UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
CASE NO. 99-491-CR-KING
THE UNITED STATES OF AMERICA,
vs. MIAMI, FLORIDA
DECEMBER 2, 1999
DANIEL GONZALEZ, THURSDAY - 9:00 A.M.
JURY TRIAL PROCEEDINGS
BEFORE THE HONORABLE JAMES LAWRENCE KING,
SENIOR UNITED STATES DISTRICT JUDGE
FOR THE GOVERNMENT:
CAROLINE HECK MILLER, A.U.S.A.
JEFFREY BRIGHAM, A.U.S.A.
J.L.K. FEDERAL JUSTICE BUILDING
99 N.E. 4th Street
Miami, FL 33132 - 305/961-9432
PETER PLOTKEY, ESQ.
OFFICE OF GENERAL COUNSEL
DEPARTMENT OF TRANSPORTATION
SPECIAL AGENT MIKE CLARK
OFFICE OF INSPECTOR GENERAL
DEPARTMENT OF TRANSPORTATION
SPECIAL AGENT JACQELINE FRUGE
FEDERAL BUREAU OF INVESTIGATION
FOR DEFENDANT SABRETECH:
JANE RASKIN, ESQ.
MARTIN RASKIN, ESQ.
RASKIN & RASKIN, P.A.
2937 S.W. 27th Avenue, Suite 206
Miami, FL 33133 - 305/444-3400
JOHN GILLICK, ESQ.
WINTHROP, STIMSON, PUTMAN, ROBERTS
NORMAN MOSCOWITZ, ESQ.
SULLIVAN RIVERO & MOSCOWITZ, P.A.
Miami Center, Suite 2550
201 South Biscayne Blvd.
Miami, FL 33131 - 305/371-7781
FOR DEFENDANT FLORENCE:
JANE MOSCOWITZ, ESQ.
MOSCOWITZ STARKMAN & MAGOLNICK
100 S.E. 2nd Street, Suite 3700
Miami, FL 33131 - 305/379-8300
FOR DEFENDANT GONZALEZ:
ROBERT DUNLAP, ESQ.
DUNLAP & SILVERS, P.A.
2601 S. Bayshore Drive, Suite 601
Miami, FL 33133 - 305/854-9666
ROBIN MARIE CARBONELLO
Official Federal Court Reporter
J.L.K. Federal Justice Building
99 Northeast 4th Street
Miami, FL 33132 - 305/ 523-5108
TOTAL ACCESSTM COURTROOM REALTIME TRANSCRIPTION
3 By: Defense Gonzalez .....................16 9
By: Defense SabreTech ....................56 11
4 By: Government Rebuttal ..................108 17
5 JURY INSTRUCTIONS.........................151 11
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1 MORNING SESSION
2 COURTROOM DEPUTY: All rise.
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
21 THE COURT: The objection is overruled. Anything
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
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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?
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1 MS. MILLER: Your Honor, Mr. Brigham will address
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.
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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
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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
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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
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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
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
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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
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
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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.
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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
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.
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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.
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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 --
23 COURTROOM DEPUTY: All rise.
24 [There was a short recess].
25 COURTROOM DEPUTY: All rise. Court is now in
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1 session. The Honorable Judge James Lawrence King
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
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
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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
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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
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.
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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
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.
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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
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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
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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
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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
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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
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.
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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
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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
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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
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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
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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
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
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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
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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
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
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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
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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
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
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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
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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
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
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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,
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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
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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
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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
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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
24 The Judge is going to tell you that in deciding
25 whether you believe or don't believe a witness you can
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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
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1 ridicule him, but to try to analyze him, which is your
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
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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
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,
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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
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?
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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
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
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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
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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
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
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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
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
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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
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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
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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.
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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
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
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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
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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
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
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
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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
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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
6 THE COURT: All right. Bring in the jury,
8 [The jury returns to the courtroom].
9 THE COURT: Thank you, be seated please. All
10 right, Ms. Raskin.
11 DEFENSE SABRETECH CLOSING ARGUMENT
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
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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
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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
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
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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
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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
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
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.
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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.
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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
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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
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
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
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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.
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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
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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
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
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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
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
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
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
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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
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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
25 Now, what was the pressure they supposedly
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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.
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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
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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,
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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
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
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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
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
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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
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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.
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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
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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
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
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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,
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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
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
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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
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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
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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.
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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
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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
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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
24 Well, that's not exactly what Agent Gentile said.
25 What Agent Gentile said was, he asked Mr. Salis, what did
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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
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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
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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
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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
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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
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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
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
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
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
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,
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
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?
23 MR. MOSCOWITZ: Yes.
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
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
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
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
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
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
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.
25 COURTROOM DEPUTY: All rise.
- 12- 2-99
1 [There was a luncheon recess.]
2 AFTERNOON SESSION
3 1:40 P.M.
4 COURTROOM DEPUTY: All rise. Court is now in
5 session. The Honorable Judge James Lawrence King
7 THE COURT: Thank you. Have the jurors arrived
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
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?
19 MS. MOSCOWITZ: No.
20 MR. MOSCOWITZ: No.
21 THE COURT: Do you want to confer or talk about
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.
11 COURTROOM DEPUTY: All rise.
12 [There was a short recess].
13 COURTROOM DEPUTY: All rise.
14 THE COURT: Please be seated. This time, we will
15 hear from the government in their rebuttal closing
16 argument. Ms. Miller.
17 GOVERNMENT REBUTTAL CLOSING ARGUMENT
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
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
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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
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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
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
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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
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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
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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
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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
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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
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
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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
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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
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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
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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
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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
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
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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
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
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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
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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
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
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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
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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
24 Chris DiStefano was the supervisor on that job. He
25 testified that it was his plan to put it in to operation, to
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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
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
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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
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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
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,
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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
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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
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.
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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
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
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
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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
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
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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
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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
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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
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
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
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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
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
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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
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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,
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].
11 JURY INSTRUCTIONS
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
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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
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
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
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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
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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
- 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
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
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
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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
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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
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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
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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
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
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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
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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
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1 of effecting or influencing the exercise of a governmental
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
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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
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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,
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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
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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
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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
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,
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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
24 Specifically, as stated is in the indictment, the
25 defendant SabreTech is alleged to have violated this
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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
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
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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
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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
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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
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
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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,
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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
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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
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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
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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.
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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
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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
25 Now, a corporation is a legal entity that may only
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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
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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
25 A person is responsible for acts which he performs
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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
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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
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
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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
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.
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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,
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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
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
24 As soon as the lawyers have gone through each of
25 the exhibits with the courtroom deputy to make sure that
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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
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
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
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
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
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.
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1 THE COURT: I reserved ruling on it. It's
2 pending on that. You are talking about Count 2 for
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
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
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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.
14 COURTROOM DEPUTY: All rise.
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.
11 DATE FILED ROBIN MARIE CARBONELLO
Official Federal Court Reporter
12 Federal Justice Building, Ste. 1127
99 Northeast 4th Street
13 Miami, FL 33132 - 305/523-5108
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