1

 

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

MIAMI DIVISION

CASE NO. 99-491-CR-KING

 

THE UNITED STATES OF AMERICA,

Plaintiff,

vs. MIAMI, FLORIDA

NOVEMBER 23, 1999

SABRETECH, INC.

DANIEL GONZALEZ, DAY 7 - 2:00 P.M.

EUGENE FLORENCE

 

Defendants.

 

 

JURY TRIAL PROCEEDINGS

BEFORE THE HONORABLE JAMES LAWRENCE KING,

SENIOR UNITED STATES DISTRICT JUDGE

VOLUME 2

APPEARANCES:

FOR THE GOVERNMENT:

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

GEOFFREY BRIGHAM, A.U.S.A.

J.L.K. FEDERAL JUSTICE BUILDING

99 N.E. 4th Street

Miami, FL 33132 - 305/961-9432

SPECIAL AGENT JOHN LONG

OFFICE OF INSPECTOR GENERAL

DEPARTMENT OF TRANSPORTATION

SPECIAL AGENT MIKE CLARK

OFFICE OF INSPECTOR GENERAL

DEPARTMENT OF TRANSPORTATION

SPECIAL AGENT JACQELINE FRUGE

FEDERAL BUREAU OF INVESTIGATION

 

2

FOR DEFENDANT SABRETECH:

JANE RASKIN, ESQ.

MARTIN RASKIN, ESQ.

RASKIN & RASKIN, P.A.

2937 S.W. 27th Avenue, Suite 206

MIAMI, FL 33133 - 305/444-3400

 

NORMAN MOSCOWITZ, ESQ.

SULLIVAN RIVERO & MOSCOWITZ, P.A.

Miami Center, Suite 2550

201 South Biscayne Blvd.

Miami, FL 33131 - 305/371-7781

 

FOR DEFENDANT FLORENCE:

JANE MOSCOWITZ, ESQ.

MOSCOWITZ STARKMAN & MAGOLNICK

100 S.E. 2nd Street, Suite 3700

Miami, FL 33131 - 305/379-8300

FOR DEFENDANT GONZALEZ:

ROBERT DUNLAP, ESQ.

DUNLAP & SILVERS, P.A.

2601 S. Bayshore Drive, Suite 601

Miami, FL 33133 - 305/854-9666

 

 

REPORTED BY:

ROBIN MARIE CARBONELLO

Official Federal Court Reporter

J.L.K. Federal Justice Building

Suite 1127

99 Northeast 4th Street

Miami, FL 33132 - 305/ 523-5108

 

 

 

 

 

 

 

 

 

TOTAL ACCESSTM COURTROOM REALTIME TRANSCRIPTION

3

 

INDEX TO WITNESSES

Witnesses: Direct Cross Redirect Recross

Larry Fogg .................... 4 54

Reporter's Certificate .................................. 70

INDEX TO EXHIBITS

Exhibits Marked for Received

Identification in Evidence

Description Page Line Page Line

Government Exhibit 58 B ........................33 2

Government Exhibits 58 C, 58 D, 58 I, 58 J, 58 K, 58 L, 58 M

and 58 N ....................................... 8 20

Government Exhibit 56 ..........................19 11

Government Exhibits 56A and B ..................21 21

Government Exhibit 55...........................30 10

Government Exhibit 55B ........................ 33 21

Government Exhibit 55A .........................34 7

N PB,D LC,E B

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

UNITED STATES vs SABRETECH, ET AL - 11-23-99

4 Fogg - Direct

 

2:00 P.M.

COURTROOM DEPUTY: All rise. Court is in

session. The Honorable Judge James Lawrence King

presiding.

THE COURT: Are we ready to proceed?

MS. MILLER: Yes, Your Honor.

THE COURT: Bring in the jury, please.

[The jury returns to the courtroom].

THE COURT: Be seated, please. Mrs. Miller?

MS. MILLER: Thank you, Judge.

DIRECT EXAMINATION

BY MS. HECK MILLER:

Q. Mr. Fogg, I would like to turn your attention again to

the forward cargo hold. What, if any, pieces did you find

in the forward cargo hold that had soot on only one side?

A. The first piece would be the forward bulkhead of the

forward cargo compartment. The liner had soot on the side

facing into the compartment, and the forward side where the

forward portion of the airplane was freed, had no soot or no

smoke or heat damage.

Q. What was the significance to you about this fact,

Mr. Fogg?

A. On this particular piece, it would indicate that

forward of the cargo department, we had no evidence of any

heat or fire activity which would be the E and E compartment

 

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area of the aircraft.

Q. I'm sorry, the what compartment?

A. The E and E, electrical and electronics compartment.

Q. If you can do it without moving from your seat, or just

by holding the chart, can you point just where that E and E

compartment is?

A. Yes, I can. It's from station 218 forward.

Q. Is station 218 where I have my finger now?

A. Yes, it is.

Q. So from this area, forward, is that correct?

A. That's correct.

Q. Mr. Fogg, I'm handing you what has been marke as

Government Exhibit 58B. Do you recognize the object

depicted in 58B?

A. Yes, I do.

Q. Is that a true and accurate photograph of what you

recall as being that object?

A. Yes, it is.

MS. MILLER: Government offers Exhibit 58B into

evidence.

MS. MOSCOWITZ: No objection.

THE COURT: 58 G is admitted into evidence.

MS. MOSCOWITZ: I'm sorry, Your Honor. I meant

to say, 58 B.

THE COURT: 58 B is admitted into evidence.

 

UNITED STATES vs SABRETECH, ET AL - 11-23-99

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[Government Exhibit 58 B received in evidence].

BY MS. HECK MILLER:

Q. Mr. Fogg, if I could ask you once again to step down to

the magnifier. Mr. Fogg, let me, if I might, put this on

the magnifier.

Mr. Fogg, could you tell us, please, what is

depicted in this photograph, and use the pointer to

indicate to us any pieces that illustrate what you were

just testifying about with regard to soot on the interior

side of the cargo hold.

A. This is a photograph from the interior of the

reconstruction fixture. The portion that I was speaking of,

the forward bulkhead, is this portion. So we are looking at

the aft phase which is the side into the compartment. The

remaining pieces down this side are fiberglass side wall

liner, and a section of floor panel is also shown from the

218 bulkhead in the aft direction.

Q. Is there a station indicated in this picture?

A. Yes, ma'am.

Q. Can you show us where that station indication is?

A. We have station indications along this support beam

right in this area.

Q. What is the indicated station?

A. The indication is 313.

Q. Now -- I would now like to show you Government Exhibit

 

UNITED STATES vs SABRETECH, ET AL - 11-23-99

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58 E, which is already in evidence. I'm going to place that

on the magnifier, along with the other picture. Could you

please tell us what relationship there is between these two

pictures?

A. This photograph is what we discussed earlier today,

depicts the forward face of the forward bulkhead of the

cargo compartment, the lower forward cargo compartment. The

recovered wreckage that is in front of that is wreckage that

is recovered from the nose section in the E and E

compartment, which is free of any heat or fire damage as

opposed to the interior of the compartment where we have

areas of soot on the inner liner.

Q. Do these two pictures, E and B, show two different

sides of the same piece?

A. Yes, they do.

Q. Can you please use the pointer to show us the piece

that is depicted from two different sides in these two

pictures?

A. On the top, it's the lighter, white colored portion in

the reconstruction fixture. In the bottom, it's the

interior cargo side of that same bulkhead.

Q. Does one of those sides have soot?

A. Yes, it does.

Q. Would you indicate to us which one has the soot?

A. This inside surface has the soot.

 

UNITED STATES vs SABRETECH, ET AL - 11-23-99

8 Fogg - Direct

 

Q. The same piece from the outside, does it have soot?

A. No, it does not.

Q. Mr. Fogg, if you could resume your seat, please. I'm

placing before you what have been marked as government

exhibits 58 K -- let me try to put them in order, Your

Honor. That would make more sense, 58 C, 58 D, 58 I, 58 J,

58 K, 58 L, 58 M and 58 N, and I would ask you to look

through those photographs, please.

Mr. Fogg, do you recognize the items depicted in

those photographs?

A. Yes, I do.

Q. Are these photographs true and accurate depictions of

these items?

A. Yes, they are.

MS. MILLER: Your Honor, the government moves

into evidence 58 C, 58 D, 58 I, 58 J, 58 K, 58 L, 58 M and

58 N.

THE COURT: Without objections, those items are

admitted into evidence with the numbers just read off.

[Government Exhibits 58 C, 58 D, 58 I, 58 J, 58 K, 58 L, 58

M and 58 N received in evidence].

BY MS. HECK MILLER:

Q. Mr. Fogg, I'm placing on the magnifier, Government

Exhibit 58 C and I would ask you -- first of all, I'm going

to put it on the magnifier with the photographs you just

 

UNITED STATES vs SABRETECH, ET AL - 11-23-99

9 Fogg - Direct

 

looked at 58. 58 B is on top, and 58 C is on the bottom.

What is the relationship between 58 B which we just saw, and

58 C? There's a screen to your left, if you would like to

view that screen.

A. Which is on top again, please?

Q. The top is 58 B, and bottom is 58 C. If you are unable

to -- if you prefer to see them down at the magnifier,

please let us know.

A. The two photographs show substantially the same area

with the exception that 58 C shows a larger portion of the

side wall liner and the compartment floor. Whereas 58 B

from above, shows more of the forward bulkhead than the

compartment.

