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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 30, 1999

SABRETECH, INC.

DANIEL GONZALEZ, TUESDAY - 8:00 A.M.

EUGENE FLORENCE

 

Defendants.

 

 

 

JURY TRIAL PROCEEDINGS

BEFORE THE HONORABLE JAMES LAWRENCE KING,

SENIOR UNITED STATES DISTRICT JUDGE

DAY 10

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

 

 

 

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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

 

 

 

 

 

 

 

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TABLE OF CONTENTS

Witnesses: Direct Cross Redirect Recross

Pamela Hettinger ............ 105 112

Donald C. Forman ............ 113 120

Fernando Pereyra ........... 123

Fernando Pereyra ..................... 137 141

Manny Quintana .............. 144 179

Gil Morgan .................. 197 200

Kathleen Wheaton ........... 209

Kathleen Wheaton ..................... 212 216

Manny Quintana ....................... 224

Reporter's Certificate ................................. 249

INDEX TO EXHIBITS

Exhibits Marked for Received

Identification in Evidence

Description Page Line Page Line

Defense Exhibit 26 ............................ 130 12

Defense Exhibits DG1(a) through 1(e) .......... 159 14

Defense Exhibit DG2 ........................... 163 25

Defense Exhibit DG3 ........................... 164 18

Defense Exhibit DG4 ........................... 168 25

Defense Exhibit DG8 ........................... 173 4

Defense Exhibits DG6(a), 6(b) and 6(c) ........ 174 1

Defense Exhibits DG5, 7 and 9 ................. 176 2

Government Exhibit 111 ........................ 183 6

 

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Defense Exhibit ST11 .......................... 242 2

Defense Exhibits 8, 9 and 10 .................. 244 10

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

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COURTROOM DEPUTY: All rise. Court is in

session. The Honorable Judge James Lawrence King

presiding.

THE COURT: All right. We will hear from the

Government in their response to the motions, the 75 or so

motions that have been made, give or take a dozen.

MS. MILLER: Your Honor, the evidence in this

case provides a basis for a reasonable jury to return

convictions on all counts as charged in the Indictment.

With regard to Count I, Your Honor, the evidence

presented allows the jury to find a single conspiracy as

charged in the Indictment. It was a conspiracy in which

the business interests of SabreTech vis-a-vis all its

customers were paramount. That's what ties Aserca and

ValuJet together. This was not a conspiracy that was

focused on one particular customer.

The business interests of SabreTech are

illustrated through such evidence as the aircraft

maintenance service agreement between ValuJet and

SabreTech, which includes a penalty clause, a $2,500 a day

penalty clause for late work. Your Honor, that is embedded

in one of the documents that we have introduced into

evidence.

We have Government Exhibit 2F, William

Drechsler's letter of complaint with regard to late work on

 

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Aserca and the discontent of a customer. We also have

Government Exhibit 95, the letter from Steve Towns,

promising indemnification to ValuJet for its costs of late

delivery of aircraft up to $20,00 a day.

The Indictment alleges that this was one in which

part of manner and means was to hurry and compress work at

the expense of skipping work steps and with the result of

pressuring workers into signing off for work. Evidence of

this pressure atmosphere certainly was adduced during this

trial.

We have probably the most single dramatic moment

in the trial, which is Danny Gonzalez screaming at and

berating Chris DiStefano in a voice loud enough to be heard

throughout the hangar for DiStefano's trying to rearrange

the work cards in a way that would make the arrangement

more accountable, even though at the expense of limiting

access to that work booth.

That message was literally loud and clear for

everyone at SabreTech: Don't rock the boat or you will

face the ire and the recriminations of Danny Gonzalez.

We also had the testimony that followed that

altercation. Mr. DiStefano lost his temporary promotion of

hangar manager.

We had testimony concerning lead mechanic Ray

Serano telling Mauro Valenzuela to sign a work card even

 

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though Mauro Valenzuela was saying he hadn't done the work.

Now, we had some interpolation of Grand Jury testimony

designed to show that, well, Valenzuela had inspected the

work.

But what is significant is that that was not told

to Ray Serano. What the testimony was, is that Ray Serano

was told by a SabreTech worker that he hadn't done the

work, yet Serano, part of the management chain --

THE COURT: Let's go into that just a little bit

more. The defense asserted in the argument yesterday that

the evidence of this case was to the effect that Valenzuela

did not make a false statement since Valenzuela -- since

the record shows that Valenzuela was charged with some sort

of responsibility for supervising, and that he did that,

and that his statement -- sorry I can't put my finger right

on it.

But his statement, according to one of the

defense counsel, was to the effect that Valenzuela had, in

fact, supervised the work and certified that the work was

done because he supervised it, as opposed to his actually

doing the work, or words to that effect. That may not -- I

am not trying to put words --

MS. MILLER: Your Honor, Thomas Silvers testified

at trial that Ray Serano had some papers -- first of all,

he testified that what he and Valenzuela were doing that

 

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day was inspecting generators, not installing them, but

inspecting them.

Ray Serano had some papers. He said that since

we had done the inspection, would we sign it. They're

supposed to sign for doing work. They're not inspectors

signing off on inspections.

Serano said, since he had done the inspection,

would he sign it. "I said I wasn't going to sign because I

hadn't done the inspection. Mauro Valenzuela and I

bantered back and forth, you sign it, no, you sign it, you

sign, no, you sign it. Then Mauro Valenzuela took the

papers. I kept on talking to Serano.

MR. MOSCOWITZ: What page?

MS. MILLER: This is Page 43 of the transcript of

volume 1, 11/19, '99.

"I kept on talking to Serano. He turned and he

gave the whole thing back to Serano." Page 45. "I asked

Mauro Valenzuela why did he do it. Valenzuela said, well,

it's signed now."

Then we went into this issue of Grand Jury

impeachment due to Silver's failure of memory, and

Mr. Brigham read a portion of the Grand Jury that said, "We

told Serano that we had not done the work on the generators,

but he had wanted us to sign it so that he could get rid of

the item."

 

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Then Mr. Raskin read a portion of the Grand Jury

that said, "I, Thomas Silvers, heard Mauro Valenzuela tell

Ray Serano he had not done the work. Ray Serano told Mauro

Valenzuela to sign it any way. Mauro Valenzuela had

inspected it. That's what we spent four hours checking.

Mauro Valenzuela had actually looked at the work that was

done, Ray, installation of oxygen, putting the generators

into the assemblies." That was the testimony.

Now, the document, Your Honor --

THE COURT: You anticipated me. I was going to

ask you, what does Exhibit No. 4, work card 45904, what

does it say about that item?

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

that's the right exhibit number. The exhibit is part of

Exhibit 26.

THE COURT: It wasn't part of Exhibit 4?

MS. MILLER: No, sir.

THE COURT: They were arguing 4.

MS. MILLER: I think Mr. Moscowitz will concede

he was mixed up in his exhibits.

THE COURT: That's okay.

MS. MILLER: Your Honor, Government Exhibit 26

are the work papers associated with the oxygen generators

for aircraft 803, and what Mauro Valenzuela signed was two

different documents which are charged as false statements,

 

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one of which is work card 0069.

This is Mauro Valenzuela's number, as proved by

another exhibit, and his signature, and he signs item one

and then sub items A, B, C, D, and B is this item: If

generator has not been expended, install shipping cap on

firing pin. That is the false statement.

THE COURT: Marshal, would you hand me that. Let

me borrow that. Hand that up to me, Marshal. Thank you

very much.

Do you have another copy that you can argue from?

MS. MILLER: I don't need it, Your Honor.

THE COURT: All right. Now, I'm examining

Government Exhibit 26 and I'm looking at what appears to be

card number 0069 --

MS. MILLER: And that statement B is --

THE COURT: -- apparently dated April 28, 1996.

And you are saying section B is the one that would be the

one we should look at?

MS. MILLER: Yes, sir.

THE COURT: Section B. The entire card starts at

the top with some numerical data that deals with certain

things, but getting to the body of the ValuJet MD80 work

card instruction, "Chemical oxygen generator remove slash

install. Note: Removal installation procedures for all

generators are identical unless otherwise noted.

 

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"One, remove generator (Figure 1). Warning:

Unexpended oxygen generators contain live ignition trains

and when activated generate case temperatures up to 500

degrees Fahrenheit. Use extreme caution while handling to

prevent inadvertent removal of firing opinion. If

generators should become activated, immediately place on a

noncombustible surface.

"Note: Passenger overhead environmental panels

contain" -- I never heard this word before.

MS. MILLER: I think it's unitized, Your Honor.

THE COURT: -- "unitized oxygen insert units. If

generator is to be replaced in these units, remove and

replace insert unit" then it refers to a number.

"A. Manually open oxygen module door slowly,

making certain that the firing pin lanyards are free among

out pull firing pin on live generator. Note: Oxygen mask

in attendance modules will drop out of door if allowed to

swing open.

"B. If generator has not been expended, install

shipping cap on firing pin. Caution: Use caution not to

pull oxygen generator firing pin while disconnecting

lanyards.

"C. Disconnect firing pin lanyards from oxygen

mask. Note: Lanyards remain attached to firing pin.

"D. Press heat shield toward generator until

 

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heat shield bracket loads can be lifted out of mounting

holes and oxygen module and remove heat shield. Note:

Heat shield is not incorporated in forward attendance

module."

Now, Section B, which you have invited my

attention to, says that in those cases, my words, where the

generator has not been expended, you must install shipping

cap on firing pin, and that is signed off with a mechanics

signature. There is a signature there, which you say the

evidence reflects is Valenzuela's signature?

MS. MILLER: Yes, sir, Your Honor. We put in

evidence the table of employee numbers and that matches up.

THE COURT: So he signed off that that work had

been accomplished. Now, that doesn't say anything about

supervision. That says that he did that work, according to

this.

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

THE COURT: All right. How does this -- the

argument -- well, that was on Count II. The argument about

Gonzalez on Count II had something to do with a de-icer,

but we'll get to that, I presume.

Your argument on Count I is?

MS. MILLER: This is actually one of the

substantive counts and an overt act in Count I, and the

false statement is the statement that shipping caps had

 

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been installed. This was false.

Mr. Silvers went on in his testimony to testify

that after this incident where they told -- where Mauro

Valenzuela told Ray Serano that he hadn't done the work,

they went on and worked with these old oxygen generators,

with 20 to 30 of them. They were affixing green tags on

them and Thomas Silvers said there were not shipping caps

on the generators, contrary to the statement in the work

card.

Further, Your Honor, we had testimony later on

from a witness who also had worked on the oxygen generators

for that aircraft, which is 803. That was Robert Rodriguez,

who testified that he helped collect oxygen generators that

had been removed from 803. Mr. Rodriguez testified that he

also observed that there were not shipping caps on those

oxygen generators.

Now, further illustrating the conspiracy and the

manner and means of the conspiracy to hurry and compress

work at the expense of skipping required work steps we had

the testimony that supervisor David Wiles was told by

mechanics, in the presence of Eugene Florence, that there

were not shipping caps for these old generators, and

Mr. Wiles said, go ahead and do the work anyway, even though

there were no shipping caps.

Other evidence of the hurry and compression of

 

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work at SabreTech included Government Exhibit 36, which was

Danny Gonzalez's seven day a week memo. Defense counsel

argued that it's common to have such a memo, citing the

testimony of Al Ramos.

Actually, Your Honor, what Mr. Ramos testified to

was that it is common to work seven days a week; not that it

is common to require an entire work force to work seven days

a week.

Further exemplifying this manner and means of the

conspiracy, we had testimony about an incident at the work

booth on May 4, 1996. We know that date through the

testimony of Robert Rodriguez, who testified that it was a

Saturday in May and that it was a Saturday before the

ValuJet crash. The ValuJet crash was on Saturday, May 11th.

Therefore, this incident occurred on Saturday, May

7th, which also corresponds exactly to the date that appears

on the document that Eugene Florence signed at that time.

In this incident, both Mr. Rodriguez and Mr. Taber testified

to workers being summoned to this work booth and told to

sign documents.

Mr. Taber demurred and hung back from signing

documents, saying that he had to read the work cards before

he would sign them. He read one as to which he had in fact

done the work and signed it, and was asked to sign more but

said he wanted to read the work card first.

 

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Danny Gonzalez said, "We need this paperwork

signed now," further exemplifying the time pressure and the

position of management that the priority was to get items

signed, not to actually read what was being signed. When

Danny Gonzalez made that remark he was standing at Eugene

Florence's elbow and Eugene Florence was signing papers.

Mr. Taber testified that the work papers that he,

John Taber, saw in the booth that day were the documentation

for the oxygen generators.

Totally consistent with that testimony is the

actual documentation, Your Honor, and that is found in

Government's Exhibit 25. I'm not going to hand it up to the

Court unless the Court wishes, but it is a similar package

to Government Exhibit 26. Government Exhibit 26 is the

oxygen generator papers for aircraft 803. Government

Exhibit 25 are the similar papers for aircraft 802.

In that exhibit, Government Exhibit 25, is that

same work card, 0069, but for aircraft 802, and Eugene

Florence signed that work card, including signing off on

that item B which Your Honor just read, which is the false

statement that was made.

Other evidence of the hurrying and compression of

work at the expense of skipping work steps is exemplified in

testimony such as Robert Rodriguez of Jude Casamere telling

the crew to hurry up and clean out old generators that were

 

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still lying around the hangar. This is after May 4, 1996.

Between May 4th and May 11th, the crews had to get

together and clean out these old generators and in their

haste to do so, several of them went off. They were

basically put in boxes, not secured in the way that

Mr. Brennan testified that they needed to be secured, and

moved from there forward to SabreTech's stores, ValuJet's

hold area, and finally on to the aircraft.

Your Honor, the defense argued that there was no

rim to the conspiracy, that these were simply isolated acts.

That is not correct, Your Honor. They all fell into this

manner and means.

In addition to named unindicted co-conspirators,

the Indictment named unindicted co-conspirators who were

unknown. This company had other management members and each

defendant in this case had reason to know of other acts than

his own.

For instance, with regard to Aserca, Christopher

DiStefano had announced his intent to institute this new

system for improving the flow and accountability of

paperwork at a meeting that included not only Danny

Gonzalez, but other members of SabreTech, who was then

DynAir Tech management, including Jaime Galindo.

When Danny Gonzalez subsequently countermanded

that system, it is a fair inference that that was done with

 

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the knowledge and acquiescence of other management.

We also have the letter of William Drechsler,

Government Exhibit 2F, complaining, among other things, of

work cards done and work not accomplished. This letter was

circulated to other persons than Danny Gonzalez and it was

addressed to the director of marketing, yet it landed on

Danny Gonzalez's desk.

In that letter, Mr. Drechsler said, "We have

DynAir paperwork showing work completed and inspected and

not accomplished. We have DynAir paperwork showing approval

to accomplish signed off, yet no work done on the aircraft."

That letter, Your Honor, put management on notice of

problems concerning the veracity and accuracy of its

paperwork.

Now, Mr. Drechsler testified on cross-examination

that his concern was with the timing of paperwork, but on

the face of it, his letter put management on notice of a

larger problem and this should have raised a red flag.

In addition, Your Honor, Mr. Drechsler's belief

was that work was being done but, indeed, one of the

allegations in this case, which we submit is supported by

evidence, is that work on the aircraft which was stated as

being done, in fact, was not being done even though the

paperwork was signed off.

Further, Your Honor, with regard to knowledge by

 

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the defendant Eugene Florence of other acts in this

conspiracy, it should be remembered that Eugene Florence

worked not only on aircraft 802, but also on aircraft 3. We

know that through his statement to Mark Gentile and also his

written submission which is now in evidence in which he

acknowledges that he worked on both aircraft.

Eugene Florence knew that somebody had to sign a

similar parallel work card, 0069, as to aircraft 803, and to

do so falsely.

The result, Your Honor, of this knowledge on the

part of defendants and of this pattern that was demonstrated

through the evidence, is what's known as pencil whipping,

which is alleged in the Indictment and is testified to by

John Taber. Pencil whipping is signing for work that wasn't

done.

Specific instances of that, Your Honor, are

charged in Counts II, III, IV, V, and VI. Those are the

substantive 1001 counts. They also are overt acts in the

conspiracy.

Let me turn my attention now to Count II, which

relates to the work card for Aserca Airlines, the ice

protection system.

The Government's proof that this work was not done

consisted of the testimony of Christopher DiStefano and

William Drechsler that this job took longer than the time

 

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that Mr. Gonzalez had that paperwork. Both Drechsler and

DiStefano said that it is a two-person job. DiStefano said

it would take two people three hours and Drechsler said that

it would take people four hours.

Now, the testimony was that Danny Gonzalez was

gone with that paperwork from the work booth for only one to

one and a half hours according to DiStefano. Michael Quan,

who also testified, gave a somewhat wider range of time. He

said he thought the time was between twenty minutes to two

hours.

The work had not been done previously, Your Honor,

and the paperwork had not gone out previously. The

testimony and support of this came from Michael Quan and

from Christopher DiStefano. That testimony was that the

paperwork had been newly laid out in the work booth.

According to DiStefano, who was the supervisor on this

airplane, this was the first day of work on aircraft 720,

which would be the first day I started handing out the

paperwork. And the day began, Your Honor, with the fight

with Danny Gonzalez.

Now, counsel made much of the fact that they say

there are hopeless inconsistencies between the testimony of

Michael Quan and Chris DiStefano as to this fight. First of

all, as the Court has recognized, the resolution of factual

discrepancies is for the jury. In any event, Your Honor,

 

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their two accounts, although different, are not

irreconcilable.

Frankly, Your Honor, it may well be that the

reason their accounts are different is because, as we

elicited from them, they have not conformed their accounts.

They have not talked to each other about this matter since

it occurred. They both came in here and testified to their

best recollection.

Those recollections, Your Honor, although each of

them focus on different things are not irreconcilable. Both

recall a noisy and profane fight. In fact, Michael Quan

remembers that the actual discussion began when Danny

Gonzalez walked into the work booth, looked at the work

cards and said, what the expletive is this?

Both of them remember Danny Gonzalez taking a

bunch of the work cards and handing work cards out to

mechanics. Christopher DiStefano remembered Danny Gonzalez

stuffing this paper in his jacket as he walked out. Michael

Quan was not sure if Mr. Gonzalez had handed out all the

work cards.

Following this, Christopher DiStefano testified

that he hung out, that he was around the plane 720 during

this hour and a half interval and he did not see Danny

Gonzalez at that plane. He testified that during that time

he went past Danny Gonzalez's office and saw on Danny

 

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Gonzalez's desk the document that eventually was entered

into evidence as Government Exhibit 2, this ice protection

system work card.

Both Quan and DiStefano remember Gonzalez

returning to the booth. DiStefano remembers Danny Gonzalez

coming in with paper that was already signed and laying it

down. Michael Quan remembers Danny Gonzalez taking a work

card from the rack, signing it in their presence and putting

that down. Michael Quan does not recall if Danny Gonzalez

brought anything with him. It is not that he contradicts

Christopher DiStefano, he just doesn't remember.

The signing of a paper on the spot is more

consistent with the document that Mr. Quan recalls, which

was only three pages. But Government Exhibit 2, which

Mr. DiStefano identified as one that Mr. Gonzalez brought

into the work booth with him, which Mr. Quan does not in any

way contradict, is approximately ten pages long.

Your Honor, with regard to the length of that

document, I think it's significant also that in Grand Jury

Christopher DiStefano recounted this incident. He could not

identify the document at that time, but there were no

documents before him at that time.

THE COURT: Is that in evidence?

MS. MILLER: Yes, sir. That was part of the

impeachment and then I rehabilitated with the fact that in

 

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Grand Jury -- and you may recall that I called

Mr. DiStefano back to do a little bit of redirect that I

had omitted and in that redirect I established that in

Grand Jury, although he could not remember the exact

document, he did remember that it was approximately ten

pages.

Your Honor, Government Exhibit 2 is nine pages,

totally consistent with Mr. DiStefano's recollection.

THE COURT: That's the one that DiStefano says he

saw on Mr. Gonzalez's desk?

MS. MILLER: Yes, sir.

THE COURT: And there was other testimony by

DiStefano, I believe you said, that he was around the plane

and did not see Mr. Gonzalez working on the de-icing

mechanism.

MS. MILLER: He did not see Mr. Gonzalez working

on anything. He didn't see Mr. Gonzalez there working on

the plane.

THE COURT: There were other witnesses that said

this would normally be a two-man job; yes or no?

MS. MILLER: Yes. Your Honor, at this point,

Count II also involves an issue with regard to FAA

jurisdiction. Mr. Brigham has prepared that argument, and

with the Court's permission, I would like to defer to him

at this point to address the jurisdiction issue as to Count

 

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II, unless you want me to go forward with the rest of the

Indictment.

THE COURT: I would rather finish Count II.

MS. MILLER: Your Honor, I have substantively

addressed Count II, and now I will defer to Mr. Brigham

with regard to the jurisdictional issue.

MR. BRIGHAM: Your Honor, as a legal matter, the

falsification of the Aserca records that is charged are, in

fact, matters that fall within the jurisdiction of the FAA.

To facilitate my discussion, I would like to

provide the Court a small package which I provided to the

defense yesterday, including regulations that were

discussed yesterday. With the Court's permission, I would

like to tender that through the Marshal.

THE COURT: All right. I am seeing it for the

first time and you are maybe seeing it for the first time.

It is four pages. I will ask Ms. Kramerman to make a Xerox

copy for everybody. We will get copies made and

distributed.

These are -- refer to legal documents or whatever

and so, just go on with your argument and make three extra

copies. Go ahead. This has to do with the argument

regarding whether or not a foreign registered aircraft such

as the Aserca aircraft would fall within the scope of the

FAA and Department of Transportation regulations. Is that

 

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it?

MR. BRIGHAM: Yes, Your Honor. Your Honor, under

Part 145 of Title 14 of the FAA regulations there are two

types of repair stations. There's a domestic repair

station and a foreign repair station. The domestic repair

station is located in the United States. The foreign

repair station is located outside the United States.

The recordkeeping requirements for the domestic

repair station, which is what SabreTech was, an FAA

certified repair station, is Section 145.61, which is the

regulation that is on the first page of the package I

provided Your Honor. And it requires that each

certificated domestic repair station shall maintain

adequate records of all work that it does, naming the

certified mechanic or repairman who performed or supervised

the work.

I believe Mr. Dunlap misspoke when he indicated

that this provision is limited to U.S. registered aircraft.

It is not. What is limited to U.S. registered aircraft are

the recordkeeping provisions for foreign repair stations.

That's the section that's cited in the defense brief. That

is not relevant here.

The importance of that distinction is that when an

FAA certified repair station does work on a foreign

registered aircraft, that foreign registered aircraft

 

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necessarily flies over U.S. territory. Questions of

airworthiness are relevant.

One of the provisions that's in Part 145 with

respect to domestic repair stations is a provision which the

Court has that requires a repair station to report any

problems of airworthiness with respect to an aircraft. And

an aircraft is defined, not limited by it's place of

registration, but by the normal definition that we would

expect, which is a device that is capable of flight.

This is relevant because, Your Honor, on the

second page of the package I provided the Court there is a

statutory provision which is found in Title 49 of the United

States Code, and it's Section 44.709. And that provision

specifically states that the administrator of the FAA has

the authority to either amend, suspend or revoke a repair

station's certificate.

It talks about air agency certificates. A repair

station is an air agency. It can do that when the

administrator decides, after conducting an investigation,

that safety in air commerce and the public interest require

that action. That then asks the question: What is air

commerce?

That definition is provided at the bottom of the

second page. Air commerce means foreign air commerce. What

does foreign air commerce means? Foreign air commerce

 

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includes the operation of aircraft in furthering a business

or vocation between a place in the United States and a place

outside the United States when any part of the

transportation or operation is by aircraft.

Again, aircraft is defined under the statute to

mean any device that's capable of flight, or words to that

effect. Importantly, the definition of aircraft is not

limited by its place of registration.

This is important because it shows that the FAA

does have jurisdiction in circumstances involving foreign

registered aircraft, and that would apply to the Aserca

aircraft which would be obligated to fly out of the United

States to return to Venezuela.

We have noted also that in the ICAO Treaty that

there are provisions which give the FAA jurisdiction to act.

I've also included a provision which deals, for example,

with damage to aircraft, which makes it clear, contrary to

the statements of the defense, that the ICAO agreement does

not exclude all FAA jurisdiction.

For example, if in fact, it is sustained or

ascertained that an aircraft in the United States is, in

fact, damaged, which could be determined by a review of the

records, that -- the United States, even though it's not the

country of registry, has a right to bring that information

to the attention of the state of the registry.

 

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The ICAO agreement and the regulations are not --

do not establish a black and white jurisdiction, as it's

been represented. Venezuelan authorities may, under

Venezuelan law, have certain jurisdiction from the

perspective of the Venezuelan authorities, but that

certainly does not preclude the FAA from playing a role,

especially in a case of this nature where documents are

falsified at an FAA certified repair station for an aircraft

which is obligated to fly over U.S. territory.

For those reasons, Your Honor -- I would be happy

to go into more detail or to answer any questions, Your

Honor --

THE COURT: Let's go into the questions raised by

Mr. Dunlap regarding work card 904. He says and he argues

that the FAA does not have any jurisdiction over this

because there was no requirement that the work cards be

filed with the Federal Aviation Authority, the United

States FAA. It is only required that it be filed with the

Venezuelan FAA, and he cites U.S. v. Rogers at 466 U.S.

476.

What is your position with respect to the

requirement? I asked him the specific question in the

record in his argument yesterday at Page 51, and the

question was not artfully drawn. I just said: Were the

work cards required to be filed with the Venezuelan Air

 

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Force, to which he correctly replied, yes, they were.

That was part of the testimony of Mr. Drechsler.

I'm quoting from Page 51 of yesterday's transcript. 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 the aircraft back in service.

The Venezuelan FAA had to inspect it themselves

and determine whether the airplane was put back in service.

I believe part of the testimony was there -- it was some

part of the work package. That had to be finalized and he

had to get them sent back to Venezuela so they can be duly

executed and their counterpart could issue their

authorization for the plane to return to service.

The Court: There was no requirement that they be

filed with the American FAA? Answer, Mr. Dunlap: No,

there was not, none whatsoever. Then it goes on and he

makes his argument on jurisdiction.

I'll ask you the same question then, that is, is

there a requirement under the statutes that you rely upon

that requires these work cards, and specifically the one

referred to in Count II, being R 45904, and I believe

there's another card, was there a requirement that these be

filed with or maintained or kept -- it's a little different

 

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question -- for inspection by the United States FAA?

MR. BRIGHAM: The answer is, yes, there was a

requirement that they be maintained at the repair station,

which is the requirement in general. Rarely are repair

stations required to file the maintenance records with the

FAA itself physically. The provision --

THE COURT: I'm sorry. Repeat that now. There

is or is not a requirement?

MR. BRIGHAM: There is not a requirement.

THE COURT: So, the requirement under all of

these regulations then seems to be that the repair station,

the licensed authorized FAA licensed repair station, is

required, under your analysis of the regulations, to

maintain the records, work cards, other data, paperwork, at

the repair station; is that correct?

MR. BRIGHAM: That's correct.

THE COURT: Is that true whether it is an

airplane like the Aserca airplane that was being

refurbished and rechecked and worked on as well as, say, an

American Airlines or Delta Airlines plane?

MR. BRIGHAM: Yes, Your Honor. What I would

direct the Court's attention to would be the first

provision on page one which is --

THE COURT: So you and Mr. Dunlap have a

diametrically opposed interpretation of the statute

 

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apparently.

MR. BRIGHAM: Apparently, Your Honor.

I believe he felt that that provision was limited

by special language which limited the keeping of the records

to only U.S. registered aircraft.

THE COURT: It may have been the way I asked the

question. I simply said, were they required to file in

Venezuela, and he correctly answered, yes, it was.

The thrust of what I was trying to get at is, it

is your interpretation of these regulations that the repair

facility here in the United States must maintain these

records for inspection by the FAA?

MR. BRIGHAM: That's correct.

THE COURT: And it may also be that they have to

send copies or send something down to Venezuela also, but

they must maintain them for inspection by the United

States?

MR. BRIGHAM: Right. And I rely not only on the

CRF, Your Honor, but also with respect to the statute

that's found in Title 49, which talks about the

administrator's right to amend, modify, suspend or revoke

the certificate of a repair station if he determines, after

investigation, that safety in air commerce and the public

interest require that action.

THE COURT: I understand. Let's focus just for a

 

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moment, all of you, on the proposition that a mechanic

certified on one of these work order forms, specifically in

this instance, R 45904, Government Exhibit 2, that he did

certain work.

Now, if the regulations require that he furnish

that information or that it be available upon inspection by

the FAA, then that is a statement that is being made to the

American FAA. If there is no requirement that he make that

inspection or that they be maintained by the FAA or

anything of the sort, then, that would impact upon the

jurisdictional argument of Mr. Dunlap and other counsel.

What I'm saying is, quite simply, and yesterday

at the conclusion of the argument it would appear that

there was no requirement that this be furnished to or given

to the American FAA, which lends a lot of credence to

Mr. Dunlap's argument.

Now, if the regulations provide otherwise, and

they seem to do that, then this would bolster the

Government's argument that the FAA in America had

jurisdiction over these work cards where the alleged false

statement was made. That's the point of all of this. It's

not whether an inspector could come in and take away their

license or not.

The question is whether or not they were required

by American law to maintain these records, and apparently

 

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they were. Let's move on to something else.

MR. BRIGHAM: Your Honor, that would be our

argument. We don't only rely on that provision. We rely

very strongly on the statute itself which I have quoted to

the Court which we believe is alternative authority, and in

addition, the ICAO Treaty which we have cited, which

demonstrates that the United States, even with foreign

registered aircraft, on airworthiness issues has certain

jurisdiction.

With that, Your Honor, we submit that the Aserca

aircraft document which was, as we have alleged, falsified

would fall within the jurisdiction of the FAA in this

particular case where, in fact, the aircraft is on U.S.

territory and will fly out over U.S. territory.

THE COURT: All right. Ms. Miller?

MS. MILLER: Your Honor, I would like to turn now

to Counts III, IV, V and VI. These counts allege four

distinct false documents that were used and that were made

by SabreTech and its agents concerning oxygen generators.

Counts III and IV relate to aircraft 803. Counts

V and VI related to aircraft 802. And Mr. Eugene Florence

is also charged as an individual defendant in Counts V and

VI.

First of all, Your Honor, I would like to address

the argument by counsel that the counts are multiplicitous,

 

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that the documents in III and IV and then in V and VI are

essentially the same false statement and therefore should

be collapsed into one count.

THE COURT: Excuse me. These four now deal with

alleged false statements; is that right?

MS. MILLER: Yes, sir.

THE COURT: All right.

MS. MILLER: The argument on multiplicity is

incorrect. It was raised pre-trial. The motion was

recommended for denial by the District Court which was

affirmed -- by the Magistrate Court, which was affirmed by

the District Court. Your Honor, I would point out that in

these counts, III, IV, V and VI, we charge not only making

a false statement, but also "knowingly and willfully making

and using a writing and document knowing the same to

contain a false statement," which is a separate prong of

the statute.

