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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 29, 1999

SABRETECH, INC.

DANIEL GONZALEZ, MONDAY - 9:00 A.M.

EUGENE FLORENCE

 

Defendants.

 

 

 

JURY TRIAL PROCEEDINGS

BEFORE THE HONORABLE JAMES LAWRENCE KING,

SENIOR UNITED STATES DISTRICT JUDGE

DAY 9

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

 

 

 

2

SPECIAL AGENT JACQUELINE FRUGE

FEDERAL BUREAU OF INVESTIGATION

 

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

Reporter's Certificate ................................. 154

INDEX TO EXHIBITS

Exhibits Marked for Received

Identification in Evidence

Description Page Line Page Line

Government Exhibit 40.......................... 75

Government Exhibits 66, 67A, 67B, 68, 69, 70... 76

Government Exhibits 82, 83 and 84.............. 77

Government Exhibit 96.......................... 78

N PB,D LC,E B

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

UNITED STATES vs SABRETECH, ET. AL - 11-29-99

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MORNING SESSION

9:00 A.M.

COURTROOM DEPUTY: All rise. Court is in

session. The Honorable Judge James Lawrence King

presiding.

THE COURT: Thank you. Be seated, please.

All right. First, let me inquire of the

Government as to whether or not they have any other

exhibits, in reviewing the files, they ascertain they would

like to offer into evidence.

MS. MILLER: Yes, we do, Your Honor. I hope you

will bear with us, it might take a little while, although I

think it should go smoothly.

First of all, Your Honor, we have entered into

various stipulations which I am going to hand to the Court

at this time. There is one that we entered into last week,

Your Honor, that Ms. Kramerman has the original of that also

will be applicable. I don't know if we have that in the

court right now.

Ms. Kramerman has given me back one stipulation.

I'm handing the Court back five more, for a total of six

stipulations.

THE COURT: All right. Thank you. What else do

you have?

MS. MILLER: We would also like to move into

 

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evidence, Your Honor, certain self-authenticating

documents, I believe, with the nonobjection of counsel.

THE COURT: Do you want to do that when the jury

comes back? We will only take up those that we have

objections to at this time.

MS. MILLER: Well, Your Honor, counsel has

tentatively told me that there are no objections, but I

don't want to be taken by surprise. So I think it might

save time to go over --

THE COURT: Hand them to them and ask them if

there are any objections.

MS. MILLER: I will ask Ms. Breshay to hand the

following exhibits to the defense.

THE COURT: I don't want to waste time going

through them all now. If there's no objection to them,

then all you have to do, when we resume with the jury, is

to offer an exhibit. Just say it will be offered without

objection as Exhibit 102, a letter dated such and such, or

whatever, and then we move right on.

The same thing with the stipulations. All you

have to do, if they are stipulated to, is just stand up and

read them to the jury when we resume.

MS. MILLER: May I consult with counsel for a

moment, Your Honor?

THE COURT: Sure. How many of these exhibits do

 

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you have? Maybe we'll just take a ten-minute recess and

let them see what you all are talking about.

MS. MILLER: Why don't we do that, Your Honor.

THE COURT: I've received this morning a

memorandum from the Government involving anticipated Rule

29 motions. If the defendants or lawyers have any matters

that they would like me to consider I will be glad to do

that.

MR. MOSCOWITZ: I assume the Government is

resting, except for the stipulations, Your Honor?

MS. MILLER: Well, we will enter the stipulations

and introduction of evidence, Your Honor. We would be

resting after that.

Your Honor, this morning we actually filed two

memoranda of law.

THE COURT: What I have here, filed this morning

at 7:27, is United States memorandum of law concerning

knowledge and intent. Another one, memorandum as to

federal jurisdiction concerning 18 USC 1001.

Now, I have handed to me Defendant Danny

Gonzalez's motion for judgment of acquittal. Those are the

three things I have. I haven't read any of them.

MS. MILLER: We also today filed proposed jury

instructions.

THE COURT: Okay. Good. All right, you will let

 

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me know when you've gone through all the exhibits.

[There was a short recess].

COURTROOM DEPUTY: All rise. Court is in

session. The Honorable Judge James Lawrence King

presiding.

THE COURT: Thank you. Be seated, please. Have

we resolved the stipulations and the exhibits?

MS. MILLER: Your Honor, we have narrowed the

areas that call for the Court's resolution. We have

entered into one provisional stipulation. And if the Court

will forgive me, I have put it on yellow paper.

THE COURT: Perfectly all right. Make a copy for

everybody when you get a chance.

What are the exhibits in issue, please?

MS. MILLER: There are three exhibits which we

wish to offer to which the defense has objections.

The first one, Your Honor, is Government Exhibit

29, which you may recall is this model of the PSU that is

sitting under the table.

THE COURT: Plaintiff's Exhibit 29 for

identification, and it appears to be a boxed model -- yes,

I am familiar with it. That is the unit that the mechanics

were placing in the overhead bins that contained the unit

of the oxygen canisters and the masks and the drop cords

and the cables, et cetera.

 

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It's a three-unit thing and the last time the

defense had a comment about it, they were saying that this

aircraft only had a two-unit thing, so it was not exactly

representative of the unit. I think that was -- there may

be more objection to it, but that what they said the last

time, a week or so ago.

MS. MILLER: That's correct, Your Honor.

Actually it is four-man unit. Their objection was that

these aircraft only went up to three-man units.

THE COURT: Is that the same objection or is

there further objection?

MS. MOSCOWITZ: Your Honor, actually they had

three-man on one side and four-man on the other. The

objection is that it is really just a demonstrative

exhibit. It's not evidence in the case. We are happy for

the Government to show it to the jury but do not think it

should go into the jury room.

THE COURT: The objection is overruled. The jury

will be instructed that with respect to Government Exhibit

29 for identification, that it was a model that was

supplied to the Government by the manufacturer.

It is not something that was recovered from the

crash site, not something that was installed in this

airplane, but is for -- as an example of the type of unit

that we have been discussing in the case, or something to

 

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that effect, a limiting instruction to that effect. And

the weight they give to it is entirely up to the jury.

What is your next one?

MS. MILLER: Your Honor, the next one, if I may

approach the Court, is Government Exhibit 95.

THE COURT: 95 for identification. It helps if

you always add that because until they are admitted, then

we know what we are talking about.

Plaintiff's Exhibit 29 will be admitted when it

is offered in front of the jury. We don't need to repeat

any objections. Your objections are fully logged in the

record and you are not waiving them by not reasserting them

in the presence of the jury.

The next one is Plaintiff's Exhibit 95 for

identification. What is it, please?

MS. MILLER: Your Honor, the parties have agreed

to the authenticity of this document, but not as to

materiality.

This document is a letter agreement from the

President of SabreTech, a man named Steve Towns, to an

official at ValuJet, David Gentry, dated May 1, 1996. It

relates to the lateness of the MD-80s at a time that is

highly pertinent to our case.

Mr. Towns, in this letter, acknowledges that there

has been schedule slippage with regard to the MD-80 program

 

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in Miami and offers a potential monetary compensation to

ValuJet for continue the lateness of the project.

Specifically the letter states that --

THE COURT: I can read the letter, yes. Thank

you. There is a two-page document in this envelope. It's

signed on the second page, Steve Towns, President.

The parties have agreed that there's no need to

authenticate it as such. There's no need to bring

Mr. Towns in to authenticate this as his document sent or

the other gentleman, Mr. Gentry, as received, but the issue

is materiality.

I will hear from counsel for the defense.

Mr. Raskin.

MR. RASKIN: Thank you, Your Honor. As the Court

can see, this is a letter from Steve Towns, who is the

President of SabreTech. He is located in Phoenix, Arizona

and has no relationship to this case, not a co-conspirator,

to David Gentry, who also is a ValuJet official in Atlanta,

who is also not a co-conspirator in this case.

The only way that this letter even gets into the

SabreTech Miami facility is because --

THE COURT: Pardon me. So I understand

factually, before you leave the lack of conspiratorial

involvement, the stationery says, SabreTech Liner Company

and it's addressed to Vice President ValuJet Airlines.

 

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You are suggesting the individuals are not

alleged co-conspirators.

MR. RASKIN: That's correct.

THE COURT: But as I understand it, this is the

same SabreTech -- or is it the same SabreTech?

MR. RASKIN: It's the same SabreTech.

THE COURT: So this was written by the President

of one of the defendants to ValuJet Airlines?

MR. RASKIN: Yes, sir.

THE COURT: Go ahead.

MR. RASKIN: It comes into the SabreTech

facility, according to the cc, and goes to Jamie Galindo,

who is the general manager of the Miami facility, also not

a defendant an not an unindicted co-conspirator.

There has been no evidence whatsoever in this

case that any of the unindicted co-conspirators or the

defendants in this case were aware of this or acted in

conformity with this. I think it's extremely prejudicial

to hold these people to knowledge that the evidence

certainly does not support that they were in possession of.

There's nothing in the record to show that

Mr. Gonzalez knew that this letter existed, certainly that

Mr. Florence knew that this letter existed, or any of the

identified co-conspirators even knew that this letter

existed.

 

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Based on that, it is irrelevant. It's certainly

prejudicial because it establishes -- or is seeking to

establish the only motive in this case, that this was a

conspiracy for profit. Unfortunately, the Government

hasn't shown that any of these defendants acted with that

motive or knew that this letter even existed. So it's

really a relevancy and prejudice argument, Your Honor.

THE COURT: All right. Yes, Mr. Dunlap?

MR. DUNLAP: I just want to briefly echo what

Mr. Raskin said, and that is, to Danny Gonzalez this is

hearsay. It is true that he is charged in a criminal

conspiracy with a corporation, but it is our position that

by electing to charge a corporation, the Government can in

no way ameliorate the confrontation rights engrafted in

Rule 801(d)(2)(E).

That is to say, while the corporation may be

charged, it can only be found guilty through criminal mens

rea, specific people within its corporate ambit and who

were acting as members of the cooperation.

The corollary of that would be that anything said

by members or people in the cooperation outside of Danny

Gonzalez's presence who are not his co-conspirators, even

though it may have occurred during the course of a

conspiracy, is not admissible against him and that

801(d)(2)(E) still must fully apply. Thank you.

 

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THE COURT: Would you and Mr. Raskin, before I

turn to Ms. Miller, would you care to comment upon the

evidence that is in the record, as I recall it at least,

and I may be in error on this, but as I recall, there is

some evidence in this record indicating that around the

facility that the supervisors or bosses, officers of

SabreTech, came to the mechanics that were working on these

planes and urged them to -- I believe the word was, get on

with it, get it cleaned up, get it going, get it done.

Mr. Raskin was just talking about it and I, of

course, should address this more to him than to you,

Mr. Dunlap. And he's standing, obviously ready to rush in,

to substitute for -- not that you're an alien quarterback

like quarterback Marino. Quarterback Huard is about to

come in for Marino, is that it?

He had argued a moment ago that there was nothing

that showed that anybody had had any knowledge of this

letter. Of course, he is absolutely correct. But the

question would not be, I think, whether they knew of the

letter, but whether they knew of any -- if they have been

told, we have got to get this done, we have to get it out of

here, we are overdue, we are over time, words to that

effect.

What this is, is an invitation for you all to

respond to that before she gets up, not anticipating her

 

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argument, but so we don't have to bounce back and forth.

Do either one of you have anything you want to

talk about?

MR. DUNLAP: If I recall the testimony the Court

is referring to correctly, I believe that it had to do with

a statement by one of the witnesses, either Rodriguez or

Taber, that some supervisor had directed them to clean up

the hangar area in general. And I think that related to

the Government's attempt to introduce an audit by

Continental Airlines -- remember the Court didn't allow

that in -- who was at that time considering sending work to

SabreTech.

It doesn't have anything to do, that particular

reference, with this letter which is between SabreTech

corporate offices and ValuJet, I gather, with respect to

this ValuJet plane.

THE COURT: What about the testimony of one of

the first witnesses two weeks ago, whenever it was, the

gentleman who was the owner's representative there, and I

have forgotten his name, but the gentleman who was a tech

rep or whatever he was called, didn't he offer some

testimony?

Again, it's up to the jury whether they believe

any of this or not, the weight to give to it. But it's in

the record to the effect that he was badgering somebody or

 

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pressuring somebody at SabreTech to get the planes done and

get them out, they were overdue. Help me out. Refresh my

recollection.

MR. DUNLAP: That witness was William Drechsler,

Your Honor. His testimony -- I, of course, will discuss

that more at length during my Rule 29 allocution. But his

testimony really involved a business matter that, in our

view, really has no direct or any relevance on the issue

before the jury, which at that time was whether or not

Danny Gonzalez falsified a specific work card.

He was called --

THE COURT: I know the purpose. But didn't he --

from that, is there not evidence in the record, and the

Government could argue, I think, to the jury that the

owners were putting pressure on SabreTech to get the

airplanes out and get them back in service?

MR. DUNLAP: Mr. Drechsler represented Aserca,

Your Honor, a completely different airline than ValuJet,

which is the contract that is at issue in the letter the

Court is examining.

Now, he, if I recall his testimony correctly,

said that he was dissatisfied, as the representative of

Aserca, with the delivery date and the rate of completion

of work on a DC9 aircraft, and that was the first aircraft,

a 705, that was the subject of his handwritten letter, and

 

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that he raised some concerns with SabreTech about getting

those planes out.

MR. MOSCOWITZ: Your Honor, may I just add to

that?

THE COURT: Sure.

MR. MOSCOWITZ: That testimony relates to

something that took place in December of 1995, five months

earlier. His testimony concerned a totally different

aircraft, totally different schedule, and five months

before this letter, so it has nothing to do with this.

There was also no penalty cards involved with that

aircraft, Your Honor.

MR. DUNLAP: If I may, Your Honor, SabreTech

wasn't even incorporated at the time this was going on.

THE COURT: Okay. Anything else with respect to

Government Exhibit 95 for identification, being the letter

of May 1, anything further from the defense?

MS. MOSCOWITZ: Yes, Your Honor. It doesn't

relate at all to Mr. Florence. And there's certainly no

testimony whatever that would link it to Mr. Florence in

any way.

THE COURT: Thank you.

MR. DUNLAP: I would make the same statement as

Ms. Moscowitz referring --

THE COURT: I understand. I treated your

 

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summation as a request for a limiting instruction, even if

it is admitted, to the individual defendants as

distinguished from the corporate defendant.

All right, Ms. Miller, we have the objection to

the entire document as not being relevant for the reasons

you heard; and secondarily, by the individual defendants for

a limiting instruction even if it is otherwise admissible

and relevant.

Your response to their argument, please?

MS. MILLER: Your Honor, the document is

relevant, highly relevant, and for exactly the reasons that

the Court was recalling. Because there was testimony that

at this time and in relationship to this project, the

MD-80s, there was time pressure. The time pressure was

coming from Danny Gonzalez, among other people.

The Court may recall Government Exhibit 36, which

I am handing up, which was what we are calling the

7-day-a-week memorandum, which was issued by Mr. Gonzalez

on April 26, 1996, saying that due to the press of work on

the MD-80s, people would be working seven days a week from

then on. That is immediately prior to this letter.

Your Honor, within days after this letter, on May

4, 1996, and we know the date from the testimony of Robert

Rodriguez, we have the incident in which there was a press

to get paperwork signed in order to get 802 out the door.

 

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You may recall the testimony that the other two

MD-80s had gone, but 802 had not, and there was a press to

get that aircraft out the door. That was the day that

workmen were summoned to the work booth. At the work booth,

Eugene Florence was in the booth working with papers.

John Taber has testified that the papers that were

in the booth that day were the oxygen generator papers.

John Taber also testified that on that day he was told by

his lead mechanic that we needed to get this paperwork

signed off. John Taber other mechanics balked saying they

weren't going to sign anything until they read it.

Mr. Casamere called him over and said, "Johnny,

could you please sign these items off." He signed some

papers, but with regard to others, he said he was a little

greasy right now. "I wanted to read what I was signing, if

I did." Danny Gonzalez stood up and said, "We need this

paperwork signed now."

At that time, Mr. Taber did not sign further

paperwork, but he saw Mr. Florence signing paperwork with

Danny Gonzalez at his side.

The Government submits that all of this is

certainly enough to show the relevance of this document. It

fits in and further establishes a point which has been

alleged by the indictment, which is that there was an

atmosphere of haste and putting profit above other concerns.

 

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The letter demonstrates the profit motive.

It also demonstrates the reason for the haste

which other witnesses and documents have attested to. It

should be admitted.

Further, Your Honor, because of the evidence

showing that both Mr. Gonzalez and Mr. Florence were aware

of this time pressure related to these aircraft, the

Government submits that no limiting instruction is required.

THE COURT: Now, the defense -- with respect to

this last issue, the defense has suggested that the two

individual defendants didn't know of the letter and they

shouldn't be charged with knowledge of the letter. There's

no evidence to show that they did, in fact, know of the

letter which was sent to the defendant SabreTech.

What theory would you advance, what legal theory

would you advance that it should apply to them

individually, or that the jury should consider it and weigh

it and give whatever weight they want to give to it, but

they should consider it with respect to the individual

defendants? What legal theory?

MS. MILLER: Your Honor, the evidence does not go

farther than what I have suggested, which is that these

defendants were aware of the time pressure related to the

MD-80s. The Government has not produced evidence that the

individual defendants knew of this particular letter.

 

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However, because of the close fit of this

individual letter in time and in substance with

Mr. Gonzalez's 7-day-a-week memorandum, we feel that it is

a fair inference.

With regard to Mr. Florence, again, he was

present in the booth at the time of the remarks that

reflected this time pressure related to the MD-80s.

THE COURT: All right, the objection is overruled

in part and granted in part. It is overruled as to the

relevancy and materiality and prejudicial effect. It is

admitted into evidence with respect to the defendant

SabreTech for all purposes.

With respect to the individuals, a limiting

instruction will be given, that the jury may give it such

weight as they deem appropriate, but they may not consider

it in determining the case as it pertains to Eugene

Florence and Daniel Gonzalez.

What is next?

MS. MILLER: Your Honor, there is but one exhibit

left that is in contention. That is Government's Exhibit

52, which is the cockpit voice recording. Does the Court

wish to see a copy of it?

THE COURT: All right. I have it in front of me.

It is Government's Exhibit 52 for identification.

MS. MILLER: Again, Your Honor, authenticity and

 

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foundation have been stipulated to. Counsel's argument is

one challenging materiality and raising concerns of

prejudice.

With regard to prejudice, Your Honor, the

Government submits that the transcript --

THE COURT: Excuse me. Every document you

introduce is prejudicial to the defense or you wouldn't be

offering it. So that really not -- the question is whether

or not the prejudice outweighs the probative value. So it

is not a question of whether it is prejudicial. Let me

assume it is because I don't think you would be offering it

if it wasn't helpful to your case and prejudicial to the

defense.

So what we are talking about here is, does the

prejudicial value outweigh -- does the prejudice outweigh

the probative value of the document? Let's deal with the

materiality or relevancy first and then we will determine

the other issues second.

There is an objection that this document is not

material, is that it? I should be asking them, I suppose.

Maybe it's better for me to hear from Ms. Moscowitz first,

if I may interrupt you.

MS. MILLER: Yes, sir.

THE COURT: Ms. Moscowitz?

MS. MOSCOWITZ: Your Honor, our argument, I

 

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guess, is three-fold. One is the prejudicial value is

greater than the probative value.

The other is it is irrelevant in the sense that

it is not anything that the Government is required to prove

under the charges it has brought.

The third thing is it's really hearsay. It's

offered for the truth and parts of it at least are hearsay.

With respect to the necessity of the Government

for putting it in or why it is -- it's probative value, we

have stipulated that this plane crashed and that everybody

aboard it died. The Government has extensively proved the

damage to the plane through its expert witness, Larry Fogg.

The transcript adds only those horrifying last

moments and, I submit, will make it impossible for the jury

to process the evidence, the charges that relate back to

things that happened before the crash, which the Government

has already acknowledged in opening that nobody intended to

have happen or even foresee would happen.

