November 16, 1999

















99 N.E. 4th Street

Miami, FL 33132 - 305/961-9432
















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Miami, FL 33133 - 305/444-3400






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Miami Center, Suite 2550

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Miami, FL 33131 - 305/371-7781




Official Federal Court Reporter

J.L.K. Federal Justice Building

Suite 1127

99 Northeast 4th Street

Miami, FL 33132 - 305/523-5108













8:00 A.M.

COURTROOM DEPUTY: All rise. Court is in

session. The Honorable Judge James Lawrence King


THE COURT: Be seated please. We have

Mr. Brigham and we have Mr. Raskin available.

MS. RASKIN: Good morning, Your Honor. There are

a few more straggling in as we speak.

MR. MOSCOWITZ: Good morning, Your Honor.

MS. MOSCOWITZ: Good morning, Your Honor.

THE COURT: All right, when we left off last

evening Mr. Moscowitz, I believe, was telling me why he was

concerned about the language of the general feeling of

SabreTech or words to that effect. If you wish to proceed

with that one, could we put it in terms of you expect

Mr. Jones to testify and say the following, or there is a

document or something? Could we identify it instead of a

generalization that at the grand jury there was talk about

atmosphere? That is hard for me to pin down. It may be

that I should be asking for the government to tell me what

it is that they are going to be basing a statement to the

jury upon to the effect that they are going to prove

whatever it is we are talking about. I need to put it down

to something that we are talking about, witness Jones or





Exhibit 38 or something that I can identify with.

MR. MOSCOWITZ: Your Honor, I was reading last

night excerpts from the grand jury transcript from Chris

DiStefano who, I believe, is going to be the government's

first witness. DiStefano was, for a period of time, a

supervisor at SabreTech, supervisor mechanic, and he is one

of the government's primary witnesses relating to the

Aserca Airlines' allegations. Aserca Airlines are

allegations of false statements in connection with

servicing of Aserca Airline plane which is not related to

the oxygen generators and those are primarily against

Mr. Gonzalez.

We went over Mr. DiStefano's Jencks material, and

there are two statements, which I read to the Court that I

think I'm concerned with. The first one was Mr. DiStefano

was asked about instances of pencil whipping by

Mr. Gonzalez. Pencil whipping, Your Honor, is the term

referring to when it comes to doing the paperwork during the

job or at the end showing that the work was done and steps

were taken. Pencil whipping means when the supervisor tells

you to get that paperwork signed without the work was done,

therefore making untrue statements. Questions were asked of

Mr. DiStefano of was he aware of pencil whipping of

Mr. Gonzalez besides the one specific one alleged in the

indictment, and he said, "it happened all the time. It was




so numerous I can't even remember any specific time. It

happened all the time."

That kind of testimony about it happened all the

time when you can't even mention just one is I think

something that is not going to be admissible, and it's

highly prejudicial because you can't cross-examine it. It

goes to this notion which I've seen throughout the grand

jury of testimony about this atmosphere of encouraging or


requiring false statements.

It seems to me that the allegations of false

statements are quite specific. They are required to be

quite specific. They are entitled to prove them by specific

proof. I don't believe the law permits them to prove

specific false statements by this generalized notion of an

atmosphere of making false allegations. That's my concern.

"It happens so much that I can't even tell you" is so highly


THE COURT: I have to presume that the government

is going to offer, for example, Exhibit 28. I'm making

this up, or 28, 29 and 30 showing three pieces of paper

that somebody has signed that the government contends are

false. Now, those are the false statements.

As I understand it, that you're concerned about

and wish to have not brought out in the opening statement

to the jury is something to the effect that there was





atmosphere where there was a lot of talk about it, or words

to that effect coming out, through this DiStefano. That

seems to be your concern. But testimony by a witness that

mechanic Jones told me or mechanic DiStefano, or somebody,

told me to get this material signed quickly whether I had

done the work or not, I don't see that that would be

inadmissible. That's a different thing than the three

pieces of paper that are the alleged specific false


Let me find out from Ms. Miller or Mr. Brigham

what their position is with respect to this motion by the

defense to limit the government's statement in their opening

statement when referring to Chris DiStefano to a

generalization as opposed to specific proof you intend to


MS. MILLER: Your Honor, I believe it's most

inappropriate to look to the grand jury testimony as an

indicative of what the government will be proving at trial.

At the grand jury stage we are in an investigative stage

and ask broad far-reached and generalizing questions.


assume from that that is going to be the nature of the

testimony adduced at trial or the argument is an

inappropriate leap, as the Court has anticipated, we will

be referring to specific instances of false statements.

And in our opening statement we will be referring to





specific testimony as to efforts by Mr. DiStefano and

Mr. Quan to revise the paperwork process which gave rise to

an altercation with Danny Gonzalez.

The government has a good faith belief in the

admissibility of this evidence, and it is not of the sort

that everybody knew that everything was happening all the

time. The grand jury testimony is not the whole star of how

the opening statement will be given.

THE COURT: Could you give me an example of a bit

of evidence by someone that would indicate that they were

told to falsify statements.

MS. MILLER: For instance, Your Honor, we will

have testimony from Mr. DiStefano that in the course of

this altercation Danny Gonzalez took work cards with him

and returned them shortly after completed when the work

could not have been done in that time.

THE COURT: Anything further, Mr. Moscowitz?

MR. MOSCOWITZ: No, Your Honor, I accept that


THE COURT: It seems to me that this is the

difficulty with trying to deal with matters in limine prior

to receiving any evidence because we don't know how the

evidence is going to come out in trial. As I indicated

yesterday, for me to rule that either side should not get

in a certain subject matter I would have to be satisfied





that there is no possible way that that evidence will be

ultimately admitted into the trial. That is very difficult

to do to anticipate this far ahead of time as to what the

evidence is going to be.

Certainly, if there is evidence, as Ms. Miller

has indicated, by a witness that one of the defendants took

a batch of these cards away and filled them out, or

apparently filled them out in his office or work station,

and brought them back without the work being done, that's

relevant evidence. I can see several ways that might come

into trial. So I can't say there is no way.

Now, to that extent I have to accept the good

faith proffer of the lawyers that they intend to and expect

to prove this.

Let's deal with the other issue yesterday on the

same thing. Mr. Moscowitz, you had a second issue?

MR. MOSCOWITZ: Yes, it was from the same grand

jury witness's testimony, Mr. DiStefano, that later in the

transcript when there is no questioning about false

statements, which are the focus of this crime, the

allegations in the indictment, there were then further

questions which go to how SabreTech did its job, whether it

did repairs using the right tools or wrong tools, whether

it used automotive bolts or aircraft bolts. Again, this

case is not about the adequacy of the work done by





SabreTech generally whether it complied with all the

regulations. This is not really a safety case. This is a

false statements case. Those types of allegations which go

to show that SabreTech apparently was performing

unsatisfactory work, not living up to its contract

requirements, is, I think, is going to be prejudicial and

takes us off into other areas.

THE COURT: What does the mechanic put down on

the card? Does he put down, "yes, I have used the

appropriate bolts" or check here if he used 8 inch bolts

and he checks there and he really didn't? Wouldn't that be

a false statement? If that is the evidence.

MR. MOSCOWITZ: Right. Presumably that could be

the testimony except that wasn't the testimony elicited.

The testimony that I'm talking about was simply showing

that work wasn't done properly without tying it into false


THE COURT: Maybe in the trial they are going to

tie it in. Maybe they're going to offer it in. Let me

found out from Ms. Miller. You know more about what your

opening statement is going to be.

MS. MILLER: Your Honor, I don't intend to make

reference to the automotive bolts. I don't think it's

fruitful for us to go through an exercise of Mr. Moscowitz

going through all the testimony of grand jury and seeking





my position in opening statement.

The Court has said that it must rely on my

forecast of what I will admit in evidence and my opening

statement thereon. The grand jury investigation is of a

totally different nature. I don't think it's a fruitful

exercise to go through everything in the grand jury and for

me to be quizzed as to if I'm going to mention it.

THE COURT: There were only two items that were

mentioned by Mr. Moscowitz. And Ms. Moscowitz, before you

start let me have you wait a minute.

There were two elements that Mr. Moscowitz

mentioned. I simply ask in the interest in moving the

matter forward, much as I did in the interest in saying

what is your neutral reason for excluding juror number

four, I didn't perceive there was any Batson problem. But

since it's been raised it was easy for you to say "well,

the lady had a brother convicted of murder." It was just

quicker. That's what I'm doing here. There's no

requirement for the government to tell the defense their

opening statement.

I certainly agree with you that the grand jury

examination of these witnesses is at best simply a very

tentative guideline of what that witness may or may not be

going to say at the trial. I thought it was quicker to

move into like you say, "I'm not going to talk about the





bolts." Then we don't have to fiddle with that.

I really want to get to the government's point on

this NTSB report.

MS. MOSCOWITZ: Two seconds, Your Honor. I want

to preserve my separate objection with respect to the same

issue on behalf of Mr. Florence that anything that speaks

of the atmosphere at SabreTech where SabreTech is a

defendant is very prejudicial to Mr. Florence who is on

trial by himself for something that he did. I just want it

on the record.

THE COURT: Well, all of this is way, way, way

premature. At closing argument the lawyers are going to be

able to argue from the record to the jury, and they are

going to be able to draw reasonable deductions and logical

conclusions from the evidence in the record. At that point

we will have a very clear picture of what is in the record

and what is not in the record. At that time the lawyers

will be limited to only those matters that are in the


Getting into the terminology that counsel is going

to use like atmosphere or something generalized like that,

this is premature to get into this. I can't suggest to

people the language that they use. The opening statements

on all sides is going to be limited to what you expect the

evidence is going to show in this case in good faith. Based





on that, I think I have to rely largely on counsel as I said


We had not concluded the matter of the report and

I want to be precise. I want to know what it is that the

government is suggesting, what specific report or what

specific witness you anticipate that is not going to be

presented or what specific evidence that you anticipate that

the defense may wish to talk about in their opening

statement as evidence that they are going to prove that you,

in good faith, believe there is no possible way they can get

into evidence. I would like to know specifically, if it's a

report of the NTSB or if it is a document or a witness I

want to know the name of the witness. I want to know what

it is that we are talking about, not just a generalization

that the defendant is going to make the FAA a culprit in

this case.

I need to know what it is that you anticipate that

they are going to say about what they are going to prove

that there is no possible way they can get into evidence.

It's a heavy burden, but I have to deal with that burden at

this juncture. So what document is it or what is it that

you're concerned with?

MR. BRIGHAM: After the crash in this case, Your

Honor, the National Transportation Safety Board authored a

report on establishing probable causes of the crash. Those





probable causes included the SabreTech's role.

Also according to the NTSB, the ValuJet and also

the FAA were part of the probable causes behind the crash.

What our contention is that it is inappropriate to

introduce that report for those conclusions because this

courtroom is the forum for deciding cause to the extent

that it could be relevant in this case during the criminal

trial itself.

That is our contention, Your Honor, but I think I

took on note to the Court's advice yesterday. If, in fact,

that is a question that should be decided later in the

proper context, we will defer it to the Court on that


The specific report is the NTSB report and that

portion of that report which talks about conclusions about

administrative agency which we feel are not conclusions that

are appropriate because it's basically doing the work of the

jury which has an independent role in determining


THE COURT: Do you have any cases that have dealt

with or analyzed the weight, if any, to be given to such a

report, a report of the National Transportation Safety

Board? In other words, we have law on the subject of, you

know, a police officer on the scene of a traffic violation

that writes up his impression or something. We have law on





that. We know whether that is admissible or not


Do you have anything that would give us guidance

as to what importance, if any, an NTSB report may have or

does have in a criminal trial where persons, or

individuals, or companies are charged with specific

violations of the law?

MR. BRIGHAM: Specifically, the context of the

NTSB report, I do have case law that addresses the

admissibility in a civil case. That case law is based on a

general prohibition in the transportation code that says no

part of this report shall be admitted in evidence or used

in a civil action for damages resulting from a matter

mentioned in the report.

Now, the case law has construed that to mean that

the conclusions of the probable cause conclusions of the

NTSB would not be admissible in a civil case. One example

of that case is In re: Air Crash at Charlotte, North

Carolina and that would be 982 Federal Supplement 1071.

That's a District Court of South Carolina that reviewed the

case law.

THE COURT: And held what?

MR. BRIGHAM: Held that findings were admissible

but the probable cause conclusions would not be appropriate

for admission in a civil context.





THE COURT: So the opinions of the board are not

admissible. Their factual findings, if they are based on

factual matters, that could be used in a civil case, is

that it?

MR. BRIGHAM: Yes. I think there is additional

issues such as relevancy, but that can be addressed in the

appropriate context.

THE COURT: You have a case that says this is

flat out not admissible at all in a civil case?

MR. BRIGHAM: Yes, Your Honor.

THE COURT: Yesterday you touched upon

materiality. So the documents you are talking about are

this NTSB report. Do you have a date?

MR. BRIGHAM: I believe the report was authored

-- I do not have a date in front of me.

THE COURT: Some way to identify it. A number or


MR. BRIGHAM: It would be the National

Transportation Safety Board report on the crash of ValuJet

flight 592 on May 11, 1996.

MR. MOSCOWITZ: Here is the date.

MR. BRIGHAM: Thank you, Mr. Moscowitz.

THE COURT: It has let me inquire of the defense,

on what basis do you suggest this report will be admissible

into evidence?





MS. RASKIN: We cite to rule 803(8)(c) which

talks about reports of data compilations in the form of

public offices or agencies like the NTSB which are

admissible in cases against the government in criminal

cases specifically. I recognize that the actual

conclusions might not be, but the factual portions of the

reports have been held admissible against the government in

criminal cases.

THE COURT: But you intend to try to talk to the

jury about the opinions, is that right? Because if you

don't, we are wasting a lot of time.

MR. RASKIN: I'm not going to talk about those

opinions on my opening. That's for sure.

THE COURT: You see Ms. Miller, frequently the

whole thing goes away.

You are suggesting that the fact findings may be

admissible under 803(c). Let's take a look at that.

MR. RASKIN: Yes, sir, and I have a case for the

Court as well.

THE COURT: You see, frequently these things go

away. You are suggesting that the factual findings may be

admissible under 803(c). Just logic tells me the opinions

aren't worth the paper they are written on in another case.

Not because it's that particular board, but just because

they are not admissible. We could care less what the





County Court decides about Mr. Moscowitz driving through

the traffic light in my example the other day.

The little headnote in this federal courtroom

evidence by Crochet and Elkhein Second Edition starts off

quote, the more controversial area of public records is

that of the so-called valuative report, whether or not

investigative reports containing factually based

conclusions or opinions should be admissible as been

decided differently by the Courts of Appeal. It goes on

from there.

This squares what I know about reports and my

experience teaches me anyway. It's in the same category as

expert opinion. I know you all have been talking in your

pleadings about experts. I'm not at all sure that you are

going to be presenting a lot of evidence that both sides

think they are going to be presented. We don't have people

come in here and tell the jury how to rule.

