UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

MIAMI DIVISION

 

UNITED STATES OF AMERICA,

Case No. 99-0491-Cr-KING

Plaintiff,

vs. MIAMI, FLORIDA

November 23, 1999

SABRE TECH, INC., et al,

MORNING SESSION ONLY

Defendants.

 

JURY TRIAL PROCEEDINGS

BEFORE THE HONORABLE JAMES LAWRENCE KING,

UNITED STATES DISTRICT JUDGE

APPEARANCES:

 

FOR THE GOVERNMENT:

GEOFFREY R. BRIGHAM, A.U.S.A

CAROLINE HECK MILLER, A.U.S.A.

99 N.E. 4th Street

J.L.K. Federal Justice Building

Miami, FL 33132 - 305/961-9432

 

FOR THE DEFENDANT SABRETECH:

 

JANE RASKIN, ESQ.

MARTIN RASKIN, ESQ.

2937 S.W. 27th Avenue, 206

Miami, Florida 33131

 

 

JOHN GILLICK, ESQ.

WINTRHOP, STIMSON, PUTMAN, ROBERTS

Washington, D.C.

 

 

 

 

2

1 NORMAN MOSCOWITZ, ESQ.

Miami Center, Suite 2550

2 201 S. Biscayne Blvd.

3

4

FOR DEFENDANT FLORENCE

5

6

JANE MOSCOWITZ, ESQ.

7 MOSKOWITZ, STARKMAN & MARGOLNICK

100 S.E. 2nd Street, Suite 3700

8 Miami, Florida 33131

9

10

FOR DEFENDANT GONZALEZ:

11

12

ROBERT DUNLAP, ESQ.

13 MARCIA SILVERS, ESQ.

2601 S. Bayshore Drive

14 Suite 601

Miami, Florida

15

16

17

18 REPORTED BY: JERALD M. MEYERS, RPR-CM

Official Federal Court Reporter

19 301 North Miami Avenue, 9th Floor

Miami, FL 33128-7797 - 305/374-8108

20

21

22

23

24

25

 

3

 

1 INDEX

2 Witnesses: Direct Cross Redirect Recross

3 Mark Gentile .................. 5 36

4

5 Mark Gentile .......................... 46 49

6

7 Mark Gentile .......................... 51

8

9 Larry Fogg ................... 51

10

11 Reporter's Certificate .................................. 93

12

13

14

15

16

17

18

19

20

21

22

23

24

25

 

4

 

1 (Call to order of the Court)

2 MORNING SESSION

3 THE COURT: All right. If we are ready to

4 proceed, we will bring in the jury. Is everybody ready?

5 MS. MOSCOWITZ: Yes, sir.

6 THE COURT: All right. Bring the jury.

7 MS. MILLER: Your Honor, I am sorry. We filed a

8 motion this morning for the Court to take judicial notice

9 of.

10 THE COURT: Can we take that up tomorrow morning

11 at 8 o'clock?

12 MS. MILLER: We could, Your Honor, but it may

13 affect witnesses. We are moving quite rapidly here, and

14 resolution of that matter may affect what other witnesses

15 we bring in. It doesn't have to be resolved now.

16 THE COURT: Well, you filed it at 7:41 this

17 morning, and I did read it before I came into court, but I

18 read through it; glanced through it, but I don't know

19 whether counsel have had an opportunity to look at it or

20 not. Have you, defense counsel?

21 MR. DUNLAP: Briefly, Your Honor.

22 THE COURT: Is it a matter that we can take up in

23 3 minutes, or is that a matter that will take a half an

24 hour?

25 MR. MOSCOWITZ: We may have some objections to

 

5

 

1 this, Your Honor.

2 THE COURT: I assume so. That's why I thought we

3 would take it up tomorrow morning.

4 MR. DUNLAP: That would be fine with us, Judge.

5 THE COURT: Or tonight, or some other time, but

6 we told the jury to be here at 9 o'clock. It is 9:22. I

7 don't know. I mean I don't mind taking up whatever you

8 want to do, but I can't get it at 7:41 and have it resolved

9 by 9 o'clock.

10 MS. MILLER: Perhaps tonight, Your Honor, we

11 would see if they are ready.

12 THE COURT: Sure, or any time you want to. I

13 can't do it at noon today. Either tonight or in the

14 morning. All right. Bring the jury.

15 [The jury returns to the courtroom].

16 THE COURT: Thank you. Be seated, please. All

17 right. Call your next witness.

18 MR. BRIGHAM: Your Honor, the United States

19 recalls Mr. Mark Gentile.

20 THE COURT: All right.

21 MARK GENTILE, PREVIOUSLY SWORN, WAS FURTHER EXAMINED,

22 GOVERNMENT'S WITNESS, SWORN.

23 DIRECT EXAMINATION

24 BY MR. BRIGHAM:

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

 

6

 

1 marked as government's exhibits B -- excuse me -- 54-B

2 through N.

3 Let me just hand them to you. If you could just

4 pick them up one by one, and I am handing you 54. Starting

5 with and beginning with 54-B, 54-C, 54-D, 54-G, 54-H, 54-I

6 54-J, 54-L and 54-M. Do you recognize those?

7 A. Yes, I do.

8 Q. And are they photographs of certain items?

9 A. Yes, they are.

10 Q. And do they fairly and accurately depict those items?

11 A. Yes, they do.

12 Q. In addition, I would like to show you within that same

13 series 3 other exhibits that have been admitted, and that

14 would be 54-F, E and K. Again, do you recognize those

15 items?

16 A. Yes, I do.

17 Q. And are they photographs of certain items that are

18 fairly and accurately depicted in those photographs?

19 A. Yes, sir, they are.

20 MR. BRIGHAM: Move to admit.

21 THE COURT: They are all admitted.

22 MS. RASKIN: Your Honor, one of them I believe

23 was not, 54-C. And as to that, I do object.

24 THE COURT: 54-B, C, D, G, H, I, J, L, M and M

25 were all admitted last evening when these matters were

 

7

 

1 offered, I believe, were they not?

2 MR. BRIGHAM: I believe so, Your Honor, but to

3 confirm --

4 THE COURT: All right. What is your objection to

5 this particular one, Ms. Raskin?

6 MS. RASKIN: I believe, Your Honor, that is a

7 photograph -- well, is this --

8 THE COURT: Well, show it to her and let her see

9 it so she knows what it is she is talking about.

10 MS. RASKIN: I apologize, Your Honor. I thought

11 he said 53-C. No objection to these. I apologize.

12 THE COURT: Is there any objection to any of

13 these so we can clear this up? I thought they were all

14 admitted into evidence last evening, but I may be in error.

15 MS. RASKIN: Well, there is one, 53-C that I

16 thought he was referring to.

17 THE COURT: Well, let's take a look at 53-C and

18 see if we can get it cleared up. Show it to her and let's

19 see what the objection is.

20 MR. BRIGHAM: Yes, Your Honor.

21 THE COURT: Do you know what it is?

22 MS. RASKIN: Yes, Your Honor.

23 THE COURT: Use the microphone, please. Your

24 objection is?

25 MS. RASKIN: My objection is I believe agent

 

8

 

1 Gentile testified that it is a photograph that was taken at

2 the Sabretech facility on May 21st, 11 days after the

3 accident, and I don't believe that there has been a

4 foundation for its relevance established.

5 THE COURT: The relevance is that it was a

6 Sabretech facility where these repairs were made. That

7 makes it relevant.

8 The question is whether or not there have been

9 any changes in the decor or the appearance of the place in

10 that period of time, and that would have some bearing, but

11 is it offered for showing that the boxes and barrels and

12 bags are in the same places, or is it offered for the

13 purpose of showing the general layout of the shipping and

14 receiving area of Sabretech?

15 MR. BRIGHAM: This particular photograph is a

16 photograph of 5 generators that were found at Sabretech on

17 May 21st by the witness, and we would be offering it to

18 show the characteristics of those generators, the green tag

19 labelling where there has been testimony that warning

20 labels, the lack of caps, and we would move to admit if it

21 has not been so admitted.

22 THE COURT: All right. Now, what is your

23 objection?

24 MS. RASKIN: My objection is that he has not

25 established a foundation as to how those generators got

 

9

 

1 there, by whom they were put there.

2 In the eleven days after that crash, Your Honor,

3 there was a lot of activity.

4 THE COURT: All right. Well, ladies and

5 gentlemen, that will be the weight and credibility you give

6 to the document. You may decide that it is not probative

7 of anything.

8 It doesn't prove anything, but it its offered

9 simply for the proposition that eleven days after the

10 accident, this agent took a picture. The picture is here

11 in evidence. It truly represents what he saw eleven days

12 later.

13 These issues, whether or not these items were put

14 there earlier or later or some other time will be a matter

15 the lawyers will argue to you and you will make credibility

16 determinations at that time.

17 The document is admitted into evidence, along

18 with each of the other photographs that were offered, being

19 54-B through N, with all the intervening alphabet soup. Go

20 ahead.

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

22 permission, I would like to ask the witness to step down.

23 THE COURT: Sure. Go ahead, agent, if you can

24 get out. If I may ask Mr. Gentile to obtain the

25 microphone?

 

10

 

1 THE COURT: Apparently we've run out of

2 batteries, and yesterday, or whatever, they had to come in

3 at noon and work on the whole sound system. So every day

4 there is something.

5 Let's just go ahead in as loud a voice as we can

6 using that microphone that's on the stand there. You can

7 move the stand up a little bit. The one that is right

8 behind your left shoulder.

9 MR. BRIGHAM: Yes, Your Honor.

10 THE COURT: That way, yes, maybe that will pick

11 it up sufficiently.

12 MR. BRIGHAM: It is a little challenging.

13 THE COURT: The top of it will swivel, agent.

14 Maybe you can swivel the top for him there. Okay.

15 MR. BRIGHAM: Mr. Gentile, if I can ask you to

16 step right next to the microphone and take this pointer. I

17 would like to show you what has been admitted as

18 government's exhibit 54-B.

19 We will just take them in the order that we have

20 them for times-sake. I am showing you what has been marked

21 as 54-K. Can you explain to us what that is?

22 A. This is one of the oxygen generators that I

23 photographed on June 3, 1996 at the Sabretech facility.

24 Q. And what is the information that is on the top of that

25 exhibit?

 

11

 

1 A. That's the information that I could glean off of the

2 manufacturer's specification plate which are attached to the

3 generators.

4 Q. And so what is MFB2-81?

5 A. That's the manufacturer's date. That's the date

6 that this particular oxygen generator was manufactured.

7 Q. And what is the part number?

8 A. The part number for this particular generator is

9 801386-06.

10 Q. And where did you see that information? Where on the

11 generator?

12 A. That's contained on the manufacturer's -- again, the

13 manufacturer's specification plate that's. noted right here

14 on this photograph.

15 Q. Okay. Now, I would like to show you what has been

16 marked as government exhibit 54-G. Do you recognize what

17 that is?

18 A. Yes, I do.

19 Q. And explain to us what you saw based on that exhibit?

20 A. This is another oxygen generator which I had

21 photographed on June 3, 1996 at the Tamiami facility. This

22 is one again like the last one, one of the generators

23 recovered from the crash site. The information written here

24 was taken off of the manufacturer's specification plate as

25 shown here in the photograph.

 

12

 

1 Q. Okay. And what was the serial number you saw?

2 A. 55975.

3 Q. And what was the manufacturing date you saw on that

4 generator?

5 A. 3-80.

6 Q. And what was the part number that you saw?

7 A. 801386-06.

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

9 government exhibit or admitted as government's exhibit 54-C,

10 and again explain to us what is depicted in that photograph?

11 A. This is another oxygen generator which I photographed

12 at the Tamiami hanger on June 3, 1996. Well, there are

13 several photographs here. It shows the manufacturer's

14 specification plate, and above it is the information that I

15 could obtain from it.

16 Q. And what was the part number that you saw on that part?

17 A. The part number is 801386-06.

18 Q. When you say part number, what are you talking about?

19 A. That's the part number for this particular -- well, for

20 this particular oxygen generator manufactured by Scott

21 Aviation. The first portion of the part number, the 801386

22 is or denotes the specific oxygen generator as the part

23 number. The dash 06 was a way for Scott Aviation to

24 classify this as a 3 man type oxygen generator.

25 Q. I show you what has been marked and admitted as

 

13

 

1 government exhibit 54-D and explain to us what that is?

2 A. Again, this is another one of the oxygen generators

3 that I photographed at the Tamiami hanger, and it is another

4 one that was recovered from the crash cite.

