November 16, 1999















99 N.E. 4th Street

Miami, FL 33132 - 305/961-9432















2937 S.W. 27th Avenue, Suite 206

Miami, FL 33133 - 305/444-3400







100 S.E. 2nd Street, Suite 3700

Miami, FL 33131 - 305/379-8300




2601 S. Bayshore Drive, Suite 601

Miami, FL 33133 - 305/854-9666




Miami Center, Suite 2550

201 South Biscayne Blvd.

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





Witnesses: Direct Cross Redirect Recross

Walton Little ................ 68

Richard Brennan .............. 80

Reporter's Certificate ................................. 118

Opening Statement - Raskin ............................. 4

Opening Statement - Dunlap ............................. 34

Opening Statement - Moscowitz .......................... 51


Exhibits Marked for Received

Identification in Evidence

Description Page Line Page Line

Government Exhibit 1 ........................... 79 3

Government Exhibit 32 .......................... 88 3

Government Exhibit 30F ......................... 98 5

Government Exhibit 31 ......................... 103 16






2 1:30 P.M.

3 COURTROOM DEPUTY: All rise. Court is in

4 session. The Honorable Judge James Lawrence King

5 presiding.

6 THE COURT: Thank you. Be seated.

7 MR. MOSCOWITZ: Your Honor, we would like to make

8 a motion based on Ms. Heck's opening.

9 THE COURT: Let's wait until you finish yours.

10 [The jury returns to the courtroom].

11 THE COURT: Thank you. At this time, ladies and

12 gentlemen, we will hear the opening statement from

13 Mr. Martin Raskin.


15 MR. RASKIN: Good afternoon, ladies and

16 gentlemen. Although this is the first time that I have had

17 an opportunity to speak with you, you have already heard a

18 lot about my client, SabreTech, and it all sounded pretty

19 bad. Everybody from the stockroom clerks to the hourly

20 mechanics, cutting corners and pencil whipping, all at the

21 expense of safety. But you know what? The evidence will

22 show that it just didn't happen.

23 SabreTech, you will hear, was in the business of

24 making planes safe for flight. At the time of the ValuJet

25 crash, SabreTech was the third largest independent repair





1 facility in the United States. It employed fifteen hundred

2 people, had facilities in three states. Six hundred workers

3 were employed in the Miami area alone, at the Miami

4 facility. It serviced hundreds of aircraft over the years,

5 for some of the biggest airlines, all accident free.

6 David Gonzalez and Eugene Florence are two of the

7 six hundred workers who were employed at the Miami facility.

8 You will hear a lot about Danny Gonzalez and Eugene

9 Florence, when their lawyers get up and address you in their

10 opening statements. Let me make one thing clear to you at

11 the very outset. The one thing that the evidence will show

12 in this case, beyond any doubt, is that these men are both

13 excellent and well-trained, well-intentioned airplane

14 mechanics. In addition, neither they, nor SabreTech are

15 criminals.

16 The government makes this case sound so easy and

17 so simple. But as you'll learn during the course of this

18 trial, there are no good guys or clear-cut bad guys in this

19 story. Real life just isn't black and white. Sometimes

20 people make mistakes. And in this case, many people

21 including my client, SabreTech, made mistakes when combined

22 with the mistakes made by others had tragic consequences.

23 But the fact that the ultimate outcome was a tragedy of

24 immense portion, doesn't change the fact that what happened

25 in this case were mistakes. Errors in judgment, not crimes.




1 Ladies and gentlemen, the story of what happened

2 with ValuJet flight 592 doesn't start with SabreTech, and

3 doesn't stop with ValuJet work card 0069. The story is not

4 confined to what the government has told you or has chosen

5 to tell you.

6 The fact that the government has not told you

7 volumes of evidence. We will fill in the blanks for you

8 during the course of this trial. You'll hear that the chain

9 of human errors that resulted in the crash of ValuJet flight

10 592 was made up of many links. SabreTech mechanics and

11 storeroom clerks, Valujet ramp workers, the FAA, DOT

12 bureaucrats, Scott Aviation, the maker of the generators,

13 and even McDonald Douglas, the maker of the plane which

14 crashed.

