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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

DECEMBER 1, 1999

SABRETECH, INC.

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

EUGENE FLORENCE,

 

Defendants.

 

 

 

JURY TRIAL PROCEEDINGS

BEFORE THE HONORABLE JAMES LAWRENCE KING,

SENIOR UNITED STATES DISTRICT JUDGE

DAY 11

APPEARANCES:

FOR THE GOVERNMENT:

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

GEOFFREY BRIGHAM, A.U.S.A.

J.L.K. FEDERAL JUSTICE BUILDING

99 N.E. 4th Street

Miami, FL 33132 - 305/961-9432

SPECIAL AGENT JOHN LONG

OFFICE OF INSPECTOR GENERAL

DEPARTMENT OF TRANSPORTATION

SPECIAL AGENT MIKE CLARK

OFFICE OF INSPECTOR GENERAL

DEPARTMENT OF TRANSPORTATION

 

 

 

2

SPECIAL AGENT JACQUELINE FRUGE

FEDERAL BUREAU OF INVESTIGATION

 

FOR DEFENDANT SABRETECH:

JANE RASKIN, ESQ.

MARTIN RASKIN, ESQ.

RASKIN & RASKIN, P.A.

2937 S.W. 27th Avenue, Suite 206

Miami, FL 33133 - 305/444-3400

 

NORMAN MOSCOWITZ, ESQ.

SULLIVAN RIVERO & MOSCOWITZ, P.A.

Miami Center, Suite 2550

201 South Biscayne Blvd.

Miami, FL 33131 - 305/371-7781

 

FOR DEFENDANT FLORENCE:

JANE MOSCOWITZ, ESQ.

MOSCOWITZ STARKMAN & MAGOLNICK

100 S.E. 2nd Street, Suite 3700

Miami, FL 33131 - 305/379-8300

FOR DEFENDANT GONZALEZ:

ROBERT DUNLAP, ESQ.

DUNLAP & SILVERS, P.A.

2601 S. Bayshore Drive, Suite 601

Miami, FL 33133 - 305/854-9666

 

 

REPORTED BY:

ROBIN MARIE CARBONELLO

Official Federal Court Reporter

J.L.K. Federal Justice Building

Suite 1127

99 Northeast 4th Street

Miami, FL 33132 - 305/ 523-5108

 

 

 

 

 

TOTAL ACCESSTM COURTROOM REALTIME TRANSCRIPTION

3

 

INDEX

 

Description Page Line

 

CLOSING ARGUMENTS:

BY THE GOVERNMENT .....................74 1

BY DEFENSE FLORENCE ...................148 15

N PB,D LC,E B

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

UNITED STATES vs SABRETECH, ET. AL - 12-1-99

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MORNING SESSION

9:00 A.M.

THE COURT: I have before me the government's

jury instructions labeled "second version," which I believe

is the up-to-date, current instructions. I also have the

defendants' jury instructions. Have you had an opportunity

in this past hour and ten minutes to get together and

consolidate some of these? Mr. Moscowitz.

MR. MOSCOWITZ: We have, Your Honor, we just

haven't finished going through it. We have gone through, I

believe, most of them. We have agreement on many of the

standard instructions. We have disagreements on a number

of the offense instructions, and a number of additional

instructions we wish to give. I think we need about

another half hour or 40 minutes to complete going through

them. I think we can get together a single set. I can

tell, Your Honor, with regard to the defense case, we will

not have any further testimony this morning. All that is

left is to seek the admission of some additional exhibits

and then we will rest.

THE COURT: All right. We will defer

commencement of the charge conference with appreciation for

your efforts this morning in the last hour or two to

attempt to resolve some of the differences that you have.

We will proceed, at this time, with the jury and take

 

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whatever documents or exhibits or other matters that you

wish to present. After that, we will take any rebuttal

testimony that the government may have. Then after that,

we will have a charge conference. Are we ready to bring in

the jury?

MS. MILLER: Your Honor, perhaps, if there are

contentions over the exhibits, we should deal with those

before the jury comes in. They will probably --

THE COURT: All right. Do you have any

objections?

MR. DUNLAP: Your Honor, a couple of these relate

to Ms. Moscowitz, and we are awaiting her arrival, just in

the office.

THE COURT: Let's take the ones that don't

involve her.

MS. MILLER: I don't know that there are any

disagreements on any that don't involve Ms. Moscowitz, Your

Honor.

THE COURT: So the ones, as far as you know, are

those that involve the defendant Florence?

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

THE COURT: We are taking up the objections to

the defendant Florence's proffered documents.

MS. MOSCOWITZ: Your Honor, we may have an

agreement on an exhibit, if you will indulge us a moment.

 

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MS. MOSCOWITZ: Your Honor, the government and

the defendants have reached an agreement on ST11.

THE COURT: Let's bring in the jury and offer it

into evidence.

MS. MILLER: Your Honor, Mr. Dunlap is telling me

of additional exhibits.

THE COURT: I want to take up the ones that you

disagree with, and let's get them resolved.

MS. MOSCOWITZ: Well, we disagree, on my 23 which

is the FAA aging transport non-structural systems plan.

THE COURT: This is the one that we were talking

about last evening?

MS. MOSCOWITZ: Yes, sir.

THE COURT: I think I understand the government's

objection. How do you distinguish this from any other

document? Why is it not necessary to call somebody that

can be cross-examined on the opinions of this person?

MS. MOSCOWITZ: It's a government report, Your

Honor, that would come in under the public records

exception. It's authentic, and it is admission and a

public record.

THE COURT: Pardon me. The objection is

sustained. It will be marked for identification. Mark it.

What else do we have?

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

 

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minute. Mr. Dunlap has some additional documents. It

might be that I could agree with them. I do need a moment

to look at them, Your Honor.

THE COURT: I think we can do all of this in

front of the jury. They can offer it and you can glance at

it, and make your objection and let's move on. There were

only two exhibits last night that we haven't talked about.

This is one of them. The other one, I don't know what it

was. It is the one, I believe, that Ms. Moscowitz referred

to as not caring if it got into evidence or not. I know

she was being facetious at the end of the day. But if we

can have that document, I'll make a ruling on it, and then,

life goes on. What is that document?

MS. MOSCOWITZ: By agreement, 27, 28, 29 --

THE COURT: Just tell me about those that you

don't agree on.

MS. MOSCOWITZ: I don't know any other ones we

don't agree with.

MR. RASKIN: We agree with everything else, Your

Honor.

THE COURT: You agree on everything else. All

right. Fine. Bring in the jury.

[The jury returns to the courtroom].

THE COURT: Thank you. Be seated, please.

Mr. Raskin?

 

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MR. RASKIN: At this time, SabreTech would like

to move some exhibits into evidence. We would like to move

in SabreTech Exhibit Number 14.

THE COURT: Show it to Ms. Miller and see if she

has any objection?

MS. MILLER: No objection.

THE COURT: SabreTech Exhibit 14 is admitted into

evidence.

[Defense Exhibit 14 received in evidence].

MR. RASKIN: Thank you, Your Honor. It's a

haz-mat table.

SabreTech Exhibit 13 which is another haz-mat

table.

MS. MILLER: No objection, Your Honor.

THE COURT: SabreTech Exhibit 13 is admitted into

evidence.

[Defense Exhibit 13 received in evidence].

MR. RASKIN: SabreTech would also introduce

Defendant's Exhibits 27, 28 and 29 which are amendments to

the ValuJet contract, Your Honor.

MS. MILLER: No objection, Your Honor.

THE COURT: SabreTech Exhibit 27, 28 and 29 are

each admitted into evidence.

[Defense Exhibit 27, 28, 29 received in evidence].

MR. RASKIN: Your Honor, SabreTech would also

 

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move to admit, at this time, SabreTech Exhibit Number 8,

which are the maintenance records of ValuJet plane 802.

It's extremely voluminous, and I suggest that we bring it

up at the next break.

MS. MILLER: I have no objection either to the

exhibit or to the procedure counsel proposes.

THE COURT: What was the number please?

MR. RASKIN: 8.

THE COURT: SabreTech Exhibit Number 8 is

admitted into evidence.

[Defense Exhibit 8 received in evidence].

MR. RASKIN: I would also offer for admission,

SabreTech Exhibit 9, which are the maintenance records

concerning ValuJet plane 803, and I would propose the same

procedure.

THE COURT: Without objection, admitted into

evidence.

MS. MILLER: Correct, Your Honor.

[Defense Exhibit 9 received in evidence].

MR. RASKIN: I would also propose admitting into

evidence SabreTech Exhibit Number 10, which are the

maintenance records for ValuJet plane tail 830. And I

would propose the same procedure.

MS. MILLER: No objection, Your Honor.

THE COURT: Admitted into evidence.

 

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[Defense Exhibit 10 received in evidence].

MR. RASKIN: I offer into evidence SabreTech

Exhibit 11 which are the maintenance records, some

maintenance records concerning ValuJet aircraft tail number

904.

MS. MILLER: Your Honor, based on my agreement

with Ms. Moscowitz and that record, we have no objection.

MR. RASKIN: We have no objection, Your Honor.

THE COURT: The number is?

MR. RASKIN: 11, Your Honor.

THE COURT: 11 is admitted into evidence.

[Defense Exhibit 11 received in evidence].

MR. RASKIN: Your Honor, I believe that's it.

THE COURT: All right. Mr. Dunlap, anything

further?

MR. DUNLAP: Could I have just one second to

confer with Ms. Miller, Your Honor?

THE COURT: Sure.

MR. DUNLAP: Your Honor, we have a composite

exhibit 12A, B and C for Mr. Gonzalez.

THE COURT: Gonzalez Exhibit 12A, B and C is

admitted into evidence.

[Defense Exhibits 12A, B, C received in evidence].

MR. DUNLAP: Thank you, Your Honor.

Your Honor, we have a stipulation also. Douglas

 

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aircraft serial number 45837 is the same aircraft YV720C.

THE COURT: The stipulation is recognized.

Anything further for the defendant, Gonzalez?

MR. DUNLAP: No, Your Honor.

THE COURT: The defendant, Gonzalez, rests?

MR. DUNLAP: Yes, Your Honor.

THE COURT: And the defendant, SabreTech, rests?

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

THE COURT: Ms. Moscowitz?

MS. MOSCOWITZ: Your Honor, defendant, Florence,

rests.

THE COURT: Are you in a position to either rest

for the government or call a rebuttal witness?

MS. MILLER: Your Honor, in rebuttal, I will be

presenting some documents. If you can give me a moment, I

can see if we have them in the courtroom or I need to fetch

them from downstairs.

THE COURT: That will be fine. We will take a

ten minute recess. Thank you.

[The jury leaves the courtroom].

[There was a short recess].

COURTROOM DEPUTY: All rise. Court is in

session. The Honorable Judge James Lawrence King

presiding.

THE COURT: Be seated. Does the government have

 

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any rebuttal testimony?

MR. BRIGHAM: Yes, Your Honor. We do not have

any rebuttal testimony, but just some particular exhibits.

THE COURT: Have you reviewed it, Mr. Raskin?

MR. RASKIN: I have, Your Honor.

THE COURT: Have any objection to it?

MR. RASKIN: I don't. Mr. Dunlap may.

THE COURT: Mr. Dunlap?

MR. DUNLAP: No particular -- the government is

offering exhibit 114, which is a part of the composite

Aserca exhibit. I have no objection to it as long as I can

feel free, as I am, to pull documents out from the

composite exhibit to show the jury as well. If I can have

one second with Ms. Heck.

THE COURT: All right. We are going to have to

move forward. Let the government offer it. You make your

objection, and I will rule on it. Bring in the jury.

[The jury returns to the courtroom].

THE COURT: After that, I propose to excuse the

jury until after lunch so we can take up the charge

conference. Is that all right?

MS. MOSCOWITZ: Yes, sir.

MR. DUNLAP: Yes, sir.

MR. RASKIN: Yes, Judge.

THE COURT: Thank you, be seated. The

 

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defendants, and each of them, have rested their case. Now,

we will ask the government if they have any rebuttal

evidence they wish to present.

MS. MILLER: Your Honor, the government offers in

evidence what we will make a Government Exhibit 113, which

is the complete maintenance records of aircraft N904VJ.

MR. RASKIN: No objection, Your Honor.

THE COURT: The document is admitted into

evidence as Government Exhibit 113.

[Government Exhibit 113 received in evidence].

MS. MILLER: It is also voluminous, Your Honor.

We will physically bring it in later.

THE COURT: All right.

MS. MILLER: We also move into evidence

Government Exhibit 114, which is a two page document from

the Aserca records.

MR. RASKIN: No objection.

MR. DUNLAP: No objection, Your Honor.

THE COURT: The exhibit is admitted into evidence

as Government Exhibit 114.

[Government Exhibit 114 received in evidence].

MS. MILLER: Your Honor, that completes the

government rebuttal presentation. The government rests.

THE COURT: All right. Ladies and gentlemen, we

have to take up the matter of the Court's instructions on

 

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the law with the lawyers. We do this outside of your

presence. That is to say, you need to be in the jury room

or excused until we have completed this. We anticipate

that this may take an hour or so, maybe longer. So we are

going to excuse you until after lunch.

After lunch, you will return, and we will

commence the closing arguments in the case after lunch. We

invite you to go out, relax, take a walk around or

something. You will be listening to closing arguments this

afternoon. Closing arguments.

Please remember the instruction not to discuss

the case with anybody or listen to anything or read

anything or observe anything on television.

Let me ask all of you whether or not any of you

read, saw or heard anything about the case since you left

here yesterday? When you left here yesterday until today.

I'm advised there has been some publicity about the case.

We are not going to be upset with you. We need to know.

Did any of you innocently or accidently hear anything or

read anything about the case?

[All jurors indicated negative]

THE COURT: All right, thank you. We appreciate

very much you following those instructions. We ask that

you continue to do that. Marshal, if you'll take those

going to the elevator on down. We will return this

 

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afternoon at 1:00 today. Thank you very much.

[The jury leaves the courtroom].

THE COURT: Mr. Moscowitz, you had indicated that

you thought if you had another half hour, you might be able

to make some headway.

MR. MOSCOWITZ: We did not speak any further with

the government after the last break.

THE COURT: I understand.

MR. MOSCOWITZ: We met from 8:00 to 9:00, but

then we had not yet finished.

THE COURT: You said, when we last visited on the

matter of instructions, that if you had another half hour,

you thought you could resolve some of the areas of dispute,

that are invited in this stack of paper. Do you think that

would be productive or not? Maybe we could go through it

quicker right here. I don't know.

MR. MOSCOWITZ: I think it would be productive if

we could come to some agreement and speak about it

together.

THE COURT: All right. It's six minutes after

ten. We will resume at 10:36 with the charge conference.

Thank you.

COURTROOM DEPUTY: All rise.

MR. DUNLAP: Your Honor, may I be heard on a

matter? It's very brief.

 

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THE COURT: Yes, sir.

MR. DUNLAP: With regards to today's schedule, we

are going to reconvene at 2:00. I don't know --

THE COURT: At 1:00.

MR. DUNLAP: I'm sorry, Your Honor. I don't know

how long Ms. Miller will be. I understood --

THE COURT: She said about an hour and a half to

two hours.

MS. MILLER: Yes, sir.

MR. DUNLAP: It was my understanding from

yesterday's conference at the end of the day, that we were

going to proceed with Ms. Miller and with Ms. Moscowitz. I

was working until 10:30 or 11:00 last night with jury

instructions. I got up early and came here at 8:00. I was

planning on following Ms. Moscowitz, but I have not had any

time to prepare my closing argument today.

I would ask that after Ms. Moscowitz's closing,

we could adjourn for the day so that I could have the

evening to prepare and review my notes, and if I could

close tomorrow morning, I would greatly appreciate it.

THE COURT: I wish we had known this before

because I'm cancelling hearings that I have at 1:30 to

bring them back at 1:00, so we could hopefully, get two of

these out of the way today, the opening of the government

and two of the defense.

 

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On this basis, we are probably going to be -- if

we start at 1:00, even if Ms. Miller takes two hours, which

she may not, but even if she does, that would put us at

3:00. Ms. Moscowitz has an hour. That would put us to

4:00.

See, this is what Ms. Miller wanted me to do last

night was to put this off, so she could have time to

prepare. She didn't specifically put it that way. Reading

between the lines, I assume that probably that's what she

was concerned about, and that is having to stay up most of

the night preparing, and getting the instructions ready and

everything else.

I don't think it's fair on my part to make her do

that and extend a courtesy which she wanted yesterday. I

have a problem with balancing the fairness. She has been

under the same pressure all of you have, even perhaps more,

so because you are able to divide the work a little bit or

have been doing so, as I understand it. I don't know what

to tell you, Mr. Dunlap.

Am I right about my guessing about why you wanted

to do this on Thursday, Ms. Miller? Does that give you

another day?

MS. MILLER: Your Honor, I thought that witnesses

don't have to answer as to their thought process.

THE COURT: You're not a witness. You're a

 

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lawyer.

MS. MILLER: I won't dispute the Court.

THE COURT: Well, I was just reading between the

lines. I was guessing. Obviously, the reason she didn't

want to sit here all day long in arguments, but she wanted

another day to get ready. I required her to get ready

under that kind of pressure.

MS. MOSCOWITZ: Your Honor, I'm ready. And

that's two today and three tomorrow. It's not so, the

proportions aren't so terrible.

THE COURT: Well, what it amounts to then is

you've got two hours of defense tomorrow, and one hour of

government response.

Ms. Miller, do you have any thoughts on this, you

or Mr. Brigham?

MS. MILLER: Your Honor, I always hate to impinge

on a courtesy that another attorney asks. I am concerned

about fairness issues. That was one reason why I did not,

even though the Court has read between the lines, the lines

also were true. I didn't want to be just giving my

argument and cut off from other counsel.

THE COURT: Oh, no. We wouldn't do that.

MS. MILLER: Your Honor, I guess I'm saying this

is one in which we take no position.

THE COURT: Then we will take Ms. Moscowitz and

 

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recess for the day.

COURTROOM DEPUTY: All rise.

[There was a short recess].

THE COURT: Thank you, be seated please.

Starting with the government's proposed jury instructions.

No problem with number one, I take it. No problem with

number two, I take it. Number three is standard. It seems

to be all right. Number four is standard. You tell me if

there's any objections. Number five, standard. Number six

is standard.

MR. MOSCOWITZ: Seven does not apply, Your Honor.

THE COURT: Seven is withdrawn?

MR. BRIGHAM: Yes, Your Honor.

THE COURT: All right. Seven is withdrawn.

Number eight, expert witnesses. That's fine.

Number nine.

MR. MOSCOWITZ: No objection.

THE COURT: Let's see if we need to give it. Do

you need to give it, do you think?

MR. BRIGHAM: There was a statement --

THE COURT: I remember that, but it was just a

statement given in an administrative hearing, I wouldn't

call it --

MR. BRIGHAM: If the defense doesn't care for it,

we don't care for it, Your Honor.

 

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MR. MOSCOWITZ: We don't want it, Your Honor.

THE COURT: I don't really think -- we have got

so many to read to them. Unless you feel it will be

helpful to them, all right. We will take it aside.

MR. MOSCOWITZ: Ten is withdrawn by the

government.

MR. BRIGHAM: Yes, Your Honor.

THE COURT: Ten is withdrawn.

MR. MOSCOWITZ: 11, without objection.

MR. BRIGHAM: Agreed.

THE COURT: Yes, I've already told them this.

THE COURT: 12, note taking.

MR. MOSCOWITZ: No objection.

THE COURT: I appreciate it, Mr. Moscowitz, but

let me kind of run through them. If somebody has an

objection, that would be easier.

13, any objection?

MR. MOSCOWITZ: Yes, Your Honor. We are going to

object to 13 and 14 and 15. This description of the

functions of the department of transportation and the FAA

are not part of the elements of any of the offenses. I

don't believe they are necessary in these instructions.

Your Honor, 14 which describes the function of

the FAA, I don't believe is accurate as of the time of this

offense. This is the admission of the FAA which has been

 

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amended. So I think this is really surplusage in these

instructions.

THE COURT: Where would the jury be informed, for

example, looking at page 14, instruction 14 at the last

paragraph? How would the jury be informed that repair

stations are required to maintain records, adequate records

and so on. Where would they be advised of that?

MR. MOSCOWITZ: Your Honor, I would agree that

the third paragraph goes to the issue of jurisdiction 1001.

We simply, with regard to that paragraph, part of the 1001

instruction would have a different series of regulations

describing the scope. As to the first two paragraphs,

that's a surplusage.

THE COURT: Mr. Dunlap?

MR. DUNLAP: I just want to reiterate

Mr. Moskowitz's point. I believe a description of the

requirement for a repair station to maintain records, is

fully set out in the regulations that we were discussing

yesterday at jurisdiction. That's the law. I believe

that's the sum total of what the jury needs to and should

be informed of.

THE COURT: Well, part of the function of

instructions, of course, is to define for the jury,

language in a statute or language in something, give them

definitions that they can work with, and apply to the

 

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jury's findings concerning the facts from the record.

These voluminous depositions, these voluminous regulations

that you all have been bombarding me and Magistrate Judge

Brown, I think, with through these many months, probably

need to be summarized in some fashion.

Maybe the language here can be improved upon or

not. Do you have any charges touching upon, any defense

charges touching upon any of these areas that are touched

upon in 13, 14 and 15.

MR. MOSCOWITZ: Yes, Your Honor. The issue of

the regulations describing the jurisdiction of the FAA is

part of our 1001 charge. The Court, based on your prior

rulings, may not accept that entire charge.

THE COURT: Which page?

MR. MOSCOWITZ: It's page 25. That's the 1001

charge. It's starting in the middle of page 26, it

discusses jurisdiction.

THE COURT: Well 13, that's an accurate statement

of the law.

MR. MOSCOWITZ: 13 is correct.

THE COURT: The objection is overruled. I will

give 13.

14.

MR. MOSCOWITZ: Your Honor, I think the second

paragraph is not the description of the FAA's function.

 

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This may be an accurate description of it's function now,

but it's function has been amended at the time of the

crash. At the time of the crash, I don't have the

definition with me, it's functions were described as others

in addition to promotions of safe flight. It had to do

with promotions of aviation, promotions of commerce. This

is simply inaccurate, and I don't believe this paragraph is

necessary for the jury charge.

THE COURT: You say that this does not describe

all of the functions of the FAA. You do not, I take it

dispute that insofar as it goes, it is accurate. It simply

leaves the wrong impression and it doesn't describe

everything? Is that --

MR. MOSCOWITZ: Right this paragraph says, "it's

mission was to promote safe flight." In fact, the way

Congress -- it's mission now reads "safe flight is it's

primary mission."