The basic issue of fact in this case is whether

or not the government can prove by their burden of proof

the elements of false official statements as charged in

this indictment and the conspiracy and the respective

counts. I don't know how an expert is going to contribute

much to that. I don't know how he can. We will see as

that evidence develops.

I don't want anybody to be deluded by the thought





that they are going to have a lot of experts come in and

say the defendants are guilty or not guilty.

Now, right now it would seem to me that at best it

would appear that if there are some factual conclusions by

this board, the NTSB board, that that may be admissible.

But since you don't plan to get into their opinions, in any

event, that takes care of the problem. So the problem is

moot and denied without prejudice to reassert or object at

the time that it comes up and, of course, if need be, we

will excuse the jury and have a hearing on it if need be.

That takes care of that motion.

What other motion? Mr. Moscowitz?

MR. MOSCOWITZ: Your Honor, I hope this is

appropriate for this stage, which is as Your Honor knows,

we have raised a number of issues of prejudice in this

case, which is essentially a false statement case, of

testimony and evidence about the crash itself. I don't

need to elaborate how a powerful impact the evidence of the

crash will have in this case. The case takes place in the

shadow of that tragedy and very much on the minds of the

jury as this case goes forward.

It's my understanding that the government intends

to begin its testimony with an eyewitness of the crash, and

throughout this case intends to actual prove the crash and

intends to put in parts of the aircraft that were retrieved,





tends to be photographs of various matters relating to the

crash. All of that is, of course, extraordinary powerful

evidence and highly prejudicial, although it may have some


What we are going to be asking is that we are

prepared to stipulate, and of course, I'm saying this in

front of the Court, we are prepared to stipulate to the fact

that the crash occurred on that date, that there were 110

fatalities and that there was a fire which took place

leading to the crash. In light of the prejudice issue and

the 403 balancing issue, which we would be asking the Court

to make, I think those stipulations should be sufficient to

meet whatever evidentiary need the government has with

regard to proving that the crash took place.

There are certain cases where it's not appropriate

or required for the government to except that type of

stipulation. But this is not the murder case. We are not

charged in this case with the deaths of that crash. The

focus is on things done at SabreTech were not done prior to

the crash. Our fear is that that evidence will totally

overwhelm the other evidence in this case which is more

directly relevant and prevent these defendants from

receiving a fair trial.

We are offering a stipulation, and we are asking

that the Court, in terms of a balanced test, require the





government to limit its proof relating to the crash and

accept those stipulations. That does go to opening because

given the exhibit list, which we have seen, the type of

evidence about the crash, the physical evidence, the

photographs the government intends to put in, we think it is

going to be coming out in their opening.

THE COURT: Does your stipulation encompass the

element of proof that the government has to meet that the

crash was caused by the defective work on the canisters?

MR. MOSCOWITZ: No, Your Honor. I don't believe

that that is an element to prove in this case. It's not an

element to prove of the false statements counts or the

hazardous materials count, and it's not an element of proof

on the 1024, placing a dangerous device on the aircraft.

That's why I believe all of that proof is really in effect

to the side and isn't really necessary for them to go into.

THE COURT: So they don't have to prove that the

crash occurred?

MR. MOSCOWITZ: Not at all. It is alleged in the


THE COURT: Bear with me, in your estimation,

they do not have to prove that the crash occurred, and they

do not have to prove what caused the crash?

MR. MOSCOWITZ: That is correct.

THE COURT: All they have to prove is that





somebody wrote on a card that you contend was a false

statement. In other words, here is a card, a piece of

paper, and someone writes down "I performed the following

work" and they signed it when, in fact, they did not. I'm

making this up. That's what they have to prove?

MR. MOSCOWITZ: Right, and also that we violated

the hazardous materials violations in putting what they

contend are hazardous materials on that aircraft.

THE COURT: You think a jury would sit here for

six weeks, you're suggesting that they sit here for six

weeks in a vacuum about what then happened thereafter? I

guess the theory would be that they would be very unlikely

to hold anybody guilty of signing a paper. I don't suggest

that you should stipulate to that, but the link there is


MR. MOSCOWITZ: That is part of their proof. If

they believe it is relevant to prove it and they can prove

it, they can still prove that link. We are prepared to

stipulate to the fact that the crash did occur. This will

come out, and the Court will be able better to rule during

the evidence. If they prove that causal link if it's


THE COURT: Fine. Counsel for the government?

MS. MILLER: Your Honor, I think this is

essentially a rehashing for the motion to strike surplusage





that was made early on.

THE COURT: It is. What is your position?

MS. MILLER: Our position is that the government

intends to make judicious and limited reference to the

crash which is relevant to this case. It is relevant to

the issue of materiality of the false statement that had

been made. Our case will include proof of what an oxygen

canister is, what its capabilities are, and certainly the

evidence of a fire on the airplane is certainly something

that we have to prove --

THE COURT: Mr. Raskin, could you please be

seated while she is talking. It is very distracting to me.

That's fine, Ms. Miller. There has been an

element injected here that was not present earlier when

these matters were considered by the Court. At least if

they were I missed it in the voluminous pleadings that were

filed and that is the suggestion that the defense is willing

to stipulate to all of this and say that yes, there was a

crash; yes, there were fatalities; and yes, there was a

fire. They stopped short of saying that the canisters had

anything to do with the fire. So really what I would like

to understand would be the government's position respecting

whether the stipulation, the offer of the stipulation, fills

the gap that you needed to prove about these false

statements, whether that would suffice or is it necessary to





go on and put on several --

MS. MILLER: No, Your Honor. The stipulation

would not be adequate. That there was a fire on the

airplane does not begin to establish point that is

contested. The news articles over the weekend suggests

that a large part of the defense is going to be focused on

offering alternative theories of how that fire started.

The nature of the fire and where it developed in the

aircraft are all relevant. We have to prove in count 24

that the placing of the destructive devices on the aircraft

created a risk.

Our eyewitness to the crash is a very cool

customer. He made a 911 call which is recorded. We are

not going to introduce the 911 call. There is a photograph

of the crash impact. We are not going to introduce that.

THE COURT: Let's get back to what it is that you

have to prove with respect to the crash. Now, you have

told me that it is hotly contested in this issue as to

where the fire started and what caused the fire. I'm

trying to understand your respective position.

Mr. Moscowitz says that the government does not have to

prove any of that in order to prove its case. I believe by

your submission you are suggesting that the government has

to prove that.

MS. MILLER: Your Honor, we have to prove





materiality, that there was a fire on this aircraft that

was related to the oxygen generators helps prove

materiality. The government, therefore, is entitled to

prove that. The defense contests that there was a fire on

that aircraft that was related to the oxygen generators.

Therefore, this is a matter that we are entitled to proceed

by proof.

THE COURT: Why is it an issue whether they

contest it or you feel you have to or don't have to? Why

do we have to try an issue -- do we have to try an issue

just because both counsel agree that they want to try it?

You say it is material. I'm not trying to make it

difficult for you or Mr. Moscowitz. Why is it material?

Why do you have to prove that this hazardous material is

what caused the fire?

MS. MILLER: Your Honor, what we have to prove as

an essential element of the false statement count is that

the false statement was as to a material matter.

THE COURT: That would be the false statement


MS. MILLER: That shipping caps were put on the

oxygen generators.

THE COURT: So the government says we are going

to prove that the shipping caps weren't put on there, that

there was a false statement to the effect that they were





placed on there, and that that resulted in a fire and a

crash of an airplane?

MS. MILLER: We are going to prove is that the

absence of the shipping cap, the thing that was lied about,

was a factor in the fire and the crash of the airplane.

That tends to make more probable than not the test under

401 or 403. That tends to make more probable the

proposition that the false statement that was made was a

material false statement.

THE COURT: So the only gap in the stipulation

that would be necessary to eliminate this proof on a

balancing test under the rule, and I forget the number too.

What is the rule?

MR. MOSCOWITZ: 403, Your Honor.

THE COURT: Thank you. Is the fact that the

failure to put the caps on there is what caused the fire.

If they can stipulate to that we can perhaps cut the trial.

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

ever stipulate to that.

THE COURT: I will ask them that.

MS. MOSCOWITZ: Not a chance, Your Honor.

THE COURT: You come up here, and let's hear from

you. Mr. Moscowitz had outlined the stipulation and that's

why I asked him that point.

MS. MOSCOWITZ: Your Honor, I think, has




understood the point exactly. The government wants to

prove that the absence of shipping caps caused the fire. I

don't think they can do that and we don't want to stipulate


THE COURT: Then they get to prove that.

MS. MOSCOWITZ: This is a specific intent charge.

The issue of materiality is not what happened some other

time. The issue is what was material at the time

Mr. Florence allegedly signed the card that is at issue

with respect to him. The crash happens later. I don't

think the government can prove that.

In fact, the government actually says now their

language is way stepping back. They're saying; "Oh, it was

a factor." Really in order to make the argument they want

to make, they're saying the absence of caps caused the

crash. That is irrelevant to the charges before Your Honor

and the jury.

THE COURT: Then why do both of you want to

contest that issue? You say they have to prove it. They

say as long as you are contesting it they want to prove it.

If it's not relevant and material to anything, why don't

you all stipulate to it? Okay, there were some bad things

that happened and everybody is tragically sorry about that.

MS. MOSCOWITZ: That's exactly what we want to

do, Your Honor. Your Honor, the government wants to prove





this causation.

THE COURT: Don't tell me what they want to do.

Tell me what they have to prove. That's a red flag because

then she gets up and says --

MS. MOSCOWITZ: I understand that. Your Honor,

in my mind if the government seeks to prove causation by

absence of shipping caps, then we have to rebut by showing

the mountain of evidence to show that the plane that

crashed was a dog, was an old DC9 and was limping along and

had numerous problems on the two legs before it actually

got into Miami. We don't think any of that is necessary,

and that's why we have offered this stipulation.

The issue of materiality is not something that

happens after 100 events later. It is what is in the mind

of the people that are signing the alleged false statement

at the time that they are signing it. It is also what is

it that the FAA is regulating which is the air worthiness

of the maintenance of the planes that these men were

working on, which was not the plane that crashed but the

planes that they were removing the generators from.

When you think about a crash in which so many

people were killed you feel ridiculous saying irrelevant,

but with respect to the charges that the government brought

it is irrelevant.

THE COURT: Fine, let me now summarize your





argument. Your argument is, as I understand it, with

respect to materiality all the government has to do is to

take these cards 10 or 100 of them, containing the

signatures; and your client is Mr. Florence?

MS. MOSCOWITZ: Yes, Your Honor.

THE COURT: You are saying that all they have to

do to prove what they allege is to bring a card that

Mr. Florence has signed which contains a statement to the

effect that Mr. Florence did certain work and then prove

that, in fact, he did not do that work. For example, let's

say that the report says that he removed a propeller from

the airplane and he took it into the shop and cleaned it

and polished it and did all of the things to it that he was

suppose to do and put it back on the airplane, and he signs

that he did that work. And your submission is that all the

government has to prove is that he didn't take the

propeller off the airplane, or whatever he had signed to,

and that that proves that the statement is false. That's

all they have to prove. Well, if that's all they have to

prove, if that is all they have to prove, is there any

issue about certainly they can prove signature on a piece

of paper. Certainly, either he took the propeller off or

he didn't. If he did all the work, fine, if he didn't,

fine. That is all that they have to prove. Is that right?

MS. MOSCOWITZ: No, Your Honor, because that is





missing the critical evidence which is what the jury has to

decide which is whether Mr. Florence acted with bad intent,

whether he acted with bad purpose to disobey and disregard

the law. They do have to prove that the statement was

material. But they have to prove that it was material in

the framework of its signing, in the regulatory framework

in which it was created which is the maintenance of the

airplane that they're working on. Not the plane that

crashed, but the airplane that they are doing the

maintenance on. I know this is jumping ahead to stuff that

Your Honor hasn't heard yet. It really is the heart of

things. It's important to go through it.

The regulatory system of the FAA where actually

all the work cards are signed and available for the FAA to

look over, are to make sure that the plane that the

mechanics are working on whenever they do some sort of the

maintenance is returned to the air in an airworthy manner.

THE COURT: And the hazardous material has been

disposed of properly?

MS. MOSCOWITZ: No, Your Honor. This is an usual

card because it talks about parts taken off the plane.

What is the focus of maintenance on a plane? It isn't

whether the parts are taken off the plane. That's the

responsibility of a different part of the company. We are

talking about in the final document that is signed before





any plane goes back in into the area, a return to the air

certificate is completely focused on the plane on which the

maintenance is being done.

THE COURT: This is getting into closing

argument. Getting back into whether it is material that a

mechanic signed that he did certain work and disposed of

hazardous material in a proper fashion, I think it is

highly relevant as to what happened.

For example, if someone certifies that he took a

propeller off a plane, cleaned it and put it back on the

plane and the goosh that came off in this cleaning process

he dumped in a pool out in the back yard in the dirt and

nothing happened, I think it would be highly material as to

whether or not something happened. Now he says he dumped it

in the back yard and someone came along and flicked a

cigarette and it burned up in the hangar, then that would be

material also.

I think the materiality is short of what is

necessary under the balancing test of Rule 803 to say that

it is not something that the government has to prove or

should prove as part of the materiality aspect. So the

motion is denied.

Do we have any other matters?

MS. MILLER: There is one other matter, Your

Honor. A ruling that Magistrate Judge Brown made on a





motion to suppress, he recommended that it be denied. The

defense has objected to that. It really does need to be

addressed before we empanel the jury.


MS. MILLER: Should the unthinkable happen and

the Court reverse it and suppress the statement, the

government would have certain appellate rights that it

wouldn't have after the jury is impaneled.

THE COURT: Yes, but when it comes to me late in

the game for whatever reason, I don't even know the reason,

I don't care, but when it comes to me midway through jury

selection, then I have to probably do what I've done in

hundreds of cases and that's rule on it when it comes up to

trial. The disadvantage to the government is that they

cannot appeal from it.

I suppose you say you have confidence in the

correctness of the ruling. I respect that. I'm sure you

analyzed it carefully. Why don't you ride on your belief

that you're going to prevail on that? But if you should

not, hypothetically, would you want to stop this whole

process and take an appeal right now?

MS. MILLER: Your Honor, the motion if it was

granted by the Court, which is unthinkable, there is an

issue where the defense is saying -- it would effectively

make it impossible to prosecute one of the defendants in





this case. It wouldn't just be a question of suppression

of a statement.

THE COURT: Which defendant?

MS. MILLER: Mr. Florence.

THE COURT: So we can get it resolved, and the

Appellate Court will take care of it in two or three years

and you'll come back and try the case again.

MS. MILLER: No, Your Honor, once jeopardy is

attached we couldn't sever it out. We would be stuck.

THE COURT: That's true. So you want to get it

out before the jury is sworn in opening statement. Tell me

about it. Let's hear it.

MS. MILLER: Mr. Brigham will address that.

THE COURT: Well, it's your objection.

MS. MOSCOWITZ: If it's so unthinkable maybe we

don't need to hear from me at all.

THE COURT: Maybe not.