15 You'll see that not one of them acted with bad

16 intent or bad motive. Not one of them could have foreseen

17 the final outcome, the tragic outcome in this case. Yet,

18 they are all parts of the chain. They are all links in the

19 chain that the government will not tell you about. They

20 only tell you about SabreTech, but we will tell you about

21 the others.

22 Remember, what matters in this case is not what

23 everybody knows now about the dangers of oxygen generators

24 and training. What matters is that SabreTech, and it's

25 employees, is what they understood at the time that these





1 events transpired in May of 1996. We will have plenty to

2 tell you about May 1996, and the state of knowledge in both

3 the industry and at SabreTech.

4 Let's start with the charges. What are they

5 really? The charges can be divided into three main

6 categories.

7 First, the government says that we deliberately

8 placed a destructive device on an airplane carrying 110

9 people with the intent to endanger it.

10 Second, they accuse SabreTech and it's employees

11 of a vast conspiracy to cut corners, to put profit over

12 safety, and to falsify documents.

13 Finally, they accuse us of reckless violations of

14 complicated hazardous materials regulations.

15 Now, in considering these charges, you should know

16 the legal standards that you will use at the end of this

17 case to evaluate them. The main issue that you will be

18 considering, is the state of mind of the defendants. What

19 did they intend? What was your motive?

20 At the end of this case, Judge King will instruct

21 you on the definition of willful conduct. He will tell you

22 that in order for something to be willful, it must be done,

23 and here is the way the law reads: it must be voluntarily

24 and purposefully with a specific intent to do something that

25 the law forbids.




1 THE COURT: Mr. Raskin, I'm sorry to interrupt

2 you, but we don't read the instructions to the jury. That

3 comes at the end of the case. Let's talk about what you

4 are going to prove.

5 MR. RASKIN: His Honor is absolutely correct.

6 The only Judge of the law will be Judge King, and he will

7 instruct you at the end of this case.

8 Getting back to state of mind of the defendants,

9 another concept that you will hear about during the course

10 of this case, and that Judge King will instruct you about at

11 the end of this case, is that good faith is a defense to a

12 charge of false statement. Again, the Judge will instruct

13 you about that at the end of the case.

14 THE COURT: Let's talk about the facts.

15 MR. RASKIN: With these legal principles in mind,

16 let's start with the first charge that I mentioned, putting

17 a destructive device on a passenger aircraft. I start with

18 that charge because I think that it will be the most

19 obvious example of the prosecutor unfairly trying to turn

20 this tragedy into a crime.

21 THE COURT: Mr. Raskin, could I see you and

22 Ms. Miller, please?

23 THE COURT: I'm awfully sorry to interrupt you.

24 I hate to do it sidebar, but this is not consistent with

25 the opening statements that Ms. Heck did. This is the





1 elements, and this is this and this is that. I don't mean

2 telling them the evidence and discussing anything about

3 what you are going to show, and you're not going to hear

4 evidence about such and such, that is permissible. But the

5 elements, please raskin go through that.

6 MR. RASKIN: I will not do that.

7 [Sidebar Concluded]

8 MR. RASKIN: The government said that SabreTech

9 willfully and intentionally placed the destructive devices

10 and expired generators on ValuJet 592, and the indictment

11 says that it was with the intent that the plane be made

12 unworkable, and unusable. In other words, with the intent

13 to make it crash.

14 You heard Ms. Miller's opening statement. She

15 acknowledged that nobody at SabreTech intended for the

16 plane to crash. She is right. There will be no evidence

17 of that.

18 There will be no evidence that SabreTech's workers

19 were terrorists trying to put a bomb on an airplane, or kill

20 people. These were mechanics and stockroom clerks doing

21 their jobs. Maybe they made mistakes, but they certainly

22 didn't intend to harm anybody, and they certainly didn't

23 intend to harm that plane.

24 What about the government's conspiracy charge?

25 The indictment says that SabreTech, Eugene Florence, Danny





1 Gonzalez and others combined, conspired, confederated and

2 agreed to rush and compress repair work, and to deliberately

3 lie to the FAA about it.

4 The government claims that SabreTech workers

5 routinely bowed to management pressure to pencil whip

6 maintenance cards. But when you cut through all the fancy

7 language, listen to the evidence in this case, you will

8 discover that the government is complaining simply about

9 three work cards.