5 I photograph it on June 3, 1996. The information

6 shown here in this photograph shows the manufacturer's

7 specification plate, and written above is that information

8 that I could obtain from it.

9 Q. Okay. Now, when you say that you could obtain from it,

10 explain to us what the S-N is?

11 A. That's the serial number which is clearly written out;

12 fully written out, except for the N-O is abbreviated on the

13 plate.

14 Q. And is that the complete serial number?

15 A. No. This particular serial number, it appeared at --

16 two of the digits had been destroyed during the accident.

17 Q. What you recorded was what you saw; is that correct?

18 A. Yes. Exactly.

19 Q. I show you what has been admitted as government exhibit

20 54 E.

21 If I may have a moment, Your Honor?

22 THE COURT: Yes.

23 BY MR. BRIGHAM:

24 Q. What is that?

25 A. That's another one of the oxygen generators which I had

 

14

 

1 photographed at the Tamiami hanger which was recovered from

2 the crash cite. The photograph was taken on June 3, 1996.

3 Q. And the information, the serial number, the manufacture

4 date and part number that is written there is information

5 that you observed on this oxygen generator?

6 A. Yes, it is.

7 Q. I show you 54-F. What is government's exhibits 54-F?

8 A. This is another oxygen generator which I had

9 photographed at the Tamiami hanger on June 3, 1996.

10 Q. And the information on the top, where did you see that?

11 A. That information was obtained from the manufacturer's

12 serial plate shown here in this particular photograph.

13 Q. What, if anything, did you observe about the physical

14 condition of the primer on this oxygen generator?

15 A. On this particular primer, it had an indentation.

16 Q. With your pointer, can you, standing at the side,

17 explain to the jury what you mean?

18 A. Well, when the firing pin strikes the primer, it makes

19 an indentation on the primer, and it is visible as you can

20 see in this particular photograph, and again on this

21 particular photograph here.

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

23 government exhibit 54-G, and admitted as such. Again,

24 please explain that exhibit?

25 A. This is another oxygen generator that was photographed

 

15

 

1 on June 3, 1996 at the Tamiami hanger.

2 Q. What information, if any, could you obtain from this

3 oxygen generator?

4 A. The serial plate as you can see in, I believe it is

5 this photograph right here, has been completely destroyed,

6 and I couldn't get any of the serial number manufacturing

7 data from it.

8 Q. And with respect to government exhibit 54-G, what, if

9 anything, did you NTSB about the physical condition of that

10 oxygen generator?

11 A. Aside from the fact that it had been somewhat destroyed

12 in the crash, the primer cap on this particular generator

13 had an indentation.

14 Q. I now show you what has been marked as 54-H and

15 admitted as such. Explain to us what that is?

16 A. This is another oxygen generator that was recovered

17 from the crash cite, and I had it photographed on June 3,

18 1996 at the Tamiami hanger.

19 Q. And again the information, Mr. Gentile, if I could ask

20 you to step to the side so all members of the jury can hear

21 you.

22 Again what information, identification information

23 were you able to find on this generator?

24 A. Nothing at all. The manufacturer's serial plate was

25 rather almost completely destroyed.

 

16

 

1 Q. I show you what has been admitted as government exhibit

2 54-I. Explain to us what that is?

3 A. Again, this is another oxygen generator which I had

4 photographed on June 3, 1996 at the Tamiami hanger.

5 Q. And what information were you able to physically see on

6 that generator?

7 A. Several of the numbers on the serial number were

8 visible on the manufacturer's plate. I obtained a 65, and

9 there was an unreadable digit, and then a 98.

10 Q. I show you what has been admitted as government exhibit

11 54-J. What is that?

12 A. This is another oxygen generator photographed at the

13 Tamiami hanger on June 3, 1996.

14 Q. Again, what information or identification information,

15 if any, did you physically see on that oxygen generator?

16 A. Well, as you can see by this particular manufacturer's

17 serial plate right here, it was rather destroyed. The only

18 information I could get off this particular generator was

19 that the first two digits of the serial number which was a 1

20 and a 1.

21 Q. I show you what has been admitted as government's

22 exhibits 54-A. Actually, I believe I will do that a little

23 later. I will withdraw that. That was our first exhibit.

24 I would like to now show you what has been marked

25 as 54-L. What is that?

 

17

 

1 A. It is another only generator recovered from the crash

2 cite, and I photographed this. I had this photographed at

3 the Tamiami hanger on June 3, 1996.

4 Q. What information, if any, could you obtain from that?

5 A. Nothing at all. The manufacturer's information plate

6 was completely destroyed.

7 Q. I show you what has been admitted now as government

8 exhibit 54-M. What is that?

9 A. This again is another one of the oxygen generators

10 recovered from the crash cite, and I had this photographed

11 on June 3, 1996 at the Tamiami hanger.

12 Q. And what information, if any, were you able to

13 physically observe on that oxygen generator?

14 A. Nothing at all. The manufacturer's serial plate had

15 been completely destroyed.

16 Q. What, if anything, did you notice about the physical

17 condition of the firing pin on government exhibit 54-N?

18 A. The firing pin had been in the firing position causing

19 an indentation on the primer cap.

20 Q. I show you what has been admitted as government exhibit

21 54-N. What is that?

22 A. This is another oxygen generator photographed at the

23 Tamiami hanger on June 3, 1996.

24 Q. Again what, if anything, did you notice about the

25 primer on that oxygen generator?

 

18

 

1 A. This primer also had an indentation.

2 Q. If I may ask you to step back to your chair briefly,

3 Mr. Gentile.

4 Mr. Gentile, did there come a time that you

5 returned to the Tamiami hanger on or about June 10, 1996?

6 A. Yes; on June 10th.

7 Q. And what did you do there?

8 A. I photographed 3 more oxygen generators.

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

10 me strike that. Where had these oxygen generators come

11 from?

12 A. The crash cite.

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

14 government's exhibits and admitted -- excuse me -- marked

15 government's exhibits 54-Q, P and O.

16 Please examine those and tell us if you recognize

17 what they are?

18 A. These are the 3 oxygen generators that I photographed

19 on June 10, 1996 at the Tamiami hanger.

20 Q. And these photographs accurately and fairly depict

21 those oxygen generators?

22 A. Yes, they do.

23 MR. BRIGHAM: Move to admit.

24 MR. RASKIN: No objection.

25 THE COURT: Government's exhibits 54-Q, 54-P and

 

19

 

1 54-O for identification are admitted into evidence as 54-

2 Q, P and O.

3 BY MR. BRIGHAM:

4 Q. Mr. Gentile, again with the Court's permission, I would

5 like you to return for these last three posters. I would

6 like to show you what has been admitted as government

7 exhibit 54-O. What is that?

8 A. This is one of the oxygen generators that I

9 photographed on June 10, 1996 at the Tamiami hanger.

10 Q. And what identification information, if any, were you

11 able to obtain from this oxygen generator?

12 A. Nothing at all.

13 Q. What, if anything, did you notice about the primer on

14 that particular oxygen generator?

15 A. The primer had an indentation.

16 Q. I show you what has been marked now as government

17 exhibit 54-Q and admitted as such. Do you recognize that?

18 A. Yes, I do.

19 Q. And explain to the members of the jury what that is?

20 A. This is another oxygen generator photographed by myself

21 on June 10, 1996 at the Tamiami hanger.

22 Q. What identifying information, if any, did you see on

23 that oxygen generator?

24 A. None at all.

25 Q. And what, if anything, did you notice about the

 

20

1 physical condition of the primer?

2 A. The primer had an indentation.

3 Q. And, finally, government exhibit 54-B has been so

4 admitted. Explain to us what that is?

5 A. This is the third oxygen generator which I had

6 photographed on June 10, 1996 at the Tamiami hanger.

7 Q. And what identification information did you physically

8 see on the oxygen generator?

9 A. Nothing.

10 Q. Thank you. You may take your seat. I will take your

11 microphone.

12 Mr. Gentile, I would like to show you what has

13 been -- I will withdraw that.

14 Actually, may I have a moment, Your Honor?

15 THE COURT: Yes.

16 MR. BRIGHAM: Thank you.

17 BY MR. BRIGHAM:

18 Q. As part of your investigation, did there come a time

19 that you interviewed Mr. Eugene Florence?

20 A. Yes.

21 Q. Do you see him today here in the courtroom?

22 A. Yes, I do.

23 Q. And could you, please, identify him for the Court and

24 the members of the jury?

25 MS. MOSCOWITZ: We stipulate to his identity,

 

21

 

1 Your Honor.

2 THE COURT: All right. Let the record so

3 reflect. Next question.

4 BY MR. BRIGHAM:

5 Q. When did you talk to Mr. Florence?

6 A. On June 6, 1996.

7 Q. Where did that interview take place?

8 A. At the Sabretech facility in Miami.

9 Q. Who was present during the interview?

10 A. Eugene Florence, Jane Moscowitz, his attorney, and

11 Marty Raskin, Sabretech's attorney.

12 Q. And during this interview, what did Mr. Florence tell

13 you?

14 MS. RASKIN: Objection.

15 MR. DUNLAP: Objection.

16 THE COURT: Is this the earlier matter we

17 discussed, counsel, several days ago last week?

18 MS. RASKIN: We discussed a variation on this.

19 It is a hearsay objection.

20 MR. DUNLAP: It is a form of hearsay.

21 MS. RASKIN: And a Bruton problem.

22 THE COURT: You are suggesting this is hearsay?

23 This is a statement by a defendant, and you say that's

24 hearsay. That objection is overruled. Was there another

25 objection?

 

22

 

1 MR. DUNLAP: Yes.

2 THE COURT: I beg your pardon?

3 MR. DUNLAP: A Bruton issue as well, Judge.

4 THE COURT: Ladies and gentlemen, I will ask you

5 to step into the jury room. I can't hear counsel. We've

6 got to get this on the record. Thank you.

7 [The jury leaves the courtroom].

8 THE COURT: Mr. Dunlap, do you want to use the

9 microphone and tell me what your objection is, please.

10 MR. DUNLAP: I am sorry, Judge. Just give me one

11 second.

12 THE COURT: All right.

13 MR. DUNLAP: To the extent he is seeking to

14 elicit a statement from Mr. Florence that would in any way

15 directly or inferentially inculpate Mr. Gonzalez, since it

16 is a post conspiratorial statement by a codefendant who is

17 not available for cross-examination, it is hearsay as to

18 Mr. Gonzalez and inadmissible.

19 THE COURT: Well, it is not hearsay. Let me see.

20 All right. You are saying that as to Mr. Gonzalez any

21 reference to him should be excised out of the statement;

22 that it should only be offered and received into evidence

23 as it pertains to the speaker; in this case, Mr. Florence?

24 MR. DUNLAP: Yes. I just want to be very certain

25 before it comes out that there is not going to be any

 

23

 

1 direct or indirect reference in any way to Mr. Gonzalez

2 that would elicit or solicit a proffer from the government

3 at this time as to what they seek.

4 THE COURT: Yes. You are absolutely correct.

5 This would be a statement given by Mr. Florence. And if

6 there is anything inculpatory in the statement, and I have

7 no idea whether it is or not, then that statement being not

8 in furtherance of the conspiracy would not be admissible

9 against either Sabretech or Mr. Gonzalez.

10 Mr. Brigham, what are you going to do? Well,

11 maybe we can hear the statement. Is it brief or a long

12 statement, or what is it that you wish to elicit from him?

13 MR. BRIGHAM: I don't believe it is a long

14 statement, Your Honor.

15 THE COURT: What is it that he is going to say?

16 MR. BRIGHAM: He is not going to mention

17 Mr. Gonzalez.

18 THE COURT: Let me ask the agent. When you

19 interviewed this man, what did he tell you?

20 THE WITNESS: Briefly, Your Honor, he said --

21 well, my questioning was to find out the quantity and the

22 condition of the oxygen generators.

23 He had worked on aircraft N-802 and N-803, and

24 from that, those particular aircraft he had removed between

25 30 to 35 oxygen generators from each one.

 

24

 

1 I asked him about the procedure he used after he

2 moved them, and he told me that he had wrapped the loose

3 end of the lanyard around the body of the generator and

4 then taped it in place. He then tagged it with a green tag

5 and placed it in a box.

6 I asked him if he had put caps on it. He said he

7 had not. He explained why he didn't put the caps on it,

8 and then I asked him if he had any hazard material

9 training, and he said not at SabreTech.

10 THE COURT: Not as what?

11 THE WITNESS: He had not had any hazardous

12 material training at SabreTech. He had had some

13 previously, but not at Sabretech.