All the facts that are in there, from the

Government's point of view, are in the record already, fire

damage, resulting fatalities, crash in the Everglades.

There is nothing more relevant to the facts of this case

that is added. It doesn't say anything about oxygen

generators.

In fact, Mr. Fogg already gilded the lily and

 

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added more about oxygen generators than is borne out by the

transcript. For that reason, we are just enormously

concerned that it will sweep away the jury's ability to

consider the evidence.

THE COURT: Thank you. Ms. Miller, you have

heard the argument. What is the materiality?

MS. MILLER: Your Honor, the defense has already

established through its opening statement and through its

cross-examination of Mr. Fogg that --

THE COURT: Well, their opening statement didn't

establish anything. They can't argue that as part of this

record. Neither one of you can. Your opening statements

are not evidence in this record that can be considered by

the jury. I hope none of you launch off and say, well,

you heard me say in opening that something happened, that

the spark plug didn't work. If you haven't proven that,

then you can't argue it.

I don't mean to interrupt you, but opening

statement has no meaning.

MS. MILLER: I take your point, Your Honor.

THE COURT: Now, the materiality to this case of

Exhibit 52 for identification, which is the cockpit voice

recorder of the plane that tragically crashed, what is the

materiality?

MS. MILLER: In cross-examination of Mr. Fogg,

 

UNITED STATES vs SABRETECH, ET. AL - 11-29-99

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Your Honor, the defense challenged the proposition that the

fire had its origin with the oxygen generators and instead

proposed that the fire had an electrical origin. Indeed,

they used the transcript, or a sentence of the transcript

to try to establish that.

The transcript in its totality --

THE COURT: Didn't he respond to that and clear

that point up?

MS. MILLER: Well, Your Honor, it's a question of

whether he cleared it up or whether the jury was left with

this impression.

THE COURT: Excuse me. He answered that question

about that discreet portion of the transcript. Now you

wish to offer the whole thing. How would offering the

whole transcript bolster or change anything that was

brought out by the cross-examination question on that one

area and his response thereto?

In other words, would it help to show that later

on somebody cried out, we are crashing, or something to the

effect? I submit to you, no, it wouldn't make any

difference. I think they correctly read him whatever they

read him, or correctly referred to it, unless you suggest

otherwise and I invite your comment.

MS. MILLER: Your Honor, the transcript as a

whole shows that up to the moment that Ms. Moscowitz

 

UNITED STATES vs SABRETECH, ET. AL - 11-29-99

25

 

indicated there was no indication of an electrical problem.

The transcript shows the APU and electric is set. It shows

that the electrical panel is set.

THE COURT: Didn't Fogg say all of that?

MS. MILLER: No, I don't believe so. This occurs

prior to the portion that --

THE COURT: Didn't Fogg -- when she said, how

about the electrical comment, he cleared it all up, didn't

he? He may not have used the exact words, well, the first

20 minutes of the recorder didn't mention it or whatever.

But didn't he clear it all up and say that 11 seconds later

there was a cry of "fire" and that there would not have

been 11 seconds -- I think introducing this lengthy

document, some 31 pages, gets into a lot of things that

have nothing to do with the electrical fire.

Go ahead and make your argument.

MS. MILLER: I think -- although Your Honor

doesn't accept my argument, I think you already see where

I'm going. I think this cross-examination has the

potential for creating a misimpression of the minds of the

jury.

And although you feel comfortable that Mr. Fogg

refuted it, I think the Government is entitled to refute it

with the entire transcript which shows no evidence of any

electrical problem either before this incident, this remark

 

UNITED STATES vs SABRETECH, ET. AL - 11-29-99

26

 

that was made, or later on.

Further, Your Honor, the statements in the

transcript as to where the fire occurred, i.e. in the

passenger cabin, as opposed to the cockpit, further

bolsters the Government's theory that the fire originated

in the cargo hold and then moved up into the passenger

cabin. It may be, Your Honor, also that as --

THE COURT: You don't think there's enough

evidence in the record that you can make that argument from

Fogg's answer?

MS. MILLER: Your Honor, I understand and I

anticipate --

THE COURT: No, that's a simple question. We are

dealing with the voice recorder indicating that someone in

the passenger cabin said "fire" and that was 11 seconds

afterward. Didn't Fogg's testimony that someone in the

passenger cabin yelled "fire" 11 seconds later -- that

gives you all the arguments you need to argue to the jury

that the fire apparently occurred in the passenger cabin

and that is what the Government contends all along.

Why do you need all the other evidence about the

tragedy to argue that? It's a friendly question.

MS. MILLER: Your Honor, it just doesn't seem

fair to me that the defense can selectively take a portion

of this transcript, use it and then retreat and object to

 

UNITED STATES vs SABRETECH, ET. AL - 11-29-99

27

 

the rest of it being used.

THE COURT: The difficulty with what you are now

suggesting is that since there was no objection by the

Government and let it go ahead and now we get into all this

little pig trail through the palmettos, as some of my old

cracker friends would say, that now we can dump all of that

in front of the jury and let them wade through it.

All you had to do was object. This wasn't in

evidence and there was no objection. Maybe that was a

strategical decision to entrap them into getting into

something that would then create an argument that the whole

thing can come into evidence.

Frankly, it wasn't admissible. The document

wasn't in evidence. I think everyone has created their own

problem and I think, basically, the answer to it is that

the prejudicial value vastly outweighs any probative value,

if any. I don't think the document, Exhibit 52, is

necessary or needed to buttress anything Mr. Fogg said. I

think Mr. Fogg cleared up that one point very clearly.

I think there are plenty of facts in this record

which the Government can argue what they wish to argue,

which is that the fire started -- or was first detected in

the passenger cabin, started in the hold, came into the

passenger cabin and the electrical issue has nothing to do

with the case.

 

UNITED STATES vs SABRETECH, ET. AL - 11-29-99

28

 

Therefore, the objection is sustained. I find

that it is highly prejudicial and irrelevant to any of the

issues that are now pending before the Court.

We have also the stipulation of the plane crash

and that it was -- I'm taking from everyone's submission

that there's nothing in this document about the oxygen

generators. I have not read through it.

MS. MILLER: No, there is not, Your Honor.

THE COURT: Then the objection is sustained. It

will be marked as an exhibit for identification not to be

argued to the jury or go to the jury, except as it was

brought out in the questioning by, I think, Ms. Moscowitz

about the fire and Mr. Fogg's response thereto. You all

can argue that. That is in the record without objection.

But this document and all the rest of the

material that is in there will not be argued to the jury.

You can argue to the jury that there was a tape

recorder or a cockpit voice recorder and all that, but not

all the other materials or matters that come forth therein.

Any other exhibits that are still in contest?

MS. MILLER: No, Your Honor.

THE COURT: When we resume, then, we will --

MS. MILLER: Judge, there are some matters we

seek some clarification on before resting.

As the Court knows, we offered to produce a

 

UNITED STATES vs SABRETECH, ET. AL - 11-29-99

29

 

witness from the FAA to testify with regard to his oversight

for FAA materials. A motion in limine was made by the

defense and granted to preclude that testimony.

We want to make sure that we don't fall between

two stools and later face an argument that either pursuant

to the recent Supreme Court case, United States v. Gauden,

or otherwise, the Government had to prove as a fact some

issue related to FAA jurisdiction.

That witness is here and available and if the

parties agree that the issue of FAA jurisdiction is an issue

of law, we certainly don't wish to present him to testify to

something which we agree is a pure issue of law. But

neither do we wish to face a situation where later on, or

very soon, once we rest, the claim will be made that there

is an issue of fact that we have failed to prove, because

that witness is here and available to testify.

THE COURT: What is the witness's name?

THE WITNESS: Hoke Weiss, W-e-i-s-s.

THE COURT: I will interpret this as a motion by

the Government to call Mr. Hoke Weiss as a witness for the

plaintiff. What is the defense position?

MR. MOSCOWITZ: Your Honor, our position is the

same as it was last week, that this is inappropriate

testimony insofar as we understand he is being called to

testify as to the scope of the FAA's jurisdiction over the

 

UNITED STATES vs SABRETECH, ET. AL - 11-29-99

30

 

records in this case. That testimony is simply his

interpretation and opinion of a legal issue.

The FAA's legal jurisdiction is defined by the

CFRs relating to the FAA, and that is law that is for the

Court to give the jury.

The issue of jurisdiction as an element of 1001,

which is whether these statements are within the

jurisdiction of the agency, is a factual issue.

THE COURT: Factual or legal?

MR. MOSCOWITZ: The application to the evidence

in this case is factual. The scope --

THE COURT: It's not a legal issue, under Rule

29, as to whether or not 1001 applies to a document

required by the Department of Transportation and the FAA to

be maintained in the course of repairing an aircraft?

MR. MOSCOWITZ: The issue would be, Your Honor,

whether it applies to the documents in this case.

THE COURT: That's the decision the jury would

make if it gets that far, upon appropriate instruction.

The instruction, I presume, if it goes to the jury, would

be that the work records, or the correct terminology for

those documents, whatever that correct terminology be, that

those documents are official documents within the purview

and the meaning of 1001, which is defined as such and such

and such and such. Then they would take that into

 

UNITED STATES vs SABRETECH, ET. AL - 11-29-99

31

 

consideration.

But it wouldn't be -- I don't see that as a

factual issue for the jury. But if it is a factual issue

and you have an expert that wants to come in and say

they're not within that realm and they have one that is,

thus making a totally factual issue with no instructions on

it at all, then I suppose we can do that.

But I don't want to be confronted with a problem

that we spend two or three days having people testify as to

what you all consider to be a factual issue and then come

along, whoever loses that issue, or somehow you want that

instruction on a definition of what is an official document

within the purview of Section 1001.

I think I'm hearing it that the defense wants it

both ways. I may be wrong about that. I'm not accusing

you of anything. It's just a friendly inquiry.

Isn't this a matter of proper jury instruction as

to what is a definition of an official document?

MR. MOSCOWITZ: Yes, sir. Just to anticipate

where this is going so I don't want you to think we are

trying to have it both ways, we believe that the issue of

the FAA's jurisdiction is defined as a matter of law under

the appropriate regulations of the FAA. Those regulations

say which records are within the scope of the FAA's

jurisdiction. That's a legal matter for the Court.

 

UNITED STATES vs SABRETECH, ET. AL - 11-29-99

32

 

THE COURT: If you win that argument, you don't

have to worry about the factual issue.

MR. MOSCOWITZ: Now, what the factual issue is,

is whether the particular records here come within the

scope of that legal jurisdiction. That's not a matter, it

seems to me, that an FAA inspector can give testimony on,

his opinion that these records are within my jurisdiction.

THE COURT: Once the Court makes a determination

after listening to both sides on this issue, that issue is

then a finished and completed issue, subject only to

appropriate instructions to the jury, whichever way it may

flow.

I have reviewed the documents that the defense,

through Mr. Dunlap's written submission, have made and that

the Government has made on this issue. I think I continue

to be of the same opinion I have been since we had our

preliminary discussions about these matters in the various

appeals from the Magistrate Judge's orders, that these are

basically legal issues that are the subject of proper

instructions to the jury and proper ruling -- and ruling at

the Rule 29 stage of the proceedings.

I don't think that somebody's opinion as to

whether or not something is an official statement within

the meaning of Section 1001 is of any relevancy to this

jury; that is, I don't think some witness's opinion, no

 

UNITED STATES vs SABRETECH, ET. AL - 11-29-99

33

 

matter how long he has worked for the FAA and no matter how

much experience he has had, I can't imagine that that would

be relevant evidence.

So, to that extent I am denying the Government's

motion to present Mr. Weiss at this point in time and I

will consider these matters on the Rule 29 arguments and at

instructions to the jury, if we get that far.

MS. MILLER: Your Honor, I take it that although

Mr. Moscowitz has argued this point, this is the position

of the other defendants. I really would like to get that

on the record.

MR. DUNLAP: Absolutely, Your Honor.

MS. MOSCOWITZ: Yes, sir.

MS. MILLER: Thank you. Finally, Your Honor,

just as we are prepared to go forward and argue the Rule

29s without having put our final exhibits in evidence,

there is one other possible witness we may call. She --

THE COURT: Let me say that for purposes of Rule

29, these documents have been admitted into evidence:

Exhibit 29, with a limiting instruction, and Exhibit 95,

with a limiting instruction.

Additionally, there are two which you now just

read into the record the exhibits that you all have agreed

are admissible, the weight to be decided by the jury, but

that are admissible into evidence that have not yet been

 

UNITED STATES vs SABRETECH, ET. AL - 11-29-99

34

 

offered but now are being offered without objection. Read

the numbers, please.

MS. MILLER: Government Exhibit 40, Government

Exhibit 40A, Government Exhibit 66 -- these are all for

identification, Your Honor.

THE COURT: Well, you will read the numbers and

you don't have to say, because you have stipulated, and at

the end of it I will say simply that they are all admitted

into evidence.

MS. MILLER: 66, 67A, 67B, 68, 69, 70, 82, 83,

84, 96.

THE COURT: Is that all of them?

MS. MILLER: That is, Your Honor.

THE COURT: Let me inquire of counsel, defense

counsel, have you had an opportunity to review these

exhibits and do you have any objections to any of them?

MS. MOSCOWITZ: We have had an opportunity and we

don't have objections.

THE COURT: Thank you, Ms. Moscowitz. I will

assume that all counsel have joined in that statement.

MR. RASKIN: Other than the objections we have

already made.

THE COURT: Yes, of course. any objections you

have already made to any of these documents heretofore will

be preserved in the record.

 

UNITED STATES vs SABRETECH, ET. AL - 11-29-99

35

 

With that statement, the Court will admit into

evidence those documents which have just been enumerated by

Ms. Heck Miller together with Exhibit 29 and 95, as

heretofore ruled.

Now then, the Court will recognize the

stipulations that you all have entered into, being seven in

number. Those stipulations, at the appropriate time, will

be read to the jury together with the introduction of all of

these documents that we have just discussed.

All right. Now, so that we will all understand

where we are, the Government now, I believe, is prepared to

rest its case, subject only to the rulings we have made here

this morning; is that right?

MS. MILLER: Your Honor, as I was saying, there

is one witness that we may wish to present. She is coming

in over the lunch hour. She would be bolstering,

basically, testimony about a document that is already in

evidence.

THE COURT: That's fine. I don't need to go into

that. I just need to have the record complete and the

Government resting before I consider Rule 29 arguments. If

you wish to do this after lunch, that's fine.

We are at a point where, if we have the record

complete, then we can go forward with the Rule 29 arguments.

If not, then we have to wait. It's all right with me.

 

UNITED STATES vs SABRETECH, ET. AL - 11-29-99

36

 

MS. MILLER: Unfortunately, Your Honor, we really

won't know until we meet with her at noon.

THE COURT: That won't help us with several hours

of Rule 29 motions, will it?

MS. MILLER: Excuse me, Your Honor.

Your Honor, we think that it would make more

sense to proceed with the Rule 29 motions now. We will

forego this witness. We are ready to rest.

THE COURT: Do you rest?

MS. MILLER: The Government rests.

THE COURT: The Government has rested, subject

only to these matters we have discussed here and which will

be presented to the jury when the jury comes back. But the

record now is complete.

Are you ready to proceed or do you wish a few

minutes of recess before we start the Rule 29 motions?

MR. MOSCOWITZ: Can we have a five-minute recess,

Your Honor?

THE COURT: Sure.

MR. MOSCOWITZ: Your Honor, with regard to the

defense case, this was the Thanksgiving weekend. Frankly,

we had some difficulty rounding people up. We have three

witnesses who will be available this afternoon.

I can tell the Court that starting tomorrow

morning, without any interruptions, we will put on the

 

UNITED STATES vs SABRETECH, ET. AL - 11-29-99

37

 

remainder of our witnesses tomorrow morning. But given the

difficulty finding people here in town and making travel

plans over this weekend, it was difficult to have everybody

here today.

THE COURT: Do you have some witnesses here

today?

MR. MOSCOWITZ: Yes, we do.

THE COURT: All right.

[There was a short recess].

THE COURT: At this juncture, the Government has

rested and we will hear from counsel with respect to any

motions they care to make.

MR. DUNLAP: May I be heard first, Your Honor?

THE COURT: Certainly.

MR. DUNLAP: Your Honor, at this time, on behalf

of Danny Gonzalez we renew all of our pretrial motions

particularly the motion dealing with multiple conspiracies.

I would also move under Rule 29 for the entry of a judgment

of acquittal on all counts for Mr. Gonzalez.

The Court has received only this morning our

motion and memorandum, first one to Rule 29. I've done my

best to catalog the evidence as it came in at trial against

Mr. Gonzalez. It's kind of unique in my experience to be

making a Rule 29 argument that seems to me is one based on

such a complete dearth of evidence to support any of the

 

UNITED STATES vs SABRETECH, ET. AL - 11-29-99

38

 

charges against Mr. Gonzalez.

Essentially, the Government's case rises and

falls, as I have always believed it would, on the

allegation that Mr. Gonzalez had an argument with Chris

DiStefano and that on or about the time of that argument --

this is the evidence the Government sought to prove --

Mr. Gonzalez falsified a work card. That work card is R

45904, I believe in evidence as Government Exhibit 2.

The facts in the light most favorable to the

evidence -- to the Government indicates that the Government

has not in any way shown that the work called for on that

work card was not accomplished. The Government has offered

evidence to show merely that Christopher DiStefano saw

Mr. Gonzalez place the work card on a table at the

conclusion of a heated argument.

The evidence, through Mr. DiStefano, has shown

that prior to that argument work had been done on that

plane. The plane had gone through the induction process

which involves the running of operational checks on the

plane.

Mr. Drechsler testified that R 45904, or the

worked called for on the card, is one of those checks that

is preferred to be done prior to the plane entering the

hangar.

More importantly, neither Mr. DiStefano nor

 

UNITED STATES vs SABRETECH, ET. AL - 11-29-99

39

 

Mr. Quan could in any way say that that work card -- that

the work had not been done on that work card prior to the

argument. They couldn't even testify that the work card had

not been filled out prior to the argument. Mr. DiStefano

candidly stated that he did not see Mr. DiStefano -- or

Mr. Gonzalez sign the work card.

This is where the evidence is so glaringly

insufficient on that, that I wonder what more I could say on

the matter. There simply is no proof that the work, in

fact, was not done. There is, I guess, a set of

circumstances that the Government wants to point to that

they believe in the aggregate or they will argue in the

aggregate provide a basis to send the question of whether or

not that work card was falsified to the jury.

That work card, as I said -- the allegation that

that is false, I think the Court recognized before I even

made this motion and certainly I think can see after

reviewing the catalog of evidence that I put in this motion,

is the beginning and the end of the case.

But for that work card, the Government has put in

evidence through two mechanics, Rodriguez and Taber, that

Mr. Gonzalez was in a work booth and they, I think,

attempted to fix the date on that as about May 4, 1996, when

some paperwork was being signed on one of the ValuJet

planes.

 

UNITED STATES vs SABRETECH, ET. AL - 11-29-99

40

Ms. Heck, in her opening statement, said that

Mr. Taber would testify that Mr. Gonzalez told him he had to

sign the paperwork without reading it. Of course, Mr. Taber

said no such thing. He merely said that Mr. Gonzalez told

him they need to get the paperwork signed.

He, on cross-examination, testified that signing

the paperwork is part of the usual business of doing work at

SabreTech and that Mr. Gonzalez did not tell him to sign the

paperwork without reading it, and he only considered the

comment about we need you to sign the paperwork as a request

to get the paperwork and the job wrapped up.

I'm not really sure what else to address

factually. I don't know if the Court has any questions that

I could answer. It seems to me almost clear beyond argument

on the face of it that there is insufficient evidence to

prove that Danny Gonzalez participated in any conspiracy of

any kind.