10 You will hear that one of them involved the Aserca

11 C-Check that Ms. Miller mentioned in her opening statement,

12 and that dealt with a de-icing check that took place

13 approximately five months prior to the ValuJet crash. You

14 will hear during the course of this trial that C-Check and

15 that particular step was accomplished, and it was

16 accomplished by one of the most experienced and best DC9

17 mechanics in the country, Danny Gonzalez.

18 The two other false statement charges by the

19 government involved the safety caps. Ms. Heck-Miller spent

20 a great deal of time dealing with that issue, the safety

21 caps which were supposed to be in place on the oxygen

22 generators.

23 Guess what? The evidence will show that SabreTech

24 itself provided those work cards to the NTSB just three days

25 after the crash, and explained that they were inaccurate as





1 to that particular work stop.

2 So, let's go further. The government's evidence

3 will not show a repeated pattern of false statements. It

4 will not show efforts on the part of SabreTech, or it's

5 employees to conceal or hide anything. Rather, the criminal

6 conspiracy or agreement that the government alleges will

7 show an unfortunate lack of coordination, lack of knowledge

8 and lack of understanding on the part of some SabreTech

9 employees as to what other SabreTech employees knew or were

10 doing.

11 There was no conspiracy to falsify paperwork or

12 anything else and the evidence will so show.

13 What makes the government's lack of evidence in

14 this case so glaring, is the time and the effort that it

15 spent in putting this case together.

16 You will hear that the government reviewed

17 hundreds and hundreds and thousands of documents in this

18 case. The documents concerning the 3 MD-80s aircraft alone,

19 if you were to stack it all up in this courtroom, would go

20 about 10 to 20 feet high.

21 At the end of their investigation, they have come

22 up with three pieces of paper. That is what they allege to

23 be this over arching conspiracy.

24 What about the atmosphere of pressure that

25 Ms. Miller talked about? The evidence will be that there




1 was pressure to get the job done. This was a business,

2 there were deadlines to be met, and the company wanted to

3 make a profit, like all businesses do. But you will hear

4 that it wasn't at the expense of safety. The witnesses in

5 this case, SabreTech's employees, quite simply will blow

6 this nonsense out of the water.

7 The evidence will be that SabreTech's mechanics

8 were very concerned about the safety of the planes on which

9 they worked. They will tell you that they didn't pencil

10 whip maintenance tasks, and they don't know of mechanics

11 that did. That's the part of the story that the government

12 doesn't want you to hear.

13 Now, will some SabreTech employees tell you that

14 they didn't like their boss? Yes. Will some tell you that

15 they tried to avoid signing paperwork? You will hear that

16 from some, but not because they believed that the work had

17 not been done, and not because they believed the work had

18 been done improperly.

19 Take, for example, Mauro Valenzuela. The

20 government will tell you that the evidence will be that

21 Mauro Valenzuela didn't personally accomplish the removal

22 of the old oxygen generators from plane 803, but he signed

23 the work card concerning the installation and removal any

24 way.

25 As Ms. Miller seems to concede, it is entirely





1 appropriate under FAA regulations for a mechanic to sign

2 for work that he hasn't done himself, as long as he insures

3 himself that the work has been accomplished.

4 Before he signed the ValuJet work card, you will

5 hear evidence that Mauro Valenzuela spent four hours

6 checking to make sure the generators had been properly

7 installed on the plane that had been repaired. The

8 evidence will not be that he falsified work papers.

9 You'll hear after some give and take from his

10 boss, he did the best he could to ensure himself that the

11 work was done properly, and he signed the paperwork.

12 Nothing you will hear from any of the witnesses in this

13 case will contradict that basic fact.

14 Let's talk now about the area in which the

15 government asked you to concentrate; the work-step telling

16 the mechanics to place shipping caps on the firing pins of

17 the expired generators.

18 The government would like you to view these work

19 cards in isolation. It all sounds so simple in retrospect.

20 Two simple work cards over the course of this

21 trial. We will probably spend lots of times dissecting

22 those cards through the looking glass of this tragic

23 accident.

24 You will hear that these work cards must be

25 considered in their proper context. You will hear that





1 these work cards, explained before, are part of a package

2 made up of tens of thousands of work documents related to

3 the 3 MD-80s.