14 THE COURT: I am sorry. Turn around and face me.

15 That's it. He had not done what at SabreTech?

16 THE WITNESS: My last question to him was, "Did

17 you ever have any training."

18 THE COURT: Training.

19 THE WITNESS: In hazardous materials.

20 THE COURT: Yes. And he said not at SabreTech?

21 THE WITNESS: Correct.

22 THE COURT: All right. Now, is there any

23 objection by either of the other two defendants as to this

24 statement? That doesn't mention anything except the one

25 about training at SabreTech, which each and every defense

 

25

 

1 counsel I believe have asked every witness, anyway, and it

2 is in this record all over the place.

3 MR. DUNLAP: I would respectfully ask the Court

4 to inquire into an area that was left undeveloped in the

5 proffer, and that is what is Mr. Florence, or is he going

6 to say Mr. Florence said about why he did not put safety

7 caps or shipping caps on the generators?

8 THE COURT: Go ahead and ask him.

9 MR. DUNLAP: Do you understand the question, sir.

10 A. Say it again.

11 MR. DUNLAP: You said that in your interview of

12 Mr. Florence, he gave you a reason for why he didn't put

13 shipping caps on the generator?

14 THE WITNESS: Yes, he did.

15 MR. DUNLAP: What was that reason?

16 THE WITNESS: He explained that they performed

17 what was called the drop test. And what happened was when

18 they replaced the generators with the new generators, they

19 took the old ones off.

20 They had to perform a function test, so to speak,

21 to make sure they would function correctly, and they would

22 do that, and they would set them off, and the oxygen masks

23 would all fall, and in a lot of cases that would actuate

24 some of the new oxygen generators prematurely, causing them

25 to fire, and they didn't want to do that.

 

26

 

1 So they had left the caps on the new generators.

2 So when they performed the function test, they wouldn't

3 have any accidental initiations.

4 MR. DUNLAP: My only objection would be to the

5 use of the pronoun "they." To the extent he is describing

6 what happened, he can describe it.

7 THE COURT: All right. Agent, can you give your

8 testimony with reference to only, you know, he said, and

9 that sort of thing?

10 THE WITNESS: Yes, Your Honor.

11 MR. DUNLAP: I would request a limiting

12 instruction, Judge.

13 THE COURT: Oh. You mean except that this may be

14 only considered against Mr. Florence?

15 MR. DUNLAP: Yes.

16 THE COURT: What is the government's position?

17 MR. BRIGHAM: We have no objection to a limiting

18 instruction.

19 THE COURT: Ms. Raskin?

20 MS. RASKIN: Your Honor, we have the same

21 objection. This is an admission being offered as an

22 admission by a codefendant. It is a Bruton problem for us,

23 as well.

24 He is an employee of the corporation. He was

25 never an employee of the corporation. The government has

 

27

 

1 charged that he was an agent, but this is a statement made

2 after the charged conspiracy had ended and at a time when

3 we would submit our rights of confrontation come into play,

4 and it is horribly prejudicial for the corporation to have

5 the statement of Mr. Florence admitted against it at this

6 point.

7 THE COURT: All right. So you are asking for a

8 limiting instruction?

9 MS. RASKIN: Exactly, Your Honor.

10 THE COURT: And I don't mind giving that.

11 I would inquire, just as a practical matter,

12 because we've heard about those drop tests, we've heard all

13 about the reasons why the safety caps were left on by the

14 people who actually performed the tests; the mechanics who

15 did it. It is all in this record.

16 I don't know. As a practical matter, I mean,

17 certainly the government can argue to the jury everything

18 that he has just said, whether he testifies or not. So is

19 there a practical reason why this is important?

20 This is just curiosity on my part. You are

21 entitled to a limiting instruction. I will give it, but

22 does it really matter?

23 MS. RASKIN: Well, Your Honor, I think there has

24 been evidence that has touched on a lot of these issues. I

25 don't think that there has been evidence as to specifically

 

28

 

1 what is sought to be elicited here as to Mr. Florence and

2 as to the drop test in particular.

3 THE COURT: Oh, I thought that Mr., what was his

4 name, Lumpkin or Lampkin, one of the mechanic's name was

5 back last Friday, I thought he said that that was the

6 reason they left the caps on because they did this drop

7 test and they didn't want the canister to explode.

8 He may not have been the witness, but didn't

9 someone say that?

10 MS. MOSCOWITZ: I think so, Your Honor.

11 MR. DUNLAP: Mr. Taber may have said it, Your

12 Honor.

13 THE COURT: Who?

14 MR. DUNLAP: I believe Mr. Taber may have said

15 it, but I am not sure.

16 THE COURT: Mr. Taber. That was his name.

17 Taber.

18 MR. DUNLAP: I can't recall.

19 THE COURT: I thought it was in this record

20 because, of course, the only thing I know about this is

21 what I've heard in this courtroom, and I've heard it some

22 place.

23 MR. DUNLAP: As a practical matter, since the

24 Court asked, I just don't want the jury to believe there is

25 any basis to imply that my client some how directed it.

29

 

1 THE COURT: I will give the limiting instruction

2 as to SabreTech and without objection by the government to

3 both of you.

4 MR. DUNLAP: Thank you.

5 THE COURT: All right.

6 MR. BRIGHAM: Your Honor, if I may be heard with

7 respect to the limiting instruction to the corporation.

8 Mr. Florence was still employed in an employee

9 servant, a master servant relationship with SabreTech at

10 that particular time.

11 As the Court knows, under the party opponent, for

12 purposes of corporations which can only speak through their

13 agents, a statement by the parties agent or servant

14 concerning a matter within the scope of the agency or

15 employment may, during the existence of the relationship,

16 would be admissible as a party opponent statement against

17 the corporation.

18 We submit that the limiting instruction is

19 appropriate for Mr. Gonzalez as the individual, but since

20 Mr. Florence was, in fact, an agent of the corporation, his

21 statement also is a statement of the corporation and,

22 therefore, the limiting instruction would not be

23 appropriate with respect to the defendant SabreTech.

24 That would be, of course, Rule 801(d)(2)(D).

25 And, indeed, during the interview not only was his

 

30

 

1 individual attorney present, but also the SabreTech

2 attorney was present.

3 THE COURT: Well, it really doesn't matter who

4 was present. The question is whether or not it can be

5 considered by the jury in evaluating the case that is made

6 by the government against SabreTech on the one hand and the

7 other man, Gonzalez on the other hand.

8 You are suggesting that this is a statement made

9 by an agent or an employee agent of SabreTech. Taber had a

10 lot of discussion about these caps in his testimony on

11 November 19th.

12 It seems to me this is in evidence about this

13 drop test that they performed, and that that was why they

14 didn't take the shipping safety caps off the new oxygen

15 generators when they came in from Scott Aviation and put

16 them on the old generators that they were discarding or

17 sending back to ValueJet or sending back or giving back or

18 whatever they were doing and discarding them.

19 I don't know why we would have to get into this

20 somewhat perhaps dubious area of the law in order to

21 establish that point.

22 I mean, why run a risk of calling upon these

23 evidentiary rulings if it is already in evidence and you

24 are already going to argue to the jury, anyway?

25 Now, if it is not in evidence and you cannot

 

31

1 argue it to the jury, then you need to get it in.

2 MR. BRIGHAM: Your Honor, that was a point that I

3 think was elicited by Mr. Dunlap in his questioning of the

4 witness.

5 Our concern here is we want to establish that

6 Mr. Eugene Florence worked on both aircraft, 802 and 803;

7 that he was actively involved in removing the oxygen

8 generators himself, and that he was taking new generators

9 out of the new boxes which, in fact, had the yellow hazard

10 material warning and the new generators which had the

11 warnings on the canisters themselves. That would be our

12 focus.

13 I think the Court's point is a good point, but it

14 addresses testimony that I believe Mr. Dunlap was

15 emphasizing through his questioning of the witness.

16 THE COURT: Do you care who brought it out as

17 long as you can argue it to the jury? Do you care if

18 Mr. Dunlap said, "Why did you do this?"

19 It doesn't matter who brought it out. The

20 evidence doesn't belong to the government or belong to the

21 defense.

22 MR. BRIGHAM: Absolutely, Your Honor.

23 THE COURT: If it is in the record, you can argue

24 it to the jury. Beyond that, it seems to me that a

25 statement against interest of the corporation would be

 

32

 

1 something like a corporate officer ordering Mr. Florence to

2 wrap the lanyards around the neck of the canister and to

3 not use a cap. That would be a statement against interest

4 of an employee or an agent of the corporation.

5 Here, what is being elicited is what Mr. Florence

6 did himself, and that leaves wide open the question of

7 whether or not he was told to do that by his employer.

8 If he was, that would be a statement that would

9 be of some evidence or would be evidence against the

10 employer, but here he is simply describing what he did.

11 I think that Ms. Raskin is entitled, on behalf of

12 SabreTech, to a limiting instruction, and I think it is all

13 a tempest in a tea pot because I think the evidence is all

14 in the record, anyway, but that's not the basis of the

15 ruling.

16 I think she's entitled to it. I think Mr. Dunlap

17 is entitled to it. The Court will give the limiting

18 instruction limiting it to only consideration of the case

19 with respect to Mr. Florence.

20 Bring the jury. Before you do, what time is it?

21 It is 10 o'clock. You can step down. We will take a short

22 recess at this time.

23 [There was a short recess].

24 THE COURT: All right. Thank you. Bring the

25 jury, please.

 

33

 

1 [The jury returns to the courtroom].

2 THE COURT: Thank you. Be seated.

3 Ladies and gentlemen, the next area that counsel

4 is about to get into concerning a statement given by

5 Mr. Florence to the agent after the crash may be considered

6 by you in deciding the case as it pertains to Mr. Florence.

7 What is now about to be told to you from this

8 witness should not be considered against either SabreTech

9 or Mr. Gonzalez, but it may be considered in deciding the

10 case as it pertains to Mr. Florence. Go ahead.

11 MR. BRIGHAM: Thank you, Your Honor.

12 BY MR. BRIGHAM:

13 Q. Just to recap, you interviewed Mr. Florence on June 6,

14 1996; is that correct?

15 A. That's correct.

16 Q. And please tell us what he told you during that

17 interview?

18 A. He told me that he had worked on aircraft N-802 and

19 aircraft N-803. He had removed between 30 to 35 oxygen

20 generators from each aircraft.

21 The procedure that he used when he removed the

22 oxygen generators was that he would take the loose end of

23 the lanyard, wrap it around the body of the generator, tape

24 it in place and then tag the oxygen generator with a green

25 tag and then place it in a box.

 

34

 

1 I had asked him if he had placed any caps on the

2 generators, and he had said, no.

3 I asked him why, and he told me why he didn't

4 place the caps on them. It was because he had to perform a

5 function test, a drop test, so to speak. Once the new

6 generators were installed on the aircraft, they had to

7 insure that they worked. So what they would do was perform

8 a test, and that test would activate all the oxygen masks

9 to fall. And when that happened, some of the oxygen

10 generators, the new ones would be accidentally initiated.

11 So to keep that from happening, they would keep the caps on

12 the new generators.

13 Q. Now, he indicated that he had installed oxygen

14 generators?

15 A. Yes, he did.

16 Q. And from where did he tell you that he obtained those

17 oxygen generators? These are the new ones?

18 A. From the manufacturer's box.

19 Q. What, if anything, did he tell you about any

20 certificate he held in aviation maintenance?

21 A. He informed me that he had an A & P in aircraft in

22 power plant certificate.

23 Q. And what, if anything, did he say about his past

24 hazardous material training?

25 A. He had none at SabreTech, but he had had some in the

 

35

 

1 past.

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

3 government exhibit 79.

4 THE COURT: Is this for identification or is this

5 an old one?

6 MR. BRIGHAM: This is for identification.

7 THE COURT: What is the number, please? If you

8 will state that as you offered offer it, it makes it

9 easier. What number is it, please?

10 MR. BRIGHAM: Government exhibit 79, Your Honor.

11 THE COURT: 79 for identification. All right.

12 And until it is actually admitted, it is simply for

13 identification.

14 BY MR. BRIGHAM:

15 Q. Do you recognize this document?

16 A. Yes, I do.

17 Q. What is that?

18 A. I had Eugene Florence put this information down, the

19 information that he gave me; a 7 question questionnaire

20 which this is, and then sign it.

21 Q. Do you recognize the signature?

22 A. This is what was given to me, yes.

23 Q. And did you see Mr. Florence sign that document?

24 A. Yes, I did.

25 MR. BRIGHAM: I move to admit.

 

36

 

1 THE COURT: Without objection, the document is

2 submitted into evidence.