Back in 1996, there were three other parts of

it's mission, and safety, I believe was third or fourth.

It was not this definition. I don't even think this is

necessary, Your Honor, to these instructions.

THE COURT: The objection to 14 is overruled. It

will be given.

Number 15.

MR. DUNLAP: May I make a specific objection?

 

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THE COURT: You've got a specific objection to

everything that everyone of you objects to.

MR. DUNLAP: May it please the Court, could I

simply add to what Mr. Moscowitz said very briefly, Judge?

THE COURT: All right. But as we go through

these, if you would please, indicate that you wanted to be

heard on a given one above and beyond what somebody else

says. But go ahead.

MR. DUNLAP: I'm sorry, Judge.

THE COURT: It's all right.

MR. DUNLAP: I simply want to make it clear that

our argument on jurisdiction is still preserved. We

believe that the only thing the jury should be informed of

is what the regs say about the jurisdiction of the FAA.

In that regard, we believe the jury should be

instructed based on those regs. It is our continued

position that air station service records are only within

the jurisdiction of the FAA insofar as they pertain to

aircraft that are FAA registered. That's set forth, that

type of registration, in the language in our 1001 count. I

want to preserve that and object to any jurisdictional

language that conveys any other impression. Particularly,

I want to reiterate what Mr. Moscowitz has said. That any

admission statement of the FAA, any general language, is

really germane to jurisdiction. It's surplusage and I

 

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don't think it helps illuminate the question of

jurisdiction for the jury. It only tends to reinforce the

government's broader view.

THE COURT: The objection is overruled.

The objection to defense 15 is overruled. It will

be given.

16, introductions to offense instruction.

MR. BRIGHAM: I believe we are in agreement to

that.

MR. MOSCOWITZ: Your Honor, we have one

correction. On the top of page 17. The second line should

read a destructive device and adding an "on" or "in" the

proximity. So it's "on" or "in."

THE COURT: All right, it will be added in.

Any objection to instruction 17, the general

conspiracy charge?

MR. MOSCOWITZ: Your Honor, we don't object to

the charge as given. We do have an addition to it which

the government objects to. That's on page 23 of our

instructions. We have added in, Your Honor, the names of

the unindicted co-conspirators who the government has given

pursuant to our request for a Bill of Particulars. And

also, an additional sentence regarding the liability of a

corporation charged as a co-conspirator under 11th Circuit

law.

 

UNITED STATES vs SABRETECH, ET. AL - 12-1-99

26

 

THE COURT: Mr. Brigham, do you have any

objection to the final paragraph on page 23 of defense

requested instruction?

MR. BRIGHAM: No, Your Honor. We do not.

THE COURT: All right. I am going to deny the

request to add in these names developed in discovery, but

will include --

Number 18?

MR. MOSCOWITZ: I think the government wishes to

withdraw 18.

MR. BRIGHAM: Yes, Your Honor.

THE COURT: Withdraw 18. If you wish to withdraw

something, just tell me.

19 is still requested, any objection to it?

MR. MOSCOWITZ: Your Honor, yes, we object, and

we have our own proposed instruction 19. It's instruction

15 on page 25 which tracks the standard instruction, Your

Honor, but describes the statutory basis of jurisdiction as

it relates to this count.

THE COURT: Let's see how it differs. Where does

it commence to differ?

MR. MOSCOWITZ: First of all, on the first page,

third paragraph, it says both the department of

transportation and the Federal Aviation Administration. We

would disagree with including the department of

 

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27

 

transportation on the false statement counts, since the

false statement counts only relate to the FAA. The

indictment carefully defines the jurisdiction of the

department of transportation as related to hazardous

materials and jurisdiction of the FAA as relating to

maintenance records.

THE COURT: Any objection to deleting the

department of transportation?

MR. BRIGHAM: Yes, Your Honor. The Federal

Aviation Administration is part of the department of

transportation. We have indicated that the department of

transportation had jurisdiction over --

THE COURT: But you didn't indict that way. He

says, you simply indicted the FAA.

MR. BRIGHAM: No, that's not true. We included

both, Your Honor.

THE COURT: Which one of you is telling me the

truth?

MR. MOSCOWITZ: If you look back at the

government's proposed instruction 15, the description of

department of transportation relates to hazardous

materials. That's really the definition in the indictment.

MR. BRIGHAM: Your Honor, in the indictment

itself, if I may, count II with false statements begin each

of the false statements --

 

UNITED STATES vs SABRETECH, ET. AL - 12-1-99

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THE COURT: It says department of transportation

FAA. So they've tracked the language of the indictment

apparently. The objection is overruled. Where else does

it deviate?

MR. MOSCOWITZ: Your Honor --

THE COURT: You've added after a trivial detail.

You've added a whole bunch, you've added a page and a half.

Do you have objection to the page and a half commencing

with the first full paragraph on page 26 of the defense

instruction? Do you have objection?

MR. BRIGHAM: Yes, Your Honor.

THE COURT: Tell me about it.

MR. BRIGHAM: Your Honor, this returns to the

jurisdictional issue. The Court has, as a matter of law,

determined that there is jurisdiction in this particular

case. This issue was addressed to the defendants. We had

a witness waiting. They objected to the testimony of the

witnesses, for our ability to prove this factually. This

is simply another attempt to address this issue in the

contents of the instructions.

MR. MOSCOWITZ: Your Honor, this is simply a

statement of what we believe are the applicable regulations

which set out the FAA's jurisdiction with regard to

maintenance records. This is not factual argument. This

is citation to the Federal aviation regulations themselves.

 

UNITED STATES vs SABRETECH, ET. AL - 12-1-99

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I don't know if counsel is arguing that these are incorrect

citations and regulations.

THE COURT: Let me hear from Mr. Dunlap.

MR. DUNLAP: With the Court's permission to

reiterate what Mr. Moscowitz said, and to address what

Mr. Brigham's comments were, the Court found jurisdiction

to the purpose of Rule 29. We argued in limine against

Mr. Weise that it was not the province of an expert to tell

the jury what he thinks jurisdiction is. We believe, of

course, it is appropriate for the Court to instruct the

jury on what the law says and what the regs say about

jurisdiction. Nonetheless, it is for the finder of fact,

the jury to take that law, the regulations, and determine

whether under the facts of this case, the documents refer

to fall within that jurisdictional framework.

THE COURT: The government's objection to defense

requested jury instruction 15 is sustained. The defense

objection to government's requested charge number 19,

dealing with false statements to a Federal agency is

overruled. The instruction will be given. It follows

substantially the pattern jury instruction, and it will be

given.

Number 20 requested charge will be given.

MR. MOSCOWITZ: Your Honor, may I state my

objection?

 

UNITED STATES vs SABRETECH, ET. AL - 12-1-99

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THE COURT: To number 20?

MR. MOSCOWITZ: Yes, there's no basis in the

evidence supporting the reckless disregard charge. The

evidence does not show and we are not going to argue --

THE COURT: How about the odd number charges from

7 to 23, wasn't reckless part of it?

MR. MOSCOWITZ: No, Your Honor. There is a

separate recklessness charge. This is offered with regard

to the false statement counts, which is --

THE COURT: Whatever it is offered for, it's just

a definition. Quote, a reckless disregard of the truth

with conscious purpose to avoid learning the truth is

sufficient show that a false statement was made willfully

with knowledge of its -- it's a definition. It can apply

to anything you want to argue to.

MR. MOSCOWITZ: But, Your Honor, this specific

sentence applies to the specific intent to the making of

the false statement. With regard to the false statement

counts, there's no evidentiary basis for a reckless

disregard the truth instruction. There's no argument.

THE COURT: I'm not going to tell them, it's a

1001 charge or define it with anything. It seems to be an

accurate definition of what is a reckless disregard of the

truth. In other words, the closing of your eyes to know

what you should have known, it's a fairly standard charge.

 

UNITED STATES vs SABRETECH, ET. AL - 12-1-99

31

 

You are just worried that they are going to argue that in

reference to the false statement counts?

MR. MOSCOWITZ: Which is the way this charge is

written, Your Honor. I believe that there has to be -- to

have a reckless disregard of the truth charge, there has to

be evidence in the record showing a conscious effort to

avoid learning the truth. A mere absence of knowledge is

not the basis for evidence of a conscious disregard of the

truth. I don't believe there is a basis for this.

THE COURT: Well, look what it says, it says with

a conscious purpose to avoid learning the truth. That's in

the definition, and that's what you say they need to do.

You say there must be some evidence in the record to

support that.

MR. MOSCOWITZ: To support, to justify giving

that charge as a matter of law.

THE COURT: Your objection is overruled. It will

be given.

Number 21, hazardous waste.

MR. MOSCOWITZ: No objection, Your Honor.

THE COURT: Number 21 will be given.

Number 22?

MR. MOSCOWITZ: No objection.

THE COURT: Number 22 will be given.

Number 23?

 

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32

 

MR. MOSCOWITZ: We do object, Your Honor. We

have an alternate proposed instruction which is instruction

number 16 on page 28. I don't know if the Court wishes me

to summarize the essence of our --

THE COURT: Let me take a look at it first and

see where you deviate.

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

permission, I am going to step out for a few minutes.

THE COURT: I'll hear from you, Mr. Brigham, on

whether or not you have objection to the defense requested

charge number 16.

MR. BRIGHAM: I do, Your Honor. The government's

jury instruction tracks the language of the statute. The

defendants interpose their own interpretation which is

inaccurate. For example, they require knowledge of the

regulation itself. They require knowledge that the

material has been actually classified as hazardous

material. They claim that we must show that the defendant

specifically knew of the regulation. As Ms. Miller has

argued to the Court, in cases of this nature dealing with

hazardous materials, that type of requirements is not

necessary.

The government's proposed jury instruction tracks

the language of the statute. The statute simply states that

a person who willfully violates a regulation shall be fined

 

UNITED STATES vs SABRETECH, ET. AL - 12-1-99

33

 

under the Title 18. That's what we cited. We have two

elements. The defendant violated a hazardous materials

regulation, and that the defendant violated that regulation

willfully.

THE COURT: Isn't it the position of the

government that SabreTech specifically knew of all the

regulations and, indeed, had to know of them because they

put them in all of their training manuals and all the other

documentation in the evidence. So isn't it your position

that SabreTech did specifically know of the regulations in

question and the statutes' criminal prohibition against

filing them?

MR. BRIGHAM: I believe the evidence supports

that. However, --

THE COURT: Forget the evidence. Isn't it the

government's position that SabreTech specifically knew of

all of these regulations and of the statutes, criminal

prohibition against violating it, which is what they've

asked me to tell the jury? If that's going to be the

argument that they knew this because it was in all the

manuals and all the regulations, they've got all of this

hazardous waste and all of this, if that's going to be your

argument then why not tell them that's going to be a

requirement.

MR. BRIGHAM: It's not our position. Our

 

UNITED STATES vs SABRETECH, ET. AL - 12-1-99

34

 

position is that they knew that the type of conduct was the

type of conduct that might fall under regulatory

requirements because it's dealing with hazardous materials.

You can act willfully in violating regulations without

knowing the specific regulation, but knowing that, for

example, you are dealing with hazardous materials that

would be likely regulated.

THE COURT: Relying on what, Justice Douglas'

opinion in International Metals?

MR. BRIGHAM: That would be one authority, Your

Honor.

THE COURT: Basically ignorance of the law is no

excuse.

MR. BRIGHAM: Especially when you are handling

hazardous materials.

THE COURT: Mr. Moskowitz?

MR. MOSCOWITZ: Your Honor, it's my understanding

that is their possession that we heard on argument, and

that we proceed on that basis. That their position is that

we did know of these regulations, we did know these were

hazardous materials and knowing that, we willfully violate.

Moreover, Your Honor, that is the law with regard to a

specific intent statute which makes it a crime to willfully

violate an administrative regulation. That is simply black

letter law in this circuit and throughout the United

 

UNITED STATES vs SABRETECH, ET. AL - 12-1-99

35

 

States. If the crime is willful violation of a regulation,

then the evidence must show that the defendant knows of

those regulations, which he is alleged to have willfully

violated.

The case I rely on, Your Honor, which we cite

here is 11th Circuit case United States v. Frade, 709 F.2d

1387, which discusses this very issue of when you've got a

regulatory scheme where the allegations, where the crime

charges willful violation. Frade says "because the

activities are unlawful are spelled out in administrative

regulations, and include items not generally known to by

controlled by the government, it cites the earlier 5th

Circuit case, the regulatory provisions must be actually

known and intentionally violated for a crime to be

committed." Frade goes on to say, "a finding that a

defendant is aware that his conduct is generally unlawful

is insufficient to sustain a finding of guilt under a

statute requiring specific intent." The government cites

--

THE COURT: What were the facts of the Frade case

if you have them?

MR. MOSCOWITZ: Frade, Your Honor, was a Trading

With The Enemy Act case, out of this district, and it had

to do with the Mariel boatlift people violating the

regulations regarding transporting of Cuban refugees. So

 

UNITED STATES vs SABRETECH, ET. AL - 12-1-99

36

 

that's that specific case.

THE COURT: Somebody brought some refugees here

from Cuba, factually in that case, and they were charged

with what? With violating the Trading With The Enemy Act?

MR. MOSCOWITZ: Regulations under the Trading

With The Enemy Act which forbade that activity.

THE COURT: And they were convicted?

MR. MOSCOWITZ: Right.

THE COURT: And the appellate issue was?

MR. MOSCOWITZ: Was there evidence that they were

aware, since this was a willful violation that was alleged,

the evidence had to be that they were aware of those

regulations forbidding their transporting those persons

which was in violation of the Trading With The Enemy Act.

THE COURT: The case was reversed?

MR. MOSCOWITZ: Yes.

THE COURT: I have problems with that. I've sent

for the book. Do you happen to have a copy of the opinion?

MR. MOSCOWITZ: I do, Your Honor.

MR. MOSCOWITZ: Your Honor, there's a more on

point decision.

THE COURT: Which one?

MR. MOSCOWITZ: United States v. Davis, which is

maybe even more analogous. Davis is a 1978, 5th Circuit

case, which is an arms export control violation case where

 

UNITED STATES vs SABRETECH, ET. AL - 12-1-99

37

 

the defendant exported a sawed-off shotgun. Everybody

knows that a sawed-off shotgun is a weapon. Under other

statutes, you were forbidden to possess it. But there, the

issue is, he was convicted of exporting a sawed-off

shotgun, which is a violation of the Arms Export Control

Act. And a saw-off shotgun is on the admissions list, so

he would have required a license to export.

The Court of Appeals held that because this was a

willful violation of administrative regulations

specifically, that you need a license for weapons on

admissions list, the evidence had to show that he was aware

that a sawed-off shotgun was prohibited under the

admissions list. Again, this is the exactly the same

point, Your Honor. There has to be specific knowledge of

the regulations at issue. It seems to me that is analogous

of the hazardous waste. You may be aware that something is

genuinely dangerous material, but the issue is, is it a

hazardous material as defined under the regulations? There

has to be a showing that you are aware of the regulations.

THE COURT: Well, it runs contrary to Justice

Douglas' opinion in International Metals, does it not?

MR. MOSCOWITZ: No, Your Honor. Respectfully, it

is not. Because the statute in International Metals, was a

knowing violation. That was not a specific intent, willful

statute. Knowing violation, it's well said, just requires

 

UNITED STATES vs SABRETECH, ET. AL - 12-1-99

38

 

knowledge that you are engaging in the activity which is

prescribed. That's all that case stands for. We don't

disagree with that at all. But where there is a willful

requirement, that is a higher level of knowledge, and there

the requirement is that you are specifically aware of the

regulations you are alleged to have violated.

THE COURT: How can you have a knowing violation

of the statute without knowing about the statute?

MR. MOSCOWITZ: Knowing violation simply means

that you know -- that you are aware of the act you are

engaging in. That is sulfuric acid you are aware that you

are transporting sulfuric acid. If you think it's water,

then is not a known violation. You don't have to know that

transporting sulfuric acid is specifically regulated by a

regulatory scheme. If it was a willful violation that was

alleged, you would have to know that sulfuric acid was a

substance which was prohibited to be transported by that

regulatory scheme. That goes to what was intended as

required by the statute.

It's just like, Your Honor, with the firearm

statute. There's no willfulness requirement with regard to

somebody possessing a machine gun. That's because the

statute doesn't require that knowledge. If you possess a

machine gun, and you know it's a machine gun, you are

violating the statute. That's not a willful intent statute.

 

UNITED STATES vs SABRETECH, ET. AL - 12-1-99

39

 

THE COURT: Dealing first with U. S. v. Frade

F-r-a-d-e, 709 F.2d 1387, a 1983 decision by now deceased

Judge Robert Vance reversing Judge Davis, Judge Edward B.

Davis. I observe that this case arose after this Court's

en bank decision in 1982, which dealt with the Mariel boat

lift, and the allege violation of existing regulations and

laws, which is, as I remember, this Court struck down.

The Polygram v. Morris case, 496 F.Supp 1042, in

April of 1980, 10,800 Cuban citizens claiming status as

political refugees and sought sanctuary in the Peruvian

embassy in Havana on April 14, 1980. President Carter

declared that pursuant of the Refugee Act of 1980, up to

3,500 of these refugees would be admitted into the United

States. He allocated up to 4.25 million dollars for their

resettlement.

This is recorded in 45 FR. 28079, April 28, 1980.

An airlift was started, but within three days Castro

stopped the flights and announced that anyone who wanted to

leave could do so through the harbor at Mariel. Almost

immediately, small boats funded by the members of the

American community began leaving Key West.

Now, it's within that context that two priests of

Grace Church were asked by the parishioners to arrange for a

large boat to bring over a large number of refugees. The

boats name was The God's Mercy. The priests, with no

 

UNITED STATES vs SABRETECH, ET. AL - 12-1-99

40

understanding that of any changes in regulations went ahead

in good faith and arranged for The God's Mercy to bring a

large number of refugees to the United States.

Then, in the meantime, this Court had an en banc

decision and struck down these regulations. And then after

that, the priests were indicted. That was a well thought

out decision by somebody in U. S. Attorney's office or the

Justice office. Can you imagine trying to convince two

priests of hiring a boat to do humanitarian work like that.

In any event, somehow Judge Davis got them convicted. Judge

Davis presided. I don't know how it got pass Rule 29, but

then he was a young Judge at the time. So let's see. What

else happened?

Judge Vance uses some language here at page 1392

of his opinion at 709 F.R.2d, like proof of the requisite

knowledge and willfulness is almost impossible unless

affirmative steps are taken by the government to make the

law's requirements known, and it cites a series of cases.

Since the purpose of all law, in criminal law in particular,

is to conform conduct to the norms expressed in that law, no

useful end is served by prosecuting the violators when they

have no knowledge of the laws provisions.

Citing the constitution in Lambert v. California.

Here there was a great state of flux in regulations at page

1391, Judge Vance points out that "when used in a criminal

 

UNITED STATES vs SABRETECH, ET. AL - 12-1-99

41

 

statute, the word willfully generally connates a voluntary

intentional violation of a known legal duty," citing Bishop,

Hernandez and Davis. "The regulation under which the

priests were convicted 31 CFR, Section 515.415 was quietly

promulgated, unexpected, and unannounced on May 15, 1980,

after the list of names had been tendered to Cuba.

A criminalized behavior (traveled to, from and

within Cuba) which previously had been expressly. 1 CFR,

Section 515.560, and which, in fact, remain lawful except

when done in connection with the transportation of Cuban

nationals, an activity which is not generally criminal.

Here, we have a great deal of confusion about

what the law was, the law being changed daily and hourly.

The Southern District of Florida got involved in the act

and en banc struck down that law, parts of that regulation.

I'm just trying to remember, I could be wrong, but I think

I wrote that opinion for the en banc court. I know Judge

Marcus wrote the one on the sentencing guidelines. That

was later. He was not on the court this time. I'm not

sure.

In any event, the law was certainly in a state of

flux. I don't believe that that case factually is on point

where the regulations pertaining to hazardous waste

materials were promulgated, disseminate widely to people

that dealt with them or corporations that dealt with them,

 

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42

 

coupled with the fact that the proof in this record showing

that clearly SabreTech knew or certainly should have known

of the hazardous propensities of the oxygen generators and

their chemical content, and the handling with which these

generators were dealt with by shippers from Scott Aviation

and others, and the handling of them generally.

It seems to me that the proposed charge of the

government number 23 is the correct charge on the law. So

the objection to that by the defense is overruled. The

requested charge submitted by number 16 by the defense is

denied. The reasons expressed herein.

Moving on now to 24, is there agreement?

MR. MOSCOWITZ: No, Your Honor, we have the

disagreement on this charge on similar grounds in terms of

we think the law is clear that for the reasons just

expressed. The evidence has to show knowledge of the

regulations.

THE COURT: Okay.

MR. MOSCOWITZ: That instruction, Your Honor, is

instruction number 17 on page 30 of our instructions.

THE COURT: All right. Defense requested charge

17 is denied. Government's proposed instruction 24 will be

given.

Let's move to 25.

MR. MOSCOWITZ: No objection to 25, Your Honor.

 

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43

 

THE COURT: 25 will be given.

26?

MR. MOSCOWITZ: No objection.

THE COURT: Given. 27?

MR. MOSCOWITZ: No objection. 28, no objection.

THE COURT: Given.

MR. MOSCOWITZ: 29, no objection.

THE COURT: Given.

MR. MOSCOWITZ: 30, no objection. 31, no

objection.

THE COURT: Given.

MR. MOSCOWITZ: 32, no objection.

THE COURT: It will be given.

MR. MOSCOWITZ: On 33, we do object, and we have

our own proposed jury instruction which is instruction 18,

on page 33 of our instructions.

THE COURT: It runs along in a similar vein up

until what, page 34?

MR. MOSCOWITZ: That's right. Where we say the

elements that have to be shown.

THE COURT: For a defendant to be found guilty?

MR. MOSCOWITZ: Yes.

THE COURT: All right. All right. For the

reasons previously expressed, the requested charge of the

defense number 18 is denied on the basis that government's

 

UNITED STATES vs SABRETECH, ET. AL - 12-1-99

44

 

requested number 33, substantially covers those issues.

There is some deviation as to the elements. There is

certainly a deviation. But number 33 adequately and

properly expresses the definitions that the jury needs to

make a determination. 33 will be given.

MR. MOSCOWITZ: Your Honor, there's one

additional point in 33 which I think is an interesting

issue. 33 says that the defendant is guilty if he is a

haz-mat employer. That, of course, can include the

company, which is a haz-mat employer for willfully failing

to train it's employees. The ordinary circumstance for

corporate criminal liability is it can the janitor who

violates the statute, can hold the corporation liable. It

seems to be given in the nature of this charge that it is

an employer failing to train.

