DECEMBER 2, 1999












DAY 12






99 N.E. 4th Street

Miami, FL 33132 - 305/961-9432



















2937 S.W. 27th Avenue, Suite 206

Miami, FL 33133 - 305/444-3400






Miami Center, Suite 2550

201 South Biscayne Blvd.

Miami, FL 33131 - 305/371-7781





100 S.E. 2nd Street, Suite 3700

Miami, FL 33131 - 305/379-8300




2601 S. Bayshore Drive, Suite 601

Miami, FL 33133 - 305/854-9666





Official Federal Court Reporter

J.L.K. Federal Justice Building

Suite 1127

99 Northeast 4th Street

Miami, FL 33132 - 305/ 523-5108








Page Line



3 By: Defense Gonzalez .....................16 9

By: Defense SabreTech ....................56 11

4 By: Government Rebuttal ..................108 17

5 JURY INSTRUCTIONS.........................151 11





















- 12- 2-99





3 THE COURT: Mr. Moscowitz had a motion yesterday.

4 MS. MOSCOWITZ: I wanted to lodge an objection to

5 something that had been stated in closing. I think it's

6 the same one he had.

7 Ms. Miller stated, in speaking what willfully

8 meant, the way she phrased it was, in essence, the

9 definition of knowingly, which is a lesser standard of

10 proof. What she said was, you don't have to know the

11 statute. You just have to know that what you are doing is

12 wrong. I don't have the exact words, but it made a lesser

13 standard for specific intent than what the law warrants and

14 what Your Honor will instruct.

15 THE COURT: You don't think the instruction will

16 take care of it?

17 MS. MOSCOWITZ: I guess Your Honor is going to

18 give that instruction and to give it twice would be

19 peculiar, but I needed to make sure that I preserved my

20 objection.

21 THE COURT: The objection is overruled. Anything

22 else?

23 MS. MOSCOWITZ: Yes, Your Honor. We were going

24 to talk about the good faith instruction because the

25 Government proposed putting it back and Your Honor has put

- 12- 2-99



1 back the third paragraph from the pattern instruction. I

2 have the latest set from Your Honor but they are not page

3 numbered. It's about, I don't know, 15 pages in.

4 It starts out, "Good faith is a complete

5 defense," and then it says, "One who expresses an honestly

6 held opinion or an honestly formed belief is not chargeable

7 with willful intent to falsify."

8 Then, the third paragraph states, "On the other

9 hand, an honest belief on the part of the defendant that

10 his actions were sound and would ultimately succeed would

11 not in and of itself constitute good faith as that term is

12 used in these instructions if, in carrying out these

13 actions, the defendant knowingly made a false or fraudulent

14 statement willfully and with knowledge of the falsity."

15 That paragraph, Your Honor, is meant to apply to

16 like fraud schemes, like you are three-quarters of the way

17 into a Ponzi scheme and you are hoping you will be able to

18 pull it out and you make a false statement to a new

19 investor to get his money to keep you afloat in the hope

20 that you will be able to turn it around and pay everybody.

21 But here, where it's talking about a false

22 statement inside a fraud scheme, but when we are talking

23 about an actual false statement itself, what the third

24 paragraph does is cancel the first two.

25 THE COURT: Ms. Miller?

- 12- 2-99



1 MS. MILLER: Your Honor, Mr. Brigham will address

2 this.

3 THE COURT: Mr. Brigham?

4 MR. BRIGHAM: Your Honor, the defense has

5 proposed the instruction based on the pattern instruction,

6 which is a pattern instruction that they have adopted to

7 their particular case.

8 The third paragraph that we are proposing follows

9 in principle the language and the concept. The argument

10 that simply because Mr. Florence may have taken alternative

11 measures with respect to the oxygen generators still does

12 not negate -- does not constitute good faith with respect

13 to making a fraudulent statement willfully and with

14 knowledge of the falsity, false or fraudulent statement.

15 We specify in the instruction itself that --

16 specifically the scienter requirement that the Court

17 instructs the jury on, and we say clearly that the

18 defendant who knowingly made a false or fraudulent

19 statement willfully with knowledge of the falsity is not

20 one who benefits from the good faith defense. That's the

21 law and that makes sense. We have clearly set out the

22 scienter requirement that we need to show.

23 It follows the concept of the pattern in the

24 third paragraph. Without the third paragraph, Your Honor,

25 the pattern instruction is an unbalanced instruction.

- 12- 2-99



1 That's the reason why the third paragraph starts with the

2 phrase "on the other hand." It's cetera a balancing, it's

3 showing both sides of the argument.

4 THE COURT: Anything further?

5 MS. MOSCOWITZ: No, Your Honor. I would just be

6 repeating myself.

7 I have one other thing to bring up.

8 THE COURT: I'm going to sustain in part the

9 objection of the defense to the third paragraph of the good

10 faith instruction and modify it by striking the word -- in

11 the second line, striking the following words: "Sound and

12 would ultimately succeed," and inserting therein the single

13 word "proper."

14 So that it now reads, "On the other hand, an

15 honest belief on the part of the defendant that his actions

16 were proper would not in and of itself constitute good

17 faith, as that term has been used in these instructions,

18 if, in carrying out these actions, the defendant knowingly

19 made a false or fraudulent statement willfully and with

20 knowledge of the falsity."

21 What is your next objection?

22 MS. MOSCOWITZ: I'm afraid that's a be careful

23 what you ask for because now I think it's worse for

24 Mr. Florence.

25 THE COURT: It was not intended to be. It was

- 12- 2-99



1 intended to gear it to this case, which he was dealing in a

2 good faith believe that -- on his part, that in wrapping

3 the lanyards around the mechanism or doing the actions that

4 he did as opposed to statements he made, or something like

5 that, would not constitute excuse or justification under

6 the instruction.

7 If you wish to withdraw the entire instruction,

8 you may do so. That was your instruction that the defense

9 had asked for. If you don't want to give it, that's fine

10 with me.

11 MS. MOSCOWITZ: No. I want the instruction, but

12 I think I'll withdraw my objection to the third paragraph

13 and leave it the way it was.

14 THE COURT: If you have no objection to the third

15 paragraph, then I accept it. I think it's a little

16 confusing the way -- it was drafted for, as you say, a

17 Ponzi scheme or a business deal and it wasn't applied

18 specifically to this case. But if you wish to withdraw

19 your objection, fine, then so be it. The instructions are

20 complete. We will leave it alone.

21 MS. MOSCOWITZ: One other thing. Now that I've

22 looked at what remains of my theory of defense instruction

23 and I've looked at defendant Daniel Gonzalez's, I realize

24 that, first of all, it just looks too skimpy next to

25 Mr. Gonzalez's, but I would like to add a sentence that

- 12- 2-99



1 says it is his position that he did not willfully join any

2 conspiracy, because I realize I omitted the conspiracy.

3 THE COURT: We spent four or five hours on these

4 instructions. I'm sure we could all reread them ten days

5 from now and change a word here or change a word there to

6 improve them. What is it you wish to add?

7 MS. MOSCOWITZ: Simply at the end, he contends --

8 it already says, "He contends he acted without any purpose

9 to disobey or disregard the law." Mr. Florence also

10 contends he did not willfully join any conspiracy to break

11 the law.

12 THE COURT: Or become a member of any conspiracy.

13 MS. MOSCOWITZ: That's fine.

14 THE COURT: All right. We will add that to that

15 particular page.

16 MS. MOSCOWITZ: Thank you, sir.

17 THE COURT: Or become a member of any conspiracy.

18 MS. MOSCOWITZ: That's fine. Thank you.

19 THE COURT: Yes, Mr. Dunlap?

20 MR. DUNLAP: I would just like to lodge two

21 objections to the Government's opening statement, please,

22 Your Honor.

23 THE COURT: All right.

24 MR. DUNLAP: In my motion for judgment of

25 acquittal I pointed out that in opening statement the

- 12- 2-99



1 Government had promised the jury that Mr. DiStefano will

2 testify that the work on work card R 45904 had not been

3 done previously and the work was not done. I also pointed

4 out --

5 THE COURT: Your objection is to something she

6 said. Let me find out what she said and focus on that.

7 Then you can come back.

8 MR. DUNLAP: Absolutely, Your Honor. In closing

9 argument, Ms. Heck repeated that -- or she stated that

10 Mr. DiStefano testified that the work on work card R 5904

11 had not been done previously and that the work was not

12 done.

13 The case against Mr. Gonzalez is a circumstantial

14 one, depending on the testimony of Mr. DiStefano.

15 Mr. DiStefano did not testify that the work was not done

16 previously or prior to the flight and that the work had not

17 been done. So, that is a misstatement of the record.

18 THE COURT: You can correct that in your argument

19 to the jury. You go say that you heard Ms. Miller say X,

20 Y, Z, and my memory of the evidence is, however you want to

21 phrase it, it was otherwise. I don't know anything I can

22 do at this point. What are you asking me to do?

23 MR. DUNLAP: I would just ask in the future that

24 things that are not true in the record not be represented

25 by counsel. I think she may have been trying to say that


- 12- 2-99


1 you can infer from the circumstances that that's what, in

2 fact, the case is. But the statement that's what the

3 witness testified to when he did not I believe is improper

4 argument. So I would request an instruction that the

5 Government not do that in rebuttal.

6 Similarly, if I may --

7 THE COURT: I'll instruct all lawyers on both

8 sides to refrain from misstating the record. I assume that

9 you do not do it intentionally. I know all of you to be

10 professional people and I don't assume that anything is

11 said or has been said to this jury that would be an

12 intentional misstatement.

13 But if you can find your opponent making a

14 statement that you do not believe is consistent with what a

15 witness has said, I suggest to you in a most friendly

16 manner that you should only hope they do that two or three

17 times. You sure can have fun with your argument if they

18 do.

19 MR. DUNLAP: I would agree, Your Honor. The only

20 other point I would make -- and I agree, I don't believe

21 Ms. Heck intentionally made that misstatement.

22 One other misstatement occurred with respect to

23 the scene in the work booth, and there was Danny Gonzalez

24 saying there was no time to read the document, with Eugene

25 Florence at his side. That was not the testimony of


- 12- 2-99


1 Mr. Taber. Mr. Taber did not say that Danny said there was

2 no time to read the document.

3 THE COURT: What did he say?

4 MR. DUNLAP: He simply said that the mechanic

5 said, we are leaving. Mr. Gonzalez said, no, we need these

6 papers signed. On cross-examination, he acknowledged that

7 nobody said, we don't have time for you to read these

8 papers. He acknowledged that signing papers was part of

9 the work process, wrapping up the work, and the environment

10 was not one to coerce them into signing papers falsely,

11 just to get the work wrapped up.

12 THE COURT: I think that's proper subject for

13 counsel in their argument which has not yet been made to

14 the jury. But insofar as you are asking me to instruct the

15 lawyers to stick to the record, I grant that motion and so

16 instruct the lawyers.

17 Anything else before we --

18 COURTROOM DEPUTY: The verdict form.

19 THE COURT: The verdict forms. Thank you.

20 What is your objection -- does anyone have any

21 objection to the verdict forms, the proposed tentative

22 verdict forms?

23 MR. MOSCOWITZ: Yes, Your Honor. With regard to

24 Counts VIII through XXII, which are the haz-mat violations,

25 each of those counts charge two different violations.


- 12- 2-99



1 One is, under Paragraph A, a willful violation,

2 which is willfully delivering or causing to be delivered

3 property containing hazardous materials. And the second

4 violation in each count is a reckless violation, which is

5 recklessly causing the transportation in air commerce.

6 Now, the verdict form which the Government

7 proposed for those counts only provides for guilty or not

8 guilty. I think it's appropriate, since there are two

9 separate offenses charged there, one of which is a lesser

10 included, that there be a separate verdict which the jury

11 has to reach on each of those since the verdict needs to be

12 unanimous.

13 THE COURT: Do you have a proposed verdict form?

14 MR. MOSCOWITZ: I apologize, Your Honor. We can

15 get one made up, but I did not prepare one.

16 THE COURT: Would you write something out on a

17 yellow pad and show it to Mr. Brigham and Ms. Miller and

18 see if they can agree on it?

19 MR. MOSCOWITZ: Yes, Your Honor.

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

21 believe we would have an objection.

22 THE COURT: We haven't even seen it yet. You are

23 objecting to the anticipated verdict form that they are

24 going to hand you in a few minutes. Tell me your

25 anticipated objection.


- 12- 2-99



1 MR. BRIGHAM: In Your Honor's proposed

2 instructions the Court has made clear that the jury must

3 agree unanimously with respect to which means is

4 applicable. The Court will state, "It is not necessary for

5 the Government to prove that defendant SabreTech actually

6 violated this section by both of these ways. It will be

7 sufficient that the Government proves beyond a reasonable

8 doubt the defendant violated it in only one of these ways.

9 "In that event, however, in order to return a

10 verdict of guilty you must unanimously agree upon which of

11 these two ways SabreTech violated that provision."

12 In addition, the Court will --

13 THE COURT: Why don't we just simply give them an

14 interrogatory and say: Do you unanimously find that

15 SabreTech recklessly did so, violate the regulation, yes or

16 no; and then give them another one, do you find that they

17 did something, yes or no, and which ever one they check

18 off, they can check off whatever they want, or do you find

19 they did not? Give them three interrogatories or whatever.

20 Special interrogatories to the jury are quite

21 common. If there's any question about what the jury had in

22 their mind, why not eliminate it at this point rather than

23 letting an Appellate Court guess what they had in their

24 mind and say, well, we're not sure whether it was reckless

25 or willful or wanton or abusive or whatever.


- 12- 2-99



1 Wouldn't it make sense to have some sort of

2 interrogatory? And then, whatever they check, we can apply

3 the law to that. If they check either one of them yes,

4 then there's a guilty verdict. If they check both of them

5 no, then there's a not guilty verdict. We know what to do

6 once we get the interrogatory answered.

7 Why don't you all discuss it. Take a look at

8 whatever -- I presume Mr. Moscowitz is drafting up a

9 special interrogatory on this issue. Is that what you had

10 in mind?

11 MR. MOSCOWITZ: I think it's a very good idea. I

12 will do that.

13 THE COURT: I don't know any other way to do it.

14 To just say guilty or not guilty, that wouldn't answer it.

15 If they answer yes to either question, then a guilty

16 verdict would follow. If they answer no to both, then a

17 not guilty verdict would follow.

18 Why don't you all draft that up and take a look at

19 it and see with respect to those eight counts, and you can

20 write it out on a yellow pad and we'll get it typed. See if

21 you can agree on it. If you can't agree on it, then I

22 will --


24 [There was a short recess].

25 COURTROOM DEPUTY: All rise. Court is now in


- 12- 2-99



1 session. The Honorable Judge James Lawrence King

2 presiding.

3 THE COURT: Thank you. Bring in the jury.

4 [The jury returns to the courtroom].

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

6 All right. At this time we will hear from

7 Mr. Robert Dunlap on behalf of Mr. Gonzalez.

8 MR. DUNLAP: Thank you, Your Honor.

9 Ladies and gentlemen of the jury, counsel, I'm

10 going to use my time this morning to talk to you about the

11 job that lays ahead of you. You all have worked hard with

12 us listening to the facts of the case. That's the evidence

13 in the form of the testimony and the exhibits as they have

14 been admitted in this trial through the rulings of Judge

15 King.

16 It is now your duties to apply the law, and Judge

17 King will give you the law, to the evidence, to the facts

18 that have come before you. What I'm going to attempt to do

19 is to review the law with you a little bit, review the

20 specific facts. I'm not going to get terribly specific and

21 read all the transcripts. Obviously we can't do that.

22 I'm going to try to quote where I think it is

23 important for you from the transcripts. I'm going to

24 actually handle some of the documents, because there's been

25 a lot of documents in this case, and try to show you how


- 12- 2-99



1 they interrelate.

2 I hope that will be helpful to you as kind of an

3 example of how to work through the law and apply it to the

4 facts, which is what you are going to be called upon to do

5 very shortly to arrive at your verdict, which is why we have

6 asked you to come here and why we are depending on you.

7 Now, in discharging your duty here you have to

8 answer questions and fundamentally the question that is

9 posed to you is, has the Government proven its case beyond

10 all reasonable doubt. The Judge is going to give you the

11 law, as I said, to help make that decision.

12 Let me try to -- before I go on to tell you some

13 of the law the Judge will give you in helping you make that

14 decision, let me tell you what the questions specifically

15 will be that you will have to answer with respect to the

16 Government's case against my client, Danny Gonzalez.

17 Remember, Danny is charged in the first two counts

18 of the Indictment. Remember, if you will, that those counts

19 are very much interrelated. They both deal with the

20 accusation of making false statements on aircraft

21 maintenance records. In fact, Danny is charged with making

22 one false statement in this case. One statement. Remember

23 I discussed that with you during my opening to you.

24 That statement is the Aserca work card. That's

25 the work card regarding the anti-icing system. He's charged


- 12- 2-99



1 with making that false statement in Count II.

2 Now, that false statement is picked up again in

3 the other count he is charged with, which is Count I, the

4 conspiracy count. How is it picked up there? Well, that is

5 the first overt act in Count I. As you will hear when the

6 Judge gives you the law, in a conspiracy count an overt act

7 is something that the Government alleges was done to move

8 forward the conspiracy. It is the only overt act in which

9 Danny Gonzalez is charged.

10 Again, the Aserca work card, the allegation that

11 the work was not done on that card is the only allegation of

12 falsehood that is being leveled at Danny.

13 Now, what are of the questions that you are going

14 to have to revolve working together, using your common sense

15 and reason, when you go into the jury room? First, has the

16 Government proven beyond a reasonable doubt that Danny

17 Gonzalez did not perform the work called for on work card R

18 45904? That's the Aserca aircraft's YV 720C card.

19 Second, has the Government proven beyond a

20 reasonable doubt that Danny Gonzalez conspired and agreed,

21 as charged in the Indictment, to falsify aircraft records at

22 SabreTech?

23 Beyond a reasonable doubt. To we who labor in the

24 law it's probably the fundamental instruction, the

25 fundamental cornerstone of our practice.


- 12- 2-99


1 Now, the Judge is going to tell you what it means,

2 this term, "beyond a reasonable doubt." Among other things,

3 he will tell you that it's the Government's burden, that

4 they must prove each and every element of the offense

5 charged against a defendant to the exclusion of all

6 reasonable doubt.

7 What is a reasonable doubt? Well, it's not an

8 imaginary doubt. It's not a doubt in the unreal sense.

9 That is to say, if the Government's case depended had on a

10 witness and someone were to say, gee, that witness reminds

11 me of a character from the X Files so I'm not going to rely

12 on that witness, that's not a real doubt. That doesn't have

13 any rational bearing to why you might not accept that

14 witness's testimony.

15 On the other hand -- and the Judge will instruct

16 you with respect to how to evaluate the credibility of

17 witnesses, and a lot of it is a restatement of what we know

18 from common sense and experience and the law is grounded on

19 that.

20 If you were to determine that there is something

21 about the way a witness testified, the witness's demeanor,

22 that conveys to you that the witness is not being candid, is

23 not being direct, is being deceptive, then you are entitled,

24 as the sole finders of the fact, to reject that witness's

25 testimony in whole or in part. So that's a real doubt.


- 12- 2-99



1 The Judge will also tell you that proof beyond a

2 reasonable doubt -- I believe Ms. Moscowitz showed you, this

3 is a section of the reasonable doubt instruction. He's

4 going to tell you what it is. I told you what it is not.

5 It's not an imaginary doubt. But proof beyond a reasonable

6 doubt is proof of such a convincing character that you would

7 be willing to rely and act upon it without hesitation in the

8 most important of your own affairs.

9 How do we evaluate the meaning of those words?

10 Well, let's say you were selecting someone to perform some

11 sort of a medical procedure and you were interviewing

12 doctors, and you went to talk to a doctor and you wanted to

13 ask the doctor questions about the procedure, about the

14 outcome, what he thought the prognosis was.

15 In talking to the doctor, the doctor seemed to be

16 focusing on something else, wouldn't look you in the eye,

17 wouldn't directly answer your questions. You might take

18 that to be a real reason to hesitate and to decide not to

19 rely on this doctor because that's an important matter, and

20 it's similar here.

21 Now, other law that the Judge will tell you about

22 is the distinction between direct and circumstantial

23 evidence. They're of both equal weight. Ms. Heck told you

24 that. They're both equally valuable to you.

25 Circumstantial evidence, as Ms. Heck said, is


- 12- 2-99



1 basically a conclusion that you could reach through fair

2 inference and sound reason from facts that you know

3 directly. The classic example is you drive home, you go to

4 bed. It's a moonlit clear night, no clouds in the sky. You

5 wake up in the morning, you go out. It's a dark cloudy sky.

6 Water is dripping from the trees and you have to slosh

7 through a foot of water to get to your car. It's a fair

8 inference that it rained during the night.

9 The reliability of circumstantial evidence,

10 therefore, depends on you doing the analysis. You have to

11 have the foundation in fact to be able to draw the

12 conclusions correctly as circumstantial evidence.

13 So there's nothing between circumstantial evidence

14 and direct evidence that distinguishes them in terms of

15 value, but you have to be careful with circumstantial

16 evidence in that you have to pay attention to the details.

17 You've got to do the math. You have got to say, what are

18 the underlying facts? You can't jump to a conclusion, oh, I

19 think that's what he meant, or that's what she meant. You

20 have to know what all the facts are.

21 Now, I'd like to start my discussion with you

22 today by reviewing the evidence the Government has presented

23 against Danny Gonzalez in Count II. That's the allegation

24 that Danny Gonzalez did not do the work on Aserca airline YV

25 720, that's the second plane, called for on R 45904. That's


- 12- 2-99



1 the anti-ice card.

2 I would like to begin my discussion with talking

3 chronologically about what we have come to know about Danny

4 Gonzalez and the Aserca Airline aircrafts. Before I do

5 that, I would just like to say that the evidence, I submit

6 to you, has established that Danny Gonzalez was a very hard

7 worker; that he was a hands-on supervisor of mechanics; that

8 he worked right here on the floor of SabreTech, right here

9 among the planes with the other mechanics.

10 You heard from a number of witnesses, including

11 Michael Quan, that Danny Gonzalez was the type of supervisor

12 that would roll up his sleeves and get involved in work

13 himself from time to time.

14 We heard from a witness -- and again, I'm trying

15 to go a little bit chronologically through this. We heard

16 from a witness named William Drechsler. I think you all

17 remember him. He was the person who was the technical

18 representative for Aserca Airlines.

19 He testified that he saw Danny Gonzalez at the

20 controls of Aserca Airlines 705 doing a run-up. You may

21 remember that a run-up is part of the pre-dock package that

22 occurs with a plane to do operational or functional checks

23 before it comes in.

24 You remember some of the reasons for doing those

25 checks early is to be able to detect problems with the


- 12- 2-99



1 plane, broken components that need to be sent out

2 immediately for repair so the plane can be released in a

3 timely fashion.

4 Admitted into evidence in this case are a pack of

5 documents that relate to the run-on or the pre-dock

6 procedures on aircraft 705. You have to look sometimes for

7 the dates on them.

8 The first one, which is Danny's Exhibit 5, is the

9 engine system run. That's the run-up itself where you go

10 out to the blast fence and run the engines. The date on it

11 is November 29, '95. All of these documents one way or

12 another -- some of them are interrelated to show the dates.

13 Remember, some of them have a non-routine work card which

14 shows when the work was performed on the first card -- were

15 done on or about November of '95.

16 This work card here, which is marked as Gonzalez

17 Exhibit 8, is signed by Danny Gonzalez. It is not dated.

18 It is a work card that calls for the inspection of the ice

19 protection system, the pressure switches. This is the same

20 work, the same type of work card that Danny Gonzalez is

21 accused of falsifying on the second Aserca aircraft.

22 Recall that this task is one of the tasks that

23 Mr. Drechsler said we like to get done in the pre-dock. We

24 would like to get it done early so we can determine if there

25 are any problems with the switches on the plane. That same


- 12- 2-99



1 testimony was given to you by Manny Quintana, the former

2 project manager at Aserca.

3 So we know right away that Danny was involved in

4 the run-up on 705. We know that the same test that he is

5 alleged to have falsified on 720 was performed on 705.

6 If I may have one minute of your time, ladies and

7 gentlemen, shuffling through these documents can be a little

8 laborious.

9 We also know that Danny himself worked on another

10 card on this run-up and you will find the same card in the

11 packet for 720, and this is a test of the thermal system.

12 You see where Danny signed.

13 Now, do you remember what the term means

14 "generated"? Non-routine work cards get generated by a

15 routine work card when the routine work done reveals some

16 defect or problem. You'll find if you look at this packet

17 that there are two non-routine work cards generated on

18 November 29, '95, the date of this packet, as a result of

19 the work performed here by Danny.

20 Now, Ms. Heck, in referring to the testimony of

21 Manny Quintana, that he saw Danny at the controls of YV 720,

22 said there was no evidence that Danny -- you remember he saw

23 him down here by the blast fence, saw him taxi in -- that

24 Danny did anything on the plane, that he was just driving

25 the plane.


- 12- 2-99



1 Well, you heard Mr. Drechsler say he saw him doing

2 the run-ups. I think Ms. Miller said he was just doing the

3 big shot's job. He didn't turn a wrench. Well, as I said,

4 there's evidence, of course, that he worked on the planes

5 himself, got involved in the work.

6 But if you take a look at R 45904, and I'm not

7 going to read it to you, but if you read it when you are in

8 there or designate one unfortunate member of your group to

9 have to read the thing, you'll see that it calls for

10 somebody to run the plane. You have to have somebody in the

11 cockpit looking at the controls when you do the test. It

12 involves the use of a system called the pressure test set.

13 One person plugs that into the switches and the other person

14 sees what happens with the switches on the plane.

15 You'll also see when you look at this packet that

16 Danny, in fact, as I said, was working on the plane himself.

17 Not a big shot. I told you Danny was not a big shot in the

18 company. He was a mechanic's mechanic. He worked on a

19 day-to-day basis in the hangar with his men. That's been

20 borne out by the testimony.

21 Now, you may remember the testimony of

22 Mr. Drechsler. I asked him also about 705, and he

23 acknowledged that a pre-dock is the first thing that happens

24 to a plane while work is done. This is on Page 99 of the

25 testimony of November 18th. I think that was Thursday two


- 12- 2-99



1 weeks ago.

2 "Question: Can you tell us what a pre-dock is?

3 "Answer: A pre-dock is the first portion of the

4 aircraft inspection. That is where the airplane is brought

5 into service. It is partially opened to prepare the

6 airplane for a check and allow it to be washed, areas that

7 are oily and dirty, greasy to be washed so the inspection of

8 those areas can be accomplished, and during that same period

9 of time functional checks are accomplished.

10 "You remember functional checks mean the same

11 thing as operational checks, to run the engine to see if

12 there are oil leaks so they will be inspected during that

13 period of time and to test some of the systems, because once

14 the airplane is inside the dock or inside the hangar those

15 functions are no longer available to you."

16 THE COURT: A little bit slower, please. When

17 you read it goes very fast.

18 MR. DUNLAP: I'm sorry.

19 THE COURT: You may want to go back. I didn't

20 mean to interrupt you.

21 MR. DUNLAP: I don't know how long I was reading

22 that fast, but I'll go back over it again.

23 "Run the engine so if there are oil leaks they

24 will be detected during that period of time and a test of

25 some of the systems, because once the airplane is inside


- 12- 2-99



1 the dock or inside the hangar those functions are no longer

2 available to you and they are done in advance."

3 Part of the testimony, you may remember, and I'll

4 get to it in a little more detail later on, about the order

5 of these tests is that if you are speaking to this comment

6 by Mr. Drechsler that some of these systems aren't available

7 to you once you get in the hangar, but if you've got a test

8 that involves emptying the fuel tanks and having them

9 examined, it creates a fire hazard because of the aircraft

10 fumes and for a number of days after that you can't operate

11 electricity on that plane.

12 Of course, R 4594 requires the operation of

13 electricity on the plane. That's another reason that it's

14 done in advance on the pre-dock.

15 Now, what do we know next? We know from

16 Mr. Quintana, Manny Quintana, that approximately three or

17 four days before the time Chris DiStefano was relieved of

18 his position as the project manager for the Aserca aircraft,

19 three or four days before the fight, he saw Danny at the

20 controls of another Aserca aircraft. He doesn't remember

21 the tail number.

22 He does remember that he taxied it into the hangar

23 area, and he remembers that setting next to him was a man he

24 knew well, another mechanic, Charlie Schnallenberger. You

25 may recall that I had to fumble around with that list of


- 12- 2-99



1 names, Government Exhibit 44, and numbers for all the

2 mechanics. Mr. Quintana had to search carefully to find one

3 of the numbers here that he could read.

4 Eventually he found the number 52855 that shows

5 that the signature here on the engine run-up form for 720 is

6 that of Charlie Schnallenberger, thus confirming to you that

7 the plane that Mr. Quintana saw was indeed 720, and not 705.