3 BY MR. BRIGHAM:

4 Q. I would like to show you another document for

5 identification, government exhibit 49-A. Do you recognize

6 that document?

7 MS. MOSCOWITZ: May I see it, please?

8 MR. BRIGHAM: Yes, of course. Excuse me.

9 THE COURT: Is there a question pending?

10 BY MR. BRIGHAM:

11 Q. Do you recognize this document, government exhibit

12 49-A?

13 A. Well, I saw a lot of documents like this. I don't know

14 if this is the particular one that I saw.

15 Q. Where have you seen documents like that?

16 A. At the SabreTech facility.

17 MR. BRIGHAM: No further questions.

18 CROSS EXAMINATION

19 BY MS. RASKIN:

20 Q. Good morning, agent Gentile.

21 A. Good morning.

22 Q. I am Jane Raskin and I represent SabreTech.

23 You testified that you are a security agent with

24 the Office of Civil Aviation Security?

25 A. Yes.

 

37

 

1 Q. Is that right?

2 A. Yes, I am.

3 Q. And what are your duties and responsibilities in that

4 position, agent Gentile?

5 A. Primarily, it is for hazardous materials, dangerous

6 goods; inspections and investigations.

7 Q. And is it the Civil Aviation Security Office of the FAA

8 that is responsible for enforcing the aviation hazardous

9 materials regs?

10 A. Yes, it is.

11 Q. Now, prior to beginning your investigation in the wake

12 of the ValueJet accident, Mr. Gentile, had you had

13 experience with oxygen generators before?

14 A. No, I had not.

15 Q. Had you had any specific training in connection with

16 the dangers posed by oxygen generators?

17 A. No, I had not.

18 Q. During the course of your investigation, you came to

19 learn a fair amount about them; is that correct, sir?

20 A. That's correct.

21 Q. And in connection with that investigation, one of the

22 things that you were looking into, sir, was what

23 requirements if any, there existed under the hazardous

24 materials regulations to place shipping caps on generators

25 in connection with their shipment; is that correct, sir?

 

38

 

1 MR. BRIGHAM: Objection, Your Honor. Relevance.

2 THE COURT: Simply ask if he has studied

3 materials pertaining to shipping caps. I think that was

4 what it boiled down to. Wasn't that your question? Has he

5 studied the materials and regulations regarding shipping

6 caps.

7 MS. RASKIN: Yes, Your Honor.

8 THE COURT: All right. Since this crash, have

9 you studied the regulations and written materials regarding

10 shipping caps?

11 THE WITNESS: Yes, I have.

12 BY MS. RASKIN:

13 Q. I am handing you, Mr. Gentile, what has been marked or

14 what has been introduced into evidence as defendant exhibit

15 1.

16 Agent Gentile, do you recognize that to be a

17 Bureau of Explosives approval granted to Scott Aviation in

18 connection with the shipping of oxygen generators?

19 A. You used the word "approval?"

20 Q. Yes, sir.

21 A. That is what they contend it is, an approval, yes.

22 Q. That is what Scott contends it is?

23 A. Yes, I believe so.

24 Q. And do you think it is an approval, sir?

25 MR. BRIGHAM: Objection, Your Honor.

 

39

 

1 THE COURT: Pardon me for just a few minutes. We

2 are now getting into the witness telling the jury what

3 Scott thinks, and now we are asking him what he thinks, and

4 these are all opinions.

5 We can ask the witness to look at that. And are

6 you familiar with that type of document that is apparently

7 given by your agency to or may be given by your agency to

8 manufacturers? Are you familiar with that type of

9 document?

10 THE WITNESS: Yes, Your Honor.

11 THE COURT: Before this crash?

12 THE WITNESS: I was familiar with approvals, yes,

13 Your Honor.

14 THE COURT: All right. And do you have any

15 connection with that particular approval involving Scott

16 Aviation before this case or before this?

17 Did you, yourself, have anything to do with that

18 letter or that document, whatever it is?

19 THE WITNESS: Before the crash?

20 THE COURT: Yes.

21 THE WITNESS: No, sir.

22 THE COURT: But it has come to your attention

23 since the crash?

24 THE WITNESS: Yes, it is has, Your Honor.

25 THE COURT: So you have read it before today;

 

40

1 before just this moment?

2 THE WITNESS: Yes, I have.

3 THE COURT: All right. Now, do you have a

4 question about it?

5 MS. RASKIN: Yes, sir.

6 BY MS. RASKIN:

7 Q. And does that approval contain any mention of shipping

8 caps, sir?

9 A. No.

10 MR. BRIGHAM: Objection, Your Honor.

11 THE COURT: Well, the document does speak for

12 itself, and I assume it does not. So you can argue to the

13 jury that it does not,

14 BY MS. RASKIN:

15 Q. Agent Gentile, in furtherance of your investigation,

16 did you review that document?

17 A. Yes, I did.

18 Q. And after reviewing that document, sir, did you seek to

19 determine whether there were other documents submitted to

20 the Bureau of Explosives by Scott Aviation in connection

21 with the request to obtain that approval?

22 A. Yes, I did.

23 MR. BRIGHAM: Objection, Your Honor. This line

24 of inquiry is outside the scope.

25 THE COURT: This is all outside the scope of the

 

41

 

1 direct. He wasn't asked anything about this on direct. I

2 think you will have to call him back in your case and

3 present this evidence.

4 Right now, he didn't go into any of this. It is

5 sustained. It is outside the scope of the direct

6 examination.

7 MS. RASKIN: All right.

8 BY MS. RASKIN:

9 Q. Agent Gentile, during the course of your investigation,

10 you did have occasion to become familiar with oxygen

11 generators and their operation, didn't you, sir?

12 A. Yes, I did.

13 Q. Agent Gentile, I have shown you what has been

14 introduced into evidence as government exhibit 30-B. What

15 is that?

16 A. This is an oxygen generator from Scott Aviation.

17 Q. And are you familiar with the firing mechanism on that

18 generator, sir?

19 A. Yes, I am.

20 Q. Could you, please, point out for the jury where the

21 firing pin is?

22 A. The firing pin is the raised portion. It would be akin

23 to a mouse trap. In pulling back the metal portion of the

24 mouse trap, the top portion, the bar that would actually

25 catch the mouse, it is the top portion of it right here. It

 

42

 

1 is the top of the L.

2 Q. And could you also show the jury what you understand to

3 be the percussion cap, sir?

4 A. The percussion cap lies underneath the cap.

5 Q. Mr. Gentile, could I ask you to step out of the box and

6 get a little closer to the jury so the they can see it?

7 MR. BRIGHAM: Your Honor, we object to this line

8 of inquiry. He is giving opinions on this, and it is

9 outside the scope.

10 MS. RASKIN: I don't believe it is, Your Honor.

11 THE COURT: Well, if you are asking as to test

12 his testimony or his knowledge of the matters, he testified

13 on direct that he took a number of photographs. He told

14 the jury what they were, and then he talked about his

15 interview of Florence.

16 He didn't get into describing how any of these

17 items worked. Basically, his direct was limited to

18 describing what he saw on the generators that had been

19 recovered at the site, and then his observation of those

20 generators.

21 MS. RASKIN: And he did testify, Your Honor, as

22 to the percussion cap and whether it had been indented.

23 THE COURT: All right. You may step down and

24 show the jury. You may answer Ms. Raskin's question.

25 BY MS. RASKIN:

 

43

 

1 Q. Maybe, agent Gentile, you could use this mike again.

2 Now, if you could show the jury where the firing

3 pin is?

4 A. The firing pin is the little or it is the raised

5 portion right here, if you can see this.

6 Q. And the little yellow piece of plastic there, sir, what

7 do you understand that to be?

8 A. That's the cap.

9 Q. And would you remove that, please. What is underneath

10 that cap?

11 A. It is removed here, but the primer is in that location.

12 Q. Okay. You may return to the stand. Thank you, sir.

13 During the course of your investigation, agent

14 Gentile, did you seek to determine whether the shipping cap

15 would fit on the firing pin?

16 A. No.

17 Q. Could you take the shipping cap off right now and see

18 whether it --

19 MR. BRIGHAM: Objection, Your Honor.

20 THE COURT: As to this particular exhibit, you

21 are asking him -- you see, this is an exhibit in evidence.

22 If it can be placed back in the same condition it is in, I

23 don't see any problem with it.

24 Can it be placed back in the same position? I

25 mean, if he were to remove it, can you put it back?

 

44

 

1 THE WITNESS: Yes, Your Honor.

2 THE COURT: Okay. She asked you to remove it.

3 Go ahead and remove it. Objection overruled.

4 BY MS. RASKIN:

5 Q. Now, if you could, please, place the shipping cap on

6 what you described as the firing pin, sir. It doesn't fit,

7 does it?

8 A. No, it doesn't.

9 Q. You can put the exhibit down now.

10 Now, you testified a few minutes go that you had

11 not had any training at the FAA with respect to oxygen

12 generators prior to the accident.

13 Are you aware, sir, whether the FAA offered such

14 training at that point in time?

15 MR. BRIGHAM: Objection. Outside the scope.

16 THE COURT: He may answer that question.

17 THE WITNESS: Not specifically for oxygen

18 generators. Not what I do.

19 BY MS. RASKIN:

20 Q. You testified on direct examination that you had

21 examined a number of oxygen generators at the Tamiami

22 Airport after the ValueJet crash. Do you remember that

23 testimony, sir?

24 A. Yes.

25 Q. And your testimony was that as to several of those

 

45

 

1 oxygen generators, you observed that the primer cap had been

2 indented, correct, sir?

3 A. That's correct.

4 Q. First of all, let me ask you, Agent Gentile, how many

5 generators in total did you inspect at the Tamiami Airport?

6 A. 19.

7 Q. And of those 19, how many of them did you observe to

8 have the primer cap indented?

9 A. 7.

10 Q. So that means that as to the 12 remaining, there wasn't

11 any evidence that the primer cap had been indented?

12 A. That is correct.

13 Q. And as to the ones that you observed to be indented,

14 sir, were you able to determine by viewing those when that

15 indented had occurred?

16 A. No.

17 Q. So it could have occurred two weeks prior to your

18 inspection; is that correct?

19 A. I couldn't tell.

20 Q. Agent Gentile, I am going to show you what is

21 government exhibit 54-B, which I believe you have identified

22 as one of the photographs that you had taken of the

23 generators at Tamiami Airport; is that correct, sir?

24 A. That's correct.

25 Q. And in this photograph, do you show the generator

 

46

 

1 primer cap as having been indented?

2 A. This one was not indented.

3 Q. And directing your attention to the lower right-hand

4 corner here, what does this show?

5 A. It appears to be some type of lanyard of string of some

6 sort.

7 Q. And that lanyard was still attached to the generator

8 when you inspected it after the accident, sir?

9 A. Yes, it was.

10 Q. Now, when you observed the generators that appear in

11 this picture, did you see any evidence of fire damage?

12 A. In this particular picture?

13 Q. Yes.

14 A. No.

15 Q. I am showing you government exhibit 54-E. In this

16 picture, do you see the primer cap indented or un-indented?

17 A. This one was not indented.

18 Q. And on this picture, did you observe any evidence of

19 fire damage?

20 MR. BRIGHAM: Objection, Your Honor. It calls

21 for an expert opinion.

22 THE COURT: Overruled. You may answer the

23 question.

24 THE WITNESS: There is no indication of fire.

25 BY MS. RASKIN:

 

47

 

1 Q. In reviewing the 19 generators that you did review in

2 connection with your investigation, do you recall how many,

3 if any of them, did show indications of fire damage to you?

4 A. I don't have the exact number, but approximately a half

5 a dozen; maybe more.

6 Q. Out of the 19?

7 A. That's just a guess right now. I would have to look at

8 the photographs.

9 MS. RASKIN: I don't have any further questions

10 of this witness.

11 THE COURT: Mrs. Moscowitz.

12 CROSS EXAMINATION

13 BY MS. MOSCOWITZ:

14 Q. Mr. Gentile, if you were to follow an instruction that

15 said to put a shipping cap on a firing pin, it would just

16 fall off?

17 MR. BRIGHAM: Objection, Your Honor.

18 THE COURT: You asking him what he would do.

19 That calls for an opinion.

20 MS. MOSCOWITZ: It is a demonstration. He just

21 did, Your Honor, and I am asking him if he can do it again.

