. Had you viewed these areas on that date?

A. Yes, I did.

Q. How did these photographs correspond to how those parts

of SabreTech looked on May 14?

MS. RASKIN: Objection.

The COURT: Sustained.

BY MR. BRIGHAM:

Q. When you were at SabreTech, how did the shipping and

receiving area look on May 14?

A. Pretty much similar to what I have here in the

photographs as it was on May 16.

Q. Now, I would also like to show you what has been

admitted as Government Exhibit 48 A and B. Do you recognize

those?

BY the COURT:

Q. Did you take those photographs?

A. Yes, Your Honor, I took these photographs.

Q. Do they truly represent what they are to be?

A. Yes.

The COURT: Next question.

BY MR. BRIGHAM:

Q. When did you take those photographs?

A. I took them off the storage facility at SabreTech.

 

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The COURT: The question is when.

The WITNESS: May 16th, 1996.

BY MR. BRIGHAM:

Q. Did you have an opportunity to examine what are in

those boxes, that are depicted in government 48A and B?

A. Yes, I did.

Q. What did you see?

A. Oxy generators that were in the manufacturer's

packaging.

Q. Describe the packaging.

A. It was a cardboard type of a cardboard sleeve with the

oxygen generators attached with wrapping.

Q. What labels, if any, did you observe on those oxygen

generators?

A. These oxygen generators had a yellow warning label on

the generator itself.

Q. I would like to show you what has been admitted as

Government Exhibit 30E.

Do you recognize the label on that?

A. Yes, I do.

Q. What is it?

A. It's the same label that I saw on the oxygen generators

which were in the manufacturer's packaging.

Q. What shipping caps, if any, did you observe on the

oxygen generators in those boxes depicted in government

 

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Gentile - Direct 193

 

exhibits 48A and B?

A. They had shipping caps in place.

Q. On that date, May 16th, 1996, did you observe any other

oxygen generators?

A. Yes, I did.

Q. I would like to show you what has been marked as

Government Exhibit 43A and B.

The COURT: Are these for identification or are

these all the exhibits?

MR. BRIGHAM: These are for identification.

The COURT: What are their numbers?

MR. BRIGHAM: Government Exhibit 53A and 53B.

The COURT: All right. 53A and 53B for

identification. All right, you're showing the witness.

BY MR. BRIGHAM:

Q. Do you recognize those?

A. Yes, I do.

Q. Do you recognize what has been depicted in those

photos?

A. Yes, I do.

Q. Do those pictures fairly depict what are in those

photos?

A. I believe so, yes.

Q. Move to admit.

MS. RASKIN: No objection.

 

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The COURT: They are admitted into evidence as

Government Exhibit 53 A and B.

[Government Exhibits 53 A and B received in evidence].

BY MR. BRIGHAM:

Q. You took those photographs?

A. Yes, I did.

Q. When did you take them?

A. May 16th, 1996.

Q. What do the pictures show?

A. They show the ValuJet Aircraft stores area, parts area,

and the shipping and receiving department in SabreTech.

Q. What caps, if any, did you observe on those?

A. Both oxy generators had caps.

Q. I would like to direct your attention to May 21, 1996.

Did you return to SabreTech as part of your investigation?

A. Yes, I did.

Q. Did you find additional oxygen generators on those

days?

A. Yes, I did.

Q. Where did you find them?

A. Above the storage area, there's a second floor to it at

SabreTech.

Q. I'll show you what has been marked for identification

as Government Exhibit 53C. Do you recognize that?

A. Yes, I do.

 

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Q. What is it?

A. These are five oxygen generators that I found in the

storage area on the second level.

Q. Now, what safety caps or shipping caps, if any, did you

view on those oxygen generators?

A. There were no caps on these generators.

Q. Now, sir, as part of your investigation, did you ever

go to the Tamiami Airport hangar?

A. Yes, I did.

Q. What was the reason for going there?

A. To view and to examine the oxygen generators that were

retrieved from the crash site.

Q. Why did you go to the hangar at the Tamiami Airport?

THE COURT: The question that starts with "why"

always ends up with his mental process or opinion. Why did

you do something, and then he tells us his opinion.

BY THE COURT:

Q. You went out to Tamiami and when you got there, you

looked at oxygen generators taken from the crash site, is

that right?

A. Yes, Your Honor.

Q. What did you see?

A. Well, I went several times. On three occasions, I

examined the oxygen generators.

Q. Do you know the approximate dates?

 

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A. Yes, I do.

Q. What were they?

A. May 2, June 3 and June 10.

THE COURT: Thank you.

BY MR. BRIGHAM:

Q. With respect to your visit on May 28, I would like to

show you what has been marked as Government Exhibit 54A

chart. Do you recognize this?

A. Yes, I do.

Q. What is it?

A. Those are the oxygen generators that I examined on May

28 at the Tamiami hangar.

Q. Do these photographs fairly and accurately represent

the generators that you examined?

A. Yes.

MR. BRIGHAM: Move to admit.

BY THE COURT:

Q. Who took the picture?

A. I had, at my direction, I had a college intern with me

at that time. He had --

Q. He took it under your direction?

A. Yes.

Q. Is it accurate and correct?

A. Yes, it is.

THE COURT: Any objection?

 

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MS. RASKIN: I would object to relevance without

clear foundation.

THE COURT: The objection as to relevancy is

overruled. The foundation, the picture was taken at his

direction. Overruled. What is the number for

identification?

MR. BRIGHAM: It would be Government Exhibit 54

A.

The COURT: 54A for identification is admitted

into evidence as Government Exhibit 54A.