Q. Is 58 C a view more as if one was walking backward into

the aft area of the cargo hold?

MS. MOSCOWITZ: Objection. Leading.

A. 58 C --

BY THE COURT:

Q. Excuse me. What does it show? Identify for the jury

which way you are facing.

A. 58 B is taken pretty much from the center line of the

compartment forward, so you are inside the compartment

looking forward at an area approximately near station 313.

On the bottom, photograph 58 C, you are outside

the compartment as if you were looking in toward the left in

 

UNITED STATES vs SABRETECH, ET AL - 11-23-99

10 Fogg - Direct

 

board side of the compartment itself from approximately

station 351 forward to station 213.

BY MS. HECK MILLER:

Q. Is that 213?

A. I mean, 218.

Q. Mr. Fogg, I'm going to leave just 58 C on the

magnifier, and I don't know if you can read it. Do you see

a station number where I'm pointing?

A. Station 313.

Q. Would you tell us, please, what is the object that I am

pointing to with the pointer right now?

A. That is a recovered portion of side wall liner that had

been installed between station 313 and station 351. It had

the resins burned out of the fiberglass material.

Q. What, if any, significance did it have to you that the

resins were burned out of that piece of side wall liner?

A. The fire was much more intense in that area than

further forward.

Q. Mr. Fogg, I'm now placing 58 I on the magnifier, and I

would ask if you could depict what is in that photograph?

A. It's another view looking toward the liner from station

313 to station 351 that we just looked at, and behind it, we

have some of the recovered electrical wiring conduits and

wires.

Q. What did you observe about this liner?

 

UNITED STATES vs SABRETECH, ET AL - 11-23-99

11 Fogg - Direct

 

A. This is the same liner that had the resins burned out

of it.

Q. Now, Mr. Fogg, did you observe any -- withdrawn.

Mr. Fogg, are you familiar with the term "airplane skin"?

A. Yes, I am.

Q. What is the skin of the airplane?

A. The skin of the aircraft is the aluminum outside sheet

material.

Q. And did you examine both the exterior and the interior

of pieces of aircraft skin?

A. Yes, I did.

Q. Did you observe any indication of marks of -- signs of

fire or heat damage on the inside of airplane skin?

A. Yes, I did.

Q. Do you observe -- Were you able to correlate the pieces

of airplane skin -- withdrawn.

Were you able to correlate pieces of airplane skin

on which you observed fire or heat damage in specific

locations in the airplane.

A. Yes, I was.

Q. I'm placing photograph 58 L on the magnifier, and I ask

you to describe what this is, and what relationship it has,

if any, to the testimony you just have given about airplane

skin?

A. This is a portion of the recovered outer skin from the

 

UNITED STATES vs SABRETECH, ET AL - 11-23-99

12 Fogg - Direct

 

ValuJet aircraft on the left hand side of the airplane. You

can observe part of the ValuJet critter logo on the skin

itself.

Q. Mr. Fogg, I'm indicating to you where there is a black

line that is met by a yellow stripe and a piece of blue.

Does that correspondence with anything that is depicted in

Government Exhibit 1, the photograph of a DC-930?

A. Yes, it does.

Q. Can you show us either with your finger or with

pointer, where is the area on the airplane that matches the

designed portions in the photograph on the magnifier?

MS. MOSCOWITZ: Objection. Foundation.

THE COURT: You are asking him to identify on the

photograph of the airplane, the portion that is on the

picture which has been admitted into evidence, is that

correct?

MS. MILLER: Yes, sir.

MS. MOSCOWITZ: It's a different plane, Your

Honor.

THE COURT: I beg your pardon.

MS. MOSCOWITZ: It's a different plane, Your

Honor.

THE COURT: Ladies and gentlemen, please don't

get confused. This is not the same plane, obviously. We

all understand that. Based on the assumption that the jury

 

UNITED STATES vs SABRETECH, ET AL - 11-23-99

13 Fogg - Direct

 

is cognizant of the fact that the photograph of exhibit 1

is of a DC-9, but not the same DC-9, and limited to that,

you may answer the question.

THE WITNESS: The area that is depicted in the

photograph is this area right in here.

THE COURT: Now you said the photograph, you

mean --

THE WITNESS: The one that is on the magnifier.

THE COURT: The magnifier, if it were on the real

plane, it would be approximately in the area that you are

pointing to now.

THE WITNESS: Right in this area, yes.

THE COURT: For the record, could you describe

that area, please, in words.

THE WITNESS: This is an area approximately

station 313 aft. We've got two cabin pressure release

valves on the exemplar airplanes, if I can call it

exemplar airplane in the photographs, that match the two

pressure relief valve openings on the magnified photograph.

It's approximately station 313 aft to perhaps 351.

BY THE COURT:

Q. In lay terms, it's approximately where in relation to

something a lay person would understand?

A. It's directly opposite the portions that the cargo

liner with the resins burnt out that we just looked at in

 

UNITED STATES vs SABRETECH, ET AL - 11-23-99

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the prior photograph. It's an area just forward -- this is

on the left hand side -- it's forward of the opening for the

cargo door which was station 370 to 427 on the right hand

side, and it's approximately 100 inches aft of 90 inches or

so aft of the forward bulkhead of the forward cargo

compartment.

BY MS. HECK MILLER:

Q. Mr. Fogg, with regard to this piece of airplane skin

that appears in the photo on the magnifier, which for the

record is 58L, what did you observe about the interior of

that piece?

A. The interior of this piece had soot accumulation on it.

Q. What did that indicate to you?

A. That there was heat and soot in that area outside the

cargo compartment.

Q. What, if any, relationship did that have to the piece

of fiberglass with the resin burned out that had been part

of the cargo liner?

A. It was directly opposite the piece of fiberglass liner

with the resin burnt out from station 313 to station 351.

Q. What conclusion, if any, did you draw with regard to

fire and these two pieces?

A. Prior to impact, the fire had escaped from the lower

cargo compartment, and it was hot in that particular area,

and we had heavy soot accumulation directly opposite the

 

UNITED STATES vs SABRETECH, ET AL - 11-23-99

15 Fogg - Direct

 

liner.

Q. Mr. Fogg, I'm now placing on the magnifier, Government

Exhibit 58 M, as in "mouse," and I would ask, what does that

depict in relationship to the airplane skin, you've just

been testifying about?

A. This is additional pieces of outer aircraft skin

forward of the piece that we looked at in the prior

photograph. They have been placed on a reconstruction

fixture in their proper location. This was as of 31 May in

the hangar at the Tamiami Airport.

Q. And the piece that I'm pointing at with my pointer and

circling, what relationship does this piece have to the

photograph that we just looked at?

A. It is the same piece.

Q. Mr. Fogg, are you familiar with the term "control

cable"?

A. Yes.

Q. What is control cable?

A. Control cable is a stranded steel cable that is used to

close loop system, usually to transmit actions from one

portion of the airplane to another portion of the airplane,

such as controlling the throttles on the engine from the

cockpit throttle handles. That's done through a closed loop

control system, cable system.

Q. Mr. Fogg, is this an electrical action or a mechanical

 

UNITED STATES vs SABRETECH, ET AL - 11-23-99

16 Fogg - Direct

 

action?

A. It is a mechanical action.

Q. Is there one control cable or is there more than one

control cable in the DC-9, series 30 aircraft?

A. There were multiple control cables for various

functions on the aircraft.

Q. Where do the control cables run?

A. Most of the control cables run through lightening holes

within the floor beams of the aircraft, from the cockpit aft

to wherever they branch out to their representative final

termination points.

Q. What is the nature of these cables in their normal

state with regard to rigidity or non-rigidity?

A. The cables themselves when they are installed, are

tensioned had as part of the rigging adjustment test

procedure so that they are tensioned at a proper temperature

during the rigging process, and are typically, soft and

flexible steel cables.

Q. What is the functionality of their being soft and

flexible?

A. That's so they translate around the pulleys to which

they are attached in an uniformed easy manner.

Q. When you say "translate around the pulleys," is that

the same as saying they go around the pulleys.

A. Yes, ma'am.

 

UNITED STATES vs SABRETECH, ET AL - 11-23-99

17 Fogg - Direct

 

Q. Did you make examination of any pieces of control cable

that were retrieved from the wreckage of flight 592?

A. Yes, I did.

Q. And how much of the retrieved control cable did you

personally examine?

A. I looked at all of the retrieved control cable. There

were multiple pieces of control cable that were recovered

that had been severed during the fragmentation of the

aircraft during the break up sequence.

Q. How is it that you were able to determine that they

were severed during the break up sequence?

A. The individual cables themselves had mechanical

fractures on individual strands, and they were frayed in

nature.

Q. Did you observe any other changes or markings on cables

that you concluded were from a cause other than mechanical

damage and break up of the aircraft?

A. There were several cables that, when examined, I

noticed the ends of the cables appear to be somewhat

corroded or oxidized and they were brittle or had

embrittlement and had what appeared to be mechanical

fractures as well.

Q. What happens to the flexible nature of cable that

undergoes, that shows this characteristic, Mr. Fogg?

A. In this case, the cable had changed state from a ductal

 

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18 Fogg - Direct

 

steel cable to a very brittle steel cable. It was hard and

brittle with a lot of oxidation and rust on it.

Q. How does that change the functionality of the cable?

A. This one, if you bit the individual strands you would

break them.

Q. What, in your experience, produces embrittlement?

A. It would be heat from a fire.

Q. Mr. Fogg I've placed before you an item marked

Government Exhibit 56, and I ask if you recognize that?