MS. MOSCOWITZ: It's hardly frivolous, Your

Honor. We moved to suppress Mr. Florence's statement to

NTSB investigator James Henderson, which was given May 20,

1996, I mean May 16th, 1996, just a few days after the

accident on the grounds that that statement was compelled

under the Garrety case.

Your Honor recalls that the Garrety case says if

your Fifth Amendment right is burdened by the fact that you





could lose your job by not cooperating in giving a

statement, the statement is compelled and you are immunized

and then Castigard (phonetic) jumps in and says that the

government from that time forward must show every piece of

evidence that is derived is derived from the defendant's

statement and the fruits of his statement.

The record is uncontradicted, and I rely primarily

on two cases --

THE COURT: Tell me the facts first. Excuse me,

but Mr. Florence is before the examiner or whoever, and he

is giving a statement on May 16. Could you refer me to

something that that is what he said at that time or what

was said at that time.

MS. MOSCOWITZ: He described something -- I don't

have it on me, Your Honor. The government has it marked as

an exhibit which is interesting since it's not a

transcript. But in any event, it is a description of some

of the work that he did at the time.

The testimony before Magistrate Judge Brown by

Mr. Florence that he believed he had no Fifth Amendment

right in front of the NTSB, that he was compelled to speak

to them at the potential price --

THE COURT: That's his thought. What was said at

the time that gave him that thought?

MS. MOSCOWITZ: Nobody testified to exactly what





was said, including Mr. Henderson. But under can a macho,

the question is what the clear implication was. There are

two tests, two legs --

THE COURT: But the atmosphere, the timing, the

place, what was done, before we get into all the cases,

most of these things come up in the context that somebody

is called before a grand jury, and they are inadvertently

immunized and no one realizes it. Then you can't

prosecute. That's the theory, but we have to know what

happened. Was there is a grand jury? The facts. I don't

mean to burden you.

MS. MOSCOWITZ: We have been living with it for

so long that I'm jumping into the middle. Forgive me.

The crash was May 11. The NTSB did what it

always done which is puts together a team to investigate

the crash. That team came to Miami, some of it, and

started trying to figure out what they could see happened.

They always have various teams. They had a group

investigating hazardous materials, and they got together a

lot of SabreTech employees early on, and they wanted to

interview them to start seeing if they could determine the

probable cause for the accident. The accident was May 11.

By May 16th they had already assembled a group of mechanics

and the shipping and receiving people from SabreTech. That

group, that NTSB group, was headed by an NTSB investigator





named James Henderson. Among the people that Mr. Henderson

summoned, this was on the SabreTech premises, and there

were a number of NTSB people present and various people

from various organizations including our party

representative, John Mecalo, who was the SabreTech

representative at the NTSB, and this list of SabreTech

employees was summoned to speak to Mr. Henderson in charge

and various other people.

Mr. Henderson gave a preface to Mr. Florence

before Mr. Florence spoke to him. Nobody testified -- and

there was no written record of exactly what was said at that

time. Mr. Florence testified and Mr. Mecalo testified,

because he was present for that preface also, not that

Mr. Henderson said, "you must speak to me." He didn't do

that. After all, Mr. Henderson was not there in a criminal

investigatory --

THE COURT: What did he do?

MS. MOSCOWITZ: He made clear to Mr. Florence

that he had to speak to him.

THE COURT: What does the evidence in the record

before Judge Brown show that he says?

MS. MOSCOWITZ: The evidence in the record before

Judge Brown shows that Mr. Florence and Mr. Mecalo that was

present understood that Mr. Florence had to speak with the

government representative.





THE COURT: Judge Brown let them tell him about

the understands and opinions at this late date. He didn't

require them to say, "Mr. Henderson, gentlemen, you have to

talk to me." He didn't say that in the evidentiary


MS. MOSCOWITZ: Your Honor, the cases --

THE COURT: Forget the cases. I would like to

know what is in this record that you're bringing up to me

for consideration. You are saying that apparently the

evidentiary hearing was not complete. It only required the

people to give their opinions.

MS. MOSCOWITZ: On the contrary, Judge. Nobody

remembers the exact words. They remember the message.

Nobody remembers the exact words. It wasn't that we didn't

know what was the issue. The issue is the exact words are

lost. Mr. Florence clearly remembers that he believed he

was compelled to speak to Mr. Henderson or he would lose

his FAA certificate. Mr. Mecalo heard the same words and

had the same understanding. The only thing the government

asked Mr. Henderson was, "did he say that you must talk to

me or you will lose your certificate." He said, "I didn't

say that" but nobody remembers what he did say.

THE COURT: So we don't have a complete record.

You just related to me what everybody thinks they remember.

That is not fact. What is a fact is "I was present." "I





heard Mr. Henderson say the following," or "I was present

and Mr. Henderson didn't get into anything dealing with the

subject." What he said was A, B or C.

For me to intelligently rule on this I have to

determine what was said at that point in time. I can't

just go on what everybody thinks they understood. The

understanding of the person who is the one desirous of

getting the immunity is not the controlling factor in these


Therefore, it seems to me what I have to have is

a record. Now, the government wants me to do that prior to

impaneling this jury. I don't know how I can get a record

with Mr. Henderson testifying as to what he said at that

hearing, and then we will all know what he didn't say. If

he says he can't remember what he said, well, then, that's

fine too. But at least we will have a record. Right now

we don't have a record. I don't know how to get a record

in the short time that we have available. How do we do


Ms. Miller, are you absolutely convinced that the

right to appeal this is so important that we have to disrupt

this and excuse everybody and have this evidentiary hearing?

MS. MILLER: First of all, there is a record, and

I think Mr. Brigham can allude to that fact.

THE COURT: Somebody give it to me.





MS. MILLER: All right, Your Honor, but you

haven't heard from the government on this.

THE COURT: I didn't know you had a record.

MR. BRIGHAM: It is summarized in the Court's

report and recommendation.

THE COURT: Here we go. It's Judge Brown's

opinion now of what somebody else's opinion is.

Does anyone have a transcript of what

Mr. Henderson said?

MR. BRIGHAM: There is a transcript, Your Honor.

It would take me a moment to locate it.

MS. MILLER: I can go get it.

THE COURT: I don't want to lose you, because we

have got a bunch of jurors sitting out there. There is a

transcript somewhere?


THE COURT: We will pause in this consideration

until you all furnish me, someone furnishes me the

transcript. It should have come along with the appeal. If

I have a transcript I can read that, and I can understand

better and more clearly your respective position.

At the first recess this morning we will try to

get the transcript. You will get the transcript?


THE COURT: Let's bring the jury in and resume





the selection. Let's see if we can have -- I don't know

whether they have had an opportunity to give us the

questionnaire. We have 30 more jurors coming in.

COURTROOM DEPUTY: They have all the


THE COURT: Can I have a copy of them please?

COURTROOM DEPUTY: Yes. I'm just giving them out


THE COURT: Mr. Moscowitz, do you have the

questionnaires of the 30 jurors coming up this morning?

MR. MOSCOWITZ: No, we do not.

MS. MILLER: We have got to go through the

questionnaires and make sure we have got the ones on this


THE COURT: All right. I've gone through the

first five jurors on the list and glanced at pages ten and

the final pages. It would appear that with respect to the

first juror, Mr. Stewart, that he has a problem about

concern about his house is not wired for the habitat for

humanity. Other than that, he doesn't seem to have any

real difficulty. He doesn't seem to know much about the

crash. He did read something about it, but he hasn't

formed any opinion. What do you want to do? His

suggestion that he has a problem because he is not out

there wiring houses for humanity he says will distract him.





MR. MOSCOWITZ: We are prepared to excuse him,

Your Honor.

MS. MILLER: I think we ought to see if he is

asking to be excused. He is saying that he has a problem,

but it's not clear to me whether he is asking to be


THE COURT: All right. Let's turn to the next

one. Stump, you can read on page 11 what he knows about

the case. What do you want to do? Do you want to spend a

half day asking him what he knows?

MS. MILLER: I think we should treat him like the

other jurors.

THE COURT: If I treated him like I wanted to do

we would take all of these people last, and I would take

only those who have not heard about this case. But you all

wanted to do it this way. But I may change this and take

the ones that do not know anything about the case and take

them first. We are looking for one alternate jurors.

MS. MILLER: The parties had what we thought were

good reasons not to. We are almost through --

THE COURT: So you want to bring this man in and

let Mr. Moscowitz talk to him for a half hour? At the end

of that you know Mr. Moscowitz is going to get him to say

that he has some opinion that would prevent him from being

fair, because any good lawyer can do that.





MS. MILLER: Your Honor, I think the juror

selection should be conducted by the Court as it was


THE COURT: So you want to bring him on?

MS. MILLER: Yes, sir.

THE COURT: All right.

The next person, Michelle Diaz has a problem with

an internship in elementary extension. In January she has

to be there every single day. Is the government insisting

on bringing her in?

MS. MILLER: No, Your Honor.

THE COURT: How about the government?

MR. MOSCOWITZ: No, Your Honor.

THE COURT: We will excuse her, and Vicki, you

can go out and tell her, however many there are, that they

are excused.

The next one, Doughty, doesn't seem to have any

problem with publicity, and doesn't seem to have any

problems with sitting, so we will bring her in.

MS. MILLER: Your Honor, just a moment because my

notes reflect some issue here. I can't find it, Your

Honor. Why don't you just bring her in.

THE COURT: I will give the counsel opportunity

to tell me by number what they wish to get into.

The next lady, Ivy Lee Williams tells us that her





hospital is scheduled for resurvey in the Spring, and she'll

have to delegate her responsibilities to her staff. On page

11 she has some very intelligent answers to the questions.

If any of you feel that you have some cause challenge at

this point before we talk to her, let me know.

MS. MILLER: No, sir, Your Honor. I think she

should be brought in.

THE COURT: Does the defense agree?

MR. MOSCOWITZ: Your Honor, our cause challenge

would be based on her exposure to publicity, Your Honor.

THE COURT: We will ask her some questions and

see. All right, that's the first five. Let's see if there

are anymore clearly for cause.

MS. MILLER: Your Honor, I think the next one is

clearly a cause for strike. This gentleman has discussed

this case a number of times with an FAA official. He is an

FAA official himself.

THE COURT: Any objection, Mr. Moscowitz?

MR. MOSCOWITZ: No, Your Honor.

THE COURT: This is Skinner. His name is Skinner

and he will be excused.

I think that the next one will be one that should

be excused for cause. It looks like she has had some very

personal experiences with near crashes of an airplane.

MS. MILLER: Your Honor, can you refer me to a






THE COURT: Yes, question 46. Her husband was on

a flight to the Bahamas and it almost crashed, and she is

scared and nervous. I'm looking at Linda Carol Embry.

MS. MILLER: We had taken her out of our packet.

THE COURT: She is excused. That lady will be


I see no reason immediately for Satiani.

MS. MILLER: Agreed, Your Honor.

THE COURT: Does the defense see any problem with


MR. MOSCOWITZ: No, Your Honor.

THE COURT: Sanchez?

MS. MILLER: Yes, Your Honor. Let me find the

number. I believe there is a problem with this juror.

THE COURT: She has a problem about her mother?

MS. MILLER: Yes, Your Honor. I think we have to

come to side bar.

THE COURT: Can you refer me to a different

question that sheds more light on it?

MR. MOSCOWITZ: Question 30.

THE COURT: Thank you.

MR. MOSCOWITZ: Your Honor, I'm looking at the

Arlene Sanchez.

MS. MILLER: Your Honor, we would have to go to





side bar on this one.

THE COURT: Unless you and Mr. Moscowitz can

agree. Why don't you tell him what it is.

MS. MILLER: Your Honor, Mr. Moscowitz and I

agree that she should be excused for cause.

THE COURT: I think the next one would appear to

be a proper excusal for cause. Look at questions 56, 58

unless you want to seat her daughter with her.

MS. MILLER: What is the next one you have?

THE COURT: I'm looking at Rose Mary Steed.

Question 58.

MS. MILLER: Yes, Your Honor, we would agree.

THE COURT: Mr. Moscowitz?

MR. MOSCOWITZ: We agree, Your Honor.

THE COURT: Steed will be excused for cause.

The next one looks perfect. We ought to call that

one first. Never heard of anything.

MS. MILLER: We agree this juror should not be

excused for cause, but we believe it should go in the same


THE COURT: I am going to do that. I just said

it was a perfect juror.

Delgado. Question 56 on Delgado.

MS. MILLER: Your Honor, we don't necessarily

take the same position as the Court, but she is certainly





consistent with other jurors that were excused for cause on

the basis of similar claims.

THE COURT: Any objection for excusing her for


MR. MOSCOWITZ: No, Your Honor.

THE COURT: She'll be excused for cause, Delgado.

Now we are on Jaime Parlade. He has a conflict

on February 22, 2000. Do you all think we will be finished

by that time?

MS. MILLER: Your Honor, I think we have to be.

Ms. Moscowitz has a trial commitment starting before then.

We will be finished.

MS. MOSCOWITZ: I hope so, Your Honor.

THE COURT: Yes, we will be furnished.

THE COURT: You have a problem on page 11 with

this juror, of knowledge.

MS. MILLER: Your Honor, I don't believe that

this juror is distinguished from other jurors. She stated

she has no opinion.

THE COURT: Right now we intend to bring her in

and question her unless you agree that we can dispense of


MS. MILLER: No, Your Honor, we don't agree.

THE COURT: All right. Pierce. I would suggest

that we excuse the next person because of the answers to





questions 34, 36, 37. You get over to 54, 55. It seems to

me that we are building on a problem if she were, or he

were, to be seated. Tony Pierce is the one that I am

talking about.

MS. MILLER: Again, Your Honor, we don't

necessarily agree, but we think it is consistent with the

Court's approach yesterday.

THE COURT: This one has back problems with


MS. MILLER: We understand.

THE COURT: I recommend excusing her.

MR. MOSCOWITZ: We agree, Your Honor.

THE COURT: Pierce will be excused.

I will ask the courtroom deputy to go out and

announce the people out there. Those are all to be excused

for cause. The rest are to be brought into the courtroom

and we will commence the process for selecting the


You can bring in the jury, Marshal, that are in

the jury room.

Thank you, be seated please.

[The jury returns to the courtroom].

THE COURT: As your names are called, would you

kindly step forward and take a seat in the seats indicated

by the marshal. Ms. Kramerman?




COURTROOM DEPUTY: Thomas Stewart, Gary Stump,

Eva Doughty.

THE COURT: Thank you. Mr. Stewart, just be

relaxed. We have a few questions for you.


Q. Mr. Stewart, tell us your name and where you live. A

little bit about yourself.

A. My name is Thomas Stewart. I live in Kendall lakes. I

am an electrician. Live in Dade County. Born and raised

here all of my life.

Q. Do you have your own electrical business?

A. No, sir. At this time I'm the only employee of DC

Electric. At this time we are doing the homes for Habitat


Q. You indicated that this might be a problem for you. We

do anticipate this case will take approximately 6 maybe 8

weeks to try, finishing up just before Christmas. Would

that be a problem for you? It would be a problem for

everybody, I know.