8 It was coming in, just like 705 had come in for the pre-dock

9 check, and Danny Gonzalez was working on it again.

10 Once again, this was an aircraft -- I'm referring

11 now to Exhibit DG 3 -- that required the fuel tanks to be

12 emptied. Aserca wanted it done on both aircraft, wanted to

13 call that company, East Coast Tanks, to come in, scrub out

14 the tanks and make sure there weren't any leaks.

15 You remember what Mr. Quintana testified that

16 means. That means danger. That means fumes in the fuel

17 tanks. That means you can't run electricity on the plane

18 for a number of days. That means you need to do tests that

19 require the use of electricity in advance of that, unless

20 you want to wait way into the check where you may find a

21 defect too late to get the part back in time to send the

22 plane out.

23 So, he says that's why he always orders the

24 anti-ice test, including R 45904, to be done during the

25 pre-dock.


- 12- 2-99



1 Now, I think you remember, but just to make sure,

2 because sometimes the terminology eludes me, but the

3 pre-dock -- this is the dock. The hangar is the dock. You

4 may remember, I'll tell you again when we get to it, that

5 Chris DiStefano testified also that the pre-dock is what

6 happens when the plane first arrived.

7 He said you do as many ops, O-P-S, operational

8 checks as you possibly can. Those are functional checks.

9 That is what we are talking about here. He said at the time

10 of this fight with Danny Gonzalez the plane was right

11 here -- this is south, this is northwest -- in the southwest

12 corner of the hangar already in the dock.

13 That's a good example of circumstantial evidence,

14 if you had nothing else, that tests -- work orders already

15 had been performed on that plane before the day that Danny

16 Gonzalez had his fight with Chris DiStefano. I respectfully

17 submit to you with all the evidence it certainly shows

18 strong circumstantial evidence that the normal pre-dock pack

19 that Danny Gonzalez had worked on before on 704 was

20 accomplished.

21 Let me also show you as part of this pre-dock pack

22 on 720 document DG 4. I got the wrong one. They all begin

23 to look alike to me after a while.

24 This is also an anti-ice test. You are going to

25 see two anti-ice tests -- bear with me, I know it's a lot of


- 12- 2-99



1 terminology -- two anti-ice tests in both of these packs.

2 One test, R 45904, the one in Count II, calls for the

3 inspection of some switches, pressure switches in the

4 anti-ice system that requires use of electricity.

5 This test here, which is work card number R 44406,

6 calls for the test of another switch. It's called a timer

7 switch. So you can see in this pack -- this one, by the

8 way, is dated. You can see an inspection date of December

9 20th, just like the other work cards reflect, for the

10 inspection of this other anti-ice test.

11 Showing you that, in fact, the anti-ice system is

12 being worked on and showing you that although Government's

13 Exhibit 2, which is the fundamental document in this case,

14 which is R 45904, through circumstantial evidence, strong

15 evidence, also an anti-ice test, was part of that package

16 being worked on that day.

17 Now, let's talk, if we could, please, about the

18 next event that we heard about in testimony, and that was an

19 argument, a very loud argument between two men working on

20 aircrafts. Now, what do we know about that argument? What

21 was the argument about? What has the evidence shown us?

22 Not what we may want to conclude, not that there's anything

23 to conclude.

24 The only thing we know is that Chris DiStefano

25 wanted to reorganize the paperwork on the board. Do you all


- 12- 2-99



1 remember what the board is? The board is a large series of

2 racks where they stack paperwork to be worked on on incoming

3 aircraft.

4 They call the room that the board is in the booth.

5 That's where the supervisors and project managers try to

6 deal with the overwhelming paperwork that is involved in

7 working on aircraft. We have got an array here for you,

8 some of the paperwork -- I may be wrong. Is this all the

9 paperwork that we have marked?

10 This appears to be all the paperwork that has been

11 admitted in this case, and it's for three, if I am not

12 mistaken, ValuJet aircraft, and here and here, these two

13 shelves, are for the Aserca aircraft. All of this paperwork

14 gets arrayed out on a board and organized in terms of

15 sections of the aircraft to be worked on and time to be

16 worked. Again, you heard the pre-dock is the first package

17 that's worked.

18 Now, the argument was about how to organize this

19 paperwork. Mr. DiStefano testified, we had real problems

20 with the paperwork on aircraft 705. A lot of it was lost.

21 I couldn't control it. I wanted to reorganize it. I wanted

22 to control access to the paperwork.

23 You heard that on a date, and Chris DiStefano

24 pegged that date as one or two days before Christmas, 1995,

25 December 23rd or 24th, Danny Gonzalez came into his booth


- 12- 2-99



1 and said, what is this? I can't read it.

2 Now, you heard about another witness -- you saw

3 him, rather, Michael Quan. I want to talk to you later on

4 about the contrast between Michael Quan and Chris DiStefano.

5 But for now, before we talk about how you, as jurors, can

6 apply the law and evaluate their credibility, let's just

7 talk about what their differing recollections were and where

8 their recollections are similar.

9 First of all, let me say that we have no dispute

10 but that there was a loud fight. There sure was. We have

11 no dispute but that Danny Gonzalez told Chris DiStefano, I'm

12 the boss and we are going to organize the paperwork the way

13 I want to.

14 You may recall Chris DiStefano said, well, you can

15 do that, but I refuse to participate in any meetings on the

16 plane if you do that, leaving Danny Gonzalez with no choice,

17 I submit. He said, then you're going to be off this project

18 as the person solely in control. He didn't fire him. He

19 didn't even get a cut in pay. He transferred him to a

20 different project where he came under the supervision of

21 Manny Quintana.

22 At any rate, the testimony is there was a loud

23 argument. Essentially, it was a disagreement over the

24 organization of paperwork. Quan remembers the argument

25 beginning, and I won't repeat the word, with what was some


- 12- 2-99



1 profanity. What what the blank is this, Mr. Quan remembers

2 Mr. DiStefano had said. Change the board back, eventually

3 he says Danny said.

4 Now, later on, after this fight, Mr. DiStefano and

5 Mr. Quan later observed Danny again. Mr. Quan says that

6 Mr. DiStefano directly went out of the booth with a pack of

7 work cards and began handing them out to the mechanics. The

8 mechanics took the work cards and went out and began doing

9 the work. Of course, he testified there was nothing unusual

10 or wrong about that.

11 Mr. DiStefano said, after the initial fight he

12 left very upset and he came back and he gave us two

13 versions, actually, of what happened. That's important to

14 remember because one of the issues in evaluating the

15 credibility of a witness is, is he consistent in his

16 testimony?

17 Consistency is one of the questions I'm going to

18 go over with you that you can ask yourself when evaluating

19 the testimony of any witness and it makes it rather simple.

20 You check these questions off and it gives you a good basis

21 for objectively evaluating whether you can rely on a witness

22 or not.

23 Mr. DiStefano initially testified that when he

24 came back to the work booth he saw Danny Gonzalez. Do you

25 all remember that he asked permission to stand up and


- 12- 2-99



1 demonstrate what he saw at that point? He stood up and he

2 turned his back to you from the witness stand here and he

3 said, Danny Gonzalez was taking the paperwork out and it was

4 like he was doing the backstroke, throwing it out and not

5 evening looking at anybody. Do you all recall that?

6 Now, later on, under cross-examination by

7 Mr. Moscowitz -- you all may remember I didn't cross-examine

8 him very much after Mr. Moscowitz's examination.

9 Mr. Moscowitz asked him, he said, "Question" -- this is at

10 Page 26 in the testimony of November 18th.

11 "Sir, you testified yesterday, when Mr. Gonzalez

12 came into the booth and you had a few minutes of argument,

13 then you saw him. You left the booth for a while and you

14 came back and you saw him outside the booth handing work

15 cards out to the mechanics, correct?"

16 He said yes. You may remember that Mr. DiStefano

17 testified that he saw Mr. Gonzalez in the booth at the board

18 handing the work cards out over his back.

19 On cross-examination, he testified that

20 Mr. DiStefano, like Mr. Quan had testified, was outside the

21 booth simply handing out the work cards to the mechanics.

22 This is simply an instance to show you in a small

23 way as an example how inconsistencies in any witness's

24 testimony can be something you need to evaluate in assessing

25 their credibility. I'll go over the instruction with you a


- 12- 2-99



1 little bit later on, but there are minor inconsistencies and

2 there are major inconsistencies.

3 The decision as to whether they are minor or major

4 and worthy of your concern and evaluation in terms of

5 accepting a witness's testimony are solely for your

6 determination.

7 Now, there came a time, and this is crucial,

8 ladies and gentlemen, there came a time when Mr. DiStefano

9 testified that Mr. Gonzalez came back into the work booth

10 after that initial phase of the fight.

11 Now, you remember in the intervening time he said

12 that he had gone by Mr. Gonzalez's office and looked in the

13 window and he had seen this document through the glass on

14 Mr. Gonzalez's desk. He testified that that was the first

15 time he had seen the document.

16 From time to time, the Government has stated,

17 whether in opening or closing argument, that the evidence

18 will show or the evidence did show that Mr. DiStefano

19 testified that the work on the plane was not done and that

20 none of the work cards had been done. Respectfully, that is

21 not the evidence.

22 The Government may be arguing that that's the

23 inference you should draw from the implications that

24 Mr. DiStefano is trying to convey through his testimony.

25 Mr. DiStefano never said, I know the work wasn't done on


- 12- 2-99



1 this work card. In fact, Mr. DiStefano didn't say, I know

2 Mr. Gonzalez took this work card out of the work booth with

3 him. Didn't say that.

4 Mr. DiStefano testified he first saw this work

5 card after the fight on Mr. Gonzalez's desk. Mr. DiStefano

6 testified he did not see Mr. Gonzalez sign this work card.

7 In fact, Mr. DiStefano did not testify that all the work

8 cards were blank and unworked on that date. He did say,

9 however, that is it was his intention -- this is what he

10 addressed at that morning meeting where he told everybody of

11 his new plan -- to organize his new plan and to hand out the

12 work cards on the first day he began working on the plane.

13 He also testified that in a pre-dock work is done

14 on the plane, cards are filled out technically pre-dock,

15 which I submit to you the evidence has shown R 4590 is

16 routinely part of, prior to the plane coming in the hangar

17 and prior to the work being organized out of the booth.

18 Again, we hit a real crucial point in the

19 testimony, I would like you to really focus on it with me

20 for a moment. It happens when Danny Gonzalez comes back in

21 the work booth. Mr. DiStefano says Danny Gonzalez comes

22 back in the work booth and he has this in his hand. Let me

23 back up for just a second.

24 He testified again when he was doing the

25 backstroke up there, that Mr. DiStefano, from time to time,


- 12- 2-99



1 would stick the document under his jacket. That was on

2 direct examination. This goes to consistency as well.

3 Then, on examination by Mr. Moscowitz, he

4 testified that he wasn't sticking it under his jacket, he

5 was putting it under his arm so he could hold it and there

6 was nothing unusual about that.

7 Mr. DiStefano testified that Danny comes in the

8 office after the fight and he takes this document already

9 signed, doesn't see him sign on it, and he puts it down on

10 the desk and he says, you see, Chris, we will have this

11 C-Check done in no time, or something to that effect.

12 Now, 45904, allegation of falsehood, allegation of

13 a crime. The Government says this is wrong, this

14 constitutes a violation of the law as stated in Count II.

15 Michael Quan, also a Government witness, testified

16 that Danny came back in the work booth but he didn't see him

17 with anything in his hand. He said he saw him go to the

18 rack in the booth and then he pulled out a card. He wrote

19 on it and he came over and he put that card, this card, down

20 on the desk, and he said something similar. There, you see,

21 Chris, we are going to take care of the C-Check in no time,

22 conciliatory tone.

23 Indeed, Mr. Quan said that Mr. Gonzalez came in

24 and addressed him in a calm way. Not screaming, not

25 berating, not ridiculing; in a calm, professional way. You


- 12- 2-99



1 may also recall Mr. Gonzalez, when the fight erupted, asked

2 Mr. Quan in a calm way, he said, would you please leave the

3 booth and close the door, because, although it was a heated

4 dispute, it was not personal. It was a business matter.

5 Now, what's the significance of this? You may

6 remember that this came in through Mr. Quan. Sometimes I

7 say Quam, but it's Quan, Q-U-A-N, and Mr. Moscowitz offered

8 it and it was admitted into evidence. Mr. Quan first

9 testified about this on direct examination.

10 We establish, we brought out -- I shouldn't say

11 "we," Mr. Moscowitz did, or I think maybe it was me, one of

12 us did -- that there's nothing wrong with this. In

13 testimony in this case Mr. Quintana testify that this is the

14 right thing to do with this card. Why? Because there was a

15 non-routine card signed by the customer saying, please call

16 in East Coast Tanks. Please empty the fuel out of the tanks

17 so they can crawl in there, poor devils, clean the thing out

18 and make sure it's not leaking.

19 He said, you don't put an anti-fungus agent in a

20 fuel tank when you are going to dump the fuel out on the

21 ground. It's a waste of money. It's not applicable.

22 That's exactly what Mr. Gonzalez wrote, not applicable.

23 Ms. Heck now concedes that this is totally applicable, not

24 false in any way.

25 So, in evaluating the question of has the


- 12- 2-99


1 Government proved beyond a reasonable doubt that Danny

2 Gonzalez did not perform the work called for on work card R

3 45904, you've got to first make a decision who are you going

4 to believe.

5 Ms. Heck didn't tell you how to deal with that

6 issue, but you've got to address it because it's out there.

7 It's two different witnesses, they both identified two

8 documents. One document, perfectly professional, it's

9 clearing up redundant paperwork. Remember that testimony.

10 Another document, it's an implication by Mr. DiStefano and

11 he thought it was a little fishy, him coming in after a

12 fight saying, you see, Chris, we are going to have the

13 C-Check done in no time.

14 I'm going to, in a few minutes, as I said, address

15 the credibility question, go over that instruction with you,

16 how you handle that. But in any event, if you conclude that

17 the evidence substantially suggests that it's this card, or

18 if you think they're balanced, you must, under the law,

19 enter a verdict of not guilty because that is not proof

20 beyond a reasonable doubt. Not at all.

21 In the event you get past that and you want to

22 work through these facts, that is to say, regarding R 45904,

23 we have already discussed in detail how this work card was

24 not observed being signed by Chris DiStefano, was not

25 observed being taken blank from the office by Danny


- 12- 2-99



1 Gonzalez, and that work was definitely done on this plane

2 even by the testimony of the Government's own witness, Chris

3 DiStefano, before Chris started his new procedures of

4 C-Check. So he cannot say work was done on this work card.

5 Again, Ms. Heck, both in opening and in closing,

6 said, Chris DiStefano told you the work was not done. No,

7 ladies and gentlemen, he didn't. He was in no position to

8 say that. He couldn't say that. Had that been available

9 testimony you surely would have heard it and you would have

10 been looking at it blown up right now. It didn't happen.

11 Nor did he say that no work was done on these work

12 cards. Not at all.

13 Let's talk about the credibility of witnesses for

14 just a minute, ladies and gentlemen. This is something we

15 are all pretty well acquainted with because a large part of

16 our common sense is reading people; who is telling us the

17 truth, who is not. Who is reliable, who isn't. That's an

18 essential human skill that you all possess in great

19 abundance and you are going to collectively put it together

20 and use it to analyze the evidence in this case.

21 But the Judge, Judge King, and the law provide you

22 with some guidance on exactly what to focus in on in that

23 regard.

24 The Judge is going to tell you that in deciding

25 whether you believe or don't believe a witness you can


- 12- 2-99



1 consider several things. Did the witness impress you as one

2 who was telling the truth? Did the witness have any

3 particular reason not to tell the truth? Did the witness

4 have a personal interest in the outcome of the case? Did

5 the witness seem to have a good memory? Did the witness

6 have the opportunity and ability to observe accurately the

7 things he or she testified about? Did the witness appear to

8 understand the questions clearly and answer them directly?

9 Did the witness's testimony differ from other testimony or

10 other evidence?

11 Now, I'm reading to you from the Court's jury

12 instruction. This will be your guide. These are the

13 Court's instructions for you. There are a lot of

14 instructions in here about jurisdiction and the various

15 elements of the offense and those are all the technical

16 aspect of this charge package.

17 But the fundamental forms of guidance that really

18 incorporate some of the essential elements of human common

19 sense and experience have been boiled down and put in these

20 instructions. And they are wonderful and they will really

21 stand you in good stead when you go into your deliberations.

22 You'll have them available to you.

23 Let's talk a minute, if we can, about the

24 witnesses in this case. Now, particularly let's talk about

25 Chris DiStefano, not to call him names, not to in any way


- 12- 2-99



1 ridicule him, but to try to analyze him, which is your

2 function.

3 If you have a gut level reaction to a witness,

4 that's something you need to pay attention to, but you need

5 to, as I said, try to work back from that, because that's a

6 conclusion, and try to analyze what are the components of

7 that equation that leads you to believe there's something a

8 little shaky about this or that witness, should you feel

9 that way. That's called analyzing circumstantial evidence.

10 One way you can ask these questions or analyze a

11 witness's testimony may be to ask the following questions.

12 I respectfully submit them to you for your consideration.

13 What is the evidence? Will this witness lie?

14 What about this? Will this witness conceal facts or not

15 live up to his or her oath? You remember that oath, swear

16 to tell the whole truth, nothing but the truth, the whole

17 truth, so help you God.

18 Will the witness tell the whole story? Will the

19 witness provide the whole truth or will he conceal or hide

20 facts? Is their recollection poor? Is their manner or

21 demeanor questionable? Are they consistent in their

22 testimony? Are they supported or contradicted by other

23 witnesses? These are just a variation on the instruction

24 you are going to hear, a set of questions that you are going

25 to ask yourself. Let's try to work through them with


- 12- 2-99



1 Mr. DiStefano.

2 You need to ask yourself, will Chris DiStefano

3 lie? I respectfully submit from the evidence in this case

4 the answer is, yes, he will lie. Will he lie under oath?

5 Yes, he will.

6 "Question: Mr. DiStefano, when you testified

7 before the Grand Jury you were under oath?

8 "Answer: Yes.

9 "Question: The same you took here in court today?

10 "Answer: Yes, sir.

11 "Question: Do you recall sir, toward the end of

12 questioning on the second occasion, July 29, 1997,

13 Mr. Brigham asked you whether you had any criminal history,

14 any arrest or anything, and you answered no? Do you recall

15 that?

16 "Answer: I don't recall it.

17 "Question: Would you like me to show you it, sir?

18 "Answer: Sure.

19 "Question: I will read it to you. The question

20 was, Question: Any criminal history, any arrest or

21 anything? Answer: No. Question: That would include DUI,

22 anything along those lines. Answer: No, no.

23 "Were those answers true?

24 "Answer: No.

25 "Question: In fact, you've been arrested,


- 12- 2-99



1 correct?

2 "Answer: Right.

3 "Question: In fact, you've been convicted in the

4 military. So, under oath you gave an untrue answer about

5 your criminal record, right?

6 "Answer: Correct.

7 Question one, the answer is, yes, Mr. DiStefano

8 will lie.

9 Number two, would Mr. DiStefano conceal facts,

10 hide evidence, not provide the whole truth?

11 "Question: The day following the FBI search what,

12 if anything, did you observe?

13 "Answer: That there was a ValuJet logbook on a

14 file cabinet in my office."

15 Do you all remember the log book? That's an FAA

16 mandated document. The United States of America says you

17 have to create and maintain this document so we know what's

18 going on from shift to shift, supervisor to supervisor, so

19 nothing falls through the cracks, so people can see what's

20 happening. This book was the ValuJet book.

21 "Question: Can you describe what the book looked

22 like?

23 "Answer: I believe it is approximately 11 x 8,

24 probably an inch thick including the cover.

25 "Question: What did you do with that book?


- 12- 2-99



1 "Answer: I took it with me.

2 "Question: Where did you take it?

3 "Answer: I took it to my home."

4 THE COURT: Excuse me. I'm trying to ask the

5 Marshal to look around the courtroom and get the people to

6 sit down. I'm sorry.

7 MR. DUNLAP: "Question: What did you do with the

8 book?

9 "Answer: I took it with me.

10 "Question: Where did you take it?

11 "Answer: I took it to my home.

12 "Question: Where did you put it in your home?

13 "Answer: In my garage, on top of my tool

14 cabinet, on top of some other aircraft books.

15 "Question: What happened to it?

16 "Answer: I was cleaning out the closet, I think

17 in November, 1996, and I had a stack of aircraft books,

18 familiarization books, on top of the logbook. I did not

19 look at each book individually; rather, I looked at the

20 whole stack of them and assumed they were all aircraft

21 familiarization books and I picked up the whole stack of

22 them and put them in a plastic garbage bag and took them

23 out to my garbage."

24 Here's a perfect example of how you can apply

25 circumstantial evidence to the facts. We didn't have a


- 12- 2-99



1 video camera outside or inside Chris DiStefano's house. We

2 don't know what he did with the turn-over log except what he

3 told us. You have to evaluate whether that is credible or

4 believable or not. How do you do that? You use your common

5 sense and reason.

6 What do we know? Well, we know Chris DiStefano

7 understands questions when you ask him questions. He may

8 take a while to answer. You may remember the Judge had to

9 direct him to look up and look at you, and he took quite a

10 long time between the answers from time to time, but he

11 understands what you're saying.

12 He's a mechanic. He's been a mechanic for years,

13 and he knows the importance of this logbook. Moreover, he

14 was at SabreTech, the evidence shows, when the FBI, after

15 the crash of the ValuJet plane, took the place over. They

16 executed a search warrant trying to seize everything that

17 had anything to do with ValuJet.

18 He knew that the Federal Government, these people

19 here, wanted that book. He knew it. He knew how important

20 it was, vitally important. This is a book that the FBI and

21 other law enforcement agencies thought enough of to get a

22 search warrant to come down, take over the place to look for

23 it, along with a lot of other documents. Notwithstanding

24 that, he takes it home.

25 Mr. Moscowitz asked him, don't you think that's a


- 12- 2-99



1 little bizarre? He acknowledged it, he said it was bizarre.

2 However, he takes it home and then he testifies that he put

3 it in his closet. This is a vital piece of evidence that he

4 knows he shouldn't have taken out there. Then he somehow

5 loses track of it and throws it out. Oops, forgot.

6 What are you going to do with this testimony? If

7 you believe him, what does that tell you about this guy's

8 ability to remember facts? You will recall that he

9 testified that he went into the Grand Jury and they asked

10 him about this information that Danny had put some document

11 down on the table. That was a year and a half after that

12 occurred.

13 Not only couldn't he identify the document when

14 presented with documents, you remember those ValuJet

15 documents, he couldn't even tell them what it involved. He

16 couldn't tell them anything about it except that it was a

17 work card.

18 You remember this witness, Chris DiStefano, was

19 one of the witnesses, along with William Drechsler, who was

20 qualified as an expert to render an opinion on how long it

21 would take to do this test. He said, I'm familiar with this

22 test. I've been a mechanic for years and this is an

23 integral part of my job.

24 Apparently it didn't make much of an impression on

25 his mind when he saw it at the time because a year and a


- 12- 2-99



1 half later all he could say was that it was a work card. At

2 some later date, after 20 hours of meetings with the FBI, he

3 recalled it was this work card, the same man who forgot that

4 he had an incredibly crucial piece of evidence and threw it

5 out. His credibility? Was it this work card or was it

6 merely the bio-bor card? Strictly for your evaluation

7 whether you accept or reject his testimony in whole or in

8 part.

9 The next question was, what about the demeanor of

10 the witness, how did he testify, strike you as being

11 truthful, strike you as being evasive? As I said before,

12 you will recall that he sat here and on several occasions

13 had to be directed by the Court to look up and look you in

14 the eye. Do you all remember that? He had to be told to

15 keep his voice up.

16 There were long periods of time when you would ask

17 him a question he would just sort of look out to the nether

18 distance and you had to try to flag him in. You can take

19 that into consideration in evaluating whether to believe

20 him, consider his testimony or not.

21 Is his testimony contradicted or supported by

22 other witnesses? Ms. Heck, in her opening, told you his

23 testimony is corroborated by three witnesses. We disagree.

24 Mr. Quan corroborates there was a fight. We don't dispute

25 that. There was absolutely a fight, a big dispute over the


- 12- 2-99



1 organization of the paperwork, and Danny Gonzalez said, I'm

2 the boss here and we are going to do it the way I want to do

3 it, and it was done that way.

4 But Michael Quan testifies it's the bio-bor card.

5 On direct examination he said, I'm not real sure, but he was

6 sure enough to swear it looked enough like that card for

7 Judge King to admit it into evidence.

8 Mr. DiStefano, on the other hand, who was unable

9 even to say what kind of a work card it was a year and a

10 half after he saw it put on the table, in response to

11 Mr. Moscowitz's questioning, he asked, are you sure it was

12 that card, he said, sure I am. You can take his word for

13 that or you can reject it as being not worthy of belief.

14 It's up to you.

15 Mr. Quan, what type of witness was he? You recall

16 he was a younger looking man, very quiet, answered the

17 questions directly, didn't seem to have an ax to grind. You

18 remember that Mr. DiStefano was pretty angry at Danny

19 Gonzalez. He testified that, I was angry then, but I'm not

20 angry now. Thank God.

21 Mr. Quan testified directly, straightforward,

22 answered the questions crisply. You evaluate whether his

23 demeanor, his testimony was more worthy of belief than

24 Mr. DiStefano's. That's your essential function. I

25 respectfully submit that if you go through those simple


- 12- 2-99



1 questions or just use the questions that are already

2 outlined there in the credibility of witnesses chart, it's

3 an easy, objective way to do it.

4 I respectfully submit that if you do that, the

5 evidence will show that Mr. DiStefano was not worthy of your

6 belief, and that the only evidence in this record that's

7 worthy of your belief with respect to what happened when

8 Danny Gonzalez came back in the booth after the fight is

9 that he put down the bio-bor card and said, we are going to

10 get through this C-Check in no time. Don't get up-tight.

11 He put an NA on it, which the Government concedes was the

12 perfectly appropriate and proper thing to do.

13 Ms. Heck spoke for some period of time talking

14 about the environment of SabreTech, the environment of

15 pressure. Oooh, the environment of pressure is continuing

16 on. Well, you all are adults. You've live in the real

17 world. There's pressure in every business. Ms. Heck

18 conceded to that. Pressure is a part of business. It's all

19 how you react to it.

20 Danny Gonzalez is charged with a conspiracy, with

21 conspiring with other people at SabreTech to make false

22 statements on work cards. Let me suggest to you, if you

23 address Count II first, you decide whether that's worthy of

24 belief, then you can move on to Count I.

25 When you look at Count I, you'll see that it just


- 12- 2-99



1 has that overt act thing. That's the only specific

2 allegation of false statement against Danny Gonzalez. So,

3 then what do you have to do? You have to use your ability

4 to evaluate circumstantial evidence again, because the

5 evidence against Danny Gonzalez is, again, circumstantial.

6 What is the key event beyond the Aserca work booth

7 fight that Ms. Heck has presented to you to show that Danny

8 Gonzalez conspired and agreed with anyone to commit false

9 statements? Well, it was a time when documents were being

10 signed in a ValuJet work booth. I think the date was May

11 4th or 5th, but in early May.

12 Ms. Heck, if I recall correctly, stated that there

13 came a time when John Taber, Mr. Rodriguez and other

14 mechanics were summoned to the booth by their lead mechanic,

15 Luke Casamere. Mr. Casamere said, we need to get this

16 paperwork signed. He said Mr. Taber and Mr. Rodriguez

17 signed some documents an they began to walk out with the

18 other mechanics when Mr. Gonzalez said, no, we need these

19 documents signed.

20 Now, Ms. Heck has stated in opening and stated

21 again that Mr. Taber testified or would testify that

22 Mr. Gonzalez said, no, you can't read those work papers.

23 There's no time to read them. Just sign them now. If that

24 were the testimony, if that were the evidence, you would be

25 seeing it all on these big charts here. Not the evidence.


- 12- 2-99



1 Ms. Heck is asking you to draw an inference. She

2 is saying, well, if you consider what happened in the Aserca

3 work booth -- and I would suggest to you that has absolutely

4 no relationship, whatever happened there, with what happened

5 five or six months later in the ValuJet work booth. Nobody

6 involved in the signing of the ValuJet work booth was even

7 there on Aserca. No evidence of it.

8 Putting that aside, she is going to ask you to

9 infer that Danny Gonzalez, when he said, no, we need these

10 documents signed, knew that there was a document there, work

11 card 0069, that could not be signed accurately at that time.

12 The problem is, there is no foundation, foundation for that

13 conclusion.

14 Remember I told you to process and to consider

15 circumstantial evidence you've got to do the math. You

16 can't just say, oh, there's the conclusion. You have got to

17 back up and say, what are the factual points that I know of

18 that reasonably and fairly lead me to this conclusion.

19 Ms. Heck made a conclusory comment. She said,

20 when Danny said, no, we need this work signed, that that

21 was -- I think I've got it right -- an invitation to do some

22 pencil whipping. That's what she said in closing argument.