[Government Exhibit 54A received in evidence].

BY MR. BRIGHAM:

Q. With the Court's permission, I would like to ask you to

step down and explain to us what you saw.

THE COURT: Step down.

BY MR. BRIGHAM:

Q. If you could stand to the side for all members of the

jury, I will give you the pointer. Explain to us what these

three photographs depict.

A. Well, the middle photograph here shows all three oxygen

generators that I viewed on May 28. The top one here is

just a close-up of one of them that shows the percussion

primer that initiates the oxygen generator.

The COURT: Agent Gentile, would you please use

the microphone that the marshal will hand you.

 

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The WITNESS: Should I recap?

The COURT: Please.

The WITNESS: The middle picture here shows the

three oxygen generators that I examined on May 28. The top

photograph is a close-up of one of those generators showing

the percussion primer, and that was my interest at the

time. I wanted to view the primer and to find out if it

had been --

BY MS. RASKIN: Objection.

BY MR. BRIGHAM:

Q. If you could just tell us what you saw and not tell us

what your purpose was.

Tell us what that top photograph depicts.

A. An unexpended oxygen generator, and the bottom

photograph is, as well, an unexpended oxygen generator.

Q. Was there a time that you returned to the Tamiami

hangar to observe other generators?

A. On June 3.

Q. These were generators recovered from the crash site, is

that correct?

A. Yes, they were.

Q. I would like to show you -- you may retake the witness

stand.

I would like to show you what has been marked as

Government Exhibit 54B through N B as in boy and N as in

 

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nice.

MR. BRIGHAM: Your Honor, for the record, I

believe three of these are already admitted, 54E, K and F.

The COURT: What are you offering now?

MR. BRIGHAM: I would be offering the remaining

exhibits between 54B and N.

The COURT: Could you give me their initials?

MR. BRIGHAM: 54B, 54C, 54D, 54G, 54H, 54I, 54J,

54L, 54M, and 54N. I will attempt to establish the

foundation for those.

The COURT: Are these photographs?

MR. BRIGHAM: Yes.

The COURT: Mr. Witness, did you take the

photographs or were they taken under your direction?

The WITNESS: Yes, Your Honor, they were taken

under my direction.

BY THE COURT:

Q. With the same young man you had assisting you before?

A. No, a different person.

Q. What dates were they taken?

A. June 3, 1996.

Q. Do they truly and accurately reflect the item that you

observed on that date?

A. Yes, they do.

The COURT: Any objection?

 

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MS. RASKIN: May I take a quick look at them,

Your Honor?

The COURT: Yes, certainly.

If this is not a too inconvenient time to break --

are there objections?

MS. RASKIN: The same foundation objection I did

before.

BY THE COURT:

Q. As I understand it, were you present when the

photographs were taken?

A. Yes, I was.

Q. And you directed somebody to take the photographs?

A. Yes, I did.

Q. And you can testify that they accurately portray what

they are suppose to be?

A. Yes, I can.

THE COURT: The objection is overruled. The

document is admitted into evidence.

[Government Exhibits 54B, 54C, 54G, 54H, 54I, 54J, 54L, 54N

received in evidence].

THE COURT: We have that other matter to take up

the afternoon. We are at the point where we have got a

bunch of photographs. Is it a convenient time to recess

for the morning?

MR. BRIGHAM: Yes, Your Honor.

 

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The COURT: Is it convenient? How much more? I

expect you have more to go with the witness?

MR. BRIGHAM: I do, Your Honor.

The COURT: If it's not inconvenient, we will

recess at the time. Agent, you are in the middle of your

testimony right now. You understand that you cannot talk

about your testimony with the other agents or witnesses or

lawyers or anything like that. We will see you tomorrow

morning at 9:00.

We appreciate your following the instruction I

just gave you. You are excused, and you may step down. Be

here a few minutes before nine.

Ladies and gentlemen, we have a matter to take up.

Ladies and gentlemen, all of you, we are going to recess for

the evening. We thank you very much for your promptness in

coming in here each morning. That helps us a lot.

We will ask you to remember the instruction not to

discuss the case with anyone in the night recess or permit

anyone to talk to you about the case. We ask that you not

read anything in the newspaper. If anything should be in

the newspaper, or look at anything in the newspaper or hear

anything on the radio, if there should be any reports in any

of those news media outlets.

If anybody should attempt to talk to you that is a

very serious offense, and I don't anticipate that happening,

 

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but report that to the marshal if it should happen. We will

see you tomorrow morning a few minutes before nine.

[The jury leaves the courtroom].

The COURT: Is Mr. Ostrow in the audience? Would

you step on up here. Just wherever you are comfortable,

just come up here, Jack. The jury has gone out. Everybody

be seated, please.

I've asked Mr. Jack Ostrow, an attorney-at-law,

practicing here since 1971. Mr. Ostrow was one of -- my

second law clerk. He has been here a while. He has been

practicing long enough to get rid of all the bad habits

that he learned in my office for that year or two.

MR. OSTROW: Two.

The COURT: I asked him to come over here on

short notice to fulfill the mission that we have discussed

here earlier about the juror who is having difficulty with

her employer. I have outlined briefly to Mr. Ostrow on the

telephone that the lady indicated that she had some concern

or worry about whether she was going to get paid.

Her employer had called her sometime last

weekend, I don't know just when, but he talked to her, he

is apparently a dentist, and he has indicated to her that

he needs her back. If she doesn't come back, she may not

get paid. I don't know what he said to her.