A. Right now I'm the only employee at DC Electric doing

these homes for Habitat. Right now we are in a crunch. We

have Little Haiti and Miami. Right now, I'm the only


Q. How much time are we talking about? A week, two weeks,

a month?





A. They are trying to get finished up December 18.

Q. Would you prefer to be on another case that would take

a few days?

A. Yes, sir, I would prefer that.

THE COURT: What is the position of the

respective parties?

MS. MILLER: We are at the Court's pleasure, Your


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

excusing this juror.

THE COURT: You are excused. Thank you, sir.


Q. Mr. Stump, tell us about yourself, sir, your name and

where you live.

A. Gary Stump, 2787 Southwest 95 Avenue. Miami, Florida.

I'm an electrician.

Q. You could probably help the guy out some. Too bad we

didn't get you on the same job.

Who do you work for?

A. I got laid off two weeks ago because this was coming

up. I notified my employer of it.

Q. Just laid you off entirely?

A. Yes.

Q. Do you work for a union?

A. Yes.





Q. Let me ask you a few more questions. Are you married?

Do you have children?

A. No, I'm divorced. I have two sons.

Q. How long have you lived in the Dade County area?

A. Since 1959.

Q. You've been in electrician work all of that time?

A. Since 1963.

Q. As the other jurors all know, this case will be in

large part about the crash of ValuJet flight 592 back in

1996. In your questionnaire, and we appreciate all of you

filling out these, you indicate that on television, radio or

newspaper you read about that event back in 1996. Have you

heard anything about it since then? You indicate that you

don't really recall anything since then. Do you recall

anything about the case since then? Just yes or no.

A. The only thing was that the T.V. yesterday said --

Q. Don't tell us what was said. It is perfectly all right

for people to have heard stories or read stories. The

problem is that it may influence your thinking so that you

couldn't be a fair or impartial juror in this case.

Do you think that you recall anything about the

case or the stories that you read or heard or saw back in

1996 or anything you may have heard or seen in the last few

days? Is there anything about that that you think so

influenced you that you have formed an opinion at this point





pro or con, guilt or not guilt, have you formed an opinion

that would prevent you from being fair in this case?

A. No, sir.

Q. Is it a fair statement that you don't recall a whole

lot about it except what you wrote down in your


A. Correct.

Q. I will instruct all of you that you should exclude from

your minds anything that you may have read in the newspaper,

seen on television or heard on the radio or any

conversations you may have had with a neighbor or friend or

anybody, and base your verdict solely on what you hear in

this courtroom. That will be what I instruct you to do. It

will be very important for you to follow that instruction.

It will be very unfair to all sides, the government, the

defense, if you were to decide the case based on something

you read in the newspaper three years ago or whatever. You

understand what I'm saying to you, don't you?

A. Yes, sir.

Q. Can you do that assuming that I give that instruction,

and I will. If you believe something that you have read or

heard is so strong that you can't put it out of your mind

then tell us that. So it's up to you. You tell us in all

honesty. Can you base your verdict solely on what you hear

in this courtroom?





A. I believe so.

Q. Do you have any bias or prejudice at all that you are

aware of against or for anybody involved in this case, any

of the lawyers, and I haven't introduced them lately, but we

have Ms. Caroline Heck Miller who is standing, Assistant

United States Attorney Jeff Brigham, and they have an FBI

case agent Ms. Breshay. Do you know any of them or have any

dealings with the U.S. Attorney or FBI or anything like


A. No, sir.

Q. Over here we have Mr. Martin Raskin, and seated beside

him is Mr. Norman Moscowitz and also Ms. Jane Raskin, these

three lawyers represent SabreTech, Incorporated. Do you

happen to know any of the three attorneys?

A. No, sir.

Q. Thank you. We also have Ms. Jane Moscowitz

representing Mr. Eugene Florence, and Mr. Florence is

standing. Do you know Ms. Moscowitz or Mr. Florence?

A. No, sir.

Q. We have Mr. Robert Dunlap and Ms. Marcia Silvers

representing Mr. Daniel Gonzalez.

MR. DUNLAP: Ms. Silvers is not here this


THE COURT: Excuse me. I don't know why I could

have overlooked her. When you see her you know it. She is





a very attractive person.

Q. Do you know Mr. Dunlap? He has been practicing law

here for several years.

A. No, sir.

Q. Do you think you can be fair and impartial?

A. I believe so.

Q. Would you hand the microphone to Ms. Doughty, Eva


Miss Doughty, would you tell us where you live.

A. My name is Eva Doughty. I live on 22nd Street. I have

three sons. I'm retired, and I have gout. I can hardly


Q. I see. It would be a physical difficulty for you to

sit on the jury. Would you like to be excused?

A. Yes.

THE COURT: I would be inclined to excuse her.

Any objection?

MS. MILLER: No, Your Honor.

THE COURT: All right, I neglected if there is

any other questions on the questionnaire you would like me

to go into on Mr. Stump.

MS. MILLER: No, Your Honor.

MR. MOSCOWITZ: Your Honor, question number 35.


Q. Mr. Stump, this situation somebody had back in 1998,





was that yourself or a family member that had that problem?

A. I was involved in a lawsuit in a law suit with VW

welfare trust fund, and I paid a settlement to them in


THE COURT: Marshal, would you hand this to him

please and let him take a look at number 35.


Q. I'm not going to ask you a lot about that. Just who

was it? Was it you or a member of your family?

A. It was a lawsuit for subrogation on an automobile

accident. They were suing me to get two thirds back of what

they were suppose to pay up

THE COURT: Thank you.

MS. MILLER: Are you sure we focused on 35 as

opposed to 34?

THE COURT: Well, Ms. Miller, I handed it to him.

Of course, he read the right one.

Q. Just read it to yourself again, sir. Was that you?

A. No.

Q. It was a member of your family?

A. Yes.

Q. Was it your son?

A. One of my sons was under investigation. He never went

to court. He was found not guilty.

Q. All of that is behind now? It is all in the past?





A. Yes.

Q. Is there any hold over or bias or prejudice in your

mind about that?

A. No.

THE COURT: Call the next juror.

COURTROOM DEPUTY: Ivy Williams, Suresh Satiani.


Q. Ma'am, tell us your name and where you live.

A. Ivy Williams. I live in Carol City. I am an assistant

hospital administrator.

Q. How long have you been at the hospital?

A. For 14 years.

Q. Tell is a little bit more about your responsibilities

and duties there please.

A. It is a state operated hospital for the criminally

insane. I've been the assistant administrator there for six


Q. You have an evaluation?

A. We have a survey college up in the Spring for a

continued accreditation for the hospital.

Q. When, in the Spring, will it be coming up?

A. Some time between March and May.

Q. If we assume that we will hopefully be finishing this

trial in 4 to 6 weeks, before Christmas, I know that you've

indicated on your questionnaire that you have certain





responsibilities in preparation for that survey that you

might have to delegate to others, but could you give us your

undivided attention if selected on the jury?

A. Yes, sir, I believe I could.

Q. By no stretch of the imagination are we going to be

here past that time. It just isn't going to happen, believe


You have indicated that you did see some items on

T.V. and in the newspaper about the airplane crash back in

May of 1996. You heard what I said to Mr. Stump, and I've

said it to all of these folks. You understand that, don't

you, the necessity of basing your verdict on what you hear

in the courtroom?

A. Yes.

Q. Do you think there's anything about the publicity that

you read back then that would in anyway affect your verdict

in this case?

A. No, sir.

Q. You have no present opinion about any of the issues in

this case? It's a silly question. You haven't heard the

case. But you don't have any present fixed opinion about

guilt or innocence, is that correct?

A. That's correct.

Q. You can put out of your mind anything that might

innocently or accidently come to your attention that does





not come out through the courtroom?

A. Yes, sir.

Q. Would you hand the microphone to the gentleman there.

THE COURT: Were there any other questions with

reference to Ms. Williams?

MS. MILLER: No, Your Honor.

MR. MOSCOWITZ: Your Honor, I know Ms. Williams

has criminal jury experience.


Q. Have you served on a jury before?

A. Yes, I have.

Q. When was that?

A. A few years ago.

Q. Did they reach a verdict in that case?

A. Yes.

Q. Were you the foreperson of that jury?

A. Yes, I was.

Q. Is that the only jury you served on?

A. No, sir, I served on another jury prior to that.

Q. How long ago?

A. That one has been at least six or seven years ago.

Q. Was that a civil or criminal case?

A. That was civil.

Q. Did that jury reach a verdict?

A. Yes, sir.





Q. Were you the foreperson of that?

A. Yes, sir.

Q. Each of these cases, were they in the state court? The

civil case may have been on Flagler Street?

A. Yes, sir.

Q. How about the civil case?

A. Over at Jackson.

Q. 12th Avenue?

A. 12th Avenue.

Q. You heard certain jury instructions given to you by the

Judge in both of those cases. I will give you instructions

at the end of this case on the law. You must follow those

instructions. They may differ slightly from the

instructions you heard in the earlier cases. The key

question is can you and will you rely upon and follow the

instructions that the Court gives you in this case

pertaining to these facts, and if they are any different

then disregard the others. Can you do that?

A. Yes, sir.

Q. Sir, can you tell us your name?

A. Suresh Satiani. I live in Country Walk. I am a photo


Q. Tell us a little bit more about your work.

A. I am a technician for photo equipment maintaining






Q. Tell us about family, married? Children?

A. I'm married and I have two daughters.

Q. Does your wife work outside the home?

A. Yes, she does.

Q. Back at the time of this airplane crash in May of 1996

and again recently you heard something about the case. Do

you believe that what you have seen on T.V. or read in the

paper about the case would carry over and affect your

impartiality, your fairness in this case?

A. No.

Q. You've heard what I have said to the other jurors. You

understand you would be required under the law to base your

verdict solely on what you heard in this case, in this

courtroom and put aside anything you may have read or heard.

Can you do that?

A. Yes.

Q. And you served a couple of times in criminal cases in

the 11th Circuit in Dade County. How long ago was that?

A. Last year.

Q. Were you the foreperson of the jury?

A. I wasn't selected.

Q. So you have not sat on a jury and served all the way


A. No.

Q. Do you believe you can be fair and impartial in this





case if selected?

A. Yes.

THE COURT: Any questions from anybody?

A JUROR: The reason I want to be excused is

because I don't have convenience. I only have one car. My

wife goes to work, and it would be very hard for me to come

back and forth here.

THE COURT: Well, I will let the lawyers think

about that and decide what they want to do.

Any challenges? I believe we were with the

government. Any challenges of any of the three alternates?

MS. MILLER: Your Honor, with our thanks we would

excuse Mr. Stump.

THE COURT: Thank you, Mr. Stump.

Call the next two jurors.

COURTROOM DEPUTY: Erold St. Hilaire.


Q. Good morning, sir. Tell us about yourself.

A. My name is Erold St. Hilaire. I live in North Miami.

Q. What do you do for a living?

A. I am a welder.

Q. Do you work for a particular company?

A. Yes.

Q. Which company?

A. (Unintelligible.)





Q. How long have you worked for that company?

A. 9 years.

Q. You were born in Haiti? How long have you lived there?

A. 16 years old.

Q. You have not heard anything about this crash that we

have been talking about except what we heard today?

A. Yes, but I don't understand so well. I don't follow

too clearly.

Q. Have you been able to understand what I'm saying to the


A. Yes.

Q. Your last said I don't follow too clearly, but you have

been able to follow and understand what I'm been saying,

have you?

A. Yes.

MS. MILLER: Your Honor, Mr. St. Hilaire didn't

answer question four, the little cover sheet.



Q. Do you have any difficulty reading and speaking and

understanding the English language?

A. Well, I can speak good and the writing not good.

Q. You have a little trouble with the reading?

A. Not reading good.

THE COURT: There are going to be a lot of





documents in this case, and unless there is some objection,

I would excuse Mr. St. Hilaire with our regrets because

he's fine man. Any objection?

MS. MILLER: No, sir.

MR. MOSCOWITZ: No, Your Honor.

THE COURT: You are excused. We thank you very


Call the next juror.



Q. Sir, would you tell us your name and where you live.

A. Jaime Parlade. I live in Westchester. I work for

Miami Dade County Tax Collectors' Office.

Q. How long have you worked there?

A. Six months.

Q. Before that what did you do?

A. I used to work with a construction company.

Q. Now, you've heard about this airplane crash from the

T.V., radio and newspaper, is that correct?

A. Yes.

Q. Do you think anything that you have read or heard or

seen would carry over and cause you to have some opinion or

bias or prejudice at this point in this case?

A. I don't believe so.

Q. Do you think that you could sit here and listen to the





case and listen to the evidence and decide it fairly and

objectively regardless of what you may have seen or heard

about the case?

A. I think so.

Q. Do you understand that if the evidence is different

from what was in the newspaper and television you must

follow the evidence and put aside anything that you may have

read. Can you do that?

A. Yes.

THE COURT: Any questions?

MS. MILLER: No, sir.

THE COURT: For the government, any challenges?

MS. MILLER: Your Honor, if I could speak to

Mr. Moscowitz.

Your Honor, we want the Court to return to the

issue with Mr. Satiani with his transportation problem.

THE COURT: I think that is a serious problem.

What do you want to do?

MS. MILLER: The government should suggest that

that is an excusal for cause.

MR. MOSCOWITZ: We agree with that, Your Honor.

THE COURT: Yes, we are going to need everybody

here on time, and if you have a transportation problem that

will be a problem. So you are excused, sir. Thank you.

Call the next juror.







Q. Tell us your name.

A. Juan Espinosa. I live in Hialeah. I'm a school

director for day care. I would like to be excused for that

reason. I have a teacher in charge of the school at this


THE COURT: Given the length of the trial, it

would seem to be appropriate. I would be inclined to grant

it unless there is objection.

MS. MILLER: No objection, Your Honor.

MR. MOSCOWITZ: No objection, Your Honor.

THE COURT: Thank you, sir. You are excused.



Q. Tell us your name and about yourself.

A. Page Stribling. I live on Miami Beach. I'm currently


Q. What is your regular work?

A. My previous employment was as a U.S. Customs


Q. For whom did you work?

A. A consulting firm by the name of Bill and Lowenstein

Associates (phonetic).

Q. How long did you work there?





A. Approximately four years.

Q. How long have you lived here?

A. Since 1988.

Q. Are you married? Children?

A. No, sir, single, never married.

Q. You have read and heard about the airplane case that we

are talking about. From what you read at the time, have you

heard anything recently?

A. Sure.

Q. From these stories or articles or news cases have you

formed any opinion that would carry over and affect your

verdict in this case in any way?

A. To be truthful, Your Honor --

Q. Just a yes or no.

A. No.

Q. No, it would not affect you verdict? If you think it

would affect your verdict in this case, please say yes. If

you think it would not, please say no.

A. Yes.

THE COURT: You may be excused. Step down. Call

the next juror.



Q. Miss Edwards, would you tell us your name.

A. Portia Edwards. Opa-Locka.





Q. Do you work outside the home?

A. Yes, cashier, Chef Ron.

Q. Ms. Edwards, I have just reached page ten of your

questionnaire and answer to 46. We understand, ma'am.