23 THE COURT: You've just got a few minutes left.

24 Your time is up, but go ahead and finish.

25 MR. DUNLAP: What is the evidence of what really


- 12- 2-99



1 happened in that booth? You all remember John Taber. He

2 was the big man with the mustache, a nice sport coat. He

3 was asked specifically about that question.

4 "Question: Mr. Taber, you talked about the

5 paperwork, the signing of paperwork in your testimony?

6 "Answer: Yes, sir.

7 "Question: That's part of the overall job of

8 doing mechanical work on the aircraft?

9 "Answer: Yes, sir.

10 "Question: And finishing the paperwork is one of

11 the last steps so that it can be closed out, so that it can

12 be inspected?

13 "Answer: There are certain parts of the

14 paperwork that you have to have inspected to do the work.

15 It goes all through the paperwork inspections.

16 "Question: Certainly completing the paperwork,

17 whether inspected or not, is an integral part of your job?

18 "Answer: Yes.

19 "Question: Now, you described the time when

20 people were signing paperwork in the booth?

21 "Answer: Yes.

22 "Question: Now, Danny Gonzalez did not ask you

23 to sign paperwork without reading it, did he?

24 "Answer: No, sir.

25 "Question: He was just saying it's time to get


- 12- 2-99



1 the job done, to wrap up the paperwork?

2 "Answer: That's what I believe, yes."

3 He didn't say, no, I felt like it was an

4 invitation to participate in some pencil whipping. It was

5 an open question. Because that's not what was going on. It

6 was a normal business environment. It was time to get the

7 paperwork wrapped up.

8 I want to finish with you very quickly, but I want

9 you to remember something that didn't happen. I can't go

10 through the whole record, every page and show you this, but

11 there is no evidence that Danny Gonzalez was ever told about

12 the problem of shipping caps or ever knew about it. There

13 is no evidence that he was there when it was discussed

14 whatsoever.

15 You remember the chart. He's got 300, 400 people

16 under him in the mechanics department. You've seen the

17 paperwork. It's unbelievable. You've seen that little tiny

18 part. There's no evidence to suggest that he knew about

19 that.

20 Mr. Taber testified that there were some oxygen

21 documents, PSU documents on the work booth. But he was

22 careful to point out that he couldn't see the documents that

23 Mr. Florence and Mr. Gonzalez were looking at. They were on

24 the other end of the work booth, so we don't know what those

25 documents were. There's no evidence that he was told about


- 12- 2-99



1 them.

2 One instruction that you will hear is that you

3 can't infer anything merely by the fact that Danny Gonzalez

4 was a supervisor. That's not proof of anything. It doesn't

5 show that he was guilty. It doesn't show that he should

6 have known. Not evidence whatsoever.

7 I want to thank you you all very much for your

8 time today. I know I went a little bit long. Please

9 forgive me and indulge me that. I'm sorry. There's an

10 awful lot of background we have to cover.

11 We all know how emotional this case has been, and

12 we believe in you. We believe you wanted to be here, that

13 you wanted to serve in this important case, and we believe

14 that you want to see that justice is done.

15 You are now called upon to render your verdict.

16 "Verdict" comes from an old French word, verdict. It means

17 to speak the truth. I respectfully submit to you that an

18 impartial, fair consideration of all the evidence and the

19 application of the law to that evidence will reveal to you

20 in your wisdom that Danny Gonzalez is not guilty. Please

21 let your verdict speak the truth.

22 Thank you very much.

23 THE COURT: All right. Do you need a few minutes

24 to arrange anything before starting or are you ready?

25 Ladies and gentlemen, we'll take a five-minute


- 12- 2-99



1 recess. Step into the jury room. Don't discuss the case.

2 Thank you.

3 [There was a short recess].

4 COURTROOM DEPUTY: All rise. Court is in

5 session.

6 THE COURT: All right. Bring in the jury,

7 please.

8 [The jury returns to the courtroom].

9 THE COURT: Thank you, be seated please. All

10 right, Ms. Raskin.


12 MS. RASKIN: Thank you, Your Honor. Fellow

13 counsel, members of the jury.

14 The Government told you in opening argument that

15 it was going to prove a tragedy in the air and crimes on

16 the ground. Well, it did prove a tragedy in the air, but

17 it didn't prove that SabreTech or any of its employees

18 committed crimes.

19 The Government hasn't proved that SabreTech

20 engaged in a criminal conspiracy, a fabric of lies to

21 elevate profit over safety. Instead, what the evidence

22 shows is that SabreTech was a business, a business in the

23 aviation industry where hard work and long hours and

24 pressure to get work done was standard.

25 The evidence has shown that SabreTech was a


- 12- 2-99



1 business like all businesses, where employees don't always

2 get along with their bosses and where, from time to time,

3 human beings make mistakes.

4 The Government hasn't proved that SabreTech

5 mechanics knowingly and willfully pencil whipped the oxygen

6 generator work cards to cut corners and to save time.

7 To the contrary, the evidence shows that the

8 mechanics, all of them, took great care, spent an enormous

9 amount of time and worked professionally in removing an

10 reinstalling the oxygen generators, always focusing on the

11 safety of the planes they were working on and that they knew

12 would be going back into service.

13 The Government hasn't proved that SabreTech's

14 employees knew that the old oxygen generators that they took

15 off the plane fell under the definition of a hazardous

16 material or a hazardous waste under the DOT, Department of

17 Transportation, guidelines. And they certainly haven't

18 proved that they knowingly and willfully and recklessly

19 shipped them, in violation of those regulations.

20 To the contrary, the evidence showed that prior to

21 the ValuJet accident, SabreTech, like ValuJet, and even like

22 the FAA, lacked knowledge as to what the oxygen generators

23 were and what their hidden dangers were.

24 Finally, the Government hasn't proved that

25 SabreTech violated the Aircraft Sabotage Act by placing what


- 12- 2-99



1 it knew to be a destructive device onboard the ValuJet

2 plane. In fact, the Government hasn't even proved to you

3 what role those generators played in that crash, a crash

4 that was obviously started by a fire, but a fire on a

5 27-year-old plane with a long history of electrical

6 problems.

7 Regardless of what caused the fire, the crash of

8 that plane and the tragedy of all the lives lost looms large

9 in this courtroom. The Government has encouraged you to

10 view the evidence from the perspective of someone who

11 already knows the tragic end to the story.

12 They started their case with Walton Little, the

13 fisherman in the Everglades who watched the plane fall from

14 the sky. I don't think there was anybody in this courtroom

15 that wasn't gripped by his testimony. We are not asking you

16 to forget about this crash. As we said in the beginning of

17 this case, nobody could ask you to do that.

18 But what I'm asking you to do is to view the

19 evidence from a different perspective, not from the

20 perspective of somebody that knows the end of the story.

21 But from the perspective of the mechanics that worked at

22 SabreTech day in and day out, what they were doing and what

23 they were thinking during the course of a normal workday

24 before anyone knew what the end of the story was.

25 These men and this company are charged with


- 12- 2-99


1 crimes. Not negligence, not carelessness, not oversight,

2 not bad judgment, they are charged with intentional criminal

3 acts. Your decision as to whether they committed those acts

4 must be based on their knowledge and their intent at the

5 time and not on the extent of the tragedy of what happened

6 on flight 592.

7 So, what was going on in SabreTech during the

8 early spring of 1996? First of all, you've heard that the

9 aircraft repair station that ultimately became known as

10 SabreTech had been in operation for a number of years. It

11 was part of a series of companies called DynAir. They had

12 aircraft repair stations in Phoenix, in Miami and in

13 Amarillo, Texas.

14 A company called SabreLiner bought these repair

15 stations in the middle of 1995, and eventually merged them

16 together renamed them SabreTech in January of 1996. The

17 President of the company was a man named Steve Towns. He

18 worked out of the Phoenix facility. That was the main

19 facility of SabreTech.

20 You've heard that the Miami repair station was an

21 ongoing business when SabreLiner bought. It had hundreds of

22 employees. It already had an FAA repair station

23 certificate. That document is in evidence. You can look at

24 it. What that means is that the FAA had come in, inspected

25 the facility and decided that it was certified and qualified


- 12- 2-99



1 to do repair on aircraft.

2 The company had employed a number of mechanics, a

3 number of A and P mechanics, and you've heard that that

4 means that they held a certificate from the FAA qualifying

5 them to perform mechanic's work on airplanes, airframe and

6 power plant.

7 You've also heard that SabreTech had an ongoing

8 relationship with a number of contract companies. It would

9 make requests of these companies for qualified mechanics and

10 they would send them to SabreTech. In fact, that's how John

11 Taber and Robert Rodriguez and Eugene Florence and a number

12 of the other mechanics you've heard about came to be at

13 SabreTech during 1995 and 1996. These were all experienced,

14 qualified mechanics, all of them held FAA A and P

15 certificates.

16 Now, the evidence shows that SabreTech was a busy

17 place during late 1995 and early 1996. It was doing, among

18 other things, C-Checks on the two Aserca planes. You've

19 heard about that from Mr. Dunlap this morning. You've also

20 heard that during this period of time SabreTech was doing

21 substantial modification, C-Checks on three MD80s of

22 ValuJet.

23 I think John Taber gave the best definition of

24 what a C-Check is. He said that means heavy maintenance,

25 completely torn apart and overhauled.


- 12- 2-99



1 Can see here, and you'll have with you in the jury

2 room, all the paperwork that documented the work they did on

3 those planes. The extent of that paperwork gives you some

4 sense of the magnitude of the job. The customers, in this

5 case Aserca and ValuJet, provided that paperwork to

6 SabreTech. They told them exactly what they needed done and

7 they told them specifically how to do it.

8 They placed their own people on the sites, their

9 technical representatives, tech represents as they called

10 them, to watch as the work was being done and to make sure

11 that all the paperwork was filled out.

12 You heard from one of ValuJet's tech reps,

13 Mr. Ramos. He explained that throughout the MD80 project

14 ValuJet had three tech reps on site. Mr. Ramos was there

15 full time, his job was the paper. There was enough paper to

16 make that a full-time job for him, just keeping track of it,

17 making sure it was completed.

18 Mr. Simons was there as well, he was the lead tech

19 rep, and Mr. Ramos described what his job was. He said,

20 Simons would basically walk around the aircraft, observe

21 mechanics, observe the supervisors. He would try to help

22 solve problems, questions that may occur. That was Bill

23 Simons full-time job.

24 You heard that there was yet another ValuJet tech

25 rep there, a man by the name of Darcee, but that wasn't it.


- 12- 2-99



1 Ramos told you that there were frequently other ValuJet

2 people on site during the project. He said there were

3 various people from the quality assurance group at ValuJet

4 that would come down and spend days, sometimes weeks

5 assisting us.

6 And then, toward the delivery of the MD80, there

7 were about seven different representatives from ValuJet in

8 that April to May time frame, including an FAA D.A.R. who

9 was supposed to issue certificates of airworthiness.

10 So, picture the environment. A huge aircraft

11 hangar the lots of planes undergoing C-Checks. The planes

12 are torn apart, the interior is basically gutted. Remember

13 the picture that Mr. Taber showed you during his

14 examination? It's an MD80 with all the seats taken out of

15 it, a lot of the components removed. That's what the inside

16 of the planes looked like.

17 Outside the planes you had work tables surrounding

18 the planes with a lot of the parts and components that came

19 off that plane. That's where the mechanics were working.

20 They were working on the tables and inside the plane. We

21 know that there were at least five of those going on during

22 this time period.

23 They were doing a complete overhaul and the

24 ValuJet tech reps are always there with quality assurance

25 folks and an FAA D.A.R. walking around the floor observing


- 12- 2-99



1 their actions. SabreTech's own inspectors were there, too.

2 Remember that? The goal of all of these people was to put

3 the MD80s back together, to make sure that all of their

4 parts and components were working properly so that they

5 could return those airplanes to ValuJet in a safe condition.

6 Part of that process on these planes and on any

7 planes undergoing maintenance is completing the paperwork.

8 As John Taber told you, that's part of the job. And as you

9 can see, it was a big part of the job. It might not have

10 been the most interesting or enjoyable part of the job for

11 the mechanics, but it had to get done and they understood

12 that.

13 Now, there's three work cards out of all of these

14 volumes that the Government has identified as the heart of a

15 criminal conspiracy, a criminal conspiracy which they say

16 includes SabreTech, the corporation, Danny Gonzalez, Eugene

17 Florence and Mauro Valenzuela, conspiracy to falsify work

18 cards.

19 The Judge will instruct you at the end of the case

20 that in order to find SabreTech guilty of that conspiracy

21 you must find beyond a reasonable doubt that two or more of

22 its employees or agents willfully joined that conspiracy,

23 and that's because a corporation can only act through its

24 employees, through people.

25 So, who are the people the Government says


- 12- 2-99



1 willfully entered into such a criminal conspiracy and what

2 is the evidence of this criminal conspiracy to elevate

3 SabreTech's profits over safety? Well, Ms. Miller pointed

4 to three things in her closing yesterday.

5 First she talk about pressure. She acknowledged

6 that pressure itself wasn't a crime. She suggested that the

7 pressure at SabreTech was way out of line. It was out of

8 control. She suggested that the pressure was such that it

9 caused this criminal conspiracy to thrive.

10 She talked about this memo, the memo saying,

11 effective immediately, due to the present workload all

12 maintenance personal, including management, are required to

13 work seven days including days off. We will return to

14 regular work schedule when the 3 MD80s are delivered.

15 Do you remember who she put this in through? It

16 was a man named Robert Rodriguez. He told you he had seen

17 this thing posted somewhere in the hangar. Then she asked

18 him, did you work seven days a week? He said, well, I did

19 the first week, but after that, I went back to taking my

20 days off.

21 You also heard a little bit about pressure in the

22 airline maintenance business from Al Ramos, the ValuJet tech

23 rep. I asked him a little bit about his work schedule. He

24 said, well, I've been working seven days a week extra long

25 hours throughout the MD80 process and so did Mr. Simons.


- 12- 2-99



1 And I said to him, in your experience in the

2 aviation industry, Mr. Ramos, that's not unusual, is it?

3 And he answered, no, ma'am, not at all. So, sure there was

4 pressure, but it was normal pressure, and this document

5 shouldn't be taken out of context to suggest something like

6 a criminal conspiracy.

7 From there, the Government went to another letter.

8 This was a letter that they told you about that was sent

9 from Mr. Towns, the President of SabreTech out in Phoenix,

10 president of a whole organization, and it was sent from

11 Mr. Towns to a man named David Gentry, the vice president of

12 maintenance and engineering of ValuJet Airlines in Atlanta.

13 What this letter essentially says is, we are going

14 to be late delivering your plane, and because we are going

15 to be late, we agree to pay you up to $20,000 so that you

16 can rent a substitute aircraft to use until we get back the

17 plane that we are repairing for you.

18 Now think about it. Is this what a company does

19 that's engaged in a routine practice of cutting corners,

20 cutting short work steps, rushing through it's work, pencil

21 whipping whether or not the plane is done? It is not,

22 ladies and gentlemen,. They took too much time with the

23 work. They were late. They didn't spend too little time.

24 They spent too much time.

25 They also are indicating that they did what they


- 12- 2-99



1 could do to satisfy their customer. They valued this client

2 and they wanted to make it right. There's one sentence here

3 that wasn't read to you yesterday and I want to share it

4 with you. It says, the $3,000 daily late penalty on 802 is

5 waived. That's the clause in the original contract that

6 Ms. Miller conceded yesterday was not an unusual clause at

7 all.

8 It goes on and says, the $20,000 dollar or

9 whatever lesser amount the actual cost amount due for

10 ValuJet will be credited to ValuJet by SabreTech spread

11 equally over the next three airplane projects that SabreTech

12 works on for ValuJet.

13 So this wasn't even an out-of-pocket payment of up

14 to $20,000. What SabreTech and ValuJet were agreeing to do

15 was to apply the late penalty payment to future work. This

16 document doesn't help the Government's case; it hurts it.

17 Now, what else did the Government point to in

18 support of this conspiracy charge? The Government evidence

19 says there is evidence that shows that Eugene Florence and

20 Mauro Valenzuela signed the 0069 work cards in the presence

21 of managers and supervisors, Danny Gonzalez, Luke Casamere

22 and a man named Ray Serano.

23 They say -- the Indictment says that they bowed to

24 managerial pressure in signing them. They say that Eugene

25 and Mauro knew that they were lying about something


- 12- 2-99



1 material, something important on those work cards, and that

2 they did it anyway. They deliberately lied on those work

3 cards as part of a criminal agreement that they enter into

4 with Gonzalez, Serano, Casamere and maybe others to make

5 money for SabreTech at the expense of safety.

6 First of all, who is the Government talking about

7 when they say managerial pressure? You heard the Government

8 during opening statement and again yesterday refer several

9 times to management. Management did this, management did

10 that.

11 Well, there's nobody at SabreTech called

12 Mr. Management. As we know, corporations act through

13 people. So, let's talk a little bit about who it is they

14 mean when they talk about management and managerial

15 pressure.

16 I've got a chart here which shows the

17 organizational structure of the SabreTech Miami facility.

18 You won't have this chart with you in the jury room, but

19 will have a smaller version of this in the repair station

20 manual.

21 First of all, they talk about the floor mechanics,

22 men like Eugene Florence and Robert Rodriguez and John

23 Taber. That's where they are, they're in that last blue box

24 on the bottom. Then they talked from time to time about a

25 man named Luke Casamere, who is described as a lead


- 12- 2-99



1 mechanic. That's where Luke fits in.

2 That's also where this fellow Ray Serano fits in

3 they described him as the lead mechanic on 803, the plane

4 that Mauro Valenzuela worked on.

5 Then there are supervisors. You've heard mention

6 of a man named Dave Wiles. He was the supervisor on 802 and

7 he was right above the lead mechanics who were above the

8 floor mechanics.

9 Now, over here, director of hangar operations, we

10 know that that's Danny Gonzalez. So those are the people

11 they're talking about. It starts here. Danny Gonzalez, who

12 we know well from Mr. Dunlap is a mechanic's mechanic, he's

13 on the floor. He's not on the second floor in an office

14 pushing paper. He's the top end of the management they're

15 talking about. Then they skip down to the supervisors, the

16 leads and the mechanics.

17 This takes you to the top of the structure in

18 SabreTech Miami. Then, if you go over here, you can follow

19 this yellow chart. It belongs there and all of this leads

20 up to the top, Sabretech, Inc. That's where Mr. Towns sits

21 in Phoenix.

22 So, that's who we are talking about, the employees

23 and the managers that the Government said they bowed to.

24 Now, let me tell you something important about

25 some of these guys. Remember Eugene and Mauro, Eugene


- 12- 2-99



1 Florence and Mauro Valenzuela, weren't direct employees of

2 SabreTech. They were contract employees. You've heard a

3 lot about that.

4 You'll also see, if you look at this document, the

5 employees list, that Ray Serano was also a contract

6 employee. It's on Page 15. He worked for PDS, too. He's

7 one of the people they say was one of the managers that

8 pressured Mauro Valenzuela into signing the work card.

9 These guys were all contract employees, and this

10 is important not because it means that they're not

11 associated with SabreTech or they don't have the ability to

12 bind the corporation, but it's important because it tells

13 you that these men had absolutely no motive to commit crimes

14 in order to improve SabreTech's bottom line.

15 They were temporary employees. They had nothing

16 to gain by joining a conspiracy whose stated goal, according

17 to the Government, was to increase the profits of SabreTech.

18 It wasn't going to affect their paycheck.

19 On the other hand, they had everything to lose by

20 doing something like that. They had A an P certificates,

21 they worked hard for them. They had absolutely no motive to

22 enter into the kind of conspiracy that the Government

23 suggested they did. So that's who the supposed conspirators

24 are.

25 Now, what was the pressure they supposedly


- 12- 2-99



1 succumbed to. With respect to Eugene Florence and the work

2 card on 802, it all comes down to one Saturday morning

3 toward the end of the MD80 project. You've heard about this

4 a little bit from the Government and Mr. from Mr. Dunlap.

5 The work on this plane was almost finished and it was time

6 to complete the paperwork.

7 The mechanics that worked on 802 were called into

8 the booth by Luke Casamere, their lead mechanic. Casamere

9 and Danny Gonzalez each said, we have to get these papers

10 signed, we need the paperwork signed now.

11 Ms. Miller suggested to you yesterday that those

12 words were an invitation from the boss to pencil whip, to

13 sign for work that hadn't been done. She said it was an

14 invitation that was hard to turn down.

15 I submit to you that that's an example of the

16 Government hearing what it wants to hear and not hearing

17 what it doesn't want to hear, because that's not what the

18 evidence is. That's not what the testimony shows.

19 Robert Rodriguez said he went into the booth with

20 the rest of the crew and hung around for a few minutes. He

21 saw Eugene Florence, who we know and who you will know from

22 some of this paperwork, had done a lot of work on the oxygen

23 generator system on 802, he saw Eugene reading paperwork.

24 After a few minutes, Rodriguez turned around, walked out of

25 the booth and went back to work.


- 12- 2-99



1 He told us that most of the rest of the men did

2 the same thing. That's how much pressure those men felt.

3 Nobody told them they couldn't leave. Nobody kept them in

4 there. There weren't any repercussions. They went into the

5 booth, they walked out and they went back to work.

6 What John Taber? The Government says he balked

7 and he refused to sign for work he hadn't done, but that's

8 not what the testimony was. You heard Mr. Dunlap go through

9 that. He said that Casamere had asked him to sign a

10 particular work card for work that Casamere knew Taber had

11 done. Taber said, I'm kind of greasy right now and I want

12 to read what I'm signing if I did. He did read it, he

13 signed it and he left the booth and he went back to work.

14 You may recall that Mr. Dunlap asked Mr. Taber

15 specifically what he had understood Danny Gonzalez to mean

16 when he said, we need this paperwork to be signed now.

17 Mr. Dunlap said, now, Danny Gonzalez didn't ask you to sign

18 paperwork without reading it, did he? No, sir. He was just

19 saying it's time to get the job done to wrap up the

20 paperwork. That's what I believe, yes.

21 Mr. Taber went on to say that no one at SabreTech

22 had ever asked him to falsify paperwork and that he didn't

23 know of anyone at SabreTech that had done so.

24 That testimony, I'm sure you recall, was echoed by

25 virtually all the mechanics that testified. I have that on


- 12- 2-99



1 a chart somewhere if I can find it. Well, I can't. But you

2 heard it a number of times. You heard that question asked

3 of virtually every mechanic that took the stand. Did

4 SabreTech ever ask you to lie, anybody at SabreTech ask you

5 to lie on paperwork? Do you know of anybody that did? The

6 answers were all uniformly no.

7 Remember, these were the Government's witnesses.

8 These were men that they immunized. They couldn't be

9 prosecuted for what they said. They didn't have any motive

10 to lie. These are the people that the Government is asking

11 you to believe. You know what? You should. These were men

12 that had worked for months overhauling these three planes.

13 The work was done, they knew it, they understood it, and

14 they knew it was time to sign the paperwork. You remember

15 that question. I think the jury got that point.

16 So, in any event, there wasn't the kind of

17 pressure in that work booth that signals a criminal

18 conspiracy. Gonzalez didn't pressure these men. He didn't

19 prevent them from reading the paperwork. He didn't tell

20 them they couldn't leave.

21 What about Mauro Valenzuela? He's the other

22 supposed member of this criminal conspiracy. He's the guy

23 that the Government says knowingly and willfully falsified

24 paperwork on 802. You heard almost nothing about Mauro

25 Valenzuela during this trial. You did see the paperwork,


- 12- 2-99



1 the 0069 work card from 803. The Government showed you that

2 that has his employee number. I think it was 0088.

3 We know that that's not enough. It's not enough

4 that he signed off on that paperwork. After all, he's

5 charged with willful intentional conduct and SabreTech can

6 only be guilty for what he did if he had the right state of

7 mind. So what was the evidence that the Government

8 presented to you as to his state of mind, what was going on

9 in Mauro's head when he signed whatever paperwork he signed?

10 The only evidence was Tommy Silvers. I'm sure you

11 remember Tommy. He is the fellow that came in and testified

12 through an interpreter. He said that he had been at

13 SabreTech for only two months. He was a contract employee

14 as well. He said that he worked with Mauro Valenzuela one

15 day.

16 The essence of his testimony was that when Ray

17 Serano asked Mauro to sign a work card he and Valenzuela

18 first spent four hours inspecting the installation of the

19 oxygen generators to make sure that everything had been done

20 properly. They found a few minor things wrong, a few dirty

21 masks, some hoses that had been crinkled a little bit. They

22 straightened them out. They fixed it. That's it.

23 That's what the Government has presented to you to

24 prove beyond a reasonable doubt that Mauro Valenzuela and

25 Ray Serano, both contract employees, were part of a criminal


- 12- 2-99



1 conspiracy to cut corners, compress work steps and falsify

2 paperwork so that SabreTech could make money at the expense

3 of safety.

4 You know, the Government hasn't even proven what

5 plane they were working on or what paperwork they signed.

6 Remember both Serano and Valenzuela were contractors. They

7 had no motive to cut corners on behalf of SabreTech's bottom

8 line. There's no evidence that any of them had any

9 interaction with Danny Gonzalez or Eugene Florence, the

10 other people that were supposedly a part of this big

11 conspiracy, this agreement among all of them to cut corners

12 and compress paperwork and pencil whip.

13 Ladies and gentlemen, the Government has not

14 proven a criminal conspiracy because there wasn't one. They

15 haven't proven a fabric of lies. They haven't even proven a

16 strand. They also haven't proven that particular false

17 statement count, that Mauro Valenzuela and Eugene Florence

18 in fact willfully and knowingly falsified the 0069 work

19 card.

20 The removal of the generators was one of many jobs

21 these men did on these aircraft. You heard that. They

22 didn't rush through the job. No one asked them to. They

23 wrapped and tied the lanyards. They did it in full view of

24 ValuJet's tech reps who were constantly around.

25 You heard Mr. Rodriguez testify to that. He said


- 12- 2-99



1 they were always around. Bill Simons was around looking at

2 us when we were doing the lanyards. They weren't trying to

3 deceive ValuJet. I think Ms. Miller said yesterday that

4 that is what this is about, they tried to deceive ValuJet

5 and they did. They didn't try to deceive ValuJet. ValuJet

6 knew what they were doing. They were around the whole time.

7 These generators sat there in open boxes for weeks. ValuJet

8 knew what was happening.

9 Mr. Rodriguez told you exactly how they wrapped

10 these lanyards, how carefully they had done it. He went on

11 to say that after they had done it, he actually tested it.

12 He wrapped it around and he tried to pull it to see if the

13 firing pin would come out and it didn't.

14 Ms. Miller told you yesterday that that didn't

15 matter. That's not a safety mechanism. The only safety

16 mechanism on these generators are shipping caps. Think

17 about what she said. I wrote it down because I thought it

18 was pretty interesting. She said, what's with these

19 lanyards? She said, all they do is they keep the hammer

20 from falling.

21 Isn't that just the point? If the way they had

22 wrapped the lanyards and secured the firing pin kept the

23 hammer from falling it wasn't going to hit the percussion

24 cap and the generators weren't going to go off. That was

25 the point. It was an alternative safety mechanism. You


- 12- 2-99



1 know what; the evidence suggests that it worked pretty well.

2 Do you remember Agent Gentile? He came in and he

3 showed you pictures of all the generators that he recovered

4 from the crash. He looked at them and studied them. The

5 Government asked him to point out a couple of the generators

6 that looked like the percussion caps had been pushed in

7 showing it had been expended.

8 Then, on cross-examination I said to him, Agent

9 Gentile, how many did you look at? I think he said, I

10 looked at 19. How many of those showed the percussion cap

11 pushed in? Seven. 12 didn't. 12 of those generators that

12 had been through that crash were still sitting there with

13 the firing pin intact. The lanyards were still intact.

14 One more thing. He also said -- we also know from

15 the evidence that some of the generators that were in that

16 box had already been expended before they left SabreTech.

17 The Government has talked a lot about the fact that these

18 generators had gone off in the facility and those were put

19 in the boxes, too. So we know that some of the generators

20 that went on that plane already had been expended.

21 And Mr. Gentile was very forthright in telling

22 you, I can't tell when these things were expended. He

23 doesn't know whether they were the ones that had already

24 been expended, whether they went off during the flight or

25 whether they went the plane impacted. We just don't know.


- 12- 2-99



1 In any event, what you can see from that, the care

2 with which they wrapped these and the fact that they

3 obviously served a purpose is that at the time the mechanics

4 were working on the generators they were being very careful.

5 They were focusing on safety.

6 Now, by the time they got to the paperwork weeks

7 and months later they weren't thinking about those old

8 generators any more. Those they had taken care of. They

9 put them in the boxed. They had been told they were going

10 to be thrown out by ValuJet. They're now focusing on the

11 three MD-80s that are getting ready to go out the door.