Let's say, in this case, the employee who knew of

the requirement, was the employee himself who was supposed

to be trained. That couldn't be what the statute intends

in terms of impugning to the employer liability for failure

to provide training. Clearly here, the employee who makes

the decision will plea to fail to give training has to be

somebody in management, some position responsible with

regard to making decisions over training. That's why I

think this is different than the ordinary statute where you

can prove impugn liability to the corporation since they

 

UNITED STATES vs SABRETECH, ET. AL - 12-1-99

45

 

are making the way for any of its employees.

THE COURT: All right. Number 33 will be given

over objection.

Number 34?

MR. MOSCOWITZ: Your Honor, we object, and we

have offered an instruction very similar. Our instruction

19 which is on page 35.

THE COURT: How does it differ?

MR. MOSCOWITZ: The main difference, Your Honor,

is that we think the evidence has to show that the

defendant is aware, since this is a willful violation, is

aware that it's a destructive device or a device that can

be destructive. If he thinks he is taking something

innocuous on an airplane, and it turns out to be a

destructive out, that can't be a violation of the statute.

We think the government's instruction does not make that

clear, and we think that one of the elements that has to be

shown.

THE COURT: Mr. Brigham, we are referring to page

35, defense requested jury instruction 19, subparagraph 1,

on page 35.

MR. BRIGHAM: Your Honor, we believe that we need

to show that the defendant corporation knew the physical

characteristics of the oxygen generators that would

constitute a destructive device. The corporation does not

 

UNITED STATES vs SABRETECH, ET. AL - 12-1-99

46

 

need to know what is that exact legal definition, and

whether, in fact, it satisfies the legal definition. I

think we have captured that adequately in our instruction.

THE COURT: How about number one? You don't say

anything about number one in your instruction.

MR. BRIGHAM: We disagree with the way it is

expressed because it says the defendant knew the object was

a destructive device or substance within the meaning of the

statute. Our position is that the defendant knew the

characteristics of the oxygen generators, which would make

up or which would fall under the definition of destructive

device.

THE COURT: Where do you say that in your

instruction?

MR. BRIGHAM: We say, in element number three,

the defendant SabreTech acted willfully. In this

particular case, you would need to know the physical

characteristics of the oxygen generator. If, in fact, --

and in fact, when we say the defendant SabreTech acted

willfully, we are tracking the language in the statute

itself. The statute itself does not say you need to know

the characteristics. It uses the word willfully, and we do

to.

THE COURT: The defense requested charge number

19, as it deviates or is different from the requested

 

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47

 

government charge number 34, is granted, and will be given

over objection of the government as follows. The language,

this is a requested defense language that's midway down the

defense requested 18, where it says, "a destructive

substance within the meaning of the statute means any

explosive substance, flammable material, internal machine

-- we are back to the happiness thermometer, or other

chemical, mechanical or radioactive device or matter of a

combustible, contempted, corrosive or explosive nature --

should be period -- to prove a violation of Section 32.

The evidence must show beyond a reasonable doubt,

one, that the defendant, and we should add in the word

SabreTech I guess, knew that the object -- should be is or

was -- is a destructive device or substance within the

meaning of the statute. Two, that the defendant SabreTech"

-- then pick up with the government's charge. That portion

will be added in as element number one on this particular

count 24 to the extent that the government objects, that

objection is overruled.

To the extent that the defense has moved for it,

that motion is granted.

MR. MOSCOWITZ: Your Honor, I have one more

specific objection to the government's charge on page 41.

THE COURT: On page 41.

We shouldn't do this in the presence of all these

 

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48

 

folks out there. Somebody may be a newspaper reporter or

TV person or radio person. They'll think that this is how

we decide the law, we cut and paste. All right. What is

your -- on page 41.

MR. MOSCOWITZ: Your Honor, the first full

paragraph which begins as noted. The last sentence of that

paragraph. We move to strike that sentence.

THE COURT: Denied.

Now we are on page 35.

MR. MOSCOWITZ: Your Honor, we object to that

instruction. That is not the standard pattern instruction

in this circuit.

THE COURT: Where, which? Do you have a pattern

instruction?

MR. MOSCOWITZ: Yes, Your Honor, it's our number

11 on page 14.

THE COURT: Page 14 is, on or about.

MR. MOSCOWITZ: Knowingly, willfully.

THE COURT: Over the government objection, the

jury instruction number 11 of the defendants will be

substituted for jury instruction number 35, as requested by

the government with the exception that recklessly, which is

not included in the defense requested charge will be added

to the charge.

MR. MOSCOWITZ: Your Honor, excuse me. We have a

 

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separate additional charge on recklessly. Recklessly is

not part of the pattern instruction. I think both the

government and we have crafted them. Our pattern

instruction on recklessly is on page 15. Jury instruction

11A.

THE COURT: Where is the government's?

MR. MOSCOWITZ: The government it's on the

bottom, the government added its, I think, on the bottom of

page 42.

THE COURT: Let me review page 15 of the defense

requested charges.

THE COURT: The Court will give the government

requested charge defining recklessly contained at the

bottom of page 42, over government requested charge number

35. That will be over objection by the defense. The

requested charge number 11 of the defense, I'm sorry, of

number 11A by the defense, page 15, entitled recklessly is

denied as adequately covered by the charge the Court

intends to give from the government's proposed charge on

recklessly.

Having said that, the Court will give the charge

requested by the defense, number 11, over objection by the

government, in lieu of and in place of, basically the third

paragraph of government's requested charge number 35.

So that should sufficiently confuse everybody.

 

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Mr. Dunlap is sitting there with his eyes glazed over.

MR. DUNLAP: As always, Your Honor.

THE COURT: That may just be the glasses he is

wearing that makes him look that way. I don't know.

Let me see here. Now we move on to number 36,

deliberate ignorance.

MR. MOSCOWITZ: Your Honor, we object. I point

out, first of all, the Court has already given that

instruction which covers the same area with regards to

reckless disregard and truth. That was instruction number

20 which the Court already gave.

Moreover, deliberate ignorance, Your Honor,

there's simply no basis for giving that instruction in this

case. The law of this circuit, Your Honor, is well settled

that the Court should not give a deliberate ignorance

instruction. I'm citing, I'm quoting United States v.

Stone, 9 F.3d 934 at 937. Should not give the deliberate

ignorance instruction when the evidence only point to either

actual knowledge or to no knowledge on the part of the

defendant. Deliberate ignorance instruction is appropriate

only when there is evidence in the record showing that the

defendant purposely contrived to avoid learning the truth.

The evidence here, Your Honor, is either --

THE COURT: Excuse me, Mr. Brigham, what do you

suggest in this record establishes a need to get into

 

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deliberate ignorance, beyond what is already covered with

number 20.

MR. BRIGHAM: Among other things, the deliberate

ignorance is particularly important with respect to charge

against defendant SabreTech, as well as Mr. Florence. What

we have is -- we have introduced evidence that there are

maintenance manuals which laid out in detail the dangers

associated with the oxygen generators and the steps that

had to be followed.

We indicated that there was, in fact, shipments

of new generators with the outside labels, and yet this was

ignored. The work cards were -- contained false notations

about the safety caps. They were signed in circumstances

where one employee said, I like to read the work card. But

Mr. Gonzalez said no. It was in a very time compressed

situation. Despite the warnings that were given to the

corporation and to Mr. Florence and Mr. Gonzalez in this

case, constitute an adequate factual basis to give the

deliberate ignorance instruction in this case.

THE COURT: Okay. The record should reflect that

-- I'm not sure that those folks that just left the

courtroom, the five or six that just left, were members of

the media. I don't know whether they were or not. But I

would presume that it's now 12:03, and their dinner bells

went off, so out they rush. If they were members of the

 

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media, it's explainable. If they were members of public

I'm mystified.

All right. The objection to government charge

number 36 deliberate ignorance is sustained. It will not be

given over objection by the government.

Number 37, have you all agreed on that?

MR. MOSCOWITZ: No, Your Honor.

THE COURT: Bear in mind, we are 45 minutes away

from closing argument, so let's move along.

MR. MOSCOWITZ: We have a very close instruction

which is the pattern Devitt and Blackmar instruction, on

page 18, our instruction 11B.

THE COURT: Page 18, Corporate liability. How

does it differ? If we could focus on that, we could move.

It looks like it's pretty similar at first.

MR. MOSCOWITZ: It is pretty similar, Your Honor.

The preface we believe is appropriate. The government

doesn't give that preface. I think it's important. This

again is directly out of Devitt and Blackmar. There is no

pattern 11 jury instruction.

THE COURT: Where does it differ? I don't see

any difference in the first part, legal entity, access to

it's agents, officers or directors, a little bit more

introductions in your third paragraph, your elements. They

have four elements, you have two. They say they have to

 

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prove four things, you say they have to prove two.

Wouldn't you be better off with four? The more they have

got to prove, the better off you are, I think.

MR. MOSCOWITZ: Your Honor, they are really very

close.

THE COURT: Yes, they are the same thing.

Now let's move on down to, in order to establish

-- that's identical.

MR. MOSCOWITZ: Your Honor, it is identical

except we think the first two paragraphs, which we propose.

We didn't make up that standard language. It's critical to

explaining what the corporate liability is.

THE COURT: It looks to me that it reads the same

way. Do you have any serious objection, Mr. Brigham?

MR. BRIGHAM: No, Your Honor.

THE COURT: The first two paragraphs of defense

instruction 11B will be substituted for the first two

paragraphs of government's number 37. Number 38, any

objection?

MR. MOSCOWITZ: Yes, Your Honor, we object. We

filed a memo on this morning. This is the issue we argued

a few days ago.

THE COURT: Is this one of those that I've

already ruled upon about the collective knowledge? I

believe, in all fairness, I ruled on this earlier on.

 

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MR. MOSCOWITZ: We were hoping that, Your Honor

would reconsider based on the memorandum this morning.

THE COURT: I did review your memorandum. The

objection to 38 is overruled. 38 will be given.

39.

MR. MOSCOWITZ: Your Honor, this is the Nerenberg

defense. We don't think it's relevant in this case. No

one is alleging here that he was just following the orders.

THE COURT: 39 will be given. 40 will be given.

41, aiding and abetting, any problem with that? It has to

be defined.

MR. MOSCOWITZ: We don't. Mr. Dunlap may have an

objection. Did you?

THE COURT: They charge section 2, Mr. Dunlap and

I think, in fairness, when they charge section 2, I have to

give it.

MR. DUNLAP: You have to give it. Yes, Your

Honor.

THE COURT: 41 will be given. 42 will be given.

43 will be given. Have you reviewed the verdict forms?

MR. MOSCOWITZ: Yes, Your Honor, we have a

disagreement on the verdict forms.

THE COURT: All right. Let's go back now before

we go to the verdict forms. We have considered as we have

moved through this the defense charges. But have we not

 

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considered a defense charge up to this point that you now

are requesting?

MR. MOSCOWITZ: Yes, Your Honor.

THE COURT: All right.

MR. MOSCOWITZ: Going back to -- page 7, proposed

jury instruction number 5, former perjury of a witness.

THE COURT: Page 7 of yours?

THE COURT: Haven't we -- that one is denied.

What else? I think it's adequately covered in the

instruction. What else?

MR. MOSCOWITZ: Page 8. On the obstructions of

evidence bearing on the witnesses' credibility. That's

jury instruction number 5A.

THE COURT: That is denied. Next?

MR. MOSCOWITZ: Page 9, proposed instruction

number six.

THE COURT: Denied. Next?

MR. MOSCOWITZ: Instruction Number 8, which is on

I'm sorry. 7.

THE COURT: 7 is covered.

Number 8. Accomplice?

MR. MOSCOWITZ: This is on immunity, of witnesses

who testified under immunity.

THE COURT: Is that not included in yours,

Mr. Brigham?

 

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MR. BRIGHAM: No. No objection, Your Honor.

THE COURT: I'm sure not, but it would normally

be included. It will be given. Let's figure out where it

fits in here. Where do you think it should fit in the

government's -- not the government's instruction, in the

basic instruction.

MR. MOSCOWITZ: Fairly early on, with the other

instructions regarding credibility of witnesses. Perhaps

right after that general instruction regarding credibility.

THE COURT: All right, I will put it in as page

number 7, page number 7. Next?

MR. MOSCOWITZ: We had instruction 11A(1).

THE COURT: I've covered that. I already ruled

on that. What's the next one?

MR. MOSCOWITZ: I know the Court overruled 11. I

can't recall if you overruled 11A(1). It's very similar.

THE COURT: 11A(1) is denied.

MR. MOSCOWITZ: Then instruction number 20, Your

Honor, which is good faith defense, which is on page number

37.

THE COURT: Mr. Brigham, they represent that this

is an 11th Circuit pattern jury instruction.

MR. MOSCOWITZ: Your Honor, the second paragraph

is modified. I apologize.

THE COURT: But the first paragraph does come

 

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from the pattern jury instructions.

MR. MOSCOWITZ: Yes, Your Honor.

THE COURT: Does the government have an objection

to the first paragraph?

MR. BRIGHAM: Your Honor, we do not have an

objection to the first paragraph, but we feel that the

entire instruction needs to come in, as modified. The

third paragraph in the --

THE COURT: The third paragraph is denied.

There's only two paragraphs.

MR. BRIGHAM: Yes, but Your Honor, the defense

has not included the third paragraph which offers a balance

presentation on the good faith defense. The pattern

instruction from the 11th Circuit has three paragraphs.

The third paragraph --

THE COURT: If it's given, you want all three

paragraphs to be given?

MR. BRIGHAM: Yes.

THE COURT: Do we have any objection by the

defense that all three paragraphs be given?

MR. MOSCOWITZ: Yes. It's simply, may I read the

third paragraph, I don't think its relevant when I read it.

The third paragraph say, "but on the other hand, an honest

belief on the part of the defendant that a particular

business venture was sound and would ultimately succeed,

 

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was not in and of itself constitute good faith as that term

is used in these instructions." So that third paragraph

really goes to mail fraud, wire fraud and securities fraud.

It doesn't related to a false statement charge. We think

the first two paragraphs relate to the issue of good faith

to the allegations of making a false statement.

THE COURT: Is the -- but now all I have before

me are two paragraphs. I'm dealing with defense

instruction number 20. The first paragraph apparently

comes from the pattern circuit 11th Circuit jury

instructions.

MR. MOSCOWITZ: Right.

THE COURT: The second paragraph has been

modified in what particular? If you will tell me.

MR. MOSCOWITZ: I think the -- just a second,

Your Honor. The second paragraph is the same.

THE COURT: Is the same. So you are only

suggesting that the third paragraph dealing with business

ventures should not be given, is that correct?

MR. MOSCOWITZ: Right. The only modification in

the second paragraph it says one who express an honestly

held opinion or a honestly formed belief is not charged

with fraudulent intent, and we changed fraudulent intent to

willful intent. Otherwise that second paragraph is the

same.

 

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MR. BRIGHAM: Your Honor, we noticed, in fact,

the first paragraph is not the same as the pattern

instruction. The first paragraph talks about intent to

defraud in the pattern instructions. That's not the case

here. I think this indicates that there's a need to either

not give this instruction or modify it appropriately with

respect to this particular case. I have the following

proposal, if Your Honor would like to hear it, with respect

to the third paragraph.

THE COURT: I think what I'm going to require you

to do is submit something to me. I am going to give this

charge for the defense. It should be modified to pertain

to this case. It seems to me that the first two paragraphs

as submitted in defense charge number 20, do that or come

very close to doing that. Whether the third paragraph from

the pattern charge should be added or not, I don't have the

pattern before me, and we are running out of time, so I

don't know where we are.

MR. BRIGHAM: We do have a copy.

THE COURT: Could Mr. Brigham get together with

Mr. Dunlap, who stayed up all night working on these and

draft out something?

MR. DUNLAP: Yes, sir.

THE COURT: I'm going to give the charge. I just

need it drafted. I don't want to impact on the people

 

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making the arguments. Can you do that, Mr. Brigham?

MR. BRIGHAM: Of course, Your Honor.

THE COURT: This charge will be given as

modified. Go ahead.

MR. MOSCOWITZ: Your Honor, on page 39,

Mr. Dunlap has proposed a special instruction. Jury

instruction number 22.

THE COURT: Number 22, does the government object

to this?

MR. BRIGHAM: Yes, Your Honor, we do.

THE COURT: What is your objection?

MR. BRIGHAM: We feel that the instruction is

inappropriate. It's not one of the standard instructions.

And part because, for example, the language, we don't

believe purports with the law. If you find that persons

other than Mr. Gonzalez committed a criminal act charged in

the indictment, would be improper for you to infer, and you

must not infer that Mr. Gonzalez must have known about it.

THE COURT: Slow down.

MR. BRIGHAM: Because he was a supervisor in the

maintenance section of SabreTech's Miami repair station and

may have been variously held out as Assistant Vice

President of Maintenance.

THE COURT: How does that vary with the

inaccurate statement of law?

 

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MR. BRIGHAM: Your Honor, I believe that the

factor that the jurors are allowed to consider in the

evaluation of the evidence.

This instruction by the weight that it gives to

this particular element of proof, improperly suggests to the

jury that they cannot consider Mr. Gonzalez's rank, his

position in the corporation in relationship to other factor

in determining whether, in fact, the evidence supports the

charges. We submit that that can be, that that's an element

of argument by counsel. But it's a factual element that is

better left for argument and not an instruction for the

Court.

THE COURT: The Court will overall the

government's objection and give the instruction.

Mr. Moscowitz, how about 22?

MR. DUNLAP: 22A, Your Honor. May I be heard,

Your Honor, on 22A?

THE COURT: Do you want to convince me not to

give it?

MR. DUNLAP: No, I'm sorry, Your Honor. I

thought you had gone on to the next instruction.

THE COURT: You just said, "may I be heard on

22?"

MR. DUNLAP: 22A.

THE COURT: Excuse me, you are right. I didn't

 

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know you numbered them A B C. Let's find out. Is there

objection to 22A by the government?

MR. BRIGHAM: Yes, Your Honor. These are facts

that came out during the trial. Defense counsel is free to

argue it. It's appropriate to argue it, but not in

instruction. We have not agreed to those facts.

THE COURT: I understand. Mr. Dunlap, this is

getting into the Court commenting on the evidence.

MR. DUNLAP: May I be heard briefly on this?

THE COURT: Yes.

MR. DUNLAP: This instruction makes reference to

a hand-written letter by the witness, William Drechsler,

dated January 2, 19-- At the time this letter was offered

by the government, Ms. Heck knew because the witness had

previously testified in the grand jury, that the language

on page two, and I'm quoting, I've got a misquote. "We

have DynAir paperwork showing work completed and inspected

and not accomplished." At that time because of her

knowledge of what the witness said in the grand jury,

Ms. Heck knew that those literal words were -- falsely

conveyed the intent of the person who wrote this.

Mr. Drechsler testified in the grand jury and he

testified here that the plain language of these words is

not what he intended. In fact, he testified on

cross-examination that he did not mean that work was not

 

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accomplished, but just that he disagreed with the manner of

handling the paperwork. Ms. Heck, herself, conceded that

yesterday in the Rule 29 argument. She modified her

handling of this letter to argue, not that it showed that

there had been falsification of work by SabreTech, or

DynAir Tech as a result of this letter, but that the

letter, each though it was obviously facially incorrect,

should have put SabreTech on notice.

My concern, Judge, is that this document goes

back to the jury with what we know to be an absolute facial

inaccuracy, we are sending to the jury words that we know

do not, the government and the defense and had Court, know

do not reflect what the writer intended it to reflect. I

guess I'm going back to my initial argument about it's

admission, in a way, because we know now that under 403,

that this is a plainly confusing document that will mislead

the jury, if they look at this without some -- We shouldn't

have to be arguing this, is what I'm saying Judge. The

government knows and we know that Mr. Drechsler did not

intend what these plain words convey.

THE COURT: The requested charge being jury

instruction 22A is denied. The objection of the government

is sustained.

MR. DUNLAP: Your Honor, in the alternative, I

would move to strike the exhibit or redact the language

 

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with a limiting instruction to the jury because we know --

THE COURT: You all can argue this.

Mr. Moskowitz?

MR. MOSCOWITZ: Next, Your Honor, Mr. Dunlap's

theory of defense instruction. Instruction number 23.

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

MR. BRIGHAM: Your Honor, we believe that the

instructions as presented address the issues of the theory

of defense by Mr. Gonzalez. Even if the Court desire to

gives --

THE COURT: The Court has no desires except to

get this case started with argument at 1:00, if we can.

And we're moving fairly rapidly through. I have no

desires, one way or the other. Generally, a theory of

defense instruction is proper on some occasions, where it

is a complicated involved case. Do you object to giving a

theory of defense instruction at all?

MR. BRIGHAM: Your Honor, we would object because

we feel the instructions are sufficient. But if the Court

overrules our objection, I would recommend that it would be

a much shorter instruction, so it doesn't over-emphasize

the theory of the defense, and it goes to the legal

elements and not a factual summary that the defense counsel

is, of course, free to argument.

THE COURT: Where does this inaccurately state

 

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his position? Of course, you may not know his position.

This is the position of the defense. He says that this has

been his theory of defense on which he tried this case. Do

you suggest that this is some how inaccurate, in some way?

MR. BRIGHAM: I would suggest that there may be

not inaccuracies because it talks about what Mr. Gonzalez

personally believes, but it needs to be shorter. For

example, the last paragraph.

THE COURT: I can't be drafting it at this late

date. If the government wishes to set forth a proposed

instruction for the Court to consider, we have had months

to prepare for this and it could have been done. All I

have before me is one instruction. I'm not going to go

through this and change words unless there is some

inaccuracy which would mislead the jury in some fashion.

Reading this, I don't see what it is. This is his theory

of defense. The charge will be given. Number 23 will be

given.

MR. MOSCOWITZ: Your Honor, jury instruction

number 24, which I'm going to hand up, is defendant

Florence theory of defense instruction. 25 is SabreTech's

theory of defense instruction. The government has already

received copies of these.

THE COURT: I will give the theory of defense

instruction. Oh, these are different?

 

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MR. MOSCOWITZ: One for defendant Florence, and

one for the defendant SabreTech.

THE COURT: They are different from the packet

you gave earlier?

MR. MOSCOWITZ: Yes, Your Honor, there are some

revisions on there. I apologize.

THE COURT: There's a lot of paper up here. So

now you want me to consider number 24 and number 25

theories of defense, and eliminate 24 and 25 previously

submitted, which I will do.