I think, unless there is some objection, I would

excuse Ms. Edwards with our profound thanks. Thank you very


MS. MILLER: No objection, Your Honor.

COURTROOM DEPUTY: Joanne Pennerman.


Q. Would you tell us your name, address and where you


A. Joanne Pennerman. I live in Miami in Fountainebleau

Park. I work for the Department of Justice Department

Immigration and Nationalization Service. I am a supervisor

for 11 and a half years.

Q. As you know, the United States is on one side of the

case. They are a party to this case. Would there be any

difficulty for you having been a long time employee of the

Department of Justice sitting on a case involving the

Department of Justice if it is your conclusion that there

should be a not guilty verdict? Would that be any

embarrassment for you? Could you rule not guilty in this

case without any concern about your work?

A. I have no concerns, Your Honor.




Q. It was a wordy question, but I think you understand the

thrust of it. You are going to be called upon one way or

the other at the end of the case, and the whole question is

your employment, would it be a problem for you, and the

answer is no, it would not be a problem?

A. No.

Q. Do you know Ms. Miller or Mr. Brigham or anybody

connected? Do you have any close friends that work in the

U.S. Attorneys Office?

A. No, I do not, sir.

Q. Does your work bring you in contact with the Assistant

U.S. Attorneys from time to time?

A. It hasn't for me.

Q. What about investigative agencies, FBI or DEA? Do you

have any close friends with them?

A. No, I do not.

Q. You have read some articles or heard some news

publications about the case back earlier on. Do you believe

that anything you may have read about the event at the time

or since would affect or carry over and influence your

verdict in this case in any way?

A. No, Your Honor.

Q. Could you base your verdict solely on what you hear in

the courtroom and not upon any newscast?

A. Absolutely.





THE COURT: Any other questions?

MR. MOSCOWITZ: Your Honor, if I could direct

your attention to question 42.


Q. Would you tell us a little bit about your son-in-law's


A. He works for F and E Maintenance at Miami International

Airport, but he is in administrative work inside the office.

He does payroll and purchase orders and the like.

Q. How long has he been married to your daughter or how

long has he been your son-in-law?

A. 2 years.

Q. What does your daughter do?

A. My daughter is at home with a baby. She is a


Q. The maintenance company, does he have anything to do

with -- is this airplanes?

A. To be honest, I have no idea. It might be, but I don't

ever talk to him about his job.

Q. Basically, it is office work and not mechanical work?

A. No, he works in the office.

THE COURT: I will instruct all of you not to

discuss the facts of this case with anyone during the

pendency of the trial. That would be friends, relatives or

spouses. Quite innocently someone might say something that





would affect your verdict. So I would instruct you not to

talk to your son-in-law about the facts of the case. Could

you do that?

A JUROR: I most certainly could.


Q. Now, your daughter worked for an airline or travel


A. Yes, she worked for Bahamas Airlines for 2 years, and

she went to work for reservation service when Pan-Am came

back. When she got pregnant she just left.

Q. Did she have any experience of any sort that would

affect your verdict in this case, any accidents or anything

like that?

A. No, Your Honor.

Q. Your former husband also worked for an airline?

A. Yes, he did. Bahamas Air. He was a sales manager. He

worked until he retired back in '92.

Q. How long ago have you been separated?

A. I got divorced in '91.

Q. Eight years ago?

A. Yes, but we are living together. We have been back

together since 1995.

Q. So you do talk to each other?

A. We do. More now than before.

Q. All right. But he has been retired as CEO Bahamas Air





since '92?

A. Yes.

Q. Anything about that experience that you think would

carry over?

A. No, not at all.

Q. Is he doing anything part-time?

A. He works for CSC. He goes maybe one day a week or two

times a month. They have the Heat games and the Miami

Dolphins. He works as a ticket-taker just to kill time, but

he is not really working.

Q. Except for your son-in-law's job, no one in your family

is currently involved with the airline business?

A. No, not at all.

THE COURT: Any other questions?

MS. MILLER: No, Your Honor.

MR. MOSCOWITZ: Your Honor, may we approach the

bench briefly?

THE COURT: All right.

(Sidebar proceedings off the record)

THE COURT: All right then, ladies and gentlemen,

those of you that remain this morning that appeared to

assist us with the selection of this jury, and there are

perhaps three or four left in the jury panel. I guess it

would be just Perez and Worlds, you two are very

distinguished because we just didn't get to ask you where





you lived and what you do. You were very helpful to be

here. Your presence was very helpful. We thank you very

much. You folks are excused. You can give your tabs to

the marshal. You are free to go home.

Ladies and gentlemen, we are going to take a

recess at this point in time while I take up some legal

matters with the lawyers. Then we should be hearing opening

statement in the case after you come back.

When you are in the jury room we ask that you not

discuss the facts of the case or things about the case. We

ask that you wait until you heard all of the evidence before

you start those preliminary discussions. You can talk about

anything you wish like your family, your friends or your

work, but we ask that you not discuss the case. There is a

lot of evidence to come. You might hear some of it and then

have an opinion.

Sometimes if you start talking about an opinion

right off the bat it's hard to change later on. So we ask

that you try to do your best and keep an open mind and don't

talk even among yourselves about the case.

Additionally, of course, if anyone ever during the

pendency of the trial attempts to talk to you about the

case, that's a serious offense. Tell them that you cannot

talk about it. If there should be anything in the radio,

newspaper or television, you won't see it in the jury room





or in court, but in the evening when you go home there may

be something, we ask that you not read it, not watch it and

not listen to it. It's hard to pick up a paper and not look

at it, but if you see something that looks like it is

connected with the case put it aside. Don't get involved.

Don't let anything come to your attention except what you

hear in this courtroom.

As you know, by know those of you that were here

yesterday, we have some coffee and tea. We will be in

recess for about 10 minutes. Thank you very much.

Before you leave, let's name the alternates.

COURTROOM DEPUTY: Patrick Gilyard number one.

Number two, Ivy Williams. Three is Jaime Parlade, and four

is Joanne Pennerman.

THE COURT: Thank you very much. Take the same


[The jury leaves the courtroom].

THE COURT: All right, we are going to take a

brief recess before we take up the matter of the transcript

in Judge Brown's court.

I think it is an incredible coincidence that

Mrs. Portia Edwards' her daughter's mother-in-law was

actually a passenger on this flight. What an incredible

coincidence that she would be summoned to be a juror in

this case, but I guess stranger things have happened.





We will take a ten minute recess then we will

hear from you on the matter of the transcript from Judge



[There was a short recess].

COURTROOM DEPUTY: All rise. The Honorable Judge

James Lawrence King presiding.

THE COURT: Could somebody point out which

portion of the transcript dealt specifically with whether

or not Mr. Florence was advised that he was required to

give his statement.

MR. BRIGHAM: As an illustration of that point,

Your Honor, I would direct the Court's attention to page 50

and to start reading, if I may, at line 24 through line 10,

or actually 11 of the following page.

THE COURT: All right. I have read that. Any

other portion you wish to call to my attention?

MR. BRIGHAM: Another portion I believe would be

relevant, Your Honor, would be page 54 and that would be

line 4 through line 12.

THE COURT: All right. Ms. Moscowitz, I will be

pleased to look at any contrary testimony that your

research may have developed.

MS. MOSCOWITZ: Your Honor, first I would like to

point out that the parts that Mr. Brigham referred you to





is what was going on inside Mr. Henderson's head, not what

he was saying and understood. I would like to point out on

page 56 that Mr. Henderson speaks of the urgency of his

inquiry. Obviously, he wants to find out right away right

after an accident if there is something --

THE COURT: Page 56?

MS. MOSCOWITZ: Yes, sir.

THE COURT: What line?

MS. MOSCOWITZ: It's hard for me to make it line

by line, Judge. Starting at 18, Your Honor, and going

through the next page ending at line 9.

THE COURT: All right.

MS. MOSCOWITZ: Then, Your Honor, picking up

again at page 58 is the closest to what Mr. Henderson

recollects he said at line 13 through 19. I would like to

point out to Your Honor that --

THE COURT: I can read it. Thank you.

MS. MOSCOWITZ: I'm sorry.

THE COURT: That's all right. Thank you. I have

read through page 59.

MS. MOSCOWITZ: Then, Your Honor, I would like to

point out starting at page 60 at the bottom, line 24

through page 61 at line 11.

THE COURT: This is Mr. Henderson speaking?

MS. MOSCOWITZ: Yes, Your Honor. Actually





another NTSB agent was Anderson.

THE COURT: I've read that. Is that pretty much

what the testimony reflected before Judge Brown back on

October 14?

MS. MOSCOWITZ: That is the testimony of

Mr. Henderson regarding what he said. Of course, there is

the testimony of what Mr. Florence and what Mr. Mecalo who

were present for what Mr. Henderson says understood.

THE COURT: In repeating what they heard that

day, is it contrary to this that I've read?

MS. MOSCOWITZ: Nobody states the exact words,

Your Honor. So it is not contrary. The question is since

nobody has the exact words and one person had one intent

and the two hearers had the same understanding, it's hard

to say contrary. It's different.

THE COURT: So is it a fair summary to say that

their testimony would reflect in their comprehension in

their minds they were under the impression that they had to

speak, they had to testify?

MS. MOSCOWITZ: Yes, sir.

THE COURT: And that impression, I presume, was

gleaned from what took place that we have read here in the

pre-interview meeting which was not tape recorded by the

investigator and during the interview itself?






THE COURT: All right. Well, the law is pretty

clear on this proposition that there are some requirements

by statute that where if you were summoned or subpoenaed

before a state grand jury, for example, and nobody

discusses anything, but the state statute says if you are

asked questions and you testify, you are immunized whether

anybody intended to do it or not.

Is there such a statute involved that you're

research has developed, or Mr. Brigham's, in the Federal

system where, first of all, these people were not subpoenaed

according to Mr. Henderson?


THE COURT: So they were asked to appear or

invited to appear, whatever the terminology may be, but

they showed up and they obviously showed up because they

had been told to be there or asked to be there or whatever.

When they appeared there was nothing said about the Fifth

Amendment or that they were under the compulsion to speak

not that he said. But they assume that from the

seriousness and the gravity and a lot of other factors that

they had to give their statement. Is there a statute

somewhere in the federal system like the state system?

MS. MOSCOWITZ: No, Your Honor, but may I --

THE COURT: I want to clear up the statute first.

MS. MOSCOWITZ: No, there isn't.





THE COURT: So we are dealing with the cases that

you want to tell me about but there is no statute involved.

MS. MOSCOWITZ: No, Your Honor. When Your Honor

phrased the facts is that he didn't say anything but they

assumed they had to speak. And of course, our argument is

that it wasn't some crazy assumption. By the way,

Mr. Mecalo is somebody that gave another statement. He was

the SabreTech party representative to the NTSB hearing, and

he heard what Mr. Henderson said to Mr. Florence.

THE COURT: We are getting into the legal

obligation now. If a person says something to his neighbor

about an alleged crime, that statement can be used in a

court proceeding. Now, if there was state statute or a

federal statute that said if you reveal confidence, if you

speak to your neighbor in confidence and you've known the

neighbor for more than five years and he is a dear friend,

and you tell him all about murdering your mother-in-law,

that's protected.

Then we have got a statute that covers that

situation. We don't have that here. What we have here is

whether or not there was something that was said or done

that firmly implanted in the minds of the person that was

giving the statement that he had no choice except to give a

statement. I think the best place to look for that is in

what was said, not what the parties thought was said.





Mr. Henderson says he didn't say anything, and if

they had said they didn't want to talk he would have walked

away from it and try to get the information elsewhere. Do

you have any other place in the facts of this situation

where something was said that would give that impression,

that would create that thought in the speaker's mind that

he was compelled to talk?

MS. MOSCOWITZ: Your Honor, what I have is that

Mr. Henderson was completely unaware that these gentlemen

coming to speak to him had a Fifth Amendment privilege,

stated the urgency that he needed to get to the bottom of

things and began to interview him. They assumed but not

heard a compulsion. It was not that they assumed that they

had to, but what he said gave them the firm understanding

that Mr. Florence was compelled to speak.

THE COURT: Normally we don't look to the

speaker's mental intent. It's not the controlling factor.

Was Mr. Henderson under the obligation to give them a

Miranda warning?

MS. MOSCOWITZ: No, Your Honor.

THE COURT: So then it's in the voluntary

statement category. It's closer to that by analogy. I

think the Magistrate made a correct call on this. I think

his determination should be affirmed.

Let's bring the jury in. Before we bring the





jury in, are you prepared for opening statement?

MS. MILLER: Your Honor, I just wanted to move

some furniture.

THE COURT: That will be fine.

Normally I do not suggest any limitations on time

in opening statements, but given the fact that we have so

many lawyers involved in what appears to be so many

witnesses and things coming up, could I have some sort of

estimate so I can schedule this in a way that is not

disruptive to the defense counsel in this instance with

respect to the noon hour? In other words, I would like

some sort of estimate. You are not going to be held to it,

just your best guess.

MS. MILLER: Between 40 and 60 minutes, Your


THE COURT: That would put us up to 12:00.

Mr. Raskin?

MR. RASKIN: I anticipate about the same time,

Your Honor.

THE COURT: Would this be disruptive to take the

government's opening and then recess for a brief period,

say 45 minutes to an hour, and would that be disruptive in

the flow of the presentation of the opening statement? I

guess it would not.

MR. RASKIN: Whatever the Court's pleasure.





THE COURT: Would you be comfortable with

Ms. Heck's opening statement and then take a recess for


MR. RASKIN: Your Honor, that's fine.

MS. MILLER: I may be less than an hour.

MS. MOSCOWITZ: I looked at the blowups that

Ms. Miller plans to use and I want to raise the objection

that I don't think that the pictures should be used in

opening statement.

THE COURT: There is objection to some or all of

the documents? What are we talking about?

MS. MOSCOWITZ: To using actual --

THE COURT: Show me or tell me so I know what we

are talking about.

MS. MOSCOWITZ: I don't want to reach over and

grab the government's blowups, but there are some

photographs of the work cards and some other things like

that. Those have not yet been admitted into evidence.

THE COURT: You, therefore, object to any

document being shown to the jury that has not been admitted

into evidence?

MS. MOSCOWITZ: I don't object to the

demonstrative exhibits.

THE COURT: Do you have any demonstrative






MS. MILLER: Your Honor, I am going to be using

some models.

THE COURT: These are all blowups of documents

you expect to use in the trial of the case? The objection

is to showing anything to the jury that has not yet been

admitted into the evidence absent of agreement that the

lawyers agree to and I have to sustain that. We cannot

show to the jury those matters not introduced into


MS. MILLER: Your Honor, the government would

submit it is no different than the governing facts not in


THE COURT: You're not arguing anything at this

point. I keep repeating myself. All you are going to do

is tell the jury you expect to prove things. The minute it

gets into argument I am going to stop the argument. You

are going to tell them what the facts are. Normally there

is no objection to using blowups or examples of things that

all parties agree are going to be admitted into evidence or

that they don't anticipate some big fight. But I thought

we cleared all of that up in the hour and a half of

argument I listened to this morning in motions in limine.