22 Maybe he can stand up there.

23 The question was if he were following a printed

24 instruction which said, Put shipping cap on firing pin,"

25 what would happen? And it is a pure physical act. He can

 

48

 

1 step up and show the jury.

2 THE COURT: You can ask him what happens when you

3 put a shipping cap on a canister, if you know.

4 MS. MOSCOWITZ: On the firing pin.

5 THE COURT: I am sorry. On the firing pin?

6 MS. MOSCOWITZ: Yes, sir.

7 THE COURT: All right.

8 MR. BRIGHAM: We object. That's argumentative.

9 It has already been done.

10 THE COURT: The objection is overruled. What

11 happens if you put a shipping cap on a firing pin, if you

12 know?

13 THE WITNESS: Well, I just did that. It would

14 fall off.

15 BY MS. MOSCOWITZ:

16 Q. It falls off, right?

17 A. Yes, it does.

18 Q. Sir, you interviewed Mr. Salas within a couple of days

19 after the accident, right?

20 A. That's correct.

21 Q. And he told you, did he not, that it was his decision

22 to return the generators to Atlanta?

23 A. He thought that he had permission.

24 Q. But he stated that he decided to do it, didn't he?

25 A. On his own?

 

49

 

1 Q. Yes, sir.

2 A. I believe so.

3 Q. Isn't that what he told you?

4 A. I believe so.

5 Q. Sir, you told us some of the things that Mr. Florence

6 told you on June 6, 1996, correct?

7 A. Yes.

8 Q. Didn't he also tell you that when he put the generators

9 into a box, he never thought that that was the final package

10 for them?

11 A. He stated that, yes.

12 Q. And didn't he also tell you that he put those

13 generators, the box that he had worked on on a cart by the

14 plane, meaning 802, correct?

15 A. That's correct.

16 Q. And that he had last seen them there, correct?

17 A. Correct.

18 Q. And didn't he also tell you that any prior haz-mat

19 training he had had, hazard material training, he had had

20 was when he had worked as a refueler of aircraft?

21 A. I believe he did.

22 MS. MOSCOWITZ: Nothing further, Your Honor.

23 THE COURT: All right. Redirect.

24 REDIRECT EXAMINATION

25 BY MR. BRIGHAM:

 

50

 

1 Q. Mr. Gentile, you are not an expert in fire damage; is

2 that correct?

3 A. That's correct.

4 Q. Now, with respect to the statement that Mr. Salas told

5 you as to whether he shipped these on his own, what did he

6 tell you?

7 A. I had asked him, and he said that he believed he had

8 permission from his boss.

9 Q. Now, I would like to show you -- may I have a brief

10 moment, Your Honor?

11 THE COURT: All right.

12 MR. BRIGHAM: Thank you. Excuse me, Your Honor.

13 BY MR. BRIGHAM:

14 Q. Now, with respect to the generators, are you familiar

15 that you saw that were packaged in what has been admitted as

16 government's exhibits 48-A and B, you had an opportunity to

17 observe those; is that correct?

18 A. Correct.

19 MS. MOSCOWITZ: Objection.

20 MS. RASKIN: Objection.

21 MS. MOSCOWITZ: Leading. Beyond the scope.

22 MR. BRIGHAM: It will go to the shipping cap

23 issue.

24 THE COURT: I am sorry. I can't hear you.

25 MR. BRIGHAM: it will go to the shipping cap

 

51

 

1 issue.

2 THE COURT: What is your question? I didn't hear

3 it.

4 BY MR. BRIGHAM:

5 Q. Where did you observe the safety caps placed on the new

6 generators in those boxes?

7 A. On the firing mechanism on the percussion cap.

8 Q. And explain to us where that would be with respect to

9 government's exhibit 30-B?

10 A. It is in the position it is in now; right over the

11 percussion cap.

12 MR. BRIGHAM: No further questions.

13 MR. DUNLAP: Your Honor, I have one issue that I

14 think came up.

15 THE COURT: I didn't mean to overlook you,

16 Mr. Dunlap. Go ahead.

17 MR. DUNLAP: It came up on Mr. Brigham's

18 cross-examination.

19 CROSS EXAMINATION

20 BY MR. DUNLAP:

21 Q. Agent, you said that Mr. Salas made a statement to you?

22 A. Yes.

23 Q. About shipping boxes, and he thought he had permission

24 from his boss?

25 A. Yes.

 

52

 

1 Q. Mr. Salas was in the shipping department of SabreTech?

2 A. Yes, he was.

3 Q. As far as you know, his boss was Mr. William Herrow?

4 A. He told me his boss was Mr. Herrow.

5 Q. Not Danny Gonzalez?

6 A. No, no.

7 MR. DUNLAP: Thank you. That's all I have.

8 THE COURT: You may step down. Thank you.

9 [The witness was excused].

10 THE COURT: Your next witness, please.

11 MS. MILLER: The United States calls Larry Fogg.

12 LARRY FOGG, GOVERNMENT'S WITNESS, SWORN.

13 DIRECT EXAMINATION

14 THE COURT: Would you pull the microphone toward

15 your face, please. All right. Thank you. Ms. Miller.

16 BY MS. MILLER:

17 Q. Mr. Fogg, could you, please, tell us your educational

18 background?

19 A. I have an associate degree in applied science,

20 electrical engineering technology from Clark Technical

21 College. I have a Bachelor of Science Degree in business

22 administration from the University of Southern California.

23 Q. Did you achieve any honors with that degree?

24 A. Yes, I did. I graduated Magna Cum Laude and then I had

25 Phi Kappa Phi, Beta Gamma Sigma, as well.

 

53

 

1 Q. And when was that? When was that degree?

2 A. I believe it was 1977.

3 Q. Mr. Fogg, when did you first begin working in the

4 aviation industry?

5 A. July, 1965.

6 Q. And where did you go to work at that time?

7 A. Douglas Aircraft Company, Long Beach, California.

8 Q. What was Douglas Aircraft?

9 A. The division I worked at was the commercial aircraft

10 division of Douglas Aircraft Company.

11 Q. Did Douglas Aircraft Company subsequently merge with

12 any other aviation company?

13 A. In April, 1967, Douglas Aircraft Company and McDonnell

14 Douglas Corporation merged.

15 Q. And what was the name of the resulting company?

16 A. The McDonnell Douglas Corporation.

17 Q. And what was the business of the McDonnell Douglas

18 Corporation?

19 A. It was primarily aerospace and defense.

20 Q. Now, how long did you work total for the Douglas

21 Aircraft Company, the company that merged into McDonnell

22 Douglas Aircraft or any subsequent company that merged into

23 it?

24 A. A little over 33 and a half years.

25 Q. And what was the subsequent company that McDonnell

 

54

 

1 Douglas merged into or was acquired by?

2 A. The Boeing Company.

3 Q. And is that the name of the company now?

4 A. Yes.

5 Q. Now, could you, please, return to the beginning of your

6 history at this company when it was still Douglas Aircraft

7 and tell us what was your first position with Douglas

8 Aircraft?

9 A. My first position was engineering draftsman B on the

10 C5-A 5 proposal effort in the electrical engineering

11 section.

12 Q. Mr. Fogg, can you pull that mike a little closer to you

13 or speak up a little. I am having a little trouble hearing

14 you. And what was your next position?

15 A. After the C5-A proposal was lost to Lockeed, I

16 transferred over to the DC-9 electrical wiring section in

17 the electrical chart group. I was still an engineering

18 draftsman B at that time.

19 Q. And did you continue working in projects involving the

20 DC-9 for some time or for some period of time thereafter?

21 A. Yes, I did. I went from the chart group to the

22 electrical wiring design section which designed the

23 electrical circuits and provided wiring diagrams for the

24 electrical circuits for the DC-9 airplane.

25 Subsequently, I progressed in different job

 

55

 

1 classifications, engineering draftsman A, associate engineer

2 scientist, which was a salaried position. I became the

3 group manager of the DC-9 electrical wiring design section.

4 Q. And when was that?

5 A. Sometime around late '69 or 1970.

6 Q. And what was your next position following that?

7 A. Following that, I continued that until about 1975 or so

8 and took a staff position in the electrical engineering

9 section of the Douglas Aircraft Company of McDonnell

10 Douglas.

11 Q. And did you have any new responsibilities in that

12 position?

13 A. I did. In that position, I was responsible to provide

14 information for FAA certification for DC-8 and DC-9 and

15 DC-10 aircraft. I was responsible for assisting in accident

16 and incident involvement.

17 Q. Now, what do you mean when you say you were responsible

18 for participating in accident and incident involvement

19 beginning in this period of the mid 1970's?

20 A. My direct superior at that time was a long time Douglas

21 Aircraft employee who had extensive accident and incident

22 background over the years on DC-8 and DC-9 aircraft, and I

23 was providing direct assistance to him.

24 Q. And in your beginning phase of your work in incident

25 investigations, did you focus particularly in some area of

 

56

 

1 your background?

2 A. My involvement in incidents was while I was still in

3 the DC-9 wiring diagram group and the manager of that group.

4 Any electrical related incidents that were reported, we

5 would be involved in the investigation.

6 Q. And did you just say wiring diagram group?

7 A. Yes, the electrical wiring group; the design group.

8 Q. What was your next position following this 1975 or '76

9 move?

10 A. I moved to a section called design assurance and

11 safety. I don't remember whether it was 1978 or 1979. I

12 was at that time a staff engineer.

13 Q. And did you advance in the design assurance and safety

14 section?

15 A. I did. I advanced to senior staff engineer, and then

16 principal staff engineer.

17 Q. What were your duties opinion responsibilities as

18 principal staff engineer for the design, assurance and

19 safety section by now this was McDonnell Douglas Aircraft;

20 is that correct, Mr. Fogg?

21 A. Yes, it is.

22 Q. What were your duties and responsibilities in that

23 position?

24 A. At that time I was responsible for direct on-site

25 accident investigation. I was responsible for coordinating

 

57

 

1 patents and licenses of new technology. I was responsible

2 for managing the technical activities of the McDonnell

3 Douglas Long Beach facility of Douglas Aircraft Company in

4 products liability litigation matters.

5 Q. Now, you told us that it was at this time that you

6 began on-site accident investigation; is that correct?

7 A. Yes.

8 Q. Approximately what year did you participate or did you

9 first participate in an on-site accident investigation?

10 A. It was 1983.

11 Q. And from 1983 through the present, have you continued

12 to participate in on-site accident investigation of aircraft

13 accidents?

14 A. Yes, I have.

15 Q. And in that role, approximately how many on-site

16 investigations have you participated in that involved fire

17 related aircraft investigations?

18 A. I don't have that number right in my head. If you

19 could provide me with a copy of my curriculum vitae to

20 refresh my recollection.

21 MS. MILLER: Your Honor, if I may approach the

22 witness?

23 THE COURT: Yes.

24 BY MS. MILLER:

25 Q. Mr. Fogg, I am handing you a document. Is that a copy

58

 

1 of your curriculum vitae or CV as it is called?

2 A. Yes, it is.

3 Q. And does reviewing that refresh your recollection as to

4 approximately how many on-site investigations you have

5 participated in of aircraft accidents involving fire?

6 A. Approximately 15.

7 Q. And approximately how many other major aircraft

8 incidents have you participated in on an on-site basis?

9 A. Approximately 5.

10 Q. Of these approximately 20 on-site accident

11 investigations, in how many have you had occasion to provide

12 assistance to the National Transportation Safety Board?

13 A. In the majority of them.

14 Q. Are you currently involved in any ongoing on-site

15 aircraft accident investigations?

16 A. Yes, I am.

17 Q. And which one or ones are those?

18 A. I retired from the Boeing Company February 26th of 1999

19 this year, and I had been working on the Swissair flight 111

20 accident investigation for the Transportation Safety Board

21 of Canada representing the Boeing Company on a fire

22 explosion group approximately two to two and a half weeks

23 after I retired.

24 I went back under contract to Boeing to continue

25 to provide direct assistance on that on-site investigation.

 

59

 

1 Q. And in that contract role, do you have an employment

2 relationship with an entity?

3 A. I am employed by McDonnell Douglas Technical Services.

4 Q. And is that on a salary basis or a "piece work basis?"

5 A. It is on a piece work basis.

6 Q. And have you also been engaged by the United States

7 Government in this matter?

8 A. In the Swissair 111?

9 Q. No. In the matter that brings us here today.

10 A. Yes, I have.

11 Q. Mr. Fogg, what if any courses have you taken specific

12 to accident investigation?