We have all agreed that a Court would appoint a

 

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lawyer to talk to her, to be, in effect, her lawyer on the

very limited minor matter, not to deal with whatever flows

hereafter, but to ascertain from her, on a confidential

basis, anything she cares to tell him about her problem and

to see if he can, perhaps, diplomatically talk to the

employer and work it out, or make a recommendation in open

court about what he learns or not what he learns, but

whatever he feels his recommendation should be, given the

state of mind of his "client" for the very limited specific

purpose.

Vicki, I'm going to ask you, since she knows you,

to go in with Mr. Ostrow to the jury room. We have asked

the lady to remain. Her name is Mrs. Ginnette Gonzalez, and

introduce Mr. Ostrow to her and then leave them alone. And

then, mainly I'm concerned about her mental state and

whether or not she is so concerned that she can't be giving

us her full attention, or is this just some little minor

action with her employer that she can straighten out in the

morning. We do have alternate jurors. But that should not

be a major concern, but you need to know that in evaluating

what to recommend to us.

Is there any problem with utilizing the procedure

that emanated with Judge Marcus? Judge Marcus' responsible

for hiring most of you, I think.

MS. MOSCOWITZ: No, Your Honor.

 

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MR. DUNLAP: No, Your Honor.

MS. RASKIN: No, Your Honor.

MS. MILLER: No, Your Honor.

THE COURT: If the jury room is cluttered or

dirty, you can bring them in and use one of my law clerk's

offices.

MR. OSTROW: May I ask, Your Honor, how long the

trial is anticipated to continue?

THE COURT: The trial was originally expected to

go six to eight weeks. Government estimate was four weeks.

That has been revised somewhat at least by Ms. Miller for

the government earlier today. She indicated that it may

not take the full original 20 days that she estimated.

Nobody is going to be held to this, just like you

weren't held to the original one, but your best estimate if

you can, Ms. Miller. Maybe you and Mr. Raskin could talk

privately with Mr. Ostrow. Just help him by giving him

some sort of an estimate of what you think. We will take a

recess. When you're ready, let us know, we'll reassemble.

Everybody else in the audience, all the hard working

newspaper people, or whoever they are can go home. The

rest of you have to stay.

COURTROOM DEPUTY: All rise.

MS. MOSCOWITZ: Your Honor, may Mr. Florence be

excused?

 

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The COURT: Yes.

Read those exhibits into the record, Vicki.

COURTROOM DEPUTY: Admit in evidence. 77E, 101,

49B, 53A, B, and 54A through N.

[There was a short recess].

COURTROOM DEPUTY: All rise. Court is in

session.

THE COURT: Everybody be seat. We resumed

without the jury being here. Mr. Ostrow has spent a half

hour with the lady, and it is a very simple problem. Would

you tell them and please use the microphone.

MR. OSTROW: They will be able to hear me, Judge.

THE COURT: Okay.

MR. OSTROW: I had a long conversation with her.

She is a very responsible young lady. Is mostly concerned

with her bills over the holiday versus problems with her

employer. His Honor has interceded to make sure that

she'll be paid for her jury service on a weekly basis.

That having been worked out, she is fine to stay here and

finish up the case.

THE COURT: Did she indicate that she can give

her undivided attention?

MR. OSTROW: Undivided full attention. She finds

it very interesting.

THE COURT: Even if her employer should occasion

 

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for the difficulties?

MR. OSTROW: No matter what her employer has said

to her she has resolved that, and that's not a problem.

THE COURT: So apparently she is a fine young

woman, and her major concern was this matter that Jack has

told me of being without a check for up to six weeks or

four weeks or something like that. So we can make those

arrangements for all of those jurors. Given this time of

year, there may be others that have a problem, and I'll

sign a requisite order to make sure they get paid or to

take care of any problems that any of them have with

respect to that. And that you feel will take care of that?

MR. OSTROW: Yes, Your Honor, that will take care

of it.

THE COURT: Your recommendation is that if we

take care of that matter that will be done?

MR. OSTROW: I recommend that having straightened

out weekly check problem and go on with your case she'll

give her full attention and keep her on the jury.

THE COURT: Thank you very much for coming over

on such short notice.

Any of you have questions?

MS. MOSCOWITZ: Not on this topic, Your Honor.

THE COURT: Are all of you satisfied with this?

Does it resolve the problem?

 

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MS. MOSCOWITZ: Yes, Your Honor.

MS. MILLER: Yes, Your Honor.

THE COURT: Is there something else,

Ms. Moscowitz?

MS. MOSCOWITZ: Your Honor, we have filed two

motions with respect to the proposed expert witness the

government may be putting on as soon as tomorrow morning. I

hope Your Honor has the motions. I thought I signaled them

to Your Honor. You might want to hear from us early in the

morning alas.

THE COURT: I have not seen them.

It's almost 6:00 in the evening and Robin has

been here a long time.

Ms. Kramerman has scheduled an 8:30 hearing not

realizing that I was going to be tied up.

Ms. Miller?

MS. MILLER: Judge, not withstanding that I

received these motions about forty minutes ago, even though

the defense has known for some time that I was going to

call this witness, I would prefer to address it as soon as

possible. The is our next witness. He is a time consuming

witness. The notion that we would not be able to know

until tomorrow morning whether we would be able to call him

is something very difficult for us to plan around.

THE COURT: I haven't read the motion, whatever

 

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it may be. You don't feel you need any time to reply to

it?

MS. MILLER: Your Honor, I always like time, but

I'm prepared to address it now.

THE COURT: You are prepared to address it now

without objection to it? You are willing to go ahead now.