Certainly there is no relationship whatsoever

between the facts presented through the witnesses DiStefano

and Quan with respect to the fight with DiStefano regarding

the Aserca work paper organization and the fight, by the

facts related to the jury, by the mechanics Taber and

Rodriguez with respect to signing of documents in the

ValuJet work booth almost, I guess it was five or six months

later. No nexus whatsoever.

 

UNITED STATES vs SABRETECH, ET. AL - 11-29-99

41

 

There is simply no evidence of any kind of an

agreement, tacit, expressed or otherwise, to falsify work

cards. There's a complete insufficiency of evidence to show

that an agreement was ever formed between Mr. Gonzalez,

Mr. Florence or anyone else at SabreTech to falsify the

documents.

As I said, initially the allegation that work card

R 45904 was falsified simply has not been proven. Ms. Heck

has not shown that that work was not done. She certainly

recognized that was an essential component of the case in a

statement in opening argument. She predicted that

Mr. DiStefano would state that the work had not been done

prior to the flight.

Not only could he not say that, but as I said

previously, he did not even say that the work card had not

filled our -- had been filled out, nor could Mr. Quan.

The facts regarding the fight, to the extent

Ms. Heck wants to argue they provide any kind of a

circumstantial backdrop in support of the allegation there

was a falsification, are in vivid conflict between the

Government's two witnesses.

Mr. Quan testified that he saw -- overheard the

fight between Mr. DiStefano and Mr. Gonzalez, and that the

import of the fight was over the organization of the

paperwork and that Mr. Gonzalez's final resolution of the

 

UNITED STATES vs SABRETECH, ET. AL - 11-29-99

42

 

matter was, I'm in charge here. We are going to put the

paperwork back in the condition that it's usually placed in

and that's how we are going to proceed on this C-Check.

He stated that Mr. Gonzalez left the booth with

paperwork and handed paperwork out to the mechanics to work

on it in the usual way. I believe that was under

examination by the Court that brought that out.

Mr. DiStefano related a different version of

events altogether, stating that he saw Mr. Gonzalez handing

out work over his shoulder to mechanics without even looking

at them. But the most striking divergence in the

testimony -- and I believe the Court has to consider all the

evidence and it has to consider the evidence in the light

most favorable to the Government, but it cannot ignore and

should not ignore evidence from Government witnesses that is

just completely in conflict, and I would argue,

irreconcilable.

If not that, it creates, under the case law, such

an equivocal nature of proof that any reasonably minded jury

should enter a judgment of acquittal, and I suggest that the

Court should do the same under Rule 29.

On the essential issue of the handling of work

card R 45904 -- and that's the fact that the Government

wants to argue, solely the handling of R 45904 by Danny

Gonzalez that proves that he falsified.

 

UNITED STATES vs SABRETECH, ET. AL - 11-29-99

43

 

You will recall that Mr. DiStefano said there was

an initial fight, Mr. Quan reiterated the same; that after

that fight, depending on whose testimony you credit,

Mr. Gonzalez either left and routinely handed out cards, or

Mr. DiStefano left and returned and saw Mr. DiStefano in a

different manner handing out cards.

But after that happened, there came a time, an

hour and a half or two hours later, when Mr. Gonzalez

returned to the work booth, and according to Mr. Qaun,

Mr. Gonzalez pulled the work card out of the board and he

signed it and he put it down. And he said, you see, Chris,

we will have this C-Check done before you know it, and he

put it on the work desk. I think he, Mr. Quan, said he put

it in a bin or a box on the work desk.

Mr. Quan identified that card as the bio-bor fuel

card. He identified it sufficiently to place it in

evidence. Upon examination by Ms. Heck, he said he wasn't

real sure on it, but later in examination he said he did

recognize that card and he believed that was in fact the

card. It was admitted into evidence, I think as SabreTech

Exhibit 4.

Mr. DiStefano testified that Mr. Gonzalez returned

to the booth and he had a card in his hand and he identified

that card as the work card charged in Count II and then

overt act A of Count I. He indicated that Mr. Gonzalez put

 

UNITED STATES vs SABRETECH, ET. AL - 11-29-99

44

 

it on the table and said, we will get this C-Check done in

no time.

He said he didn't see Mr. Gonzalez sign it.

Mr. Quan said that he couldn't say that any of the work

cards that had been arrayed on the work board there had not

been signed prior to the fight or the argument.

So there is a complete divergence in testimony

from the Government's witnesses, and it came out in direct

and cross-examination, on which work card Danny Gonzalez

handled or put down on the table.

It's also worthwhile noting, I think, that Chris

DiStefano was unable to identify that card when he appeared

in the Grand Jury about a year and a half after the events

he described. They occurred in December, 1995. He first

testified in the Grand Jury in July of 1997, I think. He

not only couldn't identify the card in the Grand Jury, he

couldn't recall what kind of a card it was.

The Court will also recall that he offered an

estimate of time that it would take to complete the work on

R 45904, and part of the predicate the Government laid to

get that opinion testimony in was that he was well familiar

with the card. He knew what it was and had directed people

to complete that task before and had done that task himself.

So this was not something he was unfamiliar with.

The testimony was also that Mr. DiStefano made no

 

UNITED STATES vs SABRETECH, ET. AL - 11-29-99

45

 

copy of the card at the time, that he told nobody of this

suspect handling of that document by Mr. DiStefano. And

this is at a time when Mr. DiStefano testified that he made

a copy of a letter written by a William Drechsler because

impliedly he found that suspect on the desk of Mr. Gonzalez.

Some time later Mr. Gonzalez -- or excuse me,

Mr. DiStefano finally identifies that work card.

Mr. Gonzalez, [sic] of course, is the witness who testified

before the Court that he was the only witness who destroyed

evidence in this case. We know it's a key piece of

evidence, the ValuJet turnover log in this case.

Mr. DiStefano is the only witness who has admitted

lying under oath. He lied before the Grand Jury and I

believe it was with respect to an arrest that occurred while

he was in the military.

Now, all of these things taken together, I think,

have to be evaluated by the Court, respectfully suggest

should be evaluated by the Court. And having evaluated

them, I simply can't do better than say that no reasonably

minded jury could possibly return a verdict of guilty on the

charges against Danny Gonzalez in the Indictment.

It's my view that Mr. Gonzalez should never have

been charged to this case in the first place. The Court

doesn't have the background that we have, having reviewed

the Grand Jury transcripts and having worked through this

 

UNITED STATES vs SABRETECH, ET. AL - 11-29-99

46

 

case, but -- and I don't know that it's relevant at this

point, but the Government has done the best they could to

marshal facts and to bring together law and pleadings to try

to present a conspiracy to the jury and to the Court in this

case.

We argued to the Court in the beginning of this

case when we filed our pre-trial motions that there was

absolutely no nexus between the events as described by

Mr. DiStefano and Mr. Quan and the events that eventually

came out through the witnesses Taber and Rodriguez with

respect to the signing of work cards in the ValuJet booth.

I think that's been borne out completely in the testimony

here.

How did we get to this point where the Government

has come in with this incredibly attenuated case that

Mr. Gonzalez, through some sort of a dispute over paperwork,

launched or created some sort of a conspiracy or somehow

that is implimatic of a conspiracy?

Well, because the Government, I think, in a

preordained fashion, went through every record in SabreTech,

talked to a million witnesses, and finally -- in a way I'm

rephrasing my opening statement -- finally came up with

Aserca and, you know, was determined to argue that it was

linked up to the facts such as they were that they had

involving Danny Gonzalez and the signing of documents on

 

UNITED STATES vs SABRETECH, ET. AL - 11-29-99

47

 

ValuJet flight 802, or rather, aircraft 802.

The Government has stated that pressure is not a

crime, but wanting to have it both ways, they recently

argued in connection with the admission of a document that

pressure is all about a crime. The evidence that they

offered about pressure was, frankly, merely that it was time

to close out the work on ValuJet 802. The mechanics were

summoned to sign paperwork.

The Government predicted, as I said before, in its

opening that Mr. Taber would say that Danny Gonzalez told

him, no, you can't leave the work booth. We don't have time

for you to read these work orders, you have to sign them

out. That, so far as I'm aware, was never the testimony of

John Taber at any time, whether in the Grand Jury or

debriefings, and it certainly was not the testimony of John

Taber here.

I think the cross-examination of John Taber really

kind of establishes a leitmotif in this case and the

pressure as he saw it was to get the job done, was to do the

paperwork, which was simply an integral part of the work

doing heavy aircraft maintenance at SabreTech; that he was

not told, you can't read this before you sign it. He was

never asked to sign something that wasn't true.

He never felt that the pressure that he was under

was any different than any other pressure that anybody else

 

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was under there, and that was to do the job and do it right,

but to do it in a timely fashion.

At any point, you know, I would invite inquiry by

the Court if there's anything that I could help to fill in

or to answer the Court's concern at this point. If not, I

would suggest that it might be economical to let

Mr. Moscowitz get up and cover much of the same ground for

the corporation, or we can let Ms. Hack respond to either

one of our arguments. Ms. Moscowitz.

THE COURT: All right. Thank you, Mr. Dunlap.

MR. DUNLAP: I haven't addressed the

jurisdictional issue, but I thought we could do that, with

the Court's permission, after we address the --

THE COURT: I'm going to hear all of your

argument at one time so it can be answered at one time, any

way you want to divide up your argument, and take whatever

time you need. But let me hear everything that you have at

one time.

MR. DUNLAP: The final point I would make, Your

Honor, is with respect to the allegations raised on work

card R 45904, that that is not a matter within the

jurisdiction of the FAA.

Ms. Heck has provided the Court with a memorandum

on jurisdiction and she has tried to address this matter or

anticipate it in a number of fashions. First by a request

 

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for judicial notice, which really, I think, had a lot of

surplusage in it that essentially tried to get the Courts

to adopt her interpretation of the statute.

Then she was going to put on Mr. Hoke Weiss, a

witness who was going to testify, I anticipate, that the

FAA looks at all records in a repair station, thereby boot

strapping or trying to, through opinion testimony, bolster

her view of what the jurisdiction is.

In fact, the jurisdiction of the FAA is clearly

defined by statute, by the CFR. The FAA has jurisdiction

because of the Chicago convention requiring the

registration of the aircraft to each country. It's clear,

and I believe Ms. Heck will stipulate, that the Venezuelan

aircraft on work card R 45904, which was Aserca Airlines

aircraft widebeam 720-C, was a foreign registry aircraft

and not registered by the FAA.

Not withstanding that, Ms. Heck has argued that

all the repair records at Aserca, any of them, whether they

are for a foreign carrier or domestic carrier, come within

the supervision of the FAA or come within their

jurisdiction. Essentially, Ms. Heck is really trying to

turn the regulatory scheme on its head.

The registration -- or the certification of

repair stations, if the Court reads our response, came into

being to certify and monitor the operation of these repair

 

UNITED STATES vs SABRETECH, ET. AL - 11-29-99

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stations with respect to aircraft described within this

part, as referred to in our brief. "This part" means the

section of the FAA that describes the aircraft over which

they have jurisdiction, which are U.S. aircraft.

Ms. Heck is essentially saying, prove we don't

have jurisdiction. In effect, it's really her obligation

to prove that they do have jurisdiction. The jurisdiction,

again, flows strictly from the FAA's primary jurisdiction,

which is over the aircraft.

As a corollary of that, the FAA has granted

licenses to domestic repair stations and in some cases to

foreign repair stations, but solely for the purpose of

working on U.S. aircraft. Ms. Heck has cited a couple of

other sections which I will deal with if the Court thinks

it's necessary in an attempt to try to save the issue and

establish jurisdiction, but they are inapposite.

She, for example, suggested to the Court in her

pleading that because the Aserca aircraft had come up here

to be worked on, that that makes it qualified as an

aircraft involved in foreign air commerce. If the Court

reads on Page 18 of our submission the CFR describing what

foreign air commerce means, it means transportation of

property, passengers by aircraft for compensation.

In fact, and the Court can refer back to the

testimony of the tech rep, Drechsler, that aircraft came up

 

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here for no commercial purpose. It was ferried up here

under a ferry permit for the specific purpose of being

maintained. That aircraft came up here and the air station

itself, Aserca, had to be approved by the Venezuelan FAA,

so that the conduct of the repair on that aircraft was

within the jurisdiction of the Venezuelan FAA.

You'll recall that Mr. Drechsler said that the

counterparts of our FAA in Venezuela had come up, we even

had to pay for their airline tickets to come up and for

their lodging and boarding to look at the station and

approve their station.

THE COURT: Were the work cards required to be

filed with the Venezuelan Air Force?

MR. DUNLAP: Yes, they were. That was part of

the testimony of Mr. Drechsler, that a complete set of work

cards had to be sent back to Venezuela. He was asked, did

you release the aircraft to service? He said, I signed a

release form, but I don't have the authority to put that

aircraft back in service. The Venezuelan FAA had to

inspect it themselves and determine whether the airplane

was back in service.

I believe part of the testimony was there was

some part of the work package that had to be finalized and

he had to get them sent back to Venezuela so they could be

duly executed and that their counterpart could issue their

 

UNITED STATES vs SABRETECH, ET. AL - 11-29-99

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authorization for the plane to return to service.

THE COURT: There was no requirement that they be

filed with the American FAA?

MR. DUNLAP: No, there was not, Your Honor, none

whatsoever. Ms. Heck has cited a few things that I think

may be worthy of mentioning. She cited some general

requirements for repair stations to maintain records, but

that section, 145.23, requires that they are maintained for

determining compliance with this part. That means the

section of the FAA that defines what aircraft are within

their jurisdiction.

Those are U.S. registered aircraft and foreign

registered aircraft that are operated by U.S. carriers.

I'm confident Ms. Heck will stipulate that the Aserca

aircraft satisfied neither one of those classifications.

On that point, Ms. Heck has cited U.S. v. Rogers

and, of course, there is some dicta that she is citing

there. But the specific holding in Rogers, 466 U.S. 476,

is the department or agency has jurisdiction when it has

the power to exercise authority in a particular situation.

Sometimes these things that we have to prove,

like I said, it is like proving a negative. Prove that

there's not jurisdiction. There is no reported instance

either in Federal case law or administrative actions where

the FAA has ever taken or attempted to take action in a

 

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matter where a U.S. maintenance facility has performed

maintenance on a non U.S. plane, simply because they

wouldn't. They don't have jurisdiction over it. It's not

within their jurisdiction.

The FAA similarly -- as I said, to try to address

this thing by reversal, by saying, well, since the FAA has

created these repair stations, therefore, we can turn the

syllogism around and say, they have the certified repair

stations, therefore they have authority over everything

they do, is simply not the case.

The FAA certified repair station is solely to be

able to work on FAA registered planes and for no other

purpose.

That is the complete argument I have to present to

the Court at this time. Again, if the Court has any

questions, I'm available to answer them.

THE COURT: All right. Thank you.

Mr. Moscowitz.

MR. MOSCOWITZ: Thank you, Your Honor.

I'm presenting a motion under Rule 29 for

judgment of acquittal on behalf of the corporation. Some

of the things I have to say, Your Honor, relate to matters

covered by Mr. Dunlap and I'll try not to be repetitive.

Your Honor, this Indictment alleges that the

corporation and its employees, these defendants committed

 

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54

 

crimes substantial enough to cause this air tragedy and the

death of 110 people. Having now heard the Government's --

all the Government's evidence, the Government's evidence

proves what was really never in dispute, that this tragedy

took place.

They presented some evidence that the crash was

caused by the oxygen generators, although that evidence is

in dispute, so it's not for argument here. But they have

presented no evidence, Your Honor, showing that these

defendants committed any crimes which led to the placing of

those generators on that aircraft.

There is a complete lack of evidence showing any

willfulness, any bad faith, any criminal intent on behalf of

anybody working at SabreTech in connection with those

generators.

Now, they have put on evidence, and it's largely

not in dispute, as to the events, the facts which led to

those oxygen generators being placed on that aircraft, and

we really don't dispute the evidence showing that chain or

that sequence of events.

What that evidence shows, Your Honor, is not a

series of crimes, but it shows a series of missteps and at a

critical point, a lack of coordination, a lack of

communication, which led to the generators being placed on

that aircraft.

 

UNITED STATES vs SABRETECH, ET. AL - 11-29-99

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This is simply a case -- this evidence shows

beyond any reasonable doubt that this tragedy, if it was

caused by the generators, was a result of mistake, error,

lack of purpose, lack of intent, and not, as alleged in the

Indictment, as a result of criminal intent, willfulness and

intentional conduct.

Your Honor, I will address the evidence with

regard to each count separately, briefly, and we are seeking

judgment of acquittal on each count.

Let me just say a few things generally about what

the undisputed evidence will show. We will put aside for a

minute, Your Honor, the evidence relating to Mr. Gonzalez

and Aserca Airlines, which is a separate matter.

With regard to the conduct of these defendants,

SabreTech and its employees relating to the oxygen

generators, all the evidence without dispute shows from the

very beginning the mechanics who worked on the generators

were working and operating in absolute good faith, seeking

to perform their jobs and doing what they believed they were

suppose to do.

Where the problem with the generators began was

with an effort to properly service the three ValuJet

aircraft that they were working on. Your Honor will recall

the testimony that the generators only became an issue when

the mechanics, Mr. DiStefano among them, Mr. Taber and the

 

UNITED STATES vs SABRETECH, ET. AL - 11-29-99

56

 

others, checked the aircraft and found out that the

generators on those aircraft that had come in from ValuJet

were out of date; that they only had a useful life of no

longer than 12 years and a number of these were beyond that

date.

So, quite properly, to ensure that there were

properly functioning generators on those aircraft, they took

steps to replace them, to take those generators off. The

undisputed testimony was that in every step in handling

those generators they did the best they could to handle them

safely and responsibly.

They removed them carefully. When they removed

them they did not have the caps. These defendants, the

mechanics, Mr. Florence, Mr. Taber and others, notified

their superiors that they didn't have caps. To ensure that

they were safe they went to great pains to carefully, as

Your Honor heard, wrap the lanyard around the firing pins,

around the generators, to ensure that they could not

accidentally discharge.

As you heard, that work took hours and hours. It

took several days of work by a compliment of these mechanics

doing that. They put the generators aside and continued

with their work as they were supposed to do.

With regard to disposal of these generators, Your

Honor, first, the only testimony that the Court heard, that

 

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the jury heard with regard to what these mechanics believed

they were doing, intended they were doing, they were focused

on properly completing the maintenance work on these

aircraft to make sure that when they returned to service

they were air worthy. And they were quite properly

concerned with the performance of the duties and the safety

of these aircraft.

As far as these mechanics knew, and this is

undisputed testimony, they believe, Mr. Valenzuela,

Mr. Florence, all the others, that these generators removed

from the aircraft were out of date, would not be used again,

would simply be disposed of as garbage, not that they were

going to be put on another aircraft and transported back to

Atlanta.

What they believed and what Mr. Taber testified to

was that these generators would be disposed of as garbage by

ValuJet, and that simply is the undisputed testimony with

regard to the mechanics' state of mind, their intent and

good faith.

Now, I would like to first address, Your Honor,

Count II, which is the false statement count relating to

Mr. Gonzalez and Aserca Airlines.

As the Court heard, all the evidence related to

Aserca Airlines, has nothing to do with ValuJet aircraft

that would be worked on at SabreTech. It has nothing to do

 

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58

 

with the oxygen generators that wound up on that flight on

May 10th. It has nothing to do with oxygen generators at

all.

It's a totally separate incident, a totally

separate piece of work being done at SabreTech prior to the

work being done, in fact, on these generators. Your Honor

will recall that the work on this aircraft was in December,

1995. The ValuJet aircraft work really began in January,

1996.

With regard to the false statement alleged in this

Count II against Mr. Gonzalez alone -- and only Mr. Gonzalez

is charged with this false statement. And it's worth

noting, and I will get back to this, that there's not even

any other alleged co-conspirators who are alleged to have

been involved with Mr. Gonzalez in this false statement.