12 They are worried about the safety of those planes,

13 getting the job done and filling out the paperwork that is

14 going to tell ValuJet and the FAA that the installation of

15 the generators and the installation and the repairs and

16 everything else that they had done on those planes was done

17 properly and completely.

18 You know what, they weren't the only ones that

19 were focused on that aspect of the paperwork, the safety of

20 the planes. Mr. Ramos told it to you as clearly as anybody

21 could. Ms. Miller, I think it was, it meet have been on

22 cross-examination, but I think it was she who asked a

23 question about whether they had audited the paperwork on the

24 old generators, and Mr. Ramos explained that they hadn't.

25 He said, we are only concerned about the new


- 12- 2-99



1 oxygen generators being put into the system because these

2 are the ones that the FAA is going to ask about during an

3 inspection. That's what everybody was focused on at that

4 point in time, the mechanics, ValuJet and the FAA.

5 So the Government hasn't proven either Florence or

6 Valenzuela made a knowing willful false statement. The

7 evidence is that they acted in good faith. Since they're

8 not guilty, SabreTech is not guilty of those charges either,

9 because as Judge King will instruct you at the end of this

10 case, a corporation only acts through its employees and

11 agents.

12 SabreTech is charged in this count because the law

13 says that it can be held criminally responsible for the acts

14 of its employees. If those employees are not guilty,

15 neither is SabreTech.

16 The last series of charges I would like to talk to

17 you about are the ones ones that accuse SabreTech of

18 willfully and recklessly violating the hazardous materials

19 regs in the handling of the old generators. Related to

20 this, I guess, is the final charge, that SabreTech knowingly

21 and willfully put a destructive device on the ValuJet plane.

22 In reviewing the evidence on these charges I want

23 to come back to something I said at the beginning, and

24 that's the fact that it is so important that you focus on

25 what SabreTech knew then about the oxygen generators, not


- 12- 2-99


1 what we all know now, because that's what is really at the

2 heart of those charges, what was known before the ValuJet

3 accident, before everyone became focused on this aircraft

4 part called a chemical oxygen generator.

5 What did SabreTech know then about the generators

6 and what did it know then about the complicated federal

7 regulations that tell you how to ship them and how to

8 package them.

9 The logical place to start, of course, is with the

10 testimony of Mr. Brennan, the expert from Scott Aviation.

11 He told you that he worked for Scott his entire life and he

12 gave us quite a lesson with how these things work. You

13 remember that he showed you this chart. It's a nice

14 detailed chart of a generator.

15 It shows you all the components, the spring

16 actuated hammer, the pull pin, the lanyards, the percussion

17 cap. It shows you what's inside, a nice cross section,

18 sodium chlorate, the core, the housing, the relief valve.

19 You know what, SabreTech didn't have this chart when they

20 were working on the generators. They didn't even have a

21 little chart like this.

22 You might remember, in fact, that when Mr. Brennan

23 first started talking about that chart Judge King asked him

24 if he had ever seen a document like that before.

25 Mr. Brennan answered, yes, Your Honor. The Judge said,


- 12- 2-99



1 where? Mr. Brennan said, a document like that was

2 circulated in an FAA notice after the ValuJet crash. Not

3 before the crash; after the crash.

4 Mr. Brennan also explained to you that oxygen

5 generators fall within the definition of a hazardous

6 material under the DOT shipping regs. He showed you few

7 tables from the haz-mat -- or a few entries from the haz-mat

8 table that list the items that are covered by those

9 regulations.

10 We have since put in evidence the entire table.

11 This is what it looks like. That's the haz-mat table.

12 You'll have it with you in the jury room. I would ask that

13 you look at it. It's pretty complicated stuff.

14 Mr. Brennan told you that before the crash in that

15 hazardous materials table there wasn't even a listing that

16 said oxygen generators. He said that oxygen generators were

17 classified according to the chemical that was contained in

18 their core. The sodium chlorate that you saw in the diagram

19 was in the center of the oxygen generator. You can't see it

20 from the outside, but it's in there.

21 Ms. Miller asked him, how is the oxygen generator

22 referred to in that haz-mat table? Now, he says. No, in

23 the period of March through May, 1996. Mr. Brennen said, it

24 wasn't specifically named oxygen generator. It was sodium

25 chlorate and sodium chlorate was listed in the hazardous


- 12- 2-99



1 material table.

2 He also told you, by the way, that sodium chlorate

3 is basically table salt with a few extra addeds attached.

4 So I guess, assuming you knew it was in there, you would

5 hardly instinctively think that that was something

6 inherently dangerous.

7 So, any way, before the crash, if you knew that an

8 oxygen generator like this contained sodium chlorate in its

9 core, you could then go to this table and you could go

10 through it and you try to find sodium chlorate and you could

11 find it, and then it would tell you what rules you are

12 supposed to follow in packing and shipping it.

13 Mr. Brennan told us a little bit about that, too.

14 He said that he had gone there and looked and the listing

15 for sodium chlorate gives a hazardous class of 5.1, a UN

16 identification number of 1495, packing group 2, labels

17 require oxidizer. And it gives special provisions A9, N34

18 and T8, package authorizations give it exceptions of 152,

19 non-bolt packing is 211, bolt packing is 240, and on and on.

20 Hardly a user friendly document.

21 What else did Mr. Brennan tell us? Well, he told

22 us that for the first 18 years that Scott made these

23 generators, from 1970 until 1988, it didn't put any warning

24 labels on them. They were shipped in plane stainless steel

25 canisters just like this, no warning label whatsoever. This


- 12- 2-99



1 is what they looked like. This is what the generators that

2 came off of 802 and 803 looked like.

3 They were the old ones. They dated back to the

4 years before Scott put any warning label on them. This is

5 what the generators looked like that sat in the box that

6 Andy Salis picked up and reshipped to ValuJet, like this.

7 No labels.

8 Mr. Brennan did testify that when Scott shipped

9 out its new generators it puts the diamond shaped oxidizer

10 label on the boxes. You heard some conflicting testimony

11 from the witnesses as to whether or not the new generators

12 that came into SabreTech in fact had those labels on them or

13 what condition they were in.

14 You heard from Keith Ingram, the lead storeroom

15 clerk. He said that he saw those stickers on the boxes. He

16 did say, however, that he didn't remember seeing the candy

17 stripe shipper's declaration. He said he had seen something

18 like that in the past, but he does not remember seeing one

19 with these generators.

20 Carlos Diaz, on the other hand, another fellow in

21 the shipping and receiving department, said he saw the new

22 boxes, but he didn't see any yellow oxidizer labels on them.

23 John Taber, the mechanic, said, I saw a box that

24 had something like that on it. Remember he said it was all

25 obstructed by tape? You could kind of see the top of the


- 12- 2-99



1 diamond and the bottom of the diamond.

2 Ladies and gentlemen, there is no evidence that

3 Andy Salis even saw them in books, let alone that he saw the

4 yellow oxidizer labels on them.

5 So let's turn to the ValuJet maintenance

6 paperwork. What did it tell the mechanics about the hazards

7 of these things, about whether they were listed in a

8 hazardous material table as a hazardous material or a

9 hazardous waste? Remember, those are the documents that the

10 mechanics were working from. That is what ValuJet had given

11 them, the detailed instructions telling them what to do.

12 Not the ValuJet maintenance manual that was found

13 in SabreTech on the second floor three months after the

14 crash and about six months after the work was being done.

15 There's no evidence here that any of the mechanics saw that

16 manual. Even more importantly, ladies and gentlemen, there

17 is no evidence that any of them deliberately ignored it.

18 Let's look at the ValuJet work documents, because

19 that's what is really important. That's what they had and

20 that's what they knew. Do those documents say anything

21 about being hazardous materials? No. They don't say they

22 have sodium chlorate in them. They don't say you've got to

23 ship these carefully. They don't say they are explosive.

24 What they do say quite clearly and what the

25 mechanics clearly knew is that these things got very hot.


- 12- 2-99



1 The mechanics understood that danger and they dealt with it

2 in a way that they believed would render the generators safe

3 until ValuJet disposed of them.

4 The point is, ladies and gentlemen, that knowing

5 that the generators get hot is simply not the same as

6 knowing that they were among the hazardous materials that

7 are listed on that table. That's the point. Not do they

8 get hot, not are they generally dangerous, but are they

9 listed on this table.

10 They didn't know that. None of the documents told

11 them that. There's nothing about those documents that

12 instinctively would have told them that they had sodium

13 chlorate in them, which is listed on that table.

14 Let's fast forward to the end of the Government's

15 case when they put on the man from the EPA, John Lang. He

16 was a hazardous waste expert, he had done it most of his

17 life, I think. He told you that he studied the composition

18 of oxygen generators and determined that the expended

19 generators contained some left over barium, 4 percent I

20 think is what he said to be exact.

21 He did some pretty hefty calculations. He said he

22 couldn't even repeat them in the courtroom. But he said he

23 had done it and after doing those calculations, he

24 determined that that percentage of barium in the expended

25 generators was sufficient to classify them on to the table


- 12- 2-99



1 as a hazardous waste.

2 But here's what's important. When did he do that?

3 He was first asked to do it after the crash. He got a call

4 after the ValuJet crash asking him to evaluate these things

5 and decide whether or not they had enough barium in them to

6 classify them as an oxygen generator. He told you that the

7 EPA hadn't identified oxygen generators as a hazardous waste

8 until the crash focused attention on them.

9 Here is what he said. He said, in my research on

10 them after the crash I did not find specific references to

11 oxygen generators. I did find references to oxidizers in a

12 general way. There's millions of different wastes out there

13 and EPA hasn't addressed each one of them.

14 So, before the crash EPA hadn't identified oxygen

15 generators as as hazardous waste. The haz-mat regulations

16 referred to oxygen generators only by reference to the

17 chemical sodium chlorate. The ValuJet work cards and the

18 generators themselves said nothing about the generators

19 being a hazardous material or a hazardous waste.

20 Keep something else in mind. Whatever limited

21 knowledge the mechanics had as to the heat dangers

22 associated with these things, they didn't know and they

23 couldn't have foreseen that the generators were going to

24 make their way on to a ValuJet plane. They thought they

25 were going to be thrown out. They didn't know and they


- 12- 2-99



1 couldn't foresee that they would eventually be repacked by

2 Andy Salis and sent out.

3 That, of course, takes us to Andy Salis, the man

4 who did repack them and sent them to the ValuJet ramp area.

5 He wasn't a mechanic. He hadn't been up on the floor. He

6 didn't see the 0060 work cards. He didn't see the new

7 generators. There is no evidence that he saw them coming in

8 in the boxes. And the old generators didn't have any

9 warning stickers on them.

10 He was looking at a box of plain stainless steel

11 canisters placed on the shelves along with all the other

12 ValuJet old aircraft parts that had been removed from the

13 plane. That's what he saw.

14 You heard that Andy Salis talked to Agent Gentile

15 a few days after the crash. He told Agent Gentile that he

16 believed that the generators were empty oxygen canisters.

17 Ms. Miller suggested to you yesterday that when

18 Agent Gentile was talking to Mr. Salis and asked him what

19 was meant by five box oxy canisters empty, he immediately

20 rushed out and came back with the candy striped declaration

21 saying, this is what it is, thereby suggesting that he knew

22 exactly what they were all along and deliberately mislabeled

23 them.

24 Well, that's not exactly what Agent Gentile said.

25 What Agent Gentile said was, he asked Mr. Salis, what did


- 12- 2-99



1 you mean by five boxes oxy canisters empty, and Mr. Salis

2 said that he didn't know but he thought he could find out.

3 So, Mr. Salis left and he came back with another lady and

4 they had with them a thick stack of paperwork.

5 The two of them sat there and they went through

6 the paperwork until they found the shipper's declaration for

7 oxygen generators. That's what really happened. He didn't

8 know what these things were. He made a decision to pack

9 these things up under the misguided belief that they were

10 empty oxygen canisters. It was a mistake. Turns out it was

11 a very bad mistake. But it was a mistake none the less.

12 He didn't willfully and intentionally put a

13 destructive device on an airplane. And if he didn't, then

14 neither did SabreTech.

15 Now, toward the end of the Indictment SabreTech is

16 charged with willfully failing to give its employees

17 training, specifically training that the Government says

18 would have taught them how to handle oxygen generators as

19 hazardous material or hazardous waste.

20 Well, there's no question that the SabreTech

21 employees didn't get that training. That's not in dispute.

22 But there is no indication that SabreTech made the decision

23 not to train in bad faith. That's what's required.

24 The kind of evidence that would support that kind

25 of a charge is a showing that SabreTech executives sat down


- 12- 2-99



1 and talked about it and said, well, we really should give

2 this training but it costs too much money or we don't want

3 to take the time. There's nothing remotely like that in

4 this case. As a matter of fact, there's no evidence that

5 anybody made any decision not to train. All the Government

6 has shown you is that the mechanics weren't trained.

7 Remember, corporations act only through people.

8 Who is it that the Government wants you to believe made that

9 kind of a decision in bad faith? There just isn't any

10 evidence. In fact, the only evidence that gives any insight

11 into why SabreTech didn't train came from the testimony of

12 non SabreTech employees, other people who could have -- who

13 should have been trained in how to handle oxygen generators

14 but hadn't received such training either.

15 Remember the question that was asked of almost

16 every witness in this case? The Government asked all the

17 SabreTech employees, have you had oxygen generator training,

18 and they all said, no, we haven't. We asked the same

19 question of the other witnesses, and what did they say?

20 Al Ramos, the ValuJet tech rep, he had been in the

21 aviation industry for 20 years, he had an A and P

22 certificate, had a four year degree from an aviation

23 college, and he said he had never received training in

24 hazardous materials or oxygen generators.

25 Ramkissoon and Segura, the two ValuJet ramp


- 12- 2-99



1 agents, remember they testified they received some training

2 in recognizing labels, but they had not been trained in

3 oxygen generators. I guess the fact is that if they had

4 been faced with the same box that Andy Salis was faced with

5 the indications are that they wouldn't have been able to

6 identify those oxygen generators well enough to decide how

7 to label them or pack them either.

8 Of course, there was Agent Gentile, the FAA

9 security agent who investigated this case and whose

10 expertise is enforcing the hazardous materials regulations.

11 He told us that he had learned a lot about oxygen generators

12 during the course of his investigation, but he said that

13 before the crash he didn't know what they were either. He

14 wasn't familiar with them. The FAA had never trained him.

15 And he also said that the FAA hadn't offered such

16 training to any of its agents. That failure to train even

17 by the FAA was unfortunate, but there's no reason to think

18 it was willful or that it was criminal any more than

19 SabreTech's failure to train was willful or criminal.

20 As we told you at the beginning of this case and

21 as the evidence has shown, the ValuJet accident was a

22 wake-up call for the whole industry, including the FAA.

23 Neither SabreTech nor ValuJet nor the FAA had the benefit of

24 Mr. Brennan's tutorial on the oxygen generators. They

25 didn't have the benefit of the EPA identification of these


- 12- 2-99



1 things as a waste stream.

2 If we had it all to do over again we would all do

3 better. We now know we should have done better. Yesterday

4 Ms. Miller told you all that the mechanics trying to do the

5 best they could just wasn't good enough. You know, maybe it

6 wasn't, but it wasn't a crime. It wasn't a crime.

7 The simple fact is that whatever role those

8 generators played in the ValuJet accident, the Government

9 has not proven to you beyond a reasonable doubt that it was

10 the result of criminal, intentional, willful conduct on the

11 part of SabreTech or any of its employees.

12 What role did the generators play in the accident?

13 The answer is, I suspect, that we don't know and we may

14 never know, but I'll tell you one thing. The Government

15 didn't prove to you beyond a reasonable doubt that it was

16 caused by those generators.

17 They paid a handsome fee to Mr. Fogg to come in

18 here and tell you that they did cause the crash. Mr. Fogg,

19 a man worked most of his adult life at McDonnell Douglas, he

20 told you that he spent weeks out in the Everglades looking

21 at the wiring and looking at the other wreckage from the

22 crash, but he didn't even take the time to look at the

23 maintenance records from the aircraft that his company had

24 designed and built. He didn't even look.

25 You heard more from Ms. Hettinger and Mr. Forman


- 12- 2-99



1 about the condition of that plane than Mr. Fogg knew at the

2 time he came in here and told you what had caused the crash.

3 That should tell you all you need to know about the fairness

4 of his opinion, an opinion that the Government has asked you

5 to rely on.

6 Let me end with one more thought that I hope

7 you'll take with you when you go into the jury room to

8 deliberate and it has to do with the nature of my client, a

9 corporation. It's kind of hard to represent a client like a

10 corporation in a case like this because we don't have a

11 particular face for you to identify with.

12 You see the individual defendants sitting here

13 every day, Mr. Gonzalez and Mr. Florence, you feel like you

14 get to know them in a certain sense, but it's different for

15 a corporation. You hear about certificates of incorporation

16 and seals and you see big black books like this, mergers and

17 acquisition documents.

18 But I hope you understand that this book is not my

19 client. This isn't SabreTech. SabreTech is the men and

20 women that went to work at the aircraft repair stations in

21 Miami, in Phoenix, in Amarillo every day. It's the men and

22 the women that you heard testify during this trial, those

23 people and the people they told you about, and it's

24 Mr. Gonzalez and Mr. Florence.

25 We didn't put very many witnesses on during our


- 12- 2-99



1 case. We didn't have to. Our side of the story came out

2 through SabreTech people who testified during the

3 Government's case and the other people that they told you

4 about. Those people who you heard from and the many many

5 more that you haven't heard from or heard about, they are

6 SabreTech.

7 They were involved in promoting air safety, too.

8 That's what they did day in and day out. The FAA doesn't

9 have a monopoly on that.

10 So, I would like to ask you, please, when you go

11 back to the jury room give SabreTech a fair shake. Treat it

12 the same way you would treat the individuals in this case.

13 The Judge will instruct you that you must. If you conclude,

14 as I think you must, that the Government has not met its

15 burden of proving beyond a reasonable doubt that any of

16 SabreTech's employees committed the criminal acts that are

17 charged, then you must acquit SabreTech as well.

18 Thank you very much for your time.

19 THE COURT: All right. Ladies and gentlemen, we

20 are going to recess at this time for the noon recess before

21 we listen to the final closing rebuttal argument.

22 We ask that you remember very carefully the

23 instruction we have given you each time you have left the

24 courtroom not to discuss the case with anyone or permit

25 anyone to talk with you about the case. If there should be


- 12- 2-99



1 anything in the newspaper or television or radio, don't

2 read it, watch it or listen to it. Please don't have any

3 contact with anybody connected with the trial or any of the

4 spectators.

5 It is 12:30. We will resume at 1:30 this

6 afternoon. You'll have an hour for lunch and if you'll be

7 back here a few minutes before 1:30.

8 Marshal, will you see that they get to the

9 elevator. Thank you.

10 [The jury leaves the courtroom].

11 THE COURT: If everyone will be seated, please.

12 We have some legal matters to take up very briefly. Those

13 of you who wish to leave, you may do so, but if you stay,

14 please be seated.

15 Turning to this matter of the verdict forms that

16 we left this morning, I have concluded that -- the two

17 versions are very similar and I have elected to grant the

18 motion of the defense to give the language that they have

19 suggested.

20 I believe that it pertains to and is appropriate

21 to give that instruction with respect to Counts VIII, X,

22 XII, XIV, XVI, XVIII, XX and XXII. It may be that some of

23 those are not -- does not pertain to some of those counts.

24 It seems to me that it probably does.

25 But for discussion purposes or inviting your


- 12- 2-99



1 comment, I have had my secretary and courtroom deputy

2 prepare a revised verdict form. I advise that you look at

3 them carefully and I invite your comments.

4 MR. MOSCOWITZ: You were, I believe they are

5 correct.

6 THE COURT: I'm sorry?

7 MR. MOSCOWITZ: Your Honor, I believe they do

8 apply to those counts.

9 THE COURT: Now, you will note that some of these

10 counts -- well, each of these counts includes the reckless

11 language as well as the willful language. Some of them

12 deal with -- some of them deal with mixing together items.

13 No, that's Count 15. Packaging, Count 19. Those are

14 straightforward guilty, not guilty spaces in my judgment.

15 You all look at them carefully. It's your case.

16 It seems to be appropriate to me. If you all see any

17 flaws, let me know. It is not necessary for you to repeat

18 your objections. Those are already in the record.

19 Is the Government satisfied?

20 MS. MILLER: The form seems to be correct, yes,

21 sir.

22 THE COURT: All right. Now, it is my suggestion

23 that in order to submit these special interrogatories to

24 the jury on the even numbered Counts VIII through XXII,

25 that we have an agreement that after the verdicts are


- 12- 2-99



1 returned, depending on what the verdicts are, of course,

2 that then the Court will enter -- or cause to be entered

3 some sort of judgment or verdict that reflects their

4 decision.

5 As you see on those Counts VIII through XXII, it

6 simply asks them to answer questions. There is no place on

7 there for them to write in guilty or not guilty as there

8 are on the other counts. The reason that is so is because

9 it's an alternative thing, as I understand it.

10 Mr. Moscowitz, was that the thrust of your motion

11 originally when you asked that this be done this way?

12 MR. MOSCOWITZ: Yes, Your Honor, it is. I

13 believe that it would be appropriate, that based on a yes

14 answer -- if the interrogatories are answered yes, it would

15 be appropriate for the Court to enter a judgment of guilty.

16 If the interrogatories are answered no, then the Court

17 would enter a judgment of not guilty on those counts.

18 THE COURT: What if it's yes on one and no on one

19 on the same count?

20 MR. MOSCOWITZ: If it's yes on A, then the

21 judgment of guilty would be under that --

22 THE COURT: It would be a judgment of guilty?


24 THE COURT: We understand that if they answer yes

25 to both questions, then the judgment would be guilty on


- 12- 2-99



1 that particular count. If it is no, the judgment would be

2 not guilty on that particular count.

3 Now, what happens if the jury, because they

4 misunderstand or whatever, come back with a yes on one part

5 and no on one part on the same count? That's what I'm

6 trying to clarify.

7 MR. MOSCOWITZ: Your Honor, I'm sorry, part A is

8 the willfulness crime under the Court. Part B is the

9 reckless crime on that count. The jury could find

10 SabreTech guilty on one and not guilty on the other, or

11 guilty on both or not guilty on both.

12 Our view of the recklessness defense, Your Honor,

13 is that it is a lesser included of the willfulness

14 violation. So if in fact, let's say, the jury found

15 SabreTech guilty of the willful violation, then if they

16 were also to find them guilty of recklessly, then that

17 would be a version of the willfulness violation.

18 A yes would mean guilty and a no would mean that

19 the jury found SabreTech not guilty.

20 THE COURT: So you're saying if there's a no in

21 either space, then it would be not guilty. Is that it?

22 MR. MOSCOWITZ: It would depend on -- let's say

23 if there was a no on subparagraph A, that would mean not

24 guilty of willfully violating. If there was a yes on B of

25 recklessly causing, then it would be guilty of the reckless


- 12- 2-99



1 violation.

2 THE COURT: So, if there is a yes anyplace, on

3 either of the two questions, the verdict on that count

4 would be guilty?

5 MR. MOSCOWITZ: Yes, Your Honor.

6 THE COURT: If both questions are answered no,

7 then there would be a not guilty on that particular count.

8 Is that your analysis?

9 MR. MOSCOWITZ: Yes, Your Honor.

10 THE COURT: Does the Government agree on that?

11 MR. BRIGHAM: Your Honor, first for

12 clarification, if, in fact, it's yes on A but no on B, I

13 assume that that's acceptable to the defense as a guilty.

14 If it's yes on A and yes on B, that would be guilty on both

15 of them for each of those individual means. But we want to

16 ensure that there cannot be a combination that the defense

17 would later claim would be an inconsistent verdict.

18 THE COURT: That's why we are talking about it

19 now. They just said if it is yes on either one of these it

20 is a guilty verdict. If it is no on both of them, it's a

21 not guilty verdict.

22 MR. BRIGHAM: That's correct.

23 THE COURT: I want a stipulation to this effect

24 before we submit this verdict form to the jury.

25 MR. MOSCOWITZ: Your Honor, I'm sorry, there is


- 12- 2-99



1 one variation that I need to consult with co-counsel on.

2 Your Honor, let me break it down like this. If

3 on these counts -- and it's the same for each count. If

4 the jury, with regard to question A, says -- if they answer

5 A yes and they answer B yes, then it's simply a verdict of

6 guilty. If they answer A no and B yes, then it's a verdict

7 of guilty for recklessly causing the transportation.

8 It seems to me if the jury answered A yes and B

9 no, then that would be an inconsistent verdict because

10 recklessly is the lesser -- is a lower standard. If the

11 jury were to find that SabreTech is not guilty of

12 recklessly causing transportation, then they could not be

13 guilty of willfully causing the transportation.

14 So, in that case, I think the Court would have to

15 enter a verdict of not guilty on those counts.

16 THE COURT: Well, you have to look at the count.

17 I happen to have Count X in front of me. Count X charges

18 between March of 1996 and May 11, 1996, SabreTech did

19 willfully deliver and cause to be delivered to an air

20 carrier, ValuJet and so on, for transportation in air

21 commerce property containing hazardous material, that is,

22 oxygen generators, so on, in violation of 49 CFR, Section

23 171.3(a) as set forth in Paragraph 35 in Count IX, which

24 paragraph is re-alleged and incorporated herein except for

25 the word "willfully" -- except for the word "willful."


- 12- 2-99


1 And the defendants, SabreTech, Florence and

2 Valenzuela, did recklessly cause the transportation in air

3 commerce of property containing hazardous materials, and it

4 goes on, except for the word "willfully."

5 So, as you read Count X, it would appear that

6 SabreTech is charge with willfully delivering or causing to

7 be delivered in the first part of Count X. In the second

8 part of Count X it is charged with recklessly causing the

9 transportation in air commerce.

10 So, we have agreed, I think, in our earlier hours

11 of discussion in Rule 29 and in charge conference that if

12 SabreTech recklessly caused it to be transported in air

13 commerce, or willfully, that if the jury so finds, then

14 that's a guilty verdict.

15 Now, if the jury were to find that they were not

16 willful in delivering or causing to be delivered property

17 to an air carrier, in violation of the regulations, but

18 they, yes, recklessly caused the transportation, then that

19 seems to be guilty of recklessly causing the

20 transportation, but not guilty of willfully delivering.

21 Now, would that then indicate that a judgment of

22 guilty should be entered on Count X or not?

23 MR. MOSCOWITZ: Willful, no; reckless, yes?

24 THE COURT: Willful, no and reckless, yes.

25 MR. MOSCOWITZ: Then they are guilty of Count X.


- 12- 2-99



1 THE COURT: Now, obviously if they are found

2 guilty of willful and guilty of reckless, then they are

3 guilty on Count X.

4 What happens if it's yes on willful and no on

5 reckless?

6 MR. MOSCOWITZ: We believe, Your Honor, that

7 would have to be a verdict of not guilty.

8 THE COURT: What is the Government's position on

9 this? The Government is the one that indicted this in this

10 convoluted fashion. How do we extricate ourselves from

11 this morass and get back on track here.

12 MR. BRIGHAM: Your Honor, we were following the

13 language of the statute and I think the solution is maybe,

14 given the defense position now that a yes on willful and a

15 no on reckless is an inconsistent verdict, we should rely

16 on the Court's jury instructions without a special verdict

17 because those jury instructions instruct the jury clearly

18 that they have to be unanimous on one or the other.

19 A special jury form should not be a trap for the

20 jurors. These type of combinations do set a trap and the

21 jurors could very easily believe with respect to both A and

22 B the way it's written, but simply say yes on B because

23 willfully was a decision they chose chose to make.

24 We should not, I don't think, create traps where

25 inconsistent verdicts can be created. We would propose


- 12- 2-99



1 that we go with the Court's jury instructions as originally

2 proposed.

3 Our position, though, is, if we maintain the

4 special verdict forms, is that these two means would not

5 constitute an inconsistent verdict if there was a yes on A

6 and a no on B. That's because B is not a lesser included

7 offense of A. A talks about willfully delivering or

8 causing to be delivered property. B talks about recklessly

9 causing the transportation in air commerce. The elements

10 of B are not necessarily the elements of A or vice versa.

11 But again, we believe there is a possibility of a

12 morass here after receiving the jury's verdict. We believe

13 that the jury instructions, as the Court has drafted them,

14 are sufficient, directly instructing the jury that they

15 must agree unanimously on one or the other and that should

16 be sufficient.

17 THE COURT: Let me pause to reflect briefly upon

18 the philosophy of special interrogatories to juries and the

19 history and genesis of it.

20 Chief Judge Brown of the old Fifth Circuit used

21 to lecture his whole professional career to new trial

22 judges about the great and wonderful advantage to special

23 interrogatories to the jury, and he put it in a number of

24 opinions and it is firmly embedded in the Fifth Circuit

25 law, which has been adopted in this circuit.


- 12- 2-99



1 So, it has the imprint of some powerful scholars

2 to the effect that we should do this instead of leaving it

3 up to guesswork later on as to what the jury meant by a

4 bland guilty, not guilty blank space. So there's a great

5 deal of law on this subject.