Now, 24 and 25. I've announced that I will give a

theory of defense. Is there any inaccuracy that the

government sees that will be misleading in some way in

either of these instructions? Now, the issue is not whether

you will written differently, but is there something here

that is factually inaccurate or a mistake?

MR. BRIGHAM: Yes, Your Honor. The way it's

couched, first of all, it suggests that these are --

MR. MOSCOWITZ: Which one?

MR. BRIGHAM: With respect to jury instruction

24, it's couched in a way that it's not as if the Court is

presenting a theory of defense, but the Court is simply

explaining the evidence. For example, "accordingly

Mr. Florence had no reason to believe that any statement he

made concerning the used oxygen generators would be a

 

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material statement." That's not couched in the language.

It is the theory of the defense. It's stated in language

that is very direct. That's one example of many.

Again the factual development here is more

extensive than the law requires for a theory of defense. I

would submit that it would be simply, "it is the theory of

defense of Florence that he acted in good faith in all the

he did on the aircraft." That is sufficient.

It allows the jury to understand the theory of

defense. The same, on the theory of defense with respect,

if I may move on to jury instruction 25. Again, this is

now, a two page summary of the facts. This is in contrast

to the Danny Gonzalez theory of defense. They are getting

longer as they are being edited. Again, we would submit

that the language has to be couched as if it is a theory of

defense, not as if the Court agrees with this language that

needs to be made clear.

We would also submit that the Court could make

clear that the United States has a completely different

theory. But again, with respect to SabreTech, the two page

factual development is unnecessary. It is sufficient if

the Court keys in the jurors the theory of defense, which

here is that SabreTech through it's employees, and agents

acted in good faith in all the work they did on the

aircraft. This will be sufficient. The facts that are

 

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laid out in these two pages, are appropriate for closing

argument which defense counsel, will no doubt, effectively

undertake.

Also, Your Honor, excuse me.

THE COURT: Just a moment. The Court will give

the theory, Eugene Florence's theory of defense instruction

in part as follows. It is granted in part and denied in

part. It will be given in the following language, "it is

the theory of the defense, Eugene Florence, that he acted

in good faith in all the work he did on aircraft 802 and

803, including his handling of oxygen generators in

carefully wrapping each lanyard around the firing mechanism

and around the generator body and then taping the ends of

the lanyard to the generator." The rest, except for the

last sentence, will be omitted and not given. This will be

given, "Mr. Florence contends that he acted without any

bad purpose, to disobey or disregard the law." Part of the

first paragraph is out. Part of the second paragraph is

out. This will be retyped and hopefully given to

Ms. Moscowitz before she has to make her closing argument,

but I think she can understand that basically, we are

talking about the first two lines and then two lines of the

middle of the paragraph, commencing with carefully wrapping

and then the last sentence. All right. That will be given

as modified.

 

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With respect to the SabreTech theory of defense,

the same modification in the first paragraph which is quite

similar or identical to defense requested number 24. Those

modifications will be made in the first paragraph. With

respect to the second paragraph, requested 25, the Court

will have to work on but the argument doesn't have to be

made until tomorrow. That's the best I can do with that. I

will rewrite that substantially along the same lines, and

the same criteria guidelines that I have made on requested

24, that is to try to factually state it as the theory of

defense, as I have watched you present it in this courtroom.

Mr. Moscowitz, 25, 26?

MR. MOSCOWITZ: No objection to 26, Your Honor.

THE COURT: All the rest of them, we have covered

them?

MR. MOSCOWITZ: Yes, our objection is the verdict

form.

THE COURT: So we finished with the requested

charges except for the modification that we need to make to

number 25. Let the record clearly reflect that any

instruction that the Court has announced that it will give,

which was objected to by any party, either government when

dealing with defense instructions, or defendants when

dealing with government's objection, is fully preserved

whether or not it was articulated item by item or

 

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instruction by instruction or not. All of the requested

instructions will be appended to the record for further

review, if necessary, by the 11th Circuit Court of Appeals.

It is not necessary for any counsel, I think to

make any further statement in order to fully protect their

right to raise the giving or the failure to give any

instruction requested by any defendant or the government. I

think that fully protects the record and your individual

clients. If you think it does not, then ahead. But I think

it does. I make this announcement every time I make a

charge conference.

MR. MOSCOWITZ: Your Honor, we still have

objection to the verdict form.

THE COURT: Let's take that up. We have got 26

minutes to go.

MR. MOSCOWITZ: The objection is very simple,

Your Honor, with regards to counts VII through XXII, which

are the haz-mat violations, in which only SabreTech is

charged, the indictment charges for each count a willful

violation and a reckless violation. Those are two

different violations in the same count. We think the

verdict form for each count should show when the jury

reaches a verdict, whether it is reaching a verdict --

THE COURT: Let's take this up at the end of the

day because we don't need it until tomorrow any way. We

 

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will go into the verdict form issue at 5:00 today.

MR. MOSCOWITZ: Your Honor, lastly we wish to

renew our Rule 29 motions now at the conclusion of all of

the evidence. Each of the defendants renews his motions

with regard to all remaining counts. I believe Mr. Dunlap

wishes to be heard briefly, with regard to additional

evidence he put on. Your Honor will recall you reserved

Mr. Dunlap's Rule 29 motions.

THE COURT: He is going to make his argument this

afternoon.

MR. DUNLAP: No, I'm going to make my argument

tomorrow with the Court's permission, but I thought --

THE COURT: Why don't we take that up at the end

of the day?

MR. DUNLAP: That's fine.

THE COURT: But the record is clear that the

defense has renewed any and all motions that they would

have made at the conclusion of all the evidence regarding

Rule 29 motions. They are timely made, properly made.

There's no waiver of bringing them up later. It's done to

accommodate the Court, so that the parties fully -- it's

the Court's intent to fully protect the parties by not

having any waiver appear accidently or innocently or

otherwise.

MR. MOSCOWITZ: Thank you, Your Honor. That's

 

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includes our pre-trial motions to dismiss as well, of

course.

THE COURT: All of your motions. All right. We

have 14 minutes to put together jury instructions.

MR. MOSCOWITZ: We have a diskette, Your Honor.

THE COURT: If it will help Vicki that's fine.

She's the one that puts them all together. Thank you.

COURTROOM DEPUTY: All rise.

[There was a recess for the noon hour].

AFTERNOON SESSION

1:15 P.M.

THE COURT: Be seated please.

MR. BRIGHAM: Your Honor, we do have one matter.

You had asked us to talk about that third paragraph on the

good faith instruction. We have talked about it. As I

understand, we both have our own proposals. We weren't

able to reach an agreement.

THE COURT: Hand me both proposals and I'll

consider them as I go along.

MR. BRIGHAM: Thank you. I've attached to my

proposal the original pattern instruction that we are

basing ours on.

THE COURT: Okay. Bring in the jury please.

[The jury returns to the courtroom].

THE COURT: Thank you, be seat please ladies and

 

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gentlemen. At this time the attorneys may speak to you in

their closing argument. It is during this phase of the

trial that they will analyze with you the evidence that

you've been receiving through the sworn testimony of the

witnesses and exhibits that have been admitted into

evidence. This is argument. This is their reasoned

interpretation of that evidence. It's intended to be

helpful to you, and I'm sure that it will be. We ask that

you listen carefully to the closing argument of counsel.

The counsel for the government, having the burden

of proof, will go first then followed by each of the

defense counsel. Then the government has an opportunity to

speak to you in closing argument with reference to anything

that the defense have discussed in their argument. They

get to close as well as open.

Some of the arguments, we will not finish all of

them today. We will take the opening statement of the

government followed by presentation of argument by Ms. Jane

Moscowitz on behalf of Mr. Eugene Florence, and then we

will recess for the evening and come back tomorrow morning

and listen to the balance of the arguments and the Court's

instructions on the law.

At this time, Ms. Caroline Heck Miller, if you are

ready to proceed with your closing argument.

MS. MILLER: Thank you, Your Honor.

 

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GOVERNMENT CLOSING ARGUMENT

MS. MILLER: Play it please the Court, counsel,

ladies and gentlemen of the jury. Fundamentally this is a

case about lying. One of the lies turned out to be about

something very important, something material in legal

terms, as you are going to see in the indictment.

The lie, this important lie, was that shipping

caps had been put on chemical oxygen generators. Shipping

caps, these little things, Government's Exhibit 31, that

could have kept oxygen generators from initiating if only

they had been in place. They weren't, and tragedy ensued.

Nobody foresaw or wanted that tragedy. The lie

was meant to be not such a big deal. Just pencil whipping

it's called, signing for work that hasn't been done. Just

other work card.

This is the work card, ladies and gentlemen. This

is the statement that we are talking about, work card 0069

that was done for two aircraft, 802 and 803. This is the

one for 802, signed by the defendant Eugene Florence. Item

B; "if generator has not been expended install shipping cap

on firing pin," signed by Mr. Florence 1 A through D said

that it had been done. It hadn't. That little thing, that

shipping cap, was not on dozens of oxygen generators, and

those oxygen generators went on board ValuJet flight 592.

So the lie was told. The generators were left

 

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uncapped. The snare was laid and the hammer fell just like

that. Dozens of these things on ValuJet flight 592. No

safety caps. As you know from the testimony of Robert

Brennan, when the cap falls the reaction begins. That

oxygen generator begins to heat, begins to produce pure

oxygen.

Oxygen generators all in a box together, nothing

in between them, metal oxygen generators, and as one heated

it would heat its brothers and sisters surrounding. And

heat with that flimsy cardboard in an environment of pure

oxygen, a terrible fire issued.

Now, that lie is at the center of this case. But

the case goes beyond that lie. It involves more. And today

we are going to look at the entirety of the case. The case

is set forth in an indictment which you will have with you

in the jury room. The indictment is laid out in 24 counts.

That's 24 separate charges. I want to take some time today

and go through that indictment with you and explain it to

you and explain how it correlates to the evidence in this

case.

The first count, ladies and gentlemen, is a

conspiracy to make false statements. It's followed by five

counts of specific false statements. This is one of the

false statements. The crime that is charged is that

SabreTech and Mr. Florence made a false statement as to a

 

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material matter on a topic that was within the jurisdiction

of the FAA. This is one false statement. As I said, there

is a work card like this from the other airplane from which

oxygen generators were removed, 803. That's another false

statement. There's two of those false statements counts.

For each aircraft, in addition to the routine work

order, there was a non-routine work order. That's two more

false statements.

Mr. Florence signed two of these documents.

Another person, Mauro Valenzuela, signed two of the

documents. Mr. Florence is charged with two false

statements. SabreTech is charged with those two false

statements, and SabreTech is also charged with the two false

statements made by Mr. Valenzuela. That's four of the false

statements counts. The fifth false statement count is

charge against Danny Gonzalez, and it relates to a work card

done for Aserca Airlines.

Count I, the conspiracy, five counts of false

statements relating to these five different documents. Then

the indictment has 17 counts related to hazardous materials

regulations. Those counts are charged against SabreTech,

the corporate defendant here.

Finally, there is one count at the end of the

indictment charging SabreTech with the placing of

destructive devices on an airplane making it hazardous to

 

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use.

Now, we are going to go over the counts, the

regulations, the evidence, these documents here, including

documents that were put into evidence but that you haven't

heard anything about yet. I will be endeavoring to present

the contents of some of those documents to you. I hope you

won't be daunted, and I hope that you will focus and

concentrate with the same extreme concentration that we have

seen over these past three weeks in which all the parties

are profoundly grateful, and we thank you for your

concentration and your attention.

Even though we will be presenting and explaining

documents and matters relating to regulations which the

Court will also include in its instructions, basically the

decision you have to make is going to be guided by two main

things; by the Court's instructions and by your own common

sense. Because after the smoke has cleared, after the

regulations have been explained and the documents have been

talked about, this case is going to amount to an exercise in

common sense. That's what we expect of jurors.

You'll hear from the Court, quote, "in considering

the evidence you may make deductions and reach conclusions

which reason and common sense lead you to make. And you

should not be concerned about whether the evidence is direct

or circumstantial.

 

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Direct evidence, you'll hear, is the testimony of

one who asserts actual knowledge of a fact such as an

eyewitness.

Circumstantial evidence is proof of a chain of

facts and circumstances tending to prove or disprove any

fact in dispute. The law makes no distinction between the

weight you may give to either direct or circumstantial

evidence," unquote. That is the law you'll be hearing from

the Court.

Examples; what is the difference between direct

and circumstantial evidence? You may recall the testimony

of mechanic of Robert Rodriguez that at one point he was

working on aircraft 830. I hope these numbers are familiar

to you. As you may remember, there were three MD-80 type

aircraft that were being worked on at ValuJet with regard to

their oxygen generators. And their numbers from 830, 803

and 802.

Mr. Rodriguez worked on some of those aircraft,

and he testified that one day he was working on aircraft

830. They were removing old oxygen generators. They were

dealing with the old expired oxygen generators that had to

be taken out. One of them went off in the airplane. Do you

remember he testified he felt the heat from it? He heard a

hissing sound. He even testified to smelling a smell. He

was testifying to something that he perceived with his own

 

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senses. That is direct evidence.

Now, what is circumstantial evidence? You may

recall the testimony from Mr. Rodriguez, and we also heard

from Mr. Taber on this score, that on a certain day in May,

and Mr. Rodriguez was able to help us pinpoint it, because

he knew it was a Saturday, and he knew it was before the

crash, and we know from other evidence that the crash

occurred on Saturday, May 11; therefore, we can figure out

that this occurred on Saturday May 4, the only preceding

Saturday in that month. Mr. Rodriguez testified that on May

4, he, Mr. Taber and others in their crew, were called to

the work booth to sign documents, their lead mechanic, a man

named Jude Casamere called them, and that John Taber balked.

There was something about the signing. He didn't sign

everything. They both testified that Eugene Florence and

Danny Gonzalez were in the work booth that day.

Mr. Taber, who got further into the booth, and who

you may recall did sign one document that day, testified

that papers were spread on the counter, and they were

documentation of oxygen generators.

That documentation, ladies and gentlemen, appears

as Government Exhibit 25, and we will be talking about that

in some detail in this case, this big sheath of papers.

Mr. Taber testified to seeing documentation

relating to oxygen generators spread out on the counter that

 

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day. He also saw Eugene Florence at that work booth signing

papers that day with Danny Gonzalez at his side.

From Government's Exhibit 25, which is the oxygen

generators for aircraft 802, and we know it was 802 because

remember what Mr. Rodriguez said, the other aircraft had

already gone, only 802 was left; therefore all the paperwork

was done on the other aircraft. When you look at this

paperwork you'll see that the oxygen generator work card

0069 is signed by Eugene Florence, the same one that I just

showed you the blow-up of. Down on the date it says 5/4/96.

Ladies and gentlemen, when you put all of those

facts together you are able to conclude that Eugene Florence

signed work card 0069 on May 4, 1996 in that work booth.

That's circumstantial evidence, and that's a fair basis for

you to make that conclusion.

Remember what the instruction will say, as I told

you earlier. The law makes no distinction between the

weight you may give to either direct or circumstantial

evidence.

Let me turn for a moment to Count I of the

indictment. When you see Count I of the indictment you'll

see it's the longest count in the indictment. It's got

quite a bit of language that relates to some background

issue. What was SabreTech? Where was it located? What had

been DynAir Tech of Florida? Although it's laid out in some

 

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length, I think we are going to be able to move through

those matters very quickly, because they're really pretty

cut and dry and not anything that is in dispute in this

case.

There may even be some small deviations from some

of the things that were laid out in the indictment with

regard to perhaps an address or a title. But in the Court's

instructions, the Court is going to tell you the parts of

the indictment that you must find beyond a reasonable doubt,

the essential elements of the crime.

Count I outlines a conspiracy which is also fairly

called an agreement to commit a crime. You are going to

learn through instructions that that agreement does not have

to be expressed. The government doesn't have to show a

formal agreement. There doesn't have to be a meeting where

everyone sat down and said; "what's the plan? The plan is

this. The plan is we are going to make false statements.

You got it? Yeah, I got it." The government doesn't have

to show that. Indeed, we are not going to show that. You

didn't hear evidence like that in this case.

It's not also necessary to show that the members

planned all the details together or all the overt acts,

which are steps in the furtherance of the conspiracy, which

are also stated in the indictment.

The government doesn't even have to show that the

 

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agreement was successful. It just must show an agreement

and a step taken in furtherance of that agreement. It must

be an agreement, a mutual understand to accomplish a common

plan. Here, that mutual agreement and understanding was to

make false statements on behalf of SabreTech. Why? To

benefit SabreTech.

SabreTech was in the business of making money.

Not a crime. I told you that in opening statement. It's

still not a crime. What is alleged here is that SabreTech's

urge to have its business done overtook other considerations

including safety considerations.

And it even took it at the expense of making false

statements on work papers that are within the jurisdiction

of the Federal Aviation Administration. The Court will

instruct you that such work papers are within the

jurisdiction of the Federal Aviation Administration.

You're not going to hear of anyone from the

Federal Aviation Administration coming in and looking at

those papers, but you're not going to hear that that's a

requirement either. That is not what is required.

The manner and means of this conspiracy as stated

in the indictment was for SabreTech's management, and

Mr. Gonzalez, in particular, to oversee work at SabreTech so

as to rush it and compress it even if this meant skipping

work steps and falsely asserting that the work had been

 

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done. How do you we know that? We know that from evidence

in this case.

For instance, Danny Gonzalez made that position

known loud and clear, literally loud and clear, in a

screaming match with Chris DiStefano, screaming that could

be heard throughout the hangar, according to the testimony

of Michael Quan. When DiStefano dared to try to make the

work card arrangement more accountable in his work booth

even at the expense of limiting access to that work booth.

As a result, Chris DiStefano lost his temporary promotion to

hangar manager.

That attitude of hurrying and compressing work is

also seen in Government's Exhibit 36. We showed it to

several of the mechanics. You may recall it. That was this

document that we call the 7-day-a-week memo.

"To director, supervisors and maintenance

personnel from Danny Gonzalez; re: Heavy workload. Date,

April 26, 1996." Remember that date. It will fit in with

events later on.

"Effective immediately, due to the present work

load all maintenance personnel, including management, are

required to work 7 days including days off. We will return

to regular work schedule when the three MD-80s are

delivered."

It's not a crime, ladies and gentlemen, but it is

 

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part of the circumstance of the pressure that caused

documentation like that work card to be falsified less than

ten days later.

We also heard testimony about the incident at the

booth very shortly after that memo, on May 4 of 1996. When

the mechanics were summoned to the work booth to sign those

work cards, John Taber, he wasn't too eager to do that. He

said he had to read the work cards. He said he was greasy.

He wanted to go. He read one and signed it because he had

done the work. When he was asked to sign more he said, "no,

I want to read it."

Danny Gonzalez said, "we need this paperwork

signed now." Standing at Eugene Florence's elbow with work

papers. Ladies and gentlemen, that was an invitation to do

some pencil whipping. This is an invitation from the boss,

Danny Gonzalez, and it was an invitation that was hard to

refuse.

John Taber resisted. He was greasy. He said he

wanted to read. Whether he was a hero or whether he was

sliming out of it, you can draw your own interpretation.

But the bottom line is he didn't end up putting his name on

this work card, did he? It was Mr. Florence that did that.

Mr. Taber walked out. Mr. Florence didn't. But they both

knew that those shipping caps were not on there. They knew

because they had talked about it. We'll have further

 

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discussion about that.

Ladies and gentlemen, that's why Eugene Florence

is here today because of that work card and because of the

decision that he made on May 4, 1996 to sign it. That's an

agreement, ladies and gentlemen. He doesn't have to stand

there and say to Danny Gonzalez, should I sign it even

though it's false? And Danny Gonzalez saying, yeah, sign it

each though it's false. There's no evidence like that, and

that's not what the government is required to prove. But

Eugene Florence's understanding what Mr. Gonzalez wanted and

being willing to do it, by deed, if not by word, that

evinces an understanding.

There were other instances of this sort of

situation. You may recall the testimony of mechanic Tomas

Silvers, the gentleman who testified in Spanish with an

interpreter. He testified that his lead mechanic, Ray

Serrano, had him and a man named Mauro Valenzuela working on

oxygen generators and telling Mauro Valenzuela to sign

papers even though Valenzuela said he hadn't done the work.

We had some grand jury testimony of Mr. Silvers as

to whether they inspected the work, but what Mr. Silvers

testified to was that they told Ray Serrano that they hadn't

done the work. And Ray Serrano, who was part of the

supervisory chain, it didn't phase him. They had bantered

back and forth about who was going to sign. Mauro

 

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Valenzuela took the papers. Later on Silvers said, "what

did you do that for?" And Valenzuela said, "well, it's

signed now".

Ladies and gentlemen, in Exhibit 26 you are going

to see the parallel documents for aircraft 803. You are

going to see that same work card, the one that I showed you

before that Mr. Florence signed. But this time in Exhibit

26 it's signed by Mauro Valenzuela, ST0088. It's that same

false statement.

I'm sorry, I'm showing you page two. He signed

both pages. Page 1, again ST0088, at item B, "if generator

has not been expended install shipping cap on firing pin."

Mr. Valenzuela signed it for aircraft 803. It wasn't true.

Thomas Silvers told you that he and Mauro

Valenzuela were working on the oxygen generators that day,

the old ones, putting green tags on them, and they didn't

have shipping caps on them.

Robert Rodriguez told you that early in May he was

called upon to clean up the oxygen generators along with the

rest of his work crew. They cleaned up generators,

including from 803, they didn't have shipping caps. Another

false statement about this same thing.

Other instances of this common plan at SabreTech

involving falsification, you may recall the testimony of

both Robert Rodriguez and John Taber that on the day that

 

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they were sitting at a table with Eugene Florence and they

were working on oxygen generators, they were taking old ones

out of the insert units, and you remember what we are

talking about when we are talking about the insert units.

Perhaps you remember this thing, Government's

Exhibit 29, this is the PSU as it goes into the passenger

compartment, the oxygen generator fits in this heat shield,

and when the mechanics were working with these generators

swapping in and out, the heat shields were out of the unit,

they took them out of the airplane, and they had them out on

a table. And they were taking oxygen generators out of

these metal brackets, taking out the old ones and swapping

in new ones. They spent a good part of the day doing that

with lots of oxygen generators.

Eugene Florence was at the table. John Taber was

at that table. Robert Rodriguez was at that table. They

talked about what they were doing. Robert Rodriguez said;

hey, what about this shipping cap, because the shipping cap

appeared on the new generators. Remember they were swapping

in new generators. They looked like this. Obviously, this

one has no bottom on it. They had this little warning label

that no one seems to remember. People don't remember what

they don't want to remember.