For a brief period of time the Government alleged

that Mr. DiStefano was a co-conspirator with Mr. Gonzalez

regarding that false statement, but then they withdrew that

allegation. So it is Mr. Gonzalez by himself.

The false statement is alleged to be on Government

Exhibit 4, which is the work card relating to the deicer

system. The Government alleges that Mr. Gonzalez falsified

that document, claiming that he had done the work when, in

fact, the work wasn't done.

As Mr. Dunlap points out, the only evidence, the

 

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only testimony that that is the document which is in

question comes from Mr. DiStefano.

The Government presented another witness,

Mr. Quan, who testifies that it was a different document

which was at issue on that date. The problem with the

Government's evidence, Your Honor, starts right there, that

taking their evidence as true -- and we can't choose between

Mr. DiStefano and Mr. Quan, they are both Government

witnesses -- there's a hopeless contradiction between the

Government's only two witnesses on this false statement as

to what the document is, even before you get to whether it's

false, as to what the document is.

Mr. DiStefano testified that he saw Mr. Gonzalez

sign or present the deicer card. Mr. Quan testified that he

saw Mr. Gonzalez present -- that the document in question is

this bio-bor card, which is a different card for a different

function altogether.

Now, both Mr. Quan and Mr. DiStefano were present

with Mr. Gonzalez at the same time. They are clearly

talking about the same incident. It was a small room.

While Mr. DiStefano appears to be the more aggrieved of the

two, Mr. Quan had equal opportunity to view whatever

document Mr. Gonzalez is alleged to have signed and

presented, and there is simply no way to reconcile the two.

Mr. DiStefano's testimony, he acknowledged that in

 

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60

the Grand Jury, where he testified two years ago, he

couldn't say what the card was. He, at that point, had no

recollection that it was a deicer card. It was only until

several weeks before this trial -- it goes back to May,

several months, that he first identified the card that he

alleges Mr. Gonzalez falsified as this deicer card,

Government Exhibit No. 4, over three years after the

incident.

Mr. Quan identified here in court, and he was

consistent throughout, that it was the bio-bor card. Now,

if it was the bio-bor card, Your Honor -- the bio-bor is an

additive that is supposed to be put into the fuel to prevent

algae and fungus from growing. Mr. Quan testified that the

bio-bor card --

THE COURT: How do you spell it?

MR. MOSCOWITZ: B-i-o dash b-o-r.

THE COURT: Thank you.

MR. MOSCOWITZ: He identifies that card,

SabreTech Exhibit No. 4, that's a card signed by

Mr. Gonzalez and filled out by Mr. Gonzalez, as essentially

not applicable to work not done; that when Mr. Gonzalez, as

Mr. Quan explained, when Mr. Gonzalez executed that card,

he is saying that we are not doing this work.

That clearly is not alleged and cannot be alleged

by the Government as a false statement. Their theory of

 

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false statements is that Mr. Gonzalez was claiming work was

done when it wasn't done. The card that Mr. Quan has

Mr. Gonzalez executing is a card where he says that the

work is not done.

When the Government's own evidence as to what the

document is --

THE COURT: What did DiStefano say that he saw

Gonzalez sign, the deicer card?

MR. MOSCOWITZ: Yes. DiStefano claimed, now, now

in court, that the card that Gonzalez had signed and

executed was the deicer card.

THE COURT: Which is Government Exhibit 4?

MR. MOSCOWITZ: Yes, Your Honor.

THE COURT: Now then, Mr. Quan said, "I saw him

sign the bio-bor card." Is that card in evidence?

MR. MOSCOWITZ: Yes, that's SabreTech Exhibit No.

4 or 2. I don't recall which it is.

THE COURT: All right. You are saying that

Mr. Qaun's identification, if it is believed by the jury,

would not be a false statement because he said we didn't do

any work?

MR. MOSCOWITZ: That's right.

THE COURT: If the jury believes Mr. DiStefano,

then they would believe that Mr. Gonzalez signed off on

work on the deicer which, in fact, he said he did and he

 

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didn't do, if that's to be believed.

MR. MOSCOWITZ: Right.

THE COURT: Is that it?

MR. MOSCOWITZ: Right.

THE COURT: Now, can we look at Count II and see

what he is charged with?

MR. MOSCOWITZ: Yes, Your Honor. The Indictment

in Count II charges Mr. Gonzalez -- this is on the bottom

of Page 7, top of Page 8.

THE COURT: Skip all the other language. Get to

the false statement.

MR. MOSCOWITZ: At the top of Page 8, that he

executed and signed his mechanic's work card R 45904 for

Aserca Airlines. And that is the deicer card.

THE COURT: That's the deicer card?

MR. MOSCOWITZ: Yes.

THE COURT: So that's Count II and that charges

him with the deicer. So what the Government must prove

under Count II, if I understand your submission correctly,

is that Mr. Gonzalez signed R 45904, the deicer card. And

they have testimony, as I understand it, from Mr. DiStefano

who said, I saw him sign that card saying that he had done

the work, and then there's other proof somewhere in this

record that, in fact, he did not do that work. No?

MR. MOSCOWITZ: Let me clarify, Your Honor.

 

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Mr. DiStefano alleges that Mr. Gonzalez came back into the

booth with that card already signed and executed.

MR. DUNLAP: May I address the factual issue?

Just on this narrow point, Your Honor, Mr. DiStefano

specifically said he did not see Mr. Gonzalez sign the

card. Mr. DiStefano did not testify that the card was

unsigned before the fight.

Mr. Quan, who was also in charge of the work

booth, testified that he could not state that any of the

cards there, including the deicer card, had not been signed

prior to the fight.

THE COURT: I understand. But Government Exhibit

4, the deicer card, was and is admitted into evidence in

this record.

MR. DUNLAP: Yes, it is.

THE COURT: And it does contain, or purportedly

contains, with witnesses who have identified it, the

signature of Mr. Gonzalez. So that's in evidence and at

this point, of course, we must take the evidence in the

light most favorable to the Government.

So, if the jury believes -- well, if they look at

the card and believe that that's Mr. Gonzalez's signature

on card 45904, the deicer card, then is it not a

proposition of argument to the jury by credibility and

weight to be given to that testimony as contrasted with

 

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sufficiency of the proof to go to the jury? That's really

my question.

MR. MOSCOWITZ: Our position, Your Honor, is,

taking all of the Government's evidence, not choosing to

credit some evidence and credit others, you also have the

testimony of Mr. Quan that the document that was presented

signed by Mr. Gonzalez on that date was a different

document.

THE COURT: Yes, but that, it seems to me, is

what the jury is paid these exorbitant fees to do, $20.00 a

day, or whatever these good citizens get, and that's to

sort out the facts and the conflict in testimony. It's not

something that I can pick and choose unless the totality of

the evidence is so inherently improbable as to be not

worthy of belief at all.

So the question is whether or not DiStefano's

testimony that the card was signed -- I don't know whether

Mr. DiStefano said he could identify or did identify

Mr. Gonzalez's signature or not, but the document was

admitted into evidence so somebody would have had to

identify it, I presume.

So, with that being in evidence, that, then,

seems to me probably is a matter of whatever weight they

want to give to DiStefano. You argue that another witness

said something else, identified a different card, and the

 

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jury may reject DiStefano's testimony. But that's the

function of the jury at this point, is it not, as

contrasted with the Court?

MR. MOSCOWITZ: I think the Court's function at

this point is to say, without choosing to credit some other

evidence presented by the Government, can a jury

reasonably, on the basis of this evidence, find beyond a

reasonable doubt that this is a document which is

falsified?

This is not the same case where the Government

presents DiStefano on its case and DiStefano testifies it's

the deicer card, and in the defense case we put on Quan and

Quan says, "no, no, it was the bio-bor card." Then you

have two witnesses in conflict and it is the jury's

function at that point to decide whether to believe the

Government's witness or to believe the defense witness.

Here you've got the Government's own two

witnesses hopelessly in conflict as to what the document

is. On the state of that record, I think it is the Court's

function, under Rule 29 motion, to say this evidence is

hopelessly in conflict as presented to the jury and the

jury couldn't reasonably conclude, where you've got two

Government witnesses saying two different cards, that this

is even the card that Gonzalez presented and signed on that

date.

 

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THE COURT: Okay.

MR. MOSCOWITZ: The second thing, Your Honor,

goes to the question of evidence as to whether -- assuming

for a second that DiStefano is correct, that it was the

deicer card, the basis for the Government's argument that

there's a false entry is simply this, that DiStefano

testified that there was approximately a 90-minute period

of time between when Mr. Gonzalez was removing the card and

then came back in with the card signed, and there was no

way in that 90-minute period of time that Gonzalez could

have done the work on that aircraft.

So the inference is, if that's the only period of

time in which he could have done the work, therefore, it's

a false entry.

As Mr. Dunlap pointed out, in fact, that's not

really what DiStefano's testimony was. On

cross-examination, DiStefano acknowledged that before the

aircraft was in the hangar where it was, it would have been

outside at an earlier station, what is called the pre-dock,

during which various checks and operation checks are made.

It's on the pre-dock that tests or operation

checks like this deicer check are properly done. And,

indeed, Mr. Drechsler testified that it's preferable that

this kind of test be done during the pre-dock stage.

So, by DiStefano's own acknowledgment and also by

 

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Drechsler's testimony, the inference which the Government

seeks to draw, that it only could have been done during that

90-minute period isn't supported by the evidence on the

record; that acknowledged by DiStefano and acknowledged by

Drechsler that during the pre-dock stage, which is prior to

this day, a whole bunch of the operation tests like this

would have been done.

So, the Government's argument as to why this has

to be false isn't supported by the testimony of their own

two witnesses, that it only could have been done during this

90-minute period of time.

The Government also presented, Your Honor,

Mr. Drechsler, who is the tech rep for Aserca, to support

the allegations that there had been false documents

submitted by SabreTech on the Aserca aircraft, but

Mr. Drechsler, when he testified, testified, in fact, to the

contrary.

He acknowledged that, in fact, he did not believe

that documents had been presented falsely for work that had

not been done. To the contrary, Drechsler acknowledged that

it was his understanding and belief that all the work had

properly been done on this aircraft. So Drechsler, as well,

contradicts any inference that there was a false statement

on this card.

With regard to the jurisdiction issue -- that

 

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goes, Your Honor, to two facts; one, we believe the evidence

is hopelessly in conflict on what the document is; two,

there is no evidence at this point which supports the

inference that the statement is false by DiStefano's own

acknowledgement that this test could have been done on an

earlier date.

The third issue, Your Honor, is, of course,

jurisdiction, whether this document, this work card, is even

within the jurisdiction of the FAA.

Now, I know the Government submitted a brief,

Mr. Dunlap has submitted a very fine brief. I think the

issue is actually fairly simple and is not as large as it

may appear from the pleadings.

The issue isn't generally the FAA's jurisdiction

over aircraft coming into the United States. There may be a

whole variety of grounds upon which the FAA can exercise and

does exercise that jurisdiction. The only issue is

jurisdiction over this particular work card, this

maintenance record of maintenance work done on this Aserca

Airlines aircraft.

Now, with regard to jurisdiction over maintenance

records, we start at the same place where, I think, the

Government starts, which is Part 145 of the Code of Federal

Regulations, which relates to the records of the work

performed at domestic repair stations, and SabreTech was a

 

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repair station.

Now, the Government points out Part 145.23 does

say that each certified repair station shall allow the

administrator, the FAA, to inspect it at any time to

determine its compliance with its card and this inspection

will cover the adequacy of the repair station's records. So

it does say that generally.

Now, the question then becomes, what records are

being referred to? If you go further in Part 145 relating

to repair stations, Part 145.57 explains that the repair

station performs its maintenance work on aircraft in

accordance with the standards of Part 43 of this chapter.

So, in terms of knowing the standards under which

the repair station operates you have to look to Part 43,

which the Government does not cite to. Part 43, Your Honor,

is the portion of the CFR relating to aircraft maintenance

in the FAA, which defines -- Part 43 defines what records

regarding maintenance of aircraft are within the purview of

the FAA.

Part 43, its title is maintenance, preventive

maintenance, rebuilding and alteration. Part 43 sets out

what records -- the records of which the FAA asserts it has

jurisdiction, particularly, what maintenance records it

asserts it has jurisdiction. There may be other records

that it has jurisdiction relating to aircraft on other

 

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grounds, but this is talking about maintenance records, at

least one document of maintenance records is defined by Part

43.

Part 43.1, the applicability section, says that,

in effect, the only records -- the maintenance records over

which the FAA exercises jurisdiction are the records of an

aircraft having a U.S. airworthiness certificate, which

means a U.S. registered aircraft, or, if we are talking

about a foreign registry aircraft, that only a foreign

registered aircraft which is in common carriage of the mail

be, under the provisions of Part 121, 127, 135, which say a

foreign registered aircraft being operated by a United

States airline.

So the maintenance records which are covered by

Part 43 are just that, either a U.S. registered aircraft or

a foreign aircraft if it's being operated by a U.S.

airlines. Indeed, Your Honor, it's interesting the same

Part 43 has its own provision regarding falsification of

records regarding -- 43.12, regarding the duty to make only

correct statements in maintenance records.

Those maintenance records, again, are only those

of a U.S. registered aircraft or foreign aircraft being

operated by a U.S. carrier. Now, I really think those are

the only CFRs which I think are relevant here.

Now, the facts are in this case, as testified to

 

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by Mr. Drechsler, who was the tech rep of Aserca, that

Aserca is a Venezuelan airline and it was operating only

passenger service in Venezuela. It doesn't operate,

according to his testimony, in the United States. And that

this aircraft, 720-C, is a Venezuelan registered aircraft.

United States aircraft, Your Honor, start with a

registration number of N. The Aserca aircraft was --

MR. DUNLAP: YV.

MR. MOSCOWITZ: -- YV. So the aircraft itself is

not a U.S. certified aircraft and belongs to an airline

which is not a United States airline. Therefore, under

Part 43, the maintenance records are not within the purview

of that statute. So, as a matter of law -- we agree with

the issue of law as to what the jurisdiction is as to the

FAA of what records, and applying that law to this case,

this is not a maintenance record which comes within the

scope of that jurisdiction.

I want to skip, Your Honor, to -- that's all I

have with regard to Count II.

THE COURT: Well, it's 12:11 and we have that

jury coming at 1:00, contrary to counsels' belief that we

could handle all these arguments in 30 minutes, which the

Court didn't really think that it could. that's why I

asked you to come in at 9:00 to start.

It looks like we will have to excuse this jury

 

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and send them home. We will have the rest of the afternoon

for these arguments. We have only gotten up to Count II on

two defendants. We haven't even heard from the Government.

I see no point in trying to finish the argument in the next

45 minutes.

I suppose we could break off, if this isn't too

disruptive of argument, and let the jury listen to the

little bit of evidence we have for the Government and then

rest and then send them home. Maybe that would be a better

plan, rather than to leave the impression with them that we

wasted their day.

Do any of you have -- my suggestion would be that

we cover the balance of the Government's case, take ten

minutes, I guess, and then excuse them for the day. Then

we'll go on with these arguments. Is that agreeable?

MS. MILLER: That's fine, Your Honor. It will be

ten minutes or less. It's just putting the documents in

evidence and reading the stipulations.

THE COURT: I understand. We will recess at this

time and resume at 1:00 briefly for the conclusion of the

Government's case before the jury.

Apparently we are resuming at 1:30 with the jury.

What area were you about to get into now?

MR. MOSCOWITZ: Count I. Actually, Your Honor, I

was going to discuss the evidence with regard to

 

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Mr. Valenzuela.

THE COURT: He is not on trial here today.

MR. MOSCOWITZ: He is not, but SabreTech is

charged with his misconduct in Counts III and IV.

THE COURT: But they didn't offer any evidence,

did they, regarding what he did?

MS. MILLER: Yes, we did, Your Honor. The work

cards that he signed are in evidence and we also have the

testimony of Thomas Silvers about Mauro Valenzuela's

actions.

THE COURT: Well, this seems to me to be a

reasonable place to break. So it will be 1:30 we will

resume with the jury, then we will resume with the

arguments at whatever time they are at. We will be in

recess until 1:30.

COURTROOM DEPUTY: All rise.

[There was a luncheon recess].

AFTERNOON SESSION

2:00 P.M.

COURTROOM DEPUTY: All rise. Court is now in

session. The Honorable James Lawrence King presiding.

THE COURT: Thank you. I'm advised the rest of

the jury is all here now. Are we ready to bring them in

and announce that --

MS. MILLER: Yes, Judge. I'm going to be reading

 

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stipulations, and one that I don't have is the on yellow

paper that I think Ms. Kramerman had.

THE COURT: I thought you made copies and give

them to everyone.

COURTROOM DEPUTY: No. She said she didn't need

copies.

MS. MILLER: I have copies of the others, but I

don't have a copy of that one.

THE COURT: You went out of here and made copies,

and brought them back. Here, you can take mine.

MS. MILLER: I have copies of the others, Your

Honor.

COURTROOM DEPUTY: You have made copies of that,

too?

MS. MILLER: No.

COURTROOM DEPUTY: Oh, okay.

THE COURT: All right. Let's bring in the jury

and get started. Then we will excuse them until 9:00

tomorrow morning. Is that all right? Well, we have got

all night. I guess we will finish.

[The jury returns to the courtroom].

THE COURT: Thank you. Be seated, please.

All right, Ms. Miller.

MS. MILLER: Your Honor, at this time, the

government would move various documents and items into

 

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evidence.

The government moves into evidence exhibit 40,

SabreTech repair station inspection procedures manual.

THE COURT: Without objection, admitted into

evidence.

[Government Exhibit 40 received in evidence].

MS. MILLER: The government moves into evidence

40 A, and in connection therewith would be the stipulation.

The parties stipulate and agree that Government Exhibit 40

A is excerpted from SabreTech's operations standard

operating manual in effect as of July 27, 1995 through May

11, 1996.

THE COURT: Admitted into evidence without

objection.

Ladies and gentlemen, we have covered a lot of

these things in the morning, and the lawyers have

objections, one or two, but mostly do not. The stipulation

is, as I've told you before, agreement between the parties

to stipulate to a fact that doesn't require any further

evidence. You may accept the stipulation is a fact without

the necessity of calling a witness to prove that particular

fact. All right.

MS. MILLER: Your Honor, I would next like to

more into evidence, a group of documents. Exhibit 66,

certificate of incorporation of SabreTech, Inc. Exhibit 67

 

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A, certificate of incorporation of SabreLiner Corporation.

67B, certificate of amendment of SabreLiner Corporation.

Exhibit 68, black binder containing documents relating to

sale of DynAir stock to SabreLiner. Exhibit 69,

certificate of ownership, merger and articles of merger,

merging DynAir companies into SabreTech. Exhibit 70,

certificate of merger of DynAir Tech companies into

SabreTech, including certified copies of Exhibits 68B and

68C.

THE COURT: All right. Each of those documents

are admitted into evidence.

[Government Exhibits 66, 67A, 67B, 68, 69, 70 received in

evidence].

MS. MILLER: Your Honor, the government next

would offer into evidence three exhibits: Exhibit 82,

airman file for Danny Gonzalez, Exhibit 83, airman file for

Eugene Florence, and Exhibit 84, airman file for Mauro

Valenzuela. In connection with those exhibits, I would

like to read a stipulation.

"The parties hereby stipulate that from July 1,

1995, to and including May 11, 1996: one, Daniel

Gonzalez was a holder of an airplane and power plant

certificate; two, Eugene Florence was a holder of an

airplane and power plant certificate; and three, Mauro

Valenzuela was a holder of an airplane and power plant

 

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certificate."

THE COURT: Those documents are admitted into

evidence.

[Government Exhibits 82, 83 and 84 received in evidence].

MS. MILLER: The government offers into evidence

exhibit 95, memorandum dated May 1, 1996 from Steve Towns

of SabreTech to David Gentry of ValuJet.

THE COURT: What number is on that?

MS. MILLER: 95.