All right. I will have them brought in.

As soon as they are brought in, I will read them

and we will go into the matter now.

MS. MOSCOWITZ: You don't want us to start

arguing until you have had an opportunity to examine them?

THE COURT: I think it would help for me to

glance through them. Are they lengthy?

MS. MOSCOWITZ: No, Your Honor, the case law goes

on a bit.

THE COURT: Is the issue -- does this deal with a

quote expert witness, unquote?

MS. MOSCOWITZ: Yes, sir, I could outline them

briefly.

THE COURT: All right.

MS. MOSCOWITZ: Your Honor, there are two

motions. The first is more sweeping and covers the witness

altogether. The witness the government proposes to call as

their expert is a retired employee, now contract employee

of McDonald Douglas, who made various observations

 

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regarding the crash scene and what caused the fire. He

made them as part of an NTSB group. He made them as part

of an investigative team assembled by the National

Transportation Safety Board.

He is opining to things in regards to the

National Transportation Safety Board reports which would be

inadmissible by the government if they were to seek to move

in those reports through the public records exception, and

they've gotten around it by -- or they seek to get around

it by getting a private party who actually was deputized

and was part of the government investigation. That's the A

motion.

The B motion is if he were to get to testify,

portions of his testimony should not be permitted. The

government seeks to play various video tapes of oxygen

generator tests. I can go through it after Your Honor

takes a look at it. But the FAA and the National

Transportation Board stated themselves that these tests

were not a reenactment of the ValuJet fire. That they had

a great number of dissimilarities. They have a shocking

noise to them.

But there is no connection between those tests

and what may have happened on the flight. Even if Your

Honor were to permit the expert to testify, we have moved

in limine not to have that particular portion of his

 

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testimony.

THE COURT: The difficulty I have is knowing what

it is he is going to say. I think we probably are in

agreement, although Ms. Miller will tell us, I would think

that we are all in agreement that there's not to be a

reference to the NTSB report.

I'm not sure there might not be things that would

be properly admissible into evidence concerning things that

were seen or observed by somebody who investigated the

crash site.

For example, that's why it's so hard to deal with

these matters without hearing what the person is going to

say. But I can foresee a situation where somebody, an

investigator for the National Transportation Safety Board

went out to the crash scene and comes back and describes

something he saw that is pertinent to the cause of the

crash. I don't know what it would be, and I can't make

something up. But that might be evidenced by a lay

witness, not opinion. But you know, if he says, I went out

there, and I for example, measured the marks on the ground

and this plane after it first touched the Everglades

traveled 100 yards, or whatever, making up something, that

would be a fact within the knowledge of the person that

might be relevant to the cause of the crash. It might not

be. But I think it would admissible and then you all argue

 

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the weight to be given to the jury.

On the other hand, if a person is going to get on

a stand and say, I sat there for three days with Doctor

Smartbolt and Doctor Genius and Doctor so and so, and we all

figured this thing out and here's what happened. They can't

do that.

MS. MOSCOWITZ: That's what I believe is going to

happen. In the civil litigation I attended two days worth

of a deposition of this man, and he is being offered as an

expert on those topics by the government, and that is what

I think they propose to do by tendering him as an expert.

I think Your Honor is exactly right. If he wants to say

this was charred and that was charred, and this is this

long, that's fine. But when he opines that oxygen

generators started this fire he is doing that solely as a

result of his participation in the government investigation

to which he was deputized.

THE COURT: I don't think, and I'm going to hear

from Ms. Miller, but I don't think that simply because he

was a deputized member of the team that investigated that

he is barred from being a witness. If he has unique

information about it being similar to, I think, the

defendant corporation sending investigators out to see if

they could ascertain what was at the scene of the crash or

whatever. So describing things factually I don't have any

 

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difficulty with.

I don't think they are barred simply because they

were retained by SabreTech or retained by NTSB. I don't

think that that bars them from being considered a fact

witness and perhaps not as an expert witness, but I'm not

sure, as I've indicated to all of you throughout this whole

trial from the time it was filed, I'm not sure that expert

opinions are going to be relevant here unless it is to

explain something that is otherwise not within the logical

reasonable knowledge of the common juror. If you've got

that, and you bring in one expert for the government saying

SabreTech caused the crash, or the FAA caused it or saying

John Jones caused it. I made that up.

In any event, that's not going to wash. But I

have to know what it is that is proposed. Maybe the

simplest and the best way would be to see if we could

obtain a proffer from the government. The difficulty with

that is the minute that you analyze a proffer and make a

ruling then all of a sudden four more factors jump out of

the wall or the woodwork.

The only real way to get a proffer on a critical

witness who is proffered as an expert is really to listen

to him outside the presence of the jury, and then the

proffer, when he is finished is there. Whatever it is,

it's there.

 

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It may be that some of the concerns that you have

is Ms. Miller has anticipated and doesn't plan to get into

that or whatever, and if so, it may be that we can simplify

this and may not.

Ms. Miller, do you mind giving us a sort of a

brief run down of what it is? First of all, are you

planning to use this man or try to qualify him as an expert,

and if so, in what field, what subject?

MS. MILLER: Yes, Your Honor. If you give me a

moment to get my notes please.

THE COURT: Certainly. Take your time.

MS. MILLER: Your Honor, the government intends

to call as a witness in this case Larry Fogg. We do not

intend to elicit from him the conclusions of the NTSB, as

counsel has projected. Mr. Fogg has an extensive

professional history, which I won't recount, but suffice to

say he is basically a 35 year history of working in the

area of electrical engineering issues and aircraft

in-flight fires, has participated in many investigations of

aircraft fires, and we believe that there is certainly

sufficient background in his curriculum vitae, which I'm

not going to detail here.