6 We, as trial judges, are encouraged and I believe

7 Judge Brown even mandated it in a case that is -- where

8 there are a number of issues, a number of legal issues like

9 this one that we have here. There are 24 counts. These

10 particular counts seem to be -- it's been the position of

11 the Government, I think, throughout that as long as they

12 establish beyond and to the exclusion a reasonable doubt

13 the elements of these counts, that the jury could find

14 SabreTech guilty of either recklessness or willfulness, and

15 that would be -- either way would be a guilty verdict.

16 MR. MOSCOWITZ: Your Honor, Mr. Brigham said we

17 shouldn't get involved in the morass and the confusion of

18 this. The morass and confusion is the way these counts

19 were charged. The issue is they are confusing, which is

20 why we think there does need to be special verdicts.

21 And what Mr. Brigham has just said as to why it

22 does not need to be a special verdict is escaping that

23 these counts are defective, that they charge two different

24 offenses. If they charge two different offenses then they

25 are duplicitous.


- 12- 2-99



1 They appear to us -- we didn't allege they were a

2 single offense and the only difference between the first

3 leg and the second leg is the intent requirement. Clearly,

4 the second leg, recklessly, is the lesser intent than the

5 first leg. If Mr. Brigham says there is another

6 difference, then there are two separate crimes charged and

7 that's another problem.

8 THE COURT: Well, at Page 32 of the jury

9 instructions we are to tell the jury that SabreTech can be

10 found guilty of violating Title 49 U.S.C., section number,

11 only if all of the following facts are proved beyond a

12 reasonable doubt:

13 One, that SabreTech either, A, willfully

14 delivered; or, B, recklessly caused the transportation.

15 Second, that such action was in violation of the

16 regulations.

17 So it's been the Government's position

18 throughout, and we, after extensive argument from all

19 parties, have concluded that that is the instruction.

20 That's why I wanted to find out what we are to do here

21 depending on the answer that is filled into these blanks.

22 The Government's position, and we are going to

23 instruct the jury that if they find SabreTech guilty of

24 either willfully delivering or recklessly causing, then

25 they are guilty of that particular count. If they find


- 12- 2-99



1 neither of those elements proven, then they are not guilty.

2 I was simply anticipating a problem that might

3 arise if the jury came back with a no on one question and

4 answered yes to the other. I suppose we could just wait to

5 see what the jury does and let it go at that. That may

6 solve the whole problem one way or the other.

7 Under the instructions, they are asked to make

8 two determinations. They are asked to make one

9 determination, but they can go either route they want to.

10 We have at least this agreement, and that is that

11 if the answer to any one of these counts that we have been

12 discussing, that is, the even numbered Counts VIII through

13 XXII, is yes to willfully, to part A(1), or that -- the

14 verdict would be then entered by the Court as guilty on

15 that count.

16 We have further the stipulation -- I'm suggesting

17 this as your stipulation. At the end you say, yes, I

18 agree, or no, I don't, whatever you want to.

19 If it is no, the verdict would be not guilty on

20 that particular count, if it is no on A(1). I think it has

21 to be no on both counts to be consistent with the

22 instruction for it to be a not guilty. I think if it is

23 yes as to either one, then it results in a guilty verdict.

24 What is the Government's position? Do you agree

25 with that or not?


- 12- 2-99



1 MR. BRIGHAM: We agree, Your Honor.

2 THE COURT: And the defense does not?

3 MR. MOSCOWITZ: We do not, Your Honor. May I

4 state what our proposition would be?

5 THE COURT: Well, I think you already have. Go

6 ahead.

7 MR. MOSCOWITZ: If there is a yes on part one and

8 a no on part two, it's a guilty verdict, which would mean

9 -- I am sorry. I take it back.

10 If it's yes on part 1 as to willfulness and a yes

11 on part 2 as to recklessness, then it is a guilty verdict.

12 If there is a no as to willfulness and a yes as to

13 recklessness, that is a guilty verdict.

14 If there is a yes -- I'm sorry. If there is a

15 yes as to willfulness and a no as to recklessness, then

16 that has to be a not guilty verdict because the only

17 difference between the two offenses is in the mental state

18 required and recklessness is a lower level of intent than

19 willfulness.

20 It's just a problem with the way the Government

21 has charged this. They could have charged this in separate

22 counts, but they chose to charge it together. I think it's

23 important that we know that it's a unanimous verdict as to

24 whether it's willfully or recklessly.

25 MR. BRIGHAM: Your Honor, if I may, we charged


- 12- 2-99



1 separate means as ways of committing the same crime. Those

2 were the means that are tracked in the statute itself which

3 set out those two separate means clearly. I point out in

4 defense jury instruction No. 17 as proposed to the Court

5 they use that language, either/or.

6 There's no language about a lesser included

7 offense because it's not. They are two separate means by

8 which one may commit the same crime.

9 THE COURT: All right. To bring this to

10 finality, it is the ruling of the Court that if the jury

11 comes back with an answer to any of these particular

12 charges, that they find unanimously that there was either

13 willful or reckless, that then that is a guilty verdict on

14 that particular count.

15 It is only if they come back with a no answer to

16 both questions, that is, finding that they have a doubt,

17 reasonable doubt, on the willfulness and the recklessness,

18 then the Court would enter a not guilty verdict on that

19 particular count. That ruling is made, of course, over the

20 objection of all counsel for the defense and their right to

21 raise that as error is fully preserved in the record.

22 All right. We have the jury instructions and we

23 have the verdict forms. We will resume in about 30 minutes

24 for the final closing argument.



- 12- 2-99



1 [There was a luncheon recess.]


3 1:40 P.M.

4 COURTROOM DEPUTY: All rise. Court is now in

5 session. The Honorable Judge James Lawrence King

6 presiding.

7 THE COURT: Thank you. Have the jurors arrived

8 back?

9 MR. MARSHAL: Not yet.

10 THE COURT: Not yet. All right. Be seated,

11 please. Maybe you can wait there, and as soon as they come

12 in, you can bring them in.

13 MR. MARSHAL: They are going to knock on the

14 door.

15 THE COURT: All right.

16 We are missing two jurors. Do you want to start

17 without them and start with the alternates? They are

18 twenty minutes overdue?



21 THE COURT: Do you want to confer or talk about

22 it?

23 MR. MOSCOWITZ: We want to wait for the jurors.

24 THE COURT: How long? What would you say, an

25 hour, two hours, three hours, how long do you want to wait?


- 12- 2-99



1 We will set a time limit, and then we will go. I'm not

2 going to sit here for three days.

3 MR. MOSCOWITZ: Another half hour.

4 THE COURT: All right. The government satisfied

5 with that?

6 MS. MILLER: Yes, Your Honor.

7 THE COURT: That would be twenty minutes after

8 two. If they are not here by then, whoever they are, we

9 will start without them. Let me know immediately when they

10 come, marshal.


12 [There was a short recess].


14 THE COURT: Please be seated. This time, we will

15 hear from the government in their rebuttal closing

16 argument. Ms. Miller.


18 MS. MILLER: Thank you, Your Honor. Ladies and

19 gentlemen of the jury. Yesterday when I spoke to you, I

20 said that common sense would drive your decision in this

21 case, and that's where we are, ladies and gentlemen, back

22 to common sense. Does it make sense to you that only the

23 careful are subject to our laws?

24 You heard that SabreTech didn't know, didn't

25 understand anything about hazardous materials regulations,


- 12- 2-99



1 so how can they be guilty? That is not the test, ladies

2 and gentlemen. We don't live in a world where the only

3 person that can prosecuted for violating, willfully

4 violating, haz-mat regulations was poor Mr. Brennan,

5 because he knows the regulations inside and out. That's

6 not what you're going to hear. Ladies and gentlemen,

7 SabreTech is in denial about what happened here. Maybe

8 that's understandable, because it's hard to face up to what

9 happened here. But your job is to tell the truth about

10 what happened here and to reach a truthful verdict.

11 What happened here is that this company knew what

12 it was handling. Knew it was handling hazardous materials.

13 Knew very well that there were requirements that had to be

14 met. We talked yesterday about how they knew. One way

15 they knew was through this document. This was their

16 document. All of these minutia that are supposedly so

17 technical and look at this haz-mat table, and it's so big

18 how could they know? Right in their files, it told them.

19 Class or division: 5.1. Proper shipping name: Sodium

20 chloride. UN or I.D. Number: UN1495. I'm not saying

21 Andrew Salis had this memorized, but this is a case against

22 a corporate defendant, and this corporate defendant cannot

23 run and hide from the materials it had on it's premises, in

24 it's own records. It's own files and materials. It cannot

25 run and hide, ladies and gentlemen, from it's own


- 12- 2-99



1 maintenance manuals. Government Exhibit 104B. We have

2 never seen a chart of an oxygen generator. What's that,

3 ladies and gentlemen? You know that shape. You can

4 probably see that shape in your sleep. It's right in their

5 own maintenance manual at page 2.

6 Eugene Florence. He didn't know what he was

7 dealing with? Ladies and gentlemen, Eugene Florence worked

8 on these oxygen generators for days. He knew they could

9 ignite because of what had happened in the boxes. The whole

10 point that's made of, well these mechanics are so busy doing

11 other work, working on other things, this aircraft, look at

12 all these other books. Yes, do look at these books. You'll

13 find things in there like this. Through oxygen system.

14 Guess who did the work on this? Eugene Florence. No, this

15 is not an oxygen generator, this is compressed oxygen. He

16 worked on this work card. It's got his signature on it.

17 Through oxygen system. E. Florence. And on the

18 second page, what have we got? Warning, open cylinder shut

19 off valve slowly to avoid possibility of fire, if oxygen is

20 to be used for testing. Whose name is on there? E.

21 Florence, signing off items A through H. This is item C.

22 Later in this same document, page 4 of 9. Warning, open

23 cylinder shut off valve slowly to avoid possibility of fire,

24 if oxygen is to be used for testing. No, it's not a

25 chemical oxygen generator. But ladies and gentlemen, the


- 12- 2-99



1 notion that Eugene Florence didn't have a clue of what he

2 was dealing with is a fantasy. This wasn't a kindergarten.

3 This was a domestic, certificated repair station for

4 aircraft. It was populated with airframe and power plant

5 mechanics. This was not the first time they ever heard of

6 oxygen. They knew what oxygen can do. Let's use some

7 common sense.

8 Training, every single witness from SabreTech, who

9 was asked that question, had had no hazardous materials

10 training with regard to oxygen generators. But that's not a

11 problem because, you see, at SabreTech we just didn't know

12 about that. We couldn't be responsible. You've got to show

13 that somebody at SabreTech should have been responsible.

14 Ladies and gentlemen, the law is not limited to

15 people like Mr. Brennan. It applies to everybody. And

16 SabreTech, ladies and gentlemen, right in it's own repair

17 station inspection procedures manual, which is Government

18 Exhibit 40, you'll find out that they provided for a manager

19 of maintenance training. Directly responsible to the

20 director of quality control for maintenance training.

21 Duties and responsibilities one, two, three, four, five.

22 Develop and conduct safety training classes. Seven,

23 coordinate with environmental step to monitor facility

24 compliance with all Federal, State and County environmental

25 regulations. How much clearer does it have to be before


- 12- 2-99



1 there's accountability. Ms. Moscowitz used that word and

2 I'll use that same word. Accountability.

3 Exhibit 25. You probably know it by heart by now,

4 and the work card with the warning on it. But counsel for

5 Eugene Florence suggests that that doesn't count because on

6 the engineering order, they didn't repeat that same warning.

7 Mommy, on Monday you told me not to do it. Mommy, on

8 Tuesday you told me not to do it, but mommy, you didn't tell

9 me on Wednesday not to do it. You told me not to do it on

10 Thursday, but on Wednesday, you didn't tell me not to do it.

11 So it's okay. That's an excuse we would not accept from a

12 child, much less somebody that signs a document like this.

13 The maintenance manuals were there at SabreTech

14 before the accident. Government Exhibit 102A, the actual

15 fiche, on it you'll see February 16, 96. ValuJet

16 maintenance manual. This was found in SabreTech's offices.

17 Aircraft 801 through 803. That maintenance manual was

18 there. SabreTech as a corporation is responsible and

19 accountable for the contents of that maintenance manual.

20 Mechanics are responsible and accountable for the portions

21 of the maintenance manual that they acknowledge having

22 responsibility for. Just as Eugene Florence acknowledged on

23 that engineering order that I just showed you, that it was

24 done per chapter 3520.

25 You know these documents are full of references to


- 12- 2-99



1 the maintenance manual. I don't know if you recall when

2 Mr. Ramos had finished his testimony and I got up to do

3 redirect, I said, excuse me, I have one question, it's not

4 really redirect, I want to reopen my direct and I asked him

5 just one question. The question was "what does I.A.W. stand

6 for because it appears all over these documents"? And he

7 told us that I.A.W. stands for, in accord with. You'll see

8 it in these documents continually associated with

9 maintenance manual chapters. Work done IAW35 - such and

10 such and such and such. The mechanics referenced the

11 maintenance manuals in their papers.

12 Speaking of Mr. Ramos and this point about how he

13 didn't care about old oxygen generators, I hope you remember

14 the full context of that examination. Because what he was

15 being asked about were records that appear in exhibits, I

16 think it's only in one of them. I think it's 26. In

17 exhibit 26, he was asked about the fact that there is a

18 detailed accounting and listing of the expiration dates of

19 oxygen generators. You will see it in here. I don't want

20 to fumble looking for it now. What it is, is a listing of

21 expiration dates of the oxygen generators, and they are for

22 the new oxygen generators. The question was asked, "what

23 was the reason for tracking expiration dates of new oxygen

24 generators and not old ones"? This was in the context of

25 explaining life limiting parts. And Mr. Ramos made the


- 12- 2-99



1 point, which is totally logical and makes sense, but with

2 regard to a life limited part, what the FAA wants to know

3 is, that the parts you are using are within their life

4 limit. That's why they were concerned about the new oxygen

5 generators because those were the parts that they were

6 using. The old oxygen generators were off the airplane.

7 They weren't going to be used anymore, so that was not what

8 they were tracking the expiration dates for.

9 Mr. Ramos put it in terms of, "we tracked the

10 expiration dates for the new oxygen generators because

11 that's what the FAA is looking for, and that's what they're

12 going to be inspecting for." Ladies and gentlemen, he was

13 not saying he doesn't care about the old oxygen generators.

14 He was explaining why they track the expiration dates on the

15 new oxygen generators because the FAA is going to be on them

16 about that. That's not a bad thing, ladies and gentlemen,

17 being concerned about what the FAA is looking for.

18 But for SabreTech, no amount of notice is enough

19 for them to be on notice as they would argue it. Not the

20 fact that it's in their maintenance manuals. Not the fact

21 that they got the diagram. Not the fact that the shipper's

22 declaration, even the crash wasn't enough for them, ladies

23 and gentlemen. This photograph, Government's Exhibit 53C is

24 the oxygen generators that Mark Gentile found at SabreTech

25 days after the crash without safety caps.


- 12- 2-99



1 Now, you heard that SabreTech can be convicted of

2 a conspiracy count only if two or more employees willfully

3 joined in. Who are those two or more employees? Obvious

4 candidates include Eugene Florence, Danny Gonzalez, but

5 they're not the only ones. When you get the indictment,

6 you're going to see that it says that the conspirators

7 included persons known and unknown. Some of the known

8 persons that could fit into that category, David Wiles, the

9 man, the supervisor who stood there when Rodriguez and Taber

10 were discussing in front of Florence, we have got no

11 shipping caps, and Wiles said, don't worry with about it.

12 There you have got somebody in a conspiracy. Jude Casamere

13 who was there at the same time. Ray Serrano who told Mauro

14 Valenzuela to sign papers when Mauro Valenzuela was saying

15 he hasn't done the work. And Persons unknown.

16 Remember, ladies and gentlemen, this chart that

17 you were shown of SabreTech and the point was made, oh they

18 were just talking about the people down here, it doesn't

19 really reach up here. Ladies and gentlemen, it was thus

20 ever so in a corporation, isn't it? There's certain people

21 who do the dirty work, who sign those work cards. And the

22 reality of life is that sometimes those people are on the

23 hook.

24 Mr. Florence is in that situation. It sad, but

25 it's a problem of his own making. But that's not to say


- 12- 2-99



1 that that didn't go up further into the corporation.

2 Casamere, a lead mechanic. Wiles, a maintenance

3 supervisor. Director of hangar operations, a term that fit

4 Mr. Gonzalez.

5 Now the requirement of two individuals for the

6 corporation to be could be convicted, only applies to Count

7 I, because Count I is a conspiracy. That requirement of two

8 individuals does not hold true for any other count. In

9 fact, ladies and gentlemen, with regard to the other counts,

10 you can look to the knowledge of individuals within that

11 corporation as comprising the corporation's knowledge.

12 Andrew Salis does not have to know that what he's causing to

13 be put on that aircraft is a hazardous oxygen generator in

14 order for SabreTech to be guilty of willfully causing the

15 delivery and the transportation of that hazardous material.

16 Because SabreTech isn't just isolated to Andrew Salis.

17 SabreTech is accountable for the knowledge of all

18 of it's employees. What John Taber knew, SabreTech knew.

19 What Eugene Florence, knew SabreTech knew. What was in

20 their maintenance manual, SabreTech knew, plus what Andrew

21 Salis knew, plus Mitch Perez, plus all of those people

22 equals willful delivery to that ValuJet ramp of oxygen

23 generators when SabreTech appreciated through all the

24 information that it had, the nature of those oxygen

25 generators.


- 12- 2-99



1 A corporation, you'll hear, is deemed to act

2 willfully if one or more of it's agents in the scope of

3 their authorization acted willfully. Or if, as an

4 organization that corporation consciously avoided learning

5 and observing a pertinent legal requirement or acted with a

6 flagrant organizational indifference to such a legal

7 requirement.

8 Flagrant organizational indifference. David Wiles

9 being told by mechanics, hey boss, we don't have any

10 shipping caps and saying, that's no big deal. That sounds

11 like flagrant organizational indifference. Mechanics going

12 to supervisors saying, hey, look these generators went off.

13 How do you like that? That sounds like flagrant

14 organizational indifference. Packing them up and putting

15 them in boxes even though some of them are going off,

16 flagrant organizational indifference.

17 Further, you will hear in the instructions, that a

18 reckless disregard of the truth with a conscious purpose to

19 avoid learning the truth, is sufficient show that a false

20 statement was made willfully and with knowledge of its

21 falsity. You can't just put your head in the sand. You

22 can't just say, well we didn't have a training director.

23 You haven't shown that a responsible person caused us not to

24 have training.

25 Ladies and gentlemen, Dennis Segurra, the guy in


- 12- 2-99



1 the belly of the ramp, who could barely speak English, and

2 testified with a translator, had been trained by ValuJet.

3 Was it with regard to oxygen generators? No, he didn't say

4 that. He said he was trained to recognize labels. When you

5 hear the instruction and hear the nature of the regulations,

6 you'll see that it refers to training, function specific

7 training. If you work on a ramp and you're bringing in

8 boxes, you've got to recognize what's on the boxes. If you

9 are a shipping clerk like Mr. Salis, you have to be trained

10 to understand what you are handling. He wasn't. That was

11 willful on the part of SabreTech, because that shipping and

12 receiving department was receiving and handling oxygen

13 generators. And they knew it. Keith Ingram received oxygen

14 generators. He wasn't trained in them. That's Count XXXIII

15 of the indictment.

16 Now we heard from SabreTech that there was no

17 atmosphere of haste. There was no undue pressure. Ladies

18 and gentlemen, SabreTech was a new company. It had started

19 out as DynAir Tech. They had bought that company. They had

20 changed the name, and they were looking to make a hit and

21 looking to make business. They were squeezing as much as

22 work as they could and the resources were skimpy. They were

23 resorting to contract labor continually.

24 Manny Quintana, just yesterday, testified that he

25 left SabreTech because he could not get enough electricians


- 12- 2-99


1 and sheet metal workers on his job. We know about the seven

2 day a week memo. We heard from two counsel now that Al

3 Ramos said it's typical to work seven days in a week in the

4 aviation business. He didn't say it was typical to have the

5 director of maintenance require everybody who worked there

6 to be there seven days a week. Yeah, Mr. Rodriguez, Robert

7 Rodriguez didn't comply. He had another full-time job. Do

8 you remember that? He worked for, I'm not going to try to

9 remember the name of the outfit. I believe it was in Fort

10 Lauderdale. He had a full-time job, and he worked at

11 SabreTech part-time. He was in a, position where he already

12 had other full-time work.

13 Pressure, yes, there's pressure in any line of

14 work. That doesn't give a pass to people for giving into

15 that pressure and doing something that's wrong, like lying

16 on maintenance records.

17 Danny Gonzalez in that work booth. In my argument

18 yesterday, I called it, an invitation to pencil whipping.

19 And John Taber, counsel says, well he didn't say it was an

20 invitation to pencil whipping. He said in

21 cross-examination, answering proposition put to him by

22 defense counsel as they are entitled to do, he said, if I

23 may use the defense chart, "Now Danny Gonzalez did not ask

24 you to sign paperwork without reading it, did he? No, sir.

25 He was just saying it's time to get the job done to wrap up


- 12- 2-99



1 the paperwork. That's what I believe, yes."

2 Ladies and gentlemen, what matters in this case is

3 what you believe and what you conclude. John Taber, Robert

4 Rodriguez, all the witnesses from SabreTech, do you think

5 they were happy to be here? Do you think that they are

6 eager to remember the details that would put them in a bad

7 light? They can't even remember this thing, being on the

8 oxygen generators that they handled. But we know that it

9 was. This warning went on all the new oxygen generators.

10 They were here under use immunity. Their testimony was

11 presented to you by the government, and they answered

12 questions, and you are entitled to rely on their account and

13 on their testimony. You must consider also, ladies and

14 gentlemen, the government takes its witnesses as it finds

15 them. These were SabreTech's mechanics, and they came in

16 here and their view of what they think Danny Gonzalez meant,

17 does not define what your conclusion is.

18 Further, ladies and gentlemen, that was the view

19 of John Taber. If Danny Gonzalez was issuing an invitation

20 to pencil whip that day when all the mechanics were in

21 there, they clearly wanted him to sign papers and they were

22 backing off and Danny Gonzalez said, let me get the words

23 exactly right which is as it should be, "John Taber, I said

24 I was a little greasy right now, I wanted to read what I was

25 signing, if I did it." This was after he had already


- 12- 2-99



1 signed. In argument. You heard that after he said this, he

2 signed something. No, he had already signed that paper for

3 Jude Casamere. Casamere called me over and said Johnny

4 could you please sign these items off because I know you did

5 this. I took the time to read it. It was to install the

6 right hand side PSUs. Taber sign those three off. Eugene

7 Florence signed the papers. I said, I was a little greasy

8 right now. I wanted to read what I was signing, if I did

9 it. Danny Gonzalez stood up and said we need this paperwork

10 signed now.

11 If that was an invitation to pencil whip, John

12 Taber didn't accept it. Whether you think he was a hero or

13 just kind of slimed out of there saying, look, I hear my

14 mother calling or whatever, that's not really what's

15 significant. What's significant is, he didn't sign papers

16 for work he didn't do. If that was an invitation to pencil

17 whip, then we know who accepted that invitation to pencil

18 whip. Mr. Florence. Mr. Florence signed the work card.

19 One thing we have not heard too much about in argument

20 because what can you say, ladies and gentlemen, is this was

21 obviously and clearly a false statement.

22 "If generator has not been expended install

23 shipping cap on firing pin." I know you are familiar with

24 that sentence. I'm sorry to harangue you with it, but after

25 all, that is what this case is about, isn't it? That


- 12- 2-99



1 statement was false. Eugene Florence knew it was false. He

2 acknowledged it's falsity. In Government Exhibit 79, which

3 is the written statement that was given to the FAA on June

4 6, 1996. "After removal of the oxygen generator, did you

5 install a safety cap on the primer? No, they weren't

6 available. Had to keep new ones on until final drop check."

7 But Mr. Florence was still in denial, ladies and

8 gentlemen, because guess who performed the final drop check

9 on 802? It was Eugene Florence, and it was the day after he

10 signed that work card.

11 The government hasn't shown that SabreTech

12 employees knew that generators were hazardous materials?

13 I'm not even going to go over that again. It has been shown

14 over and over again. The government didn't show that

15 SabreTech employees knew that oxygen generators were

16 hazardous waste? What about the maintenance manual chapter,

17 Government Exhibit 104A? I'll not going to pull it out now,

18 but when you're back in the jury room, please take a look at

19 it. Look at the section where it discusses barium oxide and

20 disposal of generators. Look at the sentence where it says

21 "Talk with local safety department or authorities for the

22 procedures to discard this hazardous agent." How much

23 plainer does it have to be? Oh but mommy, you didn't tell

24 me not to write on this wall, you only told me not to write

25 on that wall. Ladies and gentlemen, the excuses have to


- 12- 2-99



1 stop at a certain point.

2 Now the point has been made that these defendants

3 are charged with crimes. Crimes are serious. This is not

4 just a civil case. No one will dispute that with you. The

5 government, least of all. We understand the significance of

6 charging the crime. Ladies and gentlemen, take a look at

7 what the counts in this case are. They are conservative

8 charges. This is not somebody running amuck. What are they

9 charged with? They're charged with making false statements.

10 How can anybody quibble with that in light of this document?

11 They're charged with making false statements in the matter

12 of the jurisdiction of the FAA. They're charged with

13 agreeing to make false statements and for SabreTech, the

14 corporation, it is additionally charged with willful

15 violation of hazardous materials regulations, and with

16 willfully causing the delivery of property in violation of

17 hazardous materials regulations to an aircraft in air

18 commerce. And finally, they are charged with placing

19 destructive devices, that is, oxygen generators willfully on

20 an airplane, thereby making it hazardous to use.

21 Those are conservative charges, ladies and

22 gentlemen, and they fit the facts here. You know something?

23 Those charges exist and are provable, even if there had

24 never been a crash. It's a crime to make a false statement

25 on a matter within the jurisdiction of the FAA, even if the


- 12- 2-99



1 airplane doesn't crash. It's a crime to put a destructive,

2 willfully put a destructive device on an aircraft in the

3 language of this statute, even if the airplane doesn't

4 crash.

5 Now here the crash and the fire are relevant for

6 your consideration, because they show the materiality of the

7 false statement that was made. The shipping cap on the

8 oxygen generators was an important thing, and we know that

9 because of what happened. It also shows it because the last

10 count charges that it made the aircraft hazardous and

11 unworkable to use, and let me get the language right, and

12 that these acts were likely to endanger the safety of the

13 aircraft. And because of what happened to the aircraft, you

14 know that that's true. But the creation of the risk itself,

15 is sufficient for the crime.

16 The motivation for SabreTech, it was money. You

17 saw the letter from Steve Towns. There was pressure. Now

18 Ms. Moscowitz said there wasn't so much pressure. The

19 aircraft didn't even go out until May 9, so what was the big

20 deal of pressure on May 4 and 5 when Eugene Florence was

21 working on it. Ladies and gentlemen, all of these records

22 from 802 are now in evidence. I know it's a tedious exercise

23 because these particular records are not marked, but if you

24 go through those records and you look at the time period and

25 find out what was happening with 802 between May 4 and May


- 12- 2-99



1 9, 1996, you'll see it had problems. They were working on

2 the problems. Mid cargo and right server door, and door

3 warning lights stay on. They had to fix that. That was May

4 5th. I'm not going to read them all. May 6, control wheel

5 hangs in left turn with spoilers deployed. So they had to

6 fix that. Another one on May 6, they were busy those days,

7 they were trying to get the aircraft out. May 8, inspection

8 date. That's when they are finally getting to inspect the

9 airplane, trying to get it out the door. Then finally, May

10 9, overnight inspection. Between May 4 when Eugene Florence

11 signed that work card, and May 5 when he was doing the drop

12 test and removing the safety caps, which he did not then go

13 and put on the old generators, between then and May 9th when

14 the airplane went out, SabreTech was hustling, trying to get

15 that airplane out and it was in their financial interest to

16 do so.

17 Mauro Valenzuela. The government hasn't shown

18 anything on Mauro Valenzuela. Ladies and gentlemen, that's

19 not correct. The government has shown on Mauro Valenzuela,

20 number one, he signed the work card for 803. It says it's

21 03. He signed both the non-routine work card, and the

22 routine work card. The government has shown that. It was

23 untrue item B that same sentence if generator has not been

24 expended install cap on firing pin, he knew it was untrue.

25 How do we know that? Because Tommy Silvers said that the


- 12- 2-99



1 day after they spent that time in the airplane, then

2 Mr. Serrano told them to work on old oxygen generators

3 putting green tags on them. They did and Tommy Silvers told

4 you, those generators had no shipping caps on them. Mauro

5 Valenzuela was right there with them. They both were

6 working with the generators. They had no shipping caps.