THE COURT: This document is admitted into

evidence with the following instruction: The document may

only be considered by the jury in deciding the case and the

issues presented in the case of United States v. SabreTech.

It may not be considered in considering the case and

whether or not the government has met it's burden of

proving the case beyond and to the exclusion of all

reasonable doubt as it pertains to the two individual

defendants.

In other words, in this particular letter, when

you're talking about this, you may only consider it with

reference to one defendant, that is, SabreTech, and not as

to the two individual defendants, Florence and Gonzalez.

All right. Has 29 been offered yet?

MS. MILLER: No, Your Honor. Thank you.

Government offers Exhibit 29, model of PSU.

 

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THE COURT: What we are referring to here, that

item is admitted into evidence. It is, it's a brown, it's

in a brown box here right in front of you. Perhaps

somebody could hold it up for the jury or something.

You have seen this exhibit before. You will

recall that the evidence establishes that I believe

McDonald Douglas prepared this, sent it to the government

for introductions at trial. It is not anything that is

recovered from the crash site. It is not anything that has

been put into an airplane. It is merely an example of the

type of oxygen container, masks, lanyards, tubes, et

cetera, that we have been talking about in this case.

You will note this one, I believe, has four

oxygen masks. So, do not confuse it with any actual item

in this case. It is simply an example of what the

mechanics were working on when they put these units in the

compartment that you heard described. For that purpose,

you may consider it. All right.

MS. MILLER: The government offers into evidence

exhibit 96, copy of SabreTech repair station certificate.

THE COURT: 96 admitted into evidence.

[Government Exhibit 96 received in evidence].

MS. MILLER: And finally, Your Honor, the

government wishes to read two stipulations. May I, Your

Honor?

 

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THE COURT: Yes.

MS. MILLER: "The United States and the

defendants, SabreTech, Inc., Daniel Gonzalez and Eugene

Florence hereby stipulate to the following: One, one

kilogram is equivalent to approximately 2.2 pounds.

Two, in the centigrade scale, zero degrees represents

freezing point, and 100 degrees represents boiling

point".

And, Your Honor, also stipulation:

"The United States and the defendants, SabreTech,

Inc., Daniel Gonzalez and Eugene Florence have agreed

to stipulate to the following facts. The ValuJet

aircraft and 904 VJ departed Miami International

Airport as ValuJet flight 592, and that aircraft

crashed approximately 11 minutes later, resulting in

the death of all 110 persons on board.

THE COURT: All right. Next?

MS. MILLER: Your Honor, that completes our

presentation. The government rests its case.

THE COURT: All right. Ladies and gentlemen, in

spite of our best planning and in an attempt not to have

you come down and not have something for you to do, and as

I say, in spite of our best planning, it just didn't work

out. So, this is all we can do with the jury today.

We have been in court in the case, considering

 

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80

other facts this morning that you're not involved in, legal

matters, and we have other matters to consider this

afternoon.

At this point in time, we are going to excuse you

to come back tomorrow morning. Please remember -- at 9:00

tomorrow morning. Please remember the instruction not to

watch anything on television, listen to anything on the

radio, or read anything in the newspapers if anything there

should be.

Again, I instruct you, do not have any contact

with anybody connected with this case, the agents, the

defendants, the lawyers, the witnesses or anybody. Please

don't have conversations as you go up and down the hall

regarding anything to do with the case for the simple

reason innocently someone might overhear you and create

problems.

In the jury room, please don't commence your

discussions yet about the case. The government has rested

the case, and we -- the case is moving along very well. It

is not going to take as long as we had originally told you.

Indeed, it may well be that the case will be completed by

the end of the week. I tell you this, so you can make

plans for yourself, and do a little planning in terms of

your own lives not connected with the case.

We thank you for your patience and attendance, and

 

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we will see you tomorrow morning at 9:00. We will proceed

promptly as directed. Please be here at 9:00. Thank you

very much.

[The jury leaves the courtroom].

THE COURT: All right. Thank you. We will now

resume with Mr. Moscowitz on further submission of the

motions in connection with reassertion of all motions

previously made, and motions for Rule 29, directed verdict

of acquittal. Mr. Moscowitz.

MR. MOSCOWITZ: Thank you, Your Honor. I just

want to finish up briefly on Count II, which is the de-icer

card related to Mr. Gonzalez. I've gone over the

transcript in the break, and just briefly, I want to be

very clear about this.

With regard to the issue of whether that card is

false as required to be proven, there is no evidence,

direct or circumstantial, in this record, which shows that

Mr. Gonzalez did not do that work, and that the card is

false. Now with regard to direct evidence, Mr. DiStefano

did not testify that Mr. Gonzalez did not do that work. No

one else testified that Mr. Gonzalez did not do that work.

With regard to Mr. DiStefano --

THE COURT: Yes, but let's talk about what the

evidence does show. Because we can go all day talking

about what it does not. What it does show and we all

 

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understand this, is that DiStefano said that he saw the

card go out at a certain time, no?

Somebody said, somebody testified that the card

went out with Mr. Gonzalez or someone. Mr. Gonzalez took

the card out, I guess that's what it was. Came back 90

minutes later; something about a 90 minute gap. I don't

know who said that they saw him taking it out, and he put

it under his arm, which is a customary place to carry it,

nothing wrong with that, and he handed it out to different

people. Came back 90 minutes later. The work could not

have been performed in that 90 minutes. Now then, those

are the facts, I believe, in this case.

MR. MOSCOWITZ: Your Honor, respectfully, I was

confused. I went back with the transcript. That's not

what DiStefano testified to.

THE COURT: All right. Tell me what he said.

MR. MOSCOWITZ: DiStefano testified that there

was a fight. Gonzalez left. He doesn't say that he saw

Gonzalez take that card with him. What he says is, 90

minutes later, Gonzalez comes back in with that de-icer

card filled out and signed. What he says is "--

THE COURT: Was there any testimony that it was

blank when it went out of there?

MR. MOSCOWITZ: He didn't saw it leaving. What

he said was --

 

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THE COURT: Any other witness testify that the

cards were kept in the control booth, they went out and

were given to the people, and then they were returned every

day? Isn't that the testimony?

MR. MOSCOWITZ: Yes, with regard to this card,

excuse me, with regard to this card, Ms. Heck asked him,

"had you seen that work card previously?" This is before

he brings it in. He said, "Yes, I have." "When had you

previously seen that card." Answer: "There was a period

when I went out to smoke a cigarette." Da, da, da, da. "I

went to the hallway where the restrooms are. Then Danny's

office was right on the corner in the hallway, and has a

window right there, that you can see his desk from the

hangar deck, and I saw that item sitting on the desk."

So, that's the first time he says he sees the

card. That not a card that he says, Danny Gonzalez took

out 90 minutes before. He said, the first time he sees it,

it's on Danny's desk. And then Danny brings it inside.

He does not say, he does not say that -- I mean,

what he says, he didn't do the work in that 90 minutes

because he sees the card sitting there. He doesn't say

that's the only time he could have done that. If he'd said

that, the inference could have been drawn that he's

testifying that the work was not done.

THE COURT: Okay.

 

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84

 

MR. MOSCOWITZ: I'm sorry, Your Honor. In fact,

what he does say, to Mr. Dunlap is Mr. Dunlap asked him,

page 73:

"Question: When an aircraft arrives in the

facility or SabreTech, the first thing that's done is

an induction on the plane, correct?

Answer: I don't know what you mean by an

induction.

Question: An engine run up. They run the engines

up.

Answer by DiStefano: You try to do as many op

checks as you can.

Question: That's before the plane comes in the

hangar?

Answer: Yes.

Question: The events you describe in the hangar,

this is during the argument, where you had a

confrontation disagreement with Danny, the Aserca

aircraft 705 was in the hangar at that point?

Answer: Aircraft 705?

Question: I'm sorry, I meant 720.

Answer: Aircraft 720, as I recall it, was at the

southwest corner in the hangar."

So DiStefano concedes that prior to it being in

the hangar that day, during the pre-op, that's when these op

 

UNITED STATES vs SABRETECH, ET. AL - 11-29-99

85

 

checks were done. Now, combined with that, Mr. Drechsler

testified, I think to Mr. Dunlap's questioning, on page 100:

"Question: The work card you described, 45904,

that's the de-icer card. The one you talked about is,

it still before you?

Answer: Yes.

Question: That's done as part of the induction

process normally?

Answer: It can be done at any time, but we like

it to be done early because if there is a valve to be

removed that failed the test, it gives us the time to

send it out, and get it back, so we don't have to buy

another whole valve, we can get the one repaired.

Question: Do you recall this was done on the run

up on 705?

Answer: That would not be done on a run up."

THE COURT: Let's slow it down.

MR. MOSCOWITZ: I'm sorry, Your Honor.

"Question: Do you recall it done on 705?

Answer: That would not be done on a run up.

Question: At the time before the plane came in?

Answer: It could be done on a pre-dock or first

days of the check."

Then he goes on to say that he saw Danny working

on the run up. He definitely ran the pre-dock of that

 

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airplane.

So, both DiStefano and Drechsler concede that

this type of test can be done before the plane is in the

hangar and indeed, it's preferable that it be done early.

That's the sum total of the testimony. There's nothing

DiStefano said for which the inference can be drawn that

the work wasn't done.

He also, Your Honor, DiStefano wasn't quite clear.

DiStefano doesn't claim that he saw Mr. Gonzalez sign the

card. This is the card that he claims he saw on Gonzalez's

desk. When it comes in, it's signed. It could well have

been signed and done before that day in which he saw it.

Based on that evidence, Your Honor, there's

nothing more significant about that 90 minute period during

which the work was not done, and any other 90 minute period

during which the work was not done. There's nothing that

can be inferred from the fact that the work was not done in

that 90 minutes. Your Honor, that's all I have.

THE COURT: All right.

MR. MOSCOWITZ: With regard to the question, Your

Honor, of jurisdiction. Mr. Drechsler did testify, I'll

stop with that.

Your Honor, I want to go to Mr. Valenzuela -- I'm

sorry, I want to go back. With regard to Mr. Drechsler's

testimony on the issue of jurisdiction, Drechsler

 

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testified:

"Question: Aserca is a Venezuela airline.

Answer: That is correct.

Question: Before Aserca could have its work done

by SabreTech at its facility, it sent representatives

up to do an inspection of that facility, is that

correct?

Answer. It sends its equivalent to the FAA

inspectors to look at the dates, yes.

Question: Venezuelan inspectors come up to look

at the facility?

Answer: They did.

Question: And those are Venezuelan FAA

inspectors? You said equivalent.

Answer: Equivalent.

Question: And they approved SabreTech as a

facility that worked?

Answer: They did."

So, the only testimony as evidenced in this

record, Your Honor, is that SabreTech did the work pursuant

to the approval of it as a facility by the Venezuelan FAA.

Your Honor, with regard to Mr. Valenzuela.

Valenzuela is charge with a false statement in counts three

and count four, which are the 0069 work cards related to the

generators. We, SabreTech, are charged vicariously with

 

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liability for what alleged to be his false statements on

those cards.

Your Honor, with regard to the haz-mat counts --

THE COURT: That's count three, four and what?

MR. MOSCOWITZ: Then there are the hazardous

materials counts which start at Count VIII, and then skip,

it's every even count, Count VIII through XXII. Count VIII

--

THE COURT: Any way to break this down and do it

by counts or something like that?

MR. MOSCOWITZ: Yes, Your Honor. If I may --

THE COURT: Go ahead.

MR. MOSCOWITZ: The government has charged

Valenzuela in counts 3 and 4 with a false statement, and

has charged SabreTech vicariously with liability for

Valenzuela's false statements.

THE COURT: What is the false statement?

MR. MOSCOWITZ: The alleged false statement is

that he filled out work card 0069 which is the work card

relating to the removal of oxygen generators from ValuJet

aircraft 803 V. V.

THE COURT: V, like in victor and V, like in

victor?

MR. MOSCOWITZ: Yes, Your Honor. Knowing in

truth and in fact, the work had not been performed as

 

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described therein, and that shipping caps had not been

installed on unexpended oxygen generators. That's count 3.

Count 4 makes the same allegation with regard to

what is called a non-routine work card for that same order.

A non-routine work card, Your Honor, may recall is attached

to the routine work card and it incorporates it by

reference. The government alleges each card as a separate

false statement but with regard to the identical false

statement.

THE COURT: All right. So, now your motion is on

behalf of SabreTech with reference to the allegations of

false statement made in counts 3 and 4, where they are

charged with the responsibility, where SabreTech is charged

with -- they are charged with writing a document knowing it

to be false and fictitious, is that correct? I'm reading

it from the --

MR. MOSCOWITZ: Yes, Your Honor. It's the

document allegedly filled out by Valenzuela. We are

charged with liability for that false statement as his

employer. In other words, we are vicariously liable for

his alleged false statement on that card.

THE COURT: All right, now then. And you say,

it's the same false statement, the identical false

statement, it was just on two cards. One was card 0069,

and one was the non-routine card?

 

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MR. MOSCOWITZ: Yes, Your Honor.

THE COURT: Your suggestion of entitlement to a

verdict on behalf of SabreTech is what?

MR. MOSCOWITZ: There's a total absence of

evidence with regard to Mr. Valenzuela making any

statements on either card in that faith knowing them to be

false. Total lack of evidence. The only evidence as

Ms. Heck, Ms. Miller mentioned that the government

presented with regard to Valenzuela, is the testimony of

Tommy Silvers.

You may recall, Your Honor, he is the witness who

testified through an interpreter. The government, in

effect, spent most of his testimony impeaching him. They

put him up as a witness just to knock him down.

His testimony, at the end of the day, that came

out was as far as he knew, Valenzuela had quite properly

checked the work on that card that he certified had been

done and had properly determined that it had been done.

That is the only testimony regarding what Valenzuela did or

did not do. The evidence from Silvers is that Valenzuela

signed that card, correctly certifying the work had been

done. Now with regard --

THE COURT: Silvers said that Valenzuela

performed the work?

MR. MOSCOWITZ: He testified, Your Honor, that

 

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Valenzuela did not personally do the work, but that

Valenzuela determined personally that the work had been

done. That was the testimony, that was grand jury

testimony that was read in while he testified.

THE COURT: Is that part of this record now?

MR. MOSCOWITZ: Yes, Your Honor, before the jury.

THE COURT: So you are saying that Mr. Silvers,

the mechanic, at what page of the record? That will help.

MR. MOSCOWITZ: On page 50 of the record on

November 19. May I read it to the Court?

THE COURT: On the record at page 50 of November

19. Mr. Silvers said, Valenzuela didn't do the work but

what, I know or I saw him. What did he say?

MR. MOSCOWITZ: The question was:

Question: Had Mr. Valenzuela inspected the work?

Answer: Yes, that's what we spent four hours

checking to make sure everything was right.

Question: So Mr. Valenzuela actually looked at

the work that was done?

Answer: Yes.

Question: That's what respect to what?

Answer: The installation of the CO2.

Question: When you say, the installation, you

mean the installation of the two generators, was that

the whole assembly in the aircraft? Or putting the

 

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generators into the assembly?

Answer: Putting generators into the assembly.

Questions: Was that your testimony before the

grand jury?

Answer: Yes.

THE COURT: Who was questioning?

MR. MOSCOWITZ: This was Mr. Brigham.

THE COURT: The government was questioning?

MR. MOSCOWITZ: This was Mr. --

THE COURT: Cross examination.

MR. MOSCOWITZ: Mr. Raskin read his grand jury

testimony.

THE COURT: I just wanted to know who was

questioning. It was cross examination, and Mr. Silvers

said, in effect, that the work was performed and all

Valenzuela did was certify that it had been done.

MR. MOSCOWITZ: He reviewed it on his own

knowledge. He reviewed it -- of his own personal

knowledge, saw that it was properly done. Your Honor may

recall, first Mr. Brigham questioned, impeached him with

grand jury testimony saying that Valenzuela didn't do the

work.

Then Mr. Raskin asked that the complete testimony

be read. At that point, the Court had Mr. Raskin read this

part of the testimony, which had been left out by

 

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Mr. Brigham that showed that Valenzuela had personally

determined the work was done before he signed off on it.

With regard to the question, Your Honor, of

shipping caps. The only testimony by Mr. Silvers is that

he, Silvers, did not see shipping caps.

Question: By Mr. Brigham on page 51. Now, at

that time, what, if anything, were you doing with

respect to shipping caps?

Answer: We were not in charge of that.

That's the sole testimony with regard to

Mr. Silvers' knowledge of shipping caps. He said nothing

about whether Mr. Valenzuela had caps, did not have caps,

put caps on the generators he work on or not. There is a

total lack of evidence with regard to that matter. So

that's --

The question was asked again with regard to

Mr. Silvers. Mr. Brigham asked him on page 63.

Question: Did you see any safety caps on these

generators?

Answer: Mr. Silvers answered no.

Mr. Brigham never asked him was Mr. Valenzuela

present at that time? Does he know whether Mr. Valenzuela

saw safety caps? There's just no testimony at all with

regard to Mr. Valenzuela's knowledge or involvement with

safety caps. The sum total of his testimony is, that with

 

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regard to the part of the work card relating to whether the

work was done, that Valenzuela did what he was suppose to

do, which was to check to make sure it had been done.

Your Honor, the work card is in evidence. But I

believe Silvers did not even testify that he saw Valenzuela

sign the card, sign those cards. I mean, an inference can

be drawn, but it's a very attenuated and weak inference that

Silvers testifies when they're walking away that Mauro

Valenzuela says to him, "now it's taken care of." But

that's all. But there's no, even in direct testimony, that

he saw him sign.

THE COURT: Thank you.

MR. MOSCOWITZ: I would like to turn to Count I,

which is a conspiracy count.

THE COURT: That's 3. And 4, you say, is alleged

to be the same alleged false statement?

MR. MOSCOWITZ: Yes, Your Honor.

THE COURT: Do you have any position with whether

or not two counts can be specified for one false statement?

MR. MOSCOWITZ: Yes, Your Honor. We had moved

before trial to require the government to elect on

multiplicity grounds, that they have alleged the identical

false statement in both counts, that count 4, -- that, in

fact, as the evidence shows, both of these documents were

attached one to the other.

 

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Count 4, the non-routine work card, in fact,

doesn't even make the false statement. Again, it simply

incorporates by reference the routine work card in Count 3.

So our argument was that that is multiplicitous, if there

is to be a charge that should go to the jury. It would be

that the government should choose one or the other. We

renew that motion. I believe Mr. Florence's counsel would

renew that same motion with regard to the false statements

counts made to Mr. Florence.

THE COURT: All right. Do you want to move onto

the next one?

MR. MOSCOWITZ: Yes, Your Honor. With regards to

count -- there's one more point that I wish to make with

regard to these two false statement counts, and

Ms. Moscowitz, I think, will expand upon this. These false

statements are alleged to be -- of these work cards -- are

alleged to be within the jurisdiction of the department of

transportation and the FAA. This is not the same

jurisdictional argument we made previously with regard to

Aserca.

It is alleged that these work cards are within

the jurisdiction of the department of transportation and

the FAA. With regard to these ValuJet work cards, we are

not arguing that they are not within the jurisdiction of

the FAA. These are the ValuJet work cards. The evidence

 

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does not show according to the allegations of the

indictment, that they are within the jurisdiction of the

department of transportation separately from the FAA.

In the introductory allegations of the conspiracy

on page 2, paragraph 3 defines the responsibilities of the

department of transportation as "including oversight and

regulation, including prescribing and enforcing standards

for the documentation and records of transportation of

hazardous materials."

Paragraph 4, describes the FAA's jurisdiction as

relating to oversight over documents concerning maintenance,

repair and maintenance of commercial aircraft.

Evidence shows that these routine work cards do

come within the scope of the FAA's jurisdiction, since they

are records of maintenance and repair of aircraft. But

there's no indication, at all, that these maintenance cards

come within the department of transportation's jurisdiction

insofar as it relates to documentation and records of

transport of hazardous materials. They're simply

maintenance cards. So insofar as these counts allege that

there is a complete failure of proof with regards to that

allegation.