They also had shipping caps. They are also known

as safety caps. Robert Rodriguez said; "hey, what's

 

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happening with this shipping cap?" John Taber said; "we are

out of shipping caps," and said, "I told Mr. Wiles that we

were out of shipping caps, and Mr. Wiles said don't worry,

we will take care it have later."

Who was Mr. Wiles? He was a supervisor. He was

right there. He was in the area of this conversation.

Ladies and gentlemen, that is evidence from which you can

conclude that Wiles also was part of this chain of

management indifference to safety concerns.

Another person who was there that day Jude

Casamere, the lead mechanic. No not only did he hear the

same thing about there being no shipping caps, he was also

present at the work booth. The same man who was part of

SabreTech's supervisory chain, the same lead mechanic who

knew there were no shipping caps, was at the work booth the

day that he, Jude Casamere, was summoning mechanics to sign

work papers including the work paper that Eugene Florence

signed falsely stating that there were shipping caps.

So who was in this agreement, this conspiracy?

Danny Gonzalez, you heard about some role that he had in the

work booth, and you will also hear, as we discuss further,

about his falsification of a work card relating to Aserca

Airlines.

Eugene Florence signed that false work card for

0069 for aircraft 802 and also a non-routine work card and

 

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Mauro Valenzuela. In addition, the indictment says there

were other persons, unknown persons in this agreement.

For instance, ladies and gentlemen, there was a

letter that was written by a man named William Drechsler.

William Drechsler wasn't getting along well with SabreTech.

It was DynAir Tech then. He was the tech rep for Aserca.

He wrote a letter expressing his concern, and he said quote,

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, unquote.

Mr. Drechsler was here. On cross-examination he

said; "well, I was thinking more been late paperwork." But

that's not what he wrote, ladies and gentlemen. What he

wrote that we have papers signed and no work accomplished.

And that letter went to managers at SabreTech. That should

have been a red flag to them. It went to Mr. Pereyra, the

addressee, the Vice President of marketing, the man that

testified yesterday. Mr. Pereyra gave it to Danny

Gonzalez.

Danny Gonzalez and Eugene Florence, the two

individual defendants before you here today both knew that

the conspiracy and the agreement went beyond the individual

false statements they made.

Danny Gonzalez knew. He was the one who was

 

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urging John Taber to sign saying there was no time to read a

document with Eugene Florence at his side. Clearly an

invitation to do slipshod work and pencil whipping.

Eugene Florence must have known also that other

false statements were being made. Eugene Florence knew

there were two aircraft with old oxygen generators. He

worked on both of them. We know that from his own statement

to Mark Gentile of the FAA. Not only was it oral but it's

here in writing. It's Government Exhibit 79, Eugene

Florence's written statement to the FAA; "which ValuJet

aircraft did you perform maintenance on?" "802 and 803."

"To the best of your knowledge, how many oxygen generators

did you personally remove from each aircraft?" "From 802,

30 to 35. From 803, 30 to 35."

"After removal of the oxygen generators, did you

install a safety cap on the primer?"

"No, they weren't available. Had to keep new ones

on until final drop check." So Eugene Florence must have

known that just as he had signed work card 0069 for aircraft

802 somebody had to sign a similar work card for aircraft

803, and that that signature had to be false because there

weren't shipping caps.

Ladies and gentlemen, I've talked about

individuals, but there's another important player in this

conspiracy in these crimes. Indeed, probably the most

 

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important player and that is something known as SabreTech.

In the law, SabreTech, a corporation, is considered to be an

actor that can be guilty of a crime just like a human being.

That is what has been charged in this case, that SabreTech

committed 23 of the 24 crimes charged in this indictment.

A corporation is an actor. It accomplishes

things. It accomplishes it as the sum of the individuals

that it employees and its agents. It is the sum of its

part. What those individuals do, that corporation does.

What the individuals know, the corporation knows. It is

even considered that a corporation can have a quote,

unquote, mental state. It can do things with a knowledge

and appreciation of what it is doing.

Of course, that must be so, ladies and gentlemen,

because the corporation takes actions that have legal effect

and that require volition and intent.

What is this corporation? This is something that

is alleged in the indictment. There was DynCorp. And then

DynCorp sold its stock to SabreLiner. And then SabreLiner

bought the DynCorp company including DynAir Tech of Florida.

DynAir Tech of Florida became SabreTech.

Ladies and gentlemen, this is one of those areas

where there are a few documents in evidence. We haven't

gone through them in detail. They lay out this corporate

history. I'm going to do it here briefly. You will have

 

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the documents to look at. They are somewhat dry documents.

They are business documents. But it's not really in dispute

so I don't think it is something that will give you much

pause.

One of the documents is this book, this black book

here, which is a binder that was made at the time of

purchase of DynAir Tech of Texas Inc., DynAir Tech of

Florida Inc., and from DynAir Avionics Inc. from DynCorp

Aviation Services. And it has the stock purchase agreement.

What this is about, ladies and gentlemen, is that

on June 30, 1995 SaberLiner Corporation, and there's

another documents. It's exhibit number 67A and 67B. Those

are the articles of incorporation of SabreLiner which is a

Delaware corporation. That corporation bought the stock of

these DynCorp Aviation companies including a company that

was known as DynAir Tech of Florida.

DynAir Tech of Florida had a repair station

certificate. The number is set forth in the indictment.

That number also appears on several documents in this case.

When the repair station stock was sold to SabreLiner,

SaberLiner then operated that company. It operated that

company under that name until around January when it merged

all of the DynAir companies that it had bought in June into

a new corporation which it formed call SabreTech.

In these documents, and this is Government's

 

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Exhibit 66, these are SabreTech's papers of incorporation

from the state of Delaware. This is in January of '96

SabreTech is incorporated. There's other documents in these

series. These are all found around 66, 67A, 67B. 69 is the

articles of merger that are merging the DynAir companies

into SabreTech. 70, another certificate of merger of DynAir

Tech companies into SabreTech. All of these documents

amount to, ladies and gentlemen, when you look at them is

expressed in this chart.

This dotted line is June 30, 1995. Before June 30

of 1995 all of these companies were owned by something

called DynCorp. DynCorp has nothing to do with SabreLiner.

June 30, 1995 DynCorp sold its stock in these companies,

lock stock and barrel to SabreLiner.

From June 30, 1995 on, up to the time of our

events, including January of 1996, these companies were

owned by SabreLiner. That's demonstrated in this chart by

the color change. The colors really tell you more about the

ownership than the actual names. The green is when it was

DynCorp companies. The reddish color is when it was

SabreLiner.

They used the same name for a while. In the

purchase agreement, you'll see there's an agreement that

they can continue using the name for a certain number of

months to allow for a transition, and then they have to

 

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change the name. That's what they did.

From June 30, 1995 they used the name DynAir Tech

of Florida. In January they started a new corporation in

January of 1996. It was then SabreTech and they merged

these DynAir companies. It was DynAir Tech of Florida,

DynAir Tech of Texas, DynAir Avionics Inc. They merged

those three into SabreTech.

But the point is, basically, you've got one

continuous business under one continuous set of ownership

and control from June 30, '95 all the way to the time of our

indictment although operating under two different names.

Now, there is other background material in the

indictment. You are going to hear about this in the Court's

instructions. This is background material about what is the

Department of Transportation. What is the Federal Aviation

Administration. How did there jobs relate to the documents

in this case. Again, let me touch on it briefly.

Basically, you will hear about this in the Court's

instructions.

You'll hear from the Court that the Department of

Transportation was a department of the United States.

You'll hear that, from the Court's instructions, you'll be

able to conclude that Congress enacted laws to promote the

safety of flight of civil aircraft in air commerce to create

rules and regulations and minimum standards in the interest

 

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of safety, and that Congress empowered the Secretary of

Treasury to carry out those duties, these duties of the

Department of Transportation included oversight and

regulations of hazardous materials including standards for

documentation and transport of hazardous materials.

That the Federal Aviation Administration was an

agency of the United States within the Department of

Transportation, and its mission was to promote safe flight

of civil aircraft, and that it was empowered to issue repair

station certificates.

We have got SabreTech's repair station

certificate, copy of it, as an exhibit in this case. It's

Exhibit 96. It shows on it the same repair station

certificate number RD3R811L that you will also see on

documents relating to DynAir Tech of Florida. They kept the

same certificate.

Having this certificate put them under the

jurisdiction of the Federal Aviation Administration. You'll

also hear that it was a legal requirement that certificated

domestic repair stations were required to maintain adequate

records of their work, that records had to name the

certificated mechanic or repair person that performed or

supervised the work, and that at all times that Federal

Aviation had the right to inspect these repair station

records and that these records were within the jurisdiction

 

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of the Federal Aviation Administration.

Now, what were they talking about when they talked

about the certificated mechanic? Those were the people who

are authorized to sign these work cards. People like Eugene

Florence, Mauro Valenzuela, Danny Gonzalez all had airframe

and power plant licenses.

Now, we did have some testimony about SabreTech.

I'm going to use the term SabreTech, and I hope you will

understand that when I say SabreTech this sometimes includes

the phase when it's DynAir Tech of Florida but beginning on

June 30, 1995. That's the shorthand, and the indictment

uses the same shorthand.

You her about how SabreTech did best in some ways.

They used lots of contract labor. Robert Rodriguez told you

about this. We also had this lady named Kay Peters who came

in and introduced one of the documents. And she explained

that SabreTech would get labor from these aviation services

such as PDS.

I believe it was Robert Rodriguez who told you

that stood for Piping Design. Robert Rodriguez worked for

PDS and was contracted to work at SabreTech. Same was true

of John Taber and Eugene Florence. They were all PDS, as

Mr. Rodriguez testified to.

Mauro Valenzuela came from STS. We know that from

Government Exhibit 44, which is a list of employees and

 

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their employee work numbers through Mr. Peters being

introduced in evidence.

What's important about this, ladies and gentlemen,

is that they were all supervised by SabreTech. They were

its agents. It is what the law calls a master servant

relationship. What they did in the course of their work for

SabreTech, SabreTech did also, because that's the way this

agency relationship runs.

We know that. We know that Florence and Taber

reported to lead mechanic Jude Casamere who reported to

David Wiles on up the chain eventually to Danny Gonzalez.

Tomas Silvers testified that he and Mauro Valenzuela

reported to Ray Serrano and to Danny Gonzalez.

Let's talk for a moment about Danny Gonzalez. He

was the Director of Maintenance. One of the overt acts in

the conspiracy count and one of the substantive counts

relate specifically to a work card that Danny Gonzalez

filled out. It was a work card or Aserca Airlines, 0069.

Danny Gonzalez's signature appears on some other

documents but the one that is charged in this case is a

false statement, is a work card for Aserca Airlines.

MR. DUNLAP: I hate to interrupt, but she is

referring to the wrong work card.

MS. MILLER: Thank you, Mr. Dunlap. You are

correct. I said 0069. Ladies and gentlemen, excuse me,

 

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that's the number associated with the ValuJet work card.

The Aserca work card has got a lengthy number.

It's Government Exhibit 2. The number appears on it. The

point is this is for the ice protection system on Aserca

Airlines aircraft number 720.

Now, the government's proof that this work card is

false and that the work was not done came from the testimony

of several individuals. We heard from Michael Quan. We

heard from Chris DiStefano, and we heard from William

Drechsler. DiStefano and Drechsler in particular testified

that the work to complete this ice protection system

functional check takes longer than the time that Danny

Gonzalez had this work card.

Both said it was a two person job. Chris

DiStefano said that it would take two people three hours to

do. Bill Drechsler said it would take two people four hours

to do.

Danny Gonzalez was gone with that paperwork for an

hour and a half, according to Christopher DiStefano. You

will recall that both Mr. Quan and Mr. DiStefano testified

about the same incident that occurred one morning in

December shortly before Christmas 1995.

Michael Quan thought that the time between the two

entrances of Danny Gonzalez was between twenty minutes to

two hours. This work had not been done previously to this

 

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incident and the paperwork had not gone out previously. It

was Michael Quan and Chris DiStefano who laid out that

paperwork. This was according to Chris DiStefano, who was

the supervisor on that airplane. He testified that he was

going to lay out that paperwork the first day of work on

7/20 which would be the first day that he started handing

out the paperwork.

Michael Quan and Chris DiStefano both gave

accounts of this incident. They both remembered different

things. Ladies and gentlemen, as one of them testified,

this is in part because they have not conformed their

accounts. They have not discussed this matter with one

another since it originally occurred. But their two

accounts, although they are somewhat different, are not

irreconcilable and reflect a differing recollection of the

two people who observed the same thing.

Both recalled noisy fight. Chris DiStefano told

you what preceded that fight. He wanted to change the

system for work cards related to the next Aserca airplanes

coming in. He had worked on and supervised the Aserca

airplane 705. It had had a lot of problems with the work

cards. Too many people were coming into the work booth.

They were getting access to the work cards, and work cards

were getting lost, and the trail was being lost.

He went to a management meeting, and he explained

 

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to Jaime Galindo, Danny Gonzalez, and others who were

present that he was going to change the physical layout of

the work cards in the work booth to make them flow better,

make the priority work go better, and he was going to limit

access to that work booth. That's what he thought he was

going to do.

He set it up, but what happened the first day was

that Mr. Gonzalez came in and he objected obstreperously to

this arrangement. Michael Quan recalls Danny Gonzalez

coming in and saying; what the expletive is this. Both of

them remember Danny Gonzalez and Chris DiStefano arguing

about it loud. Both remember Danny Gonzalez taking a bunch

of paper and handing it out to the mechanics for work to be

done.

Chris DiStefano remembers Danny Gonzalez putting

it in his jacket and that not all the paperwork was handed

out. Michael Quan didn't remember whether all the paper was

handed out or not but he did not contradict Chris DiStefano

on that point.

Then Christopher DiStefano testified that he hung

out around the plane and he did not see Danny Gonzalez

there. He went past Danny Gonzalez's office and on the desk

he saw this document, this work card Government Exhibit 2

for the ice protection system. Both of them remember Danny

Gonzalez returning to the booth. DiStefano says an hour to

 

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an hour and a half later. Quan says twenty minutes to two

hours later.

DiStefano remembers Danny Gonzalez coming in and

having papers that were already signed and laying them on

the desk and saying; "see, Chris, don't worry. We'll have

that C-Check done in no time," either a reassuring statement

or not, depending on your point of view considering the

fight that he just had.

Michael Quan remembers Danny Gonzalez taking the

paper from the rack, signing it and leaving after making a

remark that he remembers similarly; "see, we'll have that

C-Check done in no time."

Michael Quan doesn't recall if Danny Gonzalez

brought anything with him. He doesn't contradict Chris

DiStefano. He just doesn't remember. Michael Quan's

recollection of signing something on the spot is more

consistent with the document that he remembers which is a

three page document.

Chris DiStefano, on the other hand, recalled that

it was this document, which is a lengthier document. Ladies

and gentlemen, you may recall that it was brought out on

cross-examination that when Chris DiStefano was in the grand

jury he couldn't remember which document he saw Danny

Gonzalez with. At that point, in the grand jury, he didn't

have any documents to look at. Later on, when he had the

 

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documents to look at, he was able to identify it. In the

grand jury he was asked how long was it. He said it was

about ten pages. Ladies and gentlemen, this document is

nine pages long.

Michael Quan remembered a different document being

signed on the spot. That was this fuel bio-bor card. The

government does not claim that the fuel bio-bor card was

false. In fact, the fuel bio-bor card was for work that was

not going to be done because it was N/A, not applicable.

They were going to do something else with those fuel tanks.

They were going to open them and dry them, and that was

going to eliminate the need for that work. That card is not

alleged to be a false statement. That's not what Count II

charges.

You heard that Chris DiStefano was somebody who

took a book from SabreTech in August of 1996, the turnover

log. You also heard that Chris DiStefano got use immunity.

Getting use immunity was not something that was unique to

Chris DiStefano.

We had a number of witnesses in this case who

received use immunity: Robert Rodriguez, John Taber, Tom

Silvers, Keith Ingram, Mitch Perez, Carlos Diaz.

Practically every one of the SabreTech employees who

testified had use immunity. You'll hear an instruction

about use immunity, that it means you should listen with

 

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caution to the testimony of those people, but they are

capable of telling the truth, and you are capable of

concluding that tell the truth just as with any other

witnesses.

Chris DiStefano paid a price for the fight that he

had with Danny Gonzalez. He lost his temporary promotion.

As he told you, he didn't have good feelings toward Danny

Gonzalez after that. He was candid about that, and he told

this jury that. He didn't conform his story to Michael

Quan, and he also told you that he took that turnover log.

Now, you also heard on cross-examination that when

he was asked if he had any criminal arrests or criminal

history he said no, and actually he had been arrested in the

1970s, but later on he told the government about that.

You're going to have to assess the credibility of

Mr. DiStefano. You're going to have to assess if his

misstatement about his arrest was a material matter or not,

and whether that effects your belief in other things he

said.

Ladies and gentlemen, consider that his testimony

is corroborated also by the account of William Drechsler.

In fact, not only did William Drechsler say that the job

would take as long to do as Chris DiStefano, William

Drechsler direct. Will Drechsler who has done that job 25

to 30 times, said he thought it would take longer. He

 

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thought it would take two people four hours to do.

The defense presented a witness who also testified

about that the job. Manny Quintana, and he said he thought

that job would be part of what he called the pre-dock, done

earlier. He didn't say it had to be done as part of the

pre-dock. He said it could be done inside the hangar.

He testified to seeing Dan Gonzalez in an aircraft

piloting it around. He didn't say that it was even a 720.

Ladies and gentlemen, pilotting and aircraft and driving it

on the ground, that has nothing to do with this function

driving that aircraft. That's big shot work driving that

aircraft around. Mr. Quintana did not testify that he saw

Danny Gonzalez turning wrenches or working with a little

test kit for checking valves, as was testified was necessary

for this ice function protection system.

Chris DiStefano was the supervisor of the plane.

Now, ladies and gentlemen, is it possible that Danny

Gonzalez sneaked in the middle of the night, got into that

airplane and did a two person job all by himself. That's

not the test. You're going to hear in the instruction,

quote it is not necessary that a defendant's guilt be proved

beyond all possible doubt. It is only required that the

government's proof exclude any reasonable doubt concerning

the defendant's guilt.

A reasonable doubt is a real doubt based upon

 

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reason and common sense after careful and impartial

consideration of all evidence in the case, unquote. Common

sense tells you that's not what happened. Work done

surreptitiously undercover of night.

Common sense tells you and supports what the

testimony is. That this work card reflects work that was

never done at all, pencil whipping.

Ladies and gentlemen, I would like to turn now to

some of the other counts in the case. In order to do that

I'd like to run through some of the events in this case in

chronological order, because when we have a trial things

come in bits and piece. Witness A testifies about something

that happened in September and in February witness B comes

in and talks about something that happened in January and

April. During this closing argument that we have an

opportunity to try to put these things in order. So if I

may, I'd like to use a time line to do that.

I've actually got two placards as we get to the

period of May '96, as the events are closer together, I'll

use the second placard. What are the events in the case?

Let me move this back a little. June 30 of 1995, SabreLiner

buys DynAir Tech of Florida. That's when it basically

becomes the company later named SabreTech.

Summer of 1995, there is an aircraft maintenance

service agreement, and that agreement appears at Government

 

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Exhibit 35A. This is the document. In this document

there's a provision. Again, this is one that we haven't

gone into the details of with you. It's at section 11,

article 11 of this agreement. What is says is failure in

performance. The whole thing is here. You can read it.

The significant portion is Cellar, that's DynAir Tech of

Florida, later SabreTech, agrees to credit ValuJet the

amount of $2,500 per calendar day as liquidated damages for

each day the aircraft is delayed beyond the delivery date.

In other words, it's a penalty clause. SabreTech gets a

financial incentive to get its work done on time, because if

they don't get the work done on time, they are subject to a

penalty clause of $2,500 a day. Just part of the business

setting, not a crime. Certainly not an unusual provision,

but a factor in SabreTech's concern in getting work out

promptly.

December 1995 Aserca, airplane 720 comes to DynAir

Tech of Florida. There's the argument between Chris

DiStefano and Danny Gonzalez. Danny Gonzalez falsely signs

the ice protection work card. Government Exhibit 2, Chris

DiStefano loses his promotions.

January of 1996, not every event that I'm telling

is on this timeline, but it does fit in with the events

there. January of 1996 Chris DiStefano transferred work on

the MD-80s. The MD-80s are these three aircrafts that

 

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ValuJet jet had SabreTech doing C-checks on refitting for

them. They had bought them from another airline, and they

were being refurbished, made to conform the ValuJet design,

and they had their oxygen generators worked on because

oxygen generators had expired on two of the aircraft.

January 1996, the DynAir companies merging into

SabreTech and work begins on the MD-80s.

Now, the work on the MD-80s included removing an

replacing expired oxygen generators. You all remember the

testimony of Robert Brennan, the man who looked like he

needed, the red suit in advance for Christmas. The

represented from Scott Aviation. He explained that the

oxygen generators are a one time use item.

They've got a chemical in them, sodium chlorate.

It releases oxygen when heated, and that chemical is a

granular substance. And overtime as the aircraft takes off

and lands, the vibration of landing could cause that

granular substance to pack and to develop little fishers.

The concern is that overtime, if there are fishers, the

oxygen generators will not fully initiated. When the heat

reaction starts, the heat may not jump a Fisher, and oxygen

will not be fully produced.

So there is a time limit put on oxygen generators.

The time limit is 12 years. After 12 years there's no

further use for them. You can't reuse them. You can't

 

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refurbish them. They are a dead letter. The part of the

SabreTech was to remove expired oxygen generators from two

of the aircraft.

Eugene Florence and John Taber were deeply

involved in that work. During the period of February,

March, perhaps into April of 1996 Eugene Florence, John

Taber and others were removing old expired oxygen generators

from 802 and 803. 830, you may recall, the oxygen

generators weren't expired. They had to do some work with

oxygen generators on 830, but not much. The major work was

on 802 and 803.

During this time there were things happening that

told these mechanics, their supervisors, and SabreTech in

general, watch out these generators are dangerous. They

would go off, for one thing. They would go off easily.

Robert Rodriguez was working in 830 when one went off.

Chris DiStefano, remember after he got pushed out

of Aserca, he worked in aircraft 830, and he had two of them

go off.

John Taber told you that as he and Florence and

the others were working at the table, they were taking

generators out of boxes, and he could see, John Taber could

see that some of the generators had gone off in the box and

had melted that plastic heat shield.