A. Yes, I do.

Q. What do you recognize it to be?

A. This is one of the recovered portions of control cable

from the ValuJet accident, and this is some portions, some

more portions of one of the control cables from ValuJet.

Q. Did you examine these pieces as part of your study of

ValuJet flight 592 wreckage?

A. Yes, I did.

Q. Where, in the airplane, did those pieces come from?

A. I was unable to determine an exact location in the

airplane.

Q. Was that the case with regard to other pieces of

control cable as well?

A. Yes, that was.

Q. What is the reason that it is not possible to determine

where control cable came from in the airplane?

 

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19 Fogg - Direct

 

A. There were many, many small fragments of control cables

and typically, control cables are very long cables within

the aircraft. I did not and was not able to piece together

control cables into proper pre-impact cables.

MS. MILLER: Government offers Exhibit 56 into

evidence.

MS. MOSCOWITZ: No objection.

THE COURT: Government Exhibit 56 for

identification is admitted into evidence indicating that

they seem to be pieces of cable.

[Government Exhibit 56 received in evidence].

BY MS. HECK MILLER:

Q. What, if any, signs of heat and fire damage, did you

discover on these pieces of control cable?

A. On this particular cable, there is very little evidence

of heat or fire damage with the exception of this one end.

On this one, you don't have the same typical frayed

fractures of the strands that you have in a mechanical cable

fracture, but you do have a tapering down of the strands and

what may appear to be some embrittlement of these individual

strands themselves.

Q. What with about in the small envelope? What, if any,

signs of heat or fire damage do you observe on those pieces

of cables?

A. In the small bag, there are individual cable strands

 

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20 Fogg - Direct

that have probably come untwisted during some subsequent

laboratory examination of the strands themselves. But in

this instance, you can see the outer layer of tan coating

has been consumed due to heat, and melted and consumed. We

have got oxidation present in the form of rust on the

surface, and cable strands tend to be brittle and have

embrittlement. They are no longer soft and pliable.

MS. MILLER: Your Honor, with the Court's

permission, I'm going to put these pieces on the magnifier.

THE COURT: All right.

BY MS. HECK MILLER:

Q. Mr. Fogg, could you step over here to the magnifier?

Mr. Fogg, using the magnifier, could you show us which of

these pieces shows embrittlement and which does not?

A. This particular piece shows embrittlement and this

particular piece shows the frayed mechanical strands in the

typical fracture without embrittlement, and they are quite

flexible.

Q. Thank you. If you could resume your seat. Mr. Fogg,

based on your experience, at what temperature does

embrittlement occur in control cable such as this?

A. I don't know an exact temperature for embrittlement.

Typical steel control cable would melt somewhere around 28

hundred degrees. All I have to say is this control cable

where it had embrittlement saw elevated temperature.

 

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Q. What conclusions did you draw based on the

embrittlement of control cable such as in Government Exhibit

56?

A. The control cable itself has been subjected to an

elevated temperature in an area of a fire.

Q. Mr. Fogg, I'm handing you two items which have been

marked as Government Exhibit 56 A and B, and I would ask if

you recognize the item depicted in that photograph?

A. Yes, I do.

Q. Are the photographs true and accurate depictions of the

item?

A. Yes, they are. They are the photographs I took on May

28.

MS. MILLER: Government offers 56A and 56B into

evidence.

MS. MOSCOWITZ: No objection, Your Honor.

THE COURT: Admitted into evidence 56A and B.

[Government Exhibits 56A and B received in evidence].

BY MS. HECK MILLER:

Q. Mr. Fogg, what do 56 A and B depict, if you can tell

us, as I place them on the magnifier?

A. The bottom one is up side down.

Q. Let me put them one by one. Let me place first 56 A.

A. You can see the portion of the control cable to your

right of the glove, which is tapered with embrittlement.

 

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Q. Is that where the pointer is indicating now?

A. Yes, it is.

Q. What is the piece that I'm now indicating with the

pointer?

A. The other piece is a piece of control cable which in

the photograph appears to have some oxidation of the surface

with some heat damage to the tin plating.

Q. What is depicted in photograph 56 B?

A. It is pretty much a repeat shot of the same photograph.

With the exception that the cable is going through one of

the floor beams.

Q. The area that I'm pointing to right now, what does that

indicate?

A. That is the short piece of cable with the embrittlement

and the tapered end.

Q. What is the significance of the tapering of the end,

Mr. Fogg?

A. In this particular cable, it appeared at the time, the

cable was fracture, it was subjected to an elevated heat and

there may have been some elongation in the cable during the

fracturing process.

Q. Mr. Fogg, I would ask you to turn your attention now to

evidence of fire and heat damage which you observed on

pieces that were associated with locations outside of the

forward cargo hold. First of all, Mr. Fogg, how did the

 

UNITED STATES vs SABRETECH, ET AL - 11-23-99

23 Fogg - Direct

 

amount and intensity of heat and fire damage compare as

between pieces inside the forward cargo hold and outside the

forward cargo hold?

A. The area inside the forward cargo compartment had

substantially more heat than the areas outside the forward

cargo compartment. The side wall liner on the left side

from station 218 to station 313, which is just forward of

the piece that had the resin burned out, had soot on the

inside. It had charred liner material from station 294 to

about station 213. The outer portion that faced out into

the tunnel area away from the cargo compartment, had only

trace amount of soot if any, on the outer side.

Q. Now, what is between -- what is immediately before the

forward cargo hold in the DC-9 30 series aircraft?

A. Immediately above the cargo compartment ceiling liner,

we have the floor beams installed.

Q. What, if anything, did you observe with regard to floor

beams that were installed over the area of the forward cargo

compartment?

A. Pieces of the floor beams that I examined in the hangar

at Tamiami airport, we had floor beams that had substantial

heat damage and broomstraw on the ends in the area of

station 313 through station 351 on the left hand side. We

also had substantial heat damage a little further out in

station 370 on the left hand side.

 

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24 Fogg - Direct

 

On the right hand side, we had floor beams with

broomstraw station 331, 332 and station 351 which are just

forward of the forward compartment door.

Q. Now you have used a term "broomstraw," is that the word

Mr. Fogg?

A. Yes, it is.

Q. What does "broomstraw" mean?

A. Broomstraw is a condition with aluminum when the

aluminum is at a melting point or very near melting point

and subjected to an impact. Upon impact, as the melted

material or molten material starts to leave the solid

original structure, it tends to solidify into the strand

like material which is referred to as broomstraw.

Q. And you observed this phenomenon in pieces of flight

592?

A. Yes.

Q. At what temperature does aluminum melt?

A. Aluminum melts in a range of 1,100 degrees to 1,200

degrees.

Q. You told us about floor beams, what is located in

between floor beams, Mr. Fogg, in the DC-9, series 30

aircraft?

A. In between floor beams longitudinally, we don't have

anything located. It's a relatively open space across the

aircraft. On top of the floor beams, fore and aft the

 

UNITED STATES vs SABRETECH, ET AL - 11-23-99

25 Fogg - Direct

 

airplane has seat rails installed which are aluminum seat

tracks which the individual passenger seats lock into to

secure the seats in the aircraft.

Between the seat rails, the cabin floor panels are

installed.

Q. What are the cabin floor panels, and what are they made

of?

A. The cabin floor panels are installed, and that's the

surface that folks walk on between the seat rails, the seat

tracks, and in the case of the ValuJet aircraft, floor

panels were the composite material.

Q. Did you observe any floor panels that showed heat or

fire damage?

A. I observed one piece of floor panel which had fire

damage on the lower surface and no fire damage on the upper

surface.

Q. The upper surface being the surface that faces what?

A. Into the passenger cabin.

Q. And the lower surface being the surface that faces

what?

A. Below the floor, toward the cargo compartment.

Q. Turning your attention now to the passenger cabin,

what, if any, evidence of fire and heat damage did you

observe in pieces that you were able to associate with the

passenger cabin?

 

UNITED STATES vs SABRETECH, ET AL - 11-23-99

26 Fogg - Direct

 

A. There was one passenger, portion of a passenger seat

frame, that had heat and fire damage associated with it.

There was one tray table from the seat back, and it had some

partial melt on the tray table. There was a passenger

service unit --

Q. Is that also known as a PSU?

A. Yes, it is. There were a couple of those that had soot

damage and some heat and partial melting. The in board

support assembly for one or more of the PSUs, had heat

damage. When I looked at the electrical wiring --

Q. Excuse me. Before you go on. Mr. Fogg, is that a

portion of the PSU that is on the exterior of the PSU, or

the interior of the PSU?

A. It would be the portion that the PSU physically

attaches to. So it was an in board piece behind the skin of

the PSU.

Q. I'm sorry. If you could continue, please.

A. With regard to the electrical wiring in the passenger

cabin area above the floor, most of that wearing is routed

around the fuselage station in longeron three, which you

will recall are three longerons off center line. We have

longeron three left and longeron three right.

Q. Mr. Fogg, I am bringing over the charge, Government

Exhibit 100. If you could indicate where on this chart, and

let me bring the pointer. Could you indicate where is

 

UNITED STATES vs SABRETECH, ET AL - 11-23-99

27 Fogg - Direct

 

longeron three, pointing to on the chart?

A. Zero is topped at center. One, two, would be three

away from the center line left, and three away from the

center line right. On the conduits, that the wiring runs

through, there are nylon, rigid nylon tubing in most cases.