7 Mauro Valenzuela knew that.

8 Nobody was trying to deceive ValuJet. After all,

9 ValuJet was walking all around. Ladies and gentlemen, were

10 they trying to deceive ValuJet and, in fact, did deceive

11 ValuJet was in this work card. And they deceived them by

12 checking off item B. Now, I'm not saying that this was the

13 big goal of their lives. Hey, let's fool ValuJet. They

14 just wanted to get the work done, and this was something

15 that needed to be done. It needed to be whipped out of the

16 way with that signature. So they signed it. Mr. Florence

17 signed it, Mr. Valenzuela signed it, and off that paperwork

18 went, and ValuJet was deceived. Al Ramos told you that. He

19 told you, he checked, he's meticulous, he's careful. He

20 checked to see that every item had been indicated, it was

21 one empty. The paperwork was done. The company was

22 deceived because the paperwork was done, they were led to

23 believe that the work had been done. The fact that people

24 were walking around on the floor, doesn't mean that those

25 people are thereby on notice of everything that's in all of


- 12- 2-99



1 these books and all those certifications. That's why

2 there's paperwork. That's why we have all of this elaborate

3 documents. Because this is not the kind of job that you

4 just do casually, that you just walk-in one day and say, hey

5 guys let's fix an airplane. Okay, let's fix that airplane.

6 Is it fixed? It's fixed. Great. See you around. That's

7 not how it's done. It's done through a very deliberate

8 process of documentation. A process that was thwarted in

9 this case because of SabreTech's approach to this paperwork.

10 The lanyards. Oh, SabreTech and those workers

11 were so careful they went out of their way to put those

12 lanyards on. That shows how safety concerned they were.

13 Ladies and gentlemen, they were working on the lanyards.

14 Guess what? They were required to work on the lanyards by

15 the work card. Maybe at SabreTech it was amazing that

16 somebody actually followed the work card, but the reality

17 is, they did follow the work card. There was nothing of

18 special virtue to them in securing these lanyards.

19 This is page two of work card 0069. Item one on

20 page one is for removal installation procedure. One, remove

21 generators, and then one goes all the way through page one

22 and over to page two and step G in item one for the removal

23 of oxygen generators is, coil firing pin lanyards and secure

24 to generator body. So what's the big deal that they were

25 going out of their way to do these lanyards as their safety


- 12- 2-99



1 precaution? They were doing what they were required to do

2 in the work card. This was not some extraordinary measure

3 that they were undertaking.

4 The notion that this was a safety measure is just

5 refuted by the evidence. Mr. Brennan would not agree with

6 that proposition. Counsel sought to get him to agree to it

7 and he wouldn't. Counsel presents it to you as their

8 argument. Well, they can make that argument. Now, it's

9 true, ladies and gentlemen, if you can keep that hammer from

10 falling, that helps. It's also true, ladies and gentlemen,

11 that if you never put the generator on the airplane, that

12 would help too. But those are not really the safety

13 measures. The safety measure is the shipping cap. The cap

14 is what prevents the generator from initiating. Dealing

15 with those lanyards, just wasn't good enough.

16 And you know, ladies and gentlemen, that's not

17 what good faith is about. You're going to hear an

18 instruction from the Court about good faith and how good

19 faith in certain circumstances can be a defense. But

20 remember what this case is. This is a false statement case.

21 Good faith in a mechanic thinking mistakenly that wrapping a

22 lanyard around a generator is enough to make it safe, that

23 might address a situation where that mechanic was charged

24 with the crime of not putting a shipping cap on. But that

25 is not what the crime here is. The crime is making a false


- 12- 2-99



1 statement. Saying something that was untrue. No amount of

2 your personal belief about lanyards, turns this untruth into

3 a truth. It doesn't matter what you think about lanyards.

4 You can't say that it's true, that you installed shipping

5 caps on the oxygen generator. That's not good faith. It

6 gets to an issue that is really central to understanding and

7 analyzing some of the points that the defense made, which is

8 they are talking about their intent, and they didn't have

9 bad intent, and they didn't have bad purpose, but what

10 they're really talking about, ladies and gentlemen, is not

11 intent, but motive. And intent and motive are two different

12 things. They shouldn't be confused because what you have to

13 focus on is intent. Intent means, knowing what you're

14 doing, foreseeing the result and being willing for that

15 result to occur. Your motive is not relevant it that.

16 Motive is what prompts a person to act, while intent refers

17 to the state of mind with which the act is done.

18 If somebody embezzles money from a business say

19 $1,000, two people embezzled money. They both embezzle

20 $1,000, and one does it to pay for an operation for his

21 mother, and the other does it to pay for a weekend out on

22 the town in New York City. They have different motives for

23 committing that act. One of them has what you may consider

24 a good motive, and the other does not have a good motive.

25 But their intent is the same. Because they are both


- 12- 2-99



1 embezzling the money, understanding that it's not theirs,

2 intending to keep it, intending to take it away from

3 somebody else. That is intent, and it is not, in legal

4 terms, it's not relevant to their intent that one of them

5 did it for a good motive and the other did it for a bad

6 motive. Because, ladies and gentlemen, you are going to be

7 given a hard task, which is to deliberate in this case. You

8 are here to determine the facts. You are not here to judge

9 who is a good person and who is a bad person. And who had

10 good motivation and who had bad motivation.

11 You heard from one of the defense counsel that her

12 client was a good person. Ladies and gentlemen, I don't

13 want to say this in a way that sounds callus, but that's not

14 relevant to your determination because the law looks at

15 people equally. It looks at their acts and it looks at

16 their mental states with which they committed acts. That is

17 the only fair way in which factual determinations can be

18 made.

19 Judgments on motive and how that fits in with what

20 should happen to somebody, those are for the Court. You've

21 got to do your job and you've got to trust that the Court

22 will do it's. And you're going to hear an instruction in

23 this regard. You're going to hear an instruction that the

24 question of punishment should never be considered by the

25 jury in any way in deciding the case. If a defendant is


- 12- 2-99



1 convicted, the matter of punishment is for the Judge alone

2 to determine later. We are counting on you, ladies and

3 gentlemen, to judge the facts. And as I said yesterday to

4 judge them in an atmosphere devoid of emotion. Again, not

5 because emotion is bad, but because it is so natural and it

6 can be an unfair factor in these determinations. We know

7 you want to be fair. Please, stick to the facts and to the

8 logic of the situation.

9 Back to the lanyards because it's a little mind

10 boggling this idea that, hey, it worked pretty well. It did

11 not work well enough. Three out of four times, isn't good

12 enough. The fact that some of the generators didn't have

13 indented caps, that's just not good enough. Hey, you know

14 those oxygen generators that we shipped onto that airplane,

15 quite a few of them didn't have their hammers fall. Well

16 isn't that great? Ladies and gentlemen, it wasn't good

17 enough.

18 Remember the testimony, both of Mr. Brennan and of

19 Mr. Fogg. Oxygen generators can initiate without the hammer

20 falling. Once they get hot enough. And, ladies and

21 gentlemen, you heard from Mr. Fogg his analysis of that

22 wreckage, and you are just as able as anyone to reach the

23 conclusion that that's exactly what happened in that cargo

24 hold in that day. That there was a fire. Oxygen generators

25 just from heat go off, pure oxygen is produced. Remember


- 12- 2-99



1 that warning that we just read in that work card that

2 Mr. Florence signed? Oxygen plus fire, bad combination.

3 Now, you heard argument that the government has

4 not proved beyond a reasonable doubt what the cause of the

5 fire was. Ladies and gentlemen, listen carefully to the --

6 Judge's instructions. The government is not required to

7 prove beyond a reasonable doubt that the oxygen generators

8 caused the fire. For one thing, whether the oxygen

9 generators caused the fire or not, they surely contributed

10 to the fire. The presence of mechanisms for delivering pure

11 oxygen into that cargo hold and the presence of a fire, no

12 matter how it was created, was part of the recipe for

13 catastrophe in that aircraft.

14 Now, we heard testimony concerning that. We had

15 testimony from passengers on flight 591, and we had argument

16 yesterday from Ms. Moscowitz focusing on electrical problems

17 on aircraft 904. Ladies and gentlemen, I am not here to

18 make apologies or carry water from ValuJet. I don't want to

19 be flying in an airplane that has got duct tape holding a

20 seat together. But the reality is, there was no evidence of

21 an electrical fire in that aircraft. With regard to the

22 electrical problems that are reflected in this exhibit which

23 the defense put in, please don't just take the position,

24 hey, there were lots of electrical problems. Therefore, the

25 fire must have been caused by electricity. When you look


- 12- 2-99



1 through this exhibit in detail, you will see that it will

2 show an electrical problem, a maintenance effort. Sometimes

3 the maintenance effort worked the first time. Sometimes it

4 took several times. But many of the issues that are

5 recounted in this document were ultimately resolved, and

6 were resolved before May 11 of 1996.

7 For instance, the left alternating current A C bus

8 circuit breaker had persistent problems as reflected in this

9 document, defendant's exhibit 6. But the problems were

10 confined to the time period, February 15 to March 17, 1996,

11 when the unit was reset by a mechanic, serviced, and then on

12 March 17, 1996 removed and replaced left A B and C circuit

13 breakers. The problem was solved at that point. There was

14 no recurrence of it.

15 You heard that six times, there were auto pilot

16 problems, five in the last week of ValuJet 904's existence.

17 The problem was auto pilot porpoising in level flight. They

18 checked it, but it recurred. But finally, on May 10, 1996,

19 they repaired and replaced the auto pilot pitch computer. I

20 don't hold myself out as a mechanic in any way, but these

21 documents when you look at them, reflect problems and

22 corrective action, and the reality is that, there is no

23 evidence of electrical problems causing the fire on ValuJet

24 flight 592. Even the issue that was alluded to by

25 Ms. Moscowitz where Mr. Fogg was asked, "Well, isn't it true


- 12- 2-99



1 on the CVR they said we are losing a bus"? Mr. Fogg

2 responded that it was within seconds of that remark on the

3 CVR, that there are cries of fire heard from the passenger

4 cabin. Those seconds are not enough for a problem, an

5 electrical problem perceived by the pilots which would be

6 perceived as it was occurring because of the their

7 instrumentation, to result in a fire that would in seconds

8 could have penetrated the passenger cabin that way.

9 The haz-mat table is hardly a user-friendly

10 document. Ladies and gentlemen, again this was an aircraft

11 maintenance facility. It was full of mechanics. To you and

12 to me perhaps, none of these are user-friendly documents.

13 This was their daily routine. This is what they worked

14 with. They worked with oxygen. Not just for oxygen

15 generators, they worked for oxygen systems in aircraft

16 continuously.

17 Let me talk for a few moments about Mr. Dunlap and

18 his argument with regard to Danny Gonzalez. In Mr. Dunlap's

19 argument, the great villain of the piece is Chris DiStefano.

20 You know, ladies and gentlemen, you can't have it both ways.

21 You can't have Chris DiStefano being the master liar and

22 also the big fumbler, who couldn't even square his story

23 with Michael Quan. Mr. Dunlap is right. Credibility is a

24 classic issue for the jury, and you must make your own

25 determination. Chris DiStefano came in here. He was an


- 12- 2-99



1 extraordinary inarticulate person in terms of speaking and

2 speaking quickly. He came in here and he was responsive to

3 questions. He answered. He did not embellish. If he was

4 such a big liar, if he was such a good liar, don't you think

5 he would have said, "Yeah, I saw Danny Gonzalez sign the

6 paper." Why would he balk at that if he was such a good

7 liar? The reality is, ladies and gentlemen, of all of the

8 bosses and the managers that we heard about at SabreTech, he

9 was the only one we heard of who was trying to improve the

10 system, who was concerned about the paperwork flow, who was

11 trying to limit access to it, trying to keep paperwork from

12 getting out of control. The very thing that Mr. Drechsler

13 was complaining about. It was David Wiles who was blowing

14 off mechanics, who didn't have shipping caps. It was Chris

15 DiStefano who was trying to improve the paperwork system

16 there. Danny Gonzalez cut him down because of it.

17 Mr. DiStefano made mistakes, he made bad mistakes.

18 Taking that turn over log was a terrible mistake. He was,

19 at best, an inattentive and at worst, worst than that in the

20 grand jury when he was asked whether he had any arrests. But

21 the reality is, he did tell the government about his

22 arrests. He had use immunity, so did very many other of the

23 mechanics from SabreTech.

24 The notion that his story is inconsistent with

25 Michael Quan, first of all, ladies and gentlemen, one of


- 12- 2-99



1 them testified, I forget which one. They weren't both asked

2 this, but one was, I think it was Mr. DiStefano, testified

3 that he had not with consulted with Mr. Quan. They had not

4 squared their stories together. They had talked about this

5 instance when it happened, but not recently. Two people

6 remembering the same incident, remember different things.

7 But were they inconsistent? No, they weren't inconsistent.

8 Because Michael Quan acknowledged that when Danny Gonzalez

9 came back into the work group, Michael Quan didn't remember

10 if he had anything else in his hands. He didn't say, no he

11 didn't have anything in his hands. He said no, I don't

12 remember. Even the fuel bio-bor card which Mr. Quan

13 remembered, he qualified it. He said, it wasn't a firm

14 recollection. His recollection of seeing Danny Gonzalez

15 coming into the work booth, take a card off the wall and

16 sign it in his presence, is not inconsistent with what Chris

17 DiStefano remembers, which was that Mr. Gonzalez had taken

18 work cards out of the booth, had handed some out to

19 mechanics, Michael Quan remembered Danny Gonzalez handing

20 papers out to mechanics, and that he had come back in, and

21 he had this one work card that was already signed, and put

22 it on the desk and said, see this C-Check will be done in no

23 time.

24 Chris DiStefano was the supervisor on that job. He

25 testified that it was his plan to put it in to operation, to


- 12- 2-99



1 lay out the paperwork when the work was to be done.

2 We had lots of testimony and lots of argument

3 about whether it was done during pre-dock or not done during

4 pre-dock. Bill Drechsler did not say that job was only done

5 during pre-dock.

6 Even Manny Quintana who said that would have been

7 his practice acknowledged that that work on the ice function

8 system, could also be done indoors. Chris DiStefano was the

9 supervisor on that project. The job could not have been

10 done in the time that that incident took on that morning.

11 We had testimony on that, not only from DiStefano, but also

12 from Drechsler. Indeed, DiStefano's estimate of the time

13 that it would take, was even shorter than Drechsler's. He

14 wasn't puffing and exaggerating. You may think he is, he is

15 a bit spacey, but that is not the same as concluding that he

16 lied.

17 Finally, we have the issue of Danny Gonzalez's

18 role apart from that work card, because the indictment,

19 ladies and gentlemen, states it this way. "It was part of

20 the manner and means of the conspiracy that Daniel Gonzalez

21 would and did oversee SabreTech's maintenance and repair

22 work including it's documentation so as to rush and compress

23 it, even if this meant skipping prescribed work steps and

24 falsely asserting that the work had been done."

25 Ladies and gentlemen, that's exactly what was


- 12- 2-99



1 proved. That day in December in his fight with Chris

2 DiStefano, not only did he bring back that work card for

3 work which had not been done, but also he broadcast to

4 everybody on that hangar floor not just to Chris DiStefano,

5 but everybody, because of how loud, and I don't want to say

6 brutal, but raw that argument was that the price for

7 fooling around with the system and trying to rearrange that

8 work flow is the ire of Danny Gonzalez. Remember what

9 Chris DiStefano said before that plan was put into place?

10 There had been a meeting. He had gone to a management

11 meeting with Jaime Galindo, Danny Gonzalez was there, Bill

12 Heral and he had laid out this plan and explained the

13 reasons for it, and it was to improve the paperwork system.

14 He got congratulations. Days later when he tried to put it

15 into place, he was undercut by Danny Gonzalez.

16 The incident in the booth. Danny Gonzalez's words

17 standing up, saying, "no, we have to get this paperwork done

18 now." Let me make sure again, that I get those exact words.

19 Now I've lost my quote. Danny Gonzalez stood up and said,

20 "we need this paperwork signed now." Ladies and gentlemen,

21 Danny Gonzalez was not a little nobody. He wasn't a

22 mechanic standing there whining. He was the boss. When the

23 boss is there breathing down your neck, we need this done

24 now, that is a statement that this jury is free to draw an

25 inference from. The government submits that it's a very


- 12- 2-99


1 obvious inference. He wanted the paperwork signed now.

2 Remember what this was in response to. It was in response

3 to a subordinate saying, I want to take time to read this

4 and Danny Gonzalez says, we need it signed now. Taber

5 wouldn't do it, but somebody else would.

6 THE COURT: You have about five minutes

7 Ms. Miller.

8 MS. MILLER: Thank you, Your Honor.

9 Was Chris DiStefano evasive in the grand jury? He

10 was shown documents. They were from the wrong airplane, the

11 wrong airline. He was shown ValuJet documents. Later on,

12 when he was shown Aserca documents, he identified the work

13 card. In the grand jury, he knew how long it was, he said it

14 was ten pages. That card is nine pages long, ladies and

15 gentlemen.

16 Finally, let me say a few words about Eugene

17 Florence. The false statement has to be material, yes but

18 the materiality isn't what exists in the defendant's mind.

19 It's an objective fact. You are going to hear from the

20 Court the instruction on materiality. That Eugene Florence

21 might have harbored a focus on the lanyard, does not make

22 his false statement true.

23 He thought that the generators were going to be

24 thrown away. He had no reason to understand that there was

25 going to be any shipment involved. Ladies and gentlemen,


- 12- 2-99



1 why is the generators being thrown away inconsistent with

2 their being shipped someplace? If his big concern was to

3 protect himself and the fellow workers, why didn't that end

4 once those things were in the boxes? Wasn't he concerned

5 about the people in shipping and handling? Now we have got

6 closed box. Now, we got people holding a box they don't

7 even know what's in it. He wasn't concerned about them.

8 Furthermore, ladies and gentlemen, what does the

9 work card say? Install shipping cap on firing pin. It's

10 called a shipping cap. The card alone is enough to alert

11 somebody to the prospect of shipping.

12 Ladies and gentlemen, we have come to the end of

13 what has been a compressed trial, where you have been asked

14 to assimilate a lot of information. As I said at the

15 beginning, it's a case about lies. Your verdict as

16 Mr. Dunlap said, is one that speaks the truth. These

17 defendants, it's hard for them to face the truth because the

18 false statements that they made are in a context that's very

19 difficult for anyone to face.

20 Ladies and gentlemen, you have a duty. You swore

21 to do it. The evidence is there. The evidence is more than

22 ample. It is more than beyond a reasonable doubt. It is

23 overwhelming as to the false statements that were made and

24 the regulations that were violated.

25 The government is confident that you will do your


- 12- 2-99



1 duty. You will return to deliberate. You will come back

2 and tell us all what the truth is, which is that these

3 offenses were committed and proved beyond a reasonable

4 doubt, and that the just verdict is guilty.

5 Thank you.

6 THE COURT: All right. Ladies and gentlemen,

7 just hold up your hand, would any of you like a brief

8 recess? We have 30, 45 minutes more to go while I instruct

9 you on the law. Anybody want to brief recess at this

10 point?

11 (Sidebar proceedings off the record)

12 THE COURT: All right. Ladies and gentlemen,

13 step out. Don't discuss the case.

14 [The jury leaves the courtroom].

15 THE COURT: Be seated. Mr. Moskowitz?

16 MR. MOSCOWITZ: Your Honor, on behalf of

17 SabreTech, the number of objections to Ms. Heck's closing

18 that I want to make for the Court. I'm not moving for a

19 mistrial but I want to bring the objections up, and ask for

20 the Court's instructions.

21 THE COURT: Ask me to do what? Tell the jury to

22 disregard something?

23 MR. MOSCOWITZ: Well, perhaps in, the course of

24 your instructions, Your Honor, there are certain things you

25 might -- well, I can go through, Your Honor.


- 12- 2-99



1 THE COURT: I have to have the motion first. You

2 are not moving for a mistrial, you are moving for me to

3 instruct the jury on something. I'm about to read them 58

4 instructions so another half page won't make any

5 difference.

6 MR. MOSCOWITZ: There are a number of separate

7 objections, Your Honor. At one point when Ms. Heck was

8 talking about the generators, the fact that defendants

9 argue that they had taken care with them and made them

10 careful to make them safe. She held up the photograph of

11 the generators retrieved after the fire, and showed it to

12 the jury and made the comment regarding those generators

13 quote "even in the crash is not enough for them" referring

14 to the defendants, which I believe, Your Honor, is a very

15 prejudicial statement and it's arguing in effect

16 callousness and suggesting somehow on behalf of these

17 defendants callousness with regard to what happened in the

18 crash.

19 THE COURT: Next item.

20 MR. MOSCOWITZ: The second issue, Your Honor,

21 goes to the conspiracy instruction. Ms. Heck was referring

22 to the Court's instruction that SabreTech is going to be

23 found guilty of a conspiracy if two or more of it's

24 employees are found to be members of that conspiracy. She

25 mentioned that the conspiracy can be composed of known and


- 12- 2-99



1 unknown conspirators, and she mentioned who the known were,

2 which are these defendants and those who have been

3 identified by the government, but then went on to suggest

4 that the jury could find SabreTech responsible in a

5 conspiracy for unknown conspirators.

6 Now the way it was phrased, that's, I believe, a

7 very confusing issue, was inviting the jury to speculate

8 that there are unknown persons who could have been members

9 of this conspiracy. There is no evidence or no allegations

10 of unknown persons being members of this conspiracy. When

11 a conspiracy where you inform the jury that is made of

12 known and unknown, means there's evidence, in fact, of

13 other specific persons and, perhaps, we just don't know

14 their names. But to suggest that they can find unknown

15 persons in the conspiracy, is asking that phrase "unknown"

16 to be used in the means of speculating who those persons

17 are. I would ask that the Court in it's instruction on

18 conspiracy makes reference to known and unknown, so that we

19 emphasize that the conspirators can be unknown by identity,

20 but there must be evidence that there are such unknown

21 persons.

22 Next, Your Honor, with regard to the definition of

23 materiality, Ms. Miller made the argument that the issue of

24 the shipping caps are material in this case because of the

25 crash, because of the absence of the shipping caps somehow


- 12- 2-99



1 led to the crash.

2 THE COURT: What did she say specifically?

3 MR. MOSCOWITZ: She said that they are shown to

4 be material because of the crash. The fact that the

5 shipping caps were not on there.

6 THE COURT: You don't -- you didn't jot down her

7 words she used.

8 MR. MOSCOWITZ: What I wrote down is, the shows,

9 the crash shows that, the fact of the crash shows that they

10 were material. That's all I wrote down.

11 THE COURT: All right.

12 MR. MOSCOWITZ: Materiality, Your Honor, with

13 regard to Mr. Florence and Mr. Valenzuela, and even with

14 regard to SabreTech, materiality is a legal issue only

15 comes up in the false statement counts. As Your Honor

16 knows, the instruction, the false statement on material

17 insofar as they are material to the agency, the FAA, which

18 includes jurisdiction they occur material to the FAA.

19 The legal issue of materiality to the crash,

20 that's not a legal issue in this case, and that really is

21 an improper legal argument. They may be causal, but the

22 only materiality issue with regard to the jurisdiction of

23 the agency reviewing the false statements. I believe

24 that's a very misleading argument. I simply ask that when

25 the Court defines issue of materiality, simply emphasizing


- 12- 2-99



1 that materiality in this case only refers to the

2 jurisdiction of the agency who was reviewing them. Not

3 with regard to the crash or the other causal issues.

4 The next issue, Your Honor, and this goes to the

5 question of arguing beyond the evidence. Ms. Miller says,

6 that the evidence shows that Mauro Valenzuela knew that

7 there was no shipping caps. We believe there is no such

8 evidence on that issue. The only evidence in the case of

9 Mauro Valenzuela, comes from Tommy Silvers who said that he

10 and Mauro Valenzuela took pains to make sure the work was

11 done. Silvers testified he saw the shipping caps. He did

12 not testify as to what Valenzuela saw. That argument is

13 without basis of the record, and I am not sure what your

14 instruction would be, but that is arguing beyond the facts.

15 The final issue is, goes with regard to the

16 evidence that the generators contributed to the fire or

17 caused the fire, which is an issue in Count XXIV. The Court

18 instruction of the elements on Count XXIV, which is the

19 destructive device is that the defendant SabreTech, one, the

20 jury can find liability. This is my final objection.

21 THE COURT: That's all right. Take your time.

22 MR. MOSCOWITZ: Your Honor, the elements of Count

23 XXIV are either that SabreTech placed or caused to be

24 placed a destructive device on the aircraft. That's one

25 way of proving it, or the second way, element is, made the


- 12- 2-99



1 aircraft or caused the aircraft to be made unworkable,

2 unusable or hazardous to work or use. To prove that

3 element of making the aircraft or cause the aircraft to be

4 made unworkable, unusable or hazardous to be work or use,

5 seems to be there, the evidence has to show that the

6 generators caused the fire. They made the aircraft

7 unworkable and unusable.

8 THE COURT: That is what you told me she said.

9 MR. MOSCOWITZ: No, she did not say that, on that

10 issue.

11 THE COURT: I just wrote down what you said. I

12 didn't write down what she said. I thought you just said

13 to me, just thirty seconds ago, Ms. Miller in her closing

14 arguments said "the generators caused the fire." This is

15 in reference to Count XXIV. What did she say that you

16 object to?

17 MR. MOSCOWITZ: What she said, Your Honor, is

18 that the evidence shows -- she is already argued, her

19 summary of evidence is less then what is required under

20 this one leg. She said that they contributed, they are

21 part of a recipe for catastrophe. She did not make the

22 necessary argument that the evidence shows that these

23 generators are the cause of making this aircraft --

24 THE COURT: But she didn't say that. Well, then

25 what are you objecting to? Are you objecting to what she


- 12- 2-99



1 did not say? I can't do anything about that.

2 MR. MOSCOWITZ: Your Honor, please, let me just

3 say. What I am saying is, her own characterization of the

4 evidence with regard to this leg, is that the evidence

5 doesn't show that the generators caused the aircraft to be

6 unworkable or unusable or hazardous to work with. What I

7 am arguing, therefore, Your Honor, is based on the

8 government's own characterization of evidence, the Court

9 should strike B as a basis upon which the jury may find

10 that SabreTech committed that crime. And simply proceed

11 under A, that SabreTech, they have to show placed or caused

12 to be placed a destructive device or substance in or upon

13 the proximity of the aircraft. The government's argument

14 shows that there is not sufficient evidence to justify the

15 instruction of finding liability on the grounds that

16 SabreTech made the aircraft or caused the aircraft to be

17 made unworkable or unusable, hazardous to be worked or

18 used.

19 THE COURT: Ms. Miller, your response to the one,

20 two, three, four, five objections to your closing argument,

21 starting with the position of the defense that even the

22 crash was not enough for them. Or start with any one you

23 want to.

24 MS. MILLER: Your Honor, the government certainly

25 feels that all of the objections are not well taken. The


- 12- 2-99



1 argument was carefully couched in terms of the facts in

2 this case. The comment about the crash was not enough for

3 them, was focused on the fact, which is evidence in this

4 case, and is exemplified by a photograph that oxygen

5 generators were discovered at the site following the crash

6 that did not have safety caps on them. The issue here is

7 the willfulness of SabreTech in not having safety caps, and

8 the argument illustrates that willfulness.

9 THE COURT: Tell me why it was necessary to say,

10 each the crash wasn't enough for them. What purpose was

11 that?

12 MS. MILLER: Because this occurred after the

13 crash. It further shows the --

14 THE COURT: I'm sorry. What -- you are talking

15 about the -- you are linking the defendants apparently in

16 that statement, at least that your contention to this

17 horrible tragedy, and you're saying that even the crash

18 wasn't enough for them. I don't know, what is that in

19 relation to what elements you have to prove or anything

20 else? As you said to the jury, it wasn't even necessary to

21 prove there was a crash.

22 MS. MILLER: That's correct, Your Honor, but we

23 do have to show willfulness, and the facts that there were

24 so many indicia they had of the hazards of these generators

25 that they ignored, and this was one further indicia which


- 12- 2-99



1 was also ignored.

2 THE COURT: All right. Anything else on the rest

3 of your summation on the unknown and known conspirators,

4 the caps and "the fact of the crash showed they were

5 material" and Valenzuela knew there were no safety caps and

6 that the argument about the generators causing the fire?

7 MS. MILLER: No, Your Honor, I think that the

8 objections themselves are insufficient and do not require

9 further elaboration.

10 THE COURT: Yes, ma'am?

11 MS. MOSCOWITZ: Your Honor, I want to make my

12 objection to, again, what I believe is wrong statements of

13 specific intent. There were two of them. Ms. Miller

14 started her argument by saying, does it make sense to you

15 that only the careful are subject to our laws, inviting the

16 jury to believe that being careless could be the same thing

17 as being guilty of a willful intent crime, which is the

18 only sorts of the charges against Mr. Florence, and, again,

19 stating exactly what I objected to before, that intent

20 means knowing what you are doing and voluntarily doing it.