Your Honor, there is case law that clearly states

that when this is alleged each document is a separate count.

I have some case citations if the Court wishes them. One is

U.S. v. Guzman, G-U-Z-M-A-N, 781 F.2d, 428, Fifth Circuit,

1986, and of course, that draws on prior Fifth Circuit law

which we have in common with that circuit.

Other cases that stand for this proposition are

United States v. Betenhausen, 499 F.2d, 1223, a Tenth

 

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Circuit Court case, 1974. And the relevant portion appears

at Page 1234. And a third case, Your Honor, is United

States v. Grossman, this is a District Court decision, 154

F.Supp, 813, District of New Jersey, 1957.

All of them state the same proposition, that where

there are two documents each stating the same falsity, there

are two distinct counts and it is not multiplicitous.

Your Honor, moving on to the substance of those

counts, let me address first Counts III and IV which relate

to 803. Now, Your Honor, as the Court has pointed out,

Mauro Valenzuela is not on trial here. What is on trial is,

of course, SabreTech, which is charged in those counts.

For the purposes of SabreTech's liability it is

not really pertinent that it was Mauro Valenzuela who signed

the card. What's pertinent is that it was an agent of

SabreTech that signed that card acting in furtherance of the

business of SabreTech, and that is what the evidence shows.

In any event, there certainly is evidence with

regard to this particular agent's knowledge of the falsity

of that statement, as we have just gone over with regard to

the testimony of Thomas Silvers.

It was further argued, Your Honor, that the

Department of Transportation has no jurisdiction here, only

the FAA does. That is not correct, Your Honor.

First of all, of course the FAA is part of the

 

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Department of Transportation, and further, Your Honor, as we

developed extensively in pre-trial motions, the Department

of Transportation has jurisdiction over the transportation

of hazardous materials which these work cards and

non-routine work cards related to.

With regard to Counts V and VI specifically, Your

Honor, including the liability of the individual defendant

Eugene Florence, the proof is very clear. Eugene Florence

knew that there were no shipping caps, yet he stated in this

work card at that same item B which the Court has earlier

referred to, that shipping caps had been installed on the

firing pins.

Ms. Moscowitz addressed the issue that, well,

shipping caps don't really go on firing pins, they go on a

percussion cap. But as the Court pointed out, the

defendant's statement was unequivocal. He said he had put

shipping caps on the firing pins. There were no shipping

caps. He had not put shipping caps on anything. It was

clearly a false statement with no ambiguity.

There was also evidence, although this evidence is

beyond what the Government has to show, but there is

evidence that Eugene Florence knew of and appreciated the

importance of the shipping caps.

Two witnesses testified, that was Mr. Taber and

Mr. Rodriguez, that Eugene Florence was sitting at the table

 

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working on oxygen generators, wrapping the lanyards, putting

tape on, putting the new generators into the PSUs, at the

time of a conversation when John Taber and Robert Rodriguez

discussed the fact that there were no shipping caps.

They further discussed the fact that SabreTech

management, David Wiles, had been told about this. Eugene

Florence knew of the need for shipping caps. John Taber

testified that as they were working there, there were

generators that had actually gone off in the box and had

melted the plastic heat shield. Eugene Florence told Mark

Gentile following the crash that he worked on 802 and 803

and that there were no shipping caps.

Further, Your Honor, again there are items in the

documents which we have not yet brought out before the jury

but certainly are available for argument and I will now

argue them, if you'll bear with me.

For instance, Your Honor, Eugene Florence signed

an engineering order, which is in evidence, relating to the

oxygen generators in which the item he signed referenced a

particular chapter of the maintenance manual, Chapter 3520.

So, Eugene Florence was representing his knowledge and

appreciation of maintenance manual chapter 3520.

Now, Government Exhibit 104B is Chapter 3520.00.

In fact, that is the only portion of 3520 and therefore it

constitutes 3520.

 

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So Mr. Florence acknowledged appreciation of this

chapter, and this chapter provides further knowledge of the

nature of an oxygen generator. It notes that the generator,

upon initiation, supplies "pure oxygen." It describes how

the generator works. I'm reading from the maintenance

manual selection.

"On initiating the oxygen generator, the firing

pin strikes the primer which fires into and ignites the

enriched starting cone of the sodium chlorate core. As the

core decomposes, pure oxygen is generated and forced through

the filter and into the outlet."

Further quoting, "The mask supplies a mixture of

pure oxygen and ambient air." Further quoting, "Pure oxygen

flows through the oxygen mask reservoir bag within seconds

of such initiation."

Then, the chapter also includes several warnings

that are repeated on the work card, which further gave

Mr. Florence knowledge of the dangers associated with oxygen

generators. It's the same language that the Court read

earlier about Warning: Oxygen generators contain live

ignition trains, when ignited generate housing temperatures

up to 500 degrees Fahrenheit.

THE COURT: Now, when you started in with your

argument on Mr. Florence's knowledge you suggest that he

signed off on something. You've been read from the manual,

 

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the training manual. What is it that he signed off on?

You told me, but I --

MS. MILLER: It's Exhibit 25, and the very first

page is the non-routine work card. This is charged as

Count VI of the indictment.

THE COURT: The non-routine work card.

MS. MILLER: Yes. It's the very first page in

the package. The second page that's got a big tab on it is

the routine work card. This is Count V of the Indictment,

Your Honor, also signed by Eugene Florence.

THE COURT: Let the Marshal hand it to me.

MS. MILLER: Your Honor, the third tab is the

engineering order that Eugene Florence signed where it

said, perform operational checkout per maintenance manual

Chapter 3520. That's where he acknowledged reference to

that maintenance manual.

Finally, Your Honor, at the back of the packet is

tabbed another document that Mr. Florence signed, dated May

5, 1996, in which he signed that he removed all safety caps

from O2 generators after the final drop check. If I may

hand that package to the Court.

THE COURT: Thank you very much. If you'll pause

for just a moment. Thank you.

I have in hand Government Exhibit 25. The first

document appears to be a work card signed May 4, 1996,

 

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allegedly by Mr. Florence, where he states that he removed

and replaced all carbon oxygen generators per ValuJet card

0069. This is what has been referred to as the 802

non-routine work card.

Then the work card itself -- well, then there are

a whole series of documents with part numbers involving

generators, page after page of them. Then the 802 work card

0069 is the same ValuJet MD80 instruction and work card that

we read before, the form part is the same. This one is

dated 5/4/96, and talks -- several warnings are on there

about the live ignition trails, the temperatures up to 500

degrees, use extreme caution, so on and so on.

On that document, Mr. Florence certifies that he

removed the safety caps from the generator primer and

checked the firing mechanism on all the oxygen generators to

make sure they were in cocked position.

Now, the engineering order in Exhibit 25, the

form, what is the significance? I know the signature, but

what is --

MS. MILLER: The significance is Mr. Florence's

signature at the very last line on that page, Your Honor,

where it says -- I might not be quoting it exactly -- but

performed operational check in accordance with maintenance

manual Chapter 35-20. So, the significance of that

document is Mr. Florence's acknowledgment of the provisions

 

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of chapter 35-20, which are the provisions which I have

just gone over with the Court about supplying pure oxygen

and the enriched starting cone.

THE COURT: Then we have the non-routine work

order, 728-H-12-W144.

MS. MILLER: Your Honor, that one does not have

Mr. Florence's signature, although it does have

Mr. Gonzalez's signatures.

THE COURT: Then the non-routine work order for

removal of safety caps from the O2 generators at final drop

down check. This purportedly is signed by Mr. Florence,

and he certifies that he removed all safety caps from O2

generators after final drop check. All right, thank you.

MS. MILLER: Your Honor, if I may take back the

exhibit. That last document, the removal of the safety

caps from the new generators really drives home the

recklessness, the proof of recklessness on the part of

Mr. Florence, because at the same time that -- just a day

earlier, on May 4th, he had lied about shipping caps being

put on the old generators, he never went back and took any

action to use those shipping caps and put them on the old

generators.

As he told Mark Gentile after the crash, there

were no shipping caps on the generators that ended up being

shipped out.

 

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Your Honor, Ms. Moscowitz argued that Eugene

Florence acted in good faith. Legally, I don't believe that

that argument has any place at Rule 29. I think it's more

an argument for the jury. But in any event, Your Honor,

it's truly inapposite because what she is arguing is the

issue of good faith with regard to Mr. Florence's actions in

wrapping lanyards.

This count is not a count saying it was a crime

for him to wrap lanyards. This count is saying that it was

a crime for him to tell a lie; that he lied about putting

shipping caps on. Ms. Moscowitz's good faith argument

simply doesn't address that. It addresses good faith with

regard to something different than the truth or falsity of

his statement.

THE COURT: I think they were suggesting, she and

counsel for SabreTech, that the bad faith and criminal

intent played into the willfulness argument, that is, was

it willful, and the definition of willfulness being that it

was done in bad faith, bad intent to disobey or disregard

the law. They argue that placing oxygen generators on an

aircraft might be a mistake, might be error, but it lacked

criminal intent.

MS. MILLER: Your Honor, that might be an

argument for SabreTech to make, but Mr. Florence is not

charged in that count of -- Count XXIV, of putting oxygen

 

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generators on an aircraft. I think Ms. Moscowitz is making

that argument with regard to the false statement counts and

that does not vitiate a false statement.

In any event, Your Honor, as I noted, it is an

issue for the jury rather than something that is

appropriately entertained at Rule 29.

Your Honor, I would like to move now to the counts

charging SabreTech with willful violation of Title 49,

United States Code, Section 5124.

THE COURT: Is this still under Counts III, IV, V

and VI?

MS. MILLER: No, Your Honor. This is Counts VII,

IX, XI, XIII, XV, XVII, XIX, XXI and XXIII.

A major thrust -- first of all, Your Honor,

counsel has not even disputed the fact that the regulations

cited in those counts were violated. I'll take that back

with regard to Count XXIII. That's a separate issue,

training.

With regard to the other counts, counsel does not

contend nor could they that the regulatory violations

didn't occur. Obviously they occurred. The oxygen

generators were shipped out. They weren't properly marked

and labeled. They exceeded the permissible weight. They

didn't have proper packaging materials, all the things that

those regulations address. Clearly there's evidence of

 

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violation.

Rather, counsel's whole argument is that the

Government has not made a prima facie showing of

willfulness. However, Your Honor, that's not correct.

THE COURT: I just noticed the time. It's 9:21.

Is there any objection to my asking Ms. Kramerman and the

Marshal to go in and excuse the jury for a couple of hours?

MR. MOSCOWITZ: No objection, Your Honor.

MS. RASKIN: No, Your Honor.

MS. MILLER: No, sir.

THE COURT: I've buzzed Ms. Kramerman and as soon

as she arrives I'll ask -- would you go in and ask the jury

to come back at 11:00? Thank you very much. Express our

apologies.

You were talking about Counts VII, IX, XI, XIII,

XV, XIX, and do you want to include XXII?

MS. MILLER: Yes, XVII, XIX, XXI and XXIII, the

odd numbered counts.

THE COURT: All right.

MS. MILLER: First of all, Your Honor, the

defense argues that to prove willfulness the Government

must show that somebody at SabreTech knew of these specific

hazardous materials regulations. Your Honor, that is not

correct.

The case that I called the Court's attention to

 

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last night, a Supreme Court case, makes that quite clear,

United States v. International Minerals. That case makes

the point that when dealing with what they call, I think,

noxious substances, it is enough for the Government to show

that the entity dealing with them knew that the substances

were noxious. That in an of itself suffices to put them on

notice of the need to bring their behavior into conformity.

THE COURT: You are saying now that if the

corporate entity knew that these were hazardous materials,

that's sufficient?

MS. MILLER: Yes, sir, that's correct.

THE COURT: All right.

MS. MILLER: I believe that's right on point with

United States v. International Minerals.

The analogy -- first of all, that case makes the

point that this is the general rule. The general rule, of

course, is that actors are presumed to know the law. There

is no need to show knowledge of specific regulations. The

example they give is, as long as a company knows that it's

dealing with, say -- I think they say hydrochloric acid,

then it's responsible for all the rules that go along with

that.

Now, if in fact they thought that they were

dealing with distilled water and it was actually

hydrochloric acid, then they would not be liable. The

 

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Government must show that they knew that they were dealing

with something hazardous.

Your Honor, the Government has amply proved that

SabreTech, the corporation, knew of the hazardous of these

generators. It knew it from many items of information that

came to many of its employees and that SabreTech is

accountable for as a corporation.

The generators themselves had a warning on them.

This item gets hot. The generators kept going off.

Christopher DiStefano testified to two generators that went

off and initiated in aircraft 830. Robert Rodriguez

testified to one that went off in aircraft 830.

Robert Rodriguez further testified that when they

were doing the clean up of the generators several of them

went off even though, at that stage, the lanyards of many of

them had been tied. John Taber testified that oxygen

generators had gone off in the boxes, melting the plastic

heat shields.

Your Honor, SabreTech also knew of the hazards of

oxygen generators because of its receipt of new oxygen

generators. As you may recall, we had quite a bit of

testimony about the way that new oxygen generators come

packed and labeled. We have in evidence such items as

Government Exhibit 30E, the hazard label that appeared on

the boxes of new generators that Scott Aviation shipped to

 

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SabreTech.

We also have in evidence, Your Honor, Government

Exhibits 48A and 48B, which are photographs of boxes that

new generators had been shipped in that were discovered at

SabreTech following the crash. These photographs were

identified by several mechanics as the way that they saw

these boxes.

You may recall, Your Honor, that I believe it was

Robert Rodriguez who testified that when they were working

with the old generators, taking them out of the insert units

and putting in new generators, they were getting them from

boxes such as these. These boxes, Your Honor, have this

yellow hazard label on them. Although it is taped over in

this photograph, it would not have been taped over when

first received by SabreTech.

In addition, there are other labels on those

photographs. The interior of the boxes, Your Honor, display

the elaborate packing mechanism that further gives notice of

the need for these items to be packed carefully and in

isolation.

THE COURT: What is the exhibit number?

MS. MILLER: This is, Your Honor, 48B. The two

exhibits are 48A and 48B, A being the exterior of the boxes

an B being the interior of the boxes.

In this picture one can see how oxygen

 

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generators -- one can see, just as SabreTech could see, how

oxygen generators are supposed to be packed in these

individual cardboard sleeves. And Mr. Brennan testified

how the generators are not only in these sleeves, they are

rigidly affixed to these sleeves by a plastic shrink wrap

that goes over the cardboard as well.

This is in contrast to the way the mechanics

packed them where they basically just stacked them one on

top of the other with no cardboard separating the

generators one from the other.

Your Honor, further exemplifying the notice to

SabreTech of the hazardous nature of the oxygen generators

is Government Exhibit 49B, which I would like to hand up to

the Court. Your Honor, 49 -- if I may approach the Court or

give it to the Marshal.

THE COURT: Thank you very much.

MS. MILLER: Your Honor, Exhibit 49B came in

through the testimony of Mark Gentile, who testified that

almost immediately after the crash, on May 14, 1996, he

went to Andy Salis, the SabreTech shipping clerk, showed

him that shipping ticket that said "five boxes oxy

canisters empty" and asked, what is this? What does this

refer to?

THE COURT: Who said that?

MS. MILLER: Mark Gentile testified that Salis

 

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said that. Salis was the SabreTech shipping clerk.

Salis immediately had summoned and brought to him

a file that contained this document, Government Exhibit

49A. Government Exhibit 49A is a shipper's declarations of

dangerous goods. It is the shipping ticket that was

accompanying some new generators that had been sent to

SabreTech, thereby evincing Andrew Salis's appreciation of

the fact that the old generators were covered by the

information that appears in this shipper's declaration of

dangerous goods.

Your Honor, this document clearly gave notice to

Salis and to SabreTech of the hazardous nature of oxygen

generators. The document is called a shipper's declaration

of dangerous goods. It's surrounded by a red dash line.

It has the term "dangerous goods" in the text of the

document.

It references the UN number and the hazard class

and the other required information for proper shipment of

oxygen generators and provides further evidence of the

knowledge and appreciation of SabreTech of the hazardous

nature of the oxygen generators.

Indeed, given Mr. Moscowitz's argument, it does

put SabreTech on notice of the several of the regulatory

aspects of these generators, including their UN number,

hazard class and some of the other specified data.

 

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Your Honor, another way in which SabreTech can be

shown to have known the hazardous nature of the oxygen

generators is through the maintenance manuals that it

maintained. These maintenance manual chapters appear in

evidence as Government's Exhibits 104A, 104B, 104C, 104D,

and 104E.

If the Court will bear with me, I will just go

over some of the points that are made in those chapters that

puts SabreTech on notice of the hazardous nature of the

oxygen generators.

THE COURT: Is there a reason you think the Court

won't bear with you, given the fact that I've listened to

you folks for six or eight hours now? You precede every

new introduction of something, if I will bear with you.

I'm just wondering if I have given the impression I am not

bearing with you. It's a friendly question, but I don't

know why.

MS. MILLER: Not at all, Your Honor. Just

yesterday, as I was sitting here, I was thinking it must be

very wearing to get the tides of information from people

and I don't want to wear the Court out.

THE COURT: No, you're not doing that. Go ahead.

MS. MILLER: Government Exhibit 104A, for

instance, is maintenance manual Chapter 3500-00.

THE COURT: These were in the possession of

 

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SabreTech?

MS. MILLER: Yes, Your Honor.

THE COURT: Is that your suggestion, that they

had all of these manuals and therefore they are put on

notice of the hazardous materials?

MS. MILLER: Yes, sir. The Court may recall that

these maintenance manuals were obtained from SabreTech on

August 7, 1996. SabreTech argued that's too remote in time

to associate them with us. The Court ruled that that goes

to weight rather than admissibility and the Government is

entitled to the full probative weight of those maintenance

manuals at this Rule 29 argument.

Government's Exhibit 104A, for instance, provided

that oxygen generators are sodium chlorate oxygen generators

of sufficient capacity to supply oxygen to the mask for a

period of 15 minutes.

Under safety and operation precautions it says,

Warning: Be very careful when you move oxygen generator to

prevent accidental removal of firing pin. Live oxygen

generators contain explosive solid chemicals when generator

is fired. Case temperature can become 500 degrees

Fahrenheit. If generator fires, immediately put generator

on surface that will not burn. Serious injuries can occur

if case is touched.

Then there was some repetition of warnings we have

 

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seen several times before such as, prior to removal of

unexpended oxygen generator install shipping cap over firing

pin to prevent inadvertent initiation of generator.

Warning: On installation of oxygen generator make

sure shipping cap is removed from firing pin prior to

closing oxygen module door.

Here's something that is of particular

significance, Your Honor, this goes to the issue of

hazardous waste. Warning: Oxygen canister contains barium

oxide. Prior to removal of expended oxygen canister make

sure all persons obey all precautions when barium oxide is

used.

The chapter goes on to speak of the hazards of

barium oxide and includes an admonition: Talk with the

local safety department or authorities for the procedures to

discard this hazardous agent. Explicit notice to SabreTech

that this material was a hazard and had to be disposed of as

a hazardous waste, Your Honor.

Then we have a maintenance manual chapter,

Government Exhibit 104B. This is one that I earlier

discussed because this is the one that Eugene Florence also

acknowledged having access in that engineering order.

This is the one that said, upon initiation the

generator supplies pure oxygen. Upon initiating the oxygen

generator, the firing pin strikes the primer which fires

 

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into and ignites the enriched starting cone of the sodium

chlorate core. As the core decomposes pure oxygen is

generated and forced through the filter and into the outlet.

The mask provides a mixture of pure oxygen and

ambient air. Pure oxygen flows through the oxygen mask

reservoir bag within seconds of such initiation. The oxygen

flow rate gradually declines. Again it says, Warning:

Oxygen generators contain live ignition trains and when

ignited generate housing temperatures up to 500 degrees

Fahrenheit.

Your Honor, it is a reasonable inference to make

that a corporation that is in the business of dealing with

oxygen and aircraft in all forms, when it is notified that

it has a device that generates pure oxygen and that is

capable of heating its outer core to 500 degrees, is on

nature of the oxidizing nature of this component and its

capability of enhancing combustion and other materials.

Then, Your Honor, Government Exhibit 104C is

another chapter of the maintenance manual that was found at

SabreTech. This is Chapter 3522-01. It relates to the

removal and installation of chemical oxygen generators.

It has the warning which we have heard several

times about containing live ignition trains. Exercise

extreme caution to prevent inadvertent removal of firing

pin. If generator has not been expended, install shipping

 

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cap on firing pin. Use caution while not to pull oxygen

firing pin while disconnecting lanyards.

Then it has a section, Your Honor, on storing and

disposing of oxygen generators, certainly of great

significance for this case.

It says in that section, "Oxygen generators must

be stored in safe environment. Each unit shall be checked

before placing it in storage to assure that release pin

restraining firing mechanism is correctly installed. All

serviceable and unservivable (unexpended) oxygen generators

are to be stored in an area that insures that each unit is

not exposed to high temperatures or possible damage."

Your Honor, that provision is totally at odds with

the way that SabreTech packaged and shipped these

generators.

The chapter goes on further at item D: "Disposal

of oxygen generator. No oxygen generator is to be disposed

of until it is initiated and chemical core is fully

expended." Then it gives instructions on how to expend.

Notes that during initiation the temperature -- exterior

will reach temperatures in excess of 450 degrees Fahrenheit.

And says, "Area and adjacent surroundings must be free of

oil or other combustible substances that may be hazardous in

an oxygen enriched atmosphere."

Then it goes on to note that an expended oxygen

 

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generator contains both barium oxide and asbestos fibers and

must be disposed of in accordance with local regulatory

compliances and using authorized procedures. In event

oxygen generator cannot be ignited and expended in normal

means or if user has additional questions they are direct to

contact manufacturer for information.

Your Honor, that constitutes explicit notice to

SabreTech that there are regulatory provisions that must be

complied with in the disposition of these generators.

Finally, Your Honor, at Government Exhibit 104D,

which is Chapter 3522-03 of the maintenance manual, that

chapter again provides the warning that unexpended oxygen

generators in insert units contain live ignition trains and

when activated generate temperatures in excess of 500

degrees.

And further provides, if generator has not been

expended install safety cap over primer. Remove safety cap

from generator primer and check that firing mechanism of the

oxygen generator is in cocked position. Note: Safety cap

must be removed or generator will not fire.

Your Honor, to use the analogy to International

Mining, surely at this point SabreTech knows that it is

dealing with hydrochloric acid and not with distilled water.

It is certainly fair and, indeed, required that when we look

at the corporation, we look at the knowledge that all of its

 

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agents had. That is the very essence of the corporation, to

compartmentalize the functions, and that

compartmentalization results in the corresponding

accountability by the corporation for the knowledge of its

compartments.

Your Honor, in light of all of these notices,

certainly the shipping ticket that SabreTech provided, which

I'm showing the Court, which is Government's Exhibit 18F1,

is inaccurate and represents willfulness on the part of

SabreTech in shipping these oxygen generators so poorly

identified.

Obviously, there is no hazard class. There are no

UN labels. There are no weights. There is nothing that

indicates that these are dangerous goods. This shipping

ticket meets none of the requirements of the regulations,

and given the knowledge that SabreTech possessed as to the

hazardous nature of oxygen generators, both expended and

unexpended, this constitutes willfulness.

Your Honor, with regard to specifically these

counts, counsel also argued -- sorry, withdrawn.

With regard to the training counts, Your Honor,

they relate to a regulation. Counsel argued that they apply

only to persons who ship for the shipper. On the contrary,

Your Honor, the regulation also includes employees who

handle hazardous materials and bring them within the ambit

 

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of haz-mat employees.

In any event, Your Honor, this really gets to a

point about Eugene Florence. The work card that was

falsified referred to shipping caps.

Now, we have had a lot of argument from counsel

about how these defendants had no way of knowing and never

dreamed that these items were going to be shipped, yet the

very false statement that they made was that they said that

"shipping caps" had been put on the oxygen generators.

Your Honor, the only case that we really have to

go on -- let me tie this in to the next counts that I'm

going to address. Those are the violations of 49, United

States Code, Section 46312. Those are counts VII, X, XII,

XIV, XVI, XVII, XX and XXII.

Those counts charge SabreTech with acting

willfully, and there is a second prong to the statute

relating to recklessly causing the transportation of

property, in violation of haz-mat regulations, and under

that prong both SabreTech and Mr. Eugene Florence are

charged.

Now, counsel for Mr. Florence argued that he

should not be charged under this count because he did not

contemplate any shipping.

First of all, Your Honor, it is far from clear

that the statute requires that one contemplate shipping in

 

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order to be liable. He is charged with recklessly causing

the transportation and the very word "recklessly" bespeaks a

callous disregard and a non-knowing circumstance. He must

have the requisite criminal intent, but whether he must

contemplate shipping the Government disputes.

In any event, Your Honor, there is evidence that

he contemplates shipping; the false statement that he made,

of course, with regard to "shipping caps." In the only case

that we have --

THE COURT: Tell me this again. With respect to

the charge against Mr. Florence in these counts, VIII

through XXII, the even numbered counts, what is it that you

suggest that the Government must prove with respect to the

individual?

MS. MILLER: Your Honor, I'm going to reference

our jury instructions, if I might, because we set forth

what we believe are the elements there.

THE COURT: Take your time.

MS. MILLER: What we are proposing as the

elements are that Defendant Florence -- this is at proposed

jury instruction number 24. Defendant Florence can be

found guilty of this offense only if all of the following

facts are proved beyond a reasonable doubt.

First, that the defendant recklessly caused the

transportation in air commerce of property containing

 

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hazardous material and --

THE COURT: Recklessly caused what now?

MS. MILLER: The transportation in air commerce

of property containing hazardous material; and second, that

the transportation was in violation of a regulation

relating to the transportation of hazardous materials.

THE COURT: All right. Now then, how do you

suggest that the -- what evidence do you suggest in this

case establishes that he recklessly caused this

transportation or reasonably inferred from the facts in the

case?

MS. MILLER: That by falsely certifying that

these oxygen generators had shipping caps on them he acted

at least recklessly and that his actions contributed to and

caused the transportation of these oxygen generators.

THE COURT: All right. Is it Exhibit 25 that you

rely upon to show that he certified that they contained

shipping caps?

MS. MILLER: Yes, sir.

THE COURT: The non-routine work card?

MS. MILLER: Work card 0069.

THE COURT: Okay.

MS. MILLER: I think I took back Exhibit 25. I

think I left you with Exhibit 26. Again, Your Honor, if I

may hand to the Marshal Exhibit 25, and I have opened it to

 

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that work card.

THE COURT: Now, this certificate, being the 802

work card 0069 purportedly signed by or with a number of

Mr. Florence, certifies 2A through D, the lanyards -- which

part?

MS. MILLER: I think on the first page it's item

B, Your Honor. The first page of the tab, not of the whole

set. Item B, on that page that the Court has opened right

now.

THE COURT: Disconnect firing pin lanyards?

MS. MILLER: No.

THE COURT: B, if generator has not been

expended, install shipping cap on firing pin. You are

suggesting that by signing that, that he caused the

transportation in interstate commerce of hazardous

material.

MS. MILLER: That, Your Honor, and also, I

believe it's the very last page, his certification and -- I

think it's the last page, that it was he who, the very next

day, removed shipping caps from the new oxygen generators.

It was Mr. Florence, Your Honor, more than

anyone, really, who was in a position to make those oxygen

generators safe at that point. He had removed the shipping

caps from the new generators. He did not place them on the

old generators even though he knew that he had just lied

 

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about that the previous day.

Your Honor, what I'm talking about is a work card

that I think is either the very last page or the very last

tab in Government Exhibit 25.

THE COURT: The non-routine work card?

MS. MILLER: Yes. And it says, remove safety

caps from generators following drop test.

THE COURT: Now, by certifying that he had done

that, if the jury should so believe, how does that fulfill

the requirement of proof and burden on the Government to

show that this caused transportation in interstate commerce

of a hazardous material?

MS. MILLER: Because, Your Honor, at that point

the generators had not yet moved to the stores area.

Mr. Rodriguez testified that it was in the days following

that they moved to the stores area.

Mr. Florence had removed the shipping caps, had

the ability to place those shipping caps on the old

generators, did not do so, with the knowledge that he had

just lied about the presence of shipping caps on the old

generators, and that was a critical step in the movement of

these generators in their uncapped stage that culminated in

their placement on ValuJet flight 592.

Again, it was a shipping cap, as stated on the

work cards.

 

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THE COURT: Given the fact that there is some

testimony that some of the workmen, and I'm not sure

whether the defendant Florence was there when this was said

or not, but there is some testimony in here that these

generators were to be dumped, disposed of, the language

that we won't repeat, what would that -- what is the

connection between certifying, let us assume for the moment

falsely that these things had been done, and the

realization or the knowledge that they ended up or could

end up on an airplane?

MS. MILLER: Your Honor, first of all, there is

conflicting testimony as to whether Eugene Florence was

present at that conversation. That was a conversation that

Robert Rodriguez testified about, that Robert Rodriguez

said took place during the clean-up in the last week before

ValuJet flight 592.

Robert Rodriguez testified that that statement

was made while he was working with his whole crew, he

thought also with Eugene Florence. John Taber testified as

to that same clean-up session. Taber acknowledged that he

was there and Rodriguez was there. Rodriguez acknowledged

that Taber was there. They are consistent on that. But

John Taber testified that Eugene Florence was not present

at that time.

In any event, Your Honor, disposition or trashing

 

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of the generators -- I think we remember the term that was

used, it was equivalent to they were going to be trashed --

is not inconsistent with their being shipped. There was

nothing that was said that would lead anyone to believe

that they were not going to be shipped; that they were to

be put in the garbage can, et cetera, et cetera.

THE COURT: Is there anything consistent with the

argument they are going to be shipped? In other words, you

say it is not inconsistent.

MS. MILLER: I think it's neutral, Your Honor.

THE COURT: Well, if it's neutral, then what

would put somebody on notice that that act of labeling

something, assuming for the moment falsely, that that would

cause somebody to later ship these things in interstate

commerce?

MS. MILLER: I think, again, one has to take into

account what it was that the false statement was. It

referenced a shipping cap. And also the fact that Eugene

Florence was the last person in a position to make the

generators safe prior to their further movement.

THE COURT: Now, the testimony in this record, as

argued by counsel, I'm not sure which one, Ms. Moscowitz, I

believe, was that after the labels were put on O2

generators out of date, that the defendant Florence left

the generators for a period of time, perhaps from March

 

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until May, or there about, on a table or in a box near the

airplane or some place near the airplane, and that there's

no connection between Florence's leaving them in a box,

just a jumbled up box there --

Obviously it would be clear that anybody looking

at that box and pile of generators would have to, I think,

assume that they weren't going to be shipped anywhere in

that condition.

Then, when Mr. Salis decided to ship them,

whether it was on instruction by management or not, that

there's no connection between Florence leaving them in a

box piled up there for what may have been over a month, or

may not, I'm unclear on that point, but for a long period

of time, and then piled up there, overflowing, that that

would indicate that there was no intention to ship at all.