I observed some soot damage, soot accumulation on the

outside of the conduits that were recovered that I could

identify near the forward portion of the passenger cabin

area, both left side and right side.

The wiring toward the aft of the airplane after

the wing area, there was no evidence of any soot or heat

damage.

The wiring that goes to the passenger service unit

outlets that provide the electrical connection for the

electrical items in the PSU, I recovered and observed that

wiring from station 291 on the left hand side, back to about

station 800. And from station approximately 690 on the

right hand side, back to station 800 or 900.

That's installed on the outboard side of the

aircraft, just above the passenger service units, the PSU

units, and there was no evidence of any heat soot or fire

damage to any of that wiring.

Q. With regard to wiring as to which you did observe heat

or fire damage in the passenger cabin, Mr. Fogg, are you

able to distinguish between damage from heat and fire to

 

UNITED STATES vs SABRETECH, ET AL - 11-23-99

28 Fogg - Direct

 

wire versus electrical damage to a wire?

A. Yes.

Q. Which did you observe in the passenger cabin?

A. In the passenger cabin, there was no wiring that was

recovered that had any heat damage at all. There was some

soot accumulation on the conduits near longeron three in the

forward end, but none of the wiring had any heat or soot

accumulation.

Q. Did any of the wiring in the passenger cabin have any

signs of electrical damage?

A. No, all of the fractures in the recovered wires in the

passenger cabin were mechanical fractures due to impact of

the aircraft.

Q. What, if anything, did you observe with regard to the

stowage bin end caps in the passenger cabin, Mr. Fogg?

A. The stowage bin end caps had some soot accumulation on

the outer side. Some of the stowage bins had soot

accumulation on the inner face toward the cabin.

Q. What was the degree of soot on these pieces of stowage

bin structure?

A. It was more than trace amount. It was not heavy, but

definitely visible.

Q. What, if anything, did you observe on the passenger

evacuation door slide light?

A. The door slide light was from either the passenger

 

UNITED STATES vs SABRETECH, ET AL - 11-23-99

29 Fogg - Direct

 

re-entry door left or right, which is forward of station 218

at the very forward portion of the passenger cabin. It had

soot accumulation on the light assembly itself.

Q. What portion of the light assembly?

A. I believe it was the walnut grain surroundings that

supported the light assembly.

Q. What, if any, evidence did you observe with any

electrical problems with that light?

A. None.

Q. Now, Mr. Fogg, you have mentioned seat track, have you

not?

A. Yes, I did.

Q. Where, again, is the seat track located in the cabin?

A. It attaches to the top surface of the floor beams.

Q. And this is the floor between what portions of the

aircraft?

A. All the way through the passenger cabin.

Q. What is above this floor and what is below this floor?

A. Above the floor is the passenger cabin. Below the

floor would be the forward compartment and the area where

the fuel is installed, the center wing area, the landing

gear wheelwell area. After that, you would have the cargo

compartment back to the operations cockpit.

Q. Mr. Fogg, I'm handing to you an item, what is marked as

Government Exhibit 55, and I ask if you recognize that

 

UNITED STATES vs SABRETECH, ET AL - 11-23-99

30 Fogg - Direct

 

object?

A. Yes, I do.

Q. What do you recognize that object to be?

A. This is one of the recovered seat tracks that I

examined from the aircraft.

MS. MILLER: Government moves into evidence

exhibit 55.

MR. RASKIN: No objection.

THE COURT: 55 is admitted into evidence.

[Government Exhibit 55 received in evidence].

BY MS. HECK MILLER:

Q. Earlier you mentioned something called broomstrawing.

Can you correlate broomstrawing to that exhibit?

A. Yes, I can.

Q. If I might, I'm going to try to put it on the

magnifier. First of all, can you tell us in a more general

sense, what is it that we are looking at on this piece?

A. This is a piece of seat track. This is the upper

surface, and you can see the machined area where the

individual seats lock into the seat track at the various

seat pitch locations within the aircraft.

Here we have some fiberglass material that has the

resin burned out as opposed to fiberglass material which

still has the resin present.

Q. Do those have different textures, Mr. Fogg?

 

UNITED STATES vs SABRETECH, ET AL - 11-23-99

31 Fogg - Direct

 

A. Yes, they do.

Q. Could you describe the different textures?

A. The texture of the fiberglass material which still has

resins tends to be solid and ridged. The other is very soft

and flexible.

Q. And does this piece display broomstrawing?

A. This piece does display broomstrawing.

Q. Could you point to where it is, and then I'm going to

try to take it over to the magnifier?

A. The most noticeable piece with the broomstraw on this

end, and you can see how it is broomstraw.

Q. Mr. Fogg, what I'm pulling away here, this is

fiberglass, is that correct?

A. Yes, it is.

Q. What are these strands here?

A. That's broomstraw.

Q. How does this differ from the state of the metal prior

to any heating?

A. The metal is solid metal, just like you have back in

your hand further back from there.

Q. Right here, where the pointer is pointing?

A. That's got some heat damage. You need to go further

back.

Q. To here?

A. About where your thumb is.

 

UNITED STATES vs SABRETECH, ET AL - 11-23-99

32 Fogg - Direct

 

Q. To here?

A. Yeah, back in that area.

Q. This area here shows the metal in it's normal state, is

that correct? Would you prefer to come down and do this

yourself, Mr. Fogg?

A. I might try. In through this area, you can see the

broomstraw all across this surface. When we are talking

about the metal in the state as it would have been prior to

the broomstraw, you would need to come back into an area

back in this region where it is machined aluminum piece.

Q. Thank you, Mr. Fogg.

Mr. Fogg, I'm now handing you what has been marked

for identification as Government Exhibit 55B. Mr. Fogg, I'm

now handing you what has been marked for identification

purposes as Government Exhibit 55B, and ask if you recognize

that.

A. Yes, I do.

Q. What do you recognize that to be?

A. This is a floor beam from the recovered wreckage that

was specifically identified as the floor beam that ran

across -- it's a seat track that ran across floor beam 313,

where I have a tag from the reconstruction efforts of years

ago, aft to station 322 and forward floor beam at station

294. There's a physical match of the fracture from the seat

track in the floor beam where it attached for positive

 

UNITED STATES vs SABRETECH, ET AL - 11-23-99

33 Fogg - Direct

 

identification location of this particular piece of floor

track.

Q. And did you write anything on that manilla tag,

Mr. Fogg?

A. Yes, I wrote station 313 floor beam and X = 22. X = 22

is that X coordinate from the center line out so it would be

22 inches outboard of the center line of the aircraft. This

would be an in board seat track. There's also broomstraw on

the portion of station 313 floor beam that's attached to

this, as well as some visible broomstraw in the end back

here at station 322.

MS. MILLER: Government offers 55B into evidence,

Your Honor.

MS. MOSCOWITZ: No, objection.

THE COURT: 55G is admitted into evidence.

MS. MILLER: I meant to say B as in "boy."

THE COURT: Wasn't it earlier offered for

identification as G? That's what the record shows.

Whatever, it is now 55B, as in "boy," is that it?

MS. MILLER: Yes, sir.

[Government Exhibit 55 B received in evidence].

BY MS. HECK MILLER:

Q. Mr. Fogg, I'm handing you a photograph that is marked

as Government Exhibit 55 A, and I ask if you recognize the

object depicted in that photograph?

 

UNITED STATES vs SABRETECH, ET AL - 11-23-99

34 Fogg - Direct

 

A. Yes, I do.

Q. Is that a true and accurate picture of that object?

A. Yes, it is.

MS. MILLER: Government moves 55A into evidence.

MR. RASKIN: No objection.

THE COURT: 55A is admitted into evidence.

[Government Exhibit 55 A received in evidence].

BY MS. HECK MILLER:

Q. Mr. Fogg, what does that photograph depict?

A. It depicts one of the floor beams which has the

broomstraw on the end.

Q. And I'm placing it on the magnifier, and I'm pointing

it to a portion of the photograph. What am I pointing to?

A. The broomstraw.

Q. Now, with regard to signs of fire and heat damage in

the passenger cabin, Mr. Fogg, what, if anything, did you

observe with regard to any spring mechanism?

A. There was a piece of seat frame with a back return

spring that was heat damage, and had some partial melting of

aluminum.

MS. MILLER: Your Honor, 53N is already in

evidence, is it not?

THE COURT: 53?

MS. MILLER: 58N.

THE COURT: 58N is in evidence.

 

UNITED STATES vs SABRETECH, ET AL - 11-23-99

35 Fogg - Direct

 

MS. MILLER: Thank you.

BY MS. HECK MILLER:

Q. Mr. Fogg, I'm placing 58N on the magnifier. What does

this photograph depict?

A. This photograph depicts that portion of the seat frame

that I mentioned with the seat back return spring mechanism,

and you can see the partial melting of the aluminum in the

portion where it's flat toward the center of the picture.

Q. What am I pointing at here?

A. That's it, right there.

Q. What are these folds?

A. The folds are softened aluminum and you can see some

partial melting down inside that area.

Q. Mr. Fogg, what, if any, evidence of fire or heat damage

did you observe in the cockpit of the aircraft or the pieces

that were associated in the reconstruction with the cockpit?

A. Portions of the overhead switch panel circuit breaker

panel were recovered and there was no evidence of any heat,

fire or soot accumulation on those portions. Portions of

the main electrical power center were recovered. Now,

that's right behind the pilot seat and the inside portion of

those circuit breaker panels were completely free of any

heat or soot accumulation. The outside portion, to me,

appeared to be free of soot accumulation although there may

have been trace amounts of soot accumulation on the panels.