THE COURT: All right.

MR. MOSCOWITZ: Now, with regard to Count I, Your

Honor, may I continue?

 

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THE COURT: Yes, thank you. And I appreciate

your pausing. But yes, I'm all set.

MR. MOSCOWITZ: Count I is a conspiracy count

which alleges that SabreTech, Mr. Gonzalez, Mr. Florence

and Mr. Valenzuela conspired to make false statements in

violation of 1,001. Now, so the indictment names four

conspirators. I think I want to put on the record, Your

Honor, that the government, pursuant to an order of this

Court requiring to name unindicted co-conspirators, named

three other SabreTech employees as unindicted

co-conspirators. So the entire conspiracy involves six

SabreTech employees.

Those other individuals, Your Honor, may have

heard the names are: David Wiles, W-I-L-E-S, according to

the evidence, he was a supervisor. He was a lead mechanic.

MS. MOSCOWITZ: Supervisor.

MR. MOSCOWITZ: Luke, L-U-K-E, Kasamire

(phonetic), who was a lead mechanic. Ray Serano, who was a

lead mechanic.

THE COURT: Those are the three named defendants

here?

MR. MOSCOWITZ: Yes, Your Honor.

Your Honor, Count I is defective, and we made this

motion pre-trial, because it alleges really two separate

conspiracies. There is a multiple conspiracy issue problem

 

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with Count I. The two parts to Count I, Your Honor, are

one, the allegations relating to Mr. Gonzalez and the Aserca

aircraft. The other part of Count I, the conspiracy, are

the allegations relating to the false statements relating to

the ValuJet aircraft.

Now, assuming for a moment that those allegations

are true, they, nonetheless, are two separate unrelated --

they allege two separate, unrelated conspiracies. The

Aserca Airlines work and any false statements made in

connection with that work, have nothing to do with the

ValuJet aircraft and any false statements made during the

course of the maintenance on the ValuJet aircraft.

There was no evidence that Mr. Florence,

Mr. Valenzuela, or the unindicted co-conspirators had any

connection with work done on the Aserca aircraft or any

false statements allegedly made on that aircraft. The only

alleged false statement which was made in relation to

Aserca, was made allegedly by Mr. Gonzalez.

Now originally, the government named Chris

DiStefano as an unindicted conspirator of Mr. Gonzalez. But

they then unindicted him, so he's no longer an indicted

co-conspirator. Had that remained, Mr. Gonzalez would have

been alleged to have his own co-conspirator. But as it is,

he is alleged by himself to have made the false statements

without anyone else's involvement.

 

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So these two schemes of false statements are

unrelated. There is no showing as well as, Your Honor, of

any evidence from which the inference can be drawn that

Mr. Gonzalez had any role in the alleged ValuJet false

statement conspiracy.

The only evidence relating to Mr. Gonzalez

relating to ValuJet is as follows: one, there is a document

in evidence where in early -- signed by Mr. Gonzalez, in

early May, 1996, putting SabreTech facility on a 7 day

workweek. Now, with regard to that document, Your Honor,

Ms. Miller conceded in opening that putting your facility on

a 7 day workweek is not a crime.

THE COURT: That's not evidence. I think we have

to go on what is in the record.

MR. MOSCOWITZ: Okay, let me put it this way,

based on the record, there's no inference of criminality

can be drawn from that document. Indeed, Your Honor,

Mr. Ramos, who testified as a government witness, who was

one of the ValuJet tech reps, testified that he was aware

that it was common in the industry for there to be 7 day

workweeks, if required.

I believe, he testified that Mr. Simons, I'm

quoting from Mr. Ramos' testimony on page 177 on November

22,

Question: Mr. Simons also works full days, did he

 

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not, sir? 7 to 5 or longer?

Answer: Yes.

Question: Did you also observe that Mr. Simons,

who is the ValuJet employee who was frequently at

SabreTech, 7 days a week during this period of time?

Answer: Yes, ma'am.

Question: In your experience Mr. Ramos in the

aviation industry degree, that's not unusual, is it?

Answer: No, ma'am, not at all.

So no inference, there's nothing, no inference of

criminality can be drawn for Mr. Gonzalez of having put that

in effect. The other evidence --

THE COURT: Now, many of the items about which

there was testimony are totally innocent, in and of

themselves and standing alone. Just as in your typical

conspiracy driving a car from point A to point B, or going

to get gas for a car that is later used to transport drugs.

It may be totally innocent.

Does it, if it's in a conspiracy allegation, does

it become thereby, a part of bringing about the successful

conclusion of conspiracy. Now, here, as I understand Count

I, the conspiracy alleged is to make money by hurrying up

these repairs, renovations, G force jobs or G team jobs,

whatever they were, and that that's a conspiracy.

You are arguing, going back to your original

 

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premises, that Mr. Gonzalez was not involved or is not

alleged to have been involved in acting on both of what you

contend are unrelated conspiracy, that is, the Aserca job,

and the ValuJet job.

You say that Gonzalez acted alone, if he acted at

all, he acted alone on the Aserca job. The only contact he

had with the ValuJet job was issuing this memo, 7 days a

week. You led me into the Palmettoes on a pig trail, and

there's nothing wrong with that.

The question is whether or not that could be

construed as being somehow contributing to the successful

operation of the conspiracy, that has been alleged and the

issues whether or not that conspiracy has been established

at this point to withstand Rule 29.

What we have then is Mr. Gonzalez at least doing

some acts with reference to both Aserca and ValuJet. Now,

whether those acts constitute his involvement personally in

a conspiracy is a different matter. That's a different

issue.

Right now, we are dealing with whether or not

there is sufficient evidence to deal with conspiracy. And

of course, we all know that the conspirator cannot act

alone nor can he act in connection with the government.

When you get to Gonzalez acting only on Aserca, unless the

government can show these two are somewhat related as being

 

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part of one ongoing conspiracy, then he has act alone and

has not conspired with anyone, and is in pretty good shape.

MR. MOSCOWITZ: That really is not the heart of

our position, Your Honor. He is only alleged to acted by

himself on Aserca, and there's no showing of any connection

in terms of the work done or even temporarily between these

two separate jobs. Aserca was completed before ValuJet

began. There's no allegation that the work, there's no

evidence that the work on the Aserca job was hurried along

and not completed. If anything, -- I mean.

THE COURT: The other way around. I think Aserca

was delayed and late, and there's evidence of that in this

record which, if believed by the jury, could convince the

jury of that fact, at least.

MR. MOSCOWITZ: But nonetheless, the evidence --

even assuming that Gonzalez engaged in criminal activity on

Aserca, that is a separate series of criminal acts from

those alleged to be part of the ValuJet false statement

conspiracy. That's what we think is the essential defect

of that count is.

Aside from the question, Your Honor, I mean, Your

Honor is, of course, absolutely right. Even an innocent

letter like that putting the facility on a 7 day workweek,

can further the purpose of conspiracy, but that kind of

basic question of whether or not there's any evidence

 

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showing that Gonzalez has joined that conspiracy by a

willful act at all.

The only allegations of willful misconduct

against Gonzalez, it goes back to the allege false

statement on the Aserca de-icer card. If that fails, then

Gonzalez is not part of that conspiracy at all.

Your Honor, just in terms of tracking the

elements, there's no indication of any agreement expressed

or tacit between Gonzalez and anyone else between any of

these other named unindicted, indicted conspirators to

engage in this criminal conspiracy. It's just not there.

THE COURT: Now, this motion, of course, and

maybe out of necessity you are overlapping, but this motion

is on behalf of SabreTech. Now, SabreTech, in order to be

entitled to Rule 29 relief would have to show that none of

the six conspired, none of the six employees of SabreTech

conspired to be involved in a conspiracy to make materially

false statements concerning the matters within the

jurisdiction, concerning these work cards and that sort of

the thing.

So, it may well be that when we consider the --

well, I mean, certainly your argument would be relevant to

joining Mr. Dunlap's argument on behalf of Mr. Gonzalez on

this issue, but what would entitle SabreTech to possible

relief under Count I?

 

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MR. MOSCOWITZ: That Count I alleges two

conspiracies. In fact, the evidence shows that there was

two conspiracies rather than the one conspiracy that is

alleged. The remedy for -- where a conspiracy, in fact,

alleges both conspiracies, is dismissal under Rule 29.

THE COURT: All right.

MR. MOSCOWITZ: That is a fatal variance between

the proof and the allegations of the indictment.

Your Honor, with regard to the government's

allegations of motive, which is that there was this

financial motive to put the financial interest of SabreTech

ahead of the safety concerns in the conduct of the

activities, I don't think there's evidence in the record to

support that allegation of an improper profit motive, which

caused them to cross over the line in terms of the

responsibilities with regard to safety.

The only evidence regarding profit motive at all,

is this letter that was introduced today by Steve Towns to

ValuJet, which, and again, Mr. Towns is not alleged to be a

co-conspirator. He is the President of SabreTech. The

content of that letter, if anything, goes contrary to the

claim that SabreTech was engaging in cost cutting or cutting

corners.

Mr. Towns, in fact, says that it's clear that

because ValuJet is a valid customer, SabreTech is willing to

 

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pay up to $20,000 a day for the cost that ValuJet incurs in

terms of having to get substitute aircraft. That, on its

face, is an entirely proper and appropriate business

decision to be made.

That hardly supports an allegations of profit over

safety. All that shows is business dealing. There's just

no evidence beyond that. There's no evidence that any

executive of SabreTech ever said to any of these defendants

or any of these conspirators, just do what you got to do to

get this out. To the contrary. The evidence is, every

SabreTech mechanic who testified was asked by Mr. Raskin,

did anybody ever ask you to falsify documents? Did anybody

ever ask you to do anything improper? And each of them with

the exception of Mr. DiStefano, said no.

Your Honor, I want to turn next to the haz-mat

counts, the hazardous material counts which are, I think,

very confusing as they are laid out. These are Counts VII

through XXIII.

Just allow me, Your Honor, to outline how I want

to approach this because it's difficult to address all of

these at the same time. Counts VII through XXII allege,

skipping each count, violations of two statutes, two

hazardous materials statutes. So for example, Count VII

alleges a violation first of Section 5124 of Title 29, with

regard to violation of particular hazardous regulations.

 

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Then the next count, Count VIII alleges a

violation of the same regulations, but under a different

statute, Section 46312 of Title 49. Then, they proceed like

that for the next ten counts. Count IX is again a

regulatory violation of Counts III and XXIIII. Count X is

the same regulatory violation under Section 46312.

So that's the pattern. Each pair of violation

5124 and 46312 alleges a violation of the same regulation.

That's how it proceeds.

With regard to the alleged violations under the

first named statute, Section 5124, only SabreTech is alleged

to have committed the violation under 5124. And 5124 --

THE COURT: This is Count VII, IX, XI and so on?

MR. MOSCOWITZ: Yes.

THE COURT: SabreTech is the only one charged in

those counts?

MR. MOSCOWITZ: That's right, Your Honor.

5124, we have the statute in front of us, makes it

a penalty for a person to willfully violate any regulations

prescribed under this chapter. Violations of 5124 are

specific intent crimes requiring showing of a willful

violation of regulations.

Then with regard to the violations of the other

Statute, 46312, that statute alleges both a willful

violation and a reckless violation. This is very confusing.

 

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It took us a while to catch on.

The willful violation is a person violates 46312,

if the person violates a regulation related to the

transportation of hazardous materials. If that person

violating that regulation willfully delivers or causes to be

delivered property containing hazardous material to an air

carrier, the operator of still aircraft or interest of

transportation. That's the willful violation. In each of

those 46312 counts, only SabreTech is charged with a willful

violation.

Now the second -- the lesser included is violation

charges that you violate that statute if you violate a

regulation in recklessly pausing the transportation in air

commerce of that property. Under the reckless violation

which is also alleged in each count, there Mr. Florence and

Mr. Valenzuela are charged together with SabreTech. If you

look at each of these even numbered counts under 46312, they

first allege a willful violation of the statute by

SabreTech, and then they allege the violation of the same

regulations by SabreTech, Florence and Valenzuela,

recklessly.

Now, with regard to, Your Honor, these

allegations. I want to say a few general points before I

get to the specifics of these counts, our understanding of

the law regarding corporate criminal liability and certainly

 

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the law in this Court and in the Circuit, that a corporation

is vicariously liable for the crimes committed by its

employees within the scope of their employment and in

furtherance of the interest of that corporation.

So, if any employee willfully violated the

statute in further in scope and in furtherance, then

SabreTech is liable. If any employee recklessly violated

the statutes, then SabreTech is liable for that reckless

violation. Corporate liability is entirely derivative and

vicarious. If no employee had the requisite intent and

committed the crime, then the corporation cannot be held

liability for that violation.

The government submitted a motion, a pleading this

morning suggesting that even if no individual employee can

be found to have committed the offense, committed willfully

and recklessly that the law permits aggregation of knowledge

and I think aggregation of willfulness of different

employees to make the corporation liable, even if no one

employee is liable. That is not the law in the Circuit. I

don't believe it is good law. The government relies on one

case, the United States v. Bank of New England which is a

Third Circuit case decided in 1988. It has not been

followed any of the Circuit, never been followed in this

Circuit Court.

That case really takes a good thing too far. It

 

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really extends the notion of the fiction of the corporate

defendant beyond what this Circuit has ever permitted in any

context. The closest, Your Honor, law on this issue which I

think we should go to this Circuit Court, which the

government has not cited is, and this is really by analogy

is, the law on a corporation being held liable for

conspiracy.

The law in this Circuit, Your Honor, is a

corporation is only liable for a conspiracy if two or more

of its employees, two or more natural persons engage in the

conspiracy. But a corporation and individual employee

cannot be held liable if the individual is not allege to be

in the conspiracy with another natural person. In other

words, this Circuit has held in case of United States v.

Stephens, 909 F.2nd 431. Even in a corporation could be a

part of a conspiracy, two or more natural persons are

required to be involved. That's, again, not precisely this

point. But the reason behind that, is a recognition that a

corporation is again a fiction, it's only composed of

individuals, and for there to be a true conspiracy, the kind

that the law is intended to address, you've got to have two

or more people actually conspiring.

I think that that is the law in this Circuit under

conspiracy and I think the same reasoning holds with this

notion of collective corporate knowledge or collected

 

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corporate willfulness. If no individual has the knowledge

requisite for that offense, and no individual has committed

willfully, then the crime hasn't been committed. The crime

hasn't been committed.

The reasoning that the Bank of New England relies

upon, the Bank of New England case, which again, I think it

goes too far, but even the Bank of New England, is that you

can attribute collective knowledge to a corporation where

there's some showing that the corporation has engaged in

willful and deliberate ignorance.

That it has so structured itself intentionally to

avoid having the requisite knowledge, so that it structures

itself so that no one person can be in a position where it

is said that that person is chargeable with knowing and

intending to do criminal acts. But that's the only

circumstance that even in the Bank of New England that this

notion of collective knowledge or willfulness is

permissible.

With regard, Your Honor, to the willfulness

charges, what's required to be shown -- what is required to

be shown specifically, Your Honor, again, these are willful

specific intent crimes. The evidence has to show that

individuals from the corporation, specifically knew of these

haz-mat regulations, and knowing these regulations,

willfully violated them.

 

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But there has to be a showing that the regulations

were known, and there has to be a showing that some

individual or more, one or more individuals, willfully

engaged in violation of those regulations. That is simply

-- I should say, Your Honor, that position, there's no law

on this issue under the statute.

This environmental statute is different than the

other environmental statutes we normally encounter, which

are used more commonly. Under most environmental statutes

are general intent crimes, where you don't have to show

specifically that the defendant knew he was violating

regulations. He simply had to show he knew what he was

doing. With regard to --

THE COURT: Now, now -- excuse me. You have

suggested that on these counts, the government has to prove

that two or more natural persons, individuals, knew of the

hazardous material regulations.

MR. MOSCOWITZ: At least one, Your Honor. These

are not conspiracy counts. At least one or more person

knew. I apologize.

THE COURT: So that two or more natural persons

dealt with Count I?

MR. MOSCOWITZ: Yes, Your Honor.

THE COURT: So now you are over into all of these

counts VII to XXIII.

 

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MR. MOSCOWITZ: Yes, Your Honor.

THE COURT: Well, didn't you argue that under the

vicarious liability theory that a corporation could only

act through the employees and that the government must

prove that two or more employees were liable in order to

find the corporation liable?

MR. MOSCOWITZ: I'm sorry, Your Honor. At least,

as I understand it, they would have to show that at least

one corporate employee had the requisite knowledge and

intent and committed this offense. I apologize.

THE COURT: All right. No, no. Was that the 909

F.2nd 431 case you cited?

MR. MOSCOWITZ: That case, Your Honor, I wasn't

clear. That case was a case this Circuit which related to

conspiracy, that a corporation, that an individual cannot

be held guilty of conspiracy with a corporation. He can

only be held guilty of conspiring with another live person.

A corporation, under that case of the 11th Circuit, can

only be liable for the conspiracy vicariously of, at least

two or more persons.

THE COURT: So there must be two or more persons,

under your submission, there must be two or more persons

who conspired together to violate the law, both of whom

were employed by the corporation in order for the

corporation to have any vicarious liability.

 

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MR. MOSCOWITZ: Under the conspiracy counts,

that's right. Under the hazardous materials counts which

are substantive counts, the government's position is we can

aggregate. Our position is the same. The corporation is

only vicariously liable if some employee committed the

offense.

If no one employee committed this offense,

knowingly and willfully committed the acts, then the

corporation can't be held liable. The government wants to

say that they don't have to show that any one employee

acted with willful purpose and intend. They can aggregate

knowledge, sent from one employee, another from another

employee and put it together and add it up to willfulness

on behalf of the corporation. And our position is that's

not the law in this Circuit, and it's bad law.

THE COURT: How many people do you contend, I

mean natural persons do you contend under your theory have

to be involved in the willful conduct for a criminal act to

occur?

MR. MOSCOWITZ: One full person, Your Honor.

There has to be only one person, at least one employee has

to commit the offense, all the elements of the offense. If

they can show -- there has to be at least one employee who

has committed this crime as alleged defined in the

indictment. What the government is alleging is that you

 

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can take knowledge and actions of innocent persons as well.

THE COURT: I understand their theory. I'm

trying now to focus on yours. You are saying that there

must be at least one individual that knew of the hazardous

material regulations, and at least one person who willfully

intended to violate the --

MR. MOSCOWITZ: It has to be the same person.

THE COURT: Same person?

MR. MOSCOWITZ: Yes, Your Honor. The evidence

has to prove the willful violation of these regulations.

They have to show that some employee first knew the haz-mat

table, knew these haz-mat regulations, and willfully

violated those regulations in the course of his employment.

THE COURT: Now, let's talk about the facts in

this record. Where do you suggest the dirt of information

or a dirt of factual basis for the willful intent to

violate. In other words, the charge, and we are getting

away from 1,001, aren't we?

MR. MOSCOWITZ: Yes, Your Honor.

THE COURT: So the charge is that somebody knew

that transporting in air commerce, materials that were in

violation of the Hazardous Materials Act was a crime or was

wrong or was violative, and that the person did it any way,

knowingly and willfully.

MR. MOSCOWITZ: That showing here would have to

 

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be, Your Honor, that at least one employee, at least one

employee, first of all, was aware that these oxygen

generators come under the hazardous material table as

hazardous material, hazardous waste. We are not arguing --

we concede that they are on the table as hazardous material

and hazardous waste. That's not an issue. But there's no

evidence that any SabreTech employee knew that the

generators were on that table as a hazardous material and

hazardous waste. There has to be that showing.