It was just sort of a trash bin that they were

putting them in or a storage place that they were putting

them in until they could decide what they were going to do

with them or whatever, and that Florence would have no

connection between that and the actual shipping by

Mr. Salis later on.

MS. MILLER: Well, Your Honor, first of all,

Robert Rodriguez, I believe, did testify that Eugene

Florence was present at this later session. Now, that's

inconsistent --

 

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THE COURT: Later session. Which later session?

MS. MILLER: Robert Rodriguez testified that in

the week after May 4th, sometime between May 4, 1996 and

May 11, 1996, that Jude Casamere, the lead mechanic for the

crew that he was on with Eugene Florence and John Taber and

others, told them, we have to clean this place up. We have

to gather together the loose oxygen generators.

They went on a project of gathering up loose

generators from 803 and from 802. During the course of

that, they put tags on some of them. They put them in

boxes. Robert Rodriguez, I believe, testified that he

thought that Eugene Florence was present.

Frankly, Your Honor, that's my recollection. I

had not checked it last night.

THE COURT: Let's assume that is correct. The

fact that the mechanics all came to clean the place up and

put the stuff in overflowing boxes, as it turned out, where

is there an indication to any of the mechanics doing that,

that these boxes were -- they knew they were going to be

returned to ValuJet because they were ValuJet's property,

according to the record, and they had to be returned to

ValuJet.

But how would anybody know or be charged with the

knowledge that this was going to be then shipped in air

transport?

 

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MS. MILLER: First of all, Your Honor, I

mentioned it not specifically for that point, but because

you were asking me about Ms. Moscowitz's point that he had

nothing to do with the old oxygen generators since March.

And there was testimony --

THE COURT: Of course. They were all involved

throughout. But basically the false statement, now, that

he made, the question is whether or not that fulfills the

requirement of the charge to the jury and the element that

you must prove of recklessly causing transportation in

interstate commerce of hazardous materials.

All right. Now then, Florence is charged in each

of these counts, VII through XXII, the even counts, along

with SabreTech. On Counts VII through XXIII is SabreTech

alone? Just help me out.

MS. MILLER: Yes, that's right, Your Honor.

THE COURT: All right. Now then, and I don't

mean to interrupt your train of thought, but while I'm on

this train of thought, are the elements of the offense of

the even numbered counts, VIII through XXII, with respect

to SabreTech, are they the same elements, that SabreTech

recklessly caused transportation in interstate commerce of

hazardous materials; and two, that the transportation was

in violation of regulations, or is there additional ones?

MS. MILLER: Your Honor, SabreTech is charge with

 

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two means of committing that violation.

THE COURT: First of all, they are charged in all

of these counts.

MS. MILLER: Yes, sir.

THE COURT: And they have these two elements, the

same two elements?

MS. MILLER: What I was referring to is the

statute provides two ways in which the count can be

violated. They are charged with both of them. One is the

same --

THE COURT: Excuse me. Pardon me. What must the

Government show? Let's assume I'm charging the jury. What

am I going to tell the jury about Counts VIII through XXII

with respect to the burden of proof upon the Government to

prove the following elements?

I think I'm going to tell them that the

defendant, SabreTech and Florence, or whatever, recklessly

caused transportation in interstate commerce of hazardous

materials in air transport.

MS. MILLER: Your Honor, our proposed instruction

for SabreTech, the essential elements for SabreTech are,

first, that the defendant SabreTech either:

A, willfully delivered or caused to be delivered

property containing hazardous material to an air carrier or

to an operator of a civil aircraft for transportation in

 

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air commerce, as agreed to unanimously by you, the jury or;

B, recklessly caused the transportation in air

commerce of property containing hazardous material, as

agreed to unanimously by you, the jury; and that such

action was in violation of the regulations related to the

transportation of hazardous material, as alleged in the

Indictment.

THE COURT: So, the elements of Florence are

slightly different than the elements for SabreTech.

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

SabreTech, SabreTech can be convicted on just the

recklessly caused prong, just like Eugene Florence.

We also have alleged willfully delivering and

causing to be delivered property containing haz-mat, in

violation of the regulations. For the same reasons that

willfulness is clearly established with regard to SabreTech

for the odd numbered counts, willfulness is also

established for SabreTech with regard to the even numbered

counts.

THE COURT: Are the actions of Florence in Counts

VIII through XXII essential to the Government's proof of

the elements regarding SabreTech on the same counts?

What I'm getting at is, it appears to me there is

a different set of operative facts that go into the

elements that the Government has to prove. One is, you are

 

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suggesting that with respect to SabreTech you may prove --

or you have satisfied your burden if you prove that

SabreTech willfully delivered or caused to be delivered the

materials.

The delivery by SabreTech could be, I suppose,

considered to be the actions of Mr. Salis and these other

people.

MS. MILLER: Yes, sir.

THE COURT: Whereas with Florence it was

recklessly caused transportation, and the contributory

negligence or operative fact there would be whether or not

he falsely signed or certified to, if that should be the

decision that he did that, whether or not that was -- you

have suggested it was a key element and a key step, but

whether or not it meets the burden of showing recklessly

causing transportation might be a different thing.

I'm just talking out loud. I'm not asking for

comment.

MS. MILLER: Your Honor, I think we have thrashed

that one out.

Your Honor, that leaves us with one more count to

address.

THE COURT: It's 10:06. We have been sitting

here since 8:00. Why don't we take a brief recess.

Mr. Raskin has been shifting back and forth over there. As

 

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you know from your own lives, little boys get edgy more

than little girls. I know that from my granddaughter and

grandson.

So, let's give Mr. Raskin a break. We will take

a brief recess at this point.

[There was a short recess].

COURTROOM DEPUTY: All rise. Court is in

session.

THE COURT: Thank you. Be seated, please.

Ms. Miller.

MS. MILLER: Yes, sir, just one last thing about

these counts on Mr. Florence on Section 46312, those even

numbered counts.

The Government would also point out that

Mr. Florence is charged as an aider and abettor in those

counts as well as directly, and we submit that that is

supported by, again, the reference of the shipping caps in

the work card, and that puts him in the same position as

somebody who might fill the shipping box although claiming

no knowledge that it was going to go on in the shipment.

THE COURT: Thank you.

MS. MILLER: Your Honor, with regard to Count

XXIII, I mentioned that this regulatory count was the only

one as to which SabreTech made a specific argument

challenging the application of the actual regulation.

 

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What they changed was, they said that the

Government had to prove that SabreTech knew that it was a

haz-mat employer. Your Honor, there is no support for that

proposition. It's really another form of the argument that

the Government has to prove that the defense knows of the

individual regulations, which we submit is incorrect.

What the Government has to show is that -- the

willfulness of the defendant SabreTech and that willfulness

is made out by SabreTech's appreciation that its employees

were handling and shipping hazardous materials and had not

received hazardous materials training.

Your Honor, the defenses' premises that somehow

only those who know of regulations can be prosecuted for

their willful violation is, when you think about, it is

really quite perverse. What we would end up with is that

only people like Mr. Brennan, who are actually in the

business of handling oxygen generators, can be prosecuted

for willfully mishandling of them. Certainly the law does

not require that.

THE COURT: 23 deals with training, right, and it

charges SabreTech with failing to train its employees?

MS. MILLER: Yes, sir. And we had testimony from

numerous employees that they had not been trained with

regard to hazardous materials; that they had not been

trained with regard to handling oxygen generators.

 

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I believe Mr. Rodriguez also testified that

SabreTech had not even inquired as to previous training of

his.

THE COURT: Let me turn back just for a moment.

The defense argued, of course, that Section 5124, which is

charged in the odd numbered counts, and 46 -- Section

46312, charged in the even numbered counts, dealt with the

requirement, according to the defenses' interpretation, of

those sections. Can you hear me all right?

MS. MILLER: Yes, sir.

THE COURT: That their vicarious liability was

dependent upon evidence in the record that an employee was

liable. That is the question. This sort of gets back to

where we were before the recess.

The defense says that SabreTech -- Mr. Norman

Moscowitz for SabreTech argued that if you don't find an

employee liable under Section 46312, that you can't find --

if there's not enough evidence to go to the jury with

respect to the employee's liability, that you then cannot

find -- you cannot submit SabreTech's liability to the jury

on the even numbered counts involving Section 46312.

It gets a little involved, but what is your

position?

MS. MILLER: We don't agree with that position at

all, Your Honor. A corporation is comprised of many

 

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actors. To look to a corporation's liability it is

appropriate to look to all the actors and what any actor

knows, the corporation knows.

Counsel made an effort to characterize this notion

of collective knowledge, which is reflected in the Bank of

New England case. They kept saying, well, it's never been

accepted in the Eleventh Circuit, suggesting that it had

somehow been criticized in the Eleventh Circuit.

Your Honor, that doctrine has been universally

accepted wherever it had been dealt with. Counsel cited no

cases adverse to it. I'm not aware of the Eleventh Circuit

having addressed it one way or the other. The Eleventh

Circuit case that SabreTech cited had nothing to do with

that doctrine. It is a sound doctrine and, indeed, it's the

only doctrine that makes sense in light of the nature of a

corporate employer.

In that regard, Your Honor, I would call the

Court's attention to a case and a decision by Judge Fay. It

was not on collective knowledge per se, but I think it's

illuminating in terms of corporate responsibility.

THE COURT: You've gotten to the opinions I read.

I read all of his opinions. That should create havoc in

the Eleventh Circuit when you get there, if you ever do.

What can I say? The truth is the truth. I read them all.

I try to read them all. I read his with more interest than

 

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others because we get to argue about them over lunch.

MS. MILLER: Well, I hope you wouldn't argue with

this one, Your Honor.

THE COURT: What does Judge Fay say?

MS. MILLER: It's U.S. v. Hartley, 678 F.2d, 961,

Eleventh Circuit, 1982. He was discussing a different

issue of corporate liability. It's not the same issue of

corporate liability we have, but he has some general

language that I think is applicable here.

He speaks of the "underlying purpose that led to

the creation of the fiction of corporate personification.

It originated to broaden the scope of corporate

responsibility. We will not use it to shield individuals

or corporations from criminal liability."

That principle is really at play here.

Corporations benefit from collectivity, from aggregating

the actions and knowledge of all of their employees and

agents in order to accomplish their ends. They must be

similarly and complimentarily held accountable for that

same collectivity.

That is the simple principle in the Bank of New

England case which we cited in our memorandum. It is very

well illustrated here, Your Honor. For instance, with

regard to the 46312 counts, we have been discussing what is

it that Eugene Florence knew. But certainly SabreTech knew

 

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many more things than we can show that Eugene Florence

knew.

SabreTech knew, because Andrew Salis was

SabreTech's agent, that the oxygen generators were being

shipped. SabreTech knew that the oxygen generators had all

of the features that were described in those maintenance

manual chapters that I read, including the barium oxide

being a hazardous waste.

SabreTech knew of the -- the way that the

shipping ticket was labeled, that it was saying empty oxy

canisters. SabreTech knew of the shipper's declaration of

dangerous goods, Government Exhibit 49A, which I previously

have given to the Court. So certainly SabreTech's

knowledge is a composite of all the things that its

employees and agents knew.

THE COURT: Now, they sharpen it down to focus

on, and therefore make the statement that unless SabreTech

knew that oxygen canisters were or constituted hazardous

material, that they then had no duty to train. That was

their submission.

Do you perceive the statute to be that focused or

that narrow that it focuses on a requirement that the

Government prove that they knew a canister was or

constitutes hazardous material? And if you do feel that

that is a requirement on the Government, then, do you feel

 

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that has been established in this record?

MS. MILLER: For Count XXIII, what they had to

know, Your Honor, is that their employees were handling and

shipping hazardous materials. For the same reasons that we

elaborated earlier that they understood that what they were

dealing with were hazardous materials, all of that evidence

also applies to Count XXIII.

The maintenance manual provisions, the fact that

the oxygen generators had initiated melting plastic on

their premises, the fact that oxygen generators were

initiating in the airplanes as they tried to clean them up,

the fact of the shipper's declaration of dangerous goods

that explicitly referenced the hazard class, the UN

identification number.

The maintenance manual provisions that told them

that oxygen canisters -- and they use the term canisters

and generators in the maintenance manual -- that they

contained barium oxide which was hazardous, all of those

facts provide an ample basis for a jury to conclude that

SabreTech knew that its employees were handling and

shipping hazardous materials.

THE COURT: What about Count XXIV?

MS. MILLER: First of all, Your Honor, with

regard to Count XXIV, counsel repeatedly referred to this

as one involving an explosive device. The statute actually

 

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refers to destructive device and I believe that was just a

misstatement by counsel.

In any event, SabreTech was on notice of both

explosive and flammable properties of the oxygen

generators. The maintenance manual refers to such, refers

to the term "explosive." We also had Defense Exhibit -- I

forget the number, but it was that Bureau of Explosives

letter that defined oxygen generators as a flammable solid.

Mr. Fogg also testified --

THE COURT: Excuse me. I don't mean to interrupt

you, but before you get to that, you are saying that the

defense focused on explosive material. Well, that's the

Indictment -- that's part of the Indictment, is it not?

The Indictment says, oxygen generators, this is Count XXIV,

"Paragraph 51, oxygen generators are and contain flammable

material, explosive substance and matter of a combustible

and explosive nature." Then you go on with the charge.

Now, I presume that that is what counsel picked

up on and was arguing in their support of their motion,

that you had to prove that it was an explosive substance.

MS. MILLER: That may be, Your Honor.

THE COURT: That's just the defense point of

view. I'm not -- I'm asking you to comment on it.

MS. MILLER: I was just concerned that -- the

statute itself and the gravamen language is with regard to

 

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a destructive device, and explosive is one way in which a

device can be destructive. We have alleged that.

THE COURT: You have alleged that. Have you --

their issue at this point is, have you proven it with such

clarity as to go to the jury under the standard that we

take it in the light most favorable to the Government?

Does this record bear that out?

MS. MILLER: Yes, Your Honor. Government Exhibit

104A --

THE COURT: What is 104A?

MS. MILLER: Maintenance manual chapter 3500-00.

THE COURT: Okay.

MS. MILLER: Live oxygen generators contain

explosive solid chemicals.

THE COURT: Let me go back to one more question I

have on this. Now then, the argument is that -- the charge

is that SabreTech knowingly and willfully caused ValuJet

aircraft N 904VJ to be made unworkable and unstable and

hazardous to work with and used, so that placing and

causing to be placed and making and causing to be made --

and such making and causing to be made will likely to

endanger the safety of ValuJet aircraft 940 -- N 904 VJ.

Basically, that would charge SabreTech with

knowingly and willfully placing the generators on the

aircraft knowing it would cause the aircraft to become

 

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unworkable. Then they argue this explosive device, which

you have already answered.

The defense argument is that this was done with

bad purpose and bad intent to disobey and disregard the law

and that there's no evidence that SabreTech put the

generator on the plane knowing it would cause the plane to

be unworkable and crash.

Salis, they argue, is the only employee of

SabreTech involved and he did not place it on with bad

intent to cause the destruction or unworkability. They say

that the Government has to establish and prove that.

That just sort of summarizes their argument which,

of course, you already know, but what is your possession?

MS. MILLER: First of all, Your Honor, I think

their argument was even broader than that. They continue

to insist that the Government has to prove intent to damage

or destroy the aircraft. I've written a legal memorandum

about this that counsel just seems not to address at all.

It is explicit in the statute that this provision

of the statute does not require intent to damage, destroy

or disable the aircraft. That intent is a provision of a

different provision of the statute which we have not

charged.

If that were not clear enough, Congress has

explicitly spoken to this point in the legislative history

 

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that I cited which says, "The new provision" -- which is

our provision that we have charged -- "does not contain the

requirement that the proscribed act be done with intent to

damage or disable the aircraft, a requirement of current

law."

So they changed the law to remove it.

"Rather, it requires only that the placing of the

destructive device or substance in such a location where,

if the device explodes, it is likely to damage or destroy

the aircraft or any part of other materials used with it."

The omission of the intent element is necessary

to avoid a requirement of proof of those offenses which

would be greater than that required by the Montreal

convention."

Your Honor, in my memorandum I gave the citation

from that. It's a particular Senate report when this

statute was revised to include this provision.

So counsel are simply wrong when they insist that

it is an essential element that the Government prove intent

to damage the aircraft. What the Government has to prove,

as stated in that legislative history, is the placing of

the device in such a location where, if it explodes, it is

likely to damage or destroy the aircraft or any other part

or materials used with it.

That is certainly --

 

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THE COURT: How do we overcome, in dealing with

it conceptually -- how do you overcome, I should say, the

proposition that it was the ValuJet employees who literally

placed this in cargo hold number 1, and that it was not a

SabreTech employee that placed it there? What is your

theory with respect to that?

MS. MILLER: Your Honor, I think that Title 18,

United States Code, Section 2 would cover that. That's the

aiding and abetting statute which also includes causing and

says, one who causes an act to be done is liable for that

act.

If that were not enough, Your Honor, this statute

itself has its own causing provision. The language of the

statute is, whoever willfully places or causes to be placed

a destructive device or substance in, upon, or in proximity

to, and clearly SabreTech intended for that and took steps

to ensure that that cargo would be placed on the ValuJet

flight.

We had the testimony from Mr. Perez that Andrew

Salis wanted him to take it out on Friday, the 10th. He

couldn't take it out until Friday, the 11th. We had the

testimony of Christopher Ramkissoon that there was

conversation with Perez and the SabreTech driver in which

they talked about, well, if it can't go out on this flight,

it will go out on the next flight.

 

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Further, Your Honor, the shipping ticket itself,

which is Government Exhibit 18F1, says, "Ship to ValuJet

Airlines, Concourse C, Gate 28, Hartsfield Airport,

Atlanta, Georgia." This was SabreTech's shipping ticket.

It brought the devices to the ValuJet ramp and clearly

intended them to be placed on that airplane and caused them

to be placed on that airplane, as called for by that

statute.

In short, Your Honor, the Government has provided

evidence that fully supports this count. There is no

ambiguity with regard to the intent that is required. It is

not intended to damage the aircraft. There's evidence of

the explosive nature. There's evidence of the flammable

nature. There's evidence that, in fact, these devices did

act in a destructive way.

The testimony and the legitimately certified

expert opinions of Mr. Fogg provide the jury with the basis

so to conclude.

Finally, Your Honor, counsel argued that there

were no crimes by SabreTech that led to the generators being

placed on the aircraft. That, of course, is not correct.

The failure to mark and to placard these hazardous

materials certainly caused them to be placed on the

aircraft. Even Dennis Segurra, the man who was in the belly

of the cargo hold, testified that he knew hazardous

 

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materials labels. Had those labels been placed on these

boxes they never would have gone on that aircraft, and it

was SabreTech that caused them to be shipped in this totally

inadequate and perilous fashion.

Your Honor, that concludes the Government's

presentation. We submit that all elements of all offenses

have been established and that the motion for directed

verdict pursuant to Federal Rule of Criminal Procedure 29

should be denied.

THE COURT: All right. Now then, as briefly as

you can, Mr. Moscowitz.

MR. MOSCOWITZ: Your Honor, I will be brief. Let

me work backwards.

Your Honor, with regard to the last count, I'm

not making the argument that Ms. Miller claims I'm making,

that this requires a separate requirement that it has to be

shown that the defendant intended to destroy the aircraft.

My only argument is that there is a requirement

under the statute that willful -- knowing and willfull

placing a destructive device on the aircraft and also

willfully making and causing the aircraft to be made

unworkable. That, I believe, is not an element which

requires resort to legislative intent.

What does it mean to willfully place a

destructive device on an aircraft? What does it mean to

 

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willfully make and cause it to be made unworkable? This is

not a question of transferred willful intent. This is

specifically willfully doing that with regard to a

destructive device.

I was thinking of an example. What if somebody

was given a quantity of a controlled substance, let's say a

package of marijuana, and he wanted to take it on an

aircraft. He knew that it was illegal to take it on an

aircraft, so he didn't declare it, but in fact contained in

that marijuana was an explosive device that someone else

had given him, and it was discovered that he had willfully

taken this object on the aircraft but wasn't aware that it

was an explosive device.

Now, he willfully engaged in an unlawful act, but

he did not willfully take an explosive on the aircraft.

Clearly there has to be willfully as being in terms of

taking a destructive device on the aircraft.

Now the larger point, Your Honor, that I did want

to address briefly, and I think we want to brief this in

connection with the jury instructions, is the Government's

view of SabreTech's liability as a corporation for the acts

of its employees. We started with the premise, which we

think is clear, well settled law that a corporation is

vicariously liable if any of its employees violate the law

and commit an offense. That simply is the standard law.

 

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The Government is now proposing what I really

think is a very radical departure from settled law in

reliance on a single case, Bank of New England, which is a

First Circuit case, which is not widely accepted and not

widely followed and has never been cited, even referred to

in this circuit.

In this circuit there have been numerous

corporations convicted of crimes and the issue has not

emerged in a single case involving that, and I submit that

is because that law is not accepted in this circuit.

This concept of Bank of New England, Your Honor,

which the Government proposes, first of all, as argued here

is an extension even of Bank of New England. In the Bank of

New England case, Your Honor, the Court accepted a

collective knowledge theory, but premised on showing that

there the bank had intentionally compartmentalized the

knowledge so that to avoid anyone personally knowing the

facts. It really was a deliberate ignorance theory.

Here, the Government is arguing not deliberate

willful ignorance on behalf of this corporation, which makes

that justifiable. We are simply arguing, you can take

whatever knowledge, innocent knowledge in various places and

aggregate it. That just goes way beyond any settled

exception notion of what corporate liability is.

A corporation is, after all, a legal fixture.

 

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It's a business. It's an entity composed of individuals

interest. A corporation certainly has no sole, but it has

no mind. It can't form intent of its own. Just like there

are individuals who are incapable of violating the law

because they are incapable of forming requisite intent, a

corporation similarly cannot form an intent. It only has

whatever willful bad intent individuals within it has.

The Government's proposal seems to really go

beyond that. Philosophically, I won't get into it now, we

agree corporations should be held accountable for their

wrongs. Congress could have passed a statute holding this

corporation -- the corporation liable for transport under

these statutes without a willfulness requirement. And had

it done so, then the corporation could be found liable,

found strictly liable on the basis of evidence, but not

under a statute which requires a willfulness finding.

I think we will need, Your Honor, to brief this

further, but the Government's theory is not supported by the

law.

I think, though, it is instructive that the

Government relies so heavily on this theory because that's

the only way they can make the argument that there's a

sufficient knowledge or intent because they can't point to

any individual who has the requisite knowledge and the

requisite willful intent to violate any of these statutes,

 

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and we think we have shown that.

One further point, Your Honor. The Supreme Court

case the Government relies on, United States v.

International Chemical, which says that there's no specific

requirement showing knowledge of the regulations, that

crime, Your Honor, under which that -- in which the crime

there is charged is not a specific intent crime. It is

simply a general intent statute.

The Government is clearly right there where, if

this were a general intent crime, willfulness is not

required, there would be no requirement to show knowledge of

the regulations. But the law throughout the United States

and in this circuit is quite clear that for a specific

intent crime there must be a showing of knowledge of the

regulations.

We relied on United States v. Davis, 583 F.2nd,

190, Fifth Circuit, 1978, which was a case under the Arms

Control Act involving the export of a sawed-off shotgun,

where the Court instruct that everyone is presumed to know

what the law requires. The Fifth Circuit reversed saying,

this is a specific intent crime. With regard to a specific

intent offense where willfulness is required, ignorance of

the law is a defense.

There must be a showing that, in this case

particularly, the defendant was aware that a sawed-off

 

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shotgun is on the United States admissions list and requires

an export license. Specifically there the Court

distinguished this statute from, for example, firearms

statutes which make it illegal to possess a sawed-off

shotgun where there is no knowledge requirement of the

regulations.

Since then, the Eleventh Circuit, in a variety of

similar cases, has also held that a specific intent crime

involving violation of regulations is a requirement of

showing the defendant is specifically aware of the

regulations.

For example, the United States -- I'll just rely

on a decision out of this district. United States v.

Zevallos, Z-E-V-A-L-L-O-S, 748 F.Supp 1569, a case decided

by Judge Nesbitt, which is a trading with the enemy act case

which relies on a whole line of Eleventh Circuit cases in a

variety of contexts holding that knowledge of the

regulations is required where a willful offense is charged.

Your Honor, going back to the argument relating to

Mr. Gonzalez on Count II with regard to the Aserca work

card, I believe the Government did not accurately state the

testimony. Again, as we cited the testimony yesterday of

Mr. DiStefano, he doesn't say that Mr. Gonzalez comes into

the work booth with the card signed which he had previously

seen an hour and a half ago.

 

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His testimony was not that he had seen this card

before in the work booth when Mr. Gonzalez left. His

testimony was the first time he saw this card was in

Mr. Gonzalez's office on Mr. Gonzalez's desk when he,

DiStefano, was looking into the office from the outside.

That's the first time he sees it.

THE COURT: Didn't he testify, one of them, that

Mr. Gonzalez came in, took a group of work cards out and as

is his normal practice to hand them out, nothing wrong with

that, took them and put them under his arm, went out and

handed some out. Then later he saw it on the desk in the

work room and then later saw it back in the work room

signed? That's not your recollection?

MR. MOSCOWITZ: Your Honor, Ms. Miller had asked

him specifically when the first time was that he,

DiStefano, saw the de-icer work card, and he said the first

time he have saw it was after he left the booth when he saw

it on Mr. Gonzalez's desk.

THE COURT: Okay.

MR. MOSCOWITZ: So there's no claim that this is

the same card that had been taken out an hour and a half

before.

Now, the second critical point, which I think is

important, that DiStefano testified that this was the first

day the aircraft was in the hangar.

 

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THE COURT: Right. They brought it in and they

cleaned it up outside before they brought it in because

there was a lot of stuff they had to do outside before they

really started tearing it apart.

MR. MOSCOWITZ: That's right. On the direct he

said the first day in the hangar, making it sound as though

work had not yet begun. But then he later testified that

before it was going to the hangar, when it was in this

pre-dock test, that's when a lot of these tests are done.

So, that destroys an inference to his own

testimony that work could not have been done before that

date. Thank you, Your Honor.

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

MR. DUNLAP: Your Honor, I understand that

opening statements are not evidence, but I would like to

briefly restate, the Government thought it important enough

to make the following statement in opening argument.

Mr. DiStefano will testify that the work, that is

on the de-icing, anti-icing work card R 45904, had not been

done previously and that the work was not done. Ms. Heck

said that the Government would prove that the work on R

45904 had not been done. Mr. DiStefano will testify that

previously, that is, prior to the argument inside the work

booth, that the work had not been done. That's at the

transcript of November 16, Volume 1 at Page 97.

 

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That is really the singular most important point

I would like to stress with respect to Count II. The

Government has not shown by any evidence that the work was

not done. Mr. Quan testified that he could not say that

none of the work cards had not been filled out at the time

of the argument.

"Question: Do you at this time have any

recollection whether any of those cards -- other cards were

already filled out or not?

"Answer: No."

That's at the transcript of November 17th at Page

178.

Now, Ms. Heck has stated that Mr. DiStefano

testified in her argument to you here in opposition to our

request for acquittal pursuant to Federal Rule of Criminal

Procedure 29, that Mr. DiStefano stated that no work had

been done on the aircraft prior to the fight. His exact

testimony was about what he told assembled people at a

morning meeting about what his new organizational approach

to paperwork would be.

"Question: -- this is at Page 212, Your Honor, of

the transcript of November 17th.

"Question: At the meeting, did you discuss a time

table for when this would happen? And this is the

reorganization of the paperwork.

 

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"Answer: Yes, just merely that it would start the

day we started working on the aircraft, which would be the

first day I started handing out the paperwork."

This is what he said at that meeting he expected

would happen.

Now, he also testified, as Mr. Moscowitz pointed

out, that the first step in the induction of a plane at

SabreTech is that operational checks are done before the

plane comes in the hangar, while the plane is just out on

the ramp. Before you can bring it into the hangar you have

to do an engine run debrief and that is a normal part of the

induction of an aircraft.

He also testified that at 7:20, at the time of

this argument with Mr. Gonzalez, it had already come into

the hangar. Work had already been done on the aircraft. At

no place in Mr. DiStefano's testimony does he say that work

had not been done prior to the fight on work card R 45904,

and no work could have been done.

He does not testify to that essential critical

fundamental fact in order to prove that Mr. Gonzalez's

signature on that work card constitutes false statements

under 18 U.S.C., Section 1001, no evidence of that.

Similarly, as Mr. Moscowitz pointed out, he does

not even say that he sees the work card R 45904 taken out of

the work booth by Mr. Gonzalez. He first sees it on the day

 

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of the argument on Mr. Gonzalez's desk, first sees it then.

Doesn't identify it as one of the documents Mr. Gonzalez

leaves the work booth with.

As the Court noted, the testimony on those

documents is that they were handed to the mechanics and they

took those documents in a perfectly normal way and went

about their work.

Also, Mr. Drechsler testified, another Government

witness, that a pre-dock is the first portion of an aircraft

inspection and that the work to be done on R 45904 is

preferred to be done at that pre-dock because, like many of

the other pre-dock tests, it determines functional

discrepancies in the plane's components. That's located,

Your Honor, at Pages 99 and 100 of the transcript of

November 18th.

Again, Mr. Drechsler testified that those

components need to be tested, and here it is the pressure

switches, the system low and system high for the anti-ice

system need to be tested so that if they are defective they

can be immediately sent out for repair and back in time for

the release of the aircraft.

Now, in summary, all of this evidence shows that

there is a complete dearth of evidence to establish that the

work was not done, and there is ample affirmative evidence

from the Government's own witnesses to show that the work

 

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was done. There is no statement by Mr. DiStefano that I

know the work was not done before the fight and it could not

have been done. There is only the inference that the jury

could draw possibly that the work may not have been done.

Now, where you have countervailing witnesses

saying one thing and another thing, I think the Court is

correct, the evidence must be considered in the light most

favorable to the Government and the jury is free to believe

one witness over another.

In that vein, the Court talked to Mr. Moscowitz

about the conflicting testimony of Mr. Quan and

Mr. DiStefano about which work card it was that ultimately

was placed on the desk in the box.

But here, Mr. DiStefano's testimony is, at best,

totally equivocal. He just says that I saw the work card on

Mr. Gonzalez's desk and it was placed on a box by him on a

table later on.

Now, Ms. Heck, in her argument, I think

unreasonably characterized the argument with Mr. DiStefano

as a loud lesson, I think that was her opening statement, or

a demonstration that anybody who came up with any new system

would be dealt with harshly. There's no basis in the record

to support that.

Ms. Heck expect or hoped to show, this in her

opening statement, lots of opinion testimony or state of

 

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mind testimony from Mr. DiStefano about why the work system

or the paperwork system that was in place was conducive to

falsifying paperwork.

Now, that evidence was, I believe, correctly

disallowed by the Court, not admissible. It's not in this

record. The inference that she is asking to draw is, I

think, not one that a reasonable finder of fact could

possibly draw. The only reasonable inference is that there

was a fight, a dispute over the organization of paperwork.

Nothing more, nothing less.