13 A. I took an accident investigation course at the

14 University of Southern California I believe around 1976.

15 I took the FAA Part 1 aircraft accident

16 investigation course at Oklahoma City; also the part two FAA

17 accident investigation course at Oklahoma city, and I took

18 the part 3 FAA accident investigation course at Oklahoma

19 City.

20 Q. In addition, over the years have you participated in

21 in-house training at McDonnell Douglas with regard to

22 accident investigation?

23 A. Yes, I have.

24 Q. Mr. Fogg, do you at this point in your career provide

25 any teachings or instruction yourself with regard to

 

60

1 aircraft accident investigation?

2 A. Yes, I do.

3 Q. And in connection with what entity?

4 A. With the Transportation Safety Institute in Oklahoma

5 City, which is part of the Department of transportation. I

6 am on the associate staff and have been since 1987 to teach

7 a portion of the part 3 FAA aircraft accident investigation

8 course.

9 Q. And who are the students at these courses?

10 A. The majority of the students are FAA inspectors,

11 maintenance inspectors and flight standards inspectors. We

12 also have flight controllers. Others attendees include

13 members of the United States Government accident

14 investigation folks like the Navy, the Army, and we do have

15 on occasion representatives from foreign government accident

16 investigation agencies who attend as well.

17 Q. What subjects do you teach?

18 A. The course, part 3 course is new technology and

19 recurrent training. The majority of the course that I teach

20 or the portion relates to electrical related aircraft

21 accidents; primarily aircraft fires, as well as some of

22 recurrent training on metallurgical techniques that we've

23 used, as well as additional lessons learned over the course

24 of the investigations that I have been on.

25 Q. Do you teach fire investigation techniques?

 

61

 

1 A. Yes, I do.

2 Q. Mr. Fogg, do you hold any patents related to the issue

3 of aircraft fires?

4 A. I hold a patent that is related to destructive testing

5 of an encapsulated device in order to locate a latent

6 failure mode which I derived from a process developed in

7 conjunction with one of the aircraft accident investigations

8 involving a fire with a component.

9 MS. MILLER: Your Honor, the United States

10 proffers Mr. Fogg as an expert in the area of aircraft

11 fires, specifically including post incident examination of

12 aircraft hardware and documentation of heat damage, impact

13 damage, mechanical failures, electrical failures and fire

14 damage patterns in aircraft accidents.

15 THE COURT: All right. Is there any objection,

16 or do counsel have any questions they wish to propound to

17 him regarding his background qualifications?

18 He will be qualified as an expert witness in this

19 case.

20 MS. MOSCOWITZ: No voir dire, Your Honor. We

21 just want to maintain the objection that we discussed

22 yesterday.

23 THE COURT: All right. The Court then will

24 consider, based upon the foundation that has been laid of

25 Mr. Fogg's background and experience, will declare him to

 

62

 

1 be an expert witness.

2 Now, an expert witness, ladies and gentlemen, can

3 now for the first time in this case tell you opinions. You

4 heard my own view of that, but this man can now or this

5 witness now, Mr. Fogg, is an expert by virtue of his

6 training and experience, and he can give you opinions

7 within the field of his expertise.

8 Like any other witness, you can accept or reject

9 what he says to you. If you think that it is logical and

10 makes sense, then you accept it. If it is not, you reject

11 it just like any other witness.

12 Simply because he is an expert does not mean that

13 you must accept all of his testimony. You have to weigh

14 and judge its logic and credibility, but he can now, as I

15 say for the first time in the case, express an opinion.

16 All right. Go ahead.

17 BY MS. MILLER:

18 Q. Mr. Fogg, did you become involved in an incident

19 investigation in May of 1996?

20 A. Yes, I did.

21 Q. And what incident was that?

22 A. Actually, it was an accident, and it was the ValueJet

23 DC-9 accident.

24 Q. And there a distinction between an incident and an

25 accident?

 

63

 

1 A. Yes, there is.

2 Q. Could you tell us, please, what th distinction is?

3 A. The distinction is defined under ICAO Annex 13, which

4 is an international document, in an accident involves an

5 event where you have substantial damage to the aircraft or

6 personal injury once the passengers have boarded the

7 aircraft and prior to the time they have disembarked the

8 aircraft at the end of the flight.

9 Q. And an incident is all other types of circumstances,

10 Mr. Fogg?

11 A. That is correct.

12 Q. Mr. Fogg, who asked you to participate in this accident

13 investigation?

14 A. Bill Steelhammer, who was our McDonnell Douglas

15 accident investigation lead coordinator for this accident,

16 called me at home the day of the accident and asked me if I

17 could participate.

18 Subsequently, our emergency control officer who

19 bill reported to for this accident requested that I travel

20 to Miami.

21 Q. And did you do so?

22 A. I did.

23 Q. When did you arrive in Miami?

24 A. I arrived the Sunday morning following the accident,

25 which would be the next day.

 

64

 

1 Q. And in Miami, did you work with any other persons or

2 entities?

3 A. Yes, I did.

4 Q. With what persons or entities?

5 A. The National Transportation Safety Board.

6 Q. And in what capacity did you do that?

7 A. I was assigned membership in the systems group by the

8 National Transportation Safety Board, and subsequently also

9 assigned membership in the fire and explosion group which

10 was formed several days after the investigation began.

11 Q. Now, Mr. Fogg, during the course of your work with

12 those two groups and the accident investigation, did you

13 form or make your own observations and form your own

14 opinions?

15 A. Yes, I did.

16 Q. Mr. Fogg, do you understand that in this trial we will

17 be asking you about your opinions and not those of anyone

18 else?

19 A. That is correct.

20 Q. Approximately for how long did you remain in the South

21 Florida area as part of your participation in this accident

22 investigation?

23 A. Well, I traveled on May 11th in the evening. I arrived

24 the next morning. I don't remember what day I initially

25 returned to Los Angeles, but I was home for approximately a

 

65

 

1 week and was back to Miami until about the 20th of June.

2 So out of a 5 or 6 week period, I had

3 approximately one week back in Los Angeles, and the rest of

4 the time was in Miami.

5 Q. Now, you have told us that you worked with both the

6 fire and explosives group and the systems group. What does

7 systems refer to, Mr. Fogg?

8 A. Typically, the NTSB forms various groups for different

9 aspects of the accident. If you are involved in aircraft

10 systems, it would be --

11 MS. MOSCOWITZ: Objection. Relevance, Your

12 Honor.

13 THE COURT: Well, yes. I think that his

14 testimony is, as we understand it, is to be limited to his

15 own observations and, therefore, the make up of the group

16 and the procedures they use I think are not or would not be

17 something that we would go into at this time.

18 BY MS. MILLER:

19 Q. Mr. Fogg, what was your role with regard to your

20 participation?

21 A. My role for the first 10 days or so was recovering

22 wreckage directly from the Everglades.

23 Q. And how did you go about doing that?

24 A. I boarded one of the air-boats, after suiting up in the

25 biohazard suits, the white coveralls the boots, the gloves,

 

66

 

1 and so forth.

2 I physically went out into the Everglades and

3 retrieved aircraft hardware that was fragmented hardware.

4 It was visible from the surface, loaded it onto the boats

5 until we had a boat load; brought it back in, unloaded it

6 and continued that process.

7 Several days into the recovery effort, I obtained

8 some garden tools from Home Depot that allowed me to fish an

9 area around the boat and pull up wreckage that was down

10 under the water and continued that operation until we

11 accumulated enough wreckage that I would be more valuable at

12 the hanger at Tamiami Airport doing wreckage identification

13 and reconstruction activities.

14 Q. Mr. Fogg, could you describe to us what would happen to

15 wreckage once it was removed?

16 A. Once it was removed, it was placed in the air-boat and

17 taken to shore and unloaded. Then it went through a

18 decontamination process where it was sprayed with a chlorine

19 bleach solution for sanitary purposes.

20 It was subsequently loaded onto a truck and

21 transported to the Tamiami Airport, unloaded on a hanger

22 floor, and then individually the pieces were individually

23 sorted and identified.

24 Q. Did you participate in this process of sorting and

25 identifying pieces?

 

67

 

1 A. Yes, I did.

2 Q. And what tools or reference materials did you use in

3 that sorting and identification process?

4 A. I used magnifying glasses, a tape measure, the

5 McDonnell Douglas design drawings and ValueJet design

6 drawings that were provided by ValueJet to assist the

7 accident investigation.

8 Q. All right.

9 A. The illustrated parts catalog from McDonnell Douglas,

10 and in some cases referred to the maintenance manuals.

11 Q. And how were you able to associate items of wreckage

12 with positions in the aircraft?

13 A. If the individual item had a discernible part number on

14 it, I would go back to the engineering drawing and installed

15 part in the airplane and physically situate the part in its

16 proper location pursuant to the engineering design drawing.

17 If a piece did not have a part number on it or a

18 discernible part number, but it matched fracture

19 surface-wise a second piece which could be determined of a

20 known location, then the fracture matching surfaces would

21 identify the particular location of that part, as well.

22 Q. Mr. Fogg, are you familiar with a system for

23 identifying locations or stations on an aircraft?

24 A. Yes, I am.

25 Q. And how long have you worked with such a system?

 

68

 

1 A. Since my original employment at McDonnell Douglas in

2 1965.

3 Q. Can you explain what this system is?

4 A. Essentially, it is a system of coordinates in three

5 dimensional space which affords the opportunity in an X

6 being horizontal, Y being longitudinal, B being vertical to

7 identify any point in three dimensional space based on the

8 X, Y and Z coordinates.

9 Q. And in addition to simply having these coordinates, are

10 they demarcated somehow with measurements?

11 A. In the design of the aircraft, when it is initially

12 designed, there is a set of coordinates that is available,

13 and the nose of the aircraft generally does not start at

14 zero.

15 Zero is frequently a point that is somewhere

16 forward of the nose, and then it runs linearly in inches for

17 as long as it takes to encompass the length of the airplane

18 which is the Y axis or the station number axis.

19 So every point in the airplane corresponds to a

20 specific station number location in inches from the

21 reference point.

22 Q. Mr. Fogg, I am showing you what has been marked for

23 identification as government's exhibit 100, and I ask if you

24 recognize this item?

25 A. Yes, I do.

 

69

 

1 Q. And is this an item that you have worked with?

2 A. Yes.

3 Q. Is this an item that you furnished to the government to

4 be made into a chart?

5 A. It is one of the charts from one of our manuals.

6 MS. MILLER: The government offers exhibit 100

7 into evidence.

8 MS. MOSCOWITZ: No objection.

9 THE COURT: All right. Government's exhibit 100

10 for identification is admitted into evidence as

11 government's exhibit 100.

12 BY MS. MILLER:

13 Q. Mr. Fogg, what is Government exhibit 100 ?

14 With the Court's permission, Your Honor, I am

15 placing it on the easel in front of the jury.

16 THE COURT: Yes, of course.

17 THE WITNESS: It is a depiction of a side view of

18 a DC-9 Series 30 aircraft, and it also has a cross

19 sectional cut-a-way of a DC-9 Series 30 aircraft.

20 Q. The accident that you were investigating, what type of

21 a plane was it that had crashed?

22 A. It was a DC-9 Series 30 aircraft.

23 Q. And I am showing you what has been previously received

24 in evidence as government's exhibit 1. Is this an example

25 of the D.C. 9 Series 30 aircraft?

 

70

 

1 A. Yes, it is.

2 Q. Mr. Fogg, I would ask you, please, if you could step

3 down to where the chart, government's exhibit 100 is on

4 display. And if you could stand by this microphone, please,

5 and take this pointer, could you please point out to the

6 jury the station numbers that you were describing and

7 explain how the system works, moving from the front to the

8 back of the airplane?

9 A. Yes. This number 7 is station number 7, which is the

10 beginning of the nose of the DC-9 Series 30 aircraft. As we

11 go from the nose to the tail, the numbers that you see

12 correspond to the length in inches from the nose back to

13 the, actually on this the tail of the aircraft.

14 The individual airplane frames are denoted by the

15 bold station numbers that we see above the diagram.

16 We have a frame at station 160. We have another

17 frame at station 218 which corresponds to the forward

18 portion of the lower forward cargo compartment.

19 As we move further back, we have a frame station

20 579, and in the standard DC-9 aircraft, the forward cargo

21 compartment would extend from station 218 to approximately

22 station 581.

23 Now, on the ValueJet DC-9, the aircraft, when it

24 was ordered and delivered, had a supplemental fuel tank,

25 580 gallons which occupied a portion from 518 forward to

 

71

 

1 approximately station 510 which shortened up the volume of

2 the lower forward cargo apartment by approximately 140

3 cubic inches.