 

UNITED STATES vs SABRETECH, ET AL - 11-23-99

36 Fogg - Direct

 

Q. Were there any other objects in the cockpit that

suggested the possibility of fire or heat damage?

A. The passenger oxygen bottles were recovered,

specifically, the passenger oxygen bottle. It had some dark

discoloration around the top. I did not consider that to be

soot accumulation. Although, around the remainder of the

bottle, it may be that we have evidence of some trace amount

of soot accumulation although, I personally considered that

it was not soot accumulation.

Q. What, if any, fire or heat damage did you observe --

withdrawn.

Mr. Fogg, what are the tunnels of the aircraft?

What does that term refer to?

A. The tunnels are the area of the aircraft, left and

right, between the floor support beams and the outer

fuselage skin as depicted on the diagram.

Q. I'm bringing over to you Government Exhibit 100, and

could you show us with the pointer the area that depicts the

tunnels?

A. The area that depicts the tunnels would be from

longeron 19 to longeron 22, left and right, and in board to

the support struts from the fuselage frame to the floor beam

up to the floor beam itself.

Q. You are indicating something that is in the oval shape

cross section of the chart, is that correct?

 

UNITED STATES vs SABRETECH, ET AL - 11-23-99

37 Fogg - Direct

 

A. That's correct.

Q. Do these tunnels run the length of the plane?

A. The tunnels run the length of the plane with the

exception of the wheelwell area where they terminate at

bulkheads.

Q. What, if any, evidence of heat or fire damage did you

observe in pieces that were associated with the aircraft

tunnels?

A. The normal air flow from the cabin circulates through

the compartment and down through the side wall at the floor

level into the tunnel areas left and right, and it crosses

around the cargo compartments above and below between the

floor beams and the ring frames. And it's exited out the

outflow valve at the rear of the aircraft, approximately

station 900. That's a normal air flow within the aircraft.

The soot damage that I observed in the tunnel

areas was soot damage in the tunnel areas around the forward

lower cargo compartment or soot accumulation. And localized

soot accumulation in the aft left hand tunnel near the

outflow valve, as well as soot trailing from the outflow

valve assembly itself.

Q. The soot trails from the outflow valves assembly, what

shape or form did that take?

A. It was soot that was in the air being exhausted by the

aircraft into the slip stream, and it followed the width of

 

UNITED STATES vs SABRETECH, ET AL - 11-23-99

38 Fogg - Direct

 

the valve and attached to the aircraft outer skin as it

exited the outflow valve.

THE COURT: Let me understand your last answer.

Did you indicate that you saw soot on what would appear to

be the area right immediately where the outflow valve

protrudes from the airplane?

A. Yes, sir.

BY THE COURT:

Q. Indicating what?

A. Indicating that we have a fire that is generating

smoke, and the normal air flows within the aircraft itself

are carrying this smoke through the normal flow patterns

which cross the airplane and run down and out the left

tunnel of the aircraft, and I observed smoke on the inner

portion of the aft tunnel near the outflow valve and also

soot attached along the outside surface of the fuselage in

flight as it exited the aircraft.

THE COURT: Thank you.

BY MS. HECK MILLER:

Q. Mr. Fogg, I'm placing on the magnifier, Government

Exhibit 58 K which has been placed in evidence. I would ask

if you could explain to us what this photo depicts, and how

it relates to what you have just been describing and tell me

if I've got it up side down please?

A. It's okay.

 

UNITED STATES vs SABRETECH, ET AL - 11-23-99

39 Fogg - Direct

 

The photograph depicts the area of the outflow

valve and the soot trail that is coming across the

structure.

Q. What am I pointing to here with the pointer?

A. This is the outflow valve itself.

Q. Can you show us the soot trail?

A. It's the dark portion trailing down the outside of the

aircraft.

Q. Is that what I'm pointing to?

A. Yes, it is.

Q. Mr. Fogg, under ordinary conditions, does the cargo

hold vent out to the tunnels?

A. No, the cargo hold is essentially a sealed compartment.

There's some slight pressure equalization during the climb

and descent.

Q. Is there anything you observed about the wreckage of

the cargo hold that would change that normal circumstance.

A. In this particular occurrence, with the extensive heat

damage to the structure of both the compartment, the heavy

sooting around the compartment, it would be evident that we

had breached the cargo compartment liner and spread the fire

beyond the cargo compartment, thus we no longer had a sealed

intake cargo interval compartment unit.

Q. Mr. Fogg, did you also examine portions of the aircraft

that could be associated with locations that were aft, that

 

UNITED STATES vs SABRETECH, ET AL - 11-23-99

40 Fogg - Direct

is, behind the forward cargo hold?

A. Yes, I did.

Q. What, if any, heat damage did you observe in any

portion of the aircraft that you could associate as being

aft of the cargo hold, and inside the airplane other than

the tunnels?

A. After the cargo hold, was the aft face of the rear

bulkhead of the cargo compartment which was set free.

Immediately behind that, we had the 580 gallon supplemental

fuel tank which had no heat, fire or soot damage associated

with it and no other areas of heat damage were evident

either in the wheelwell area or further after the aft cargo

compartment back to the empennage, which is the very end of

the aircraft.

Q. What is that word. Is it spelled e-m-p-a-n-n-a-g-e?

A. That's close enough.

Q. Mr. Fogg, you have told us that you examined wiring

from the aircraft, is that correct?

A. Yes, I did.

Q. I'm placing on the magnifier a photograph which has

been previously entered into evidence as 58 J, and I'm

asking you to describe what this depicts and it's

relationship to wiring in the aircraft?

A. This depicts wiring that I recovered and relocated back

in the reconstruction fixture in it's respective locations

 

UNITED STATES vs SABRETECH, ET AL - 11-23-99

41 Fogg - Direct

 

in the vicinity of station 351 left side.

Q. Now, Mr. Fogg, I'm pointing with the pointer to strand

like objects down here and further strands, white strands

coming off of this group of strands. What are these

strands?

A. Those are individual wires.

Q. And at this end of the photograph, I'm pointing to

something darker that also appears in this photograph. What

is that I'm pointing at?

A. That's some heat damage nylon conduit.

Q. What is nylon conduit in relationship to aircraft

wiring?

A. On the DC-9 aircraft, the wiring that routed through

the tunnel areas on the left and right hand sides was

contained within rigid nylon conduits or tubes that routed

through the lightening holes in the floor beams, and also on

the left hand side, we had some that routed through

lightening holes on the support struts for the cargo liners

themselves.

Q. In this particular photograph, you told us you observed

signs of heat damage to the nylon conduits, is that correct?

A. Yes.

Q. What were the indications of heat damage to the

conduit?

A. In this particular area from about station 300 through

 

UNITED STATES vs SABRETECH, ET AL - 11-23-99

42 Fogg - Direct

 

330, we had evidence of distortion and melting of the nylon

conduit itself. Forward of that, up toward station 218, I

observed soot accumulation on the outside of the conduit,

but not melt of the conduit. Further aft, around station

370, which is about 20 inches aft of here, we had recovered

wires, and I reinstalled them in their proper positions and

had portions of conduit that had been completely consumed by

the fire.

Q. In this photograph, there is heat damage to the

conduit. What, if any, heat damage did you observe in the

wiring?

A. That wiring has no heat damage on it. It has got very

little soot accumulation, if any. The wire was protected by

the conduits. Through that area, the further outboard you

go, you've got multiple conduits that run between the floor

beams so there are some that are virtually adjacent to the

cargo compartment, and some that are closer to the skin.

One of the conduits that was further outboard ran

intact all the way back to station 408, which obviously, saw

lesser degree of heat intensity than the conduits that were

closer to the cargo compartment in that area of higher heat.

Q. Mr. Fogg, what, if any, wiring is there inside a

forward cargo compartment of a DC-9 series 30 aircraft?

A. There is no exposed wiring within the cargo compartment

on a DC-9 series 30.

 

UNITED STATES vs SABRETECH, ET AL - 11-23-99

43 Fogg - Direct

 

Q. Does the compartment have any ceiling lights?

A. The compartment has some cargo lights in the ceiling

that are protected by aluminum grill work, and it is

controlled by a switch in the doorjamb of the cargo door.

The wiring is all outside the compartment behind the liner.

Q. Did you see any signs of any electrical involvement in

any fire in the forward cargo hold?

A. No, I did not.

Q. Had there been electrical involvement outside the

forward cargo hold, what would you have expected to have

seen with regard to the forward cargo hold?

A. Had there been a problem with electrical outside the

forward cargo compartment, I would have expected to see any

problem remain exclusively outside of the compartment and

not penetrate the liner at all.

Q. What about any fire in the tunnel area?

A. To the extent we have a fire in the tunnel area, it is

difficult to burn through the fire resistant fiberglass

liner from the outside, as it is to burn from the inside out

and we would have seen considerably more fire damage outside

in the tunnel areas than we see presently.

Q. Mr. Fogg, what is arcing?

A. Arcing is a phenomenon of the passage of sparks and

visible light between two electrodes in very close

proximity.

 

UNITED STATES vs SABRETECH, ET AL - 11-23-99

44 Fogg - Direct

 

Q. Is arcing associated with electrical problems?

A. Arcing is frequently associated with electrical

problems.

Q. Does arcing leave any physical signs?

A. Arcing usually will leave physical signs, if it's

strong enough to cause a problem. That will be a transfer

of metal between the electrodes.