It's certainly fair to characterize something that

may otherwise be a normal business procedure, whether it's

pressure or an argument, in the complete context of the

totality of facts in existence in a case. But on the other

hand, we have to be fair when all of the facts, Your Honor,

on a singular point are totally equivocal. I respectfully

submit that a judgment of acquittal is called for.

Your Honor, I've given you my view on Count I.

Count I, obviously, also depends fundamentally on overt act

A, which is the Aserca facts. Absent the -- I mean with the

Aserca facts, there is no agreement, no conspiracy

whatsoever. And certainly Ms. Heck, in her argument, has

shown absolutely no evidence that Mr. Gonzalez joined with

or conspired with anyone on or about May 4th to falsely sign

any cards for the ValuJet aircraft.

 

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Again, the totality of the evidence is that

Mr. Gonzalez simply said, we need to get these work cards

signed after the mechanics said, we are leaving. We are not

reading them right now. Mr. Taber, on cross-examination,

said, no, nobody ever told me to sign cards without reading

them. Signing documents is an integral part of my job and I

never took Mr. Gonzalez's statements to be anything other

than let's get the work done.

Finally, Your Honor, with response to

Mr. Brigham's comments with respect to the jurisdiction, he

characterized my argument as being based on a special

provision in the regulations. The provision I made

reference to repeatedly is not a special provision. It is

the provision through which all the other regs flow and

through which they are created. That is the provision that

provides for the FAA to register an aircraft.

All of the provisions Mr. Brigham refers to flow

solely so the FAA can exercise the power that it's been

given, and that is to monitor and to audit and to register

FAA aircraft. The maintenance of records in a repair

station, the certification of repair stations, comes into

existence solely so the FAA can pursue its mandate of

monitoring these records.

Mr. Brigham makes a reference to broad language in

these ancillary provisions to the code dealing with the

 

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creation of a framework so that the FAA can fulfill its

mandate of monitoring these U.S. aircraft. But the fact

remains that jurisdiction, as articulated in U.S. v. Rogers,

depends on the power of an agency to take action.

In this instance, the Government has offered no

case law, no administrative decision, nothing whatsoever,

Your Honor, to support its claim that the FAA has power to

act, power to act with respect to the documents, the work

cards at U.S. air stations for foreign aircraft.

This, obviously, the Court understands, is an area

where the Government has searched far and wide. The reason

there is this absence of proof here or the absence of

evidence is there's no jurisdiction. They have never acted

in this capacity. They don't take action against U.S. air

stations for anything having to do with foreign aircraft.

No history of this whatsoever. There is no jurisdiction.

For that reason, I would also argue that Count II

of Rule 29 -- of the Indictment should be dismissed alone on

that basis, and also overt act A of Count I should be

stricken and taken from the jury. Thank you.

THE COURT: Count II and count what?

MR. DUNLAP: Count two, Your Honor, and overt act

A of Count I, at a minimum, should be dismissed.

THE COURT: All right. Thank you.

Ms. Moscowitz.

 

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MS. MOSCOWITZ: Your Honor, I always end up in

this last position so I'm only going to say two things.

One is, the evidence is clear that Mr. Salis did

not rely on anything Mr. Florence certified to. We have

been using the word "certified."

One of the facts that we haven't discussed is

this idea that somehow not having the shipping caps changed

the character of the material. These items were hazardous

materials shipping caps or no. There is nothing that

Mr. Florence did that converted them into or out of

hazardous materials.

He is simply unrelated to the independent

decision by Mr. Salis to ship, to transport, to cause the

transportation of the used oxygen generators.

THE COURT: All right. At the outset of my

ruling on the respective motions that have been made on

these 24 counts of this Indictment let me make it perfectly

clear that nothing that I -- that no ruling that I'm now

about to make pertains to the fugitive Mauro Valenzuela.

He is not entitled to any consideration of any

aspect of any phase of his case as it may be since he is a

fugitive. When he is returned or comes back, then he will

get every consideration.

So, therefore, since Valenzuela is named in Counts

III, VIII, X, XII, XIV, XVI, XVIII, XX and XXII, these

 

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rulings have not applicability to him.

With respect to Count I, the conspiracy count

charging all defendants, including Valenzuela to whom this

really does not apply, the motion for a Rule 29 directed

verdict of acquittal at this point is denied.

With respect to Count II of the Indictment

charging only the defendant Daniel Gonzalez, the Court

reserves ruling on the Rule 29 motion for directed verdict

of acquittal until a subsequent time in the case.

With respect to -- going back for a moment. With

respect to Count II, the Court -- and as to any other place

that it may be applicable in these 23 counts, the Court does

find as a matter of law that the work that was being done on

the Aserca airplanes at the repair station operate by the

defendant SabreTech, Incorporated in Miami, Florida, does

fall within the jurisdiction of the FAA and the Department

of Transportation. So this Court does have jurisdiction

under Part 145 of the FAA regulations.

This would also pertain, this ruling, to those

other counts, being III, IV, V and VI.

The Court finds further that the allegations in

Counts III and IV and V and VI, although one of those series

pertains to Valenzuela, and that would be -- Counts III and

IV pertain to Valenzuela. Count III, SabreTech and

Valenzuela are charged. Count IV, SabreTech and Valenzuela

 

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are charged. Count V, SabreTech and Florence are charges

Count VI, SabreTech and Florence.

With respect to those counts, the Court finds that

they are not multiplicitous and rejects the argument of

counsel for the defense upon the multiplicity aspect of

those counts.

I note that this has been ruled upon heretofore by

the Magistrate Judge and by this Court. However, I have

reconsidered the matter in consideration of the arguments

submitted yesterday and today on these counts and make that

determination.

With respect to knowledge, the Court concludes

that the Government has established at this juncture with

sufficiency to mandate denial of the Rule 29 motions on

Counts III, IV, V and VI that Florence and Gonzalez had

knowledge of the dangerous aspect of these oxygen canisters.

MR. DUNLAP: Your Honor, I believe the Court

meant to say Valenzuela and not Gonzalez had knowledge --

THE COURT: Well -- yes, Valenzuela. Pardon me.

Thank you, Mr. Dunlap.

Now, with respect to whether or not SabreTech had

explicit notice or knowledge of the dangerous propensity of

the oxygen generators and the necessity to affix the safety

caps and the necessity to dispose of the oxygen generators,

even the expended oxygen generators properly, I think that

 

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the International Mining case and the other authorities

cited by the Government cover that matter.

And the Court so finds that they had explicit

knowledge and had a duty to store them in a safe place, if

it was shipped, to ship properly, and to dispose of them in

an appropriate manner, label them, and specifically, that

SabreTech clearly had notice of the hazardous material that

they were involved with.

The Court finds that the SabreTech employees who

filled out the information on the shipping ticket and the

other labels when these materials were shipped did not

comply with the regulations.

These rulings are based upon the fact of whether

or not these issues should go to the jury on these matters.

They overlap somewhat into the instructions that will be

given, but that's the finding of the Court with respect to

that.

With respect to Count XXIII, whereas only

SabreTech is charged with failing to train employees

regarding hazardous material, the issue is whether or not

there's enough evidence in the record to go to the jury

respecting the issue of whether or not SabreTech knew that

these oxygen generators were hazardous.

The Court finds that clearly there is sufficient

evidence in the record to have put SabreTech on notice that

 

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they were dealing with hazardous materials, therefore they

had an obligation to train employees in handling and

shipping of hazardous materials. Therefore, the defense

motions with respect to Count XXIII are denied.

With respect to Count XXIV, the Court is persuaded

had by the authorities and argument of counsel for the

Government that an airline or an entity, a corporation that

causes to be placed upon an aircraft hazardous materials can

be found guilty if the jury so believes the testimony of the

witnesses on their credibility, that there is sufficient

evidence in this record and that the airline -- or SabreTech

can or a corporation in the place of SabreTech could be

found guilty even though they may not have had or did not

have the intent, did not have the intent to damage or

destroy the aircraft.

It is sufficient for the Government to prove,

under Count XXIV, that they caused to be placed on an

aircraft or intended for to be placed on an aircraft in

interstate transportation hazardous materials that then can

be, upon proof of that, sufficient facts. The Court finds

there are sufficient facts here to go to the jury on that

issue. They can be found liable under that statute.

Therefore, the motion is denied.

Here, it is noted that it is quite clear that

ValuJet instructed their employees to take the oxygen

 

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containers to the ValuJet airplane at Miami International

Airport with the clear intent for them to be loaded on the

airplane traveling in interstate commerce. They all knew

this was hazardous material and they failed to follow the

regulations.

Now then, going back to Counts VII, IX, XI, XIII,

XV, XIX, XXI and XXIII, where SabreTech alone is charged, I

believe that my last finding covers this, but it is clear

that SabreTech knew these were hazardous materials and that

they did not follow the regulations as required on the

evidence in the record thus far.

So, the SabreTech motions with respect to those

counts just named, the several motions being the same are

hereby denied. That's with respect to Counts VII through

XXIII where SabreTech alone is charged.

Now, with respect to Counts VIII, X, XII, XIV,

XVI, XVIII, XX and XXII, there are three defendants named.

The three defendants are SabreTech, Mr. Florence and

Valenzuela. I've already dealt with Valenzuela.

With respect to the defendant Eugene Florence, the

Court is persuaded that that motion is appropriate and

proper and should be granted. So, with respect to the

Defendant Florence on Counts VIII -- the even numbered

Counts VIII through XXII, the motion is granted, with the

finding that the evidence on these counts in this record, in

 

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the judgment of the Court, does not meet the standard of

proof required even when taken in the light most favorable

to the Government to permit a jury to find that Florence

recklessly caused hazardous materials to be shipped.

The evidence is clear, and I've discussed it

during your argument, that by making what the jury could

conclude were false statements regarding the hazardous

material and the shipping caps does not link up to the

requisite proof necessary for the elements of recklessly

causing transportation in interstate commerce of hazardous

materials.

Now then, with respect to Counts III and IV

charging SabreTech and Valenzuela, I have ruled on those

denying the motions.

On V and VI charging SabreTech and Florence, I may

have covered that. Let's see. Those motions with respect

to SabreTech and Florence are denied.

With respect to the generalized motion made by all

counsel renewing all motions heretofore made either at the

pre-trial level or thereafter, those motions, the Court

makes the same rulings that it made earlier on the

evidentiary matters and/or the other legal matters presented

either to the Magistrate or to this Court.

The record should be clear that counsel have

timely made a renewal of all those motions so as to

 

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eliminate any doubt that they have a right to raise any

rulings therein that are adverse to their respective clients

on appeal should it become necessary.

With respect to that, unless counsel can recollect

anything that I've missed in these 60, 70 rulings, that's

it. Yes?

MS. MILLER: Your Honor, you announced your

ruling with regard to Counts VIII through XXII with regard

to Eugene Florence. You did not announce a ruling on those

counts with regard to SabreTech.

THE COURT: With respect to SabreTech, the motion

is denied for the reasons that I have stated.

MS. MILLER: Thank you.

THE COURT: It is now 11:38. We told the jury to

come back at 11:00. What is your pleasure? Do you want to

try to go forward with a little evidence or do you want to

wait until after lunch?

MR. RASKIN: Your Honor, on behalf of the

defense, we have a couple of brief witnesses that we can

put on or wait, whatever the Court's pleasure.

THE COURT: What do you think we should do?

MR. RASKIN: Given the jury has come back

specifically to hear some evidence, perhaps we should give

them a half hour worth of evidence.

THE COURT: That is fine with me.

 

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105 HETTINGER - Direct

 

MS. MILLER: Your Honor, if I might just step out

for a second while they are coming in.

THE COURT: Mr. Moscowitz, do you have something?

MR. MOSCOWITZ: Your Honor, the first witness is

on crutches. I was wondering if you would like to have her

in the box when the jury comes in.

THE COURT: Perhaps. If it's convenient with

her, she can start coming in now.

Bring in the jury, please.

[The jury returns to the courtroom].

THE COURT: Thank you. Be seated, please.

Ladies and gentlemen, we are sorry we have held

you up this morning, but we are now ready to proceed with

testimony for the defense. Mr. Raskin will proceed on

behalf of SabreTech.

First we will have the witness sworn. She may

remain seated.

THE WITNESS: Pamela Hettinger,

H-e-t-t-i-n-g-e-r.

PAMELA HETTINGER, DEFENDANT'S WITNESS, SWORN.

DIRECT EXAMINATION

BY MR. RASKIN:

Q. Ms. Hettinger, where do you reside?

A. In Prospect, Kentucky. It's a suburb of Louisville.

Q. What do you do for a living?

 

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106 HETTINGER - Direct

 

A. I work for my husband and he is a producer of corporate

shows for sales meetings and things like that.

Q. Do you work full-time for him?

A. Yes.

Q. I refer your attention to the morning of May 11, 1996.

Where were you and what were you doing?

A. We were getting ready to go on a cruise and we were

boarding a flight out of Louisville to Atlanta.

Q. On what airline was that?

A. ValuJet.

Q. The plane landed in Atlanta?

A. Yes, and then we got on the plane in Atlanta for Miami,

was our destination. That's where we picked up the cruise

ship.

Q. What was that flight number, if you recall?

A. 591.

Q. Do you recall the time that you got on flight 591 on

May 11th?

A. No.

Q. Was it in the morning, afternoon?

A. Mid morning.

Q. Were you alone or with someone else?

A. My husband and I.

Q. Do you recall whether or not the flight boarded on

time?

 

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107 HETTINGER - Direct

 

A. Yes. Yes.

Q. It did board on time?

A. Yes.

Q. Did anything unusual happen during the boarding and

take-off process?

MS. MILLER: Objection, Your Honor, to

foundation.

THE COURT: Let's establish if there was a

conversation; and if so, who was present, where it was and

so on.

BY MR. RASKIN:

Q. Where was your seat on that flight, Ms. Hettinger?

A. We were on the left-hand side, looking toward the

cockpit, second row. I was in the window seat.

Q. When you say "second row," was there a first class

cabin or was it all coach?

A. It was all coach.

Q. You were in the second row?

A. Yes.

Q. From where you sat, what could you see?

A. Well, I could see the galley where the flight

attendants work.

Q. Did there come a time when the plane pushed back to

take off?

A. Yes. We did it three different times, actually. We

 

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108 HETTINGER - Direct

 

backed up and then everything would shut down, the lights

and everything and the engines, and then they would push us

back up. That happened three different times.

Q. When you were pushed back or went back to the gate, did

you see anybody come on board?

MS. MILLER: Your Honor, objection to vagueness.

There have been three push backs. Could we clarify which

one we are talking about?

BY MR. RASKIN:

Q. Let's start with the first one. After the first push

back, did you see anybody come on board?

A. Yes.

Q. Who would that be?

A. It was a mechanic. He would come on with something in

his hands and he would pull the panels from the floor and

the wall. There were wires in the panels on the wall that I

could see and he was working in that area, in the galley

area.

Q. That was the first time; is that correct?

A. Yes.

Q. Did there come a time that he left?

A. Well, he would get off the plane when we would push

back again.

Q. Then, what happened the second time?

A. Same thing.

 

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109 HETTINGER - Direct

 

Q. Would you describe again what --

A. Well, he would come back on and, you know, I could see

him come on. I could see his legs and I could see the

panel. I couldn't see exactly what he was doing, but he was

doing something in that area.

Q. When you pushed back the second time, did the same

thing occur as the first time?

A. Exactly.

Q. What was that?

A. Well, all of the lights and the engines would shut

down. Then we would go back in again.

Q. When you say the lights, what lights are you referring

to?

A. Well, like the interior lights of the plane, the lights

that come on with the seat belts.

Q. Was it all the lights?

A. Yes.

Q. Was there a third time that you pulled back and

returned?

A. Yes.

Q. Tell us about that, please.

A. Well, the same thing took place again. At that time

they came on and they said that we would get going, but the

pilot needed to fill out some paperwork, and that's how it

was explained to us, why there was so many.

 

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110 HETTINGER - Direct

 

Q. When you pulled back the third time, what, if anything,

happened?

A. Then the lights went out. It was the exact same thing.

The mechanic still got back on.

Q. Did he work on the panel?

A. Yes.

Q. Did there come a time that you pulled back and the

plane took off?

A. Yes. Yes.

Q. Tell us about the flight from Atlanta to Miami. Was it

eventful or uneventful?

MS. MILLER: Objection, Your Honor, to the

foundation.

THE COURT: Well, she can describe what she saw.

If she gets into a conversation, she'll have to tell us a

little more.

Are you asking her what happened on the flight,

what did she see? Is that the question?

MR. RASKIN: Yes.

THE COURT: Overruled.

THE WITNESS: The flight was very uneventful

until we got to probably about 10,000 feet, because I've

sky dived before and I remember looking down. It was the

Everglades and I knew they were making their final

approach. That's when all the lights in the whole plane

 

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111 HETTINGER - Direct

 

went out, the lights above, all the interior lights went

out.

The flight attendant went to pick up the mike and

it wasn't working, and they looked at each other. There

were two of them up front and they looked at each other and

it kind of gave me a weird feeling, and then she told the

other one to get the bull horn. So she got the bull horn

out of the closet so she could tell the people at the back

of the plane to put their seat belts on because they

couldn't use the P.A. system.

BY MR. RASKIN:

Q. Were there any lights on at that time?

A. No.

Q. Did the lights, if you recall, come back on during the

remainder of that flight?

A. No. No.

Q. What did you notice concerning the condition of that

plane otherwise?

A. Well, where I was sitting, I was sitting in a window

seat and there was a seam close to the window. It was all

put together with duct tape. The seam was all duct taped,

all around my window was duct taped. I didn't really notice

across from -- you know, it was just over there by my seat.

That's all I really paid attention to.

MR. RASKIN: I have no further questions of this

 

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112 Hettinger - Cross

 

witness, Your Honor.

THE COURT: Cross-examination.

CROSS EXAMINATION

BY MS. HECK MILLER:

Q. Good morning, Ms. Hettinger.

A. Good morning.

Q. Ms. Hettinger, you don't know of your own knowledge

what the source of these problems were, do you?

A. No.

Q. And you don't know what repairative or other action the

mechanic took, do you?

A. No.

Q. You don't know what corrective action may have been

taken in Miami after you got off the plane, do you?

A. No, I don't.

Q. You were interviewed by the NTSB and recounted this

information to them, did you not, Ms. Hettinger?

A. Yes.

MS. MILLER: I have no other questions for this

witness.

THE COURT: Redirect?

MR. RASKIN: None, Your Honor. Thank you.

THE COURT: Thank you, Ms. Hettinger. You may

step down.

Do you have another witness?

 

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113 FORMAN - Direct

 

MR. RASKIN: I do. Mr. Forman.

THE WITNESS: Donald Forman, F-o-r-m-a-n.

DONALD C. FORMAN, DEFENDANT'S WITNESS, SWORN.

DIRECT EXAMINATION

BY MR. RASKIN:

Q. Sir, where do you live?

A. I live in a little town called Puyallup, Washington.

Q. How long have you lived in that town?

A. 56 years.

Q. You may have to spell that for the court reporter.

A. P-u-y-a-l-l-u-p.

Q. Mr. Forman, are you currently employed?

A. No, sir. I am a retired boiler maker.

Q. How long were you a boiler maker, sir?

A. 35 years.

Q. Where were you employed?

A. All over the west coast, up and down the State of

Washington, Oregon, and California.

Q. Prior to becoming a boiler maker, were you employed in

any other capacity?

A. I worked for a while at the Boeing Aircraft Company in

Seattle, Washington for a short period.

Q. What did you do for Boeing?

A. I was what they called a jig builder. We built small

jig drill templates for the 727 series aircraft.

 

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114 FORMAN - Direct

 

Q. Did you have any part-time employment during your

contrary?

A. Yes. I spent 21 years as a police reserve director and

supervisor for a little town called Fife, that's spelled

F-i-f-e, just outside of Seattle. It was a volunteer force.

I spent 21 years there.

Q. I refer your attention, sir, to the morning of May 11,

1996. Where were you and what were you doing?

A. I was in the Atlanta airport headed for Miami to catch

a cruise line, and I was flying ValuJet from Atlanta to

Miami.

Q. Were you alone or with someone else?

A. No, I had a friend with me that flew with me.

Q. What flight number did you board in Atlanta on May 11,

1996?

A. Flight 591.

Q. Where were you sitting on flight 591?

A. In the first row starboard side, or right side, seat

1D, I believe it was.

Q. From where you were sitting in the first row, what

could you see ahead of you?

A. Of course, I was looking right in the door of the

cockpit and I could see right to the captain's chair.

Q. You could see right into the cockpit?

A. Right into the cockpit.

 

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115 FORMAN - Direct

 

Q. Sir, do you travel often?

A. I did for many years. I've flown pretty close to a

million miles over 17 years as a business manager.

Q. While you were awaiting takeoff, can you tell this jury

what you saw, what happened?

A. Yes. We were sitting, like I said, my partner and I

were in seats 1D and E, which gave me a full view of the

cockpit area. His was a little bit blocked because of the

wall there. There was a long time we sat at the -- what do

you call it, where they roll out the gate there. We sat at

the gate for quite a while.

I noticed in the cockpit I could see the captain's

steering wheel and the dashboard and I saw the light above

the captain's steering wheel. It's referred to as a go, no

go light, and the light was on. I believe that all the

discussion that took place was about this go, no go light.

MS. MILLER: Your Honor, objection to the

discussion.

BY MR. RASKIN:

Q. Don't tell us about what anyone said to you, but you

certainly can tell us about what you saw.

A. You misunderstood me. I saw the light. What they were

discussing, it doesn't matter, but I saw the go, no go light

on the dash and my partner and I commented on it.

Q. What does it mean when that light is on?

 

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116 FORMAN - Direct

 

MS. MILLER: Objection, Your Honor.

THE COURT: Establish that he knows.

BY MR. RASKIN:

Q. Do you know what that light means?

A. I absolutely do.

Q. What does it mean?

THE COURT: Pardon me. Mr. Forman, tell the jury

how you have information or knowledge about the light you

described.

THE WITNESS: It's on the panel, it's called a

go, no go light. It's installed in there for the purpose,

if there's a problem with that panel --

THE COURT: How do you know that?

THE WITNESS: Working at the aircraft plant in

the 1960s, they were installed at that time.

THE COURT: You've actually installed these

lights?

THE WITNESS: No, sir, but I know what they

represent.

THE COURT: Overruled. You may answer the

question. You may wish to rephrase it.

BY MR. RASKIN:

Q. Please tell the jury what a go, no go light is?

A. It's a light on the dashboard that simply tells the

Captain, hey, look in your panel, there's something wrong,

 

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117 FORMAN - Direct

 

don't take off.

Q. Did there come a time that the plane pushed back?

A. Yes. It pushed back and we started to go out to the

runway. We were back probably a couple of hundred yards

from the gate. The plane stopped, proceeded to put back in

forward and it pulled right back up to the gate.

Q. Did anything unusual happen when you pulled back?

A. When we left, they unplugged the shore power and all

the lights dimmed and everything. The air conditioner

stopped, the little nozzles up at the top.

Q. Talk to the jury, sir.

A. The nozzle on the top that you turn for the air, the

air stopped coming out of there. As we pulled up and

stopped at the gate and plugged back in, then the lights

come up and air conditioner worked.

Q. What happened then?

A. There were some people that come aboard and they were,

evidently, technicians or something. They started to work

in the cockpit area and we spent quite a bit of time there.

Like I said, I keep looking into the cockpit and as they

went in and out this light never did go off.

We were there probably 15, 20 minutes, I believe

it was, and we backed out a second time. The second time

out we got about the same place. When we backed out they

unplugged and the lights went down. The air-conditioning

 

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118 FORMAN - Direct

 

went off out and backed up and she pulled it back into the

gate again. Again, they plugged it back in. Some power

came back up. The air-conditioning came back on and they

rolled the gate up to her again and on come these people and

again --

Q. When you say "these people" who are you referring to?

A. I presume they were ground technicians. I don't know

who they were, but they had blue coveralls on and stuff like

that.

Q. Did they have any tools or equipment with them?

A. In the pocket type tools, pliers, screw drivers, stuff

like that. Not an actual case that I saw.

Q. Did you see what they were working on?

A. I couldn't see exactly what they were working on, but

they would go into the cockpit area. When they were in

there I could still see this light and this go, no go light

was still on on that aircraft. I presume that they were

working to try to get that light to go out.

Q. How many times did this plane pull in and out before

you ultimately took off?

A. I believe the third time we backed out, they unplugged,

power went down, the air conditioner went down and we sat on

the tarmac for 20 to 30 minutes there. I believe there were

some people that came on. We had pulled back up to the gate

again and some people come back on that plane again.

 

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119 FORMAN - Direct

 

Eventually they left and we took off.

Q. Was the door to the cabin open or closed before you

took off?

A. It was open and this light had never gone out that I

know of.

Q. Is it your testimony that the plane took off with that

light on?

A. That's my testimony. When that door closed that light

was not out. When that door closed for us to take off that

light was still on.

Q. Can you tell us about the flight from Atlanta to Miami?

A. Well, as many miles as I've flown, a lot of things you

tend to brush off as wind shear, rough air and so forth, but

about 45 minutes into the flight, maybe a little longer, the

plane took a hard left bank to the port side. It was quite

hard, unusually hard. I had commented to my partner, boy,

that was weird.

MS. MILLER: Objection.

THE COURT: As to what he said he may tell the

jury. Not what the partner said to him. Go ahead and tell

the jury what you said.

THE WITNESS: Anyhow, the Captain pulled the

plane back around, banked it back to the right, leveled it

out and we went on and landed. The landing was not a

smooth landing, but I wouldn't call it a real rough landing

 

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120 FORMAN - Cross

either. We got up to the gate and that was about it.

BY MR. RASKIN:

Q. Tell us about whether or not -- did anything occur with

reference to the electrical system during the course of the

flight?

A. Yes. The lights were coming dim and bright, dim and

light. They never did come to full light like this. The

air conditioning never came on. The speaker system, she

used a megaphone to speak to us, to show us the safety

procedures. The two little gals had to talk through this

megaphone rather than through the speaker system because

there was no speaker system whatsoever.

I don't believe the lights ever came up to full

power. They were dim ninety percent of the time. I had

some concerns because as many times as I have flown --

MS. MILLER: Objection, Your Honor.

THE COURT: Mr. Raskin, next question.

MR. RASKIN: I have no further questions of this

witness, Your Honor.

THE COURT: Cross.

CROSS EXAMINATION

BY MS. HECK MILLER:

Q. Mr. Forman, you're not saying that the cockpit door was

open during the flight, are you?

A. No.

 

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Q. And in fact, the cockpit door closed before you flew,

did it not?

A. Not until we were on the runway.

Q. Did the cockpit door close before you took off?

A. Yes, ma'am.

Q. Now, all the work that you were able to observe the

mechanics doing was in the cockpit area; is that correct?

A. Yes, ma'am.

Q. Mr. Forman, you don't know what, if any, work was done

after the plane got to Miami, do you?

A. No, ma'am.

Q. Mr. Forman, of course, you have not examined any

physical items from the wreckage of this flight 592, have

you?

A. No, ma'am.

MS. MILLER: I have no further questions of this

witness.

MR. RASKIN: No questions, Your Honor.

THE COURT: Thank you, Mr. Forman. You may step

down.

Is this a convenient time to recess?

MR. RASKIN: Yes, Your Honor.

THE COURT: Ladies and gentlemen, we thank you

for your patience. We now should go on rather smoothly

with the jury.

 

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So you will understand, we did go into the

evening a little bit last evening and we were here this

morning at 8:00, so we were not wasting your time. I just

did not anticipate the proper time to bring you back.

That's my fault, not the lawyers' fault.

We are about to recess for the noon recess.

Please remember the instruction not to discuss the case with

anyone, not to permit anyone to have any contact or

communication with you. Please don't talk to any of the

parties, lawyers or witnesses or anybody.

Be careful going down the hall to lunch that you

don't accidently run into someone and make some comment. We

would have to have a big hearing on that and let's try to

avoid that if we can. If there's anything in newspaper, on

television, the radio don't watch it or listen to it and we

will resume this afternoon at 1:30.

Marshal, will you see that they get to the

elevator, please. Thank you.

[The jury leaves the courtroom].

THE COURT: All right. Thank you. Be seated.

Where are we procedurally now, Mr. Raskin?

MR. RASKIN: We have several other witnesses this

afternoon ready to go at 1:30, Your Honor.

THE COURT: Do you anticipate utilizing the rest

of the day with presentation of evidence at this point?

 

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123 PEREYRA - Direct

 

You are not held to it.

MR. RASKIN: I know, Your Honor. Probably, but

we are readjusting as we go.

THE COURT: All right. 1:30 this afternoon.

MR. RASKIN: Thank you, sir.

[There was a luncheon recess].

AFTERNOON SESSION

1:30 P.M.

COURTROOM DEPUTY: All rise. The Honorable Judge

James Lawrence King presiding.

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

your next witness.

MR. RASKIN: The defense calls Fernando Pereyra.

COURTROOM DEPUTY: State your full name, spelling

your last name for the record.

THE WITNESS: My last name is Pereyra,

P-e-r-e-y-r-a.

COURTROOM DEPUTY: First name.

THE WITNESS: Fernando.

FERNANDO PEREYRA, DEFENDANT'S WITNESS, SWORN.

DIRECT EXAMINATION

BY MR. RASKIN:

Q. Mr. Pereyra, where do you reside?

A. I reside in Phoenix, Arizona.

Q. How long have you resided in Phoenix?

 

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A. About two years.

Q. Are you employed?

A. Yes, I am.

Q. Would you tell the jury what you do for a living?

A. I am the Director of Sales for a company called

Aviation Management Systems in Phoenix, which repairs and

maintains aircraft.

Q. Have you been in the aviation industry -- how long have

you been in the aviation industry?

A. Almost 31 years.

Q. Can you describe to the jury your background?

A. I'll be glad to. I began as an licensed airframe and

power plant mechanic in 1969 with a company called Western

Airlines, progressed and maintained aircraft as a mechanic

for seven and a half years, until I received my degree in

aeronautics, then transferred to headquarters in Los

Angeles, and after 16 years, left Western Airlines as a

Director of Tech Services. Went to work for McDonnell

Douglas, the builder of McDonnell Douglas aircraft for about

five and a half years.

Then I went to a company called Lockheed, where a

new maintenance center for Boeing 747 aircraft were being

developed, and I worked there as a Manager of Planning and

Production Control for two years.

Then I later was employed by a company called

 

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Matrix Aeronautica in Mexico. I was asked to open and

operate the maintenance and planning department there. I

did that for two and a half years. Shortly thereafter, I

went to work for DynAir Tech in Florida.

Q. What year was that, sir?

A. That was in 1995.

Q. What was your title when you worked for DynAir Tech?

A. My title was Director of Marketing.

Q. Did you have any other function at DynAir Tech?

A. As far as marketing is concerned, that was the

function, the job that went with that function was marketing

sales contracts proposals and customer service.

Q. Would that have included customer complaints as well?

A. Yes, it would.

Q. Did there come a time that DynAir Tech changed its

name?