21 These are specific --

22 THE COURT: What is your next one please?

23 MS. MOSCOWITZ: That's it.

24 THE COURT: Any others?

25 All right. The Court will grant the motion which


- 12- 2-99



1 is to instruct the jury to disregard the statement "even the

2 crash is not enough for them." Secondly, with respect to

3 the other motions, they are motions to modify the

4 instructions which we have worked on, all of us for many

5 hours, and is contained in, whatever it is here, 53 pages of

6 instructions. The Court makes the following findings, that

7 the general conspiracy instruction that I will give the jury

8 is sufficient to adequately make clear to the jury that the

9 government has to prove that there are two people that were

10 involved if this thing that worked for SabreTech that they

11 must prove beyond exclusion of a reasonable doubt, there

12 were two people in order for the liability to attach. But I

13 think that the instruction as drafted covers it. And we

14 will not modify it further.

15 With respect to the objection to the statement or

16 words to the effect that the fact of the crash showed that

17 the safety caps were material, that objection is overruled

18 for any modification of any instructions or further

19 elaboration to the jury.

20 With respect to the objection to the statement

21 allegedly made by Ms. Miller that Valenzuela knew there were

22 no safety caps, the objection is that that argues beyond the

23 facts. The jury is just going to have to recollect these

24 six hours of argument and sort out the facts as best they

25 can. I'm not going to go back and comment on anybody's


- 12- 2-99



1 closing arguments and say any lawyer went beyond the fact

2 unless that is abundantly clear that that happened. I

3 cannot make that determination. I did not make that finding

4 with respect to this objection. It is, therefore,

5 overruled.

6 The objection to the fact that Ms. Miller did not

7 say that the generators caused the fire with reference to

8 Count XXIV, that objection is overruled and the motion is

9 denied. Bring in the jury.

10 [The jury returns to the courtroom].


12 THE COURT: Thank you, be seated, ladies and

13 gentlemen, when we complete these instructions, you will be

14 given two copies to take with you into the jury room, so do

15 not feel compelled, although if you wish to do so you may.

16 Do not feel compelled to make notes. You will have two

17 copies of all the instructions with you in the jury room.

18 It's now my duty to instruct you on the rules of

19 law that you must follow in reaching your verdict in this

20 case. When I finish you will go into the jury room and

21 begin your discussions, your deliberation. It will be your

22 duty to decide whether the government has proven beyond a

23 reasonable doubt the specific facts necessary to find the

24 charged defendants guilty of the crimes charged in the

25 indictment.


- 12- 2-99



1 You must make that decision only on the basis of

2 the testimony and other evidence that you have heard during

3 this trial and not be influenced in any way by either

4 sympathy or prejudice for or against the defendants or the

5 government.

6 You must also follow the law as I explain it to

7 you whether you agree with that law or not; and you must

8 follow all of my instructions as a whole. You may not

9 single out or disregard any of the Court's instructions to

10 you on the law. The indictment or formal charge against any

11 defendant is not evidence of guilt. Indeed every defendant

12 is presumed be law to be innocent. The law does not require

13 a defendant to prove his innocence or to produce any

14 evidence at all. The government has the burden of proving a

15 defendant guilty beyond a reasonable doubt, and if it fails

16 to do so, you must find that defendant not guilty.

17 Thus while the government's burden of proof is a

18 strict or heavy burden, it is not necessary that the

19 defendants' guilt be proven beyond all possible doubt. It

20 is only required that the government's proof exclude any

21 reasonable doubt concerning the defendants' guilt.

22 A reasonable doubt is a real doubt based upon

23 reason and common sense after a careful and impartial

24 consideration of all the evidence in the case. Proof beyond

25 a reasonable doubt therefore is proof of such convincing


- 12- 2-99



1 character that you would be willing to rely and act upon it

2 without hesitation in the most important of the your own

3 affairs. If you are convinced that a defendant has been

4 proven guilty beyond a reasonable doubt, say so. If you are

5 not convinced, say so.

6 As I stated earlier, you must consider only the

7 evidence that I have admitted into the case. The term

8 evidence includes the testimony of the witnesses and the

9 exhibits admitted into the record. Anything that the

10 lawyers say to you in argument or during their statements or

11 objections throughout the trial is not evidence.

12 It is your own recollection and interpretation of

13 the evidence that controls. What the lawyers say is not

14 binding upon you. Also do not assume from anything that I

15 may have said during the trial of this case that I have any

16 opinion concerning the facts of this case. Except for the

17 instructions I'm giving to you on the law, you should

18 disregard anything I may have said that would indicate any

19 believe or feeling about any fact in this case. You folks

20 are the sole judges of the facts and the credibility of the

21 witnesses.

22 In considering the evidence may make deductions or

23 reach conclusions which reason and common sense lead you to

24 make, and not be concerned about whether the evidence is

25 direct or circumstantial. Direct evidence is testimony of


- 12- 2-99



1 one who asserts actual knowledge of a fact such as an

2 eyewitness. Circumstantial evidence is proof of a chain of

3 facts and circumstances tending to prove or disprove any

4 fact in dispute. The law makes no distinction between the

5 weight you give to either direct or circumstantial evidence.

6 In saying you must consider all the evidence, I

7 don't mean you must accept all the evidence as true or

8 accurate. You should decide whether you believe what each

9 witness had to say and how important that testimony was in

10 making that decision you may believe or disbelieve any

11 witness in whole or in part. The number of witnesses

12 testifying concerning any particular fact in dispute is not

13 controlling. In deciding whether you believe or do not

14 believe any witnesses I suggest you ask yourself a few

15 questions. Did the witness impress you as one who was

16 telling the truth? Did the witness have any particular

17 reason not to tell the truth? Did the witness have personal

18 interest in the outcome of the case? Did the witness have a

19 good memory? Did the witness have the opportunity and

20 ability to observe accurately the things he or she testified

21 about? Did the witness appear to understand the questions

22 and answer them clearly and directly? Did the witness's

23 testimony differ from other testimony of other witnesses on

24 the same matter?

25 You should also ask yourself whether there's


- 12- 2-99



1 evidence tending to prove that the witness testified falsely

2 concerning some important fact; or whether there was

3 evidence that at some other time the witnesses said or did

4 something or failed to say or do something different than

5 the testimony the witness gave before you during the trial.

6 Keep in mind, of course, that a simple mistake by a witness

7 does not necessarily mean the witness was not telling the

8 truth as he or she remembers it, because people naturally

9 tend to forget some things and remember other things

10 inaccurately. So, if a witness has made a misstatement,

11 you need to consider whether it was simply an innocent lapse

12 of memory or an intentional falsehood, and the significance

13 of that may depend on whether it has to do with an important

14 fact or with only an unimportant detail.

15 The testimony of some witnesses must be considered

16 with more caution than the testimony of other witnesses.

17 For example, a paid informer, or a witness who has been

18 promised that he or she will not be charged or prosecuted or

19 a witness who hopes to gain some more favorable treatment in

20 his or her own case may have a reason to make a false

21 statement because he wants to strike a good bargain with the

22 government. So, while a witness of that kind may be

23 entirely truthful in testifying, you should consider that

24 testimony with more caution than the testimony of other

25 witnesses.


- 12- 2-99



1 The knowledge of a technical subject matter might

2 be helpful to the jury. You remember the happiness

3 thermometer, you know when there's a fact that they are

4 talking about that's a fact. When you get into opinions

5 now, the technical subject matter somebody is going to tell

6 you about a chemical formula or something like that, then a

7 person who has special training or expertise in a technical

8 field is permitted to state an opinion about a technical

9 matter. Merely because such a witness expresses an opinion,

10 however, does not mean you must accept the opinion. Same as

11 with any other witness, it's up to you to decide whether you

12 rely upon it or do not rely upon it.

13 The parties have agreed to certain facts that have

14 been stated to you as what we call stipulations. I've

15 already explained that you should treat those facts as

16 proven. You don't need to have the person come in here and

17 tell you about it. If they have stipulated to that fact,

18 you can accept it and you should accept it.

19 We talked to you about taking notes in the trial.

20 Some of you have taken some notes as it goes along. You

21 will have your notes available during your deliberations,

22 but should make use of them only as an aid to your memory.

23 In other words, you should not give your notes any

24 precedence over your independent recollection of the

25 evidence or the lack of evidence and neither should be


- 12- 2-99



1 unduly influenced by the notes of other jurors. I emphasize

2 that notes are not entitled to any greater weight than the

3 memory of each juror of what the testimony was.

4 At all times material to the indictment, the

5 department of transportation is and was an executive

6 department of the United States Government.

7 At all times material to the indictment the United

8 States Congress enacted laws to provide and promote the

9 safety of flight of civil aircraft in air commerce and to

10 create rules, regulations and minimum standards in the

11 interest of safety. Congress empowered and directed the

12 secretary of transportation to carry out these duties. The

13 Federal Aviation Administration was an agency of the United

14 States within the department of transportation whose mission

15 was to promote safe flight of civil aircraft in air commerce

16 including by prescribing and enforcing minimum safety

17 standards for and oversight of enterprise and individuals

18 engaged in business of repairing and maintaining commercial

19 aircraft; and at all times material to the indictment, the

20 Federal Aviation Administration was empowered to issue

21 repair station certificates to qualifying business entities,

22 and mechanic certificates to qualifying individuals.

23 Certificated domestic repair stations were

24 required to maintain adequate records of their work, naming

25 the certificated mechanic or repair person who performed or


- 12- 2-99



1 supervised the work, and at all times material to the

2 indictment, the Federal Aviation Administration had the

3 right and duty to inspect repair stations and repair station

4 records to assess and determine repair station compliance

5 with standards for aircraft maintenance and repair

6 operations.

7 At all times material to the indictment, among the

8 duties and responsibilities of the department of

9 transportation was the oversight for and regulation of the

10 transportation of hazardous materials, including prescribing

11 and enforcing standards for the documentation of records of

12 transportation of hazardous materials. The secretary of

13 transportation could authorize an officer, employee or agent

14 to inspect records related to the transportation of

15 hazardous materials in commerce. Congress provided for the

16 department of transportation to regulate and enforce the

17 permitted means by which hazardous materials may be

18 transported in commerce so as to provide adequate protection

19 against the risks of life and property inherent in such

20 transport.

21 I'm now going to explain to the indictment in this

22 case and you will have copies of the indictment. They are

23 in the jury room and you can refer to it. There are 24

24 counts and it's lengthy. You will have that with you to

25 look at if you wish. In summary, though Counts 1 through 6


- 12- 2-99


1 of the indictment charge offenses relating to false

2 statements in documents including aviation maintenance

3 records. Count 1 charges that SabreTech, Daniel Gonzalez

4 and Eugene Florence, knowingly and willfully conspired

5 together to commit offenses against the United States. That

6 is to make and cause to be made materially false and

7 fraudulent statements and representations in matters within

8 the jurisdiction of the United States, namely documents

9 including aviation maintenance records.

10 Counts 2 through 6 charge the commission of what

11 are referred to as substantive offenses, namely that the

12 charged defendants made false statements with respect to

13 aviation records specified in each count. Shortly, I will

14 explain the law governing these substantive offenses, but

15 you will note that the defendants are not charged in Count 1

16 with committing a substantive offense; rather they are

17 charged with having conspired to do so.

18 Counts 7 through 23 of the indictment charge

19 various crimes relating to violations of the Federal

20 hazardous materials regulations. SabreTech is charged with

21 the violation of Title 49 U.S.C. Section 5124, in the odd

22 numbered Counts 7 through 23. That is specifically 7, 9,

23 11, 13, 15, 17, 19, 21, 23. SabreTech is also charged with

24 a different violation of Title 29, Title 49, U.S.C. Section

25 46312 in the even numbered counts from VIII to XXII. These


- 12- 2-99



1 Counts are 8, 10, 12, 14, 16, 18, 20 and 22. I will explain

2 these hazardous materials provisions to you shortly.

3 Finally, Count 24 of the indictment charges the

4 defendant SabreTech with willful placement of a destructive

5 device on or in the proximity of an aircraft in violation

6 of Title 18, U.S.C. Section 32.

7 As indicated Counts 1 through 6 of the indictment

8 charge offenses dealing with false statement in aviation

9 maintenance records specifically, Count 1 charges

10 conspiracy to violate Title 18, Section 371, and Counts 2

11 through 6 charge violations of Title 18, U.S.C. Section

12 1001 and Section 2.

13 Now with respect to Count 1, Title 18, U.S.C.

14 Section 371 makes it a separate Federal crime or offense for

15 anyone to conspire or agree with someone else to do

16 something which if actually carried out would amount to

17 another Federal crime or offense. So under this law a

18 conspiracies and agreement or a kind of partnership in

19 criminal purpose in which each member becomes the agent or

20 partner of every other member. In order to establish a

21 conspiracy offense, it is not necessary for the government

22 to prove all the people named in the indictment were members

23 of the scheme or that those who were members had entered

24 into any formal or written type of agreement or that the

25 members planned together all the details of the scheme or


- 12- 2-99



1 the overt acts that the indictment charges would be carried

2 out in and effort to commit the intended crime. Also,

3 because the essence of conspiracy offense is the making of

4 the agreement itself followed by the commission of any overt

5 act, it is not necessary for the government to prove the

6 conspiracy is actually succeeded in accomplishing their

7 unlawful plan. What the evidence in the case must show

8 beyond a reasonable doubt is 1) that two or more persons in

9 some way or manner came to a mutual understanding to try to

10 accomplish a common and unlawful plan as charged in the

11 indictment, 2) that the defendant, knowing the unlawful

12 purpose of the plan, willfully joined in the plan. 3) that

13 one of the conspirators during the existence of the

14 conspiracy knowingly committed at least one of the methods

15 or overt acts described in the indictment and 4) that such

16 overt act was knowingly committed at or about the time

17 alleged in an effort to carry out or accomplish some object

18 of the conspiracy.

19 And overt act is any transaction or event even

20 one which may be entirely innocent when considered alone,

21 but which is knowingly committed by a conspirator in an

22 effort to accomplish some object of the conspiracy. A

23 person may become a member of a conspiracy without knowing

24 all the details of the unlawful scheme, and without knowing

25 who all the other members are. So if a defendant has a


- 12- 2-99



1 general understand of the unlawful purpose of the plan and

2 knowingly and willfully joined in that plan on one

3 occasion, that is sufficient to convict that defendant of a

4 conspiracy even though the defendant did not participate

5 before and even though the defendant played only a minor

6 part.

7 Of course, mere presence at the scene of and

8 a transaction or event, or the mere fact that certain

9 persons may have associated with each other, and may have

10 assembled together and discussed common aims and interests,

11 does not necessarily establish proof of a conspiracy.

12 Also, a person who has no knowledge of a conspiracy, but

13 who happens to act in a way which advances some purpose of

14 one, does not thereby become a conspirator. Finally

15 SabreTech, Inc. is alleged to be a member of the charged

16 conspiracy. You may find SabreTech guilty of that

17 conspiracy only if you if you determine beyond a reasonable

18 doubt that two or more of its employees or agents willfully

19 joined that conspiracy.

20 You are instructed that the fact that Daniel

21 Gonzalez was a supervisor in the maintenance section of

22 SabreTech's Miami repair station and may have been

23 vicariously held out as Assistant Vice President of

24 Maintenance and Director of Maintenance at SabreTech's

25 Miami repair station, does not make Mr. Gonzalez criminally


- 12- 2-99



1 responsible for any acts of those SabreTech employees

2 directly or did directly under the supervision of

3 SabreTech's Miami station. The mere fact of a status and

4 the possession of SabreTech's Miami repair shop should not

5 be considered by you in evaluating the government's case

6 against Mr. Gonzalez thus if you find that persons other

7 than Gonzalez commit the criminal act charged in the

8 indictment it would be improper for you to infer, you must

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

10 because he was the supervisor in the SabreTech maintenance

11 section of SabreTech's repair station and may have been

12 variously held out as Assistant V.P. of Maintenance and

13 Director of Maintenance all at the SabreTech Miami station.

14 Finally, SabreTech, Incorporated is allege to be

15 a member of the charged conspiracy. I've already told you

16 this, you may find SabreTech guilty of that only if you

17 find, beyond a reasonable doubt that two or more of it's

18 employees or agents willfully joined the conspiracy.

19 All right, now, then ladies and gentlemen, if

20 anybody needs prodding with the happiness thermometer or are

21 you all awake still? Good, this is a lot of stuff. You

22 will have this when you go back to the jury room. If

23 anybody wants a recess just hold up your hands. No problem.

24 We are about a third of the way through of this book.

25 Counts 2 through 6 of the indictment charges


- 12- 2-99



1 violation of Title 18, U.S.C. Section 1001. That provision

2 makes it a Federal crime or offense for anyone to willfully

3 make a false or fraudulent statement to department or agency

4 of the United States. A defendant can be found guilty of

5 this offense only if all the following facts are proven

6 beyond a reasonable doubt. 1) that the defendant knowingly

7 made a false statement or made or used a false document in

8 relation to a matter within the jurisdiction of a department

9 or an agency of the United States as charged; 2), that the

10 false statement or document related to a material matter; 3)

11 that the defendant act willfully and with knowledge of the

12 falsity. A statement or document is false when made or used

13 if it is untrue, and it is then known to be untrue by the

14 person making it. It is not necessary, however, to show

15 that the government agency was, in fact, deceived or misled.

16 Both the department of transportation and the FAA are

17 agencies of the United States and the completion of aviation

18 maintenance records to record work relating to an aircraft

19 or aircraft parts, such as those charged in counts 2 through

20 6 is a matter within the jurisdiction of those agencies,

21 department of transportation and Federal Aviation

22 Administration. The making of false statement or the use of

23 a false document is not an offense unless a falsity related

24 to a material fact. A misrepresentation is material if it

25 has a natural tendency to effect or influence or is capable


- 12- 2-99



1 of effecting or influencing the exercise of a governmental

2 function.

3 The test of whether a false statement has the

4 capacity to impair or pervert the functioning of a

5 government agency, in other words, a misrepresentation is

6 material if it relates to an important fact as distinguished

7 from some unimportant or trivial detail.

8 Good faith is a complete defense in charges 1

9 through 6 of the indictment which allege that a false

10 statement was made by the defendants in regard to a matter

11 within the jurisdiction of a U. S. government department or

12 agency in violation of Section 1001 of Title 18. Good faith

13 on the part of the defendant is inconsistent with the

14 requirement of willfulness which is an essential part of

15 these charges. The burden of proof is not on the defendants

16 to prove their good faith. Of course, since the defendant

17 has no burden to prove anything, the government must

18 establish beyond a reasonable doubt that the defendant acted

19 with specific intent as charged in the indictment.

20 One who expresses an honestly held opinion or

21 honestly formed belief is not chargeable with willful intent

22 to falsify even though the opinion is erroneous or the

23 belief is mistaken and, similarly, evidence which

24 establishes only that the person made a mistake in judgment

25 or an error in management, or was careless, does not


- 12- 2-99



1 establish a willful intent to falsity. On the other hand an

2 honest belief on the part of the defendant that his actions

3 were sound and would ultimately succeed would not in and of

4 itself constitute good faith as used in these instructions

5 if in caring out these actions, the defendant knowingly made

6 a false or fraudulent statement willfully and with knowledge

7 of the falsity.

8 It is the theory of the defense of Eugene Florence

9 that he acted in good faith in all the work that he did on

10 aircraft N802VV and N803VV, including his handling of oxygen

11 generators in carefully wrapping each lanyard around the

12 firing mechanism, around the generator body and then taping

13 the ends of the lanyard to a generator. Mr. Florence

14 contends that he acted without any bad purpose to disobey or

15 disregard the law or become a member of any conspiracy.

16 You are instruct that it is the position and

17 defense of Daniel Gonzalez, that he is not guilty of the

18 conspiracy charged in Count 1, and he is not guilty of

19 making false statements as charged in count 2. It is his

20 position that the government has failed to carry a strict

21 and heavy burden of proving the charges against him beyond

22 and to the exclusion of every reasonable doubt. It is Danny

23 Gonzalez's position, that the government witness,

24 Christopher DiStefano, falsely testified for reasons of his

25 own such as anger, resentment and to secure immunity from


- 12- 2-99



1 prosecution for destruction of evidence from the government

2 by providing a target for prosecution other than himself.

3 It is further Daniel Gonzalez's theory of the defense that

4 he was, at all times, acting in an honest and lawful manner

5 as supervisor of SabreTech's maintenance department to

6 ensure the aircraft maintenance repair involved in an

7 aircraft maintenance repair were completed correctly and in

8 a timely manner.

9 It is Mr. Gonzalez's possession that at no time

10 did he conspire or agree with anyone to violate the law nor

11 did he, in any way, urge or direct anyone any law including

12 the making of false statements regarding a maintenance

13 repair of aircraft.

14 It is SabreTech's theory of defense that it's

15 employees and agents acted in good faith in all the work

16 they did on the two aircraft, 802VV and 803VV, including the

17 handling of oxygen generators in carefully wrapping as I've

18 told you lanyards around the firing mechanism, around the

19 generator body and taping the ends of the lanyard to the

20 generator. SabreTech contends that it's employees and

21 agency acted without any bad purpose to disobey or disregard

22 the law.

23 Concerning Count 24 and the charge in Count 24

24 that SabreTech knowingly and willfully caused a destructive

25 device or substance to be placed on a commercial aircraft,


- 12- 2-99



1 it is SabreTech's theory of defense, that no agent or

2 employee of SabreTech, willfully placed what he knew to be a

3 destructive device on ValuJet plan, thereby endangering the

4 safety of the plane.

5 A reckless disregard of the -- we are going now

6 back -- moving from the theories of the defenses, of the

7 defense's position on to my general instructions. They all

8 get the same weight, but I'm now about to move into a

9 different area. You should consider all of these

10 instructions when you take up your decision on your verdict,

11 giving no undue weight to one over the other.

12 A reckless disregard of the truth, with a

13 conscious purpose to avoid learning the truth is sufficient

14 to show a false statement was made willingly and with

15 knowledge of its falsity.

16 Moving to Counts 7 to 23, they charge certain

17 crimes relating to violations of the Federal Hazardous

18 Material Regulations. At all times material to the

19 indictment, the hazardous materials regulations period at 49

20 CFR, Code of Federal Regulations, Parts 171 - 180, and

21 specified requirements for the safe transportation of

22 hazardous materials in commerce.

23 These regulations applied to each person who

24 performed or caused to be performed functions relating to

25 the transportation of hazardous materials, including


- 12- 2-99



1 determination of compliance with, and basic conditions for

2 offering hazardous materials for transport, filling

3 packages, marking and labeling packages, preparing shipping

4 papers, handling, loading, securing and segregating packages

5 within a transport vehicle or cargo hold, transporting

6 hazardous materials and, generally prescribing requirements

7 for classification, packaging hazardous communication,

8 including reporting, handling and transportation of

9 hazardous materials.

10 THE COURT: With respect to Counts 7 through 23,

11 I will be providing you instructions on certain statutes

12 and regulations making reference to hazardous materials and

13 hazardous waste. At all times material to the indictment,

14 the term "hazardous material" is meant a substance or

15 material which has been determined by the secretary of

16 transportation to be capable of posing an unreasonable risk

17 to health, safety, and property when transported in

18 commerce, and has been so designated.

19 Hazardous materials were set forth in a table in

20 the code of Federal regulations at 49 CFR 172.101 by the

21 chemical name or hazardous characteristic categories such as

22 corrosive, toxic, flammable and oxidizing materials. The

23 secretary of transportation has designated sodium chlorate

24 as a hazardous material and had designated oxidizing solids

25 as a hazardous material. Oxidizer means material that may


- 12- 2-99



1 generally, by yielding oxygen cause or enhance the

2 combustion of other materials.

3 At all times material to the indictment, the term

4 "hazardous waste" included a solid waste that exhibited the

5 characteristic of ignitibility.

6 In the indictment, you'll note that Counts 7

7 through 22, the counts are matched into pairs. The first

8 count of the pair charges the defendant SabreTech with

9 willful violation of a particular regulation in violation of

10 Title 29, U.S.C. Section 5124. The second count of the pair

11 charges in violation of Title 49, U.S.C. Section 46312,

12 based on the regulatory violation described in the first

13 count of the pair. You all are still with me right? Good.

14 I'm glad you are nodding your head. Bear with me, but you

15 can go study this later if you want to. You'll have it with

16 you.

17 Let me simplify it a little bit, the odd numbered

18 Counts 7 through 21 all charge violations of Section 5124 of

19 Title 49. The even numbered Counts 8 through 22, charge

20 violation of Section 46312 of Title 49. Count 23 also

21 charges the defendant SabreTech with a willful violation of

22 another Section Title 49, U.S.C. Section 5124.

23 Now, then the elements of these offenses. The odd

24 numbered ones, Counts 7 through 23, odd numbers, 7, 9, 11

25 and so on right through 23, charge the defendant SabreTech,


- 12- 2-99



1 Inc. with willfully violating Section 5124. Now that

2 Section 5124 of Title 49, makes it a Federal crime for

3 anyone to willfully violate a Federal hazardous materials

4 regulation. A defendant can be found guilty of this offense

5 only if all the following facts are proven beyond a

6 reasonable doubt: 1) that the defendant violated a Federal

7 hazardous materials regulation as alleged in the indictment,

8 and that the defendant violated that regulation willfully.

9 I instruct you as a matter of law that the regulations set

10 out in the counts charging violation of Section 5124 are

11 Federal hazardous materials regulations that fall within the

12 scope of Section 514124. I will explain those regulations

13 to you shortly.

14 Now the even numbered Counts 8 through 22, 8, 10

15 12, you know, charge the defendant SabreTech with violating

16 Title 49 U.S.C. Section 46312. That provision of the law

17 makes it a Federal crime for anyone in violation of a

18 regulation relating to the transportation of hazardous

19 material to willfully deliver or cause to be delivered

20 property containing hazardous material to an operator of a

21 civil aircraft for transportation in air commerce or

22 recklessly cause the transportation in air commerce of such

23 property.

24 Specifically, as stated is in the indictment, the

25 defendant SabreTech is alleged to have violated this


- 12- 2-99



1 statute in two different ways. That is, the indictment

2 charges the defendant violated Section 46312 of Title 49,

3 1) by willfully delivering or causing to be delivered

4 property containing hazardous material to an carrier or an

5 operator of the civil aircraft for transportation in air

6 commerce in violation of Federal regulation relating to the

7 transportation of hazardous material and 2), by recklessly

8 causing the transportation in air commerce of property

9 containing hazardous material in violation of Federal

10 regulations relating to transportation of hazardous

11 material.

12 I'm just waiting for her to catch with me. I've

13 been going a little fast. But she's very good.

14 Now in such a case, when we are talking about the

15 elements of proof now, in such a case, it's not necessary

16 for the government to prove, let me go back. This is again

17 with reference to even numbered ones, 8 through 22, In such

18 a case, it is not necessary for the government to prove that

19 the defendant SabreTech actually violated Title 49, U.S.C.

20 Section 46312 by both of these ways. It would be sufficient

21 if the government proves beyond a reasonable doubt that the

22 defendant SabreTech violated this section of the code in one

23 of these ways. That event, however, in order to return a

24 verdict of guilty, you must unanimously agree upon which of

25 these two ways the defendant SabreTech violated this section


- 12- 2-99



1 of the code.

2 Therefore, SabreTech can be found guilty of

3 violating Title 49 of Section 46312, only if all the

4 following facts are proven beyond a reasonable doubt: 1)

5 that SabreTech either willfully delivered or caused to be

6 delivered property containing hazardous material, to an air

7 carrier or an operator of a civil aircraft for

8 transportation in air commerce as agreed to unanimously by

9 you the jury, or recklessly caused the transportation in air

10 commerce of property containing hazardous material as agreed

11 to you unanimously by the jury and, 2) that the action was

12 in violation of regulations or regulations related to the

13 transportation of hazardous material as alleged in the

14 indictment. I instruct you, as a matter of law, that the

15 regulations set out in the counts of this section that we

16 have been talking about, 46312, are regulations related to

17 the transportation of hazardous material that fall within

18 the scope of this section of the law. I'll explain the

19 regulation to you shortly.

20 As part of the charges under Title 49, U.S.C.

21 Section 5124 and Section 46312, which I've just have

22 explained to you, Counts 7 and 8 of the indictment,

23 reference a violation of Title 49, Code of Federal

24 Regulations, Section 171.2(a). Now that section provides

25 that no person may offer or accept hazardous material for


- 12- 2-99



1 transportation in commerce, unless a hazardous material is

2 properly classed, described, packaged, marked, labeled, and

3 in a condition for shipment as required or authorized by the

4 hazardous materials regulations.

5 Now, the regulations mentioned in Section 171.2(a)

6 include those found in Title 49, Code of Federal

7 Regulations, Section 172.202(a)(1) through (5). Sections

8 172.300(a) and 172.301(a), Section 173.24(e)(4), Section

9 173.24(b)(2) and Section 173.24(a)(3) will be explained to

10 you shortly. I bet you can't weight, can you?