As they were working at the table, they noted the

 

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absence of shipping caps. They discussed among themselves,

and they discussed with David Wiles. David Wiles said don't

worry about it. So what the mechanics did instead they

thought it would be a good idea, John Taber testified to,

was they wrapped the lanyards.

What is this business of wrapping lanyards?

Mr. Brennan testified and told us that when the oxygen

generators are shipped out, they have the lanyards wrapped

around them this fashion. He said they secured with a

rubber bands or the mechanics were securing them with tape.

Guess what ladies and gentlemen, this is not a safety

measure. On cross-examination the defense tried over and

over again to get Mr. Brennan to agree that this had some

safety role. He kept saying no, it is not a safety measure.

It does not protect this generator from initiating. What it

protects is keeping that hammer from falling mechanically.

And when the hammer falls and that safety cap is placed,

it's a pain in the neck. You got to reset the hammer. As

you saw, it's springloaded. It's hard to do.

In fact, these generators are only meant to be

used one time. Do you remember we had testimony from

Mr. Brennan that the first generator that we got didn't work

out so well that we got for this case. We had to go back

and make what he calls a ruggedized one, that was because he

testified that somebody, I testified that it was me, had

 

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leaned their hand on the generator top and had broken that

too, and he said, "I put a little drop of SuperGlue on it."

The SuperGlue has not been so super, and you can see on this

one that it happened again. They are meant for one time

use. They are not meant to be used over and over again.

When that lanyard and that pin pulls out it's a

pain in the neck to replace it. That's the purpose of

wrapping lanyards. It's not a safety mechanism. All that

this wrapping does is, hopefully, it keeps that hammer from

dropping. But if the hammer drops, and there's no safety

cap, this thing is going to go off. If the hammer drops and

there's a safety cap, there's no problem. That's the safety

measure, ladies and gentlemen.

But the mechanics were wrapping lanyards. They

knew there were no shipping caps. You may hear that this

was the best they could do and, therefore, they were acting

in good faith. Ladies and gentlemen, that best wasn't good

enough. When you're dealing with hazardous substances, it's

just not enough to say "hey, I did my best."

What if they had been chewing gum and decided that

that was a good idea. Would that have been sufficient?

That's not the definition of good faith, ladies and

gentlemen. It certainly has nothing do to do with telling a

lie. There's no good faith against making this statement

saying that you put a shipping cap on when you haven't.

 

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It's not good faith to say well, I didn't put a shipping cap

on, but I wrapped the lanyard. So it's okay to lie. That's

not good faith.

Now, another thing as they were working with these

generators, remember, they are taking new generators. They

are swapping out old generators and putting in new ones.

Remember what's on the new generators? None of the

mechanics wanted to remember. And remember what I said a

few moments ago? It's painful to remember some things.

Nobody is suggesting that the people who were

involved in the series of events don't feel very very bad

about what happened. But it did happen, ladies and

gentlemen, and the law requires us to look at them.

The new generators that they were working with had

warning labels on them. "Warning this unit gets hot. When

removing unit install safety cap over primer. Do not pull

lanyard. If activated place on surface that won't burn."

It didn't appear on the old generators because the old

generators predated 1988. That's the year that Mr. Brennan

said this label start to be affixed. But the new generators

had this label on them. They were coming in 1996, and the

same people that were working with the old generators are

working with the new generators.

In addition ladies and gentlemen, they were

working with the boxes that the new generators came in. At

 

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that table where Eugene Florence, and John Taber, and Robert

Rodriguez were, they were working with boxes like these.

This photograph was taken by agent Gentile. You remember

Mark Gentile testified during the end of the trial. He was

an FAA agent who went out to SabreTech after the crash and

documented much of what he saw. Among the things he saw

were these boxes, which Mr. Brennan identified were the

boxes that the new generators are shipped in. These boxes

which the mechanics worked with also put them and SabreTech

on notice that they were working with the new oxygen

generators. It's got the numbers and description on it.

Most of all, it's got the yellow thing on it.

In this picture it's covered partially with tape,

but not all of it. We have got a sample of it. It's

Government Exhibit 38, excuse me, 30E. It's the oxidizer

label. We showed it to Mr. Brennan. This is the same label

that appears on this box. It's a hazard label, but people

don't see what they don't want to see.

April of 1996, more work on oxygen generators.

Tommy Silvers, and Mauro Valenzuela work on oxygen

generators. Ray Serrano, their lead mechanic, asks them to

sign papers. They say they haven't done the work.

Valenzuela takes the paper and letter on he tells Silvers,

"now it's signed." They spend the rest of the day putting

tags on generators which have no shipping caps.

 

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Now, for the documents that Mr. Valenzuela signed,

we look to Government's Exhibit 26. Government's Exhibit 26

shows the routine work card 0069 signed by Mauro Valenzuela

ST0088 and also the non-routine work card signed by Mauro

Valenzuela in which the task was remove and replace all

cabin oxygen generators per ValuJet card 0069 attached. And

Mr. Valenzuela signs as work completed by. That was false.

The generators had not been removed and replaced

per ValuJet card 0069, because 0069 contained an untruth in

it. Mr. Valenzuela knew it, because he was the one who

signed 0069. Both documents are false statements. Both

false statements by Mauro Valenzuela, and therefore, by

SabreTech. Ladies and gentlemen, this is Count III of the

indictment, work card 0069 for 803. This document is Count

IV of the indictment, non-routine work card saying that

everything had been done per work card 0069. Exhibit 26

contains the documents that are the false statements in

Counts III and IV.

April 26, 1996, we have that memo that I showed

you earlier. The 7-day-a-week memo from Danny Gonzalez.

This isn't just an admonition to work 7 days a week. It is

because of the MD-80s. "When the three MD-80s are delivered

we will return to a regular work schedule." So there was a

press on to get those MD-80s out, and you will understand

why even more, ladies and gentlemen, when I go into a

 

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document that was received in evidence but that we did not

discuss during the trial, but I will discuss with you now,

and that is Government's Exhibit 95.

This document was admitted, ladies and gentlemen,

and as the Court told you, this document can be considered

by you only in relationship to the defendant SabreTech, not

the individual defendants. But with regard to SabreTech, it

is a very significant document.

It's a letter to a Vice President of ValuJet,

dated May 1st, 1996. And the letter is sent by Steve Towns,

the President of SabreTech. In this letter, which was

copied to the Miami facility, and you can see it's got the

little post-it fax notes to Jaime Galindo from S. Towns.

It's got a note on it to Fernando. Remember Fernando

Pereyra that we heard from yesterday, FYI and ValuJet.

In this letter, Mr. Towns, he is basically tried

to mollify his customer. You'll read it yourself. You can

see that ValuJet is unhappy because the MD-80s are late.

"ValuJet is a strategic customer, we intend to

materially help you continue your aggressive growth

path. For a number of reasons, schedule slippages

occurred in the MD-80 program in our Miami branch." In

other words, the planes are late. "I have committed to

you that we will do the right thing so you can meet

your objective today and so that we can preserve and

 

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grow our relationship with you."

"Accordingly, we have agreed today that SabreTech

would cover your potential single day cost of securing

substitute airline service on May 1, 1996 for today's

late delivering MD-80 from Miami. This coverage will

not exceed $20,000. It will be less than $20,000 if

the MD-80, parenthesis number 803, becomes available to

you today for revenue service, or if you do not utilize

the replacement airliner for a full flight day ValuJet

will provide courtesy copies of invoices" --

THE COURT: A little slower please. She has got

to take it down.

MS. MILLER: "ValuJet will provide courtesy copies

of invoices and or flight summaries on the replacement

airliner on May 1, 1996 so that SabreTech account

records are complete."

There's a little bit more. And then it says:

"As you know we are soon going to put substantial

capacity and management resources on line on ValuJet's

behalf. I welcome the personal meeting with you and

Luis Jordan so that can present first hand the many

improvements that will be embodied in this old

strategic chain."

In other words, SabreTech has been under financial

pressure because those planes were late. They had promised

 

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to provide a credit against ValuJet's costs for 803, up to

$20,000 per day costs.

That atmosphere, that pressure, made itself felt

on the floor of the hangar even. On May 4, 1996 Jude

Casamere summoned the crew to the booth telling them to sign

papers. John Taber didn't quite want to do it. He said he

wanted to read the paper first. He read one paper, and he

signed it for work that he did.

Other papers that he saw in the booth related to

oxygen generators. He said he was greasy and he wanted to

read them. Danny Gonzalez said quote, "we need this

paperwork signed now." Taber declined to sign. Eugene

Florence didn't. He signed 0069 and the non-routine work

card for 802.

Ladies and gentlemen, those documents appear at

Government's Exhibit 25, and they are Counts V and VI of the

indictment. False statements, work card 0069 by Eugene

Florence is Count V. The non-routine work card signed by

Mr. Florence is Count VI. In that non-routine card

Mr. Florence has signed and written right next to it in

handwriting says; "remove and replace all cabin oxygen

generators per ValuJet card 0069, E. Florence."

Ladies and gentlemen, that wasn't true. It hadn't

been done per 0069, because 0069 included the false

statement about the shipping caps having been put on.

 

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Ladies and gentlemen, this is not good faith to

make a false statement like this. In fact, this document

was intended to mislead ValuJet into believing that the work

had been done as accomplished. There's an intent to mislead

and to deceive. You know what, it worked.

Do you remember the testimony of Al Ramos,

ValuJet's technical representative whose job it was to audit

paperwork. He was an auditor by gosh. He had that

personality. He testified that way. He sat there and read

papers and checked signatures. He said that one of the

things he checked for was to make sure every item was

signed.

In this work card it says "E. Florence" on top.

That's not all. Immediately to the left it says "1 A

through D" in handwriting. That's what indicated to

Mr. Ramos that each of these items were being acknowledged

and being signed for, 1A through D. Mr. Ramos believed that

all the steps had been done, including of course step D, and

he was misled.

Now, also in this package, ladies and gentlemen,

there's another document that Eugene Florence signed.

There's several other documents actually that he signed.

One of them is a non-routine work order for the removal of

safety caps from oxygen generators.

Remember the testimony that the new oxygen

 

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generators came with safety caps on. In that discussion

with Robert Rodriguez and John Taber, "hey, what's happening

with these shipping caps or safety caps." The two terms are

used interchangeably. It was stated that the caps have to

remain on the new generators until the drop test is done.

You recall that the drop test is when the new

generators are back installed in the airplane they have to

make sure they work properly. So they go through the test

where the door is open, and they check if the equipment is

going to drop properly. But they have to keep the safety

caps on when they do it because they don't want the oxygen

generators to go off during the test. It's a one time used

item. So the shipping caps have to stay on until the drop

test is done. The drop test has to be done and then the

shipping caps have to be removed, because it would not be a

good thing to send the airplane off with these oxygen

generators with caps on them, because then they're not going

to work when you want them to work.

Ladies and gentlemen, an oxygen generator is a

funny thing in one way. You really want it to work when its

suppose to work. And you really want it not to work when

its not suppose to work. You want it to work when its

suppose to, obviously, because you need oxygen in that cabin

in the event of depressurization. You don't want it to work

in other circumstance because it can be hazardous because of

 

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the generation of heat in the presence of pure oxygen is a

big fire hazard.

After that final drop check part of the step is to

remove the safety cap. In this work card, non-rountine work

card signed by Eugene Florence and dated May 5, 1996, Eugene

Florence certifies he signed it twice, both as having taken

the corrective action and completing the work. "Removed all

safety caps from 02 generators after final drop check, E.

Florence."

Isn't that the ultimate irony, ladies and

gentlemen? The same man who, on May 4, is lying that there

are shipping caps on the old generators, the next days takes

safety caps off of the new generators. But that next step

is not taken. The shipping caps are not put on the old

generators.

The same man who told this lie, took the new

generators' shipping caps off the following day. Nothing

was done that stopped that terrible chain of circumstances

where the old generators were moving forward without safety

caps.

Robert Rodriguez told you what happened to those

generators next in that week of May 1996. They were

hustling that week. They wanted to get the aircraft out and

they wanted to clean up for a customer audit. There was a

push on to clean up. Jude Casamere came to Robert Rodriguez

 

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and John Taber and said, let's clean up all these old

generators as part of that clean up process.

They gathered old generators, and remember, that's

when Mr. Rodriguez testified and I told you about what I

call the 803 side of the house and the 802 side of the

house. I see that I've gone past the first chart. I'm

going to put up the second chart, because this contains some

of the other chronological events we've been talking about.

Tom Silvers and Mauro Valenzuela working with

their generators in April. The 7-day-a-week memo, April 26;

the Steve Towns' letters May 1, 1996; the work booth

incident May 4, 1996; Eugene Florence signing off on the

drop test May 6, 1996, and right now we are here the week

between May 4 and May 11, 1996.

The mechanics were told to clean up the old

generators from 802 and 803. They did so. And when they

did it Robert Rodriquez said what happened. Guess what?

Every time they touch these generators they're going off.

Duh. No, the bell does not ring. It doesn't compute. Duh,

they just went off, what should we do with them? Put them

in a box and send them out of here. Out of sight. Out of

the mind. That's what they did with them. Three boxes were

brought to storage. There were no shipping caps on them.

May 9, May 10, Al Ramos and Bill Simons took a

tour of the stores area. Remember the both worked for

 

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ValuJet. Ramos thought that he saw a box of what he later

concluded were new generators. He didn't know what they

were when he saw them. They had a talk with Bill Heral, the

director of logistics, about moving forward to do an

inventory of ValuJet property. Mr. Ramos testified that he

tells Bill Heral, "don't move anything out yet. We are

going to be doing inventory."

At the same time, ladies and gentlemen, the scene

now does shift to that stores area. We are now at the end

of the week of May 11 and May 10. We heard from Carlos

Diaz, the assistant to Andy Salis. He testified they were

trying to do this clean up. Andy Salis told Carlos Diaz to

make a shipping ticket for quote, "five boxes oxy canisters

empty."

Now we come to another critical document in this

case, the shipping ticket. Carlos Diaz told you he wrote

many of the words on it. He wrote these critical words:

"five boxes oxy canisters empty" at the direction of Andy

Salis. Andy Salis wrote a few things on it. His signature

appears. He wrote in this information about ValuJet,

"received 5/10." Remember, Salis wanted it to go out on the

10th but it didn't go out until the 11th.

And then there's Christopher Ramkissoon, the ramp

agent, who eventually received it.

Carlos Diaz saw the box. He saw that it had

 

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bubble wrap on top. It certainly had no haz-mat lables on

it. It had no stickers or nothing that announced any

hazardous nature.

Andy Salis asked Mitch Perez to take those boxes

out to the ValuJet ramp. Perez didn't do it right away, but

the next day Perez drove them to the ramp where ValuJet 592

was waiting.

Now we are at the critical day, May 11, 1996. As

per the shipping ticket, SabreTech wanted to ship them to

ValuJet Airlines concourse such and such, Atlanta, Georgia.

The flight was going interstate commerce. SabreTech was

shipping them to ValuJet. Perez got to the ramp.

Ramkissoon was there. They had a discussion as to whether

they would get on this flight or the next flight, and Perez

indicated that it was okay to go on the next flight as well.

Such things are destiny made, ladies and

gentlemen. Christopher Ramkissoon took this ticket, and he

showed it to his first officer. They didn't look in the box

further. Why would they, ladies and gentlemen? Of course,

in retrospect, everybody wishes that they had, but why would

they when their own repair station was telling them here's

something. It's no big deal. It's co-mat. It's five boxes

oxy canisters empty. Certainly had nothing on it that

indicated dangerous goods, hazardous class, UN label

numbers, any of the requirements. Didn't have any haz-mat

 

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sticker like the one that we saw.

The boxes got loaded into the plane.

Mr. Ramkissoon told you about it, and we picked up the

account from Dennis Segurra. Even Dennis Segurra knows what

a haz-mat label looked like. But there weren't any on these

boxes. He testified that it had no lables. The boxes had

no lables.

He also told you, as he was loading them, he could

hear metal touching metal in those boxes, clink, clink

clink. That's not the way that oxygen generators are

suppose to be shipped. Mr. Brennan told you that, and we

have these photographs. Remember earlier I showed you this

photograph which showed you boxes as Mark Gentile

photographed.

This is the same boxes opened, and you can see the

inserts and the set up of the way that Scott Aviation

shipped out its oxygen generators at this time period. They

were in these individual cardboard tubes. More to the

point, they weren't just lose in the tubes, and I don't know

if you could visualize it well from what Mr. Brennan was

saying, but he explained how they put the generator on the

piece of cardboard and they shrink wrapped the whole thing

to the cardboard. It's immobilized on that plastic shrink

wrap onto that cardboard, and then that cardboard is folded

into a rectangle, and they are shipped twelve to a box.

 

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There's only twelve to a box because otherwise they can be

over the allowed weight.

You've got in evidence, as Government's Exhibit 30

F, the section of the hazardous materials table which tells

you how much hazardous materials of that time of this type,

sodium chlorate was permitted to be shipped on a passenger

aircraft. It was five kilograms.

The generators that were in those boxes had way

more than five kilograms of sodium chlorate. We know that

because Mr. Brennan told us how much sodium chlorate is in

oxygen generators. If it's a two person generator, let me

give you the exact figure, Mr. Brennan testified that it was

between a half pound and something about .85 pounds,

depending on how big the generator was.

Certainly, you may recall the testimony of Robert

Rodriguez, that they had about 40 generators per box in the

three boxes that they brought to stores that day. Eugene

Florence testified to taking 30 to 35 off of each of the

aircraft. There were dozens of oxygen generators that went

on the airplane that day, and there was more than five

kilograms of this sodium chlorate.

It wasn't packed like this. They weren't

isolated. They were all rubbing up against one another.

What was that metal sound? Nobody has x-ray vision

hindsight to look into that box. You heard Mr. Fogg's

 

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opinion, remember they had no safety caps initiated, and

that the heat from that oxygen generator was sufficient.

If you think about it, ladies and gentlemen, would

be sufficient to ignite the cardboard that it was sitting in

and the bubble wrap that was covering it. And those flames

can be enough to cause the other generators to actuate.

Remember what Mr. Brennan told you. An oxygen

generator can go off from having that percussion cap be

struck. And that can start the heat reaction. But

remember, it's a heat reaction. If there's another heat

source, that heat reaction can start even without that

percussion cap being struck. Ladies and gentlemen, that is

exactly what could have happened with those oxygen

generators. One goes off, the box starts to go on fire and

heats others.

Remember this isn't a Class D cargo hold. The

whole point of a Class D cargo hold, its fire safety

feature, is twofold. Number one, it's airtight. Number

two, it has got cargo liners around the outside of it. The

idea of being airtight is oxygen feeds a fire. No oxygen or

less oxygen, less fire. Sounds like a great area.

You take atmospheric oxygen, and I believe it was

Mr. Fogg who testified it's about a 20 percent

concentration, and in that sealed cargo hold, if there's a

fire, it will use up the oxygen level until you get up to a

 

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concentration level of about 10 percent at which point the

fire is rendered to a smoldering state and doesn't pose a

danger to the rest of the aircraft.

You don't want a fire in an aircraft under any

circumstances, but obviously there was some forethought as

to this area of the airplane as to how to make it least

dangerous in a fair. It might be a good concept. The

problem is that concept is destroyed if you introduce into

this cargo hold several dozen little machines that make

their own oxygen. You're not talking anymore about a 10

percent or 20 percent oxygen level. You are talking about

machines that are producing pure oxygen.

Fire in the presence of pure oxygen is a bad, bad

idea, ladies and gentlemen. An that is what can lead to,

and what Mr. Fogg opined did lead to, the raging inferno

that was inside that cargo hold. I call it an inferno

because of the speed of which the fire occurred, 11 minutes.

The temperatures that were reached, Mr. Fogg told us about

pieces of wreckage which he brought in such as the aluminum

seat track. And it displayed this broomstrawing.

Remember he told us about this extrusion of

aluminum when it melts and then when it makes impact and

quickly pulls, it pulls into this weird shape. This shows

that this aluminum was at melting point. He tells us that

was between 1,100 and 1,200 degrees Fahrenheit. That's a

 

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hot fire to get to in 11 minutes.

Mr. Fogg told us about and showed us he called

embrittled control cable. The steel cable that physically

steer the plane. They had been embrittled to the point

where they lost their ductile quality and their flexibility.

Stainless steel melts at an even higher temperature, well

over 2,000 degrees. That was a hot, hot fire.

So the plane took off. It crashed. Walton Little

saw it and you heard his testimony. There were no survivors

of the 110 persons on board. After that crash Andrew Salis

wondered to Mitch Perez. He said to him, "I wonder, did

that shipment get on board that flight." Was Mr. Salis

worried about something?

A few days after the crash, Mark Gentile came to

speak to Andrew Salis. By then this shipping ticket had

come to Mr. Gentile's attention. On May 14 he went to

Andrew Salis and said; "what is this? What are these oxy

canisters?" As far as Andrew Salis knew, these were the old

oxygen generators that he packed. But what did he do? He

immediately called for a file. What was in that file?

Government's Exhibit 49B.

Ladies and gentlemen, Government's Exhibit 49B is

a shippers declaration for dangerous goods. It was a

shipping paper that accompanied new oxygen generators. You

may recall Mr. Brennan testified that when they shipped out

 

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new generators they use a form like this with red stripes.

This has got on it all the indicia that hazardous materials

is suppose to be shipped with. Andrew Salis knew

immediately the connection between what he had sent out the

old generators and the shippers declaration of dangerous

goods just three days after the crash.

This has got on it all the things that were so

tragically lacking from these shipping ticket. It's got the

proper shipping name, sodium chlorate. It's got the class

or division of the hazard, 5.1. It's got the UN or ID

number. Remember Mr. Brennan told us about all these. This

is an international number where there are unique numbers

associated with each hazardous material. It's got the

packing group. It's got warning labels on them:

"Failure to comply with all respects to the

applicable dangerous goods regulations may be in breach

of the applicable law subject to legal penalties."

SabreTech knew that what it had was hazardous

material. This document was in its own file. Its shipping

clerk knew to obtain this document immediately when the FAA

asked him about the old generators.

Finally, in this chronology, ladies and gentlemen,

after the events of the crash we know what happened. There

was a reconstruction that was made of the wreckage. We

heard testimony from Mr. Fogg. I'm not going to go over it

 

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with you in detail because it was presented in a very

detailed fashion with lots of photographs in evidence, but

it led to one conclusion. The massive majority of the

evidence of fire and heat damage of ValuJet 592 was found in

that front forward cargo hold where the oxygen generators

were.