A. Yes, it did.

Q. When was that, do you recall?

A. I believe it was in 1995. I believe it was.

Q. What was that name change?

A. It became SabreTech.

Q. Referring your attention to the fall of 1995, do you

recall whether DynAir Tech did business with a company

called Aserca Airlines?

A. Yes, we did.

 

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Q. What is Aserca Airlines?

A. Aserca is a Venezuelan registered airline with a

Venezuelan registered aircraft.

Q. What did you do concerning the Aserca airline

negotiations?

A. My task as Director of Marketing was to seek that

business, develop a contract, a proposal and, indeed, see

that the airplane would come to the facility for the work.

Q. What was the subject matter of your negotiations with

Aserca?

A. All of the subject matter centered around what the

terms and conditions would be for the contract, the proposal

and it also dealt heavily in the financial terms by which

the contract would be executed.

Q. How many planes were you negotiating over?

A. We were negotiating primarily one at a time. There

were to be three to four aircraft.

Q. Do you recall any of the specifics of the contract

negotiations with Aserca?

A. About the only specifics that come to mind that's

significant, I think, would be lengthy discussions regarding

payment terms.

Q. Who did you have those discussions with?

A. With Mr. Jesus Mora.

Q. Who is Mr. Mora?

 

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A. Mr. Mora was the Vice President of Maintenance for the

airline.

Q. Did DynAir Tech ultimately reach agreement to service

one or more Aserca planes?

A. Yes, we did.

Q. Do you know an individual by the name of William

Drechsler?

A. Yes, I do.

Q. Who is Mr. Drechsler?

A. Mr. Drechsler was the technical representative for

Aserca.

Q. Did you have an opportunity to observe and speak with

him during the Aserca maintenance time period?

A. Yes, I did.

Q. Was Mr. Drechsler present during the entire period that

these planes were being serviced by DynAir Tech?

MS. MILLER: Objection, Your Honor. Leading.

THE COURT: Overruled.

BY MR. RASKIN:

Q. You may answer.

A. He was not there all the time.

Q. Do you know where Mr. Drechsler lived?

A. I believe it was Minneapolis.

Q. Do you know where Mr. Drechsler was when he wasn't at

the DynAir Tech or SabreTech facility?

 

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A. Likely --

MS. MILLER: Objection.

MR. RASKIN: Only if you know.

THE COURT: Yes or no, do you know where he

lived?

A. No, I'm not sure.

BY MR. RASKIN:

Q. Okay. Did his absence from the SabreTech facility

cause a problem with the maintenance of the Aserca aircraft?

MS. MILLER: Objection, Your Honor. Relevance.

THE COURT: Well, it's relevant so I would have

to overrule that, but it does call for an opinion.

MS. MILLER: Objection on that ground, Your

Honor.

THE COURT: So are you tendering him as an expert

witness, or not? Otherwise, you can elicit facts from him

as to what took place, day by day.

MR. RASKIN: That's fine, Your Honor.

BY MR. RASKIN:

Q. Sir, at a time when Mr. Drechsler was not present, did

you do anything in response to that fact?

A. Yes, because the representative is required to be

present so he can approve --

MS. MILLER: Objection, Your Honor. Move to

strike the answer as not responsive. The question was,

 

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"did he do anything"?

BY THE COURT:

Q. All right. When a problem would come up from time to

time, -- first of all, did problems come up?

A. Yes, they did, sir.

Q. What did you do about that when you couldn't find

Mr. Drechsler?

A. I notified Mr. Mora that there was a problem with lack

of representation and, therefore, a problem with the

progress of the airplane.

BY MR. RASKIN:

Q. How did you notify Mr. Mora, orally or in writing?

A. I wrote him a letter.

Q. What did you tell him, do you recall?

A. Basically, that --

MS. MILLER: Objection.

THE COURT: I suppose the letter would be the

best evidence. Do you have a copy of it?

MR. RASKIN: I do. May I approach the witness?

THE COURT: Yes.

BY MR. RASKIN:

Q. Sir, I show you what has been pre-marked Defendant's

Exhibit 26 for identification. Do you recognize that

document?

A. Yes, I do.

 

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130 PEREYRA - Direct

 

Q. Whose signature is on that document?

A. My signature.

Q. Tell the jury what that document is?

A. It's a letter addressing aircraft Y. V. 720-C in

reference to the C-Check at our facility.

MR. RASKIN: Don't read it. Your Honor, I move

it into evidence at this time.

MS. MILLER: No objection.

THE COURT: The document is admitted into

evidence as Defendant SabreTech's 26.

[Defense Exhibit 26 received in evidence].

BY MR. RASKIN:

Q. Sir, it's short. Can you read that to the jury?

A. I'll be glad to.

"Dear Mr. Mora: Regarding the referenced aircraft

currently undergoing a C-Check at our facility, the

following requires your immediate attention".

MS. MOSCOWITZ: Is that microphone on? Because I

can't hear, and I'm very --

THE WITNESS: Hello. Am I too far?

THE COURT: Well, if counsel is having trouble,

you know, the jury is. There's a difference of about ten

yards or so.

THE WITNESS: Okay. Shall I start over?

MS. MOSCOWITZ: Do you mind?

 

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131 PEREYRA - Direct

 

THE WITNESS: No.

"Dear Mr. Mora: Regarding the referenced aircraft

currently undergoing a C-Check at our facility, the

following requires your immediate attention:

a) We have had no Aserca representative since the

induction of the aircraft. This is now affecting the

programs scheduled.

b) We have completed ninety-five percent of the

routine C-Check requirements. Initial inspection will

be completed today, December 27, 1995.

c) We have generated over 350 non-routine items

requiring Aserca representative disposition. We have

numerous items which require parts procurement.

d) We are beginning to reduce crew sizes for your

aircraft due to lack of work. Personnel assigned to

your aircraft are being reassigned to other projects or

are being sent home.

Jesus, we urgently need a representative here.

The aircraft schedule is already impacted and will

continue to suffer until action is taken. Please

advise as to what actions we should take.

Best regards."

BY MR. RASKIN:

Q. Sir, why was it necessary for SabreTech to have a

technical representative on site?

 

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132 PEREYRA - Direct

 

MS. MILLER: Objection, Your Honor. Calls for an

opinion.

THE COURT: Do you wish him to be qualified as an

expert or are you tendering him as an expert, or what?

MR. RASKIN: Yes, Your Honor, based on his

extensive aviation background in maintenance facilities

around the country.

THE COURT: Does the government have any voir

dire questions?

MS. MILLER: Not voir dire, but I object to this

as an area of expertise.

THE COURT: The expertise is in. What do you

suggest, Mr. Raskin?

MR. RASKIN: In the necessity to have a technical

representative on site during the course of a maintenance

operation.

THE COURT: All right. So his expertise would be

that of a person involved with maintenance of these types

of aircraft, and knowledge about whether who was necessary

to fulfill the contract which he negotiated or something.

I suppose that's it.

MS. MILLER: Your Honor, I do object to that as

an area of expertise. It's only a veiled way of allowing

Mr. Pereyra to testify as to his side of the business --

THE COURT: Well, let's try it, at this point at

 

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133 PEREYRA - Direct

 

least, with having him tell the jury what problems, if any,

arose and then what happened thereafter. If there was a

delay or not delay, whatever took place. So at this point,

we will sustain the objection, without prejudice to renew

it if it becomes necessary in some field of expertise.

It's pretty straight-forward factual.

BY MR. RASKIN:

Q. What problems were occasioned by Mr. Drechsler's

absence?

A. The problems were lack of approval from the

representative from Aserca to proceed with the new items

found as a result of the inspection of the C-Check, and the

parts, if any, that were required to be ordered and

purchased for that aircraft.

Q. Why was that a problem, sir?

MS. MILLER: Objection, Your Honor.

THE COURT: Why don't you work him through an

example, if you can recall it. An engine or a wing or

something, whatever.

BY MR. RASKIN:

Q. Sir, the contract that you negotiated, was it for

particular maintenance items?

A. Yes, they were.

Q. Were those maintenance items set forth specifically in

the contract?

 

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134 PEREYRA - Direct

 

A. Yes, they were.

Q. And was there a price based on those specific

maintenance orders?

A. Yes, there was.

Q. If one of your mechanics were to find something

different than what was in the contract, what would happen?

A. A non-routine item would be generated which is a

request --

THE COURT: Mr. Pereyra, would you, please, reach

your left hand forward and place it on that microphone, and

pull it back, please?

THE WITNESS: Oh, I'm sorry. It does work.

THE COURT: Now then, you said if a mechanic

needed a wing, he went to the contract and the wing was

down there for $18.53. And if the wing he needed was going

to cost $20.00, what would he do?

A. Basically, it's a bit different, but the contract

called for a routine work to be done, go and inspect an

area. The second portion to that is, if you find a

discrepancy, you must now notify the representative that a

discrepancy has been found, and we evaluate the discrepancy

in terms of labor required to accomplish it, and also any

materials that may be required. That is the area that the

representative was needed for to approve those items.

Without his signature on the work order, the work could not

 

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135 PEREYRA - Direct

 

proceed.

BY MR. RASKIN:

Q. That's the reason for your writing that letter?

A. That is correct.

MS. MILLER: Objection, Your Honor. Leading.

THE COURT: Well, overruled.

BY MR. RASKIN:

Q. What's the date on that letter, sir?

A. This letter is dated, I'm sorry, I've got to get my

glasses, December 27, 1995.

Q. That was SabreTech Exhibit 26, sir?

A. That's what it says.

Q. Did there come a time thereafter, that you received a

letter from someone at Aserca Airlines?

A. Yes, subsequent to this, I received a hand-written

letter from Mr. Drechsler addressed to the Vice President of

Marketing.

Q. I show you what has been marked in evidence as

Government Exhibit 2 F, and ask you if you recognize it?

A. Yes, it looks like the letter I received.

Q. Did you have any discussion with anyone at Aserca

Airline concerning that letter?

A. Yes, I did. I went directly to Mr. Mora.

Q. Without telling me what Mr. Mora said, what did Aserca

do as a result of your conversations?

 

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136 PEREYRA - Direct

 

A. Basically, we would schedule a meeting within a few

days in Miami with Mr. Mora to discuss the letter, and

basically, Mr. Mora understood the contents. He understood

our position. The matter was cleared up then, and nothing

further said.

Q. Were any other Aserca employees involved in the

maintenance of those aircraft thereafter?

A. There was a representative of Aserca subsequently sent

to DynAir to assist with the airplanes.

Q. Were there anymore contract negotiations thereafter

with Aserca and SabreTech?

A. Yes, there was.

Q. And tell us about that.

MS. MILLER: Objection, Your Honor.

THE COURT: Lay a predicate, when, where, and who

was present.

BY MR. RASKIN:

Q. Following your conversation with Mr. Mora, did

SabreTech endeavor to do further business with Aserca?

A. Yes, we did.

Q. When was that?

A. It was a few weeks after that.

Q. What was those negotiations?

A. We were negotiating for follow-up aircraft, potentially

one to two more.

 

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137 PEREYRA - Cross

 

Q. What was the result of those negotiations?

A. Ultimately, the payment terms became an issue and

subsequent to that, Aserca found another location to do it.

MR. RASKIN: I have nothing further of this

witness.

BY MR. RASKIN:

Q. One moment. Sir, who approached who, concerning that

third aircraft?

A. Aserca approached me.

MR. RASKIN: Nothing further.

CROSS EXAMINATION

BY MS. HECK MILLER:

Q. Mr. Pereyra, you're not saying that Bill Drechsler was

not ever at DynAir Tech in the autumn of 1995, are you?

A. No, I'm not.

Q. He was there, was that correct?

A. He was there.

Q. In fact, he was there as recently, before your letter,

as December 26, wasn't he?

A. I believe he was.

Q. In fact, Mr. Drechsler had come back on December 26,

the day after Christmas, and was disappointed and expressed

concern at what he found there, did he not?

A. I believe he did.

Q. And he left shortly thereafter, is that correct?

 

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138 PEREYRA - Cross

 

A. I don't recall that.

Q. Was he there on the 27th when you wrote your letter?

A. I don't recall if he was there or not.

Q. But you knew Mr. Drechsler was very unhappy at that

point, didn't you?

A. Yes, I did.

Q. He was unhappy because he had been led to believe that

there would be a full crew working on his airplane when he

came back early from Christmas, isn't that correct,

Mr. Pereyra?

A. I don't recall that.

Q. Did you recall that he was unhappy because he felt

there was not enough crew working on his airplane when he

came back from Christmas early?

A. No, I don't recall that.

Q. Now, when you got the letter that Mr. Drechsler sent

you, Government Exhibit 2 F, do you have that in front of

you, the handwritten letter?

A. Yes.

Q. What did you do with that letter?

A. I initiated an investigation internally.

Q. With whom did you share that letter at SabreTech?

A. I shared that with Danny Gonzalez and a gentleman by

the name of Manny Castinero, Director of Planning and

Production Control.

 

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139 PEREYRA - Cross

 

Q. Were you concerned about the things in this letter?

A. Yes, I was.

Q. Were you concerned when it said that "we have DynAir

paperwork showing work completed and inspected and not

accomplished"?

A. Yes, I was.

Q. Now, Mr. Pereyra, in your letter, SabreTech Exhibit 26,

do you have a copy there in front of you?

A. Yes, I have it.

Q. On the 27th, you wrote, "we have completed ninety-five

percent of the routine C-Check requirements," do you see

that?

A. Yes, I do.

Q. However, that aircraft, YV720C was not ready for a long

time thereafter, isn't that correct?

A. I don't recall that.

Q. Do you recall that it was not ready for test flight

until March of 1996?

A. I don't recall that.

Q. Mr. Pereyra, I'm handing you a document. Your Honor,

I'm going to mark this for identification purposes as

Government's Exhibit 110, and I'm sorry, it's very faint.

MR. DUNLAP: I'm sorry. Can we look at it first?

MS. HECK MILLER: Mr. Pereyra, I'm going to ask

you to look at it. It's a very faint copy, but if you

 

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140 PEREYRA - Cross

could take a moment and look at that document, and tell us

if you recognize it.

BY MS. HECK MILLER:

A. I recognize what it is, but not specifically this

document.

Q. Do you recognize it as a record of SabreTech?

A. It appears to be.

Q. Do you recognize that form as a SabreTech form?

A. It appears to be.

Q. Are you familiar with that form and is that the form

that you encounter when you worked at SabreTech?

A. I may have.

Q. Did SabreTech maintain this type of record in the

course of it's regular business activity?

A. I believe they do.

Q. Was that record made at or about the time of the events

that it reports?

A. This particular one, I don't know.

MS. MILLER: Your Honor, government offers

exhibit 110 into evidence.

MR. RASKIN: Lack of foundation, Your Honor.

THE COURT: I believe the witness said --

BY THE COURT:

Q. Can you identify that document? Have you seen that

document before?

 

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141 Pereyra - Redirect

 

A. Not specifically, that one. No.

Q. Do you know anything about who sent it or who received

it?

A. No, sir.

Q. When is the first time you saw the document?

A. Just now.

MS. MILLER: Your Honor, I do believe that the

witness recognized it as the type of document that

SabreTech generated, and that he was familiar with that

type of document which, I believe, meets the business

record predicate.

THE COURT: The objection is sustained. Next

question.

BY MS. HECK MILLER:

Q. When was work completed on 720?

A. That I don't recall.

Q. Was it in January?

A. I don't remember.

Q. Could it have been as late as March?

THE COURT: He said he didn't know. He's

answered the question. Next question, please.

MS. MILLER: No further questions.

THE COURT: Redirect?

REDIRECT EXAMINATION

BY MR. RASKIN:

 

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142 Pereyra - Redirect

 

Q. Sir, Ms. Heck asked you, whether or not Mr. Drechsler

was unhappy. Do you recall that question?

A. Yes, I do.

Q. Are you aware of any other reason that Mr. Drechsler

might have been unhappy?

A. Yes, I am.

Q. What is that?

A. Mr. Drechsler was unhappy in general with DynAir.

Q. Why is that?

A. My understanding is, from conversations --

MS. MILLER: Objection, Your Honor.

THE COURT: Yes, this is what we get into with

somebody unhappy or not. It may be that they didn't get a

good nights sleep. The wife didn't cook breakfast for him.

We get off into so much, but, perhaps, you can elicit some

specific facts he knows about, rather than his opinion

about happiness.

BY MR. RASKIN:

Q. Do you know whether or not Mr. Drechsler formerly

worked for DynAir?

A. Yes, he did work for DynAir.

Q. Do you know whether or not he left of his own volition

or was asked to leave?

MS. MILLER: Objection, Your Honor.

BY THE COURT:

 

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143 Pereyra - Redirect

 

Q. Well, did you have anything to do with his leaving?

A. No, I did not.

Q. Were you involved with hiring or firing or anything

like that?

A. No, sir.

THE COURT: Next question.

BY MR. RASKIN:

Q. Yes, Your Honor. Was there any issue before release of

this plane, with receipt of payment?

A. Yes, payment was an issue.

Q. Was payment received timely under the contract?

A. No, it was not.

Q. Did DynAir release the plane before you got payment?

A. No, we did not.

Q. Did all of Aserca checks clear the bank?

MS. MILLER: Objection, Your Honor. This is

outside the scope of cross and irrelevant.

MR. RASKIN: Your Honor, we are going into,

again, the number of happiness questions, and how long that

plane was there, and whether or not it was delayed, and why

it was delayed.

MS. MILLER: Your Honor, then we are going to get

into other issues relating to these disputes that are --

THE COURT: I would sure like to stick with

facts. A fact would be that Mr. Pereyra took out his

 

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144 Quintana - Direct

 

special thermometer that he keeps in his desk which is a

happiness thermometer, and he jabbed it in the appropriate

place of Mr. Drechsler and he read off, and it came to

98.6.

That would be a fact, you see. Well, we haven't

established that he's got a happiness thermometer. We

haven't established that he jammed it into the appropriate

place. And we haven't gotten a reading. Until we do, I

think we abandon people's opinions about happiness. Let's

just strike all the happiness out of the record. Now,

let's go on --

BY MR. RASKIN:

Q. Was this plane withheld pending payment?

A. Yes, it was.

MR. RASKIN: Nothing further.

THE COURT: You may step down. Next witness.

MR. DUNLAP: Mr. Gonzalez calls Manny Quintana.

COURTROOM DEPUTY: Please be seated. State your

full name, spelling your last name for the record.

THE WITNESS: Manny Quintana, Q-u-i-n-t-a-n-a.

MANNY QUINTANA, DEFENDANT'S WITNESS, SWORN.

DIRECT EXAMINATION

BY MR. DUNLAP:

Q. Good afternoon, sir. How are you?

A. Fine, sir.

 

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Q. I need you to speak up and speak right into the mic so

we can hear you.

A. Yes, sir.

Q. Would you begin by telling us a little bit about

yourself. How old are you?

A. 39.

Q. What do you do for a living?

A. I market landing gear and touring for a company called

A and R.

Q. You are in the aviation business?

A. Yes.

Q. Do you have any certifications that you hold in the

aviation business?

A. I hold an A and P mechanics' license.

Q. Slow down and speak up.

A. I hold an A and P mechanics' license.

Q. Airframe and power plant license?

A. Yes, sir.

Q. When did you become licensed as an airframe and power

plant mechanic?

A. 1985.

Q. Who were you working for at that time?

A. United States Army.

Q. What type of work were you doing in the army?

A. Helicopter mechanic.

 

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Q. Did there come a time when you left the army?

A. Yes, sir.

Q. Did you continue after you left the army to work on

aircraft?

A. Yes, sir.

Q. And where did you find employment after you left the

army?

A. AirTech, Miami, Florida.

Q. Where was AirTech located?

A. Approximately 36 Street, Miami International Airport.

Q. The facility that ultimately became DynAir Tech?

A. The old facility, yes.

Q. Did you continue to work there for a while?

A. Yes, sir.

Q. What was your position there?

A. Mechanic.

Q. What type of things did you do as an avionics mechanic?

A. As an A and P mechanic, I would -- aircraft maintenance

on different type of aircrafts.

Q. Did you do C-Checks?

A. Yes, sir.

Q. Did there come a time when you left AirTech, and went

to another place?

A. Yes. I left AirTech about a year and a half later and

went to Eastern Airlines, a year and a half later.

 

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Q. What did you do at Eastern Airlines?

A. A and P mechanic.

Q. Were you a line mechanic?

A. No, I was a C-Check mechanic.

Q. You worked on C-Checks, right?

A. Yes, sir.

Q. Could you explain to the jury the difference between

line maintenance and heavy or C-Check maintenance?

A. Line maintenance is maintenance that is performed on

the line on anything that has happened during the flight or

you walk around the aircraft. It's just minimal kind of

maintenance. C-Checks are major repairs and major

inspections of the aircraft.

Q. So line maintenance would be where an aircraft has a

problem or discrepancy that occurs, and they pull it in, get

it fixed, and leave again?

A. Correct.

Q. Heavy maintenance is where they bring the plane in, the

aircraft company signs a contract, and the plane comes in

for --

THE COURT: I think you are leading him very far

up field. Let him tell us.

THE WITNESS: A C-Check is heavy maintenance. It

consists of numerous phases of checks and services on the

aircraft. Line maintenance is basic service and

 

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troubleshooting repair on the line of any problems that

arise during the flight or during the walk around of the

aircraft or any pilot reports.

BY MR. DUNLAP:

Q. Did there come a time when you left employment with

Eastern?

A. Yes, sir.

Q. Did you find a job thereafter in the aircraft business?

A. The same week I went to work for DynAir Tech.

Q. That's the same DynAir Tech that was located on

Northwest 36th Street?

A. Yes, sir.

Q. What did you do for DynAir Tech?

A. I began as a mechanic.

Q. What year was that?

A. Approximately, March 1989.

Q. Did you progress, move up through the ranks in the

mechanics' section of DynAir?

A. Yes, sir I was promoted to lead mechanic.

Q. In charge of a crew of mechanics?

A. Yes, sir.

Q. Later on, did you move up further?

A. I moved up to a supervisor position.

Q. Again, what does a supervisor do as compared with what

a lead mechanic does?

 

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A. The lead mechanic manages the crew, manages the crew on

the aircraft, the individuals. The supervisor manages the

aircraft that might include more than one crew, making sure

the parts are coming in. It's a little bit more detailed

than lead mechanic.

Q. When did you get promoted to be a supervisory mechanic

at DynAir Tech?

A. Less than a year, or a year after I started.

Q. So that would be about 1990?

A. Approximately, yes.

Q. Did there come a time when you were promoted to a

higher position at DynAir Tech, above a supervisory

mechanic?

A. I was promoted to project manager.

Q. When were you promoted to project manager of DynAir

Tech?

A. About a year and a half, or a year after that.

Q. 1992, approximately?

A. Approximately.

Q. Could you please tell the jury what a project manager's

duties are comparing hem to the duties of a supervisor?

A. Project manager flows the paperwork in the booth.

Flows the maintenance of the aircraft, assigns different

tasks to the supervisor to be carried out on the aircraft.

It's a more detailed position. The project manager might

 

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have more than one aircraft they are working on at the same

time.

Q. So since 1992, you have been a project manager?

A. Plus or minus.

Q. You were a project manager at DynAir Tech?

A. Yes, sir.

Q. And DynAir Tech eventually became SabreTech?

A. Yes, sir.

Q. And when did you leave -- did you leave SabreTech?

A. I left SabreTech, yes.

Q. When did you leave it approximately?

A. Approximately, April '96.

Q. Up until that time, you were a project manager at

SabreTech?

A. Yes, sir.

Q. During your employment as a project manager at

SabreTech, and as a supervisor at SabreTech, did you work on

C-Checks?

A. Yes.

Q. Do you understand all the various components of

C-Checks?

A. Yes.

Q. Let me ask you. Are you familiar with a particular

phase of a C-Check called the pre-dock phase?

A. Yes, sir.

 

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Q. First of all, before we go to that, what is the term

"dock," what does that mean?

A. Dock is where the aircraft eventually ends up inside

the hangar.

MR. DUNLAP: May I approach the witness, Your

Honor?

THE COURT: Yes.

BY MR. DUNLAP:

Q. Let me ask you to make reference to this chart, which

is Government Exhibit 71. Does this fairly depict the

layout or part of the layout of the SabreTech facility?

A. It looks familiar, yes.

Q. What is up here on the north, what street?

A. 36th Street.

Q. Around the facility, it says ramp, west ramp, south

ramp?

A. Yes, sir.

Q. Is the ramp a large extensive area or is it only?

A. It's pretty large.

Q. Is it bigger than depicted here, a little larger?

A. Yes.

Q. You mentioned the dock. What is the dock area again?

A. The dock is where the aircraft would be parked inside

the hangar.

Q. The dock is the area in inside the hangar?

 

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A. Yes.

Q. Now I was asking you to describe a phase of a C-Check

called a pre-dock. Where does the pre-dock occur?

A. A pre-dock is accomplished outside the hangar.

Q. Approximately how long does the C-Check usually take,

on the average?

A. From 10 to 30 days, depending on the aircraft.

Q. Could you give us a general description of what work is

accomplished during a pre-dock?

A. Engine runs, operational checks, that type of stuff.

Q. Are work cards signed off on during this phase?

A. Yes.

Q. Routine work cards are completed?

A. If the job is accomplished, yes.

Q. What happens if during the completion of a routine work

card on a pre-dock, you find something wrong on the plane?

What occurs as a general course of this?

A. They generate a non-routine card.

Q. That's a different type of a card?

A. A none scheduled maintenance.

Q. You said the phases were, you run the engines?

A. That's part of it.

Q. Is that also referred to as the engine run up?

A. Yes, sir.

Q. May I approach the witness again, Your Honor?

 

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THE COURT: All right.

BY MR. DUNLAP:

Q. Looking back at this chart again, was there a

particular place at the SabreTech facility where the engine

run ups would occur during the pre-dock?

A. There's a blast fence on this quorum.

Q. Could you put your finger on it? Where is it? What is

a blast fence?

A. It's where you are able to take the engines to take off

power. It deflects the exhaust upward.

Q. What does the fence look like?

A. It's like a slanted wall.

Q. It deflects the exhaust from the engine?

A. Yes, sir.

Q. You mentioned that also operational checks, some

operational checks are done on the plane during the

pre-dock?

A. Yes, sir.

Q. Is an operational check the same thing as a functional

check?

A. Very similar.

Q. What is the first thing that happens to an aircraft

when it is received or arrives at SabreTech?

A. Receiving inspection.

Q. What does that mean?

 

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A. You have a team of inspectors inventory the aircraft

and inspecting the fuselage, and the external and interior

part of the aircraft.

Q. Do they make notes of the damage that they see at that

time?

A. Yes, sir.

Q. What happens next?

MR. BRIGHAM: Objection. This is opinion

evidence. This person is not that qualified.

MR. DUNLAP: I would submit he is qualified

because he has done --

THE COURT: Do you tender him as an expert?

MR. DUNLAP: Yes, sir, I do.

THE COURT: If you don't do that, you can't ask

--

MR. DUNLAP: I tender him as an expert.

THE COURT: You tender him as an expert. Do you

have any voir dire questions you wish to ask him.

BY MR. BRIGHAM:

Q. Sir, have you ever worked on the Aserca aircraft at the

SabreTech facility?

A. No, sir.

Q. Sir, have you ever, at any time, worked with

Mr. Gonzalez on that aircraft?

A. No, sir.

 

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MR. BRIGHAM: Your Honor, this witness is not

qualified to testify about the aircraft.

THE COURT: On an Aserca aircraft, but he is

being asked his opinion about C-Checks, and procedures. I

think he is qualified. The objection is overruled. We

will recognize Mr. Quintana as an expert in the field of

C-Check repairs, routine line maintenance and other

airplane maintenance on the aircraft of the type that are

involved.

BY MR. DUNLAP:

Q. Now, during the engine run ups, are certain operational

checks or functional checks done then?

A. Pardon me?

Q. Are certain operational and functional checks done

during routine, during the run ups?

A. Yes, sir.

Q. Now, Mr. Brigham asked you about Aserca Airlines?

A. Yes, sir.

Q. Were you aware that, in and around the fall of 19, the

fall or winter of 1995, SabreTech was doing a C-Check or

series of C-Checks on two Aserca DC-9 aircraft?

A. Yes, sir.

Q. Were you also aware that an individual named Chris

DiStefano for a time was in charge of supervising the

maintenance on those planes?

 

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A. Yes, sir.

Q. Did you become aware that at a time, he had a

disagreement with Mr. Gonzalez?

MR. BRIGHAM: Objection. Leading, Your Honor.

THE COURT: Sustained.

BY MR. DUNLAP:

Q. Did Mr. DiStefano remain the supervisor on the Aserca

project, if you know, until the end of the job?

MR. BRIGHAM: Objection. Leading.

THE COURT: Overruled. You may answer the

question.

THE WITNESS: He was moved from the position.

BY MR. DUNLAP:

Q. Were you aware of that when it occurred?

A. Yes, sir.

Q. Did there come a time in 1995, when you saw an Aserca

aircraft at the blast fence?

A. Yes, sir.

MR. DUNLAP: May I approach the witness again,

Your Honor?

THE COURT: Yes, sir.

BY MR. DUNLAP:

Q. When did you see the aircraft at the blast fence in

relation to when Mr. DiStefano was relieved of his

responsibilities as the supervisor?

 

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A. About three to four days approximately before he was

moved from the position.

Q. Three to four days before that, you saw the airplane?

A. Yes.

Q. Now again, where was the blast fence?

A. The far corner.

Q. Where were you so that you could observe?

A. In the hangar.

Q. Were the engines running?

A. Yes, sir.

Q. Did you observe the plane move from the blast fence?

A. It taxied to the west point.

Q. When you say it was taxied, it was driven in?

A. Yes, sir.

Q. When it got to the hangar, did you see who was at the

controls of the airplane, driving it into the hangar?

A. Danny Gonzalez was in the left seat.

Q. Danny Gonzalez. Do you see Danny Gonzalez in the

courtroom here? Would you point him out?

A. The gentleman with the tie.

Q. Mr. Gonzalez?

A. Yes.

MR. DUNLAP: May the record reflect that the

witness has identified Mr. Gonzalez.

THE COURT: All right.

 

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BY MR. DUNLAP:

Q. Were you able to see -- or which seat was he in, by the

way, as you look at the plane?

A. The left seat.

Q. Could you see who was in the co-pilot's seat?

A. Charles Shallenbarger.

Q. Who was Charles Shallenbarger?

A. He was an A and P mechanic that did most of the engine

runs and that type of work. He was the engine guy --

Q. You need to keep your voice up.

A. He was the engine expert for us.

MR. DUNLAP: May I approach the witness, Your

Honor?

THE COURT: Yes, sir.

Q. Mr. Quintana, let me ask, let me hand you what I have

marked as exhibits DG1(a), 1(b), 1(c), 1(d), and 1(e), and

ask you to take a look at them. Let me know when you've had

a chance to look at them.

A. They are non-routine cards.

Q. Do you know what an engine system operational check is?

A. Yes, sir.

Q. What is it?

A. It's a check of the system so that the engine

operational checks with the engine.

Q. What phase during the C-Check is that accomplished?

 

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A. Pre-dock phase.