If there is going to be serious objections when

they are offered, and the defense expects that they are

going to be able to keep them out of evidence, then they





should not be shown to the jury. At this point, short of

hearing all of the objections right now, I can't make that


Could counsel take a look at these? Show them

the documents you want to use. Hold them up and let's see

if there is. There are two large charts there. They

appear to be blowups of, I guess, work sheets.

MS. MILLER: Work cards.

THE COURT: Mr. Dunlap, do you anticipate that

the government will not be able to get those into evidence

and therefore you object to them being shown?

MR. DUNLAP: If I could, Your Honor, it is

Ms. Moscowitz's issue.

THE COURT: Ms. Moscowitz?

MS. MOSCOWITZ: Your Honor, these are not matters

to which we have stipulated to the admissibility, and we

want to see if the government can make its foundation. We

do not agree to have them shown to the jury.

MS. MILLER: Your Honor, this is the charged

false statement in this case.

THE COURT: I understand.

MS. MILLER: This is what the case is all about.

THE COURT: I understand. Until they are

admitted into evidence no exhibit will be permitted to be

shown to the jury. Once they are admitted into evidence,





the jury will be able to review them; therefore, the

objection is sustained.

MS. MILLER: Your Honor, I assume that doesn't

extend to a prohibition of my discussing them to the jury?

THE COURT: You are going to be able to tell the

jury what you expect to offer into evidence and what the

work sheets show. Whatever it shows you will be able to

say that. But then arguing closing argument as to the

effect of that, that is, of course, not going to happen.

Mr. Dunlap?

MR. DUNLAP: Your Honor, Mr. Moscowitz asked me

to put on the record part of the last side bar.

THE COURT: Yes, let the record reflect that the

last side bar Mr. Moscowitz had a request for a challenge

for challenge for cause of two of the alternates. He made

his presentation. The Court ruled and denied the request

that they be excused or challenged for cause. The names of

the two people are?

MR. DUNLAP: Jaime Parlade and Mr. Moscowitz's

challenge is based on --

THE COURT: No, it's all there. I'm either right

or wrong. Who is the other man?

MR. DUNLAP: Ms. Joanne Pennerman.

THE COURT: The defense had made a challenge for

cause. The reasons were articulated. The Court did not





consider them sufficient to be a basis for cause and denied


MR. DUNLAP: Could I very briefly approach for

one second?

THE COURT: Come up.

(Sidebar proceedings off the record)

THE COURT: Vicki, what was the name of the juror

whose boyfriend's mother was killed in the plane crash?

The motion is in regard to Portia Edwards. It's reported

to me that she is seat with other family members with

persons that counsel tell me had relatives that perished in

the crash. The motion that Mr. Dunlap has made is for the

Court to blandly and pleasantly as I can move Ms. Edwards

from where she is seated to another part of the courtroom

but not be permitted to sit with anybody connected with

this trial. That motion is granted.

Is there anything else?

MR. DUNLAP: I request that you inquire of

Ms. Edwards whether she had any conversations with any of

the panel now seated.

THE COURT: That motion is granted.

MR. DUNLAP: And I request for a gentle

admonition from the court not to have any emotional

outburst from anyone in the courtroom.

THE COURT: That motion is denied.





MR. RASKIN: At the time of the NTSB hearing

there was emotional outbursts from the family members.

THE COURT: I was unaware of that.

Are you aware of this?

MS. MILLER: No, but I was not present at the

NTSB hearing.

MR. RASKIN: I was.

THE COURT: Based on that, I will tell them that

at the hearing there were problems and we don't expect it

here. All right.

(sidebar concluded)

THE COURT: All right. It has been brought to my

attention that Ms. Edwards, who was previously excused by

the Court, who was in the jury panel, is one of the 800

jurors summoned in this case has remained and is now seated

in the courtroom. For purposes of the record, I'm not sure

how many seats or people can be accommodated in the

courtroom, but it is full.

The courtroom will accommodate about 60, 65

people with the extra chairs. Ms. Edwards is, I'm told,

one of the spectators, and certainly she is welcomed to

observe the proceedings if she wishes to do so. This is an

open courtroom and anyone is welcome to attend. I will ask

Ms. Edward who I am advised who has been seated with other

family members of persons who are deceased and are involved





in this tragic crash, Ms. Edwards, can you hold up your

hand please wherever you are? Ms. Edwards is not there.

What is the problem then? I was going to ask

Ms. Edwards to move to another part of the courtroom but

she is not present, so apparently counsel were mistaken in

thinking that they had seen Ms. Edwards with the other

family members.

If Ms. Edwards does come in, Marshal, ask her to

sit somewhere else other than with anybody connected with

this case, whether it be the agents or family members.

It has just been brought to my attention that

during the hearings at the National Transportation Safety

Board that there were some of the innocent victims'

relatives of the deceased were present and the hearing from

time to time became emotional, which is certainly

understandable from a human point of view, but that there

were some emotional outbursts at that board hearing. I

suggest to all present if there are any who cannot control

your emotions, which we all would certainly understand, that

you exit the courtroom, that there be no demonstrations, no

emotional outbursts of any kind.

If you cannot control that during the opening

statement or think that you cannot, then we respectfully ask

you to wait outside until we get into the other parts of the

case. As long as you sit here, all of you in the audience,




act as impassive, calm observers, you are most welcome to

remain. But there will be no outbursts tolerated that could

disrupt this trial and cause it to be held off for a year.

Normally I would not be making this announcement,

but I understand that it has happened before, again, quite

understandably, but there will be no outbursts in this


Bring in the jury and we will commence with the

opening statement.

[The jury returns to the courtroom].

THE COURT: Please remain standing. We are going

to swear you in. Ms. Kramerman, would you administer the



THE COURT: Thank you. Be seated please. All

right, ladies and gentlemen, at this time we will hear from

the parties in their opening statement. This is a time

when the lawyers can tell you, the members of the jury, the

proof that they expect is going to be shown to you through

sworn testimony as the trial proceeds.

Do not expect argument at this point. There will

be no argument permitted. It is simply a matter where they

will tell you in the nature of an index or preview of what

is coming. They will tell you what you can expect to be

hearing. The argument comes at the end of the case. Now it





is simply an opening statement about what is going to be

offered into trial and introduced into evidence. The

government, having the burden of proof, goes first and then

is followed by the defense. That procedure is followed

throughout the trial.

Ms. Caroline Heck Miller will now address you in

the opening statements of the United States.


MS. MILLER: Thank you, Your Honor.

Ladies and gentlemen, good morning. The United

States is here to present for your judgment facts in this

case involving crimes and a tragedy. The tragedy occurred

in the air, the crash of ValuJet flight 592. The crimes

occurred on the ground at an aviation repair station known

as SabreTech, Incorporated. The facts will show that that

repair station lied. They lied about important work they

did, that individuals at that repair station lied.

The tragedy shows the importance of some of the

matters lied about and misrepresented. The facts will also

show that the repair station willfully violated regulations

that were meant to ensure the safe transportation of

hazardous material.

The first witness will be a gentleman named Walton

Little, a fisherman in the Everglades on May 11, 1996. He

will tell you what he saw that day, a plane coming to





ground. Later in the trial we will learn that this plane

was ValuJet flight 592 aircraft and 904 ValuJet that

suffered an in-flight fire with fatal results.

After Mr. Little, we are going to go back in time

to where the facts unfold, when they unfolded and where. A

certificated repair station. The name of this repair

station changed over time. The name that you will hear most

is SabreTech, Incorporated, a defendant in this case, a

company which is a defendant along with two individuals.

You will hear that this company was known

previously as a company named DynAir Tech of Florida. In

approximately June of 1995 DynAir Tech of Florida, an

ongoing repair station out of Miami International Airport,

had its stock purchased by a corporation by named

Sabreliner. Sabreliner took over ownership of DynAir Tech

of Florida, and from then until and through the time of the

crash that was the repair station that was operating.

It kept the name DynAir Tech of Florida until

January of 1996 when a corporation named SabreTech was

formed and DynAir Tech of Florida was merged into it.

You'll hear facts relating to the DynAir Tech of Florida

phase from June of 1995 and the SabreTech phase. The facts

will show that they were essentially the same entity.

What was the business of this entity? It was in

the business of performing maintenance on aircraft for





customers. Their customers were airlines. Airlines such as

ValuJet and airlines such as another airline that you will

be hearing about named Aserca Airlines.

SabreTech did line maintenance and periodic

maintenance. One of their jobs is something called a

C-Check. You will hear from people in the aviation industry

that a C-Check is periodic intensive check of the aircraft

that has to be done at certain intervals and gives rise to

other repair work that is done.

SabreTech was obviously a business. One of its

goals was making money. Obviously, making money is not a

crime. But the facts will show at SabreTech a focus on

business, on profit, on beating penalty clauses and moving

work through quickly. There will be evidence of a practice

known as pencil whipping, which is signing off on work

without due regard as to whether it has been done. You will

hear evidence of false statements that were made by

SabreTech and employees and agents of SabreTech.

The evidence, ladies and gentlemen, will not be of

matters like crossing Ts and dotting Is. The evidence will

show that the work this company did was critical to safety,

and that the false statements made were about matters that

were vitally important.

There was no false statement that is more central

to the case than one in a document that you will hear a lot





about during this trial. It's known as work card 0069. It

is a work card that related to work that was done on oxygen

generators. This work was done for two different aircrafts

at SabreTech. So you are going to hear about two work card

0069s, one for an airplane that had the number 802 and one

that had the number 803. You will be hearing a lot about

those numbers, 802 and 803.

The false statement on that work card was about

these oxygen generators. And what was stated was that

shipping caps had been placed on the oxygen generators. It

was a very important false statement. I'll tell you a

little bit more about oxygen generators as I proceed in this

opening statement.

The false statement was made on one work card by

Eugene Florence who is here on trial today and on another

work card by a person Mauro Valenzuela. Mauro Valenzuela's

work card related to aircraft 803, and Eugene Florence

signed off for work on 802 with the defendant, Danny

Gonzalez, at his side.

Now, when I say that the evidence will show that

SabreTech lied, let me take a moment to explain what the

evidence will show about that. SabreTech is a corporation

acting through its agents and its employees. A number of

the people that you will hear about, such as Mr. Eugene

Florence, and other mechanics who worked at SabreTech were





contract personnel. SabreTech brought in quite a bit of its

labor through a contract with aviation services, companies

known as PDS and SDS. The evidence will show that with

regard to these contract personnel SabreTech was obliged to

supervise them just as it would with its own employees with

regard to the quality of its work, and that the contract

personnel who worked at SabreTech or its agents, just as if

they had been employees. For instance, when Eugene Florence

made that false statement on work card 0069 that was a false

statement also of SabreTech.

You will hear of another document in this case as

to which SabreTech made a critical untrue statement later on

in the career of these oxygen generators as they move

forward. That is on a shipping ticket when the oxygen

generators ended up being placed on another aircraft of

ValuJet. You will hear on that shipping ticket SabreTech's

shipping clerk described these oxygen generators as five

boxes empty oxy-canisters. This was not correct. Those

oxygen canisters were not empty.

All of these people, the shipping clerk,

Mr. Florence, Mr. Gonzalez, Mr. Valenzuela, other names you

will hear about, functioned as part of a repair station. A

repair station you will hear from the evidence holds a

certificate that is granted by the Federal Aviation

Administration. That certificate brings it within the realm





of an oversight of the Federal Aviation Administration. The

Federal Aviation Administration issues certificates

sometimes known as licenses to mechanics who meet certain

qualifications to work at a certain level of responsibility.

They are called A and P mechanics, which stands for air

frame and power plant mechanics. Those are two different

certificates. There is an airframe certificate and there is

a power plant certificate. You will hear testimony about

this. The airframe relates to everything on the airplane

that is not the engine. The power plant relates to the

engine and components. It is quite typical for a mechanic

to hold both licenses and be known as an A and P mechanic.

Eugene Florence was an A and P licensed mechanic.

Danny Gonzalez was a licensed A and P mechanic.

Mr. Gonzalez was more than just a mechanic. His job at

SabreTech was Vice President for maintenance. In that

capacity he had oversight for the maintenance work that was

being done at SabreTech.

The evidence will show he was a tough task master.

That's not a crime. The evidence will also show that

Mr. Gonzalez was a model for moving quickly at the expense

of other considerations. The evidence will show that he

would say, "this is how you do a C-Check" while signing off

on jobs with the emphasis on getting the paperwork done as

opposed to the task.





Ladies and gentlemen, you will hear evidence that

in this business, as in so many other businesses, time is

money. You'll hear evidence that if work was not done

timely and jobs were not completed on time by SabreTech they

stood to lose money. You will hear of a clause in their

contract with ValuJet providing for a penalty clause of

$2,500 a day if work was delayed.

This contract was entered into with DynAir Tech of

Florida, but it extended to SabreTech as well. ValuJet was

not SabreTech's only customer, nor is this case restricted

to ValuJet. You will hear evidence that SabreTech, in this

regard, was not especially picking on or focusing on

ValuJet. And you will not hear any evidence that SabreTech

was focused on anything bad happening with regard to flight


Let me repeat that ladies and gentlemen. You will

not hear evidence that SabreTech or any of these defendants

or, indeed, anyone at SabreTech intended for that plane to

crash or foresaw that it would crash. That is not what this

case is about, and that is not what the government's proof

is it going to show.

The evidence is going to show that there was no

more ill will, no particular ill will at all toward ValuJet

or toward, for instance, Aserca Airlines, another customer.

You will hear that among the things the government will





prove is that the defendants acted willfully. But that

doesn't mean willing a plane to crash. It means with bad

purpose, to disobey or disregard the law. The evidence will

show that the defendants lied and knew that they were lying

on a material matter within the jurisdiction of the United


The evidence will show actions of that type by

defendant Danny Gonzalez with regard to this other airline

that I have mentioned, Aserca Airlines. You will hear

testimony, and it will probably be early in the trial

because this occurs chronologically early in these events.

You will hear testimony from SabreTech personnel a

man named Michael Quan and a man named Christopher DiStefano

and from a technical representative, a man named William

Drechsler from Aserca Airline. You will learn from these

witnesses that Aserca Airlines had planes at SabreTech that

were there for these C-checks and that Christopher DiStefano

started out as supervisor on that work.

You will hear testimony that DiStefano was

dissatisfied with the way paperwork was being handled.

There will be quite a bit of testimony in this case about

the importance paperwork in the repair station process that

the work flows to individual work cards that are assigned to

individual tasks to be done on an airplane, and that those

tasks have to be signed off by a project manager for the





project to move forward.

You will hear testimony that Mr. DiStefano was

concerned about the loss of control of paper, that work

cards were not properly being tracked so there was a good

trail of who was doing what work, that work was not being

signed off until long after the fact. A practice that can

be conducive to certificating work without certainty that it

is being done.

So you will hear that Mr. DiStefano along with

Mr. Quan came up with what they considered a better plan

where the work cards would be controlled and there will be

no more mechanics just willy-nilly picking work cards out of

a rack but that supervisors and lead mechanics would

distribute the work in a way that could be controlled.