4 Before the end of this trial, you will see none

5 routine work cards, routine work cards, checklists, tally

6 sheets, engineering orders, log books, checkbooks, service

7 bulletins, inspection reports, air worthiness directives,

8 inventory lists, and a whole host of other paperwork.

9 This massive paperwork, as I said before, would

10 reach the ceiling of this courtroom, if stacked up. So when

11 you are considering whether Eugene or Mauro acted with

12 critical intent, remember that unlike those of us sitting in

13 this courtroom for the next several weeks, those mechanics

14 were not focused on that one single solitary piece of

15 paperwork that the government now finds fault with.

16 Having said that, let me make a couple of things

17 clear. First of all, no one least of all SabreTech,

18 disputes the fact that there were no shipping caps at the

19 time that those work cards were signed. That was an agreed

20 fact since three days after the crash.

21 Second, no one disputes the fact that ValuJet work

22 card 0069, as signed by Florence and Valenzuela, is

23 technically inaccurate as to one of the work steps. That,

24 too, has been a matter of public record for over three and a

25 half years.





1 The important question for you to decide, is not

2 what was done, but why it was done, with what state of mind.

3 Remember, this is a criminal case to convict

4 someone of a false statement crime. It is not enough for

5 the government to prove that the statement was inaccurate.

6 It's not enough for the government to prove that the false

7 statement was played as a result of negligence or poor

8 judgment.

9 The government must prove that the statement was

10 made with bad purpose and with the specific intent to

11 deceive.

12 So, you will be asked to determine what motivated

13 Eugene Florence and Mauro Valenzuela in signing those cards.

14 What was in their minds? Did they intend, by signing those

15 cards, to deceive the FAA or ValuJet? Did they have a bad

16 purpose in mind that the government says they did, to

17 knowingly and willfully disobey the law in order to make a

18 few extra bucks for SabreTech? Or, will the evidence show

19 that they acted in good faith, and without intent to

20 deceive?

21 The evidence will show that the mechanics acted in

22 complete good faith. Their good faith is not something that

23 you will have to guess about. It's not something that

24 requires a mind reader. The good faith, with which

25 SabreTech's mechanics approached the oxygen generator





1 paperwork, will appear naturally to you throughout the

2 course of this trial, so long as you listen for it.

3 For example, you will learn that the 70 or so

4 mechanics who participated in the oxygen generator work, had

5 in front of them, as they should have, both the ValuJet work

6 cards and ValuJet engineering orders that detailed the

7 manner in which this work was supposed to be done.

8 So you have just heard a very interesting fact

9 here during the course of this trial. There were 70

10 mechanics who worked on this project. You also heard that

11 there were different kinds of paperwork associated with

12 those tasks. Let's talk about that.

13 These mechanics learned that the work cards called

14 for shipping caps, and SabreTech didn't have any in stock.

15 You heard about that. By the way, there is nothing wrong or

16 suspect with SabreTech not having those caps in stock. This

17 was a very unusual airplane part. It's not the kind of part

18 that would be in the stockroom of virtually any work repair

19 facility.

20 So, having learned that the mechanics didn't have

21 shipping caps, did the mechanics shrug their shoulders and

22 say so what? An attitude that would be consistent with bad

23 purpose or indifference? No. You will hear that they

24 brought the issue to the attention of their supervisor, who,

25 unlike what Ms. Miller told you in her opening, did not blow





1 them off.

2 You will hear that that supervisor, indeed,

3 ordered shipping caps. In the meantime, while the mechanics

4 were waiting for the caps to arrive, what did the mechanics

5 do with the generators? Did they simply throw them in a box

6 and walk away? The answer again will be, no. The mechanics

7 you will hear took great care with the generators. Some cut

8 the lanyards. Some wrapped the lanyards around the

9 generator in an attempt to render them safe.

10 They will tell you that they took the time to do

11 this because that's the way the new generators came. They

12 came with their lanyard wrapped in order to render them

13 save.

14 You will hear that the mechanics all believed that

15 they were achieving an equivalent of safety. You know what?

16 You will hear that they weren't wrong. Over the next weeks,

17 you will become very familiar with the operation of these

18 oxygen generators. You will probably know more about oxygen

19 generators than certainly most people in the aircraft

20 industry.