Q. What phase of the pre-dock?

A. Very beginning.

Q. During the engine run up?

A. Yes, sir.

MR. DUNLAP: I would offer 1(a) through 1(e) into

evidence, Your Honor.

THE COURT: Any objection to 1(a) through 1(e)

for identification?

MR. BRIGHAM: Not for the United States, Your

Honor.

MR. RASKIN: No objection.

THE COURT: The documents are admitted into

evidence as Defendant Gonzalez Exhibits 1(a) through 1(e).

[Defense Exhibits DG1(a) through 1(e) received in evidence].

BY MR. DUNLAP:

Q. Could you take a look at 1(a) initially, please. What

is that document?

A. Engine systems operational check, left and right

engine.

Q. Is there a series of signatures there in the space

called for by the mechanic on that particular check?

A. Yes, there is.

Q. And is that -- do those signatures have along with them

a number corresponding to that mechanic's number?

 

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A. Yes, the employ number.

Q. Could you read that number?

A. 52, either 455 or 955.

Q. Could it be an 8?

A. It could be an 8. It's not legible.

Q. We'll see if we can find another one that is legible.

MR. BRIGHAM: Your Honor, the documents speak for

itself. If the witness can't read them, the documents speak

for itself.

THE WITNESS: 52855.

BY MR. DUNLAP:

Q. 52855?

A. The last entry is a little bit more legible.

Q. I'm going to ask you to refer to a document that is

admitted into evidence as Government Exhibit 44, marked as

the employee master report. Take a look. Does that number

appear on that?

A. Charles Shallenbarger --

MR. BRIGHAM: Objection, Your Honor. The

document speaks for itself.

MR. DUNLAP: I would like him to publish it to the

jury, is that's all right, Your Honor.

THE COURT: Hand it to them, and let them read --

MR. DUNLAP: Shall I just hand it to the marshal?

THE COURT: Marshal, will you hand it to the

 

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jury, and let them pass it along?

MR. DUNLAP: I'll just hand them the one page.

THE COURT: Yes, the one page, whatever you want.

All right. Next question.

BY MR. DUNLAP:

Q. Is DG exhibit 1(a) have any dates on it?

MR. BRIGHAM: Objection, Your Honor. The

document speaks for itself.

THE COURT: I agree. Just read him the date and

ask him your question, whatever it is.

THE COURT: Assume that it has a date of blank,

then ask him your question.

BY MR. DUNLAP:

Q. Let's refer to the other exhibits, DG1(b) through

DG1(e). Those are non-routine cards?

A. These four cards are non-routine cards.

Q. How, in any way, do they related to DG1(a)?

A. The routine card is generated. The non-routine cards

is indicated here at the bottom, it says generated by.

Q. So what does that mean they were generated by?

A. You discovered certain problems during this operational

check that required you to open non-routines to correct the

problems.

Q. What date do the non-routine cards indicate that they

were written up?

 

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A. 12-20, 12-20, 12-20, 12-20-95.

Q. Can you tell from looking at the routine and

non-routine cards, DG1(a), on what day the engine run ups

would have been performed on DG1(a)?

A. The card indicates it was issued on the 19th. The

non-routine is issued on the 20th. The engine run up had to

be done on the 19th and the 20th. The beginning the 20th

and the end of the 19th.

Q. With respect to operational checks that are done during

the pre-dock, what is the reason that the engine -- the

predicament you just described, the engine run is done

during the pre-dock?

A. It's done during the pre-dock to identify any problems

and before you disable the aircraft.

Q. Why couldn't it be done inside the hangar?

A. You cannot run the engines inside the hangar.

Q. Why is that?

A. It's a safety hazard.

Q. Are there certain operational checks that are done with

a system or an engine called the APU?

A. Yes, sir.

Q. What is an APU?

A. Ancillary pilot unit.

Q. Is that a part of the aircraft?

A. Yes, sir.

 

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Q. Please tell the jury what it is?

A. Ancillary pilot unit. It's a small turbo engine that

is used to supply nomadic or air to the aircraft system and

electrical power.

Q. Let me show you what has been marked as DG2, DG2 for

identification.

MR. DUNLAP: May I approach the witness, Your

Honor?

THE COURT: Yes.

BY MR. DUNLAP:

Q. First, do you know what a system shut down thermal

switch is?

A. Yes, sir.

Q. How is a check on that system accomplished?

A. You have to operate the air-conditioning system. You

have to check the system out to see if the switch is

stripped.

Q. Do you have to use the APU to do that?

A. You use the APU or an air start. In this case, it's

indicating APU.

MR. DUNLAP: I would move DG Exhibit 2 into

evidence, Your Honor.

MR. BRIGHAM: No objection.

THE COURT: Admitted into evidence as exhibit

number 2.

 

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[Defense Exhibit DG2 received in evidence].

BY MR. DUNLAP:

Q. In the pre-dock phase, from time to time, do you have

to remove the fuel from the tanks of the planes?

A. When you service the tanks, yes.

Q. By servicing the tanks, what do you mean?

A. Either have inspection inside the tank that you have to

have access to or the customer is requested to clean out the

tank.

Q. Let me show you what's been marked as exhibit DG3 for

identification. Can you tell me what type of a card this

is?

A. 06 indicates a customer request card.

MR. DUNLAP: I move for the admission of DG3 into

evidence, Your Honor.

MR. BRIGHAM: No objection, Your Honor.

THE COURT: Defendant Gonzalez Exhibit 3 admitted

into evidence.

[Defense Exhibit DG3 received in evidence].

BY MR. DUNLAP:

Q. Can you tell us from looking at this card, what date

this card was issued?

A. 12-19-95.

Q. Who was it issued by?

A. Generated by Mr. Mora.

 

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Q. Is that the customer representative?

A. That's the customer representative.

Q. With respect to what plane, does that apply?

MR. BRIGHAM: Objection, Your Honor. The witness

is being asked to read off of a document.

THE COURT: Sustained. Is that one of the planes

involved in the case?

MR. DUNLAP: It is.

BY THE COURT:

Q. What plane is that, if you know?

A. 720.

BY MR. DUNLAP:

Q. For which airline, sir?

A. Aserca.

Q. What does that work card call for?

A. What I read in there, it says, clean the tanks. May I

look at it, please.

Q. Yes.

THE COURT: The document is in evidence. Maybe

if there's something that needs clarification.

THE WITNESS: Wash and flush the tanks.

BY MR. DUNLAP:

Q. Does it also call for an outside company to come and

work on the tanks. East Coast Tanks?

A. East Coast Tanks came in.

 

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Q. What does East Coast Tanks do?

A. They clean and repair tanks, fuel tanks

Q. Are there certain pre-dock tests that require

electricity to be run on the aircraft?

A. The majority of the pre-dock tests require electricity.

Q. Under the circumstances of this plane, Y. V. 720, could

electricity be run on this plane while these tanks are open

and empty?

A. After a long period of time.

Q. How long would you have to wait?

A. Three to four days.

Q. Why is that?

A. The first thing you have to do is clean out the tank.

Open the tank up and that takes time. Then you have to let

the vapors evaporate, and then you have to check the tank

for safety, and then you can go into tanks. Then, there has

to be a certain level, there's not going to be explosive

which you're in firepower on the aircraft.

Q. The fuel vapors?

A. Yes, sir.

Q. Have you had occasion to sign pre-dock package to be

worked on, a number of occasions?

A. Yes, sir.

Q. With respect to tests of the anti-ice system, is that a

test that requires the use of electricity to test the

 

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system?

A. Yes, sir.

Q. Under the circumstances, were the tanks that were going

to be open, when do you customarily and usually assign

anti-ice tests during the pre-dock, I mean during the

C-Check?

A. I accomplish all the pre docks items before I disable

the aircraft.

Q. Would anti-ice, under the circumstances, be one of

them?

A. That's one of them that I would issue.

Q. Why would you do that?

A. To get rid of the unknowns, which is to find any

problems with the aircraft at the beginning. To be able to

accomplish the test before you disable the aircraft, and a

lot of times it's difficult to come up with inventory or

parts to replace and deficient parts.

Q. Let me ask you to take a look at what's been admitted

into evidence as Government Exhibit 2.

Can you tell us what it is?

A. Ice protection system function check.

Q. What functions does this test check?

A. The low and high pressure switches, I believe.

Q. Why don't you take a good look at it?

A. High pressure switch and low pressure switch.

 

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Q. Can you tell us a little bit about the anti-ice system.

Are you familiar with a DC-9?

A. Yes, sir.

Q. What is the anti-ice system in the DC-9?

MR. BRIGHAM: Your Honor, objection.

THE COURT: He may answer this question.

BY THE COURT:

Q. What is it?

It's a nomadic system that heats the leading

agents or the front of the wings or the front of the

stabilizers. It warms them up to keep the aircraft from

developing ice on the wings or the stabilizers, and also

the front of the engines.

BY MR. DUNLAP:

Q. Does the test that you just looked at, does it test the

nomadic system, the duck work or does it test the switches,

the electrical switches?

A. This specific test is for the switches.

Q. Let me show you what has been marked as exhibit DG4.

Can you tell us what this is?

A. Ice protection system functional check.

MR. DUNLAP: I move for the admission of DG4 into

evidence.

MR. BRIGHAM: No objection, Your Honor.

THE COURT: Admitted into evidence.

 

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[Defense Exhibit DG4 received in evidence].

BY MR. DUNLAP:

Q. What portion of the de-icing system does that examine

or test?

A. The tail de-ice timer and an anti-ice delay.

Q. So, it checks electrical switches?

A. Yes, sir.

MR. DUNLAP: May I publish Exhibits 1(a) through

(e) to the jury, as well as 2, 3 and 4 at this time, Your

Honor?

THE COURT: Yes, sir.

MR. DUNLAP: Could I hand them to the marshal?

THE COURT: Yes, sir.

MR. DUNLAP: Could I have one second, Judge,

please?

THE COURT: Yes, sir.

BY MR. DUNLAP:

Q. Mr. Quintana, I'll see if I can find the exhibit here.

DG3 is a non-routine item, or was a non-routine item calling

for East Coast Tanks to, for the tanks to be opened so that

East Coast Tanks could come in and clean them?

A. Yes, sir.

Q. Let me show you what is admitted into evidence as

SabreTech Exhibit 4, and ask you what it is, or if you

recognize what it is?

 

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A. This is a routine card for bio-bor treatment.

Q. What is bio-bor?

A. It is a chemical used to fight fungus and microscopic

organisms.

Q. All of these work cards you just handled and put into

evidence, they are all related to aircraft 720 for Aserca?

A. Yes, sir.

Q. Which aircraft does that relate to?

A. 720.

Q. Again, DG3 called for the tanks to be opened and

emptied, is that correct?

A. Yes, sir.

Q. Given that that card exists, what does that say about

the appropriate disposition about ST4, the bio-bor card?

MR. BRIGHAM: Objection.

THE COURT: Rephrase.

BY MR. DUNLAP:

Q. Are you familiar with the concept called redundancy in

paperwork?

A. Yes, sir.

MR. BRIGHAM: Objection.

THE COURT: In paperwork, he is a mechanic. You

are limiting it to the cards that he deals with. You may

answer the question. Are you familiar with the word he

used "redundancy."

 

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A. Yes, sir. Frequently we have redundant --

BY MR. DUNLAP:

Q. As a project manager, one of your tasks is dealing with

paperwork in connection with various types of checks?

A. Yes, sir.

Q. Is there very much paperwork involved in a C-Check?

A. Yes, sir, a lot.

Q. Could you give is an idea of how many typically

engineering or work orders or work cards there may be in a

typical C-Check?

MR. BRIGHAM: Objection. Relevancy.

THE COURT: Well, it may be highly relevant, but

generalizations. I would have to sustain, would have no

probative value in this case. You would have to limit it

to something in this case.

BY MR. DUNLAP:

Q. Do you have enough familiarity with the C-Checks being

done on the Aserca aircraft, to give us an idea of whether

the paperwork was in the thousands of documents or hundreds

of documents?

A. I saw hundreds of documents out there.

Q. Back to the problem of redundancy, from time to time --

let me ask you, what does that mean in terms of a project

manager's obligation with respect to managing the paperwork?

A. You try to clear paperwork as best as you can.

 

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Q. Is that piece of paperwork a redundant piece of

paperwork given the existence of the non-routine item marked

as DG3, calling for East Coast Tanks to clean the tanks on

Y.V. 720?

MR. BRIGHAM: Objection. Leading.

THE COURT: Overruled. You may answer that

question.

THE WITNESS: Yes, sir.

BY MR. DUNLAP:

Q. What was the appropriate disposition, via supervisor of

that paperwork, under that circumstance?

A. I would innate this.

Q. What did you say?

A. Innate. None operational.

MR. DUNLAP: Could I have one second, Judge.

THE COURT: Take your time.

BY MR. DUNLAP:

Q. Let me show you what has been marked as exhibit DG8 for

identification. Can you tell us what that is?

A. An ice protection functional check.

Q. Is it the same work card that I showed you that had

been entered into evidence as Government Exhibit 2?

A. Just like it.

Q. I move for the admission of DG8?

THE COURT: It's already in evidence?

 

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MR. DUNLAP: No, it is not in evidence yet.

THE COURT: Any objection to it?

MR. BRIGHAM: No objection.

THE COURT: Exhibit 8 is admitted into evidence.

[Defense Exhibit DG8 received in evidence].

BY MR. DUNLAP:

Q. Can you tell us what plane this test was done for?

A. 705, Aserca 705.

Q. Do you recognize the signature there to accomplish

that?

A. It looks like -- I can't tell exactly who it is.

Q. Okay. Let me see if I can help you out there?

MR. DUNLAP: The government stipulates the

signature on this document is that of Danny Gonzalez. May

I publish the document?

THE COURT: Exhibit 8 is admitted into evidence.

Defense Gonzalez Exhibit 8.

BY MR. DUNLAP:

Q. Let me show you exhibits that have been marked DG6(a),

(b) and (c) for identification?

Can you tell us what these are?

A. System shut down. They are mall switches.

MR. DUNLAP: I would move for the admission of

DG6(a), 6(b) and 6(c).

THE COURT: Exhibits 6(a), (b) and (c) are

 

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admitted into evidence.

[Defense Exhibits DG6(a), 6(b) and 6(c) received in

evidence].

BY MR. DUNLAP:

Q. How does 6(a), 6(a), (b) and (c) interrelate?

A. Z048 is a work order number that generated both

non-routines.

Q. Okay. Could you put it in a language, none mechanic?

A. This routine work card --

Q. Are your referring to DG6(a)?

A. Has generated these two non-routine work cards.

Q. What does that mean, has generated?

A. We found problems during this test that required you to

repair something, and you write items to repair the

problems.

Q. Is this the same pre-dock test that you identified with

respect to aircraft 720?

A. Yes, sir.

Q. What aircraft is this work being done on?

A. 705 Aserca.

Q. Aserca.

MR. DUNLAP: I think the government would

stipulate, Your Honor, that the signature on DG6(a) is also

that of Danny Gonzalez.

MR. DUNLAP: To make it simpler, the number

 

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051011 is stipulated to as the mechanic's number for Danny

Gonzalez appearing on all three documents 6(a), (b) and

(c). May I publish these documents to the jury?

THE COURT: Yes, sir.

BY MR. DUNLAP:

Q. Let me show you what I've also marked for

identification as DG5, DG7 and DG9.

THE COURT: Ladies and gentlemen, while they look

through that, why don't we take a recess at this time and

take a little break. We will take a recess at this time.

Thank you.

You may step down, Mr. Quintana. While you are

on recess, please don't talk to anybody about your

testimony. You can talk about anything else, but not your

testimony.

[There was a short recess].

COURTROOM DEPUTY: All rise. Court is in

session.

THE COURT: Let's bring in the jury.

THE COURT: Thank you. Be seated.

[The jury returns to the courtroom].

THE COURT: Mr. Dunlap.

BY MR. DUNLAP:

Q. Your Honor, I believe when we recessed, I had offered

exhibits DG5, DG7 and DG9 into evidence?

 

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THE COURT: Without objection, Gonzalez's

exhibits 5, 7 and 9.

[Defense Exhibits DG5, 7 and 9 received in evidence].

MR. BRIGHAM: Your Honor, if we could have a

stipulation that those all pertain to aircraft 705.

THE COURT: Yes, sir. If the parties agree to

that, let the record so reflect.

MR. DUNLAP: These three exhibits, Your Honor,

perhaps we can -- can I show them to the witness? I think

we can stipulate that exhibits DG1(a) through 1(e), DG2, DG

3 and DG4, all pertain to aircrafts, Aserca aircrafts 720,

and DG5, DG6(a), (b) and (c), 7, 8 and 9 all pertain to

aircraft, Aserca aircraft 705. May I proceed, Your Honor?

THE COURT: Yes.

BY MR. DUNLAP:

Q. Mr. Quintana, showing you DG5, what type of work card

is that?

A. It's a routine system operational check, left and right

engine.

Q. Is that the same work card and mechanical function that

was referred to in DG1 for Aserca 720?

A. The same card as I saw before.

Q. This is done as well during an engine run up?

A. Yes, sir.

Q. Let me show you DG7. Can you tell me what that is?

 

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A. Customer request to remove all fuel tank covers. It's

a customer request form to accomplish the wash and flush

inside the tanks.

Q. Does it refer to calling in East Coast Tanks as well?

A. The vendor is East Coast Tanks.

Q. Is this the same type of card as you saw in 720, DG3?

A. Yes, sir.

Q. And the same concerns apply that the tanks are going to

be opened?

MR. BRIGHAM: Objection. Leading, Your Honor. A

series of leading questions.

THE COURT: All right. Rephrase the question.

BY MR. DUNLAP:

Q. In order to accomplish that non-routine work card, what

must be done in advance?

A. De-fuel the aircraft.

Q. Where do you de-fuel the aircraft?

A. On the ramp.

Q. Is that before or during the pre-dock?

A. Right after you get done with pre-dock items.

Q. Before you bring the plane into the hangar?

MR. BRIGHAM: Objection. Leading.

THE COURT: Just ask him when it's done.

BY MR. DUNLAP:

Q. When do you de-fuel the airplane?

 

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A. Before you bring it into the hangar.

Q. Can you run tests requiring electrical power on the

plane immediately after de-fueling the tanks?

MR. BRIGHAM: Objection. Leading. Asked and

answered, also.

THE COURT: When can you do electrical tests?

When do you do electrical tests?

THE WITNESS: You have to have the tanks either

sealed or completely cleaned out or the fuel has vaporized

to the point that it passes a test that it won't be

combustible.

THE COURT: Okay.

BY MR. DUNLAP:

Q. Finally, DG9, that's the same test that we saw for 720

ice protection check of the timer switches?

A. Same test.

MR. DUNLAP: May I publish these to the jury,

Your Honor?

THE COURT: Yes, sir.

BY MR. DUNLAP:

Q. Were all these tests done as part of the pre-dock?

MR. BRIGHAM: Objection. Leading.

BY THE COURT:

Q. When were these tests all done?

A. The test were accomplished before pre-dock.

 

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MR. DUNLAP: No further questions.

THE COURT: All right. Cross examination.

CROSS EXAMINATION

BY MR. BRIGHAM:

Q. Good afternoon, Mr. Quintana, I'm Jeff Brigham. I'm

one of the prosecutors on this case.

Sir, you indicated that you saw Mr. Gonzalez in a

Aserca aircraft, but you don't know what the tail number on

that aircraft was, is that correct?

A. Correct.

Q. When you saw him, you do not know what procedures he

was conducting?

A. No, sir.

Q. No, sir, you do not know?

A. I don't know the exact procedures he was conducting,

no.

Q. Now, sir, you were project manager, is that correct?

A. Yes, sir.

Q. As project manager, you are on the floor of the hangar

and the areas in general at SabreTech?

A. Yes, sir.

Q. Sir, you never saw Mr. Gonzalez working on the Aserca

aircraft except for, on that one time you saw him in the

cockpit?

A. When I saw him taxi the aircraft up to the hangar.

 

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Q. And that was only for the few minutes that you saw him,

is that right?

A. Yes, for a short period of time.

Q. During the entire time you were working there, you

never again saw him working on an Aserca aircraft?

A. I saw him during the day working on the aircraft. I

saw him at different times around the aircraft, but I did

not see him physically going anywhere, no.

Q. You never saw him turn a wrench, for example?

A. No, sir.

Q. What you've been testifying with respect to certain

procedures that may take place under you as a project

manager, is that correct?

A. Yes, sir.

Q. You have been looking at the documents which have been

published to the jury, you recall testifying based on those

documents?

A. Yes, sir.

Q. But you had never seen those documents during the time

period of the end of 1995 to 1996?

MR. DUNLAP: Objection. Relevance.

THE COURT: Overruled. This is

cross-examination. Go ahead. Have you seen those

documents?

THE WITNESS: Those specific cards, no.

 

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BY MR. BRIGHAM:

Q. In fact, your testimony is simply based on the

information that is in these documents?

A. Yes, sir.

Q. You are essentially reading from the documents in

obtaining the information in support of your testimony?

A. Yes, sir.

Q. Sir, you were relying on the accuracy of those

documents and the testimony that you were given?

A. Accuracy, as far as?

Q. You were assuming that those documents were accurate?

A. If they are signed off, yes.

Q. And that's because when a mechanic signs off with

respect to a particular step on these work cards, you assume

that that work has been done correctly?

MR. MOSCOWITZ: Your Honor, objection to

assumptions. This is not opinion asking for assumptions.

THE COURT: Wait a minute now. We don't team up

on Mr. Brigham here. We only get one lawyer at a time

making the objections. But in any event, this is

cross-examination. Your last question was -- just a

moment.

THE COURT: The objection is overruled.

Mr. Moscowitz's objection is overruled. The question is,

"when a mechanic signs off with respect to a particular

 

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182 QUINTANA - Cross

 

step on the work cards, do you assume that the work was

done correctly"?

MR. BRIGHAM: If I may rephrase the question,

Your Honor?

THE COURT: I would rather you didn't. We would

get another objection. We would spend another twenty

minutes on it. You can ask fifteen more. Do you want me

to repeat the question now again?

THE WITNESS: No, sir. When the job is signed

off, it is accomplished.

THE COURT: Okay. Next question. You mean you

don't want to improve on that? I'm really surprised.

MR. BRIGHAM: No, Your Honor, thank you.

BY MR. BRIGHAM:

Q. Now, the ice protection procedure, that is a procedure

which can be done inside the hangar?

A. Yes, sir.

Q. I would like to show you -- if I may have a moment,

Your Honor?

THE COURT: All right. Can we move forward?

BY MR. BRIGHAM:

Q. I would like to show you what I'm marking as Government

Exhibit 111. Do you recognize that document, Mr. Quintana?

A. Engine run up trim check.

Q. For what aircraft is that?

 

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183 QUINTANA - Cross

 

A. 705.

MR. BRIGHAM: Move to admit, Your Honor. I

believe we have a stipulation.

MR. DUNLAP: No objection.

THE COURT: Government Exhibit 111 is received

into evidence.

[Government Exhibit 111 received in evidence].

BY MR. BRIGHAM:

Q. Sir, you worked at SabreTech for quite some time as a

project manager, is that correct?

A. Yes, sir.

Q. And you got to know Mr. Gonzalez well, is that right?

A. As a co-worker, yes.

Q. And you worked with him on a regular basis, is that

right?

A. Yes, sir.

Q. There came a time that you left SabreTech, is that

right?

A. Yes, sir.

Q. And the reason you left is because --

MR. MOSCOWITZ: Objection, Your Honor. This is

beyond the scope of direct.

THE COURT: Doesn't impeachment figure into it?

It usually does when you are cross-examining. I suppose

this is for impeachment purposes.

 

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MR. MOSCOWITZ: I don't see how this would be

impeachment, Your Honor, the circumstance of his leaving.

THE COURT: Before telling me why he left, I have

to ask -- ask him if he left under any circumstance that

caused anybody, that he has any bad feeling to anybody in

this case. You are trying to show impeachment, I guess.

If that's the purpose, it's relevant. The objection is

overruled. Ask your question. We will see if there's

another objection.

BY MR. BRIGHAM:

Q. Sir, is it not a fact that you left because you were

not able to obtain enough work to work on your aircraft?

A. I wasn't able to obtain enough electricians and sheet

metal mechanics to work on the aircraft.

MR. BRIGHAM: No further questions.

THE COURT: Redirect examination, Mr. Dunlap?

MR. DUNLAP: No questions.

THE COURT: Your next witness.

MS. MOSCOWITZ: Your Honor, at this point we have

a matter that we need to bring up with Your Honor.

THE COURT: Fine. If you'll step into the jury

room, ladies and gentlemen.

[The jury leaves the courtroom].

MS. MOSCOWITZ: Your Honor, at this point, I have

proposed to put on two witnesses that the government has

 

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informed me they wish to move in limine about. And we

agreed and there's also an issue that counsel for one of

the witnesses wants to bring up, and we thought we should

address it before, Your Honor, without the jury present

before putting the witnesses on the stand.

THE COURT: All right. It just doesn't float

down out of the ceiling of the courtroom, somebody has to

move for something.

MS. MOSCOWITZ: It's not my motion.

THE COURT: I understand it's not your motion,

but we are all just sitting here looking at each other,

aren't we. Does anybody have a motion? If not, we'll

bring the jury in and move on.

MR. BRIGHAM: The United States does have a

motion, Your Honor. We would like to move in limine for

the exclusion of the testimony of the following two

witnesses. Our understanding is that the defense intends

to call Ms. Kathleen Wheaton.

She is apparently a phone operator who, we

understand that the testimony would be along the lines that

on May 21, she was asked to set up a conference call with

various ValuJet employees and lawyers representing ValuJet.

During this conference call, one of the individual

participants, who would be, I understand a proposed

witness, made statements during the conversation along the

 

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lines of, I hope the public or the FAA does not find out

that we are not following certain recommendations to keep

these doors closed. She is going to testify about that

conversation.

THE COURT: Tell me that now? Keep a door

closed?

MR. BRIGHAM: Your Honor, it's hard for me to

anticipate from the Jencks that I received. My

understanding is that this witness would say, and I'm

quoting, "I hope the public or the FAA does not find out

that we do not follow McDonnell Douglas' recommendations to

keep those doors closed. If the doors were closed, it

would contain the fire." We submit that this is hearsay.

It is not permissible testimony.

THE COURT: Here's a lady saying what she said.

MR. BRIGHAM: No, what she overheard someone else

saying.

THE COURT: If we have the predicate then we

know. We need to know who was there, what was said and

when it was said. Who, what, where, why. Simple, we do

that every time when we know what is hearsay. You can't

have hearsay in the abstract. The room may have been filled

with SabreTech employees. It may have been filled with

government agents. I don't know. Either one of those

would take it out of hearsay.

 

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Was this on a telephone conference call?

MR. BRIGHAM: Yes, Your Honor. The "when" is May

21, 1996.

THE COURT: This is after the crash. This lady

is one of the participants. Who are the others?

MR. BRIGHAM: She is not a participant. She is a

telephone operator.

THE COURT: She heard it. That made her a

participant.

MR. BRIGHAM: Yes. The "who" at the meeting with

other ValuJet employees and lawyers.

THE COURT: Does she know who made the remarks?

MR. BRIGHAM: I assume so. She's not my witness,

Your Honor.

THE COURT: Does she know, Ms. Moscowitz, who

made --

MS. MOSCOWITZ: Yes, Your Honor. By virtue of

the method that's used to setup the call, she knows exactly

who is speaking because she's monitoring the call.

THE COURT: Who made the call?

MS. MOSCOWITZ: One of the ValuJet executives,

Your Honor. His name is Gil Morgan. He was the Vice

President at that point.

THE COURT: Of ValuJet.

MS. MOSCOWITZ: Yes, sir.

 

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THE COURT: And so, Mr. Gil Morgan, this lady

would testified if she were permitted to give her

statement, that that ValuJet employee made that statement.

Why can't we call Mr. Gil Morgan?

MS. MOSCOWITZ: He is here too, Your Honor. He

is under subpoena. I met with him and his lawyer before

hand, and he tells me he has no recollection of such a

call.

THE COURT: I suppose you could impeach him and I

suppose you could ask him about it.

MS. MOSCOWITZ: That's exactly our plan, Your

Honor.

THE COURT: Well, aren't we getting way ahead of

the game. The first witness is Mr. Gil Morgan, not

Ms. Kathleen, whatever.

MS. MOSCOWITZ: Correct.

THE COURT: All right. Do we have a motion in

limine about Gil Morgan?

MR. BRIGHAM: Yes, Your Honor. It would be based

on same grounds. It would be hearsay grounds.

THE COURT: His own statement? His own words?

MR. BRIGHAM: Right, because he is not a party

opponent in this case, Your Honor.

THE COURT: Doesn't have to be. Anybody can come

in here and say on a certain day I said, close the door or

 

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189 QUINTANA - Cross

 

whatever I said. And then you can cross-examine him.

That's perfectly proper. It's not hearsay.

MR. BRIGHAM: Your Honor, though, in that

circumstance, you would have to show a connection of some

personal knowledge on the part of that witness. Someone

can't come in and say --

THE COURT: He said I said it. That can't get

any more personal. It's even more personal than saying my

wife said it. I said, close the door. Then you can

cross-examine me all afternoon on whether I said it or not.

MR. BRIGHAM: But then what becomes relevant is

-- that type of statement would be relevant if, for example

one of the party opponents made it. But to have a witness

called in simply for the purpose of impeaching that

witness, setting up a strawman who will fall to be

impeached by another witness is, we submit improper in this

case, especially since --

THE COURT: That's not setting up a strawman.

That is simply, you are hopeful, that he will make the

statement which the lawyer offering it in good faith

believes to be the truth, that it is hopeful, that he will

say, yes, while on that conversation I did say close the

door.

Now, if in good faith you hope and you expect

that he is going to tell the truth about the matter, then

 

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you can offer it. Then if he does not, and that comes then

as a surprise to you, you can declare him a hostile witness

and impeach him until the cows come home.

The fact that you all are so chummy with each

other and gotten together in the hall and somebody says, we

are going to assert the Fifth Amendment or whatever we're

going to do, it doesn't change it, that the reason for

calling Mr. Gil Morgan, by the defense, in the first

instance, is to ask him whether or not, I take it, I guess

he's sitting here listening to all of this.

MS. MOSCOWITZ: No, he is not.

THE COURT: Mr. Gil Morgan present or his counsel

present?

ATTORNEY: Counsel is present, Your Honor.

THE COURT: Counsel, but not Mr. Gil Morgan? I

suppose he is going to be asked, he's not going to be asked

about a phone conversation. He's going to be asked whether

ValuJet closed the doors or secured them or locked them or

whatever this issue is.

I don't know what he is going to say. I think

that Ms. Moscowitz, hopes that he is going to tell the

truth and say no, we didn't do that all the time. Well,

did you ever express the view that - well, if he says that

she doesn't go any further, I guess. If he says, no, we

didn't do that; we always close the door so the fire

 

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wouldn't get out, then she would say, what about this

statement on this conversation.