For him to testify with regards to opinions

concerning aircraft fires, particularly post-incident

examination of aircraft hardware and documentation of heat

 

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damage, impact damage, mechanical failures, electrical

failures, and fire damage patterns and aircraft accidents.

THE COURT: Now, let's see if we can, I want to

know because this is usually the answer to the ultimate

questions about experts. You are suggesting that he is --

just a minute, let's see, an expert on incident examination

of aircraft hardware.

MS. MILLER: That's part of it, Your Honor.

THE COURT: Just a minute, please. Now, then

I'll let you modify or change this, but you say that

Mr. Fogg is an expert on incident examination of aircraft

hardware in relation to aircraft crashes or disasters,

documentation of heat damage, expert on impact damage,

expert on mechanical failures incident to airplane crashes

and an expert on fire patterns and aircraft accidents. Was

that generally or ninety percent?

MS. MILLER: Almost, Your Honor. An expert in

aircraft fires particularly post-incident examination of

aircraft hardware and documentation of heat damage, impact

damage, mechanical failures, electrical failures and fire

damage patterns in aircraft accidents.

THE COURT: Electrical incidents, aircraft fires

particularly in what?

MS. MILLER: Particularly post-incident

examination. It just means after the crash. Post-incident

 

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examination of aircraft hardware and documentation of heat

damage, impact damage, mechanical failures, electrical

failures and fire damage patterns in aircraft accidents.

THE COURT: All right. Now, then so you propose

to call Mr. Fogg and establish what he has reviewed or seen

of this accident, the hardware, the crash site, the crash?

MS. MILLER: Yes, Your Honor. He was at the

crash site. He participated in gathering wreckage. He

participated in the process of sorting of the wreckage and

determining what parts of the aircraft it came from. He

participated in arraying the reconstruction fixture that

that was built. He participated in physically examining

the wreckage including electrical wiring. Based on those

examinations, I would be asking him to testify to certain

matters some of which involve terms not familiar to the

jury such as embrittlement as an element of fire and heat

damage. This is a condition that affects metal that loses

its flexible nature and becomes brittle due to the

application of extreme heat.

Other terms such as "broomstrowing."

Broomstrowing is the effect when a metal such as aluminum

is in a near molten state due to extreme heat and then

suddenly cools upon impact. Mr. Fogg will explain that.

Mr. Fogg will testify to the reassembly of this

reconstruction fixture and the determination of heat and

 

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fire damage on which parts of the airplane correspond to

this part of the fixture including in the forward cargo

hold of the aircraft.

THE COURT: So those are all, except for the

definition of the terms, those are pretty much fact

statements, that is, I was there; I saw this; I picked up

that; I put it in a box; I saw there was picking of items;

I went to Tamiami Airport or wherever the reconstruction

hangar was, and I arranged them in a pattern; I did this

and I did that. Those are all facts that he could state,

it would seem to me. The definition of the terms then

would fall into qualifications as an expert.

Once you lay the predicate of showing he has the

requisite experience and background, scholastic achievement

or whatever, then you tender him. If they have any quarrel

with whether or not he is an expert in these matters, they

have a right to voir dire him to that extent. They, being

the defense, if they agree that he is an expert or agree

they don't question the fact that he is qualified as an

expert to express an opinion they may have a different

impression of what his opinion is. Then he would be

permitted to give a definition of terms and be asked an

ultimate question, ultimately I presume, if it be shown

that he had the opportunity to really examine all of these

factors and form an opinion and if he has an opinion as to

 

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what caused the fire.

What I was concerned about throughout this case

is somebody coming in and saying if John Jones signs off on

a work sheet that means SabreTech is guilty. I don't want

that kind of opinion. You see, that the jury can see.

So as I understand it, you are not intending to

simply telling the jury who is guilty and who is innocent.

You are intending to ask opinions within these fields that

you have enumerated involving the causes of the crash,

airplane crashes, fires, hardware, heat damage, impact

damage, mechanical failures and fire damage patterns.

Again, we can easily go through all of this. But

it takes us three hours to listen to it. If he is eligible

to testify it's got to be three hours more to the jury or

six hours or ten or whatever it is. So what I'm trying to

do here is get as complete a proffer as it is possible to

give late in the evening with having been called upon to do

this.

All right, I think I understand. Is there

anything further that you were going to get into with this

man?

MS. MILLER: Your Honor, it will certainly be

more lengthy and more detailed than what I described.

THE COURT: Obviously.

MS. MILLER: It will focus on the physical

 

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manifestations of fire and hire damage that he observed

illuminating those observations with any explanation he may

have to give as to some of these technical terms. I also

may ask him some questions like what temperature does

something melt, and that would call for his expertise.

That is the nature of his testimony.

THE COURT: You, of course, the government can,

of course, present this without reference to his background

as investigating it as an agent of the government if you

need to. But certainly in terms of evaluating credibility,

I presume that would come out if he testifies. That would

come out, in any event, on cross-examination. So I

certainly think the defense would want to bring out that

this man went out there as a paid employee of the National

Transportation Safety Board to show whatever bias that

would flow from that statement.

What I'm getting at is there's no sense in

limiting the government in showing why he was out there on

May, whatever the date, May 11 or 12 or 13, whenever he was

there, if it's only going to come out on cross-examination

anyway. But we can cross that bridge later.

Let me hear from Ms. Moscowitz with reference to

the proffer that Ms. Miller has made.