Q. In your examination of the wiring that was retrieved

from ValuJet 592, did you see any evidence of arcing?

A. I examined every wire for evidence of arcing. All of

the frayed ends, and found no evidence of arcing. There was

one wire in station 370 that was sort of unique in the fact

that it was about 8 inches long. It was attached to a brown

stud, which means that it had the same potential as the

structure.

Q. When you say the same potential, what are you referring

to, Mr. Fogg?

A. Normally in a house circuit, we have in a battery or a

flashlight, we have a complete circuit path. We come from

the positive potential back to a ground to complete a

complete circuit. On an aircraft, the structure itself is

the ground path, so circuits, the power is generated at the

engine driven generators or the battery, and it runs through

the electrical distribution system through all of the

circuit protection devices and circuit breakers or what have

 

UNITED STATES vs SABRETECH, ET AL - 11-23-99

45 Fogg - Direct

 

you, to it's end circuit where it's purpose is being

utilized, and as it completes it's circuit path, it goes

through the light bulb or the motor or whatever the device

it's physically energizing, the ground return path is the

aircraft structure.

It's attached firmly to the structure. So, this

particular wire had the same potential as the aircraft

structure, such that it would short the structure and arc

because it's at the same potential.

However, in this one wire in an area of very high

heat, there was evidence of possible localized melt with

some tapering on the end, which would be indicative of a

high heat concentration on that wire in that area on the

time it fractured.

Q. Mr. Fogg, based on your observations, did you draw any

conclusions as to the likely location and path of the fire

aboard ValuJet 592?

A. Yes, I did.

Q. And what conclusion did you draw?

A. Based on --

MS. MOSCOWITZ: Objection, Your Honor, likely?

THE COURT: Overruled. You may answer the

question.

THE COURT: Based upon reasonable probability.

Would you like to rephrase the question?

 

UNITED STATES vs SABRETECH, ET AL - 11-23-99

46 Fogg - Direct

 

BY MS. HECK MILLER:

Q. Mr. Fogg, based on your observations did you draw any

conclusions as to the reasonably probable location and path

of the fire on board ValuJet flight 592?

MS. MOSCOWITZ: Same objection.

THE WITNESS: Yes, I did.

MS. MILLER: Is the objection overruled?

THE COURT: Was there an objection?

MS. MOSCOWITZ: Yes, Your Honor, there was.

THE COURT: Well, this is probably a good time to

take a recess any way. It's 3:30, we have been at it for

an hour and a half. Do you mind if we take -- does this

interrupt you. Is this the last question you've got?

MS. MILLER: There is a series of closing

questions, but this is not a bad time.

THE COURT: All right, ladies and gentlemen, step

into the jury room.

[The jury leaves the courtroom].

THE COURT: Would you state your objection,

please?

MS. MOSCOWITZ: Your Honor, I don't think the

appropriate standard, Your Honor, is whether his opinion of

how the fire likely traveled or whether it is reasonably

probable, I don't think that's the appropriate level that

he has to reach, for this testimony to go to the jury.

 

UNITED STATES vs SABRETECH, ET AL - 11-23-99

47 Fogg - Direct

 

THE COURT: Okay. What do you think the level he

has to reach?

MS. MOSCOWITZ: Reasonable, scientific certainty

or I can't remember the phrase, but I know it's more than

that.

THE COURT: Reasonable scientific probability?

MS. MOSCOWITZ: Probability?

THE COURT: Scientific probability?

MS. MOSCOWITZ: Scientific certainty, I thought.

THE COURT: There are some magic words that you

are supposed to use, and that is what she is talking about.

I always thought it was drawing on your experience and

background and, so on. Do you have an opinion within a

reasonable scientific certainty or probability as to what

caused the fire, and he says, Yes, he does, and you ask him

what it was. Whatever it was. That's her objection, so

you can work on the question.

MS. MILLER: I will use those terms, Your Honor.

Reasonable, scientific certainty.

THE COURT: Whatever, we'll came back to that

right after the recess.

[There was a short recess].

COURTROOM DEPUTY: All rise. Court is in

session.

THE COURT: Are we ready?

 

UNITED STATES vs SABRETECH, ET AL - 11-23-99

48 Fogg - Direct

 

MR. RASKIN: Yes, sir.

THE COURT: Bring in the jury please.

Thank you. Be seated, please. Would you ask the

witness to come back?

Sorry about the delay, ladies and gentlemen. It

had nothing to do with the case. I got tied up with one of

my colleagues, another Judge. He had some administrative

things for the Court that we had been working on. Some of

them have been worked out. Getting our first cost of living

raise in ten years. That happened yesterday in Congress.

It had nothing to do with this trial.

Ms. Miller.

BY MS. HECK MILLER:

Q. Mr. Fogg, as an expert witness, are you receiving

payment from the United States government for your

testimony?

A. Yes, I am.

Q. At what rate?

A. 100 dollars an hour.

Q. Mr. Fogg, you testified concerning a wire that had a

possible melt on it, do you recall that?

A. Yes.

Q. Where was that in relation to the forward cargo hold?

A. That wire was attached to a ground stud near the top of

the support station 370, in the left hand side.

 

UNITED STATES vs SABRETECH, ET AL - 11-23-99

49 Fogg - Direct

 

Q. Is that in proximity to the forward cargo hold?

A. Immediately adjacent to the forward cargo hold.

Q. Mr. Fogg, as part of the items that you examined and

observed, did you have occasion to see any oxygen generators

that were retrieved from the wreckage site?

A. Yes, I did.

Q. Approximately, how many oxygen generators did you

observe?

A. Portions of somewhere in the order of 28 or 29.

Q. What did you observe with regard to any heat or fire

damage on oxygen generators?

A. Some of the oxygen generator outer containers had

evidence of high heat.

Q. And what was that evidence?

A. The stainless steel had turned dark purple, dark blue

to black, and they were somewhat compressed.

Q. At what temperature does stainless steel undergo such

changes?

A. Stainless steel typically melts around 27 or 28

hundred. Those changes occur lower than that.

Q. Approximately how much lower?

A. Approximately 25 hundred degrees. Maybe as low as 22

hundred degrees. I'd have to go back to the literature to

see the individual gradings.

Q. Did you observe any dents or indentations on top of the

 

UNITED STATES vs SABRETECH, ET AL - 11-23-99

50 Fogg - Direct

 

oxygen generators?

A. Several of the oxygen generators had indentations at

the top of this primary mechanism that would match the

indentation from a striker mechanism contacting it.

Q. Mr. Fogg, I would like to hand you for a moment, what

has been received in evidence as Government Exhibit 30 B.

Do you recognize this item?

A. This is the outer can of a Scott Aviation oxygen

generator.

Q. And can you show us where on this oxygen generator is

the area where you noted indentations?

A. It would have been the top of the primer cap in this

area of the can, the upper portion top of the can, that

primer cap is missing on this unit.

Q. Mr. Fogg, based on your observations and experience,

did you form an opinion to a reasonable scientific certainty

as to the source and path -- withdrawn.

As to the location and path of the fire in ValuJet

592?

A. Yes, I did.

Q. What was that opinion?

A. Based on the fact that the aircraft is equipped with a

Class D cargo compartment with fire resistant linings, and

the heat damage associated with the linings themselves,

showed a much higher degree of heat concentration within the

 

UNITED STATES vs SABRETECH, ET AL - 11-23-99

51 Fogg - Direct

 

compartment than outside the compartment.

With regard to the electrical wiring, the wiring

is outside of the compartment in it's entirety. Since the

compartment is a Class D compartment, it will contain a fire

of normal passenger luggage and contents to save smoldering

state, due to oxygen depletion during the initial combustion

process, such that the compartment will completely contain

the fire and allow for a safe landing of the aircraft.

It is equally difficult for a fire that is

involved in an aircraft outside of a compartment to

penetrate a liner and go into the compartment. In order to

breach a cargo compartment of Class D configuration in the

volume of the cargo compartment empty on this aircraft is

approximately 420 cubic feet.

It would be required to have either a total breach

of the compartment before the fire started, or an oxidizing

agent or something to enrich the atmosphere and continue to

supply oxygen to prevent oxygen depletion during the

combustion process, which would allow the fire to grow in

intensity and ultimately burn through and breach the cargo

liners.

In the case of the ValuJet flight, it is my

opinion that the oxygen canisters within the compartment,

together with the tires that were being shipped, provided an

additional oxidizing agent to enrich a fire in progress, to

 

UNITED STATES vs SABRETECH, ET AL - 11-23-99

52 Fogg - Direct

 

allow a fire to continue to burn including the tires, to a

point where the intensity either breach the compartment

itself, or in combination with the explosion of the tire due

to fire damage, breached the compartment which once

breached, allowed the conditioned air from the aircraft to

completely fuel the fire, and exacerbate it for the

remainder of the flight.

Q. Did you reach a conclusion to a reasonable scientific

certainty as to whether the oxygen generators played a role

in contributing to the intensity and gravity of the fire in

flight 592?

MS. MOSCOWITZ: Objection. Asked and answered.

That's exactly what the witness was just testifying about.

THE COURT: Overruled. You may answer the

question.

THE WITNESS: Yes, I did.