That's how the conversation comes into effect. I

don't know of any way to exclude it in advance. I mean,

first of all, I would have to assume that somebody is not

going to -- now we have got lawyers standing up. Come up

here, and tell me who you are and your objection.

MR. SALTSMAN: My name is Richard Saltsman. I'm

here on behalf of Mr. Morgan.

MR. BERRUTH: Robert Berruth on behalf of ValuJet,

AirTran, and their attorneys, and other participants in the

phone call.

THE COURT: I did not mean to mispronounce your

client's name. I just never heard it before.

MR. SALTSMAN: I understand. I just want to make

sure it got corrected in the record, Your Honor.

THE COURT: If you would please, spell it for the

record.

MR. SALTSMAN: Yes, its S-a-l-t-s-m-a-n.

Mr. Morgan is M-o-r-g-a-n.

THE COURT: Gil Morgan. G-i-l M-o-r-g-a-n, all

right, thank you.

MR. SALTSMAN: If I could, for a second, go back

to the first issue on our minds, which is attorney/client

privilege. As I understand it from having spoken to

 

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Ms. Moscowitz, the conversation in question that has been

represented was on May 21, 1996, and the participants, in

addition to Mr. Morgan, were four counsel, four lawyers,

one inside counsel for ValuJet, CEO a Mr. Pretty, and a

representative from their insurer.

The question has been put to Mr. Morgan as to

whether or not he recalls this conversation. He does not

recall this conversation. He does not recall having

participated in this conversation.

THE COURT: They're going to ask them first if

they always close the fire doors and whether he told his

lawyers, yeah, or nay on that, wouldn't relieve him from

the obligation of responding to a subpoena, and answering

truthfully questions about whether he is an executive of

ValuJet, knew that they followed the regulations of closing

the fire doors, or he didn't.

MR. SALTSMAN: I think that is a slightly

different question than the one that had been posed,

however. What has been posed, Your Honor --

THE COURT: Let's deal with the ones that are

going to be asked, not the ones that may never be posed.

MR. SALTSMAN: The ones that are going to be

asked as has been represented is -- are questions that

occurred, or comments that occurred during the course of

this specific telephone conference, which was between

 

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193 QUINTANA - Cross

 

counsel --

THE COURT: Let me interrupt you and ask

Ms. Moscowitz, do you intend to ask him whether or not he

had a practice of violating the FAA regulations?

MS. MOSCOWITZ: I'm going to ask, "in your job,

did you learn that certain doors on flight 592 have been

opened in violation of McDonnell Douglas' safety

recommendations and FAA rules"?

THE COURT: You're not going to ask him, do you

know, you're going to ask him did he learn?

MS. MOSCOWITZ: Did he know.

THE COURT: So what fire doors are we talking

about, cargo fire doors or passenger doors or what?

MS. MOSCOWITZ: Any doors. Doors.

THE COURT: Doors on the airplane.

MS. MOSCOWITZ: Doors that would have contained

the fire.

THE COURT: Doors that would have contained the

fire.

MS. MOSCOWITZ: And we have heard of such doors,

Your Honor, in Mr. Fogg's testimony.

THE COURT: You are going to ask him if he knew

that on ValuJet airplanes, personnel on ValuJet opened

doors to compartments that were designed to contain fires.

MS. MOSCOWITZ: Yes, sir.

 

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194 QUINTANA - Cross

 

THE COURT: And I assume he will say, yes or no,

whatever truthfully he knows about that. And after that, I

suppose you are going to ask him if he ever said that he

knew that these doors were thrown open. And he will say,

yes or no, or I don't know.

At that point in time, there's the question of --

I don't know where it goes from there. You see, you can't

anticipate everything. These motions in limine --

MR. SALTSMAN: However, Your Honor, in this case,

the supposed statement from Mr. Morgan is one which was

supposedly made during the course of a conversation between

attorneys and their clients.

THE COURT: Which we'll never get to. Right now,

we are dealing with a witness subpoenaed, who is an officer

of ValuJet, as I understand it or was at the time, to be

asked about his personnel of his company opening fire

doors. That's all that we were talking about at this

point.

MR. SALTSMAN: I realize the problem of jumping

ahead, but --

THE COURT: Let's don't jump ahead. We will take

it that far, and then Ms. Moscowitz, before you get into --

well, she has to ask him if he has ever made a statement.

MR. SALTSMAN: And he will say, no.

THE COURT: Then fine. He says, no, in front of

 

TOTAL ACCESSTM COURTROOM REALTIME TRANSCRIPTION

195 QUINTANA - Cross

 

the jury. Then we will excuse the jury and determine

whether or not he has any other attorney/client privilege.

Were there any other people, other than attorneys on this

call?

MR. SALTSMAN: The other people, as I understand

it, Your Honor, were the CEO of the company, Mr. Morgan,

himself, and then a representative from their insurer,

which was U.S.A.I.G.

THE COURT: Were they all lawyers for Mr. Morgan?

MR. SALTSMAN: No. For the company, Your Honor.

THE COURT: Everybody on this call was a lawyer?

MR. SALTSMAN: No, Sir. Mr. Morgan was not a

lawyer. He was Vice President of Contracts.

THE COURT: Anyone else?

MR. SALTSMAN: Mr. Pretty was not a lawyer. He

was CEO of the company, and I understand there was another

participant in this call, who was a representative from the

company's insurer, U.S.A.I.G.

THE COURT: So if the statement was made in the

presence of the several people, even if one of them is your

own lawyer, doesn't that remove it from the attorney/client

privilege?

MR. SALTSMAN: No, sir. I think that in this

context, the client, who is the company, and, perhaps, its

executives, but certainly the company -- and we don't know

 

TOTAL ACCESSTM COURTROOM REALTIME TRANSCRIPTION

196 QUINTANA - Cross

 

anything more about what was said during the course of this

conversation. But it was obviously a conversation in which

company counsel were conferring with their client. Now

what has been represented to the Court is that the

impeachment evidence will be from a telephone operator.

THE COURT: Let me interrupt you. What we are

going to do is have an evidentiary hearing outside the

presence of the jury and proffer the testimony briefly,

very briefly, and then at the end of that, I will listen to

your objections.

Let's see, it's 3:57. Let's call in Mr. Morgan

and put him on the stand under oath, and ask him whatever

questions you are going to ask him.

MR. DUNLAP: Thank you, Your Honor. May I bring

one more thing to the attention of the Court.

THE COURT: Excuse me, just a minute. Sir, if

you all want to -- is there room? What did you say, I

didn't hear you Mr. Dunlap? You want to give him room or

chairs or what? You want to give him your chair so he can

be up front?

MR. DUNLAP: Your Honor, I want to bring to the

attention of the Court that I neglected to ask Mr. Quintana

about five minutes worth of questions. If I could please

have the indulgence of the Court. He's coming back after

we get through with this. If I could just put him on for

 

TOTAL ACCESSTM COURTROOM REALTIME TRANSCRIPTION

197 MORGAN - Direct

 

five minutes?

THE COURT: I have no problem with that.

THE COURT: All right, sir. If you step up here,

take a seat in the witness box. The attorneys, if you

would please. Why don't you come up here, if you would

please, and sit in the jury box. At least, you can see and

hear a little better.

COURTROOM DEPUTY: Please be seated. State your

full name, spelling your last name for the record. THE

WITNESS: Andrew Gilbert Morgan, Junior. M-o-r-g-a-n.

Gil Morgan, DEFENDANT'S WITNESS, SWORN.

DIRECT EXAMINATION

MS. MOSCOWITZ: Mr. Morgan, were you employed by

ValuJet in May 1996?

A. Yes, I was.

Q. In what capacity?

A. Vice President, contracts.

Q. In May of 1996, after the time of the ValuJet accident

regarding flight 592, did you participate in any activities

related to the crash?

A. Yes, I was in Miami for approximately two weeks with

the family.

THE COURT: Pull the microphone to you. Pull it

right up there and speak into it. You are here with your

family, yes.

 

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198 MORGAN - Direct

 

THE WITNESS: I'm sorry, Your Honor. If I could

repeat that.

THE COURT: Certainly.

THE WITNESS: The company sent me with other

employees to Miami to be with the families of those who

lost loved ones of flight 592 for about a two week period.

And then I was involved with management discussions and

coordination, et cetera.

BY MS. MOSCOWITZ:

Q. In your job, sir, did you know that certain doors on

ValuJet 592 had been opened on that flight, in violation of

McDonnell Douglas' recommendations and FAA rules?

THE COURT: That's a compound question. You will

have to break that down into several parts. Break it down.

BY MS. MOSCOWITZ:

Q. In your job, did you know that certain doors had been

opened on ValuJet flight 592?

A. No.

Q. Did you ever tell anybody, express to anyone that you

hope no one ever learned that various doors on the ValuJet

flight 592 had been opened?

A. No.

Q. Did you ever express to anyone that you hope that no

one learned that this was a violation of McDonnell Douglas'

recommendations?

 

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199 MORGAN - Direct

 

A. No.

Q. Did you ever express a view that had those doors been

closed as they should have been, the fire would have been

contained?

A. No.

Q. Are you stating, sir, that you never had this

conversation or you don't remember having such a

conversation?

A. I never said things like you asked.

Q. Did you have occasion to participate in a conference

call, arranged by a Sprint conference operator, in May 1996?

A. I participated in many conference calls that were

arranged through Sprint. I do not recall if I was involved

in any conference calls in May. I do know from June

forward, that I was.

Q. On the calls that you arranged through -- that you

participated on that were arranged through Sprint, were the

bills sent to your attention?

A. I don't recall if I saw and approved the bills or not.

Q. Did you yourself arrange those conference calls?

A. I do remember that as of June, I had responsibility to

set up conference calls and they were very frequent. I

don't remember if they were daily or not, but they were very

frequent. I don't know for sure, one way or the other,

whether I was doing that in the month of May.

 

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200 MORGAN - Cross

Q. Did you participate in a conference call arranged by a

Sprint operator on May 21, 1996, together with John Innis,

Mike Murlow, Steve Markoff, Russ Miratile, M-i-r-a-t-i-l-e,

Robert Pretty, P-r-e-t-t-y, and Alan Maine?

A. I don't recall being in a conference call in May, one

way or the other.

Q. Was your telephone number at that time, 770-907-2591?

A. Yes, it was.

Q. Was that your personal telephone number?

A. Yes, it was.

MS. MOSCOWITZ: Nothing further, Your Honor.

THE COURT: Anything further you wish to bring

out from your client?

MR. SALTSMAN: Not at this time.

THE COURT: Any other questions from anybody?

MR. BERRUTH: May I address the Court?

THE COURT: Do you have any questions?

MR. BERRUTH: No.

MR. BRIGHAM: I do, Your Honor.

THE COURT: All right. Go ahead.

CROSS EXAMINATION

BY MR. BRIGHAM:

Q. Mr. Morgan, as part of your responsibilities, did you

at any time, have personal knowledge of the operations of

ValuJet planes, the operations?

 

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201 MORGAN - Cross

 

A. I don't have personal knowledge of the operation of the

aircraft.

Q. Do you have personal knowledge with respect to the

requirements of the maintenance manuals with respect to

whether doors would be opened or closed?

A. No.

Q. Did you, at any time up through May 21 of 1996, have

such personal knowledge?

A. No.

MR. BRIGHAM: No further questions.

BY THE COURT:

Q. Anything you knew or might have known, in June or July

or whatever, about what was occurring on that airplane? Am

I correct in assuming that that information would have come

to you from someone else?

A. Yes, sir. I coordinated an effort on getting the

company started again and on getting attorneys together to,

you know, provide counsel and advise to different people in

the company.

But it was a coordination effort where I would set

up meetings. It was not an effort where I got into any of

the details from a technical standpoint or operational

procedure standpoint. It was administrative role.

Q. If anyone in the course of those administrative

responsibilities had volunteered information to you

 

TOTAL ACCESSTM COURTROOM REALTIME TRANSCRIPTION

202 MORGAN - Cross

 

concerning how the crash occurred, or what happened on the

flight, that would necessarily, would it not, have come from

someone else? It doesn't come from your personal knowledge?

A. Yes, sir, that's correct.

THE COURT: Thank you, sir, you may step down and

have a seat outside. We will get to you as quickly as we

can.

THE WITNESS: Thank you, Your Honor.

THE COURT: Question.

MR. BERRUTH: Robert Berruth on behalf of

ValuJet, Your Honor, and their insurers.

Your Honor, this may be in an abundance of

caution, but because there is ongoing litigation involving

ValuJet and, it's successor, AirTran, and because we have

questionings which are posed by counsel for the defendants

here, relating to this conference call, by and between

ValuJet, some of it's corporate officers and its counsel

inside and outside and it's insurer, we wish to assert the

attorney/client privilege as to these conversation taken

placed, and not be considered to have waived any such

privilege which exists or acquiesce in this questioning of

this witness, or any of the other participants to the phone

call.

And additionally, I may be putting the cart in

front of the horse here, for the next proposed witness,

 

TOTAL ACCESSTM COURTROOM REALTIME TRANSCRIPTION

203 MORGAN - Cross

 

Ms. Wheaton, who claims to be an invitee to the phone call,

which we do not agree to, accept, or conceive, such that

any privilege would have been destroyed. Any of her

testimony, we assert, would constitute an unwarranted

invasion into the attorney/client work product privilege

and defendant, its insurer, U.S.A.I.G., and all of the

individuals who are participants in the phone call.

THE COURT: Who would like to respond to that,

Ms. Moscowitz?

MS. MOSCOWITZ: First of all, Your Honor, with

respect to the attorney/client privilege, Ms. Wheaton, will

testify that it is Sprint's regular practice, and was in

this case, that they offer the special service of staying

on the line for you, so that if anybody has a problem, gets

dropped off, the operator can get them back on the line.

So, she was indeed invited to be on the call.

That waives the privilege. It was our position also, Your

Honor, that this call reflects an attempt to cover up

knowledge regarding the cause of this accident, which was

under active investigation by law enforcement agencies at

the time, and would certainly fall within the crime-fraud

exception to the attorney/client privilege.

With respect to the hearsay issues, there are two

levels of statements against interest, whoever was reporting

to Mr. Morgan was reporting a cause -- they are both --

 

TOTAL ACCESSTM COURTROOM REALTIME TRANSCRIPTION

204 MORGAN - Cross

 

whoever reported to him was an agent of ValuJet reporting

the cause of the crash.

THE COURT: How do you know that?

MS. MOSCOWITZ: Because it has to be somebody

with knowledge of the operation of that plane.

THE COURT: It could have been national

transportation safety board hoonshaw, whoever he was,

chairman of that board, could have told him, we

investigated this and it's our opinion, such and such, or I

found out doors -- we don't know who. He said that

whatever he learned, he would have learned from somebody

else. That, we know, then would be hearsay. Now we are

looking for an exception, whether or not there is an

exception.

MS. MOSCOWITZ: Certainly his statement is a

statement against the interest of ValuJet. He is inviting

a cover up. He says, we can't let the public know that we

violated the FAA rules in the McDonnell Douglas' safety

recommendations, and if we had done what we were supposed

to do, the fire would have been contained.

THE COURT: Well, I have a lot of difficulty with

that as being offered for the truth of the fact. That is,

that that event actually happened or may have happened on

the flight. It all depends on how he knows that

information. If, for example, his next door neighbor

 

TOTAL ACCESSTM COURTROOM REALTIME TRANSCRIPTION

205 MORGAN - Cross

 

leaned across the fence and said hey, did you know the

first officer went back and threw open the cargo door, and

squirted the fire with the fire extinguishers. And he says

no, how did you find that out. And he says, I heard that

it's all over the airport; everybody is talking about that

or whatever.

So he goes in the next day and he is on a

conference call and he says, I sure hope they don't find

out about that rumor that I've heard. That wouldn't make

the rumor truthful you see. It would be akin to somebody

coming in to -- I don't want to pick on you -- Mr. Dunlap's

office and saying Mr. Dunlap, I heard that in the murder

case last week, that John was the trigger man.

Mr. Dunlap gets on the phone and calls Mr. Raskin

and says, boy I hope they don't find out about your client,

John. I just heard he was the trigger man and then you

call Mr. Dunlap to -- the government does, to prove in the

murder case that John is the trigger man that killed his

wife.

So you see, the evidence that you wish to assert

for the truthfulness of the matter has to have some degree

of genuineness. We have to have some showing that, in

fact, it happened and is truthful --

MS. MOSCOWITZ: Your Honor.

THE COURT: because he could say, and indeed,

 

TOTAL ACCESSTM COURTROOM REALTIME TRANSCRIPTION

206 MORGAN - Cross

 

anyone could say anything. All you got to have is someone

that has made a statement that somebody went down the steps

of the courthouse this afternoon and said, did you know

that the first officer opened up the doors and squirted it

with a fire extinguisher, and tried to put the fire out.

How do you know at that? Well I heard the Judge say it.

Well, my goodness. So you call the guy to

establish that that is a truthful statement there. Herein

lies the problem with it. That it's the genuineness of the

statement, it's not that normally the person will say that

I said that they didn't keep the doors closed and the fire

got into the cabin.

MS. MOSCOWITZ: Your Honor, the context supplies

the guarantees of trustworthiness. The context is people

in what they wrongly believe was a private conversation

saying, I hope the public or the FAA does not find out that

we did not follow McDonnell Douglas' recommendations to

keep those doors closed. If the doors were closed, it

would contain the fires.

THE COURT: How does he know that? Does he know

that because his neighbor told him? Because the chairman

of the board told him or because somebody that had just

flown on the flight two weeks before and saw them throw

open the doors and had a normal procedure.

MS. MOSCOWITZ: They don't say it's a rumor, Your

 

TOTAL ACCESSTM COURTROOM REALTIME TRANSCRIPTION

207 MORGAN - Cross

 

Honor. They're trying to keep it quiet. You don't have to

keep it quiet, if it isn't true.

THE COURT: That's a quantum leap.

MS. MOSCOWITZ: That's what a statement against

interest is supposed to be. If you say something that's so

adverse to yourself, with any qualification, the

presumption is, it's true because otherwise, why would you

say something like that.

THE COURT: No presumption is true. It makes it

admissible, if it's otherwise genuine, a person then says

-- makes a statement to again, the person goes to

Mr. Dunlap and says, I shot my wife. Well, he wouldn't say

that if he actually didn't do it. Here, if you had a

person who survived the flight, the tragic flight that is

the bearer of that bit of evidence about the doors being

open, for example, hypothetically if the first officer

survived and he tells Mr. Morgan that we threw open the

doors, and I tried to put out the fire, and Mr. Morgan then

makes this admission against interest when he's talking

about the cooperate executives, then you've got the case of

probable genuineness of the statement of a legitimate

source and somebody who would know.

But for this man to repeat this, it's shocking.

It's attention grabbing, probably headline grabbing and

otherwise. But there's, without some showing that he was

 

TOTAL ACCESSTM COURTROOM REALTIME TRANSCRIPTION

208 MORGAN - Cross

 

doing anymore than repeating one, a rumor that he heard or

one of a dozen rumors he heard, saying that I hope they

don't find out about that, I hope they don't find out about

the duct tape inside, I hope they don't find out about the

dimming of the lights. But you have to proof the dimming

of the lights that were on the flight from Atlanta to

Miami.

But here, you don't have any proof of this being

something that came from -- the objection of the motion of

the limine is sustained, absent of showing that there's

something more genuine to the underlying fact that you

attempt to prove, which is someone on that flight threw

open the doors and attempted to put out the flames.

MS. MOSCOWITZ: Actually, I don't think that's

what it shows. I think it shows --

THE COURT: I've ruled on that. If you get some

other evidence, bring it in, fine. If you wish to call in

the lady, I will permit you to bring her in so you will

have a complete proffer.

MS. MOSCOWITZ: I think I should do that.

THE COURT: All right, call the lady.

THE COURT: By the way, I agree with you and make

this a finding that this is a crime-fraud exception to the

hearsay rule, quite clearly. I was just wondering when

somebody was going to bring it up, and you did it at your

 

TOTAL ACCESSTM COURTROOM REALTIME TRANSCRIPTION

209 WHEATON - Direct

 

earliest opportunity. I think, quite clearly, you can't

talk about the commission of a crime and have any degree of

attorney/client privilege, but that's for another matter.

Yes, ma'am. Would you kindly step up here? The court

reporter will show you where to sit.

KATHLEEN WHEATON, DEFENDANT'S WITNESS, SWORN.

DIRECT EXAMINATION

COURT REPORTER: State your full name, spelling

your last name for the record.

THE WITNESS: Kathleen Wheaton, W-h-e-a-t-o-n.

THE COURT: Could you repeat your name please?

THE WITNESS: Kathleen Wheaton, W-h-e-a-t-o-n.

BY MS. MOSCOWITZ:

Q. Mrs. Wheaton, where do you live?

A. Jacksonville, Florida.

Q. In 1996, where were you employed?

A. Sprint conference center.

Q. What did you do there?

A. I was a Sprint conference agent. I put up conference

calls and announced people into their conference and

monitored for any breaks or background noises.

Q. In arranging conference calls, would you know which

person was the speaker during a particular conversation?

A. Yes.

Q. How would you know that?

 

TOTAL ACCESSTM COURTROOM REALTIME TRANSCRIPTION

210 WHEATON - Direct

 

A. When someone called in, I would ask what conference

they were calling for. They would tell me. I would type

their name. Ask them how to spell it for our records, and I

would push enter and they would go up on to the screen and

it would tell what line they were on. When they would

speak, that line would fast blink. Otherwise, it would just

remain lit.

Q. In May 1996, did you arrange a conference call relating

to the ValuJet accident?

A. Yes.

Q. When was that call?

A. May 21.

Q. How do you know when it was?

A. How do I know when it was?

Q. How do you know the date?

A. Because I wrote it down.

Q. Tell us who was on that call?

A. I've got a list.

Q. If I show you your notes, would that help you refresh

your recollection?

A. Sure.

MS. MOSCOWITZ: I guess I would need to mark these

my next number for identification, which I think --

THE COURT: Oh, she's just using it to refresh

her recollection at this point and time, unless you want to

 

TOTAL ACCESSTM COURTROOM REALTIME TRANSCRIPTION

211 WHEATON - Direct

 

offer it into evidence.

BY THE COURT:

Q. What was the date of the call, ma'am?

A. May 21 at 10 a.m.

Q. Who was on the phone?

A. John Innis, I-n-n-i-s, Mike Murlow, M-u-r-l-o-w, Gil

Morgan, M-o-r-g-a-n, Russ Miratile, M-i-r-a-t-i-l-e, Steve

Markoff, M-a-r-k-o-f-f, Alan Maine, M-a-i-n-e, and Robert

Pretty, P-r-e-t-t-y.

BY MS. MOSCOWITZ:

Q. To the best of your recollection, Mrs. Wheaton, will

you tell us who said what during that call?

A. Gil Morgan said to the group "I hope the people or the

FAA never find out --

MR. BRIGHAM: Objection, Your Honor. The witness

is simply reading the document.

THE WITNESS: No, I'm not.

THE COURT: Tell us from memory as best you can

recall.

THE WITNESS: I hope that the people or the FAA

never find out we did not follow McDonnell Douglas'

recommendation to keep those doors shut. If the doors were

closed that would have contained the fire.

BY MS. MOSCOWITZ:

Q. What else did you hear in that call that you can

 

TOTAL ACCESSTM COURTROOM REALTIME TRANSCRIPTION

212 Wheaton - Cross

 

recall?

A. Mr. Innis talked about, I guess, they won't be Value

anymore. Their stock took a very big hit. Then, Mr. Morgan

said do not talk to anyone or make any press releases.

Refer them here to me.

MS. MOSCOWITZ: Thank you, Your Honor. I have

nothing further.

THE COURT: Anyone else have any questions?

MR. BRIGHAM: Yes, Your Honor.

CROSS EXAMINATION

BY MR. BRIGHAM:

Q. May I approach the witness to examine the document?

THE COURT: Yes, but let Ms. Moscowitz retrieve

it. She didn't offer it in evidence, and she'll let you

look at it for cross-examination purposes.

BY MR. BRIGHAM:

Q. Mrs. Wheaton, you indicated that you had written

certain notes during the conversation itself?

A. Right.

Q. What you just read from, those were not the notes?

A. I didn't read it.

Q. I'm sorry, the document presented to you, those were

not your notes?

A. Not my original notes, no.

Q. Do you still maintain those original notes?

 

TOTAL ACCESSTM COURTROOM REALTIME TRANSCRIPTION

213 Wheaton - Cross

 

A. Yes.

Q. Where are they here?

A. I've got one here.

MR. BRIGHAM: You Honor, I would ask for

production --

THE COURT: Let her finish the answer. You have

one there and --

THE WITNESS: The other one is at the house. I

re-wrote that to fax it because I couldn't send this via

fax machine because it is scrap paper at our station. We

were known as stations. So, if we have to write something

down to later type in the records, they made us make sure

of spellings of names and everything, because in the past,

people had claimed -- well, we didn't have that conference

call and they didn't want to pay. That's why we did that.

BY MR. BRIGHAM:

Q. Mrs. Wheaton, my question is, you have two groups of

notes, is that correct?

A. Right.

Q. Those notes you have, one document now in your hand?

A. Right.

Q. And you have another document at home?

A. Yes.

Q. That you have not produced, is that correct?

A. Right.

 

TOTAL ACCESSTM COURTROOM REALTIME TRANSCRIPTION

214 Wheaton - Cross

 

MR. BRIGHAM: Your Honor, we have made a formal

request for Jencks, and that would be another basis that we

would put forth on this case.

THE COURT: Are you going to try to persuade me

to let her testify because I've ruled, she can't.

MR. BRIGHAM: No, I'm not.

BY MR. BRIGHAM:

Q. With respect to the telephone conversations, you only

heard the voices during the conversations, is that correct?

THE COURT: What he is asking you ma'am, the

people weren't present in the room?

THE WITNESS: Oh, no. Absolutely not. I was

going to say that they were on my screen as they spoke.

MR. BRIGHAM: But when you said they were on your

screen, it would be orally not, visually.

A. Absolutely.

Q. This is the only telephone conference that you

monitored involving ValuJet?

A. Yes.

Q. With respect to the document that was shown to you, you

did not create that document on May 21?

A. No.

Q. You created that at a date after May 21?

A. Yes.

Q. When did you create this document?

 

TOTAL ACCESSTM COURTROOM REALTIME TRANSCRIPTION

215 Wheaton - Cross

 

A. What you have in your hand?

Q. Yes. The pink one that, I believe, was shown to you

earlier?

A. I re-copied it maybe a month ago.

Q. And that's approximately, more than four years after

the incident in this case?

A. Right.

Q. Should say more than three years?

A. Yes, yes.

THE COURT: Let me understand, ma'am, the paper

that you have in your hand now, when did you write that?

A. On the day of the conference.

THE COURT: That's what I thought. Let's don't

leave misleading impressions.

BY THE COURT:

Q. You wrote that down on the day of the conversation?

A. Right.

Q. What you have given Ms. Moscowitz was done so you could

fax it?

A. Correct.

Q. Those words that you told us about are what you

remember here from your notes at the time that the

conversation took place?

A. Exactly. That's correct.

MR. BRIGHAM: I'll be short, Your Honor.

 

TOTAL ACCESSTM COURTROOM REALTIME TRANSCRIPTION

216 Wheaton - Cross

 

THE COURT: Keep it factually accurate. You can

take all night. Let's don't leave the impression that she

sat down a month ago and wrote up this statement. It

didn't happen that way.

BY MR. BRIGHAM:

Q. Mrs. Wheaton, you never reported this conversation the

national transportation safety board?

A. No.

Q. And you never reported it to the Federal Aviation

Administration?

A. No.

Q. And you never reported it to any law enforcement

officials?

A. No.

Q. This is, in fact, the first time you reported it to

someone other than SabreTech officials?

A. No, I told my husband.

Q. Other than your husband?

A. That's correct.

Q. I see on the document, this is my last question, that

the first initial is M. What does that stand for?

A. Mattie.

Q. Mattie. Thank you.

A. That's my name.

THE COURT: Ms. Moscowitz, anything further?

 

TOTAL ACCESSTM COURTROOM REALTIME TRANSCRIPTION

217 Wheaton - Redirect

 

REDIRECT EXAMINATION

BY MS. MOSCOWITZ:

Q. To whom did you report this conference call first,

other than your husband?

A. You.

Q. How did that come about?

A. You were in the Sunday paper in Jacksonville, and I

read where the case was coming, and I had these papers in my

desk. And so it was like a Sunday evening, I called your

office and left a name on the answering machine, and you

called me the following evening, and I told you what I

heard.

MS. MOSCOWITZ: Nothing further, Your Honor.

THE COURT: Thank you. Would you wait outside

for just a moment, please?

THE WITNESS: Sure. Absolutely.

THE COURT: Unless there is something new that

has been developed, Ms. Moscowitz, I think that the proffer

was substantially what you told us it was going to be. I

didn't hear anything startling, new or different. I still

believe that my original ruling is correct.

There's no showing that this is anything more

than simply a rumor that Mr. Morgan may have heard from

somebody somewhere with no basis or foundation in fact.

Therefore to offer it for the truthfulness of the

 

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218 Wheaton - Redirect

 

event, that is, that someone on that tragic flight opened

the doors to the cargo compartment contrary to McDonnell

Douglas' recommended procedure, is not sufficient showing

that would warrant it to be injected into this trial and

argued to this jury.

We just don't have any idea where Mr. Morgan got

that. That's not your fault. So the motion in limine to

exclude it, that has been filed by non-attorneys to the

case, what's the government's position on this. Are you

objecting to this?

MR. BRIGHAM: Yes, Your Honor. We move in limine

also.

THE COURT: Then that motion of the government's

motion in limine is granted. Yes.

MR. MOSCOWITZ: Your Honor, on behalf of the

company, on behalf of SabreTech regarding this motion in

limine. Your Honor, basically, your ruling is that there

is no foundation on which an inference could be drawn that

this was more than a rumor that Mr. Morgan had heard.

THE COURT: No, I'm basing it on 80 something.

We could look it up. But the trial Judge has to be

satisfied with the accuracy, and authenticity, and

truthfulness, and genuineness of matters that are presented

in court.

When they come in by way of a hearsay statement,

 

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219 Wheaton - Redirect

 

even under the crime-fraud exception or some other

recognized exception, and here I am concerned and deeply

concerned that the shocking nature of the statement, would

far outweigh any probative value particularly given the

dubious nature of the source of the information.

Mr. Morgan was not on the plane obviously. He

therefore, had to hear it from someone who was not on the

plane because all on the plane as I understand it,

perished. So there was no one on the plane that could

testify that anyone did or did not open the doors to the

cargo hold which contained the fire.

Therefore, the underlying statement which she is

offering, and which is being proffered by the defense, for

the truthfulness of the matter, is not that requisite

showing of genuineness or truthfulness has not been

established to this Court's satisfaction.

Now that delineates the issue as clearly as I

can, so that there's some adverse ruling, this certainly

can be a matter that you discuss with The Court of Appeals.

I attempted to be as fair to all parties but

particularly in this instance to the defense to delineate

the issue as I perceive it. I just think that it would --

there's no showing that it's anything more than a rumor.