MS. MILLER: Your Honor, let me say his testimony

would be incomprehensible if one did not understand how he

 

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came to be out in the Everglades May of 1996 performing

these test.

THE COURT: I don't think it would be

incomprehensible. He just said he was there and went about

picking these things up and putting them in, and I think

the jury could figure out that he was an FBI agent or FAA

official. Because FBI isn't going to let anybody go out

there and climb around that wreckage as an idle spectator.

MS. MILLER: Your Honor, I haven't asked him that

question, but I don't believe he was paid by the NTSB at

the time that he was an employee by McDonald Douglas which

participates with the NTSB as technical advisor.

THE COURT: Whatever his background, I would

think, in terms of why he was there, if the defense wishes

to get into it, they are entitled to. It may be the

government is or not entitled to get into that because it's

really irrelevant except to show possible bias. It doesn't

matter. If he's out there and he did certain things --

Let's assume he was a guy out there trying to

spear frogs on the full moon, and he was the first one on

the scene, and he started picking up stuff and putting it

away and doing that. He is a witness whether the McDonald

Douglas or the FAA or SabreTech or anybody else wanted that

person to be there. Just like the man out there fishing,

he is a witness. He was on the scene. You don't have to

 

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have a official position to be a fact witness.

If you happen to be a highly qualified expert in

accident investigation, it would be incredibly

coincidental, but that wouldn't bar him from being a

witness I think.

Let me hear from Ms. Moscowitz.

MS. MOSCOWITZ: However qualified he is, he is a

representative of a civil defendant with a stake in the

litigation that's going on. His company is sued. They

designed the plane. There are various measures they didn't

undertake. He was part of the NTSB team. There's no

question that the reports are not admissible by the

government --

THE COURT: Before you leave that, of course,

that goes completely and entirely to the weight the jury

will give his testimony. Right now we are dealing with

admissibility. We are not evaluating the weight. The jury

may listen to that and say, whoops, this man has got a big

stake. He has the got to personally write a check or

something, and we are not going to believe a word he says.

But that doesn't make his testimony inadmissible unless it

is blatantly, blatantly false. And that's not suggested

here; so limiting the argument to simply what is admissible

under the rules of evidence.

MS. MOSCOWITZ: Your Honor, there is no question

 

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that the government cannot move in any of the NTSB reports

vis-a-vis they are hearsay.

THE COURT: I think we have agreed on that.

That's not part of this problem either.

MS. MOSCOWITZ: This man is simply reporting the

information he learned in his role as helping to compile a

portion of those reports which the government is

cherry-picking in offering the part that assists them.

There was a finding by the National

Transportation Safety Board that the FAA, the client agency

of the U.S. Attorneys Office in this matter, was equally

responsible for this crash.

THE COURT: Let's limit it to Mr. what's his name

here. Let me say did he say -- if you have got something

in the report where he says aluminum melts at 100 degrees,

and then flushed in the water does this and that, and he

has got a contrary statement to what he is saying here, you

all can impeach him until the cows come home with that.

MS. MOSCOWITZ: Your Honor, what Mrs. Miller said

she is going to have him do, he's going to say, "there were

no electrical failures, there were no mechanical failures.

What happened here is oxygen generators caused this fire."

Now --

THE COURT: That's based on his opinion. I think

he's entitled to say it.

 

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MS. MOSCOWITZ: I don't think he's entitled to

say it because he says it as a representative of the NTSB.

THE COURT: You can't tell the jury that unless

you all bring it out.

MS. MOSCOWITZ: I want to bring it out. He's got

an ax to grind, but that's weight not admissibility.

THE COURT: You can bring it out to but they

can't. He can't sit here and tell the jury, "this board

sat around and we concluded this was the cause." He's not

going to be able to say that. I think I have made that as

clear as I can. What he is going to be able to say is

factually, "I saw a burnt up piece out there or I saw a

burnt wire out there, and from that I've looked at it and

I've experienced that wire in that scene in that

configuration and that proximity, I believe that that was

caused by whatever it was caused by without reference to

the fact that Doctor Strangelove, on the NTSB agrees with

him. He can't get into any of that.

MS. MOSCOWITZ: Those are the issues, Judge.

THE COURT: It's not an issue anymore.

MS. MOSCOWITZ: He only did the wiring.

Everything else that he may have been opining about is a

result of what he learned from those other guys.

THE COURT: Now, an expert can read books and

base his opinions on books written by people that were dead

 

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20 years ago.

MS. MOSCOWITZ: He is talking about the evidence

in this case, not how he got to be so smart. But when he

starts talking about what one of the other NTSB guys told

him, that's inappropriate.

THE COURT: No, no, no.

Are you going to be attempting to offer hearsay

testimony from other board members to this man?

MS. MILLER: No, Your Honor.

THE COURT: That takes care of that.

MS. MOSCOWITZ: Your Honor, can we address the

video issue, or do you want to address it in the morning?

It won't take that long.

THE COURT: Let me resolve this issue.

MS. MOSCOWITZ: I know we are all getting tired.

THE COURT: I see no point, if ultimately the

defense is going to ask this man if he was out there

because he was an NTSB investigator or a McDonald Douglas

investigator or whatever he was, if you're going to get

into that anyway I see no point in attempting to put a

stricture on the government that is going to be difficult

to pussyfoot around --

MS. MOSCOWITZ: We didn't ask for one. We didn't

ask for a stricture on the government as to whether they

could identify what he was there for.

 

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THE COURT: You are not objecting to the fact

that he was an NTSB representative? Sure you are? You've

been doing that for twenty minutes.