4 In the cross-section, we have the circumference

5 of the aircraft pretty much to scale; in fact, it is

6 exactly to scale. These numbers that you see are called

7 longerons.

8 Q. Could you spell that word for us, please, Mr. Fogg?

9 A. L-o-n-g-e-r-o-n-s.

10 Q. And if I might use, Mr. Fogg, let me give you the hand

11 held mike and move this other mike back.

12 A. Thank you.

13 Q. You were explaining to us about the longerons and the

14 cross-section view of the aircraft.

15 A. Yes. Now, in the cross-section view, we've got the

16 four line that is shown. We've got the window line for the

17 window belt which corresponds to this region, and in the

18 structural design of the aircraft, we have the in frames

19 that form the outer portion, the outer contour and

20 longitudinally along the air frames we have the longerons

21 which form part of the aircraft structure. Is it working?

22 Okay.

23 THE COURT: Yes.

24 MS. MILLER: Your Honor, could I ask Mr. Fogg,

25 can you try to keep your voice up, Mr. Fogg, and let's see

 

72

 

1 if we can make due without the microphone.

2 THE COURT: As long as the court reporter and the

3 jury can hear.

4 THE WITNESS: I will try. Can everybody hear me?

5 The one at the top center line is identified as longeron

6 number 1, and then we move around to the left with longeron

7 2, 3, 4, 5, 6, 7, 8, and so forth, until we get down to the

8 bottom one which is longeron 7.

9 The ones on the left-hand side are identified as

10 the left longeron, the left-hand longerons, and the ones on

11 the right-hand side are numbered in exactly the same

12 fashion 1 through 30, and they are the right longerons.

13 Q. Go on.

14 A. So for our purposes, the bottom of the floor beam would

15 begin at approximately or end at approximately longeron 19

16 left and longeron 19 right; the top of the floor being

17 longeron 18 left and 18 right.

18 Q. Mr. Fogg, you told us where the stations were for the

19 forward cargo hold. Can you show that again for us on the

20 diagram?

21 A. The cargo hold in the ValueJet DC-9, the forward most

22 portion of the cargo compartment was at station 18, which is

23 right here at the 18 frame and extended back to the bulkhead

24 at station 510, which is 7 inches aft of this station 503

25 frame.

 

73

 

1 Q. Mr. Fogg, you have used the term aft. Is that a-f-t?

2 A. It is a-f-t, yes.

3 Q. Could you explain to us what aft means?

4 A. Aft would be anything in the direction of the nose to

5 the tail. We would consider that aft.

6 Q. And what is the opposite direction called?

7 A. Any time we refer in the direction from the tail toward

8 the front will be forward.

9 Q. And with regard to right and left in an aircraft, does

10 right refer to right as one is standing in the aircraft

11 looking forward or looking aft

12 A. It refers to someone standing in the aircraft looking

13 forward. It would be the right side. And when we refer to

14 right side, left side, the other terminology that is

15 important is inboard and outboard.

16 Outboard is anything in the direction forward

17 that is outside of the aircraft. Either side would be

18 outboard. Inboard is any item where we are talking about

19 the direction facing inboard toward the center of the

20 aircraft.

21 Q. Now, Mr. Fogg, you told us the station numbers for the

22 forward cargo hold. Can you also show us on the photograph,

23 which is government's exhibit 1, with the pointer where the

24 forward cargo hold would be located on the aircraft?

25 A. Hold this up for me, please. It would be just forward

 

74

 

1 of this first window which is right in this area, and it

2 will be approximately this region right here.

3 Q. Mr. Fogg, at what station, if you know, is the door to

4 the forward cargo hold located? And I am replacing exhibit

5 100 on the easel?

6 A. It is on the right-hand side of the aircraft, and it

7 goes from station 37 onto station 427 and, in fact, on this

8 diagram it is shown with a dotted line.

9 Q. Thank you, Mr. Fogg. If you could resume your seat,

10 please for the moment.

11 Mr. Fogg, what kind of a cargo hold was the

12 forward cargo hold of this aircraft?

13 A. The forward cargo compartment on this aircraft was a

14 class D compartment.

15 Q. What do you mean by a class D compartment?

16 A. A Class D compartment by the FAA regulations is a

17 compartment where the volume of the compartment is limited

18 in the construction is such that it will prevent the spread

19 of any fire from the inside to become a hazard to the

20 aircraft or the occupants.

21 Q. What are the design features of the class D cargo hold

22 that bring about that result?

23 A. It is a combination of fire resistant liners for the

24 cargo compartment itself, as well as limited air flow into

25 the compartment such that it is a sealed compartment. On

 

75

 

1 the DC-9, it is virtually a completely sealed compartment.

2 Q. Now, when you say that, you referred to the liners for

3 the hold. What are you talking about? What part of the

4 hold is that?

5 A. That would be the inside portion of the cargo

6 compartment; the side, the floor, the ceiling, the forward

7 bulkhead and the aft bulkhead.

8 Q. What are those liners made of?

9 A. They are made out of a laminated fiberglass material.

10 Q. And is that there anything in the fiberglass?

11 A. We have fiberglass cloth lay up along with a binding

12 resin.

13 Q. And are those liners designed to be fire resistant?

14 A. Yes, they are.

15 Q. Now, you have mentioned that air flow is restricted,

16 and the class D cargo hold is basically a sealed

17 compartment.

18 Mr. Fogg, in what way does that contribute to fire

19 resistance or fire containment in the class D cargo hold?

20 A. In the event that a fire develops within the

21 compartment, the normal oxygen concentration in the

22 atmosphere is approximately 20 percent.

23 As the fire begins to burn, it consumes or uses

24 up oxygen from within the compartment, and it reduces that

25 oxygen concentration down to a level of somewhere around 10

 

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1 percent at which point the fire can no longer continue to

2 burn, and it is rendered to a more or less smoldering

3 state.

4 Q. Mr. Fogg, what is this effect on this oxygen feature of

5 this class D cargo hold if an item is introduced into the

6 cargo hold which generates its own oxygen?

7 A. In the event that you have an oxidizer within the

8 compartment that would continue to provide oxygen, first it

9 would enrich the environment when the fire started.

10 It would add to the intensity of the fire, and it

11 would continue to provide oxygen so that you never depleted

12 the oxygen concentration to a level that would render the

13 fire into a smoldering state.

14 Q. Now, Mr. Fogg, you have told us that wreckage was

15 brought back to the hanger and identified in various ways.

16 What was done with the wreckage as it was identified to

17 locations in the aircraft?

18 A. In the hanger was constructed on the floor an outline

19 of the aircraft in tape; a large outline, such that it

20 corresponded to the full length of the aircraft, as well as

21 the wings and a section for the tail geometry and tail

22 portions.

23 As the parts came in and were identified, they

24 were physically located on the hanger floor within the space

25 that they would be located within the aircraft -- this is a

 

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1 flat view section -- until a point in time came where it was

2 obvious that some parts had fire damage, and in that area

3 where the parts had fire damage, a mock-up reconstruction

4 fixture was made to locate those parts in three dimensional

5 space in order to assess the fire damage and potential burn

6 patterns that would be developed as the reconstruction

7 fixture was completed.

8 Q. What was this reconstruction fixture made of?

9 A. The reconstruction fixture was made of plywood, two by

10 fours and chicken wire, primarily with some smaller one by

11 three's or one by four material, as well.

12 Q. Did you observe this structure?

13 A. Yes, I did.

14 Q. Did it have station markings on it?

15 A. Yes, it did.

16 Q. And did you work closely with this structure and with

17 the array of wreckage upon it?

18 A. Yes, I did.

19 Q. Mr. Fogg, I am handing you what has been marked as

20 government's exhibits for identification E, F, G and H, and

21 I would ask you to take a look at those items. Please

22 excuse me. I forgot to give the prefix. That is, Your

23 Honor, 58-E, F, G and H.

24 THE COURT: Thank you.

25 A. Yes, I recognize these photographs.

 

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1 Q. Do those photographs truly and accurately depict the

2 item that is within them?

3 A. Yes, they do, with the exception of -- they truly and

4 accurately depict it on the date they were taken.

5 Q. And are you able to know approximately of when they

6 were taken?

7 A. They were taken subsequently to the 19th of June.

8 MS. MILLER: The government offers 58-E, F, G and

9 H in evidence.

10 MS. MOSCOWITZ: No objection.

11 THE COURT: The four exhibits for identification

12 being 58-E, 58-F, 58-G and 58-H are each admitted into

13 evidence.

14 BY MS. MILLER:

15 Q. Mr. Fogg, could you tell us just generally what these

16 four pictures are of?

17 A. These four pictures are of the reconstruction fixture

18 at the Tamiami Airport and shows the fixture from four

19 different views, looking directly aft the into the fixture,

20 looking at the right side of the fixture, looking at the aft

21 end of the fixture and looking at the left side of the

22 fixture.

23 Q. Mr. Fogg, I am going to put these on the magnifier.

24 Your Honor, if I might ask Mr. Fogg to step down

25 here so that he can use the pointer with magnifier.

 

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1 THE COURT: All right.

2 MS. MILLER: Your Honor, if you can bear with me

3 while I try to focus in on this. All right.

4 BY MS. MILLER:

5 Q. Mr. Fogg, could you tell us, please, what is depicted

6 in this picture? And if you would like to use the pointer

7 to show us individual parts, please do so.

8 A. What we are looking at is the forward face. We are

9 looking at the forward face surface of the bulkhead from the

10 forward lower cargo compartment.

11 Q. And what is the curve in that piece of wood that we are

12 looking at? What is that producing?

13 A. This curve is the outer geometry of the aircraft

14 structure.

15 Q. And what are these things that appear arrayed inside

16 that curve?

17 A. First we have two by fours across the or lumber across

18 the top which is respective or representative of the floor

19 beam locations. The portion that you see in the white is

20 the recovered portion of the forward bulkhead of the forward

21 lower cargo compartment.

22 MS. MILLER: And, Your Honor, for the record, the

23 picture now on the magnifier is 58-E.

24 THE COURT: Thank you.

25 MS. MILLER: I am now placing on the magnifier

 

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1 58-F.

2 Mr. Fogg would you, please, tell us what is

3 depicted in 58-F?

4 A. 58-F is looking at the reconstruction fixture from the

5 right side toward the left side.

6 Q. And what portion of it, the reconstruction fixture did

7 not reconstruct the entire structure of the aircraft, did

8 it, Mr. Fogg?

9 A. No, it did not.

10 Q. What portion of the aircraft did it reconstruct?

11 A. This reconstruction fixture re constructed the portions

12 of the lower forward cargo compartment which were recovered

13 and could be specifically identified to a location within

14 the compartment.

15 Q. And what was the reason that that portion of the plane,

16 as opposed to other portions, was reconstructed?

17 A. This particular portion of the aircraft was the portion

18 that we found concentrated fire and heat damage in.

19 MR. RASKIN: Objection to "we."

20 THE WITNESS: That I observed.

21 THE COURT: All right.

22 BY MS. MILLER:

23 Q. Was that your personal opinion, Mr. Fogg?

24 A. Yes.

25 Q. I am now removing 58-F from the magnifier and placing

 

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1 on it 58-G.

2 Mr. Fogg, would you, please, tell us, and use the

3 pointer if it is of assistance to you, what is depicted in

4 58-G?

5 A. This is a photograph taken from the aft end of the

6 reconstruction fixture looking forward, and you will see

7 that the portion in here is a portion of the recovered aft

8 bulkhead of the forward lower cargo compartment.

9 Q. Is it correct then, Mr. Fogg, that in this shot, what

10 one is looking at is a depiction of the aft or back end of

11 the forward cargo hold from the outside of that cargo hold

12 looking forward?

13 A. With regard to the cargo hold itself, that's correct.

14 We also have in the foreground recovered portions of the 580

15 gallon supplemental fuel tank which has no fire, heat or

16 soot damage.

17 Q. And, Mr. Fogg, now I am placing on the magnifier

18 government exhibit 58-H, and I would ask if you could

19 explain to us, please, what is depicted in that picture,

20 using the pointer, if necessary?

21 A. This photograph is a photograph taken of the

22 reconstruction fixture from the left side looking toward the

23 right side, and it doesn't show up very well, but you can

24 see recovered portions of the cargo liner from the left side

25 that are visible in this photograph that have been placed on

 

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1 the reconstruction fixture.

2 Q. Thank you, Mr. Fogg. If you could take your seat again

3 for a moment, please.

4 Mr. Fogg, you have told us that in addition to

5 these pieces being arrayed on the reconstruction fixture,

6 they were physically examined; is that correct?