You will hear that physically a work booth where

Mr. DiStefano was supervising the aircraft would set up to

provide for this new plan in handling the work. You will

hear testimony, however, that one morning Danny Gonzalez

basically knocked that plan to pieces, that he came into the

work booth where Mr. DiStefano and Mr. Quan had the system

set up and challenged it. I won't say the word but, what

the blank is this, Mr. Gonzalez said.

You will hear testimony that Mr. DiStefano tried

to explain but that quickly evolved into a huge argument

between Mr. DiStefano and Mr. Gonzalez in which the ultimate





outcome was that Mr. Gonzalez, based on his authority as

Vice President of maintenance, said we are not going to do

it your way. We are going to do it my way. You will hear

testimony that Mr. DiStefano was took work cards and was

passing them out to mechanics on the floor without the work

being tracked.

It was a boisterous one. It was a loud yelling

match. Michael Quan was there for part of it. At one point

he was asked to step outside the booth. He will testify

that even after he stepped outside the booth the fight was

so loud that it could be heard throughout the hangar. The

evidence will show that Danny Gonzalez was administering a

loud lesson as to what happened to efforts like

Mr. DiStefano's to reshape the handling of paper.

The evidence will show that Mr. Gonzalez left the

work booth carrying work cards, that Mr. DiStefano saw one

on Mr. Gonzalez's booth, a work card for a run up of the ice

protection system, part of the ice protection system that

deals with the prevention of ice forming on wings and other

exterior surfaces of the aircraft and it was part of the

check that needed to be done at the beginning of the work at


Later that morning, you will hear testimony, that

Mr. Gonzalez returned to the booth with that same work card,

that it was signed by Mr. Gonzalez and that Mr. Gonzalez





said, "see, we will have that C-Check done in no time. "

Mr. DiStefano will testify that he was standing by

the plane at this time, that the work had not been done

previously and that the work was not done. Mr. Gonzalez did

not do the work. We will also hear testimony that the work

Mr. Gonzalez signed off on would have taken more time that

had elapsed between the time that Mr. Gonzalez left with the

work card and the time that he came back.

You will learn that Danny Gonzalez is a skilled

mechanic. He knows DC9s very well. This was a DC9

aircraft. You will hear testimony that from time to time he

was hands-on with the plane performing checks and other

tasks. But not that morning Mr. DiStefano testified.

Michael Quan doesn't recall exactly what cards he

saw Danny Gonzalez with that day. He believed it was the

different task than the one that Mr. DiStefano recalls.

Mr. Quan remembers the one called a fuel bio-bor treatment.

You'll see this card that will be placed into evidence that

this was a task that did not require any work to be done

because it provided an alternative to performing the task if

certain tanks had been opened.

Mr. Quan does not and cannot contradict

Mr. DiStefano's testimony that the ice systems worked that

Danny Gonzalez signed off on actually was not done. We will

hear testimony from the technical representative for





SabreTech, a man named William Drechsler that when he

finally had that aircraft, Aserca Airline 720, out for its

test run, it had numerous mechanical problems. And among

the problems was one which he signed a work order for to be

revised and repaired and it was work related to the same

task that Danny Gonzalez claimed back in December actually

had been done.

With the testimony of Mr. DiStefano you will hear,

as you will with regard to several other witnesses in this

case, that he has been granted something called use

immunity. He has been told that statements that he makes in

this case cannot be used to prosecute him.

You will also hear that his promotion was taken

away after this altercation. You will also hear that he

disliked Danny Gonzalez after this incident and didn't get

along with him. Ladies and gentlemen, those are the facts

and that's the reality. How does one get on with a

supervisor in a situation like that?

You will hear that Mr. DiStefano, later on, was

keeping an eye on Danny Gonzalez in a sense that he saw a

document on Danny Gonzalez in the sense that he saw the

document on Danny Gonzalez's desk one day and photocopied

it, concerned that it might disappear. You will also hear

testimony that following the crash of flight 592 and

following a search by FBI of SabreTech premises,





Mr. DiStefano took from SabreTech a turnover log due to

reasons that he will tell you about and concerns of his and

that he has subsequently lost that turnover log. He will

testify about that activity.

Ladies and gentlemen, the paperwork is at the

heart of the repair station process. The work card, the

nonroutine work card, the engineering order, these are all

terms you will become familiar with. I stated earlier that

you will hear testimony that a work card is the basic unit

in which tasks that can be foreseen for a certain job are

laid out and are put together in a package of tasks to be

performed and are signed off on by mechanics as the work


You'll also hear about something called a

nonroutine work card which are work orders that arise from

the routine work so that if one is performing a check, for

instance, and during the course of that check it is realized

that further work needs to be done that can give rise to a

nonroutine work order.

You'll also hear something called an engineering

order whereby a customer, such as ValuJet, can give

instructions to its repair station as to a particular task

to be performed.

What is plain with all of these documents is that

they must be truthful. When a mechanic signs a work card





that is certification that that mechanic has done the work

that he is signing for.

You may hear that some mechanics follow a practice

of signing work that other workers may have contradicted to

but only in the circumstance that the signing mechanic

verifies that the work has been done. You will hear that

there is nothing that allows a mechanic to sign for work

that he knows was not done.

Now, you are going to hear about inspection

procedures. Basically what you will hear is that there is

no cut and dry rule as to inspection. Not all items are

required to be inspected. You will see some documents that

have inspection stamps on them. Some that won't. On the

documents you will see some items required to be inspected.

Some that are not. And the inspection may mean something

limited and narrow.

For instance, in the work card that Danny Gonzalez

signed about the ice protection system, you will see that

there is an inspection item, but that is to inspect certain

test equipment that was suppose to be used during the job

has been removed so that an inspector goes to look to see

that the test equipment is there, which is a different issue

than verifying that the work has been done.

You will hear that it is the mechanic's signature

that is the basis on which all rests. This is the basic





representation or statement that the work stated on that

work card has been done. It's the base of the pyramid. You

will also hear, in one sense, this signature is the keys to

the treasure because until all the work cards are signed off

and are closed on a particular project, there can be no

airworthiness release. SabreTech can't finish the job if

there are open work cards. Before it can turn over that

aircraft to its customer by making an airworthiness release.

It has to have all of the work cards sign. Until that is

done SabreTech's work isn't done. That has financial

consequences for SabreTech.

You will here, ladies and gentlemen, that in that

circumstance there is pressure to get work cards signed.

You certainly will hear about such pressure in the case of

work that was being done in connection with some oxygen


Ladies and gentlemen, you will hear ultimately

that these oxygen generators ended up being put on flight

592, which is an aircraft number 904. I'm sorry to throw

these numbers at you but they are a way to identify the

aircrafts. These oxygen generators didn't start out on 904.

That's not where the SabreTech mechanics were doing their

work from on the oxygen generators.

The oxygen generators came from a job that ValuJet

had contracted SabreTech to do. ValuJet had purchased or





leased or acquired three aircraft. They are a model known

as an MD-80. You will hear that an MD-80 is similar in some

ways to a DC9, a stretch version of a DC9. ValuJet had just

acquired this aircraft. They want them checked. They

wanted them reconfigured for use so they could be introduced

into the ValuJet. New seats, new logo, new painting in

addition to the mechanical work and the C-Check work. Among

the tasks was to replace out-of-date oxygen generators to

reconfigure some of the masks associated with those oxygen


We will be showing you a model oxygen generator,

one that doesn't have any chemicals in it obviously. We

will be showing it to you through a witness named Robert

Brennan from the company that manufactures those generators,

and you will hear evidence of what an oxygen generator is

and how it works.

You'll hear they have a maximum allowable life, 12

years in this case. You will learn that two of the aircraft

that SabreTech was working on, 802 and 803, had oxygen

generators that were at or near their limit and had to be

removed and replaced, and these are what you will hear are

the quote, unquote, old oxygen generators.

You will hear testimony that oxygen generators are

used in the aviation business in part to meet the need for

an oxygen supply for each person on board the aircraft in





the event of depressurization. Your are going to learn that

there are several different systems for providing oxygen,

one of which is relevant here and that is through the use of

a chemical oxygen generator.

You are going to learn that through the testimony

that a chemical oxygen generator is not the same as a

pressurized cylinder. That is something completely

different, a cylinder such as might be used like a scuba

tank. An oxygen generator is a chemical device that yields

oxygen because of the chemicals inside it. It does so

inside a steel casing. You're going to see them. They are

about 8 inches high and they've got a little mechanism on

side that will also be presented through testimony about,

the firing mechanism.

You'll learn that the main ingredient in an oxygen

generator, the main chemical called sodium chlorate. It is

a hazardous material. It has a certain designation. There

is a hazardous materials table. Sodium chlorate is part of

that hazardous materials table.

You'll learn that when sodium chlorate in this

oxygen generator is heated it undergoes a change. That

change causes it to separate its component out into

something called sodium chloride, which is actually table

salt, and oxygen. There are some other chemicals in there

to aid this heating process.





As the heating proceeds, oxygen flows out of this

little device through outlet nozzles on the bottom. There

are sometimes 2 or 3 or 4, depending on whether it's a 2, 3,

4 person oxygen generator. The nozzles connect to hoses and

the hoses through through an oxygen mask, and that is how

oxygen is supplied when it needs to be.

You will hear testimony that this process works by

heat going through the sodium chloride. The heat gets

started with a flash with a percussion cap on the top of the

oxygen generator that has a tiny explosive charge in it, and

this charge is initiated physically. It's called a

percussion cap, percussion meaning hitting. When a

spring-loaded hammer on the top of this generator hits down

on that percussion cap it starts the charge going. The

primer goes off. The primer heats some substance known as

flash on top of the oxygen generator to generate more heat

and enough heat is generated to start this process going.

The striking is done mechanically by a little pin

is released. You're going to see this mechanism. We hope

to show it to you on a video so you will see it up close.

You will see that the hammer has got a spring behind it

pushing it forward. What's keeping that hammer from going

forward is a pin in front of that hammer. If that pin is

released the hammer falls.

When the hammer falls it hits that percussion cap.





That is what starts the oxygen reaction going. The reaction

produces oxygen. It produces something else. It produces

heat. You will hear that it is called and an exothermic

reaction, which means heat producing. Exo for "out" and

"thermic" for heat.

The temperature, you will hear, can be a high

temperature. Inside the oxygen generator you will hear it

goes to 700 to 800 degrees centigrade and that the outside

of the oxygen generator, which is a stainless steel casing,

can reach temperatures between 400 and 500 degrees

fahrenheit. All of this is taking place when an oxygen

generator is properly used in a passenger compartment.

You will see how it is held in place in the

passenger compartment. It is held in place in a metal

bracket with a plastic heat shield over it. You will hear

that what is going on is dangerous. It's the generation of

heat, a lot of heat from this oxygen generator. The hazard

you will hear, ladies and gentlemen, is not just because of

heat but because of extreme heat being produced in the

presence of pure oxygen. You will learn that this is what

makes this device an oxidizer. You will hear that the

danger is that materials burn more and more easily the more

saturated the surrounding air is with oxygen.

So the evidence will show oxygen generators were

hazardous material and they call for special handling and




special labeling and special shipping arrangements.

As you consider the evidence, it will lead to the

conclusion that an oxygen generator is something that needs

to work when it is suppose to work, and needs not to work

when it is not suppose to work. When an oxygen generator is

in place in that passenger unit and there is a need for it,

it has got to work. When it is not in that passenger unit

it's not suppose to work. It's not suppose to go off,

because of the dangers associated with it because of the

heat and the oxygen.

You will hear testimony as to how that is

accomplished, how it is accomplished that the oxygen

generator works when it is suppose to and doesn't work when

it's not suppose to. What you are going to hear, ladies and

gentlemen, is that the critical thing in keeping an oxygen

generator from going off when it's not suppose to go off

something called a shipping cap. We are going to show them

to you. It's about this big. It's a little tiny thing. It

cost minimal. It is at the center of this case, because it

was suppose to be on the oxygen generators that were taken

and put on ValuJet 592 but it wasn't.

Eugene Florence, on work card 0069, said that

those shipping caps were in place and they weren't. Mauro

Valenzuela said the same thing with regard to 0069 for the

other aircraft that had been worked, 803.





The shipping caps were not placed on the oxygen

generators, and numerous oxygen generators ended up going on

flight 592. They were not empty, as it said on the shipping

ticket. They were full. They were capable of being

ignited. Not only were they not empty and capable of being

ignited, they did not have shipping caps on them, so there

was no physical barrier between that hammer and the

percussion cap that could set those oxygen generators going.

You may hear testimony about reasons and

rationalizations as to the absence of caps. You may hear

testimony that ValuJet was suppose to supply them and

didn't. You may hear testimony, you will hear testimony,

that the mechanics asked for shipping caps and didn't get

them. You'll hear testimony that at least one mechanic told

SabreTech management that we need shipping caps, and that

management blew him off. Said we will take care of them


You are also going to hear that the mechanic

working with these oxygen generators were concerned about

this to the extent that they did something they thought was

a good idea which was wrapping the lanyards of the oxygen

generator around the generator to try to keep that lanyard

from pulling the pin out.

Remember I told you about how the hammer is held

in place by a pin? What causes the pin to come out is





tugging on a lanyard that streams back out from that pin

that ultimately is controlled by a passenger with a mask

drop. So as the lanyard is pulled down there where a

passenger is sitting, the pin comes out and the hammer

drops. Some of those mechanics wrapped lanyards around the

oxygen generators and taped them in place. Others cut off

the lanyards.

You'll also hear testimony that the shipping

clerk, when he shipped those things out, didn't rely on the

statement of Eugene Florence. That paper was not a paper

that even went to the shipping clerk. The fact will remain

that that paper was a lie. It was a false statement about

the shipping caps. It was a false statement that was a

material matter.

You will hear from a mechanic named Robert

Rodriguez. You will hear that Mr. Rodriguez received use

immunity. Several of the mechanics who testified you will

hear received use immunity. Robert Rodriguez will testify

about the job that the mechanics had over moving the old


You will also hear from a mechanic named John

Taber who was involved in that work. You will hear from

witnesses such as Mr. Taber and Mr. Rodriguez that

instruction on this work was printed out on work card 0069.

You will learn that the work card is not just a sign off.





It's also instructions to the worker as to how to perform a


You will hear that mechanics took old generators

out of the aircraft and put them aside while they were

waiting for new ones because one thing that they were going

to do was, you may recall, I mentioned the generators sits

in a bracket on the aircraft. They had the bracket out on a

table. As they got new generators, they took out the old

generators and put a new generators into that same bracket.

You are going to hear that they didn't put

shipping caps on the old generators, because they didn't

have them. They knew they were suppose to put them on. Not

only does work card 0069 say so, but they talked about it

among themselves. Mr. Taber will testified to that.

Mr. Rodriguez will testify to that. A mechanic named

Antonio Hernandez will testify to that.