MS. MOSCOWITZ: He shouldn't be able to testify,

because they shouldn't be able to get in NTSB conclusion.

Once he testifies, we want him affiliated with whatever he

was affiliated with.

THE COURT: Before you stood up to talk, I said

he couldn't get into the board report or the conclusions of

Doctor Strangelove or any other doctors. And he can't sit

here, nor can any expert sit here and say, "I went out and

talked to the foremost cancer authority in the world, and I

can tell you that the plaintiff has cancer, based on what I

discussed with Doctor Jones in Chicago."

What he can say is, I read Doctor Jones' book

from Chicago, and I am an expert in cancer, not that I have

with other people, and lectured and talked to people on

cancer, and in all of my experience, this is cancer. That

is all relevant. He can not say that we sat around the

board room at th NTSB and Jones talked the fabrics and

Smith talked about the electrical, and Sam Spade talked

about something else, and I listened to all of that, and

now I have an opinion. If he did do that I think the

defense should do handsprings out the courtroom door.

MS. MOSCOWITZ: They will be clever or enough not

 

UNITED STATES vs SABRETECH, ET. AL - 11-22-99

Gentile - Direct 225

 

to get it in that way.

THE COURT: There isn't any way they are going to

get it in in spite of your conviction that they are. They

are simply not going to be able to get in the report of the

investigation, nor, as Ms. Miller said, she is not going to

ask what these experts talk about.

If he saw Doctor Strangelove pick up a canister

and put it in a bag, that's a fact, and that's not an

opinion. If he asks, "Doctor Strangelove, is it hot"?

"Yeah, it's 100 degrees," and then he this jury, "yeah, he

told me it was 100 degrees," that's out the window. This

is pretty straight forward stuff.

The objection is overruled to his testimony

within those perimeters. There is no objection to the fact

that he was out there in whatever his capacity was,

McDonald Douglas or whatever, although it is pretty

immaterial as to why he was there except he was there with

official permission.

The defense wishes to get into his background and

who was paying his checks, and who was paying expenses.

That's perfectly proper to get into to show bias or

impeachment.

Now, you say there were some films that the NTSB

took. Do you attempt or wish to offer any films,

Ms. Miller, or tests conducted by the NTSB?

 

UNITED STATES vs SABRETECH, ET. AL - 11-22-99

Gentile - Direct 226

 

MS. MILLER: He yes, Your Honor, we do intend to

offer a video into evidence at the end of Mr. Fogg's

testimony.

THE COURT: Did he perform the task?

MS. MILLER: He was present.

THE COURT: He saw it being performed just like

the janitor or anyone else being around, correct?

MS. MILLER: Well, he was not there in a janitor

capacity.

THE COURT: It doesn't matter what hat he was

wearing. Was he charged with the responsibility of

creating the task to simulate anything to do with the fire,

and did he perform that task? Was that his responsibility

and job?

MS. MILLER: I believe it was the responsibility

of the fire and explosion group of which he was a part.

THE COURT: Well, it doesn't sound like he -- all

he would be able to say is we had a committee, and the

committee devised the test, and this is the test that we

did. Here is a picture of it. And you are expecting or

wanting to offer that knowing that when the committee

finally sat and looked at it, they decided it wasn't a

proper test. Should we get into stuff like that?

MS. MILLER: Oh no, Your Honor. The committee

didn't say it wasn't a proper test. Ms. Moscowitz is the

 

UNITED STATES vs SABRETECH, ET. AL - 11-22-99

Gentile - Direct 227

 

only one saying the test was improper. The test was

conducted for the purposes that Ms. Moscowitz and the

motion was holding out.

THE COURT: I thought that earlier on, not

tonight, but earlier on and perhaps tonight, it was stated

to me that the ultimate conclusion of the NTSB was that

they could form no conclusions from the cause of the fire

from the test, from the test.

MS. MOSCOWITZ: Your Honor, may I read to you

what the NTSB said about the test?

THE COURT: I suppose so. If you are ahead in

the game, usually you would be quiet. If you want to pile

it on, and load it up, and then she can pick something you

said she disagrees with and we will go right back to it,

and we will be here all night.

MS. MOSCOWITZ: Your Honor, you're right.

THE COURT: What I would like to do at this

point, is to ask the government the suggestion has been

made that the conclusion by at least an authoritative

source like the NTSB, which is not admissible in this trial

for the reasons we have discussed, but that their

conclusions by this group of experts is that the test that

was performed was inconclusive. So if we put on the test

then we open up the barn yard gate, we throw it wide open

to calling all of the people that thought it wasn't a

 

UNITED STATES vs SABRETECH, ET. AL - 11-22-99

Gentile - Direct 228

 

proper test, it was inconclusive, and we listened to all of

that.

Which all brings us back to ground zero.

The government puts up some evidence and whether

the government knocks it over or the defense knocks it

over, if we know it is going to be knocked over in the end

result, then why should we get into it? Is there other

reason to get into it?

MS. MILLER: Your Honor the purpose of the test

was not to recreate the crash conditions. It was not

intended to be a reenactment.

THE COURT: What was the purpose of it?

MS. MILLER: To qualitatively assess the amount

of heat and fuel the generators contributed to the fire.

THE COURT: Was it able to do that?

MS. MILLER: It was, Your Honor.

THE COURT: Who says?

MS. MILLER: Mr. Fogg says.

THE COURT: Mr. Fogg says "I performed this

test."

MS. MILLER: He said "I observed it."