BY MS. HECK MILLER:

Q. What is that opinion?

A. It's my opinion that oxygen canisters, one or more

canisters, activated either during the loading process of

the boxes in the aircraft, or during the landing or take off

role of the aircraft, and during the initiation process, the

oxidation process within the canisters generates external

heat in the canister itself. That, coupled with the pure

oxygen concentration in the surround materials, is

 

UNITED STATES vs SABRETECH, ET AL - 11-23-99

53 Fogg - Direct

 

sufficient to initiate fire, which once initiated, continues

to be fed by the oxygen from the oxygen generator,

increasing heat, which in turn, allows other oxygen

generators to discharge, initiate thermally and discharge

pure oxygen which builds on itself, until we have a fire

that is totally out of control.

MS. MILLER: I have no further questions.

MR. RASKIN: Your Honor, may I move to strike the

first part of the answer dealing with the cause of the

initiation of oxygen generators? I heard nothing in this

man's background that would lead me to believe that he is

an expert in oxygen generators, as opposed to fires.

THE COURT: Motion is denied. Do you wish to go

forward with cross examination at this point, or do you

wish to take it up in the morning?

MS. MOSCOWITZ: If would you prefer to wait until

the morning? That would be fine, Your Honor.

THE COURT: I don't want it to be my choice. We

normally have been going until 5:30, but it's been a long

day, and we have had a lot of the expert testimony and

direct examination, and if -- I don't want to cut the

lawyers off at this point in time, but if you prefer to

pick up in the morning with cross examination, that's fine

also. I'm trying to make it comfortable.

MS. MOSCOWITZ: Your Honor, I would prefer to do

 

UNITED STATES vs SABRETECH, ET AL - 11-23-99

54 FOGG - Cross

 

five minutes, and then break for the day if, Your Honor,

will indulge me?

THE COURT: That would be perfectly all right

with me.

CROSS EXAMINATION

BY MS. MOSCOWITZ:

Q. Sir, everything you learned about oxygen generators,

you learned from Mr. Brennan from Scott Aviation, isn't

that correct?

A. That's not correct.

Q. Didn't you testify at a deposition that you learned all

about oxygen generators from Mr. Brennan from Scott

Aviation?

A. What I testified to in my deposition was that details

concerning oxygen generators I obtained from and learned

from Mr. Brennan at Scott Aviation. If you want to go into

my experience with oxygen generators in accident, in

incident investigation, we can do that.

Q. Well, let's go back and talk about your deposition for

a second, though. You were a -- your entire career has been

with McDonald Douglas, in it's various merged forms, is that

correct?

A. That's correct.

Q. And you retired from them in 1999, and were almost

immediately rehired by them, right?

 

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55 FOGG - Cross

 

A. That's correct.

Q. McDonald Douglas is a defendant in litigation brought

by families of victims of flight 592, right?

A. That's correct.

Q. Do the degree that McDonald Douglas has some fault in

this accident, they're liable and they are going to owe

compensation to people, right?

A. To the degree that they are at fault, yes.

Q. And if other people are at fault, then maybe McDonald

Douglas might not be at fault?

A. I have no idea.

Q. You have some idea that it is in McDonald Douglas'

interest to have somebody else be at fault, correct?

A. That's not my understanding. McDonald Douglas'

interests are to, in they're at fault, they would pony up to

the fault.

Q. I see, and there is still litigation pending though,

right?

A. I assume there is.

Q. And they're still actively defending that litigation,

correct?

A. That's correct.

Q. Your Honor, with that, I guess we could pick up in the

morning?

THE COURT: All right, any objection to recessing

 

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56 FOGG - Cross

 

at this time?

MS. MILLER: No, Your Honor.

MR. RASKIN: No, Your Honor.

THE COURT: Ladies and gentlemen, we thank you

very much for your patience today in listening to a great

deal of sometimes very technical information or testimony,

and we appreciate your promptness in being here on time.

Please follow the instruction not to discuss the

case with anyone during the night recess with friends or

family or anyone. Please do not read anything in the

newspaper, television or radio. We will see you tomorrow

morning. I don't know whether I have another early hearing

like I did today. We will see you tomorrow morning at

9:00. Thank you very much. We will see you in the

morning.

[The jury leaves the courtroom].

THE COURT: Mr. Fogg, you are free to step down.

We thank you, sir. You can step down as soon as the jury

steps out. We will remind you, of course, the instruction

not to discuss any of the facts of your testimony, the

facts of your testimony or your testimony with anybody

during the night recess.

You are in the middle of your testimony so,

therefore, it would not be fair to have a discussion with

anybody. If you will be back in the morning a few minutes

 

UNITED STATES vs SABRETECH, ET AL - 11-23-99

57 FOGG - Cross

 

before nine or whatever time you wish, but at least a few

minutes before nine. We will resume at 9:00. Thank you.

THE WITNESS: Thank you very much.

THE COURT: I will ask my courtroom deputy to

bring in those motions, and we will take them up at this

time if everybody is ready to do so since we have a short

day today.

MS. MOSCOWITZ: I just wanted to ask those five

minutes because my daughter was here.

THE COURT: To do what?

MS. MOSCOWITZ: I just wanted to do those five

minutes of questions because my daughter was here.

THE COURT: Good, I thought it was to slash, cut

and burn certain parts of the witness. I didn't realize

that.

MR. RASKIN: We hoped others thought that way

too, Your Honor.

THE COURT: If I had known that, I would have

made you go on for another half an hour.

You know, Mr. Moscowitz, the independent female

side of the marriage, my daughter. You noticed that,

didn't you? No thought about you asking a few questions

was there?

MR. MOSCOWITZ: Could I have gotten up and done

so, your Honor?

 

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58 FOGG - Cross

 

THE COURT: We have -- before we get into that --

I want to make sure you have all these exhibits marked

properly in evidence, and we are dealing with a great

number of exhibits today. They are as follows, and I want

them all marked carefully, and left here overnight, or in

the clerks custody, but 54 B, like in boy through N, like

in north, 54 Q, B, and O. These are all for the

government.

Exhibit 79, 49. No, no. 49 A was only marked

for identification, it was not offered by Mr. Brigham, so

it's not in evidence. Only 49 A for identification. 100

was admitted. 58 E, F, G and H, exhibit 58 O, 58 B, 58 D,

C, J, K, L, M, N, 56 A, 56 B, 55, 55 B, and 55 A.

As far as I know, those were the only exhibits

offered and that's the totality of those offered today. We

had two witnesses, agent Mike Gentile and Mr. Larry Fogg.

Were there any others that were missed, as far as you know?

MS. MILLER: Your Honor, if I could just have a

moment, please. I thought that there might be something

else with Mr. Gentile. We had government exhibit 79, Your

Honor.

THE COURT: Vicki, look on the list.

COURTROOM DEPUTY: 79, yes.

THE COURT: Yes. Well, if there are any others,

you can take them up with Ms. Kramerman after the hearing

 

UNITED STATES vs SABRETECH, ET AL - 11-23-99

59 FOGG - Cross

 

and have someone here from the defense, if the two of you

agree.

MS. MILLER: Judge, what would you like us to do

with the big exhibits, there are some big bulky exhibits,

those pieces of seat track. Do you want us to leave them

here.

THE COURT: I don't want them to be lost. I want

them marked carefully with Ms. Kramerman's date and

initials. I want them to be carefully preserved in some

way. Now, the clerk's office doesn't really have good

storage facilities, or I hesitate to say any storage

facilities, but when we get into bulky exhibits, for

example, seat tracks and wires and canisters, all of those

things, we are going to have to have some agreement about

how we have to maintain them.

With each Judge in this court getting 600

assignments as year of cases, you can imagine the filing

cabinets fill up very quickly, so we have to work something

out. At least at this juncture, I want them marked with

the stickers and then at least if we look at them a month

from now or whatever it may be, we will know that we have,

in addition to the record, we will have them actually

marked.

MS. MILLER: Your Honor, with regard to the bulky

items, they had some tags on them that were placed on them

 

UNITED STATES vs SABRETECH, ET AL - 11-23-99

60 FOGG - Cross

in the course of the civil litigation, and if it's

agreeable to the Court, counsel and I have agreed that the

tags would be removed before --

THE COURT: Absolutely. We shouldn't inject into

this trial anything that occurred, or suggest the

occurrence of an administrative hearing or a civil trial or

anything else. I'm perfectly comfortable with that as long

as you all agree, just let me know or just by agreement

remove them.

It might be well for you to stand and dictate at

one of the recesses into the record, we have removed a

green tag, yellow tag or blue tag from 46 A or whatever it

is. Then there's some sort of record of it. But certainly

by agreement, I have no difficulty with it.

It was filed again, 721. I misspoke. I said 741.

It was 721. I know it came in after I got here. Motion for

the Court to take judicial notice. It is comprised of four

pages and I will hear -- I think it's rather self

explanatory, and rather than hearing from the government

first, I'll ask if there are any objections?

MR. MOSCOWITZ: Your Honor, we received it after

Your Honor did, because we weren't here at the time.

THE COURT: Well, that was tricky, isn't it. Is

that fairly typical to what you all are doing? You're

giving it to the Judge first and an hour or two earlier.

 

UNITED STATES vs SABRETECH, ET AL - 11-23-99

61 FOGG - Cross

 

MR. MOSCOWITZ: No, I only meant that I wasn't

here at that time.

THE COURT: Oh I see.

MR. MOSCOWITZ: We have looked it over, Your

Honor, and I can say preliminarily, we do have objections,

and we also have a different view of the statement of the

law in here, the summary of the law. Our suggestion would

be that in so far as the question of taking judicial notice

of the regulations and statutes that relate to the issues

in this indictment during our case, there may be related

statutes and regulations that we will seek to have the

Court take notice of that we would want to supplement this

witness as well as change it. That this is something that

should be taken up before the jury is charged, Your Honor,

in terms of what additional law needs to be given to the

jury in terms of consideration of this case.