Taber will testify that he told management that

they didn't have shipping caps. That SabreTech management

knew it was a problem. The mechanics knew and brought to

the attention of their supervisors that some of these oxygen

generators had gone off either while being removed from the

aircraft or while sitting on racks. One of them will

testify that you could see the melted plastic housing that

melted when this oxygen generator went off. Others will

testify to having seen some of them go off.





So they came up with their own ideas as to how to

cope with the situation such as cutting lanyards and other

measures that proved to be tragically inadequate and that

really do nothing to prevent actuation of the oxygen

generator. All they do is hopefully keep the hammer from

falling. Once that hammer falls there is no shipping cap

on. That's it. The percussion cap is struck and the

reaction begins. Cutting a lanyard and wrapping a lanyard

does nothing to stopping that from happening because that

shipping cap is not in place.

Now, the work card could not have been more

explicit about the fact that they were dealing with

something dangerous. The work card, you will see, says on

it in capital letters: "Warning, unexpended oxygen

generators contained life ignition trains and when activated

generate case temperatures up to 500 degrees fahrenheit.

Use extreme caution when handling to prevent inadvertent

removal of fire pin. If generator should become activated,

immediately place on a noncombustible surface."

They also knew about the dangers of oxygen

generators. When I say "they" I mean people who worked at

SabreTech who were agents and employees of SabreTech, which

is knowledge that has to be attributed to the corporation as

well, because its employees knew about it. They also knew

about the dangers of oxygen generators when they got in the





new ones, when they arrived. They came from a company known

as Scott Aviation, sometimes through a distributor.

There were several ways that one could tell from

these new generators of the dangers associated with them.

For one thing they were packed in special packages.

Packages that had labels that had a big yellow hazard

placard on it. It said "oxidizer" with a little picture.

They were placed in boxes where they were carefully wrapped.

They were shrink wrapped. Each one was individually shrink

wrapped on to a piece of cardboard that formed a tube so

that when it was put into a package it was immobilized and

separated from other oxygen generators.

They came with a document called shippers

declaration of dangerous goods. You will see the document.

And running all the way around the border is a red and white

striped candy striping that is designed to focus attention

on the fact that there is a hazardous material associated

with this shipment. That shippers' declaration of dangerous

goods states things like the designated U.N. number for this

type of hazard sodium chlorate, the hazard class, and some

other matters you will hear testimony about. All the things

that is suppose to be stated when hazardous materials were

shipped, all the things that were not on the shipping ticket

that SabreTech made when it caused these oxygen generators

to be placed on ValuJet flight 592.





Every mechanic, that handled the new and that

included Eugene Florence and several of the witnesses who

are going to be testifying, were handling generators that

had a bright yellow label on them. You will hear at a

certain point in time in the mid to late 1980s it began to

be required that the generator also have a label on it, and

that although this label did not appear on the old

generators because they were from before that time, this

label did appear on the new generators and, therefore,

anyone who handled the new generators would further be put

on notice as to the hazard.

This label, ladies and gentlemen, we are not

talking about technicalities, we are talking about plain

language that nobody could mistake or ignore: "Warning this

unit gets hot. When removing unit install safety cap over

primer. Do not pull lanyard. If activated, place on

surface that won't burn."

Further, if all of that wasn't enough for

SabreTech to realize what it was handling, the paper, the

warning placard, the warning on the generator, though knew

from experience because these things kept going off. They

had a bunch of uncapped oxygen generators at their hangar

and they kept going off. Sometimes supervisors would say,

"be careful of that thing." But there still was no shipping

cap. Think about that word, ladies and gentlemen, "shipping





cap" which indicates a future for these oxygen generators.

Time is moving on. You'll hear testimony that

SabreTech was under increasing pressure to complete its work

on the MD-80s. You may recall that completing the work also

means completing the work card. That paper had to be signed

off. No one made sure that the caps were put on.

You are going to hear testimony, somewhat ironic

testimony, that the new generators had caps. They were

shipped with caps. They are put into the aircraft, giving

rise to the issue of why not take the shipping caps off of

the new generators and put them on to the old generators.

You'll hear testimony that before the work can be completed,

the new generators have to be tested. You can't test them

by activating them. That uses them up. What has to be

tested is to make sure that the mechanism is working, that

the masks drop properly. They perform something called a

drop test in which the panel opens, and they check to see

that the mask drops properly, and the safety cap is kept in

place for the purpose of that test, because they don't want

the generators to go off during that test.

Even though new generators arrived with these

shipping caps in place, the shipping caps stayed on the new

generators and did not find their way to the old generators.

Time was pressing, and that penalty clock was

ticking. SabreTech wanted that job done. You will hear





evidence of and see a memorandum dated April 26 issued by

Mr. Gonzalez. From now on, that memo says, until the work

on the MD-80s is done, everybody works 7 days a week.

Ladies and gentlemen, that is not a crime. It's

not a crime to be a tough task master, but it was part of

the pressure to get the work out at all costs, and it was

part of the prelude to what happened here.

You may recall that there was testimony about a

remark that Danny Gonzalez made to Chris DiStefano back in

December when he was working on the Aserca work cards, "the

C-Check will be done in no time." You will hear testimony

of another mechanic hearing something similar about this

time. Mr. Gonzalez saying, "this is how you do a C-Check,"

as he signed a document. The pressure intensified.

You will hear testimony and see in evidence the

document of May 1 in which the President of SabreTech

promised ValuJet, due to the lateness of the work that had

been done, that SabreTech would eat costs of up to $20,000 a

day that ValuJet might incur for having to get substitute

aircraft for the late MD-80s.

Finally, Danny Gonzalez and other managers at

SabreTech pushed matters forward. You'll hear testimony

that one day in early May, SabreTech, including SabreTech

managers including Danny Gonzalez, were pressing for the

work cards for 802 to be closed out. The other MD-80s were





gone by them. 830 was out the door. I mentioned there were

three MD-80s. I told you about 802 and 803. I did not

mention 830 very much because 830's oxygen generators were

not out of date.

You will hear some testimony with regard to some

of the oxygen generators on 830. You'll hear testimony that

at one point they were switching generators out of 830 to

use in 802 or 803. You'll hear testimony that Chris

DiStefano worked on 830. You will hear that in the course

of that work some oxygen generators went off in 830.

That was not the airplane that needed a whole

replacement of oxygen generators. Because of that, 830 had

gone out earlier than 802. 803 had already gone out by the

time of this Saturday in early May. 802 they were working

furiously to get out the door. It was literally half way

out of the hangar at SabreTech, and that paperwork had to be

signed off.

Mechanics were summoned to the work booth by

Public Address System. They were told to sign papers. One

of those mechanics was John Taber. You'll hear that John

Taber refused to sign some of those papers. He wanted to

read the paper first. He did have time to see that some of

the papers related to the oxygen generators, but he wanted

to read them. And he wanted to be sure that this was work

that he had done.





Danny Gonzalez said no, there was not time for him

to read this paper work. John Taber signed a paper for work

that he had done, and he refused to sign other papers unless

he could read them and verify that he had done the work.

As he left the booth, he and other mechanics who were with

him saw Eugene Florence in the booth with Danny Gonzalez at

his side and papers before him.

When you see the exhibits and you see the work

card 0069 signed by Eugene Florence, you'll see there is a

date on that. 5/4/96, it is the Saturday in May, the only

Saturday in May before the crash of flight 592 which

occurred the subsequent Saturday. That work card signed by

Eugene Florence has a number of items on it.

First of all, there are several pages. Different

pages related to different phases of the work. The portions

of the work card that will be presented to you the most will

be the first page, page one of all the pages. And it's got

different items on it labeled A, B, C and D. Item B says,

"a generator has not been expended. Install shipping cap on

firing pin." Eugene Florence signed it.

You'll see up in the corner "E Florence." Right

to the left of his signature it says "A through D"

explicitly. That was not true. The generators had not been

expended which was not required by the work card. The work

card said, "if generator has not been expended install





shipping cap on the firing pin." But neither was the case.

The generator had not been expended and no shipping cap had

been installed. Eugene Florence signed it anyway. It was


Ladies and gentlemen, you may hear testimony that

he was not happy about signing, but he did sign it. Mauro

Valenzuela had already signed a similar card for aircraft

803. The deed was done. The work card could be closed.

802 could be shipped out. That's the testimony you will


A few days later the generators moved further

along to their final destination. You'll hear testimony

that during that week between May 4 one Saturday and May 11,

the next Saturday, and probably some time before that,

SabreTech was trying to clean up. They were physically

trying to do a clean up because they were wooing a new

customer. They were trying to get the business of

Continental Airline. And Continental was going to come by

and audit SabreTech. So they wanted to get it cleaned up in

ship shape.

A lead mechanic, Jude Casimere, who will not be a

witness but you'll hear testimony from Robert Rodriguez

about what happened. Jude Casimere directed that lose

generators that were still around from 803 and a box of

generators from 802 be moved off the floor. So mechanics,





including Robert Rodriguez, worked on putting these

generators in boxes. Not special shipping boxes as were

previously described to you, and not labeled with any

warnings or stickers or anything like that. Just stacked in

a box, paper towel box, they were full. They had not been

expended. They did not have shipping caps. Some of the

boxes were overflowing. The tops would not even lay down

flat on those boxes. A mechanic wanted to know where they

were going. Jude Casimere said that they would be thrown

away. The term he used was "shit-canned." That's what he


Three of these boxes were brought to the stores

area, to ValuJet's hold area in the store's portion of

SabreTech's facility, a portion of the facility that is

controlled by SabreTech shipping.

Now, the flurry of clean-up reached back there as

well. You will hear that a shipping clerk in that area, a

man named Andrew Salis, undertook to move these things out.

He moved them out.

You will hear testimony from persons who took part

in that process, including a man named Carlos Diaz. Diaz

will testify that he saw one of these boxes opened up he

could see some bubble wrap on top. Salis had Diaz write out

the shipping ticket that you will see. Some of the words on

the shipping ticket were written by Salis others were





written by Diaz, but what the shipping ticket said was five

quote boxes oxy canisters, quote, empty. They were on that

shipping ticket with some tires and a wheel assembly. Also

on that shipping ticket is says co-mat, which means company

material, the airlines own material, and indicates for an

airline that the shipping is of its own things.

Nowhere on this shipping ticket, you will learn,

was there the slightest hint of hazardous material. There

was no warnings, no yellow placard, no hazardous material

name, there was no U.N. number. They were packed in

cardboard. They were loose. They didn't have shipping


Salis wanted the shipment to go out on Friday, May

10. But the driver, SabreTech driver Mitch Peris (phonetic)

couldn't take it out of the area until Saturday, the 11. On

that day he drove it to a ramp where a ValuJet 592 was

waiting on aircraft N904VJ. There were 105 passengers and 5

crew. ValuJet had not asked for this shipment. The tech

rep from ValuJet, Al Ramos, will testify that they were

planning on doing an inventory of their material shortly


Mitch Peris will testify that he helped offload

the material to a baggage cart, that he showed the ticket to

the lead ramp agent for ValuJet, a man named Christopher

Ramkissoon. Mr. Ramkissoon took the shipping ticket, the





one that says, "5 boxes empty oxy canisters" and showed it

to the first officer. Neither Ramkissoon nor the first

officer questioned the description of the empty oxy


The five boxes were placed in the plane and placed

in the cargo hold. You'll hear that the cargo hold was

something called a class D cargo hold. A class D cargo hold

is suppose to have the feature of being fire resistant.

Part of this fire resistance lies from the fact that when

it's enclosed it's suppose to be airtight so there's not a

free circulation of air inside this cargo hold. So that if

a fire were to develop in the cargo hold, there would not be

oxygen coming in to feed the fire and it would go out in


That's the concept, but you'll hear that that

concept does not apply when, as happened here, placed into

that cargo hold are little machines that generate their own

oxygen. The plane took off. Within minutes there were

reports of fire on board, a rapid fire. We will present the

text of the conversation that occurred in the plane, and it

will reflect a certain point, and very rapidly within that

flight, the plane was completely on fire.

Ladies and gentlemen, that will bring the

government's presentation of facts full circle.

Walton Little is waiting below fishing, and we





come back to where we began. After the crash retrieval

efforts were made, the cockpit voice recorder, several other

items that we will have some testimony about. A seat track

steel control cables that ran over the cargo hold showing

signs of fire, remains of oxygen generators some of them

with labels that link them back to the aircraft 802 or 803,

and other signs of a fire in the cargo hole of that


At SabreTech, a few days later, oxygen generators

were found, some without caps and others, at this point,

after word of the crash with caps.

Those basically, ladies and gentlemen, are the

facts that the government is going to present to you in this

case. There will be some other matters you will hear about.

You'll hear about mechanics testifying as to there training

or more specifically their lack of training in handling

oxygen generators and lack of training with regard to

functions that they performed concerning hazardous


You'll also hear testimony that supports the

charge in the indictment that SabreTech caused destructive

devices that is oxygen generators to be placed on ValuJet

flight 592.

By the end of the case you will have facts that

show just how destructive those oxygen generators can be.





Most of all, you will have the facts that show the lies

woven into the business of SabreTech, willful false

statements by these defendants, facts that prove the charges

beyond a reasonable doubt, and that will make it your duty

to return one verdict, guilty.

Thank you.

THE COURT: Ladies and gentlemen, at this time we

are about to take the noon recess. You are free to go to

lunch where ever you would like. There is a little

lunchroom on the second floor of this building, sandwiches

and some things, but it sometimes is crowded. There are

several little sandwich shops around near by. You are free

to go wherever you would like. Some of you can go

together. You don't have to. You can do whatever you want

to do.

By all means, do not have any conversations with

anybody. By the way, when you are walking down the hall

way or on the elevator be careful that you don't say

anything about the case. There are a lot of people

involved in the case. The hallway is small. The agents,

lawyers, witnesses, people will be on the elevator. You

don't know who they are, and they don't know who you are.

When you are around the building if you wear

those tags it's a good idea. That helps identify you as a

juror and therefore decreases the possibility that





innocently some conversation may be overheard that would

disqualify you in the case. So we ask you to be careful

about that.

Also if there is anything in the newspaper,

television or radio during the noon hour please don't watch

it or listen to it. Don't let anything come to your

attention about the case except what you hear in the

courtroom. When you return don't hang around the lobby or

the phones out there. Come into the jury room.

If any of you need to use a telephone notify the

bailiff, and he will bring you into my office, and you can

make a call privately. Don't go out and use the telephones

and hang around out there. Basically, just don't have any

connection with anybody connected with the trial. If

anybody should try to talk to you, intentionally talk to

you about the case, that is a serious offense. Don't let

them do it. Walk away and tell the marshal when you get


At this point, ladies and gentlemen, we will take

an hour recess. We will ask you to come back at 1:20. That

will give you an hour. Thank you very much. We will ask

everybody to wait until the jury is out.

[The jury leaves the courtroom].

THE COURT: We will be in recess until 1:20.

[There was a recess for the noon hour].






I hereby certify that the foregoing is an accurate

transcription of proceedings in the above-entitled matter.







______________ _______________________________________


Official Federal Court Reporter

Federal Justice Building, Ste. 1127

99 Northeast 4th Street

Miami, FL 33132 - (305)523-5108

































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