THE COURT: Did he set up the standards of the

test and made sure it was exactly identical with the

situation at the scene of the crash? Was he responsible to

all of that?

 

UNITED STATES vs SABRETECH, ET. AL - 11-22-99

Gentile - Direct 229

 

MS. MILLER: No, sir and it was not intended to

be.

THE COURT: Under the law, if you are going to

introduce experimental testimony in court, whether it be

civil or criminal, the test that is conducted must be so

substantially identical to the set of facts that you are

attempting to prove or disprove as to be beyond any

question that is comparing apples to apples.

A classic example is the case of Gulf Ocean Mile

-- I don't want to dazzle you with all of this, but anyway

if you are a hurricane and the contention is that it blew

out a curtain wall because it wasn't constructed strongly

enough to withstand 120 mile an hour winds. If you want to

do a test to show that it would sustain 120 miles winds,

that's fine. You do the test but the test must be an

accurate, positive, scientific experiment done by very

qualified people and to replicate the 120 mile pressure. I

didn't make this one up. This is an actual case. I won't

kid you anymore. I happen to have tried the case.

Anyway, if that happens, then you can introduce

the test. Unless it is really, really, right on point.

Now, you said that the purpose of the test was to determine

the heat, something about the heat.

MS. MILLER: To qualitatively affect the amount

of heat and fuel that generators contribute to a fire.

 

UNITED STATES vs SABRETECH, ET. AL - 11-22-99

Gentile - Direct 230

 

THE COURT: That heat and fuel that generators

what?

MS. MILLER: That generators, oxygen generators

contribute to a fire.

THE COURT: To a fire. So, they were trying to

determine how much the committee that was a camel, they

were trying to determine the amount of heat and fuel that

these oxygen generators contributed to a fire.

Well, I guess that's sort of like, I guess, my

grandson, five years old, watching me throw another log on

the fireplace on a cool night, and you can bring him in here

and he witnessed it, and he wanted to figure out how much

more heat it would generate, he would have to be experienced

and all that.

Take Doctor Strangelove sitting there. He has got

a gadget that will measure it, but throwing a log on a fire,

throwing a generator on a fire and putting it in proximity

to a fire and trying to determine how much more heat it is

going to add to a fire because the heat is going to be

there. I don't know how in the world they can measure that

precisely if there are too many variable factors. How big

was the fire when the generator was pitched on it? I don't

think that fits within the perimeters of what the law says

you've got to have if you are going to do a test.

If the question is would this generator just

 

UNITED STATES vs SABRETECH, ET. AL - 11-22-99

Gentile - Direct 231

 

sitting there by itself in that overhead rack when the

hammer hits and heats up the heat in the capsul that starts

the chemical reaction through the sodium elements and the

other chemicals in there, whether or not that will start a

fire every time, that would be a good test. If it does, boy

Oh, boy; Oh, boy; Donald Douglas and everybody else has a

lot of problems, don't they? I think that's the issue does

it sitting alone start a fire. Not if it's in a bundle of

logs.

MS. MILLER: Your Honor, in this test it was five

boxes, cardboard boxes, containing oxygen generators. The

fire was started by mechanically pulling the firing pin on

one of the oxygen generators, and then what was observed

was the oxygen generator generating heat to a point that

the cardboard caught fire, and as the cardboard continued

to burn, it caused other oxygen generators to initiate.

THE COURT: If you want to bring in the people

actually responsible for conducting the test, not the

janitor sitting there even if he had a doctor degree, not

anyone else. But the people who actually performed the

test, and if you can establish through such a person who

had that responsibility the details of the test and show

that it was sufficiently identical to what occurred on this

flight, which I submit I don't know how anyone can know.

You know we have two versions of how the boxes

 

UNITED STATES vs SABRETECH, ET. AL - 11-22-99

Gentile - Direct 232

 

were stacked, one on top of the wheels and one beside the

wheels. We have almost no information as to what was

inside the box, except in one box it appeared that some of

this bubble wrap stuff or bubble gum, beyond that we don't

know if it was rags or newspapers. We do know that

cardboard was on the outside. I think there would have to

be some showing about which canister was ignited in the

proximity to cardboard and the proximity to whatever. I

see a lot of problems with it, but if you want to endeavor

into it, of course, you have that right. Subject to

cross-examination we will consider at that. That one we

will have to take outside of the presence of the jury and

go through it all and see where it leaves us at the end of

the day.

I'm not at all sure that it would be admissible,

but it may be that it is. I will of course, Ms. Moscowitz,

read all and study, all of your cases that deal with

testing, but I think the law is pretty clear on the subject

of what a test has to be in order to be admissible, because

it is assimilation that is prepared just for trial or just

for some other purpose, administrative hearing or whatever.

So we will leave the question of the movies open

until the predicate is laid. We will see what the predicate

is. The rest of the testimony, it is the ruling that if

this man "Finius Fogg" will be permitted to testify.

 

UNITED STATES vs SABRETECH, ET. AL - 11-22-99

Gentile - Direct 233

 

All right. Tomorrow morning, unless there is

something else, 9:00.

COURTROOM DEPUTY: All rise.

(Proceedings were concluded until at 6:45 p.m.)

 

C E R T I F I C A T E

I hereby certify that the foregoing is an accurate

transcription of proceedings in the above-entitled matter.

11-22-99

______________ _______________________________________

DATE ROBIN MARIE CARBONELLO

Official Federal Court Reporter

Federal Justice Building, Ste. 1127

99 Northeast 4th Street

Miami, FL 33132 - (305)523-5108

Quality Assurance by Proximity Linguibase Technologies

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