THE COURT: I presume that and I'm certainly not

trying to make the government's argument for them, but just

trying to so, we won't have to go back and forth like a

ping pong ball, go back and forth with new matters after

you sit down, but I presume that one of the things they may

argue is that the mechanics who worked on these oxygen

generators utilized the boxes that they unpacked the new

shipped generators from Scott Aircraft, and saw them

labeled or could have seen them, if they could or did not

close their eyes, that they were labeled hazardous material

and equipped with safety caps.

I presume that may be an argument they make.

What I'm trying to do is focus on the record we have before

us. I understand your theory, but applying it to this

record and you are suggesting there is no evidence. So

objectively, and being practical about it we might look at

 

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what is in the record and see whether or not that fulfills

that gap that you say is not there.

One would be the boxes. I suppose another would

be, the knowledge by the mechanics that when these things

exploded either accidently or sometimes on purpose, just to

see what they would do. They got hot. They heated up

immensely. Is that sufficient? You ask a silly question

and you get a silly answer. But I suppose you will contend

that was not sufficient to demonstrate that that would have

been reasonable notice by a reasonable airline mechanic

that these things were hazardous and if they were, of

course, he didn't know that specifically it violated

whatever it was, Section 59.02 or whatever but that -- what

is your position?

MR. MOSCOWITZ: Specifically on the evidence,

first of all, the evidence with regard to the generators

themselves, the old one and the new ones which the

mechanics saw, there is no label or warning on the

generators that they are hazardous materials.

THE COURT: I agree with that.

MR. MOSCOWITZ: All the generators ever say is

these get hot and they can burn, but not that they are

hazardous material.

With regard to the box that these generators

arrive in, the only testimony that you heard from any

 

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mechanic with regard to the box was from John Taber. That

is, who said the box doesn't say on it "hazardous material."

The box simply has what he could see was part of this yellow

triangle or form that was partially obscured. But that's

all. There was no writing saying this is a hazardous

material. Your Honor, may recall that each mechanic who

testified was asked whether he had received hazardous

materials training, and each mechanic testified no, he had

not. So there is no showing -- we are talking about the

individuals -- there is no showing that any of these

mechanics had reason to know that these generators were a

listed hazardous material.

Now, the issue, did they know or were they aware

they were dangerous or unsafe, is a separate question. They

certainly testified that they were aware that there was some

danger involved with these. But that's not sufficient for

them to know that they are also a listed hazardous material

on the hazardous material table.

Now even with regard to the issue of danger, Your

Honor. The testimony that you heard from Mr. Taber is, he

understood there was some danger, but not that they were

even that dangerous, and he testified that based on what you

saw, he didn't think they could cause a fire.

You may recall, Your Honor, he testified that he

had the generators in a box with a plastic shield over them,

 

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and he came in the next day or whenever it was, these

generators were all together, and a number of them had the

shields melted, but there was no big fire. All that had

happened was some plastic on them had melted.

So certainly they knew they got hot. Certainly,

they knew there was some danger, but not that they knew they

could cause a fire and not that they had any reason to know

they were hazardous material. One doesn't infer, it's not a

question of inference, Your Honor, that something is on a

hazardous material table. It's a question of actually

knowing, and knowing about that table and knowing what's on

it.

THE COURT: I don't think that you're suggesting

that the government has to prove that an individual knew

the specific chemical propensity, and whether or not it was

on a government regulation table. Are you saying that?

MR. MOSCOWITZ: Yes, Your Honor. I think the

case law supports that.

THE COURT: That these mechanics had to know that

the chemical context of these generators was labeled

hazardous material by whomsoever it was, the agency in

charge of that?

MR. MOSCOWITZ: Yes, Your Honor, I believe that's

the law.

THE COURT: And you are suggesting that none of

 

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them knew that.

MR. MOSCOWITZ: There's no evidence that any of

them knew that. There's absolutely no evidence on the

record that they knew that. Let me cite a case that the

government cites, United States v. Moskowitz, which is a

second Circuit case. Moskowitz spelled with a "K," in

which the defendant was convicted of transporting hazardous

material on an aircraft, and part of the evidence that he

did it knowingly, was, in fact, that there were signs

posted in the airport as to what were hazardous materials.

So seeing those signs, he was charged with the knowledge of

that.

With regard to other statutes, Your Honor. I know

Your Honor is well familiar with the Trading With the Enemy

Act or with the Arms Export Control Act. The emissions

list, this maintains as to what constitute emission as to

which a license or permit has to be received from the

department of commerce so that you can legally export a

certain arm.

The law is, in that regard, Your Honor, that the

violation of the Arms Export Control Act is a specific

intent crime as this is. The evidence has to show that the

defendant is aware that the arms or gun that he is charged

with exporting is, in fact, on emissions control list. If

the evidence doesn't show that, he hasn't commit the

 

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offense. That is case law in this Circuit.

Likewise the Training with the Enemy Act relating

to Cuba, the evidence has to show that the defendant is

specifically aware of those regulations which prohibit

engaging in certain commerce with Cuba, not enough to know

that it's generally illegal, not enough to know when not to

do that, but the evidence has to show specific willfulness

that there was a specific awareness of the regulations.

Now, here, Your Honor, the first step is knowledge

that these things are hazardous materials. There was no

signs that these were hazardous materials.

This next issue of knowledge is that the mechanics

were aware of the regulations which they are alleged to have

willfully violated. Again, the case law I just cited

requires that where, what is charged as a willful violation

of regulations, promulgated under some statute, there has to

be showing that the defendant knew of those specific

regulations. There is no presumption of knowledge of the

law in this type of case.

I know, Your Honor is aware, and this came out

earlier, there are general intent crimes, other

environmental crimes where you can say, you presume that

people know what the law is. Where there is a willful

offense, there is no such presumption.

Now, here, Your Honor, the regulations, the

 

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hazardous regulations that the defendants are charged with

violating are quite specific. They are quite complicated.

They go to how these generators are to be labeled, packed,

shipped, all of those regulations. There is not a shred of

evidence in this record that these mechanics, Mr. Florence,

Mr. Valenzuela or anyone else, based on the evidence, had

any knowledge of those regulations. Unless there is showing

of knowledge of those regulations, they can't possibly be

charged with willful violation of them.

Now, the evidence is, Your Honor, in support of

that, that first of all, it is the case that none of these

mechanics received haz-mat training. So no inference can be

drawn that they knew of these regulations. The evidence is

that these mechanics, Your Honor, were not involved in

shipping. Shipping anything, let alone hazardous materials,

was not part of their duties or what they were expected to

do. Robert Rodriguez testified. He was one of the

mechanics who testified, that they simply didn't engage in

shipping. That was not part of their work.

With regard to the shipment of these generators,

Your Honor, there is no evidence at all that these mechanics

knew or had any reason to know, that these generators, in

fact, were going to be transported which is a critical

element of the defense where the company is accused of

willfully transporting them, and individuals are accused of

 

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recklessly causing them. The only evidence in the record as

to what they believed was going to happen to these

generators comes from Mr. Rodriguez, and comes from

Mr. Taber.

Mr. Rodriguez testified, forgive my language, that

he was told by his supervisor that these were going to be

shit-canned. They were garbage. They would be thrown away.

Mr. Taber testified that he likewise understood

that these generators were simply going to be disposed of.

That he did not believe or expect and no one said anything

to him to lead him to believe or expect, that they were

going to be transported.

The COURT: How does this effect the liability or

responsibility of SabreTech? Certainly SabreTech employees

participated in the actual transportation, not perhaps

Mr. Gonzalez or Mr. Florence, but certainly the shipping

clerks, the driver, the other people. Those were all

people that took -- not the driver. The other people took

them over and dropped them at the entrance way and one of

the employees of SabreTech walked them to the ValuJet

shipping outfit. Certainly, that was clear that they were

-- SabreTech had to know that they were going to transport

by invitation and knowledge. I mean --

MR. MOSCOWITZ: This gets the question of whether

you combine knowledge and intent from different employees

 

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or it has to be at least one employee that committed the

offense.

The COURT: Is this argument mostly for the two

individual defendants then? How does this effect

SabreTech?

MR. MOSCOWITZ: First of all, Your Honor, with

regard to the two individuals, Mr. Florence and

Mr. Valenzuela, there's a total lack of evidence with

regard to their having any criminal intent, so SabreTech,

therefore, if the government bases it on what they did,

SabreTech is not liable also.

Let's talk about the other employee who was

involved in the transportation, who is Andy Salis, who is

the subject of testimony here. Mr. Salis, by the way, Your

Honor, is not named by the government as a co-conspirator in

this conspiracy alleged in this case. The testimony -- the

evidence in regard to Mr. --

The COURT: Now we are on the haz-mat. We are

not on conspiracy. What we are dealing with whether or not

SabreTech can be liable if one of its employees actually

takes these materials and takes them over to be shipped,

knowing they are going to be shipped on an airplane.

MR. MOSCOWITZ: So with regard, let's focus on

Mr. Salis, who is the testimony of the person who is

responsible for shipping these generators. Now the

 

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testimony is that Mr. Salis is the only person in the

shipping and receiving department who is involved with

shipping.

It was mostly, Your Honor, a receiving

department. The other employees, Mr. Ingram testified that

they were the ones in the receiving, and Mr. Salis did the

shipping. There is no evidence that Mr. Salis knew that

these oxygen generators were hazardous materials. So he

didn't have that knowledge that this was a hazardous

material he was shipping.

Two, there is a total lack of evidence, no

evidence, that Mr. Salis was aware of the hazardous

material shipping regulations under which hazardous

material have to be shipped. So there's no showing again

that he could be charged with specific, willfully violating

those regulations.

More importantly, or equally important, Your

Honor, is there is a break in the chain between what the

mechanics did and knew, and what Mr. Salis did and knew.

There is no evidence that Mr. Salis had any discussion with

these mechanics about these generators. There's no evidence

that any mechanic said anything to Mr. Salis to suggest to

him, let alone that they were hazardous materials but that

they were unsafe in any way. A total absence of evidence.

Indeed, you heard from Mr. Taber that when he

 

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brought them to the ValuJet hold, he just basically put them

down and had no discussion with Mr. Salis about that.

The COURT: He refused to go in. He didn't want

to deliver them to the shipping clerk of the ValuJet

company. He refused to cross the threshold and somebody

else took them.

MR. MOSCOWITZ: Your Honor, in terms of what

Mr. Salis did and knew, was Mr. Salis who filled out the

form identifying these shipping ticket as oxygen generators

empty, empty. That's what was presented to the ValuJet

ramp agents when they loaded them on the plane. The was

that description.

Mr. Taber testified, who is the mechanic who

filled out a number of green tags on these generators, that

he didn't write and no one else wrote empty. All he wrote

was out-of-date. Out-of-date. There was no other

communication between Taber, the mechanics and Salis.

The COURT: Let me get this straight. The other

man. Whatever his name was, what was his name?

MR. MOSCOWITZ: Mr. Salis.

The COURT: No.

MR. MOSCOWITZ: Taber. He was the mechanic.

The COURT: Taber said he wrote on the oxygen

generators out-of-date.

MR. MOSCOWITZ: Yes, Your Honor.

 

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The COURT: What did the assistant to Mr. Salis,

the fellow that testified through the interpreter? What

did he say. He wrote oxygen generators empty?

MR. MOSCOWITZ: Empty. At Mr. Salis's direction.

The COURT: Salis said here. Fill out this pad.

Here is one and do them all. So some of them had oxygen

generators empty. Some of them had oxygen generators

out-of-date. But they all had all three on them.

MR. MOSCOWITZ: No, Your Honor. The oxygen

generators when the mechanics finished working with them,

when they tie them up, they each put a green tag on each of

them. The green tags, the green tag is saying that this

item is no longer to be used, but the is potentially

repairable.

The green tags if they said anything described on

them just said out-of-date, which they were. None of the

green tags prepared by the mechanics said empty. It's

Salis in shipping who receives them, and according to the

evidence, on his own decides what that means is empty. But

there's no showing of the basis for his putting empty on

them.

Now there's the government, I don't believe that

even the government contends that Salis, when he wrote

empty, did that knowingly and willfully, intentionally to

mislead anybody so that these would be loaded on to the

 

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plane. Somehow there is a disconnect here or a

miscalculation that Salis innocently and tragically

construes out-of-date to mean empty.

But it's that misstatement, and during the

testimony the government even shrank from calling that a

false statement. It's a incorrect statement, which allows

these to be transported and shipped. There's a total lack

of evidence that Mr. Salis made this statement and shipped

these knowingly and willfully with the intention to knowing

that it was in violation of any regulations.

There's no indication, Your Honor, that Salis even

saw the boxes that the new generators came in, which had the

yellow sticker on the which was partially obscured. You'll

recall the testimony was that those boxes come in through

the receiving part. Salis's function is shipping. So, we

don't even know -- there's no evidence that he even saw the

yellow sticker on the new boxes. There's a total lack of

evidence that Salis was on notice that these were hazardous

materials or even that they were dangerous.

If its not the mechanics, Your Honor, if they are

not charged with knowledge, intent, foreseeability, then

they are not the basis for a willful violation by SabreTech.

The only person who is involved in transportation on behalf

of SabreTech, who could be the basis for SabreTech's

vicarious liability, is Mr. Salis and his assistant.

 

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There's just a total lack of evidence showing he knew these

were hazardous materials, he was aware of the hazardous

material regulations and that he made this statement and

loaded these on to the airplane with any bad intent.

Now, Special Agent Gentile, the FAA inspector,

testified that he spoke to Mr. Salis several days after the

event. Mr. Salis testified that it was his decision to load

these on the airplane and return them. He said he believed

he was authorized to do that, but the was his decision alone

to do that.

Again, there is just nothing in the record to

suggest it was clearly an incorrect decision. But, there's

nothing to suggest it was a willful or criminal decision. I

know of no evidence which would support that inference.

That's really what these charges are about. If it's not the

mechanics or not Salis, then nobody committed a willful

violation of these regulations. It's really that simple.

With regard, Your Honor, SabreTech is also charged

in Count XXIII with willfully failing to --

The COURT: Before you start on Count XXIII,

that's at next one in line?

MR. MOSCOWITZ: Yes, Your Honor.

The COURT: Let's take a brief recess for the

court reporter and we'll take a short break.

[There was a short recess].

 

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COURTROOM DEPUTY: Court is in session.

The COURT: Be seated, please.

MS. MOSCOWITZ: Your Honor, may I step out to get

Mr. Dunlap?

The COURT: Yes, of course, Mr. Moscowitz.

MR. MOSCOWITZ: Your Honor, before I move to

Count XXIII, with regard to the even number of counts under

46312, which are the counts in which both Mr. Florence and

Mr. Valenzuela are charged with recklessly causing the

transportation in commerce of these hazardous materials

with regard to -- first of all, Ms. Moscowitz will argue on

Mr. Florence's behalf and derivatively on the corporation's

behalf in regard to Mr. Florence.

With regard to Mr. Valenzuela, again, there is

simply a total absence of evidence in the record with

regard to Mr. Valenzuela's state of mind, knowledge of

these regulations, intent or anything. And that is, again,

the sum total of evidence about Mr. Valenzuela is what we

heard from Mr. Silvers. That can't possibly give rise to

an inference that Mr. Valenzuela is at all reckless with

regard to the transportation of these goods.

The only evidence with regard to the mechanics

with what they knew, comes from Mr. Taber and Mr. Rodriguez

that they believed these were going to be not transferred

and thrown away. Now, with regard, Your Honor, to each of

 

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the counts, the haz-mat counts, where --

The COURT: Let's go through this just one more

time. You say that on Count XXIII SabreTech should be

entitled to Rule 29 relief, because there's no evidence

that it failed to ensure that each of its haz-mat employees

was trained, right? It's your argument that on Count

XXIII, they provided training?

MR. MOSCOWITZ: No, Your Honor. The evidence

shown so far is from several mechanics who testified that

they were not trained. Count XXIII is again a willful

violation of the requirement that a haz-mat employer

provide training. The record is clear at this point that

no such training was provided. But the evidence has to

show that the failure to provide training was a willful

failure.

Now, the first element, SabreTech is required to

provide training if it is a haz-mat employer. No evidence

at all, that SabreTech as an entity was aware that it was a

haz-mat employer, that it was involved in the

transportation of hazardous materials under that

regulation.

So that's the first element. Not just is it a

haz-mat employer, but does the evidence show that it knew

it was a haz-mat employer that had the obligation to

provide such training.

 

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The second thing, is again, except that it is so

far in this record undisputed that no employee had such

training. But the issue is, did SabreTech know it was a

haz-mat employer, willfully fail to ensure that each of its

haz-mat employees were trained.

Then again, there's no evidence of willfulness.

The kind of evidence you would expect that you bring in

SabreTech managers and supervisors who we knew we had this

obligation to train the employees, but it was too

expensive, so we decided to save the money and not do it.

That would be evidence of willfulness, and

there's just no evidence of that at all. For all we know,

SabreTech was unaware that it was a haz-mat employer and

unaware that it had that obligation to provide haz-mat

training.

I should say on this record, that that's not, as

I say that, that is not unreasonable. Although

reasonableness is the standard. You heard the testimony

from Mr. Rodriguez that they weren't involved in shipping.

That was not part of their duties. The testimony that you

heard from Mr. Ingram was SabreTech was a receiver of

haz-mat goods. It received them. Although even Mr. Ingram

said, that the receipt of haz-mat goods was not a common or

frequent occurrence. But that's different as to whether it

if was a shipper. As I say, the evidence does not show a

 

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willful violation of that training obligation. I don't

believe its sufficient to show, to draw the inference from

the mere fact that they were in training.

The COURT: Could hypothetically, could Mr. Jones

decide he is going to ship on an American carrier to some

South American country that was in the throws of some civil

unrest, five boxes of hand grenades, and he doesn't know if

it is, it may not be hazardous material, I don't know.

But let me assume that the composition of a

grenade hypothetically anyway. We could pick something

else out, but could Mr. Jones who manufacturers grenades,

occasionally he ships them to somebody, occasionally he

sells them on the black market or to the public, could he

take them out in boxes and ship them assuming he didn't

know the regulations that precluded it, and assume that he

wasn't a regular shipper that this was just isolated and

every now and then he sent them to countries in South

America to one side or the other who had civil unrest.

Would that, under your theory, the government

would have to prove that he knew that the was a haz-mat

material and that -- let's assume that he had some people

that drove it out to the airport materials and he willfully

didn't train them about handling grenades. Could that

work? Is that all you would have to do is say, gee, I

didn't know about the regulation?

 

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That's a bad example. The an unfair example.

Let's assume somebody makes fertilizer and ships it to

wherever, and let's assume that at some point in time, the

fertilizer for some reason a particular brand becomes a

hazardous material, by being listed on one of these lengthy

tables that they publish every now and then, a person

continues to she did the, doesn't train employees, didn't

know about the, can he say "I just didn't know about it" or

is there an obligation for him to learn about it?

MR. MOSCOWITZ: What he is doing may violate

other statutes, but under this statute, there's no

affirmative obligation to learn it. The evidence has to

show that either he knew it or that he was willfully blind

to that obligation. He certainly couldn't close his eyes

to it if there was enough evidence to show that he knew it.

That would be the government's burden to show that either

he knew and ignored it, or if he willfully closed his eyes

to that. If, in fact, he didn't know he may be negligent.

There may be 50 other regulations and statutes that he

violated, but he hasn't violate these particular statutes

would do require specific knowledge of the regulations and

bad intent.

The COURT: The 11th Circuit just came out with

an opinion recently. One of Judge O'Kelley's cases. I

don't know the name, but it was in Georgia. And it dealt

 

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with the transporting, it's a criminal case, transporting

of the run off of materials that made some sort of chromium

device. He manufactured in, I believe Ohio, and then

shipped it down to Georgia or something like that. The

recent case on that dealt -- that may have been something

that was just grossly closing one's eyes to. I don't know.

MR. MOSCOWITZ: Your Honor, I think what is

significant here is there are other statutes that regulate

transport of hazardous materials of environmentally

sensitive materials, and they are often generally not

specific intent crimes. They don't require proof of

willfulness or specific knowledge the way these statutes

to.