There was other fire damage found elsewhere, for

instance, in the passenger cabin immediately above the cargo

hold, which is totally consistent with what Mr. Fogg also

saw, which is that the fire in that cargo hold had been so

intense that it actually burned out the resin in the

fiberglass panels, the liners that are part of the fire

resistant capacity of that cargo hold.

The fire started in the cargo hold. That's where

it was most intense. It marred the tire. Remember that

these goods were shipped with a tire. The oxygen generators

were clearly implicated in this fire.

We had some questions of Mr. Fogg. There are some

documents in evidence. We also heard testimony from some

passengers on ValuJet 591 with regard to the issue of

electrical problems on ValuJet 591.

Ladies and gentlemen, I'm not telling that I'm

flying ValuJet any time soon. Those passengers were upset.

Who wouldn't be upset with a flight like that with all those

problems on a plane that a few hours later crashed. But the

 

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evidence does not show any evidence of an electrical origin

to that fire.

Mr. Fogg examined ninety percent of the under

floor wiring of that aircraft. It was almost all recovered.

There was no evidence of arcing. There could be no arcing

within the cargo hold because there is no wiring in the

cargo hold. The cargo hold has some electrical fixtures, a

light bulb and a switch, but it does not intrude into that

cargo hold.

In all of that wire that he examined, Mr. Fogg

found one wire that had a possible copper melt which can be

a sign of arcing. It was in the area outside of the cargo

hold. It was a grounding wire. It was not near something

that it could have arced to. I'm not going to pretend to be

able to describe it the way he did with regard to the

potential, the electric potential, but he addressed why that

did not reflect an electrical origin to the fire.

It was a fire hot enough to burn the casings of

the oxygen generators, the stainless steel casings. Ladies

and gentlemen, even if by some unknown and unfathomable

theory, the fire started some other way than the oxygen

generators, who can doubt that the oxygen generators

contributed to that fire? There's no question that the fire

was centered in the cargo hold. There's no question that

the fire implicated the oxygen generators. There were

 

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burned oxygen generators.

Ladies and gentlemen, they were made of stainless

steel. They don't burn easily. But they burned in this

case. The flammable substance inside them contributed to

that. So those oxygen generators once they burn, they are

generating pure oxygen. That would contribute to and

exacerbate any fire, thereby partially explaining the

intensity of the fire how it reached into that cabin and

melted aluminum seat track in the course of 11 minutes.

Ladies and gentlemen, I've now discussed Count I

of the indictment, the conspiracy count. I've discussed the

five false statement counts, the one with Aserca Airlines

and the four relating to ValuJet paperwork. I've also

basically discussed the last count of the indictment.

The last count in the indictment Count XXIV

charges SabreTech with placing destructive devices on board

an aircraft knowingly and willfully and making and causing

at that aircraft to be made unworkable and unusable and

hazardous to work with and use so that such placing and

making were likely to endanger the safety of ValuJet

aircraft 904VJ.

We know that the oxygen generators are destructive

devices. Part of the maintenance manual that SabreTech had

on its own premises speaks of the explosive nature of the

contents.

 

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Larry Fogg told you that oxygen can be flammable.

The definition that you are going to hear of a destructive

device in the Court's instructions includes the term

infernal machine. It makes it sound sort of quaint. But

what is an infernal machine? An inferno is another word for

a fire. A machine that creates an inferno. Ladies and

gentlemen, that is what an oxygen generator, when used

improperly, can be. It is an infernal machine.

In order to establish this count, and indeed many

of the counts in this indictment, the government is required

to prove that the defendant in this case SabreTech acted

willfully. What does it mean to act willfully? You're

going to hear that the word willfully means that the act was

committed voluntarily and purposely with a specific intent

to do something the law forbids. That is to say with bad

purpose either to disobey or to disregard the law.

Ladies and gentlemen, that is amply shown here.

It is not shown that in order to act willfully you've got to

have a statute book in front of you and be reading the law

and saying here's a law. I think I'm going to disobey it.

That is not required. What is instead required is to act

willfully, the person or entity had to commit the act

voluntarily and purposely with a specific intent to do

something the law forbids.

The law forbids you to send hazardous materials

 

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with this kind of labeling. The law requires you to send

hazardous materials with this kind of labeling. SabreTech

didn't do it. They acted purposely because they knew these

were hazardous materials.

Remember, it's a corporation. They know what

their employees know. The mechanics knew of the dangers of

these oxygen generators. Mr. Salis knew they were being

shipped out. The two employees, or the various employees in

this chain can be aggregated together to tell you what

SabreTech knew. SabreTech knew of the dangers of these

oxygen generators in another way, ladies and gentlemen.

They knew because of the maintenance manuals.

We put in evidence maintenance manuals that were

found in SabreTech's files. They were found in August of

1996. Ladies and gentlemen, it's a fair implication for you

to make that they had these maintenance manuals all along.

ValuJet maintenance manuals are in evidence. These are the

standard McDonnell Douglas maintenance manuals. These

maintenance manuals, you heard the lady FBI agent testify.

She took the microfiche. She printed out chapters relating

to oxygen generators. She compared them to ValuJet

maintenance manuals. They were the same. They are in

evidence. They all begin with 104, there's 104A, 104B, 104C

and 104D and 104E.

I would invite you to look through these chapters

 

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because they contain in them many explicit warnings as to

oxygen generators. Government Exhibit 104A, for instance,

which is chapter 350000, it says that these are sodium

chlorate oxygen generators of sufficient capacity to supply

oxygen for a period of 15 minutes. Warning be very careful

when you remove oxygen generators to prevent accidental

removal of firing pin. Live oxygen generators contain

explosive when solid chemicals. When generator is fired

case temperature can become 500 degrees. If generator

fires, immediately put generator on surface that will not

burn. Serious injuries can occur if case is touched.

Warning, oxygen canisters contains barium oxide. Prior to

removal of expended oxygen canister make sure all persons

obey all precautions when barium oxide is used.

Then there's more about the dangers of barium

oxide, and it says; talk with the local safety department or

authorities for the procedures to discard this hazardous

agents. This is in SabreTech's own files.

Ladies and gentlemen, that relates to something

that you will see in one of the regulatory counts which is

hazardous waste. Remember we had testimony from a gentlemen

from the EPA. His name is John Lank. He testified that

oxygen generators that have outlived their useful life are

hazardous waste. That is true whether they are unexpended

and in this state where they can initiate or even if they

 

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are expended because of the barium, and their shipment

without following the regulations that require you to give

notice is unlawful. Right here in this maintenance manual

SabreTech was being told the same thing, this is hazardous

waste.

Another maintenance manual chapter is Government

Exhibit 104B. One thing particularly significant about 104B

is that Eugene Florence acknowledged this provision, this

chapter himself, because among the documents that Eugene

Florence signed an engineering order that's also part of

Government Exhibit 25. The engineering order has to do with

the reconfiguration of the mask from a three person to four

person or two person. They were doing this reconfiguration

work.

One of the items is signed E. Florence, and that's

his number. It matches the number in Government Exhibit 44.

His number OT3898 perform operational check out per

maintenance manual chapter 35-20. So let's consider chapter

35-20. It's Government Exhibit 104E. What does it say in

that chapter that Eugene Florence is acknowledging he's done

the work according to that chapter. Quote: Upon initiation

the generator supplies pure oxygen. Quote: 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

 

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oxygen is generated and forced through the filter and into

the outlets. Quote; pure oxygen flows through the oxygen

mask reservoir bag within seconds. Quote; warning, oxygen

generators contain live ignition trains and when ignited

generate housing temperatures up to 500. Exercise extreme

caution to prevent inadvertent removal of firing pin. If

generator should become activated immediately place on

noncombustible surface.

So Eugene Florence acknowledged that chapter which

tells one, and certainly told SabreTech, that these

generators, in case they couldn't figure it out earlier,

generate pure oxygen. That fire danger of a pure oxygen

source in the presence of extreme heat is and should have

been obvious, especially to somebody who is as licensed

airplane and power mechanic.

Another chapter in SabreTech's files, Government

Exhibit 104C: "Warning, oxygen generators contain live

ignition trains." I'm not going to repeat the whole

warning. You've heard it will several times. "If generator

has not been expended install shipping cap on firing pin."

Ladies and gentlemen, we had some testimony, and

during agent Gentile's testimony it was gone into that the

firing pin is the part attached to the lanyard that extends

over the hammer. The shipping cap really goes over the

percussion cap not the firing pin. What is a poor A and P

 

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mechanic to do when he sees an instruction that says install

shipping caps on firing pins. Because if you install the

shipping cap on the firing pin it would fall off.

Ladies and gentlemen, Eugene Florence said he had

installed the shipping cap on this oxygen generator, and it

wasn't true. It was obvious, ladies and gentlemen, that the

shipping cap went on the percussion cap. The mechanics knew

it. They were sitting there with the new oxygen generators

that came packaged in exactly this fashion. There was no

confusion. In any event, Eugene Florence did not express

confusion. He didn't say, hey, what is this? Maybe I

better not sign it. He signed it. He said he had put a

shipping cap on that oxygen generator. It wasn't true.

Another chapter of the maintenance manual -- well,

returning to Government Exhibit 104C it also puts on notice

SabreTech that disposal of oxygen generator -- this is where

SabreTech was told by the maintenance manual the proper way

to dispose of oxygen generators. No oxygen generator is to

be disposed of until it is initiated and chemical core is

fully expended. It tells how to expend. It says; during

the initiation the exterior will reach temperatures in

excess of 450 degrees Fahrenheit. Quote, area and adjacent

surrounding must be free of oil and other combustible

substances --

THE COURT: A little bit slower.

 

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MS. MILLER: Area and adjacent surrounding must be

free of oil or other combustible substances that may be

hazardous in an oxygen enriched atmosphere, unquote.

It goes on to say; "that an expended oxygen

generator contains both barium oxide and asbestos fibers and

must be disposed in accordance with local regulatory

compliances in using authorized procedures. In an event

oxygen generator cannot be ignited and expended through

normal means or if user has additional questions, they are

directed to contact manufacturer for information."

Ladies and gentlemen, how long can a company put

its head in the sand? A company that was dealing with these

things for months; a company whose mechanics were saying

boss, we don't have any shipping caps. A company that was

saying to the mechanics, don't worry about it. Sign this

paper. Don't take the time to read it. Just do it.

In their own files they have got warning after

warning as to what these generators are, what they can do

and how should be disposed of. They did not follow those

instructions. This was willful, ladies and gentlemen. This

is an expression of that willfulness, and the result was the

placement of those oxygen generators on that airplane.

Finally, ladies and gentlemen, other counts in

this indictment, Counts VII through XXIII, charge SabreTech

in connection with violations of the hazardous materials

 

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regulations. The indictment charges nine different

hazardous materials regulations that are violated. The

counts are matched in appears. Counts VII and VIII

reference one regulation. Counts IX and X reference another

regulation. Similarly with XI and XII. There's always an

odd and an even.

The odd numbers, ladies and gentlemen, charge that

the actual regulation, haz-mat regulation, was violated

willfully. I've told you already what willfully means.

The even numbered count in that pair charges that

SabreTech willfully delivered hazardous materials into an

air carrier for transportation in air commerce in violation

of that regulation, or that it recklessly caused the

transportation in air commerce of property in violation of

that regulation.

It's a somewhat different crime, but both of the

creams in each pair relate to particular hazardous materials

regulations that are violated. That section of the

indictment also has background about what is the hazardous

material oversight. What does the department of

transportation do. What is an oxidizer. What is an haz-mat

employer.

Judge King will give you instructions that will

cover all of those. I'm not going to go over them again in

my remarks.

 

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Let me briefly tell you what the regulatory

offense are that you are going to hear about because they

are easily made out by the evidence. In Counts VII and VIII

the regulation at issue is that SabreTech did willfully

offer hazardous material that is oxygen generators

containing sodium chlorate for transportation in commerce

when the hazardous material was not properly classed,

packaged, marked, labeled, and in condition for shipping as

required and authorized by the hazardous materials

regulations.

We know that's true. All you got to do is compare

this piece of paper. This little scrap with nothing on it

that relates to the hazardous materials requirements and

compare it with the shippers declaration of dangerous goods

that Scott used when shipping new oxygen generators, and you

will easily see how that regulation was violated. You know

it was violated willfully because of SabreTech's clear

notice of the hazardous nature of the substance they were

dealing with.

Counts IX and X involve a regulation that

SabreTech did willfully offer hazardous waste, that is

oxygen generators containing sodium chlorate which had been

removed from ValuJet Aircraft 802 and 803 for transportation

in interstate commerce when the hazardous waste was not in

accordance of the requirements for the transportation of

 

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hazardous waste as provided.

You recall the testimony of John Lank, and what we

just went over about how the generators are also hazardous

waste once they have lived past their, I don't want to say

shelf life, life limit in the correct term.

Counts XI and XII relate to regulations and the

violation that SabreTech did willfully describe and cause to

be described hazardous material, that is oxygen generators

containing sodium chlorate on a shipping paper without

including the hazardous materials proper shipping name,

described hazard class or division, identification number,

packing group --

THE COURT: You're going awfully fast if you want

it in the record. Slow it down.

MS. MILLER: Sorry, Your Honor.

THE COURT: Go ahead.

MS. MILLER: That is established not only by

comparison with the shipping ticket, but it is also

established, you can reference we put into evidence at

Government Exhibit 30F, selections from the hazardous

materials table, and this table has the proper shipping

name and description for two ways that both fit oxygen

generators.

One is sodium chlorate, which Mr. Brennan told

you was the main component of the generators. And the

 

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other is oxidizing solid, N period, O period, S, which

Mr. Brennan told you stands for "not otherwise specified."

There's four pages because there is one for sodium chlorate

and one for oxidizing solid. We have got it for two

different years. One is the addition of October 1, 1995.

The other is the addition of October 1, 1996, because the

indictment refers to the 1996 table. So it spans two

years. It doesn't really matter, the data is the same for

both years. We just gave you two. All the descriptions

are all the things that were missing from SabreTech's

shipment.

Counts XIII and XIV, that SabreTech did willfully

offer for transportation hazardous materials, that is oxygen

generators containing sodium chlorate without marking each

package containing and hazardous material with the proper

shipping name and identification number preceded by UN.

Ladies and gentlemen, now we are not talking about

the shipping ticket, we are talking about the actual

package. You can see on the Scott Aviation boxes, the other

one you can see the haz-mat yellow label. Here, you can see

the white labels that have got that other information. This

obviously was lacking from the packages that SabreTech sent.

All the witnesses that testified who saw those boxes said

they had no such lables. They had one that says co-mat

which means company material.

 

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Counts XV and XVI, SabreTech did willfully offer

for transportation hazardous material, that is oxygen

generators containing sodium chlorate which hazardous

materials packed and mixed together in the same outer

packaging with other materials which were capable of

reacting dangerously with each other and causing combustion

and dangerous evolution of heat.

Ladies and gentlemen, putting uncapped oxygen

generators right next to other uncapped oxygen generators

obviously created a danger where they were capable of

reacting with each other around because they were unpacked

and when one goes off it can cause others to go off and also

can ignite the cardboard they're packed in.

XVII and XVIII, SabreTech did willfully offer for

transportation hazardous material, that is oxygen generators

containing sodium chlorate in five packages which were not

designed, constructed, maintained, filled and their contents

so limited and closed that under conditions normally

incident to transportation the effectiveness of the packages

would not be substantially reduced.

The witnesses told you they just put them in

there. They didn't have any cardboard inserts. They were

rubbing against each other. This was not suitable

packaging.

Count XVIII and XX, SabreTech did willfully offer

 

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for transportation hazardous material, that is oxygen

generators containing sodium chlorate in packagings who

cushioning material was capable of reacting dangerously with

the contents of the inner packaging.

Remember Carlos Diaz said they were packed with

bubble wrap, and Andrew Salis said the same thing to Mark

Gentile a few days later. That is not a suitable packaging

for oxygen generators, because it can be heated and promote

the heat reaction and ignite.

Now, the new generators came with plastic shrink

wrap on them but they had safety caps. Of course, that is a

critical feature of their packing. The generators that

SabreTech shipped out had no safety caps, and that in

conjunction with the bubble wrap was a disastrous

combination.

Counts XXI and XXII, SabreTech did willfully offer

for transportation by air hazardous material, that is oxygen

generators containing sodium chlorate when the quantity of

sodium chlorate in each of the five packages offered for

transportation aboard a passenger carrying aircraft exceeded

the maximum quantity prescribed for sodium chlorate in

column 9A of the table.

Again, you can look back to Government Exhibit

30F. There's the table. It shows you the quantity. Five

kilograms.

 

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Mr. Brennan testified, and here's where I can

reference those numbers for you. In the two man generator

you've got between one half and three quarters of a pound of

sodium chlorate per generator. In the three man you've got

between three quarters of a pound of sodium chlorate. In

the four man you've got eight tenths to .85 pounds of sodium

chlorate per generator.

Ladies and gentlemen, I hate to do this to you,

about the table is in terms of kilograms. Mr. Brennan

testified in terms of pounds. You may remember we did have

a stipulation that one kilogram is equivalent to 2.2 pounds

approximately. When you do the math you can easily see that

there was easily more than five kilograms of sodium chlorate

in that shipment.

Finally, the last count charges a willful

violation of the haz-mat regulation, Count XXIII. It

charges that SabreTech, being a haz-mat employer, did

willfully fail to ensure that each of its haz-mat employees

was trained in accordance with the requirements prescribed

in the training subpart to the hazardous materials

regulations including the requirement that each haz-mat

employee be provided function specific training on the

requirements of the haz-mat regulations specifically

applicable got functions the employee performed.

Ladies and gentlemen, we know that the witnesses

 

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who appeared here testified that they had not been trained

with regard to handling hazardous materials or oxygen

generators specifically by SabreTech. You'll hear from the

Judge what is the definition of a haz-mat employer.

Basically, it's somebody who employees people who are

handling hazardous materials and shipping hazardous

materials. That certainly fits SabreTech, and the violation

here is clear and is willful.

Ladies and gentlemen, thank you for your patience.

I know that I've talked at you a lot, and I know I've talked

too fast at time. I'm sure you understand all the attorneys

earnestness in presenting their cases.

I would leave you just with one last remark as to

something you are going to hear in the Court's instructions

and that is the need to make your decision based on logic

and not driven by emotion.

You will be instructed quote, you must make your

decision only on the basis of the testimony and other

evidence presented here during the trial, and you must not

be influenced in any way by either sympathy or prejudice for

or against the defendant or the government.

Now, that's a standard part of any jury

instruction, ladies and gentlemen, but it is so important

here. And the reason for this is it's not that sympathy and

emotions are bad things. They are very natural things.

 

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Indeed, it's precisely because there is such an urge for

emotion in a case like this that you must set it aside.

There are emotions all over this case. Those are

not a proper basis for your decision. We are asking you to

do a hard thing, but it's the only right thing. Base your

decision on logic, base your decision on facts and the

evidence that has been presented to you, and we are

confident that you will find, on that basis, the defendants

in this case guilty on all counts as charged.

Thank you.

THE COURT: Ladies and gentlemen, at this time we

will take a brief recess before we listen to Ms. Moscowitz

on behalf of the defendant Mr. Florence. Please remember

the instruction not to commence discussing the case until

you've heard all of the argument and the instructions on

the law.

Marshal, if you will take them into the jury room

we will be in brief recess.

[There was a short recess].

THE COURT: I intend to instruct the jury in the

third paragraph, on the other hand, an honest belief on the

part of the defendant that his actions were sound, and so

on. It's basically the government's paraphrase standard

11th Circuit jury instruction. The one you all objected

to. Not exactly, but show it to them, and let them read

 

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it.

MS. MOSCOWITZ: Given that it's out of context

because that's for a fraudulent case of fraud, Your Honor,

it completely cancels the good faith instruction because

it's talking about something else in a different context.

I don't plan to refer to it now.

THE COURT: If you don't plan to get into it now,

we'll take it up at the end of the day.

MS. MOSCOWITZ: Let's do that, thank you.

THE COURT: Bring in the jury, please.

[The jury returns to the courtroom].

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

right, Ms. Moscowitz.

DEFENSE FLORENCE CLOSING ARGUMENT

MS. MOSCOWITZ: May it please the Court.

Counsel, Mr. Florence, ladies and gentlemen. The fact as

proof to the government's witnesses show only that Eugene

Florence acted in good faith in all the work he did on

these airplanes, and particularly with respect to the

oxygen generators.

You will hear that it's a total defense to these

charges. You can find him not guilty based on the fact

that he acted only in good faith. What shows Eugene

Florence's good faith? Together with the other mechanics

the government's witnesses, the witnesses that were granted

 

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immunity, the mechanics including John Taber and Robert

Rodriguez, Eugene Florence worked to make the generators

that he had taken off the planes safe.

He had been told they were going to be thrown

away. He had thought and had been told and he had spoken

to the other mechanics that the purpose of the caps on the

generators was to protect the mechanics as they worked on

the generators. Once that was accomplished and the

generators were going to be thrown away, the use of the

caps paled in significance.

There was no need to do -- to have them. It was

not a material matter as the mechanics saw it at that

point. It didn't seem important. Well, it seems in

retrospect, that the mechanics were wrong. They may have

been tragically wrong, although there is certainly a lot of

doubt about what happened on flight 592. But being wrong

and making a mistake, is not a crime in our system.

There were acts by numerous people, a chain of

tragic mistakes, but that is not a crime, ladies and

gentlemen. It may have caused -- it may have played a part

of what happened, but that's not a crime. A mistake is not

a crime. That's fundamental in our system. We don't

convict people of felonies and threaten their liberty for

making mistakes.

To convict Eugene Florence, you must believe that

 

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the government has proved beyond a reasonable doubt that he

meant to commit a criminal act, that he meant to commit a

crime, that he acted with bad purpose to disobey or

disregard the law. There is no evidence of that.

Even apart from seeking to turn a mistake into a

crime, this is a different case from the ordinary case

because we agree on so many of the events. This is not the

sort of case where three people come in and say the light

was red, and three people say the light was green, and then

you have to decide who was right.

We agree on a lot of the events, but the issue is

not what happened, but why it happened. You did not hear

during the trial a lot of witnesses giving their opinions on

that because that's not suppose to be part of the evidence.

But it will be for you to determine what you believe the

reason is that certain things were done.

You will have to focus on those why questions.

Why do you have to focus on why? Because the crimes charged

against Eugene Florence are crimes that require you to find

his intent; require the government to prove a bad intent,

what was going on inside his head on May 4, 1996.

Each of the three charges, the conspiracy and the

two false statement charges requires the government to prove

that bad intent beyond a reasonable doubt. It's not enough

for the government to have proof that Eugene Florence signed

 

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the card numbered 0069, and there were no shipping caps.