7 A. Yes, that's correct.

8 Q. Did you make physical examinations of recovered parts

9 of the aircraft?

10 A. Yes, I did.

11 Q. And what types of parts did you examine?

12 A. I examined most of the parts; probably all of the parts

13 that were associated with the fire area involvement on the

14 ValueJet, as well as all of the electrical wiring recovered

15 from the aircraft and the areas of the aircraft where we did

16 not have fire and heat damage in the recovered wreckage.

17 Q. Now, did you look at wires just from the areas where

18 you observed heat and fire damage, or did you look at all

19 the wires from the wreckage?

20 A. I looked at all of the wires that were recovered from

21 the aircraft wreckage.

22 Q. And how did you make your examination of the wires?

23 A. Physically, the wires in the aircraft separated from

24 the aircraft during the break up and fragmentation of the

25 aircraft. So I looked at the recovered wiring, particularly

 

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1 the broken frayed ends to see if there was any evidence of

2 any anomalies other than pure mechanical fracture of the

3 strands during the break up process.

4 In addition, I examined the conduits in the

5 wiring for evidence of any possible heat or soot

6 accumulation, heat damage to the insulation material

7 itself.

8 Q. Now, did you also look for signs of fire and heat

9 damage in other components that you examined in addition to

10 the wiring?

11 A. Yes. I observed fire and heat damage in the aircraft

12 structure; part of the skin, floor beams, seat tracks; some

13 of the components from above the floor, as well as the area

14 around the outflow valve, the static ports and the alternate

15 static ports.

16 Q. Mr. Fogg, could you, please, explain to us what you

17 looked for when you are looking for signs of fire and heat

18 damage?

19 A. I am looking for change of state in the material, such

20 as discoloration of the metals or the primers for the

21 paints; blistering of paint; flaking of primer paints; the

22 absence of primer or paints; physical heat distress to the

23 metal itself in the form of coloration or changes of state

24 in the metal from a hard metal to soft conductile and

25 visible signs of sagging, drooping, melting and broomstraw.

 

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1 Q. Mr. Fogg, you used a word back there, ductile. Is that

2 spelled d-u-c-t-i-l-e?

3 A. Yes, it is.

4 Q. And what does that mean?

5 A. Ductile is generally soft and pliable material.

6 Q. And what happens to soft and pliable material,

7 specifically metal? Withdrawn.

8 What are signs of fire or heat damage in metal

9 that starts out in a soft and ductile state?

10 A. Well, some metals start off in a soft conductile state,

11 such as copper strands and copper wires. Steel; a plate of

12 steel strands within control cables, and so forth, and in

13 those you frequently will encounter a change of state with

14 regard to fire damage where the individual strands become

15 hard and brittle. Typically, a slang word would be

16 embrittlement for that.

17 Q. Is that spelled e-m-b-r-i-t-t-l-e-m-e-n-t,

18 embrittlement?

19 A. That's correct.

20 Q. All right.

21 A. Other materials, such as aluminum which normally would

22 be in a rigid state or a harder state tend to soften and

23 become more pliable in the presence of heat.

24 Q. So hard metals can become soft and soft metals can

25 become brittle as a result of heat and fire. Is that true,

 

85

 

1 Mr. Fogg?

2 A. That's true.

3 Q. Now, you have mentioned the term soot. Is soot

4 accumulation something that you look for in your

5 examination?

6 A. Yes. Soot accumulation is primarily a carbon base

7 smoke and other fire byproducts that in the presence of a

8 fire are released in the local area surrounding it and can

9 attach itself to hot metal and other objects due to either

10 heated metal or electrostatic charges.

11 Q. And what are you looking for? What does soot look

12 like?

13 A. Soot typically looks like black carbon based material.

14 Q. Does it have a particular shape? Is it cloudy? Is it

15 streaky? Is it stippling?

16 A. Soot will accumulate on the surface, but it tends to

17 follow the air stream that is flowing in.

18 Q. Can it, therefore, take various shapes depending on

19 that air stream?

20 A. It can.

21 Q. At what temperatures does soot adhere to metals,

22 generally?

23 A. Soot will adhere to metals up to approximately 700

24 degrees or so. Above 700 degrees it tends not to adhere or

25 to no longer adhere.

 

86

 

1 Q. Mr. Fogg, among the signs of heat and fire damage that

2 you look for, are there also signs of physical burning?

3 A. Yes.

4 Q. What are some of the manifestations of physical changes

5 to objects through burning; not changes to the composition,

6 but changes to the configuration of objects due to burning?

7 A. In a fire situation, where we have non-metalic

8 products, materials being utilized can actually have

9 physical melting, dripping, charring.

10 Q. What is charring?

11 A. Charring would be an incomplete combustion process

12 where a product is in the combustion state, but it not has

13 not completely been consumed. So it is more or less in an

14 incomplete or partially burned state that is commonly

15 referred to as charred.

16 Q. Mr. Fogg, one term, are you familiar with the term

17 oxidation?

18 A. Yes, I am.

19 Q. And what is oxidation?

20 A. Oxidation is a process of adding oxygen to a substance

21 or an element.

22 Q. And what relationship, if any, is there between

23 oxidation and fire?

24 A. Generally, in the oxidation process, some heat is

25 released. In actual combustion, the process is a very rapid

87

 

1 oxidation where in heat and/or light, visible light usually

2 in the form of a flame are evident.

3 Q. Is oxygen flammable?

4 A. Yes, it is.

5 Q. And what is the effect on the ignitability of

6 surrounding materials in the presence of an oxygen source?

7 A. When you have a fire in progress and introduce

8 additional oxygen in the form of an oxygen enrichment, it

9 intensifies the fire itself and it exacerbates the

10 situation.

11 Q. And what is the reason for that?

12 A. It is because the oxygen is the oxidizer portion of the

13 fire process itself, and the more oxidizer you have, the

14 more intense the fire becomes.

15 Q. Now, Mr. Fogg, you have told us that you examined

16 materials throughout the aircraft; is that correct?

17 A. That's correct.

18 Q. At what location in the aircraft did you observe the

19 most evidence of fire and heat damage?

20 A. It was an area within the forward lower cargo

21 compartment toward the left side between stations

22 approximately, it would be forward of station 489.

23 It goes out toward the floor beam areas in the

24 tunnels on the left side, forward to approximately station

25 322, 313 to 322, with corresponding heat damage on the right

 

88

 

1 side in that same area.

2 Q. Mr. Fogg, I am handing you what has been marked for

3 identification purposes as government exhibit 58-O. Do you

4 recognize that?

5 A. Yes, I do.

6 Q. Is that two photographs taped together?

7 A. It is two photographs that I took that have been taped

8 together, yes.

9 Q. And are they taped together to provide a longer view of

10 the same shot?

11 A. Yes.

12 Q. Do you recognize what is depicted in that photo? And

13 if you could just tell us yes or no?

14 A. Yes, I do.

15 Q. Is that a true and accurate depiction of that item?

16 A. Yes, it is.

17 MS. MILLER: The government moves exhibit 58-O

18 into evidence.

19 MS. MOSCOWITZ: No objection, Your Honor.

20 THE COURT: 58-O for identification is admitted

21 into evidence.

22 MS. MILLER: Your Honor, I am placing 58-O on the

23 magnifier. If I might ask Mr. Fogg to step down?

24 THE COURT: All right.

25 BY MS. MILLER:

 

89

1 Q. Mr. Fogg, if you could explain to us, please, what is

2 depicted in this photograph, using the pointer, and

3 particularly if you could relate it to what you just told us

4 about the area of the aircraft where you observed the most

5 evidence of fire and heat damage?

6 A. This is a photograph that I took on June 17th, and it

7 shows the view kind of looking down and forward from the aft

8 portion of the reconstruction fixture.

9 This portion in the bottom is the aft bulkhead

10 portion, and we are looking forward along the ceiling

11 portion of the compartment itself.

12 The area I am talking about is an area up in this

13 region. In the recovered wreckage, I have a portion of the

14 ceiling liner which runs from approximately station 427 aft

15 to station 429 which has got some heat damage on it,

16 primarily in the forward corner toward the front sort of on

17 the lower side.

18 Out in this region, where we have recovered floor

19 beams, I have recovered and examined floor beams in the

20 area of station 370, 351, station 332, station 313 and

21 station 294.

22 The most heat damage occurred at stations 313

23 left, 332 and 351 where we had broomstraw on each one of

24 those fracture surfaces toward the compartment side. On

25 the right hand side --

 

90

 

1 Q. Excuse me, Mr. Fogg.

2 MS. MOSCOWITZ: Is that looking forward so we are

3 looking at the left side?

4 BY MS. MILLER:

5 Q. Mr. Fogg, could you explain if we are looking forward

6 and what is left and right in this orientation?

7 A. Moving forward, left is in this direction. Right is

8 this direction.

9 Q. And you were telling us where you found the most or the

10 evidence of the most intense heat and fire damage?

11 A. That's correct. On the right-hand side, which is over

12 here at stations 332 and stations 351, I found broomstraw on

13 fracture surfaces of those floor beams that remained in that

14 area.

15 There is a portion of a seat track that the

16 inboard seat track, which was about 48 inches long, that

17 matched up fracture surface-wise with the floor beam at

18 station 294, such that I was able to determine the position

19 of that seat track in its fore and aft location.

20 It had a portion of floor beam 313 attached to

21 it, and at the end terminated at station 322,

22 approximately, and it had broomstraw in it as well.

23 So I got an area of heat damage severe, the most

24 severe heat damage concentrated within this region right

25 here.

 

91

 

1 Q. And is that in the cargo hold or above the cargo hold?

2 A. It would be both in the cargo hold and above the cargo

3 hold because we've penetrated through the liner in this area

4 and have damaged the structural components, as well.

5 Q. Was it your conclusion that the fire was moving from

6 the cargo hold out or from outside the cargo hold in?

7 MS. MOSCOWITZ: Objection. Leading.

8 THE COURT: Sustained. Don't lead your witness.

9 Ask him questions.

10 BY MS. MILLER:

11 Q. Mr. Fogg, what if any was your conclusion as to in what

12 direction the fire propagated?

13 A. Based on the physical recovered parts, the heat damage

14 and the soot patterns, it is my opinion that the fire

15 originated within the compartment and migrated out of the

16 compartment.

17 Q. The compartment being which compartment?

18 A. The forward lower cargo compartment.

19 Q. And, finally, with regard to this photo, Mr. Fogg, can

20 you associate in any way this area of the most intense heat

21 damage in relationship to the cargo hold door, can you

22 explain to us that positioning?

23 A. As I said, the forward cargo compartment door is

24 located between station 370 and 427 on the right-hand side

25 of the aircraft which is over in this area.

 

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1 This heat damage is forward of the cargo door and,

2 in fact, we recovered a small portion, and I examined a

3 small portion of the barrier door's mechanism in this area

4 of the aft portion of the cargo door area. So it is forward

5 of the door itself.

6 MS. MILLER: Your Honor, that concludes my

7 questions for Mr. Fogg concerning this picture, and it

8 might be a good place to break because I was going to move

9 into a different series of questions.

10 THE COURT: All right. Ladies and gentlemen, we

11 will ask that you remember the instruction not to discuss

12 the case with anyone during the noon recess.

13 Do not permit anyone to talk to you about the

14 case. Don't read anything in the newspapers, watch

15 anything on television, nor listen to anything on the

16 radio, if there should be anything.

17 We will ask that you return this afternoon at

18 2:00 o'clock. 2:00 o'clock this afternoon. Be here a few

19 minutes before 2:00. Thank you very much. You folks are

20 excused.

21 [The jury leaves the courtroom].

22 THE COURT: Mr. Fogg, let me remind you that

23 since you are in the middle of your testimony, you may not

24 now during the noon recess discuss your facts or opinions

25 or anything about the case.

 

93

 

1 You can talk to people, but you cannot discuss

2 your testimony and what you have given this morning or you

3 are going to give this afternoon to the agents or the

4 lawyers on either side or anybody else; and if you will be

5 back, please, a few minutes before 2:00.

6 THE WITNESS: Thank you.

7 THE COURT: Thank you. All right.

8 [There was a recess for the noon hour].

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1 C E R T I F I C A T E

2 I hereby certify that the foregoing is an accurate

3 transcription of proceedings in the above-entitled matter.

4

5 ______________ _______________________________________

DATE JERALD M. MEYERS, RPR-CM

6 Official Federal Court Reporter

United States District Court

7 301 N. Miami Avenue, 9th Floor

Miami, FL 33128-7797 - 305/374-8108

8

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