I don't think it's something that needs to be

taken up now before the conclusion of the government's case

or should be. This isn't a question of evidence. The

government can put on it's evidence. This is simply a

question of the law, which the jury will be charged with at

the end. So we do object. We think it's something that is

important. We think it's a misstatement of the law in here

and we want to brief it.

More than that, we would also propose judicial

 

UNITED STATES vs SABRETECH, ET AL - 11-23-99

62 FOGG - Cross

 

notice of additional regulations and statutes, so that

maybe we can work it before the charging conference, and if

not, then we present to the Court at that time what both

parties believe the Court should take notice of.

THE COURT: All right. Ms. Miller, do you have

any objection to taking this matter up at the charge

conference?

MS. MILLER: Your Honor, our concern is our

indictment includes background information about some of

these aspects, the department of transportation et cetera.

We have very much taken to heart the Court's abolition that

the does wish to hear from a witness in that regard,

therefore, we want to make sure that we do not fail in our

presentation with regard to matters that are asserted in

the indictment.

THE COURT: Let me interrupt you for just a

moment.

Do you anticipate, Mr. Moscowitz or can you cite

to me any rule or case authority that says I should not take

judicial notice of a portion of the United States Code, if

requested to do so? All that happens when you take judicial

notice is you say, yes, I take judicial notice that 49

U.S.C. section 102 is in the code. Then the parties in

their closing argument argue that if it's otherwise relevant

or they think it is. They argue that to the jury. I don't

 

UNITED STATES vs SABRETECH, ET AL - 11-23-99

63 FOGG - Cross

 

know any bar or preclusions to taking judicial notice of the

portion of the Federal regulations or the judicial code.

MR. MOSCOWITZ: I agree, Your Honor. There is

none. Our objection is not taking notice of a specific

regulatory section, it's to the government's summary.

THE COURT: Well, this motion doesn't go to the

jury any way. This motion doesn't go to the jury. I'm not

going to be handing them this. You are going to be able to

argue at the charge conference the relevancy in the charge

conference, the government may be asking me to charge that

for example, just pecking out here, that the United States

department of transportation was a department of the United

States.

They may ask me to charge the jury with that.

With that statement, you may ask me not do that because it

really handled indian affairs or whatever you see? And

then I make a decision. It goes into the charge as I think

you correctly alluded to in your statement when you first

started talking about this. But, so therefore, it doesn't

matter how they have summarized it for my benefit to read

here.

Certainly, anything that is a conclusion of the

government lawyers as to what these provisions of the code

say or do not say, is certainly subject to your view and

your opinion and then we, I suppose, that we have to arrive

 

UNITED STATES vs SABRETECH, ET AL - 11-23-99

64 FOGG - Cross

 

at whatever the Court feels is a proper correct delineation

of what that statute says.

So I don't think you need to be concerned or

worried about -- let me just pick on Ms. Miller,

Ms. Miller's interpretation or Mr. Brigham's or whoever,

those sections of the code. I interpret this motion to be

just a way for her to inform me of what those provisions

said or held.

At the charge conference, any argument over

whether or not the department of transportation was the

department of United States will be hashed out. Let me say

this, I think the simplest way to resolve this, is that all

portions of the United States Code and regulations

promulgated thereunder, would be and are proper items for

the Court, and it's just a matter of hammering out what they

say as far as going into the instruction.

But it would not be necessary for the government

to offer proof or opinion of someone, and I don't know who

would be an expert that they could bring in, but they

wouldn't have to have oral testimony that the department of

transportation is the department of the United States.

Does that provide the comfort level of what we are

talking about?

MS. MILLER: I think so, Your Honor. I don't

want to be arguing to the jury and not have something that

 

UNITED STATES vs SABRETECH, ET AL - 11-23-99

65 FOGG - Cross

 

I can argue to them that matches what we have alleged in

the indictment.

Not all of these matters as to which we ask the

Court to take judicial notice may be things that we ask the

Court to instruct the jury on. What I do want to have the

ability to argue to the jury. The indictment says the

Department of Transportation is an agency of the department

of the United States. How do we know that ladies and

gentlemen of the jury? We know that because of Title 49,

United States Code, Section 102.

THE COURT: That's better, in your view, than you

know that because the Judge is going to tell you so. I

think the jury is going to believe the Judge more than they

are the regulations, by the end of this trial.

In my experience, the longer these things go I

assuming that the Judge is not a total, well -- the more

the jury starts to listen to the Judge, it's my experience

and I may be wrong, and maybe at the end of this, they're

not going to listen to the Judge at all, but I think if I

tell them that hazardous materials means a substance or

material that is capable of posing an unreasonable risk of

health, safety, property, when transported in commerce, I

think it's going to mean a lot more to this jury if we tell

them that some secretary of transportation in far off

Washington has put a label on something and defined

 

UNITED STATES vs SABRETECH, ET AL - 11-23-99

66 FOGG - Cross

 

hazardous materials as using even the same language.

But it may be that you are entitled to send their

waiver around the statute book and argue from it. I think,

right now at least, it seems to me that more appropriately

these should be part of a set of instructions to the jury

where I simply tell the jury that the law, section 49

U.S.C. 102 says or defines so and so.

Now, I don't know. So why don't we think about it

overnight. It's not the purpose of any remarks that I have

made here this evening to indicate that I want to get into a

situation where somebody in closing argument is going to be

able to argue what these things are. It's just a question

of how they come to the attention of the jury.

MS. MILLER: Yes, sir.

THE COURT: If the government wants to be able to

say the Court has taken judicial notice of these, and that

statutes say, thus and so, and read them the statute, they

may be entitled to do that. I don't know. It would seem

to me -- well, in any event, they may be entitled to do

that. But we will look at whatever case authorities they

have this proposition.

Generally speaking, the pronouncement of whatever

the statutes are comes from the Court and not from just

waving a written document around. I don't mean that that's

what you are going to do. But you know holding it up and

 

UNITED STATES vs SABRETECH, ET AL - 11-23-99

67 FOGG - Cross

 

saying, well the code says, thus and so. If you are going

to do that, it would be better to hold up something and say

the code says, thus and so, and hold up the code, then say

I, Ms. Miller, tells you the code says that.

I think. Maybe not. Who knows. Do it any way

you want to do it. But we will come back and visit this

tomorrow or whenever you want to. Somebody, if you think

that you want to go the judicial notice route then bring me

some law. Maybe you did in this.

MS. MILLER: I didn't cite law. I did in the

first motion. I made for judicial notice that was with

regard to something from the C.F.R.

THE COURT: Do we have some cases that dealt with

this problem?

MS. MILLER: They dealt with the issue of, as the

Court indicates, the mandatory nature of the Court shall

take judicial notice of the Code of Federal Regulations.

THE COURT: I think that's what I said ten

minutes ago. I think you have a right to having me take

judicial notice. Whether you have a right to have it done

by way of the of the court instructions on the law, or

whether you then can as a procedural matter get up and take

the code and waive it around and send it back to the jury,

I don't know. I guess we are all saying the same thing,

it's just how we do it.

 

UNITED STATES vs SABRETECH, ET AL - 11-23-99

68 FOGG - Cross

 

I don't feel comfortable that we brought the thing

to finality on this. I guess I do take judicial notice of

the specific statutory exceptions. I do not necessarily

approve of the language in this particular motion. I don't

disprove of it. I just don't know.

But if you have objections to the language then we

will take that up, probably at the charge conference unless

Ms. Miller feels that she might be caught short with lacking

an element of proof if we don't resolve it before then. In

which case, she'll come back and give me cases that tell me

Judge Posner in Chicago, always does it this way, or Judge

Jackson, does it some interesting ways. He does some

interesting things, doesn't he, findings of fact now and

then conclusion of law a year from now. It got me thinking

that I could really get rid of some cases like that. I

wouldn't have to decide anything about the law, just decide

the facts. It's kind of interesting. I wonder how they do

it?

MS. MILLER: And then, in the middle, urge the

parties to settle.

THE COURT: Right, and then appoint another

active Judge to conduct settlement. Kind of neat. I've

got to start thinking about that. That would save a lot of

time. If I didn't have to worry about the law, I could

whip out whatever I thought the facts are. Based of

 

UNITED STATES vs SABRETECH, ET AL - 11-23-99

69

 

course, on the record.

I don't mean to suggest that he did that at all.

He was very conscientious about that. If all I had to do

was make findings of fact and then worry about the law

later, boy, I could sure cut these trials down. He is a

good Judge. And then shift it off to Judge Marcus and say,

come on down here and work out a settlement for me. That

would be pretty good.

Oh well, anything else before we call it a half

day?

MS. MILLER: No, sir.

THE COURT: 9:00 in the morning. Thank you.

COURTROOM DEPUTY: All rise.

(Proceedings were concluded at 5:00 p.m.)

 

 

 

 

C E R T I F I C A T E

I hereby certify that the foregoing is an accurate

transcription of proceedings in the above-entitled matter.

 

 

 

 

______________ _______________________________________

DATE ROBIN MARIE CARBONELLO

Official Federal Court Reporter

Federal Justice Building, Ste. 1127

99 Northeast 4th Street

Miami, FL 33132 - (305)523-5108

 

 

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