We don't have any idea where he got the information. I've

said all I can say on that. That's my ruling. It pertains

 

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220 Wheaton - Redirect

to all parties. The government sought it and the motion in

limine is granted. Who would be your next witness now? Do

you need some time to talk?

MR. DUNLAP: I have to see if Mr. Quintana is

here?

THE COURT: Do you need some time to confer? Do

you need a few minutes?

MR. DUNLAP: I need a few minutes to get my

witnesses and confer. I'm sorry, Your Honor. Forgive me

for not using the microphone.

THE COURT: That's all right. The court reporter

is able to hear most of it. Okay.

MS. MOSCOWITZ: May I be excused for a minute,

Judge? I want to tell Mrs. Wheaton she can go.

THE COURT: It's 4:32. How long is your next

witness?

MR. DUNLAP: It's Mr. Quintana. I just assume go

ahead and wrap it up. I want to take five or ten minutes.

THE COURT: Let's bring him back and then we will

see where we are.

MR. DUNLAP: May I be excused for one second.

MS. MILLER: Your Honor, you are requesting that

they not read the news in anticipating about any stories

about this matter.

THE COURT: I've been telling them three times a

 

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221 Wheaton - Redirect

 

day for ten days. Maybe I can get each one of them to

repeat it back to me. I don't know how to re-emphasize it.

I'll tell them again as I've been doing.

THE COURT: Bring in the jury.

[The jury returns to the courtroom].

THE COURT: Be seated. Ladies and gentlemen, we

have recalled Mr. Quintana for just a few additional

questions. Mr. Dunlap?

BY MR. DUNLAP:

Q. Mr. Quintana, on cross-examination Mr. Brigham asked

you about your testimony?

A. Yes, sir.

Q. And he indicated in part you were interpreting

documents for us?

A. I'm reading the documents, yes.

Q. I want to be clear, your testimony is also that you had

an eyewitness observation?

A. Yes, sir.

Q. It was Mr. Gonzalez at the controls --

THE COURT: He testified about that. He told us

about him driving the airplane into the hangar.

BY MR. DUNLAP:

Q. That plane you saw being taxied up to the hangar by

Mr. Gonzalez?

A. Yes, sir.

 

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222 Wheaton - Redirect

 

Q. Eventually, did you see what happened to that aircraft?

A. It stayed there for a period of time.

Q. Stayed where for a period of time?

A. Outside of the ramp.

Q. After that, did you see what happened to it?

A. The rest of the day, I don't know what happened.

Q. Thereafter, the next day, do you know what happened?

A. In the hangar.

Q. In the hangar? How long was it there?

A. I couldn't tell you exact period of time.

Q. Over a couple of weeks?

MR. BRIGHAM: Leading.

THE WITNESS: Over a week or two.

BY MR. DUNLAP:

Q. Do you know how long the plane was there?

THE COURT: He has told us. Overruled.

BY MR. DUNLAP:

Q. What did you see happening to the plane when it was in

the hangar?

A. In the hangar, just being worked on. Maintenance was

being performed on it.

BY MR. DUNLAP:

Q. Normal C-Check maintenance?

A. I really didn't see exactly what kind of maintenance

was going on, but that's the reason it was there for.

 

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223 Wheaton - Redirect

 

Q. Is there any question in your mind that the plane had

just arrived and it was going through the beginning of the

C-Check?

MR. BRIGHAM: Objection. Asked and answered.

THE COURT: He told us what happened.

Mr. Gonzalez drove it in and it was there for whatever

period of time.

MR. DUNLAP: Could I try to rephrase that last

question?

THE COURT: I beg your pardon?

MR. DUNLAP: Could I try to rephrase that last

question?

THE COURT: Any other question?

BY MR. DUNLAP:

Q. Is there any question, sir that while you saw it there,

it was beginning the C-Check process and moving through the

C-Check process?

MR. BRIGHAM: Objection. Asked and answered, and

cite the witness from indicating any --

THE COURT: Sustained.

BY THE COURT:

Q. What was the plane doing there, if you know. What were

they doing to the plane?

A. It looked like they were doing operational checks

outside the ramp.

 

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224 QUINTANA - Cross

 

Q. Outside the ramp. Did you see them doing some work on

it, inside the hangar?

A. Eventually it was in the hangar. I saw mechanics on

it.

Q. You saw mechanics on it?

A. Yes, sir.

Q. Can you tell this jury, what the mechanics were doing,

what type of maintenance or check?

A. I observed them doing, opening the aircraft up, that

type of maintenance. I didn't follow that aircraft. But

that's, mechanics were moving parts and removing panels.

That sort of thing.

Q. What would that indicate to you as an expert opinion?

Do you have an opinion as to what they were doing?

A. The beginning of the C-Check, which is opening the

aircraft for inspection.

Q. That's what it indicated to you in your opinion?

A. That's what it looked like to me, yes, sir.

THE COURT: Okay. Good enough.

MR. DUNLAP: Nothing further.

THE COURT: Anything for the government?

MR. BRIGHAM: Briefly, Your Honor.

CROSS EXAMINATION

BY MR. BRIGHAM:

Q. Mr. Quintana, you did not observe closely what was

 

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225 QUINTANA - Cross

 

going on in the hangar, is that correct?

A. No, sir.

Q. You did not observe what procedures were being

performed?

A. No, sir.

Q. And, in fact, you do not know what procedures were

being performed outside the hangar?

A. No, sir.

MR. BRIGHAM: No further questions.

THE COURT: You may be excused. Do you wish to

call another witness.

MR. DUNLAP: Not at this time, Your Honor. I

think we could excuse the jury at this time.

THE COURT: Any objection to releasing the jury

for the day?

MR. BRIGHAM: Absolutely not.

THE COURT: Ladies and gentlemen, we ask that you

leave any and all exhibits that you have on the desk or

leave them here, not your note books, you do whatever you

have been doing with those. Any exhibits give them to the

marshal. We have been advising you each evening,

instructing you each evening to not read anything in the

newspaper or watch anything on the T.V. or television.

Please continue following that instruction which

as you've know, I've given to you every day at noon and

 

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226 QUINTANA - Cross

 

night for the last ten days. Additionally, it may well be

that there be something on the news about the case today.

So it is particularly important today that you not permit

anything come to your attention except what you hear in

this courtroom.

At the end of the trial, it is my practice to

give to each juror a copy of any and all media material or

stories or anything that may have appeared. We give you a

little booklet, if there were any and we give that to you

so you get to read it later any way. Just trust me on

that. Don't read anything. Don't watch anything and don't

listen to it.

If anybody should try to talk to you about this

case as you're going from the courthouse or anywhere else,

if you get a phone call at home about anything about the

case, do not have any conversations with anyone about the

case, your work as a juror, what you are thinking, anything

like that.

I don't expect this to happen, but if it does, I

have to tell you what to do. Lastly, don't have any

contact at all with anybody connected with this case, I

mean with the defendants, witnesses, jurors, anybody else.

Anybody connected with the case. We thank you very much

for your patience. We are sorry we had the recess this

afternoon, but it was necessary. We will see you tomorrow

 

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227 QUINTANA - Cross

 

morning at 9:00. We thank you. Marshal, will you get them

to the elevator?

[The jury leaves the courtroom].

THE COURT: Anything further gentlemen, counsel

before morning?

MS. MILLER: No, Your Honor, we are just

discussing schedule here, of the possibility that when we

could be closing, because I think we are getting to that

point.

THE COURT: Use the microphone possibility, that

you could do what? That you could locate that happiness

thermometer? Your possibility of doing what?

MS. MILLER: Our schedule, since we seem to be

getting near to the point where we might be closing. I'm

just trying to determine with counsel and perhaps with the

participation of the Court, a timetable for our charge

conference and scheduling.

THE COURT: You had indicated originally that you

thought you had about two days of testimony. Where are we

in your guesstimate at this point?

MR. MOSCOWITZ: Your Honor, I think tomorrow, we

will rest.

THE COURT: What time?

MR. MOSCOWITZ: It depends. What we expect to do

is -- there are documents which we will seek to move in.

 

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228 QUINTANA - Cross

 

The only other witnesses, at this time, we anticipate

possibly are the defendants. The decision cannot be made

now as to whether they will testify or not. If they

testify, they will be our final witnesses.

THE COURT: So right now, we have documents, a

possibility of one or more defendants?

MR. MOSCOWITZ: Yes, sir. That would be our

case. I would expect that we would rest tomorrow.

THE COURT: We should be finished by noon and

ready for a charge conference and closing argument

tomorrow.

MR. MOSCOWITZ: I don't know if the government

intends on a rebuttal case, Your Honor.

THE COURT: Excuse me. Very good point. Do you

anticipate a rebuttal case, and if so, how long will it

might take?

MS. MILLER: Based on what we have heard so far,

our only rebuttal might be to seek introduction of some

documents. Of course, we also need to see what develops

tomorrow.

THE COURT: All of this is without prejudice.

This can change. But this is just an estimate.

Mr. Moscowitz?

MR. MOSCOWITZ: Your Honor, assuming that we

finish tomorrow, I don't know the government's position, we

 

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229 QUINTANA - Cross

 

would ask that would be able to have closing the following

day, which would be Thursday, as oppose to having to close

tomorrow.

THE COURT: Well, I don't want to end up arguing

this thing to the jury and sending them out at 4:00 on

Friday afternoon. I want to give all of you whatever time

you reasonably want to take for closing argument.

I don't anticipate the charge conference is going

to take that long. You've already gone through all of your

theories on Rule 29 that deal with the various elements of

the offense. I know pretty much what your respective

position are with respect to the charges involving 1,001,

Section 1,001 and section, part 145, and all of these

statutes that been involved in this case.

I don't anticipate the charge conference is going

to take more than half an hour or hour. Most of my charge

conferences take five minutes, but that's in your typical

Cali Cartel drug case. It takes five minutes. This is a

little bit different, of course.

I want to give you plenty of time. I assume you

want it. Maybe you don't. What are you talking about for

closing argument? Maybe that's a happy solution to this

thing getting back to our happy thermometer.

MR. DUNLAP: Maybe an hour or less, Judge.

THE COURT: I was hopeful for a moment, you were

 

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230 QUINTANA - Cross

 

talking about all three of you.

MS. MOSCOWITZ: I couldn't go a full hour, Your

Honor.

MR. RASKIN: We believe that for SabreTech, under

an hour as well.

THE COURT: So approximately, two and a half,

three hours for the defense. First of all, we will ask how

long you would like?

MS. MILLER: We would like two and a half, three

hours to be split between our opening and our rebuttal.

THE COURT: So, we are looking at approximately

five and a half, six hours of closing argument. I presume

the instructions will probably take in this case to read to

the jury about 40 minutes, something like that. So we are

looking at seven hours, you see.

That's an awful lot to cross examine into one

day. That's why I would like to get some of it done

tomorrow afternoon because otherwise we have lapsed into

Friday, and if we have some sort of problem with a juror

delay, with a juror arriving on time, we are pushing it on,

Friday afternoon. It doesn't bother me, but I don't like

to send them out to commence their deliberations late in

the afternoon when they've sat here all day listening to

arguments. It seems to me, it would be a good idea to get

into closing argument tomorrow afternoon, and break it into

 

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231 QUINTANA - Cross

 

whatever reasonable, convenient way.

MS. MILLER: Judge, I don't want to be in a

position of having divide my closing argument, and I don't

want to be cut off from all the other closing arguments.

THE COURT: Are you seriously suggesting that you

want to subject this jury to listening to six hours of

closing argument in one day, just because you don't want to

divide your time up?

What would be wrong with the government making

their opening statement, and then the defense and then the

government coming back to the closing argument. This is

done frequently. I can't imagine that we can expect any of

them to absorb anything in your closing argument, your

rebuttal argument, after they've been sitting here for five

hours, and then you get up for an hour of closing.

I see no problem, in fact, I think it's

advantageous to a better verdict, a more thoughtful verdict

to break it up a little bit, when it is this long.

If we were talking about an hour and a half for

the government, 30 minutes aside for each defendant, three

hours. But six hours of closing argument, either followed

by 40-45 minute charge on the same day which, of course, by

that time, not only would their rears be numb, but their

whole bodies would be numb. It's too much.

Now, of course, I could always charge them on

 

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232 QUINTANA - Cross

 

Friday morning, but then again, there we are with 800,063

exhibits and six hours of argument, and a massive amount of

legal instructions and out they go. So, then we are

looking at next week. I'm thinking out loud. I don't know

if seems to me that what we trying to do is get some of

this argument out tomorrow.

MS. MILLER: If defense counsel would be willing

to hold it to two hours total, the government would also.

Then we could do it all on Thursday.

THE COURT: If we are in closing argument tomorrow

at 1:00, what's wrong with starting and going as far as we

can go? If the government is going to do an hour and a

half, and let one of the defense lawyers go for an hour and

then pick up the next day with the other two defense

counsel, and then the government winds up, and we charge

them, and/or they come back Friday morning with nothing to

listen to, but a 40 minute charge and then they've got all

day Friday to deliberate.

MS. MILLER: Your Honor, that's fine. Whatever

the Court wishes. We can be ready tomorrow.

THE COURT: I understand. Mr. Moscowitz, or

anybody, Mrs. Moscowitz, that wants to, what is your input

on this problem?

MS. MOSCOWITZ: That's fine. If we can have the

government and one closing tomorrow afternoon, that would

 

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233 QUINTANA - Cross

 

be okay.

THE COURT: I don't propose and I'm not

suggesting we run the trial all day until 4:00, and then

ask the government to make closing statement. But if we

are at the point where we are simply ready when we finish

up everything in the morning, and all we have got is a

charge conference, and then commence the argument. It

seems to me at that point, around noon then I see no harm

in proceeding with the opening of the government with

whatever they wish to take and then taking one, perhaps one

of the defense.

I wouldn't break the government off. Let's say,

they take an hour and a half, it wouldn't stop them at 1:30

in the afternoon and say, we are all going to go home. I'm

trying to keep this jury from getting paralysis of their

whole bodies, including their brain with listening too THE

We will leave it on the basis that it should be that, it

may well be that, we will be at the government's opening

phase of their closing argument at 1 or 1:30 tomorrow

afternoon, which let us assume you haven't said you want to

leave for rebuttal, but do you know?

MS. MILLER: Your Honor, since we will be

starting tomorrow, we will want to then have a maximum of

three hours for our total. My guess is I will probably

break it up to two hours for my opening, and one hour for

 

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234 QUINTANA - Cross

 

rebuttal.

THE COURT: Then that's going to be pushing us

toward around 4:00 for someone to get up for 45 minutes to

an hour or up to an hour.

MS. MOSCOWITZ: Can we take a look at them then,

and see if they are still alive?

THE COURT: I wouldn't mind, but I don't think

it's fair to either side. I wouldn't require you to put

your argument on one day and then the government the next

in it's entirety. Then we have to be around 11:00 in the

morning. If we are going to do that, then we have to be

here at 8:00.

MR. MOSCOWITZ: Your Honor, with regard to the

charges, we have what we call a first draft of our version

of the instructions. They are complete except they are

lacking the defense instructions for Eugene Florence and

for SabreTech.

As we have gone through it this afternoon, I've

noticed there are a number of changes that need to be made.

Mr. Florence is still in the haz-mat counts, and there are

a couple of other changes. I submit these to the Court so

the Court can see essentially what we are proposing in

terms of the instructions.

THE COURT: Ms. Kramerman has brought to my

attention to the government's proposed charges given my

 

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235 QUINTANA - Cross

 

rulings today will have to be substantially altered and

redone which you have not anticipated. You have submitted

fine proposed instructions, but given the rulings today,

there will be substantial changes.

We have to put them in form to give them to the

jury. We give the jury a complete set of instructions to

take into the jury room, and that does involve some amount

of typing and Xeroxing and organizing. I guess what I'm

asking is that why don't you keep these and put them in the

file shape that you think you are going to want them in and

have them in the morning so that --

THE COURT: Why don't I ask counsel to meet here

at 8:00, and go over the charges that each of you have and

see if we can agree on 11th Circuit pattern jury

instructions, those you can agree upon. And then I will

meet with you at 9:00 for 15 or twenty minutes.

We will let the jury regrettably wait, and then

we will start at 9:30 with the jury. I will ask that you

meet here at 8. Go through each others. Go through one

set, object or don't object. Covered by defense. Pair it

down to something that all of you can agree on, and then we

will take up the ones that you don't agree on at 9:00.

Then we will give it to Ms. Kramerman at 9:30. And she

will have a clean set for us by noon.

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

 

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236 QUINTANA - Cross

 

permission, I believe Mr. Brigham will represent the

government at 8. I will be working on my closing.

THE COURT: That will be fine.

MS. MILLER: Should we also prepare a redacted

version of the indictment to conform the indictment to the

Court's rulings, today?

THE COURT: As you all know, I ordered that done

several months ago to be furnished to me at the time we

started the trial, and that did not occur. You all

overlooked my order or whatever, so I didn't have a

statement of the case to tell the jury about at the time we

started the jury selection.

So I made it up. Hopefully, I did it accurately.

We certainly will need a redacted copy. There's nothing to

be redacted. We eliminate Florence out of the even number

of counts VIII through XXII. We eliminate Valenzuela,

Mr. Moscowitz's client.

MR. MOSCOWITZ: Ex-client. You let me out.

THE COURT: That's right. So I suppose those

names you want out of the indictment, do you.

MS. MILLER: Well, Your Honor, Mr. Valenzuela's

name should stay in count I because he was the actor in

certain overt acts, which remain overt acts in the

conspiracy.

THE COURT: Well, I'll look at your proposed

 

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237 QUINTANA - Cross

 

redacted indictment. The indictment does go to the jury

when they go out. So I'll look at that, if you can have

that in the morning that will be helpful. We will ask

Mr. Brigham to meet with counsel at 8:30. Now listen, I

want you to spend that hour going through the instructions.

It's pointless to get here and for me to go through 50

charges, and one of you say, we have no objection, and the

other say, that's covered by 83, 43. Let's get it all into

a packet that you can boil it down to exactly what it is

you disagree about. All right. Thank you.

COURTROOM DEPUTY: All rise.

MR. BERRUTH: Your Honor, may I address the

Court? I apologize.

THE COURT: Yes. It's all right.

MR. BERRUTH: Robert Berruth again, on behalf of

ValuJet. Judge, you made a pronouncement or statement

earlier following argument of Ms. Moscowitz with regard to

the attorney/client privilege matter.

THE COURT: Which only applies to this case. It

does not affect, involve or not intended to be involved in

any way, in any ongoing civil litigation or administrative

litigation, or anything else in the world in the United

States or anywhere else.

It was a ruling on what was before me in this

particular case, and I did not make the ruling nearly as

 

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238 QUINTANA - Cross

 

elaborate as I'm sure the Court of the Appeals would have

hoped that I would have done, simply because I was trying

not to make any pronouncement that was to effect any other

decision any other judge's decision or anybody else.

MR. BERRUTH: I appreciate you for clarifying

that, Your Honor. Obviously, we take exception to that

pronouncement since ValuJet is not a party here and did not

have the opportunity to put on witnesses or cross examine

witnesses and in the absence to all the other parties of

the phone call, which the proffer of that testimony was

taken, we feel it's terribly unfair to ValuJet to have a

consideration of that issue without hearing all actual

potential evidence on the issue.

THE COURT: Even though your motion was granted?

Are you trying to persuade me to change my mind? Make up

your mind.

MR. BERRUTH: I'm not going down the road again.

I simply wanted it make my statement for the record.

THE COURT: When you win, you know, it's bad

enough in this division as my old evidence Professor said

50 or 60 years ago. He said, after the Judge has ruled,

just advice to young lawyers or new lawyers, or any

lawyers, let no dog bark. Particularly, he could have

added when they rule in your favor because they might be

persuaded to rule the other way, if I listen to you long

 

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239 QUINTANA - Cross

 

enough. Let's leave it alone.

I've done the best I can to make sure your client

is not harmed by anything that I've ruled upon in this

case. But I have to rule on what was presented to me

because this matter may end up in the appellate court and

they need to know why I ruled the way I did. It's only

fair to the parties in this case. Ms. Moscowitz?

MS. MOSCOWITZ: Your Honor, it just dawn on us, I

now have to prepare a closing argument for tomorrow. We

have a number of records that we wanted to move in. The

government has stipulated to the authenticity, but has some

relevance objections, and I see Your Honor getting ready to

leave, and I thought we could prevail upon you to some of

them. Some of them are relevant to what I would say in

closing.

THE COURT: I had thought that we had allocated

approximately 9:30 to 11 to get all of that into evidence.

Now, if a defendant decides to testify, then this whole

schedule will have to be, of course, adjusted. How many

exhibits do you have?

MS. MOSCOWITZ: There are five or six of them. I

can run through them quickly. I will tell, Your Honor, the

ones that I that I need to know before I could prepare a

closing argument are particularly what is on our list as

ST11, which are selected maintenance records from ValuJet N

 

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240 QUINTANA - Cross

 

904, that's the accident aircraft. There's no question as

to their authenticity. The government agrees.

THE COURT: Just tell me what they are.

MS. MOSCOWITZ: They are a group of about 20 or

30 records showing electrical problems on that airplane

from the period December 25, 1995 through the date of the

crash.

THE COURT: All right. Why does the government

suggests, if the government does, that these records are

not material?

MS. MILLER: Because, Your Honor, simply to say

that there had been electrical problems for a period of six

months preceding the crash is not relevant to the issues in

the crash. A proximity in time, and some connection of

those -- some facial connection of those problems with

circumstances on the day of the crash, would be required.

So of the electrical problems --

THE COURT: I don't think so. I think what you

would need to do, and to take care of this problem would

simply re-introduce all maintenance records of the

aircraft. Then Ms. Moscowitz can argue to the jury that

look, on December 26, they couldn't fix coffee in the

galley. You would say, Uh-huh, got you on that one because

on that same day, they put in a brand new galley and fixed

it.

 

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241 QUINTANA - Cross

 

The question is whether or not the maintenance

records are relevant. I think the maintenance records

clearly, are relevant on this aircraft, whatever they show.

If they show fault, three problems or repairs on the

problem, if they do not. They were material. The fact

that she is offering select portion, the government can

offer any other portion they wish to as part of the

complete record.

So, the ruling has to be because it's certainly

admissible and certainly relevant, if there was something

drastically wrong with that airplane and it wasn't

repaired, the jury is entitled to present that as evidence

for this case and argue whatever they wish to argue from

that. Is there any problem with presenting the entire

maintenance file on that aircraft? I'm sure it's

available.

MS. MOSCOWITZ: I don't have it. The government

does. I'm perfectly happy for them to move it in, and I

would use my abstract. All I have is now is the abstracts.

THE COURT: It is the ruling of the Court that

your extracts are being marked for identification as

exhibits --

MS. MOSCOWITZ: ST11, Judge.

THE COURT: And there are about 20 or so parts of

that, are admitted into evidence without prejudice to the

 

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242 QUINTANA - Cross

 

government's right for the entire maintenance file on the

aircraft, if they elect to do so. You can decide in the

morning.

[Defense Exhibit ST11 received in evidence].

MS. MOSCOWITZ: The others, 8, 9 and 10 which we

have had previously marked for identification, Your Honor,

are the entire maintenance records relating to 802, 803 and

830. These reflect all the work that was done on the

C-Checks on those. Those are the three MD-80s that were

the ValuJet project in the spring of 1996. It gives

context to the work that was done on the oxygen generators.

As it stands now, I think the jury may have the impression

that everybody was working on oxygen generators from

January through May. I think they have a right to know all

the work that was done on those planes.

THE COURT: These are the three Aserca Airlines?

MS. MOSCOWITZ: These are the three ValuJet

airplanes, Your Honor, 802 and 803 are the ones that the

used generators came off of. Those are the planes that

Mr. -- 802 was the plane that Mr. Florence was working on,

the other three are the sum total of the ValuJet planes

being worked on at that time.

THE COURT: And you are offering the maintenance

record on three ValuJet aircrafts?

MS. MOSCOWITZ: Yes, sir, for the maintenance

 

TOTAL ACCESSTM COURTROOM REALTIME TRANSCRIPTION

243 QUINTANA - Cross

 

performed by SabreTech during that time period.

THE COURT: This is the time period that preceded

the tragic crash, and this is the work that mechanics were

doing that includes not only the oxygen generator removal

refurbishing replacement, but anything else they may have

been doing?

MS. MOSCOWITZ: Yes, sir, exactly.

THE COURT: The materiality you suggest is to

show that they were busy doing a lot of work?

MS. MOSCOWITZ: Yes, sir, exactly.

THE COURT: What is the government's reason for

asserting, it is not material.

MS. MILLER: Your Honor, we do assert that it is

not material. It will also be confusing to the jury under

provisions of 403. There is no issue that the mechanics

were working on other matters that can be established and

has been established.

But we are talking, Your Honor, about six linear

feet of technical maintenance records that would come into

the jury with no explanation, no way of sorting through

them that would make them meaningful in any way. It is not

an issue in this case. No one has contended that other

work that was done on these aircraft was relevant to

anything in this case. These documents serve no purpose to

illuminate anything at issue in our case.

 

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244 QUINTANA - Cross

 

THE COURT: She just told you the purpose. The

purpose was to show that the mechanics were busy on a

number of things. And, it is the function of counsel in

closing argument to illuminate to the jury, the

significance of any exhibit that is admitted into evidence.

So if they fail to do so, it's not the problem of the jury.

It's the problem of counsel. These records, maintenance

records for the purpose that is suggested show a

materiality that is sufficient to mandate their admittance.

The objection is overruled. The documents will be admitted

into evidence.

[Defense Exhibits 8, 9 and 10 received in evidence].

THE COURT: Now, what else do you have? That's

for the stated purpose of basically showing a great number

of jobs being performed. Now, if there's something buried

in that six linear feet of documentation that you are going

to argue to the jury, above and beyond, the business

necessary here, I need to know it now so that the

government will not be mouse trapped into having to deal

with something that they didn't pick up or overlook in six

linear feet.

MS. MOSCOWITZ: Sandbagged was the term that I

always heard.

The only fact in those files that I know of that I

would use in closing arguments other than the fact that

 

TOTAL ACCESSTM COURTROOM REALTIME TRANSCRIPTION

245 QUINTANA - Cross

 

there is a mountain of them which is the main thing, is

that, there is a record in there which I have yet to put my

hands on in the file, but I know it's there, saying that the

802 aircraft did not leave until May 9.

THE COURT: What is the materiality of that?

MS. MOSCOWITZ: If everybody was rushing so hard

on May 4 to get the plane out, how come in didn't go out

until five days later?

THE COURT: You can utilize that. That's proper.

What else?

MS. MOSCOWITZ: ST15 and 16 for identification

are the same sets of records for the two Aserca aircraft

705 and 720.

THE COURT: For the same purpose? So show that

they were busy on the circuit.

MS. MOSCOWITZ: Yes, sir.

THE COURT: The objection is overruled. The

motion is grant. Admitted into evidence.

MS. MOSCOWITZ: May I consult one moment, Judge?

THE COURT: Yes.

MS. MOSCOWITZ: I'm not going to offer some that

are on the exhibit list. The only other thing I have is

ST2 for identification. It is a government document. It

is called FAA aging transport, none structural systems

plan. It is a report by the FAA in which they discuss the

 

TOTAL ACCESSTM COURTROOM REALTIME TRANSCRIPTION

246 QUINTANA - Cross

 

problems, I'm sorry two more, the problems in inspecting

wiring on aging aircraft, aging aircraft being planes over

14 years. This one was 27 years old.

THE COURT: I'm sorry. Who authored this

document?

MS. MOSCOWITZ: The Federal Aviation

Administration.

THE COURT: It purports to outline problems with

inspection?

MS. MOSCOWITZ: Problems with wiring on old

airplanes, including the fact that --

THE COURT: Why don't you call somebody to tell

about that if that's going to be -- in a vacuum, pulling a

book off the library shelf and saying, here it is and it

was written by the head of the National Transportation

Safety Board or whatever, that's sort of putting evidence

in a vacuum without any ability to cross-examine.

MS. MOSCOWITZ: Actually, Mr. Fogg acknowledged

this plan that's reported in this document during this

cross-examination. I gave it to the government. They had

it. It was available for them for their redirect.

THE COURT: Let's see what their objection is.

What is your objection?

MS. MILLER: Your Honor, we object that this is

getting us into the same area as the NTSB report. It is

 

TOTAL ACCESSTM COURTROOM REALTIME TRANSCRIPTION

247 QUINTANA - Cross

 

the government's desolation of opinions of aging aircraft.

It is not relating to this case. It is not specific to

this aircraft, and as such, is no more admissible than the

NTSB report conclusions would be. Especially, when it

comes in untethered to any witness providing any

relationship of these issues to this case.

THE COURT: I'll reserve ruling on it. Look at

it in the morning. What is the number of it?

MS. MOSCOWITZ: We have it in as ST23. I would

like to point out that the NTSB report could likely have

been admitted by us. It is, whatever, that public records

hearsay exception. It's the government that can't admit

public records. We are entitled to admit them A) as a

public record, and B) as admission. So the objection,

doesn't cover this particular document. Again, it was

acquiesced to by Mr. Fogg.

THE COURT: Number 17. Leave it here tonight.

MS. MOSCOWITZ: 23. I'll give Your Honor a copy.

THE COURT: 23. Leave it here. I'll review it

and take that under advisement. What else?

MS. MOSCOWITZ: There are, I have from McDonnell

Douglas, copies, authentic copies of the maintenance manual

which has the page issued in July 1998, which states that

you can either use a shipping cap on an oxygen generator or

you can secure it by an equivalent method.

 

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248 QUINTANA - Cross

 

THE COURT: The objection is sustained. What

exhibit is that?

MS. MOSCOWITZ: ST31, Your Honor.

THE COURT: That will be marked for

identification, but not go to the jury. What else?

MS. MOSCOWITZ: Finally, ST27, 28 and 29 which

are SabreTech corporate proposed exhibits. They are

amendments to the contract between ValuJet and SabreTech,

one each for 802, 803 and 830. That's how the contract

relationship develops over the period of time that the

plane is being worked on, as it turns out, more or less

work needs to be done on various parts of the plane. It's

my understanding that the government --

THE COURT: I'll look at that at 9:30 when we

start --

MS. MOSCOWITZ: Fine. I understand and I don't

care about that one.

THE COURT: Okay, well, then I might as well

sustain the objection.

MS. MOSCOWITZ: No, I didn't mean that.

THE COURT: We will see counsel then at 9:00.

You will have to clean off your desk. I have other

hearings tomorrow morning at 8:30.

COURTROOM DEPUTY: All rise.

(Proceedings concluded at 5:15 P.M.)

 

TOTAL ACCESSTM COURTROOM REALTIME TRANSCRIPTION

249

 

C E R T I F I C A T E

I hereby certify that the foregoing is an accurate

transcription of proceedings in the above-entitled matter.

 

 

______________ _______________________________________

DATE FILED ROBIN CARBONELLO

Official Federal Court Reporter

Federal Justice Building, Ste. 1127

99 Northeast 4th Street

Miami, FL 33132 - 305/523-5108

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

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