You will be instructed that by the Court. You must find

beyond a reasonable doubt that bad intent. And you can't

find it.

As you know, there are many counts in this

indictment. One of the important things is that you

remember that, it is as though Mr. Florence was here on

trial by himself, and you must evaluate the evidence that

pertains to him in deciding his fate, and each count and

each defendant must be considered separately. Because some

of them charge different things and have different elements.

Count I charges Eugene and the others with

conspiring to put SabreTech's financial interest ahead of

all others and to rush and compress work and those things.

Counts V and VI charge him with willfully making a

material false statement. I think if you go back and look,

you'll see that V and VI are actually the same false

statement, because the same charge of false statement,

because one is the card that talks about shipping caps, and

the other one says performing the work on the attached card.

It's just the cover sheet of it. That's what Mr. Ramos, the

ValuJet tech rep, told you. But there are two charges out

of that same statement.

Strict rules require the government to prove what

are called the essential elements, each and every essential

 

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element beyond a reasonable doubt.

I think I should stop and let you see what the

essential part of the reasonable doubt instruction is.

Proof beyond a reasonable doubt, ladies and gentlemen, is

proof of such a convincing character that you would rely on

it without hesitation -- I don't know if I can look over

this -- in the most important of your own affairs, in things

like picking a surgeon to do brain surgery, the really

important things. If you hesitate, you have a reasonable

doubt. Remember it's all of the elements. It is not just,

was the work card signed.

I don't want to spend a lot of time on the

conspiracy charge because no matter how you stretch it or

how you view it, whether you want to see everything in a

sinister connotation, there's no evidence of Eugene Florence

willfully joining a conspiracy to put SabreTech's financial

interest ahead of everything including his own, and he

didn't have anything to do with Aserca. He didn't have

anything to do with Mauro Valenzuela. He did his job. He

worked on the air worthiness of the plane that he worked on,

802. No one has challenged that work. He did not rush and

compress his work.

You heard from both Mr. Taber and Mr. Rodriguez of

the time the mechanics took doing what they thought was

making those oxygen generators safe. It took them multiple

 

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times longer to wrap around the firing pin, and wrap around

the cylinder and tape them, than it would have taken them to

put a cap on, if they had had the cap. They did that out on

the floor of SabreTech, where the FAA is privileged to come

in whenever it wants to, where the ValuJet tech reps, the

technical representatives of ValuJet were. They weren't

hiding. They didn't sneak off to wrap and tie and tape.

They were working in the open doing the best they could and

doing what they thought was going to make those generators

safe.

Now, the whole idea was they had to get the planes

out on the 4th, and that's why they were racing that day.

You will see this is, for example, the paperwork of one of

the planes, just one of the planes.

I don't know if you can see it with all the podium

and all the things, but there are twelve fat notebooks

there. Those are the maintenance records for 830. You'll

have them for 802 and 803 and 830. Actually, you'll also

have them for the two Aserca planes, and the plane that

crashed, 904. We figured in a week, you'll be able to do

your own bio-bor testing.

But the important thing is that the government

says there was pressure to get that plane out on May 4, but

when you look in the records of 802, you will learn that the

plane didn't even leave until May 9. So that argument

 

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really doesn't hold water.

But I want to spend more of the time on the false

statement charges. As a preface, I thought it was

remarkable that Ms. Miller would discuss the government's

witness, Christopher DiStefano, the man who threw away

critical evidence at a time when he knew the FBI, the NTSB

and the FAA were investigating the causes of the accident,

who then contrived to get himself immunized for that, got

his immunity, and then told the government that he had

thrown away this critical evidence. Then he was given

another letter of immunity.

Then as you heard, he knowingly lied in the grand

jury, and said he had never been arrested when he had. Yet,

when the government, when the prosecutor refers to

Mr. DiStefano, telling the grand jury that he was never

arrested when he did, that's a mistake. But Mr. Florence is

a liar. It all depends on who is looking at it, ladies and

gentlemen.

To look at what the government must have proved in

this case, let me tell you what the elements are of the

false statement charge. The government must have proved to

your satisfaction, beyond a reasonable doubt, that

Mr. Florence made a knowingly -- knowingly made a false

statement, that it was related to a material matter, and

that he acted willfully with knowledge of the falsity. Each

 

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of those things must be proved to that high and exacting

standard.

The definition of willfully requires the

government to have proved that he really meant it, that he

meant to violate the law, that he meant to commit a crime.

Not just that he made a statement that is wrong. It has to

have been voluntarily and purposely with the specific intent

to do something that the law forbids with bad purpose to

disobey or disregard the law. That didn't happen here.

It doesn't mean recklessly. If you hear words

like recklessly in this case, they do not pertain to

Mr. Florence.

What you must ask yourselves, ladies and

gentlemen, is not what Mr. Florence should have done, could

have done, would have done. What you have to ask is what he

intended, what he meant on May 4, 1996. In order to analyze

that, to think about that, not what we know today, because

we are all so much smarter about oxygen generators today

than we were before this accident. You must know what

everyone knew about and understood about oxygen generators

in January, February, March, April and before May 11, 1996,

when the mechanics were working on these airplanes at

SabreTech.

Let me tell you what you've heard. First let me

tell you that the generators because of the trial, because

 

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the trial can only talk about a certain number of things, we

can't relive life, you've only heard about oxygen generator

work. But during this period of time, the mechanics were

working many hours a day, many days a week on many parts of

the plane.

So you see this sheaf of about twenty sheets of

oxygen generator paperwork, and it may seem to you that

during those four or five months the mechanics were there

working on oxygen generators, but really it was a small

portion of their work. Because of what's happened since,

it's assumed a much greater significance than it did at the

time. That's one of the reasons we wanted you to see what

goes into doing one of these checks on a plane. These

twelve notebooks are the rest of the story. There was a lot

more stuff going on. That's why we want you to see those

records.

Second, nobody knew very much about oxygen

generators back then. Not like we know about them now. How

do you know that from what you heard? Well, for example

Special Agent Mark Gentile, the FAA agent who testified

here, who is charged with enforcing the Federal hazardous

materials regulations, stated that he had no experience

before this accident with oxygen generators.

Al Ramos, the ValuJet tech rep, the master of

paperwork, the auditor, he had no haz-mat training. He

 

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didn't know anything about oxygen generators.

Mr. Lang, the EPA expert, that nice man who

testified for a few moments at the end of the trial, he

learned about oxygen generators after the accident.

Mr. Taber, fourteen years an A and P mechanic, no

oxygen generator experience, didn't know of the dangers of

an oxygen generator.

The government makes a big point that generators

were going off, going off, going off. But you know what?

They went off several times. Nothing really happened. The

only thing that happened, according to Mr. Taber, were that

these plastic heat shields melted, and he went out of his

way to say, a little bit. That's what happened. They were

in a box for weeks and they didn't explode. They didn't

give off anything. Rodriguez said some heat. Somebody else

said they got hot. Even Mr. Brennan, the Scott Aviation

expert said, you could hold them for three minutes before

they would get too hot to hold. They didn't seem as

dangerous then, as they seem now. Maybe that was wrong.

But remember, we can't look in hindsight when we are looking

to see what people knew and understood on the going in,

rather than afterward.

Taber and Florence, you heard, discussed what the

shipping caps were for. They were to protect them and the

generators, while they were working on them. That's when

 

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and why they needed to have the shipping caps, and I think

if I've got the right one, this is, in some point in time,

the oxygen generators got a warning label on them. The old

ones that were coming off, didn't have it. But the new ones

that were being put on, had a warning label. And the

warning was, "This unit gets hot." It doesn't say

"hazardous material" by the way. Everything says it gets

hot. Hot is not really a defining term. But it says, "When

removing unit, install safety cap over primer."

It's the same implication. You're supposed to do

it while you're moving around with it. Once it's off, if

you know it's going to be thrown away, you make it as safe

as you can make it, in the absence of caps until ValuJet

gets ready to throw it away. That's what happened. That's

what was done.

Now also, from the mechanics point of view, when

they were working, they were working both off the work card

numbered 0069 and they were also working off a document

called an engineering order. This is a part of the

engineering order. The government has moved the whole one

in, and you will have it back in the jury room. It's in

there, exhibit 25, which is all the oxygen generators

paperwork.

But at some point, I think you heard that ValuJet

was changing the number of masks each generator would

 

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service on the right hand side of the plane. So they

commissioned had an outside engineer to draft an engineering

order, and it covered exactly the same work that the 69 work

card covered, the removal and installation, removal and

installation of oxygen generators on exactly the same plane.

We highlighted, but obviously the one you have in

the jury room won't have it highlighted, but I wanted you to

see this. It says it describes the removal and the

installation process, and the critical part says, "from the

passenger units unitized," whatever that is, "oxygen, insert

assembly unit, remove the existing insert bracket assembly

and the oxygen generator, tag and return to stores".

This card describes exactly the same work. If it

were so important, so material, so critical that there be

shipping caps, how come somebody could do exactly the same

work, like Mr. Casamere who signed here, and actually we

know that Mr. Florence worked on this card also, because he

signed down there, and not have the requirement to put a

shipping cap on a generator? I mean, doesn't this cancel

out that card?

It applies actually only to the right side of the

plane, if you want to get technical. But how could it be

that you could do all of the same work on the right side as

Mr. Taber explains to you. He only worked on the right side

of the plane because he knows this is the card that covers

 

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that. He didn't do anything on the left side of the plane.

He just worked on the right side of the plane. He's not --

he's immunized. He worked on the right side. He got a card

that said "tag and return to stores." That's all he had to

do, he says. Those cover exactly the same work.

You know, if the instruction were so important, so

important as it turns out in retrospect, it may well have

been at the time, then why is it that you can't do it? Why

is it that when you install -- let's see, where is it -- if

generator has not been expended, install shipping cap on

firing pin, right? That's a thing where you do it and it

falls right off.

Now, I know what Mrs. Miller said, but if it were

so important that this be put on there, don't you think they

could have taken the time to do it right, to do an

instruction that would actually protect people?

You know, if you look later on and you have all

the pages, you'll have them all in the jury room, on the

back page of that instruction, it has a different set of

terminology. They couldn't even get the terminology right,

and the reason was, it was not so important then, as it is

now in retrospect. It is that wonderful thing of Monday

morning quarterbacking or 2020 hindsight. Name the cliche,

but it is unfair to judge the actions of Mr. Florence on

May 4, 1996, by how smart we are now.

 

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They thought they were going to be thrown away,

but you also heard the care that these men took, the hours

that they took. You heard that they were all working

together. Robert Rodriguez told you how he tested what they

had done, could not get the release pin to pull out. How

they tagged the generators, and I don't know where that is

now, but you'll have the exhibit in there. Tagged them

entirely accurately. They put a green tag on them, because

they were told that they couldn't condemn ValuJet property

and described them as oxygen generators 02, the chemical

thing, 02 generators out-of-date, strictly accurately,

completely accurately. Nor did they rush the work, nor did

they hide the work, nor did the company rush them in doing

that work, nor was anything done to them for taking the

extra days to do this work. There was nothing hidden or

concealed.

Then the generators sat around on the parts cart

by the plane for weeks. Further confirming that they really

weren't anything that anybody cared about.

Ms. Miller reports that Eugene took the caps from

the new generators, and you can see that on the May 5 cart,

and you can see that on the May 5 cart. But, you heard that

his last activity with respect to seeing the generators, was

weeks before that. Both Mr. Taber told you that and Agent

Gentile told you that. So, by the time he's taking the caps

 

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off the new generators, he figures that as Wiles had told

him, those generators had been taken care of.

Finally, with respect to what the mechanics were

thinking at those times. The mechanics focus on the plane

they are working on. You heard that from Mr. Taber. When

they were going to sign the cards, they weren't thinking

about shipping caps. They were thinking about whether the

work they had done on 802, which was the plane they were

working on, and that the maintenance records pertain to, was

going to return to service in an air worthy condition. "At

the time you signed that engineering order," this was to

Taber, "were you focused on anything having to do with

shipping caps at the time you were signing? No. You were

concerned with the air worthiness of the plane you were

working on, correct? Yes, ma'am."

More telling I suppose, is Al Ramos, Valujet's

technical representative because Ms. Miller asked him, did

he audit paperwork having to do with used parts. You know

what he told you? He said, "no" he said, "we're only

concerned about the new oxygen generators being put into the

system because these are the ones that the FAA is going to

ask about during an inspection. We don't care about used

parts." Now somebody has to. We know that.

We know now about the hazardous materials and all.

But that's not the point of view of the mechanics. That's

 

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exactly what Mr. Ramos explained to you. "We're only

concerned about the new generators being put into the

system. These are the ones the FAA is going to ask about

during an inspection."

In fact, Mr. Taber was more concerned about the

air worthiness. Mr. Ramos only seems to be concerned about

whether he can pass an inspection.

The used parts that came off the planes were not

part of the province of the mechanics. It is not part of

their responsibility. Companies have divisions of labor.

All companies have divisions of labor. That was not the

part that they were supposed to work on. Robert Rodriguez

told you that when he was told by Casamere to take the boxes

of the old generators over to the ValuJet hold area, that

that was the first and only time he ever did that. The only

time.

They focused on the air worthiness of 802. That

was the plane that they were concerned with. They were

concerned with returning it safely to the air. That was

their concern. They did not focus on parts.

802 was made air worthy. But the air worthiness

of 904, what's 904, that's the accident aircraft. That's

the plane that crashed. That's flight 592. That's a

different question, ladies and gentlemen.

Even though Eugene Florence is not charged with

 

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causing the transportation of the used generators, we

thought it was important to show that the government's proof

that the oxygen generators caused the fire on flight 592, is

riddled with substantial doubt.

You know, I know that the government knows that is

so, because you could hear Ms. Miller say, they could have,

they might have, they contributed, and I think they may have

contributed to the fire, too. I think we all know that

once, as Mr. Brennan testified, if the temperature gets to

500 degrees, a generator will go off, capped or not. I'm

not saying it was a good thing for those generators to be on

the plane, but I don't think the proof shows they started

the fire. I don't think they started the fire. Fogg is the

only guy that told you about that. He's the guy from

McDonnell Douglas.

McDonnell Douglas is the manufacturer and designer

of the plane. It's McDonnell Douglas that did not install

fire suppression or smoke detection systems in the cargo

holds of the plane, even though the NTSB had recommended it

a decade before.

Ladies and gentlemen, you know tons more about

that plane than Mr. Fogg decided to find out before he gave

his opinion that oxygen generators started the fire. He

didn't want to consider anything that might contradict his

opinion. He didn't each look at the plane's maintenance

 

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records. Remember this plane was 27 years old. It was

wired with miles of wire that McDonnell Douglas doesn't use

anymore in it's new planes.

The plane had a serious, a history of serious,

serious maintenance problems. You heard a hint of them when

we were examining Mr. Fogg. But we have moved into

evidence, and you will have a package of the flight logs

from that plane, starting from January 96 forward through

May. You will see, you'll be able to read the actual

details, sort of. We summarized them because there's lots

of them, and there wouldn't be time, but you will see that

during that period of time, there were twenty two times that

there were serious electrical problems.

The auxiliary hydraulic pump failed six times.

The intercom failed two times. The pressurization went out

once. The auto pilot went out six times. Five of them, the

week of the accident. Which means the pilots have to be

what's called "hand flying" the plane. The week of the

crash, for several days in a row, there was a strong fuel

odor in the passenger cabin. The electrical problems were

never really fixed.

You heard Mr. Fogg testify that if a circuit

breaker pops, you can reset it, but at some point you have

to go down and actually correct what's causing the circuit

breaker to pop. That doesn't happen. The problems were

 

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not corrected. They festered in that plane. It was an

accident waiting to happen.

You heard about the flight, just before flight

592, from the two passengers, Ms. Hettinger and Mr. Forman.

Three times the plane left of the gate, the jet way thing,

powered up, taxied out. Three times, the electricity went

out, the engines went off and they went back in. Finally,

they took off and they took off, the last thing Mr. Forman

saw before the cockpit door closed, was the no go light on

in the cockpit. They get into the air and all of a sudden,

they have no lights, no air condition, no P.A. system. The

flight attendants are talking to them and giving them

instructions through a bull horn.

You know the air-conditioning pressurization

system, is not a trivial thing. It doesn't just mean, it

was hot on that plane, it was uncomfortable, because

Mr. Fogg told you that it was the air-conditioning system

that you have to have working to take the smoke out of a

plane. If you get smoke in the cabin, it's the

air-conditioning pressurization system that takes it away.

You heard that after the crash, the evidence was that, at

least part of that system wasn't working on flight 592.

Mr. Fogg was very careful also on other things.

He was asked about the cockpit. He described what was

recovered, what he noted what was recovered. He didn't tell

 

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you how much wasn't recovered. He said he didn't remember

finding any of the electrical light fixtures that work

inside that cargo -- that Class D cargo compartment. As

Ms. Miller said, people don't remember what they don't want

to remember.

Finally, he says that somehow rubbing against each

other must have started one of these generators. Ladies and

gentlemen, you saw pictures during Mr. Gentile's testimony

-- Agent Gentile's testimony, the FAA agent, of generators

that survived the impact of the crash without even going

off. That's as it should be. You know, these things are

riding right above your head when you are in an airplane.

They are not suppose to go off when they are jostled.

But really finally on this, Mr. Fogg told you that

the major damage in the cargo compartment was on the left

side of the plane. That's the part Ms. Miller just told you

about where the resin burned through. What that means is,

the whole liner burned through. He says, outside in or from

the inside to the outside. You know, it doesn't really

matter. Here's what really matters. The oxygen generators

were not on the left side of that compartment. There is no

question about that.

This is the government's picture. It's small, I

don't know whether you can see it, but this is the DC-9.

This is the sister to the plane that crashed. This is 903.

 

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It was 904. You can see from it, and it was elicited in the

testimony also, that the door to the cargo compartment is on

the right side.

You also heard, both from Mr. Ramkissoon and

Mr. Segurra, that those boxes of generators were the last

thing loaded into the cargo hold. The cargo hold was filled

with luggage and other things. Those were the things that

had priority, one of them explained to you. So they put

those on first. The packing list is in. The government

moved it into evidence, and there were sixty-seven pieces

luggage and some other things, it was full. The last thing

that was put on were the tires and the boxes of the

generators and then as you heard, the belt loader backed

away and the door was closed. That door is on the right

side. There is no reason for the major damage to be on the

left side, if the generators were on the right side.

Now, what is on the left side? Well, the left

generator feeder wire. That's not the same generator where

it's the oxygen generators. It has to do with the

electrical system. That's the big fat wire that Mr. Fogg

was so reluctant to confirm that was gone. That's over

there. That's right by, he said the seat track that was

burned up. That wire is gone. It burned up. It took

everything along with it.

What else is around there is, the left A C bus.

 

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You'll see, he told you about it, it's some sort of thing

that puts together a bunch of circuit breakers. That,

you'll see in the 904 maintenance records, that was

something that was going out time, after time, after time

over the spring of '96.

You know that's what you heard that is on when the

pilots first detect the problem. They say "we have lost a

bus." That is more than a reasonable doubt, ladies and

gentlemen, about what caused this fire. A lot more.

I want to end where I began again, where I began

and ended in opening statement. This is a tragedy of

immense proportion. All of us are parents, are children, we

can't even imagine the loss that happened here. Humanly, we

want accountability. But the desire for accountability

cannot take you away from what our system demands. It will

not be disrespect to the people who had a loss for you to

follow the Court's instructions and to determine, as the

evidence shows, that Mr. Florence did not act with criminal

intent. It is what our system demands in protection for all

of us. The fact that something is wrong, doesn't make it a

crime.

The fact that this happened, doesn't mean that a

crime happened, a tragedy happened. We are counting on you.

We are counting on the attention that you have paid

throughout, the patience that you've shown us, the concern,

 

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the consideration. We are counting on your good sense,

you're real world experience, what it's like to go to work

every day. What it's really like out in the real world. I

think when you evaluate the evidence, you will find that the

government has not shown that Eugene Florence intended to

commit any crime. The government will go last. You'll be

hearing hours more of things.

I just want you to remember the critical, critical

message from us. This good man did not mean to break any

laws. He did not mean harm to anyone. He did not intend to

commit a crime. He is not guilty. Thank you.

THE COURT: Ladies and gentlemen, as I indicated

to you earlier, we will be recessing at this time. You

have yet to hear from Mr. Dunlap and from counsel for

SabreTech, either Mr. Raskin or Mr. Moskowitz, and then in

concluding argument from the United States from Ms. Miller

and Mr. Brigham.

It is very, very important now that you continue

to follow the instruction that you not permit anyone to

talk to you about the case or have any contact with

anybody, however, directly or indirectly, with anybody

involved in the case. Don't read anything in the

newspaper, watch anything on television or listen to

anything on the radio, if anything should be about this

case during the night recess.

 

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Because of the commitment with one of the jurors

in the morning which is unavoidable, which we have attempted

to work with and resolve, that is, take care of, we will not

be able to start at our usual 9:00 starting time. We will

resume tomorrow morning at 9:30. We ask that you be here a

few minutes before 9:30. Marshal, if you will escort them

down to the elevator. Don't have any contact with anybody.

Thank you.

[The jury leaves the courtroom].

THE COURT: Be seated, please. One of the jurors

had a personal matter that involved an appointment that

could not be changed. We were able to help somewhat in

that her appointment has been moved back a little bit to

8:00 or 8:30, whatever it is. She may not be able to get

here by 9:30. We are gambling a little bit on that.

It may be that she may be a little bit late.

Ms. Kramerman has told her not to worry about that.

Hopefully, we will start at 9:30. If we were not, it will

be when she arrives. It wouldn't be more than 10 or 15

minutes after that, given the distance she has to travel.

So, given that as the situation of a long day, I think that

we will take up these matters of instructions in the

morning at 9:00.

Unless you see some need for it, we will take up

any objections to the government's opening statement. I

 

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prefer to do that in the morning. I will carefully protect

all counsel and make sure that the record is clear that it

is being timely made, so you have no concern about that.

Any problem with doing it at 9:00 in the morning?

MR. MOSCOWITZ: No, Your Honor.

MR. BRIGHAM: No, Your Honor.

MS. MOSCOWITZ: No, Your Honor.

THE COURT: I'll be with the lawyers at 9:00. We

will resume the argument at 9:30, or as soon as the juror

arrives.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

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C E R T I F I C A T E

I hereby certify that the foregoing is an accurate

transcription of proceedings in the above-entitled matter.

 

 

 

 

 

 

 

 

______________ _______________________________________

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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