It's possible that these violations could have

been charged under another statute which would not have the

same high evidentiary requirement, but certainly under

these statutes, which the government has chosen to rely on,

they have to meet that burden.

As I said, I think the analogy here are to the

arms export control cases, the trading with the enemy act

cases. All cases where the Court has held that you've got

to know what's on the emissions list to be held liable for

those violations. This is no different. So our position

is simple.

On this training obligation, there's just no

 

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evidence that we knew there was a haz-mat employer, no

evidence that we knew that we were required to train, and

no evidence that we willfully refused to do it for any

reason.

The last count, Your Honor, is the anti-sabotage

count, Count XXIIII, which I'll be brief on because I think

we have argued it several times.

Count XXIIII alleges, this is under Title 18,

United States Code, Section 312 that SabreTech knowingly

placed a destructive device and substance, that is oxygen

generators, on the ValuJet aircraft, and did so knowingly

and willfully make and cause that aircraft to be made

unworkable and unusable, and hazardous to work with and use.

Now, our position is, again, I do want to expand

on this briefly and then I'm almost done, that there is a

total lack of evidence to support an inference that

SabreTech willfully placed an explosive device on this

aircraft.

The first point I would like to make, Your Honor,

is this statute has its own definition of what an explosive

device is, and that's different than hazardous materials.

So even if it turns out that generators are hazardous

materials, even if one thought there was evidence that we

willfully caused the transportation of hazardous materials

that's not what is alleged here.

 

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Here it is alleged that willfully placing an

explosive device, a destructive device, on the aircraft.

And the allegation is that the generators are explosive

devices. Now here on the corporation's charge, the issue we

argued before is the issue is, this is again, a specific

intent crime, that alleges that SabreTech willfully placed

these devices on the aircraft and willfully made the

aircraft unworkable and unusable, and hazardous to work with

and use.

Previously, we had the argument, what does it mean

to say that a defendant willfully placed an explosive on an

aircraft. The government has argued looking at the

legislative history of this statute, that they're not

required to show in addition to willfulness, that there was

an intent to destroy the aircraft as an additional element.

Our position, as the Court well knows, that what

only resort legislative history, if there's some ambiguity

in the statute, if there's something unclear. I don't

believe there is anything unclear about the allegations or

the requirement that what is required is evidence that the

defendant willfully placed a destructive device on an

aircraft.

What does it mean to willfully placed a

destructive device on a aircraft on an aircraft. What does

it mean to willfully place a destructive device on an

 

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aircraft? I mean, to do that with bad purpose and bad

intent that could only mean that one intends to cause harm

in some sense to that aircraft.

There's no additional requirement to that but

that's the only common sense meaning of that act as a

willful act. There's just a total lack of evidence that

SabreTech or any of the employees caused those generators to

go onto that aircraft willfully believing, knowing that they

would make and cause that aircraft to be made unworkable and

unusable and hazardous.

I think it significant that the indictment charges

not only that SabreTech willfully placed the explosive or

destructive device on the plane, but willfully made and

caused the aircraft to be made unworkable and unusable.

I don't know if that second willfulness is

required by the statute, I believe it is. But, that is what

the government had alleged, and there's a total lack of that

evidence.

Again on this question of corporate liability,

SabreTech, no individuals are charged in this count. Only

SabreTech as the corporation is charged. SabreTech is

liable if the evidence shows that some employee in the scope

of his duties seeking in some sense to benefit the

corporation, willfully committed this offense.

The question is who are we talking about? Who are

 

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we taking about? The only employee who caused and placed

these generators on the plane is, again, Andy Salis and his

assistant.

I won't go through the facts again, but there is

just no evidence that Mr. Salis did that with knowledge that

these were destructive devices. He believed they were

empty. He believed they were not destructive. Maybe

incorrectly, but that was the only evidence of his belief.

There was no evidence to suggest that he was lying when he

thought they were empty. There's no evidence that he did it

with unlawful purpose or with a bad purpose. If it's not

Andy Salis, who else is it?

Your Honor, I think it's a total lack of evidence

supporting this allegation. This count, as well, should not

be permitted to go to the jury. Thank you, Your Honor.

Your Honor, one more thing. I do want to renew

the motion that we made before trial.

The COURT: All counsel has done all of that.

You are fully protect.

Ms. Moscowitz, insofar as it is humanly possible,

I would ask you not to duplicate or repeat the arguments

that have been made, since we started this morning with the

arguments at 11:15. It is now 4:25. We took an hour and a

half out, but it's been about 3 and a half or 4 of Rule 29

motion. So as best you can, if you could restrict it to

 

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your client and not be repetitive, as far as you can.

MS. MOSCOWITZ: I can't talk as much as he can,

Your Honor.

The COURT: Mr. Moscowitz, you should get a copy

of that and take it home and show it to your children. All

the kids will laugh. All right.

MS. MOSCOWITZ: Your Honor, I also renew all of

our prior motions.

The COURT: That's done on behalf of everybody.

You are fully protected and so on.

MS. MOSCOWITZ: With respect to Count I

Mr. Florence moves for a motion for judgment of acquittal.

There has been no evidence that he entered into any

agreement to be part of any conspiracy charged in the

indictment.

There is an object of the indictment which is to

place the short term business and pecuniary interest of

SabreTech ahead of other concerns. There is no evidence

that Mr. Florence did that.

There is an allegation of the manner and means

are that the work that was the mechanics did was rushed and

compressed. There has been no evidence that the work was

rushed and compressed.

The was also the manner and means that there was

pencil whipping, that employees and contract personnel

 

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would and did bow to SabreTech managerial and supervisory

pressure to do pencil whipping, to certificate work that

hadn't been done. Every mechanic that testified, testified

that he had not done such a thing and was not aware of such

a thing. There is, therefore, no evidence that

Mr. Florence entered into a conspiracy to accomplish any of

those things.

At most, that count shows multiple conspiracy.

With respect to Mr. Florence, there is no showing that he

had any knowledge of relationship to dependents on anything

related to the Aserca aircraft. There's not even a showing

that he worked on the Aserca aircraft, that he was aware

that the plane was in. There is just nothing to tie him to

any continuous series of items or any agreement that

encompasses the Aserca aircraft.

Your Honor, with respect to Counts V and VI, those

are the counts that charge Mr. Florence with two false

statements. The false statements related to the 69 work

card, and to its cover sheet which is numbered 178. Those

are counts that are multiplicitous.

Your Honor had denied the motion without

prejudice. There is no question, but that they describe the

same work that is in Exhibit 25. If Your Honor looks at it,

and I will hand it up, if Your Honor is curious at this

point, but the 69 work card is the work card that states,

 

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that has the whole description of what to do with oxygen

generators. In it, it says, if the generator is not

expended, install a cap.

The other one, a card numbered 178, is the cover

sheet which reads only remove and replace oxygen generators

per 0069 attached. I asked -- it's clear looking at them

that they described the identical work. I asked Mr. Ramos

if they described the same work. On November 22, 1999 at

page 180, he confirmed that those two cards described the

same work. I don't think there's any question that if those

counts remain, only one of them can remain.

The counts are also defective as Mr. Moscowitz

stated because they seem to reference two different

jurisdictions of the department of transportation and the

FAA. That's covered. I won't say it again. The card is

however, inherently ambiguous and impossible to perform as

written. This is both a specific intent crime, and not one

in which we can say, well he should have understood. The

government's whole point is that instruction should be

followed exactly.

This is the card, Your Honor, that says, "install

shipping cap on firing pin." I think that's talking about

the 69 work card, is Count V. That you cannot install a

shipping cap on a firing pin. That is, what Mr. Gentile

testified about. It is clear that as he demonstrated, Your

 

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142

 

Honor, that if you install a shipping cap on a firing pin it

just falls off. You cannot have a instruction and convict

somebody of a false statement for something that can't even

be done. That is what he demonstrated, Your Honor, when he

put the thing on and it falls off, and it doesn't stay there

and provide any protection.

There's an 11th Circuit case. The Manapat, it's

funny, it deals actually with a FAA false statement. United

States v. Manapat, 928 F.2nd 1097, 11th Circuit 1991. It

states, when a record that you are allegedly making a false

statement on is inherently ambiguous, you can't be convicted

of making a false statement on it. And if this is something

that doesn't even work because it falls off, then how can he

be guilty of failing to follow that instruction. That's

completely in the record per Agent Gentile's testimony. The

instruction on that work card could not --

The COURT: Is he charged with failing to follow

the instruction or certifying that he did follow the

instruction?

MS. MOSCOWITZ: He's charged with a false

statement he allegedly signed. Although there's really no

testimony that he signed. I think its sufficient. I know

juries are privileged to use their own eye balls and look

at handwriting. He signs off -- I have to kind of back

into it. It says, "if generator is not expended, install

 

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143

 

shipping cap on firing pin." I don't think you can follow

an instruction that can't be followed.

The COURT: But then he signed it. He did just

that, is that it?

MS. MOSCOWITZ: Well, he allegedly signed, he --

THE COURT: I don't ask you to admit that he sign

that. But his signature appears there, that yes, I did

not. I put on the firing pin. Now, he's charged with

marking false statement, he's not charged with failing to

an impossible job, is he? Isn't that the problem we had

with this?

MS. MOSCOWITZ: Well, perhaps, but of course, if

it is not false for that regard, it certainly can't be

material if all it would do is fall right off. I don't

think he can be charged, it's now charged with the work,

it's something related with the work, Judge.

He's charged with the false statement if that

statement provides no protection whatever, it is certainly

immaterial. And materiality is something that the

government has to prove beyond a reasonable doubt and it is

a factual matter, and that certainly makes it completely

immaterial if it provides no protection whatever.

There is no evidence of bad intent. There is only

evidence of Mr. Florence acting in good faith. Now, these

are issues obviously that become jury issues, and I

 

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144

 

understand that, but this is a specific intent crime.

Mr. Florence exits the picture long before, in March is the

last time there is any evidence of him having anything to do

with these generators. That's the back drop with which we

approach the hazardous materials counts.

Now I don't know if Your Honor has looked at these

counts. But Mr. Moscowitz says it took him a long time to

figure out how they worked, and I'm behind him because I

haven't figured out how the incorporation works, and how

SabreTech can be charged with willfully and recklessly in

the same count. But there are counts VIII, X, XII, XIIII,

XVI, XVIII, XX and XXII, charging Mr. Florence with reckless

violation of shipping, packing, labeling, classing and all

sorts of things which deal only with the transportation of

hazardous materials.

According to the indictment and to the regulations

under which these charges are brought, Mr. Florence must be,

in order to be liable under any of these charges, what's

called a haz-mat employee. That's defined in paragraph 30

of the indictment, which notes that the hazardous materials

regulations apply to "each person who performs or causes to

be performed functions related to the transportation of

hazardous materials, including determination of and

compliance with basic conditions for offering hazardous

materials in transport. Filling packages, marking and

 

UNITED STATES vs SABRETECH, ET. AL - 11-29-99

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labeling pads, preparing shipping papers, handling loading,

securing and segregating packages within a transport vehicle

or cargo hold and transporting hazardous materials."

There is no evidence that brings Mr. Florence

within the category being a haz-mat employee such, that

these regulations should apply to him, even before we

address questions of what is reckless and what is willful.

The facts in this case demonstrate the following:

Mr. Florence, together with a group of other mechanics,

participated in the removal and replacement of oxygen

generators. In late March, latest early April, he

participated with at least Mr. Taber and Mr. Rodriguez in

cleaning up the generators from the 802 area, and that was

when they carefully wrapped the lanyards around the firing

pin, then wrapped them around the body of the generator,

tied them down and then they tagged them entirely and

accurately as 02 generators out-of-date. There is the one

that remained on the premises in evidence which Mr. Taber he

signed and confirmed, and there is no contradictory evidence

that Mr. Florence did exactly what he did with the

generators and did also the same tags.

So the mechanics did what they could to secure the

generators. The evidence is also uncontradicted that the

mechanics, including Mr. Florence were informed that these

generators were going to be disposed of, not that they were

 

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going to be transported.

So that leaves -- Mr. Florence leaves them

according to the statement of Special Agent Gentile also

uncontradicted, in late March or early April, on a cart on

near 02, and doesn't see them again. The generators are

taken by Mr. Taber and Mr. Rodriguez to the ValuJet hold

area. They leave them there. There they are tagged as

oxygen generators out-of-date. Not oxy canisters, not

empty.

Andy Salis who comes independently into the story

via either his misunderstanding of what ValuJet or his boss

instructed, but on his own according to Special Agent

Gentile, decides that the oxygen generators are to be

returned to ValuJet via flight 592.

The government has stated throughout when they

talk about the shipping ticket, it's been referred to as an

inaccuracy. The government acknowledges that Mr. Salis made

a mistake. He made a tragic mistake. There's no question

about that. But there is no connection with what he did and

what the mechanics, including Mr. Florence did.

Mr. Florence did not pack the generators for shipment. He

stated that to Agent Gentile, and mechanics Taber and

Rodriguez confirmed that mechanics don't ship, that they did

not anticipate that these generators would be shipped. The

boxes were filled to overflowing, Judge. All of their

 

UNITED STATES vs SABRETECH, ET. AL - 11-29-99

147

 

testimony is that the boxes were open because the generators

were up over the top of them. There's no question they were

not packing them to ship them. Because you put something in

a box to clean it up and put the some place else, does not

mean that to you are preparing it for shipment. In fact, as

Mr. Florence stated to Special Agent Gentile, he did not

think that was their final packaging. As Mr. Taber stated

to Your Honor and the jury, he did not think this was the

final packaging. He did not expect that these things would

be shipped.

There is a complete breakdown in the causal chain

between Mr. Florence who leaves these generators, tagged

accurately, made safe enough to be disposed of. After all

Mr. Taber testifies that the purpose that they understood

the cap was for was to protect themselves and the generator

from going off. They've done that. They're beyond that

step. Now they are just waiting to be thrown away

appropriately after ValuJet decides who is going to get rid

of, how they're going to be gotten rid of, and they make

them safe to that point.

He leaves them where they are in a box on the side

of the plane. He did doesn't even participate in taking

them to the ValuJet hold area. He is out of the picture

except vis-a-vis the signature by late March or early April,

and Salis makes his own determination relating to nothing

 

UNITED STATES vs SABRETECH, ET. AL - 11-29-99

148

 

that the mechanics did in May 10 or May 11 to put these --

to have these generators taken to the ValuJet to be loaded

onto that plane.

There is also the issue with respect to the

hazardous materials counts as to Mr. Florence's training.

The seems hard for me to understand how he could be -- how

the company could be charged with failing to train him, and

then there could be this issue about whether he knew or

didn't know these materials were hazardous.

Again, Your Honor, nobody disputes that they were

dangerous. I noticed in a pleading filed by Ms. Miller that

the says the mechanics talked about their intense heat.

That's not all the record. The record says, they said some

heat. They get hot. Even Mr. Brennan, the Scott Aviation

oxygen generator expert spoke about the fact that you could

hold them for 3 minutes before you couldn't hold them in

your hands anymore, and also, you could expend everyone in

the airplane, that was the safe way to do the before even

taking them out of the airplane before you were going to

change them but they knew they got hot.

There was nothing that said to the mechanics these

are hazardous materials as called for under the C.F.R.

Didn't say the on the generators, either before 88 or after

88. There was a part of the yellow label that doesn't say

hazardous materials at all. The just a yellow label peeking

 

UNITED STATES vs SABRETECH, ET. AL - 11-29-99

149

 

out of the box. We don't know if Mr. Florence saw it or

not. We know that Mr. Taber saw a partially obscured yellow

label on the box the new generators came in. That's --

There is, therefore, no ability -- the government

has not shown in any way either of two things, one that

Mr. Florence knew that these were hazardous materials as

listed in the C.F.R. as opposed to, are these things that

you wouldn't want to pop off and throw around, but there's

nothing that says he treated them that way. There's nothing

that says he's a haz-mat employee.

The regulations do not apply to him. Everybody in

a company can't know everything that everybody is doing.

There's this company called Dangerous Goods, Inc. that did

service for SabreTech. They probably have an accountant

that works for them. The accountant doesn't necessarily

know how to handle hazardous materials. Mechanics may

handle goods that turn out to be dangerous, but this act

applies to hazardous materials transportation.

It applies to people who are in the business of

getting these hazardous materials from point A in this city

to point B either in this city or some place else. That is

never the mechanics. It is hardly even shipping and

receiving at SabreTech, because what they usually do is get

parts in and put them on a plane. They don't do much

sending out of parts.

 

UNITED STATES vs SABRETECH, ET. AL - 11-29-99

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Specifically, with respect to Mr. Florence, there

is no evidence that puts him anywhere near shipping and

receiving. The only evidence in the record for Mr. Taber

and Mr. Rodriguez is mechanics don't ship. They aren't

trained to ship in general. And specifically, they did not

know these generators would be shipped. They never

discussed that they would be shipped. They did not plan for

them to be shipped. They did not pack them to be shipped

because they did not think they were going to be shipped.

The evidence is without a doubt that generators were going

to be disposed of.

If you have no questions. That's really what the

is.

Oh, I have one thing actually, that I think is

kind of interesting, Judge, that I wanted to add. I don't

know whether to file it or not. I was reading Mark Gentile,

the FAA special agent's report. Particularly, on the

section where he's dealing with haz-mat employees. He says

haz-mat employees and he lists --

The COURT: Is this in the record?

MS. MOSCOWITZ: It's not, but in a certain sense

it's a legal opinion.

The COURT: If it's not in the record, I'm sorry.

We have got enough, that is, in the record to deal with.

MS. MOSCOWITZ: Your Honor, the reckless

 

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standard requires a conscious disregard of a highly known

risk, gross deviation. There's no evidence to show that.

The COURT: All right. thank you. Now,

Ms. Miller and Mr. Brigham, it's now almost 5:00 in the

afternoon. I really don't know. We started at about 11:15

with arguments, but, of course, we are here at 9:00 with

other matters. You have listened to about 4 hours. We

have all listen today about 4 hours of argument on a very

lengthy indictment, 24 counts or 23 counts whatever it is.

And so I do not wish to place you or the

government or the defense in any disadvantageous position

to interrupt your responsive argument at this point, I

might do that. However, to require you to go forward at

5:00 in the afternoon late in the day might also be unfair.

I simply ask you and Mr. Brigham if you wish to proceed

with some or all of your argument today or do you wish to

delay the until the morning?

MS. MILLER: Your Honor, I think that perhaps we

will wait until tomorrow if it is agreeable to the Court.

The COURT: I have no problem with that.

MS. MILLER: Let me mention that one of the cases

we will be relying on is cited in our memorandum, if the

Court wanted to take a look at it tonight. United States

v. International Minerals and Chemical Corporation 402 U.S.

558. This goes to the point that knowledge of the

 

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regulations is not required. That will be certainly

something that we will be arguing.

The COURT: All right. Now, then, the question

comes up what time, because we told the jury we would be

back at 9:00. What time do you all recommend that we

commence?

MS. MILLER: Your Honor, certainly no later than

8. If the Court wants to have a little more time in there,

I certainly would be agreeable to start at 7:30.

The COURT: You are entitled, of course, to the

same length of time they had. They had 4 hours. I don't

wish to put you or them in the position of having to get

here at 6:00 or so to do that. I suppose the jury could

wait perhaps 20 or 30 minutes. I wouldn't want them to

wait longer than that.

MS. MILLER: Judge, if you do feel comfortable

with maybe the jury not starting until 9:20 or so, I think

we could start at 8.

The COURT: That would only give you an hour and

twenty minutes.

MS. MILLER: Without any disrespect to counsel, I

just don't think the points they are going to make are

going to take that long.

The COURT: All right then. 8:00 in the morning.

We will commence with the government's response at 8:00 in

 

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the morning. Thank you.

(Proceedings were concluded at 4:45 P.M.)

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

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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.

 

 

 

 

 

 

 

 

 

 

November 29, 1999

________________ _______________________________________

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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