11 As part of the charges under Title 49, Section

12 5124 and Section 46312, Counts 9 and 10 of the indictment,

13 reference a violation of Title 49 Section 171.3(a), which

14 states that no person may offer for transportation

15 interstate commerce, a hazardous waste except in accordance

16 with the requirement of subchapter C of the hazardous waste

17 regulations. That subchapter C includes the regulations and

18 here we go again, Title 49 Section 172.20(a)(1) through (5),

19 172.300 and 172.301(a), Section 173.24(e)(4), -- sounds like

20 that movie whatever it was -- Section 173 -- obviously,

21 you're just going to know the actual numbers you're going to

22 have to come back and read this. It's pointless to even try

23 to tell you what they are. I've got to get into the English

24 language at some point and tell you what this is.

25 All right. Counts 11 and 12 are alleged to be a


- 12- 2-99



1 violation of Section 172.200(a)(1) through (5), that's a

2 hazardous materials regulations within the scope of the

3 regulations reference had in Count 7, 8, 9 and 10.

4 172.201(a)(1) through (5) states that the person who offers

5 a hazardous material for transportation shall include a

6 shipping description of the hazardous material on the

7 shipping paper. Under this regulation, that shipping paper

8 must include the following, and there are five things: 1)

9 the proper shipping name as prescribed under the

10 regulations, 2) the hazardous class or division prescribed

11 for the material under the regulations, 3) the

12 identification number prescribed for the material in the

13 regulations, 4) the packing group, in Roman numerals,

14 prescribed for the material under the regulations, and, 5)

15 the total quantity of hazardous material covered by the

16 description.

17 With reference to the allege violations of these

18 Section of the law, Title 49, and 13 and 14 of the

19 indictment, that reference is Code of Federal Regulations

20 Section 172.300 and 172.310(a), each of these regulations

21 are part of the hazardous material regulations that fall

22 within the scope of regulations referenced in Count 7, 8, 9,

23 and 10.

24 Now these two sections, 172.300 and 172.301 state

25 that the person who offers hazardous material for


- 12- 2-99



1 transportation in none-bulk packaging is required to mark

2 that package with a proper name and identification number

3 set out in Title 49, Code of Regulations, Section 172.101.

4 Now that section states that the proper name and

5 identification number for sodium chlorate is UN1495. And

6 that the proper name and identification for oxidizing solids

7 not otherwised specified as UN1479.

8 Counts 15 and 16 of Title 49, reference the Code

9 of Regulations again, and talks about Section 173.24(e)(4).

10 That Section falls within the scope of regulations for

11 referenced in Counts 7, 8, 9 and 10. 173.24(e)(4) states

12 that these hazardous materials may not be packed or mixed

13 together in the same outgoing package with other hazardous

14 or none-hazardous materials, if such materials are capable

15 of reacting dangerously with each other and causing

16 combustion or dangerous evolution of heat.

17 Now, Counts 17 and 18, and we are almost halfway

18 through folks. Count 17 and 18 of the indictment again

19 talks about Title 49. The regulations Section 173.24(b)(2)

20 which is a hazardous material regulations that falls within

21 the scope of the regulation referenced in Counts 7, 8, 9

22 and 10. 173.24(b)(2) states each package used for shipping

23 of hazardous materials shall be designed, constructed,

24 maintained, filled, it's contents so limited and closed, so

25 that under conditions normally incident to transportation,


- 12- 2-99



1 the effectiveness of the package will not be substantially

2 reduced. The court instructs the juries normally incident

3 to transportation the effectiveness of the package will not

4 be substantially reduced.

5 Now with respect to Counts 19 and 20, we move on

6 to, we are still in Title 49, Section 5124 and 4632, but

7 this talks about the Code of Federal Regulations, Section

8 173.24a(a)(3), which is a hazardous material regulation. It

9 falls within the scopes of regulations referenced in Counts

10 7, 8, 9 and 10.

11 This Section 173.24a(a)(3) which discusses

12 packaging requirements for the transportation or hazardous

13 materials states that the cushioning material must not be

14 capable of reacting dangerously with the contents of the

15 inner packaging.

16 Now with reference to Counts 21 and 22, the

17 indictment -- we are still talking about Title 49 Section

18 5124 and 46312. Section 173.27(b)(3) is a hazardous

19 material regulations which falls within the scope of

20 regulations referenced in Counts 7, 8, 9 and 10.

21 Now 173.27(3)(b) states that the maximum quantity

22 of a hazardous material and a package that may be offered

23 for transportation on board a passenger carrying aircraft,

24 may not exceed that quantity prescribed for that material in

25 the hazardous materials regulations. Under these


- 12- 2-99



1 regulations sodium chlorate is a hazardous material and the

2 maximum quantity of sodium chlorate that may be offered for

3 transportation aboard a passenger carrying aircraft may not

4 exceed five kilograms.

5 As part of the charges under Title 29, Count 23

6 of the indictment, we have a reference to Title 49 Code of

7 Regulations, Sections 172.702(a) and 172.704(a)(2). Those

8 sections state that a haz-mat, h-a-z-m-a-t, employer shall

9 ensure that each of it's haz-mat employees is trained in

10 accordance with the requirement of the regulation. One of

11 those requirements is that each haz-mat employee shall be

12 provided function specific training concerning requirements

13 of the hazardous materials regulations which are

14 specifically applicable to the functions that the employee

15 performs. A haz-mat employer means a person including a

16 corporation who uses one or more of it's employees in

17 connection with transporting hazardous material in commerce

18 and causing hazardous materials to be transported and

19 shipped in commerce. A Haz-mat employee means a person who

20 is employed by a haz-mat employer, and a person who

21 directly affects hazardous materials transportation safety.

22 This terms includes an individual employer who, during the

23 course of employment, 1) loads, unloads, or handles

24 hazardous materials, 2) manufactures, tests, reconditions,

25 repairs, modifies, marks or otherwise represents containers


- 12- 2-99


1 drums, packaging as qualified for use in the transportation

2 of hazardous materials, 3) prepares hazardous materials for

3 transporting, 4) is responsible for safety of transporting

4 hazardous materials, or 5) operates vehicles used to

5 transport hazardous material.

6 The training must constitute a systematic program

7 that ensures the haz-mat employee has familiarity with the

8 general provisions of the hazardous materials regulations;

9 is able to recognize and identify hazardous materials; has

10 knowledge of the specific requirements of the hazardous

11 materials regulations application to functions performed by

12 the employee, and has knowledge of emergency response

13 information, self-protection measures and accident

14 prevention methods and procedures.

15 Now Title 24 of the indictment charges SabreTech

16 with a willful violation of Title 18, U.S.C. Section 32.

17 That section of the code makes it a Federal crime for any

18 person to willfully place or cause to be placed a

19 destructive device or substance in, or in proximity to, or

20 otherwise make or cause to be made unworkable or unusable,

21 or hazardous to work or use, any civil aircraft used,

22 operated or employed in interstate air commerce, if such

23 placing or causing to be placed or such making or causing to

24 be made is likely to endanger the safety of any such

25 aircraft. The defendant SabreTech can be found guilt of


- 12- 2-99



1 this offense only if all the following can be proved beyond

2 a reasonable doubt: 1) a destructive substance within the

3 meaning of this statute -- I think you all are following, I

4 should jump to the next page and come back to this -- the

5 following facts have to be proved: 1) that the defendant

6 SabreTech knew that the object is a destructive device or

7 substance within the meaning of the statute, 2) that

8 SabreTech either placed or caused to be placed, a

9 destructive device or substance in, upon or in proximity to

10 an aircraft or made the aircraft or caused the aircraft to

11 be made unworkable, unstable or hazardous to work or use, 3)

12 that these acts were likely to endanger the safety of the

13 aircraft, 4) that the defendant SabreTech acted willfully

14 and, 5) that the aircraft was used, operated or employed in

15 interstate commerce.

16 Now I'm going to go back to the bottom of the page

17 and read a definition of destructive device or substance. A

18 destructive substance within the meaning of this statute

19 means any explosive substance, flammable material, infernal

20 machine or other chemical, mechanical or radioactive device

21 or matter of combustible, contaminative, corrosive, or

22 explosive nature -- then is when I got into the elements--

23 To prove violation of Section 32, the evidence must show

24 beyond a reasonable doubt those five things that I just read

25 to you.


- 12- 2-99



1 Now as I instruct you, the government must show

2 that the defendant SabreTech either (A) placed or caused to

3 be placed a destructive device or substance in, upon or in

4 proximity to or (B) caused the aircraft to be made

5 unworkable, unstable or hazardous to work or use. It's not

6 necessary for the government to prove that the defendant

7 SabreTech actually violated Title 18, U.S.C. Section 32 by

8 both of these ways.

9 It is sufficient if the government proves beyond a

10 reasonable doubt the defendant SabreTech violated that

11 statute in one of the these ways. In that event, however,

12 in order to return a verdict of guilty, you must unanimously

13 agree upon which of the two ways the defendant SabreTech

14 violated Title 18, United States Code, Section 32. -- This

15 becomes clearer when you read the verdict form, at least we

16 certainly hope it does -- As noted before, SabreTech can be

17 found guilty of this offense, let me back up. As noted

18 before, before SabreTech can be found guilty of this

19 offense, the government must prove that the corporation

20 acted willfully in placing or causing to be placed a

21 destructive device in, upon or in the proximity of an

22 aircraft, or otherwise making the aircraft or causing the

23 aircraft to be made unworkable, unusable or hazardous to

24 work or use. The government is not required to prove that

25 the defendant SabreTech acted with an intent or motive to


- 12- 2-99



1 damage, destroy or disable the aircraft.

2 I've already given you this definition. A

3 destructive substance means explosive, flammable, infernal

4 machine, or other chemical or mechanical device or matter of

5 a combustible, contaminative, corrosive, or explosive

6 nature. The term interstate commerce includes commerce

7 between one state and another state.

8 You'll note the indictment charges the offenses

9 were committed on or about a certain date. The government

10 doesn't have to prove with certainty the exact date of the

11 alleged offense. It is sufficient if the government proves

12 beyond a reasonable doubt that the offense was committed on

13 a date reasonably near the date alleged.

14 The term "knowingly" as that term is used from

15 time to time in these instructions, means that the act was

16 done voluntarily and intentionally and not because of

17 mistake or accident. "Willfully," as that term has been

18 used, means that the act was committed voluntarily and

19 purposely, with specific intent to do something the law

20 forbids. That is, with bad purpose to disobey or disregard

21 the law. The term "reckless" as that terms is used in the

22 indictment, means that the act was committed with conscious

23 disregard of a known substantial risk that the act was

24 unlawful.

25 Now, a corporation is a legal entity that may only


- 12- 2-99



1 act through its agent. Agents of the corporation are

2 officers, directors, employees and certain others. A

3 corporate defendant is entitled the same individual and

4 impartial consideration of the evidence that the jury gives

5 to a personal defendant. A corporation may be found guilty

6 of the offenses charged or found not guilty of the offenses

7 charged under the same instructions that apply to a personal

8 defendant. To find the corporate defendant guilty, you must

9 find beyond a reasonable doubt three things: 1) that each

10 essential element of the crime charged against the

11 corporation is committed by one or more of it's agents, 2)

12 that in committing those acts the agent or agents intended

13 or at least in part, to benefit the corporation and, 3) that

14 each act was within the scope of employment of the agent who

15 committed it.

16 To be within the scope of an agent's employment,

17 it must relate directly upon the performance of the agent's

18 general duties of the corporation. It is not necessary that

19 the act itself had been authorized by the corporation. If

20 an agent was acting within the scope of the employment, the

21 fact that the agent's act was illegal contrary to his

22 employers instructions or against the corporation's policy,

23 will not relieve the corporation for responsibility for it.

24 You may, however, consider the existence of

25 corporate policies and instructions with the diligence of


- 12- 2-99



1 efforts to enforce them in determining whether the agent was

2 acting with the intent to benefit the corporation, or within

3 the scope of his employment. If you find that an act of an

4 agent was not committed within the scope of the agent's

5 employment or the intent to benefit the corporation, then

6 you must consider whether the corporation later approved the

7 act. An act is approved if, after it is performed, another

8 agent or the corporation, having full knowledge of the act

9 and acting within the scope of his employment and with the

10 intent to benefit the corporation, approves the act by his

11 words or conduct. A corporation is responsible for any act

12 or omission approved by its agents.

13 The knowledge of a corporation constitutes the

14 collective knowledge of it's agents. The corporation is

15 deemed to know about a legal requirement if it's agents knew

16 as a part of that requirement, and if the sum of the agent's

17 knowledge amounted to knowledge that such a legal

18 requirement existed. A corporation is deemed to act

19 willfully, if one or more of its agents in the scope of

20 their authorization acted willfully, or if, as an

21 organization, that corporation consciously avoided learning

22 and observing a pertinent legal requirement or acted with a

23 flagrant or organizational indifference to such a legal

24 requirement.

25 A person is responsible for acts which he performs


- 12- 2-99



1 or causes to be performed on behalf of a corporation, just

2 as he is responsible for the acts performed on his own

3 behalf. This is so each even if he acted upon the

4 instructions of his superior.

5 A separate crime or offense is charged against one

6 or more of the defendants in each count of the indictment.

7 Each charge, and there are 24 of them, and the evidence

8 pertaining to it, should be considered by you separately.

9 Also, the case of each defendant should be considered

10 separately and individually. The fact that you may find one

11 or more of the defendants guilty or not guilty of any of the

12 offenses charges should not effect your verdict as to any

13 other offense or any other defendant. I caution you,

14 members of the jury, that you are here to determine from the

15 evidence in this case whether each defendant is guilty or

16 not guilty. Each defendant is on trial only for the

17 specific offense alleged against that particular defendant

18 in the indictment. Also, the question of punishment should

19 never be considered by the jury in any way in deciding the

20 case. If a defendant is convicted, the matter of punishment

21 is solely up to the Judge.

22 The guilt of a defendant in a criminal case may be

23 proven without evidence that the defendant personally did

24 every act involved in the commission of the crime charged.

25 The law recognizes that, ordinarily, anything a person can


- 12- 2-99



1 be for one's self may be accomplished through direction of

2 another person as an agent, or by acting together with, or

3 under the direction of, another person or persons in a joint

4 effort. So, the acts or conduct of an agent, employee or

5 other associate of the defendant are willfully directed or

6 authorized by the defendant, or if the defendant aids and

7 abets another person by willfully joining together with that

8 person in the commission of a crime, then the law holds the

9 defendant responsible for the conduct of that other person

10 just a though the defendant had personally engaged in such

11 conduct.

12 However, before any defendant can be held

13 criminally responsible for the conduct of others, it is

14 necessary that the defendant willfully associate himself in

15 some way with the crime, and willfully participate in it.

16 Mere presence at the scene of a crime and even knowledge

17 that a crime is being committed are not sufficient to

18 establish that a defendant either directed or aided and

19 abetted the crime. You must find beyond a reasonable doubt

20 that the defendant was a willful participant, not merely a

21 knowing spectator.

22 Any verdict you reach in the jury room, whether

23 guilty or not guilty must be unanimous. In other words, to

24 return a verdict, you all must agree. Your deliberations

25 will be secret. You'll never have to explain your verdict


- 12- 2-99



1 to anyone.

2 It is your duty as jurors to discuss the evidence

3 in the case with one another in an effort to reach an

4 agreement, if you can do so. Each of you must decide the

5 case for yourself, but only after full consideration of the

6 evidence with the other members of the jury. While you are

7 discussing the case, do not hesitate to reexamine your own

8 opinion and change your mind if you become convinced that

9 you were wrong. But do not give up your honest beliefs,

10 solely because the others think differently or merely to get

11 the case over with. Remember that in a very real way, you

12 are the judges, you are judges of the facts. Your only

13 interest is to seek the truth from the evidence in the case.

14 When you go into the jury room, the first thing

15 you do is select one of your number as foreperson, to

16 preside over your deliberations and to date and sign your

17 verdict.

18 We have prepared a verdict form for you. I'm

19 going to ask counselors' indulgence to, normally I would

20 read this to you. But it's 24 counts and you will have it

21 with you in the jury room. Do you believe given the fact

22 that we have gone through this that there is a need to read

23 through this? I will, if anybody wants me to.

24 MS. MOSCOWITZ: No, Your Honor.

25 MR. DUNLAP: No, Your Honor.


- 12- 2-99



1 MR. BRIGHAM: No, Your Honor.

2 THE COURT: I don't see anything wrong with not

3 reading this to you. You will have it there. Basically,

4 it specifies blanks on here. Take Count 1, for example.

5 Count 1, all three defendants are charged in Count 1. So,

6 there's a blank. SabreTech, Inc. there's a blank -- two

7 blanks. One that says not guilty, one that says guilty.

8 For Gonzalez, one not guilty, one guilty. Just have your

9 foreperson fill in the appropriate unanimous verdict on all

10 24 counts on all three defendants. Not all defendants are

11 charged in all counts, but we have spelled all of that out

12 for you. This is just a check sheet that you can go right

13 through and answer these questions after you've discussed

14 the evidence.

15 There's a point here where we get to the odd

16 numbered and even numbered, you know, those pairing that I

17 told you about. And I'm going to read to you Count 7 and

18 I'm going to tell you this pertains to certain ones. It's

19 a little bit different. These are the hazardous materials

20 counts. Count 7, for example, "With regard to Count 7 and

21 the hazardous material regulations alleged therein, do you

22 find unanimously and beyond a reasonable doubt that the

23 defendant SabreTech, Inc. A (1) willfully delivered or

24 caused to be delivered property containing hazardous

25 material to an air carrier or to an operator of a civil


- 12- 2-99



1 aircraft for transportation in air commerce, and (2) that

2 such action was in violation of the referenced

3 regulations"? The place there, yes or no, depending on

4 your unanimous decision. B (1), I just read you A (1). B

5 (1), we ask you with regard to Count 7 B (1), do you find

6 unanimously and beyond a reasonable doubt that the

7 defendant SabreTech recklessly caused the transportation of

8 air commerce of property containing hazardous material, and

9 (2) that such action was in violation of the requisite

10 regulations, yes or no. Your unanimous decision. That one

11 deviates. The others say guilty and not guilty. This one

12 says, yes or no. Don't worry about it. Just fill in the

13 blanks as you reach your unanimous decision.

14 This verdict form is eight pages long, and a place

15 for your foreperson to sign and date it, when you reach your

16 unanimous verdict. I will give that to you and you will

17 have that with you in the jury room. Now, if it's necessary

18 for you to ask a question or send out a question or

19 communicate with me in any way, write it down on a yellow

20 pad or piece of paper. Your foreperson writes it down.

21 Sends it out with the marshal, who will be waiting outside

22 the door. The marshal brings it to me, I call the lawyers

23 who may be standing by or may not be, just depending on the

24 situation. I show them the question or, whatever it may be,

25 a statement from you all. This is not your verdict now,


- 12- 2-99



1 this is if you have a question or you say it's midnight and

2 we want to go home, can we go home. Nobody smiled at that.

3 I'm sorry. I hope you don't stay here past 6:00 because it

4 gets dark around here and we urge you to go home around 6,

5 and you can always come back tomorrow and continue your

6 deliberations.

7 You can go when you want to and come when you want

8 to. If you want it stay here longer from now on, you set

9 your schedule as to when you come and when you go.

10 Everybody must be in the jury room at all times when you are

11 discussing the facts of the case. If somebody steps in the

12 rest room or something of the sort, you've got to wait

13 because everybody has to hear what everybody else says.

14 Getting back to the message you may send out or

15 question. Don't hesitate, we'll help you any way we can.

16 Send it out. I read it to the lawyers. We formulate an

17 answer, and I'll send it back in.

18 We will give you one copy of the verdict form.

19 Two copies of this book I just read you, this 55 page jury

20 instruction book, two copies of the indictment. The

21 indictment is 24 pages. So you have two copies of the

22 indictment. So that's what you have to take in to the jury

23 room.

24 As soon as the lawyers have gone through each of

25 the exhibits with the courtroom deputy to make sure that


- 12- 2-99



1 only the exhibits actually admitted into evidence come in,

2 then we will send them in so we will be sending them in as

3 they go through the exhibits carefully. We don't want to

4 send in anything to you, anything that was not admitted into

5 evidence. You remember during the trial unless I said the

6 magic words it is admitted into evidence. If I didn't say

7 that, it's not there. If it's just marked for

8 identification, it stays out. With all the exhibits, we

9 want to be very careful, and of course, we do this for every

10 case, I make the lawyers go through and agree on this so

11 that I don't have a problem on this later on. 36 years of

12 doing this and I've learn something about making life easier

13 for myself. But I haven't learned anything about

14 instructions to make that easier. I think that is

15 everything.

16 I will say to the alternates that your function

17 here was to serve if somebody got sick or wasn't able to

18 come in. You all were very faithful and were here every day

19 and we thank you very, very much. I have your names and

20 addresses because I write and give to jurors a letter or

21 certificate of appreciation because you folks work as you

22 all work. We are going to mail that to the jurors. I am

23 going to ask the four of you to continue not to listen to

24 anything on the radio or television or reading anything

25 about the case until Ms. Kramerman calls you, which we will


- 12- 2-99



1 do, we will call you and tell you that the jury has finished

2 it's work.

3 That may be today or tomorrow or it could be next

4 week. I don't know. It's totally up to the jury. We will

5 call you and tell you when they have reached a verdict. We

6 will also tell you what the verdict was. At that point, I

7 will also mail to you whatever has come to my attention

8 whatever clippings or anything like that. We have copies

9 for everybody. I remember the vividly the United States

10 versus -- anyway, the black tuna trial which was a case and

11 I only tell it to you briefly so that you will know the

12 importance of it. In that particular case -- in any event

13 in that particular case, one of the 12 jurors became ill

14 during deliberations. A wonderful gentleman. And he had

15 had a history of heart problems and literally the marshals

16 in their prompt action was credited with saving his life.

17 They took him right away to the hospital. He was fine but

18 he really couldn't go on. That trial had lasted a little

19 less than six months. So, we didn't want to start over

20 again and try it again for another six months before

21 another jury, so contrary to all the then existing law, I

22 called up the first alternate and had the first alternate

23 come back. We did some legal things about instructions and

24 so on. Sent the jury and then the alternate actually

25 became a member of the jury, the panel started a square


- 12- 2-99



1 one, and we started deliberation over again. And we got

2 the case completed and concluded.

3 So it may be that we would have a need for the

4 alternates. That why I ask you not to let anything

5 interfere with your thinking even though your part is over

6 with right now. Don't let anything interfere with your

7 thinking because if somebody gets sick, seriously ill and

8 they can't continue for any reason, then we might have to

9 use you. And by the way, the rules of criminal procedure,

10 the committee of the conference of the United States, did

11 all the testimony and got all my records, and changed the

12 rule. So now the rule provides for the seating of an

13 alternate juror. At that time, it did not. Kind of

14 interesting. But in any event, be that as it may --

15 That's why it's important. So Ms. Kramerman will

16 call you when they have reached a verdict and we will mail

17 you a lot of stuff and you will get all of that. In the

18 meantime, just bear with us. It's going to be hard, but

19 bear with us for however, long it takes you to decide the

20 case.

21 You four are now excused. Marshal, I'll -- With

22 this instruction I instruct you not to discuss the case with

23 any reporter, news person or anybody connected with the

24 trial. They would love to talk to you, I'm sure, but I

25 instruct you not to do so. Obviously, that would disqualify


- 12- 2-99



1 you from, you know, if I needed you. I couldn't use you

2 then. So, please don't talk to anybody or let anybody talk

3 to you. The four of you are excused. You can go to the

4 marshal. Take the four to the elevator and make sure they

5 got on it and don't get bothered by anybody. The four

6 alternates.

7 Now, then, the 12 of you may now retire to

8 consider your verdict and Ms. Kramerman, if you will give

9 this packet of materials to them we will send in the

10 exhibits as soon as we have gotten them. All right, ladies

11 and gentlemen, you may now retire to consider your verdict.

12 Thank you very much for your patience.

13 [The jury leaves the courtroom].

14 THE COURT: All right. At this point then,

15 unless there is something further, I will ask one

16 representative or anybody who wishes -- shut the door,

17 thank you -- somebody here to go through with Ms. Kramerman

18 the exhibits so that we can have them taken into the jury.

19 Other than that, it's 4:20. I would ask you to remain this

20 afternoon until I presume at some point in time they will

21 probably send out a note saying they want to go home. In

22 any event, I ask you to remain this afternoon with respect

23 to jury deliberation. If any of you need to be elsewhere

24 for any other hearings or whatever you need to be doing, as

25 long as we have the ability to contact you immediately and


- 12- 2-99



1 as long as you can return to the courthouse within 15

2 minutes from wherever you are, so we don't hold the jury up

3 on answering any questions they may have, then as far as

4 I'm concerned we will be very flexible about the necessity

5 for you just to sit. That's up to you. If you do wish to

6 go or whatever, be sure we have means of contacting you.

7 MR. RASKIN: Your Honor, I'm sorry. You were

8 going to give a curative instruction concerning

9 Ms. Miller's statement concerning the crash.

10 THE COURT: All right. I forgot about it. Do

11 you want me to bring them back and do it now.

12 MR. RASKIN: Yes, sir.

13 THE COURT: You want it? You don't think that

14 will underscore and emphasize it?

15 MR. RASKIN: Well, let me talk with my

16 colleagues.

17 THE COURT: I suggest to you in all

18 reasonableness that it may have that effect of just

19 underscoring something, and making it worse. I don't

20 know.

21 MR. RASKIN. I understand. You may be right.

22 Let me talk to my colleagues.

23 MR. DUNLAP: Your Honor, while they are speaking,

24 frankly I'm not sure, to the extent I need to renew my

25 motion for judgment of acquittal, I will do it now.


- 12- 2-99



1 THE COURT: I reserved ruling on it. It's

2 pending on that. You are talking about Count 2 for

3 Gonzalez?

4 MR. DUNLAP: Yes, sir.

5 THE COURT: If you have not been fully protected

6 in the record certainly, we do so now. I've just reserved

7 ruling on it, and there's where it is. We'll see what

8 happens.

9 MS. MOSCOWITZ: All of our Motion are renewed and

10 preserved, and all of those magic words?

11 THE COURT: Yes, that was all done by that good

12 looking guy with the red tie just next to Ms. Raskin. He

13 did that at the end of all the evidence.

14 MR. RASKIN: Your Honor, we would ask that you

15 caution the jury.

16 THE COURT: I'm going to reconsider my earlier

17 ruling and based upon the fact that the statement was,

18 whatever the statement was, whatever the exact wordage of

19 it was, at the time that Ms. Miller made the statement

20 would have occurred -- It's now almost 4:30 -- it would

21 have occurred over three hours ago, two and a half to three

22 hours ago, and given the fact that in the intervening time

23 the jury has been literally -- very patient and listened

24 very carefully, but they have heard the Court's

25 instructions which ran an hour and eleven minutes. I've


- 12- 2-99



1 never done that in my life. That's the longest

2 instruction. I've never read a book to the jury before.

3 But with all the jury instructions, an hour and eleven

4 minutes, and Ms. Miller's argument ran 58 minutes, so I

5 guess we are an hour and a half away from the comment. But

6 a food of legal concepts have been given to the jury and

7 you think to tell them to disregard one sentence would be

8 to emphasize it, and I don't think that I should do it.

9 So I'm going to overrule your objection and

10 reverse myself. There's another first. I usually don't

11 reverse myself. Everybody work with Ms. Kramerman and try

12 to get those. Vicki you can get the marshal to take that

13 stuff in. We will be in recess then.


15 (Proceedings were concluded at 4:30 P.M.)












- 12- 2-99



1 C E R T I F I C A T E

2 I hereby certify that the foregoing is an accurate

3 transcription of proceedings in the above-entitled matter.








______________ _______________________________________


Official Federal Court Reporter

12 Federal Justice Building, Ste. 1127

99 Northeast 4th Street

13 Miami, FL 33132 - 305/523-5108














Quality Assurance by Proximity Linguibase Technologies

Enter content here

HOME | UPDATES | Airworthiness Implemented | Maintenance Program | Aeronautical Bulletin 7E | CHALLENGES TO AIRWORTHINESS | ValuJet Flight 592 - SabreTech Trial Transcript Day 1 | VJ Flight 592 - ST Trial Day 2 - a.m. | VJ Flight 592 - ST Trial Day 2 - p.m. | VJ Flight 592 - ST Trial Day 3 | VJ Flight 592 - ST Trial Day 4 | VJ Flight 592 - ST Trial Day 5 | VJ Flight 592 - ST Trial Day 6 | VJ Flight 592 - ST Trial Day 7 - a.m. | VJ Flight 592 - ST Trial Day 7 - p.m. | VJ Flight 592 - ST Trail Day 8 | VJ Flight 592 - ST Trial Day 9 | VJ Flight 592 - ST Trial Day 10 | VJ Fligth 592 - ST Trial Day 11 | VJ Flight 592 - ST Trial Day 12 | VJ Flight 592 - ST Trial Day 13 - VERDICT