21 One of the things that you will learn is that

22 these things don't go off easily. In order to make one of

23 these things discharge, you have to really tug on that

24 lanyard, give it a real pull before it simply goes off.

25 Ladies and gentlemen, you will see that a McDonald





1 Douglas maintenance manual, approved by the FAA and issued

2 after the crash, actually authorized the mechanics to do

3 exactly what they did, to try to achieve a level of safety

4 in the event that they don't have shipping caps.

5 After having finished, in their minds, securing

6 the generators, the mechanics spent hours filling out and

7 placing green repairable tags on each of the generators.

8 Those tags accurately described the devices as out-of-date

9 generators, a description meant to keep them from going back

10 on any active aircraft.

11 A repairable tag is what it sounds like. It tells

12 the people in the facility that this is not a part that can

13 go back on an aircraft. It is something that has to be

14 worked on. It has to be fixed first. So these mechanics,

15 in putting those green tags on, reasonably believed that

16 they would never go back on an airplane. After taking the

17 time to carefully disarm and label the generators, the

18 mechanics carefully placed the generators in box.

19 Listen to what the witnesses tell you about the

20 care and precision with which the mechanics dealt with these

21 generators. Listen to the government's own witnesses. They

22 weren't throwing these generators around. They weren't

23 simply throwing them in boxes. Think about this. Does the

24 evidence that I just described, fit with the government's

25 charge that the mechanics were rushing through the work to





1 make more money for SabreTech?

2 The evidence will show, absolutely not. These

3 mechanics spent hours and hours working on the old

4 generators. They spent much longer working on the old

5 generators than it would have taken to simply put a shipping

6 cap on, had they been available. As Ms. Miller has told

7 you, these shipping caps really only cost pennies. There is

8 no saving to SabreTech not having put a shipping cap on, had

9 one been available.

10 What is more, the contract between ValuJet and

11 SabreTech provided that if there were these kind of peculiar

12 items, it was ValuJet's responsibility to pay for them. So

13 money, simply had nothing to do with the decision not to put

14 safety caps on. That decision was made by the fact that

15 there were no safety caps available at the time that these

16 generators came off.

17 Something else that you should pay close attention

18 to. The mechanics worked on these generators in full view

19 of anybody who cared to see what they were doing. They knew

20 that ValuJet was on the floor looking over their shoulder.

21 They knew that ValuJet's three technical managers could see

22 there were no shipping caps on the generators. They weren't

23 trying to conceal anything. They weren't acting like people

24 who thought they were doing something wrong or something

25 criminal.



1 The mechanics knew the FAA could drop in at any

2 time to do a routine inspection of the facility. So, you

3 might ask yourself then, how did these well-intentioned

4 mechanics come to sign off on a work card which contained,

5 as one of it's work steps, place a shipping cap on firing

6 pin? Good question.

7 You will hear plenty about that during this trial,

8 but nothing that you will hear will suggest a willful

9 attempt to deceive, or bad purpose to disobey the law.

10 First, you will hear that Eugene Florence and

11 Mauro Velenzuela did not sign these work cards until weeks

12 after the generators had been removed, and long after the

13 issue of shipping caps had been raised with their

14 supervisors.

15 These things, for the most part, came off in

16 February and these work cards were signed in April or May.

17 You will hear at the time the work cards were

18 signed, the boxes containing the old generators were carried

19 away from the hanger to a completely separate facility where

20 ValuJet's old airplane parts were stored.

21 The evidence will show, at the time, Eugene

22 Florence signed the work cards long after the mechanics had

23 been told that the issue of the shipping caps had been taken

24 care of by their supervisor. The evidence will show that

25 Eugene believed that the shipping caps had been ordered, and





1 had been placed, or would be placed on the expired

2 generators.

3 Now, you may conclude that that was a careless

4 summation on Eugene's part, or reflected bad judgment, but

5 that is not what is at issue here. You will not be asked to

6 decide if these ValuJet work cards were signed incorrectly,

7 or carelessly or negligently.

8 You will be asked if they were signed with

9 criminal intent, willfully or with bad purpose to disobey

10 the law. They were not, and the evidence throughout this

11 case will show that.

12 You will hear from many aviation professionals and

13 you will hear from those people that airplane mechanics,

14 like Eugene Florence, and Mauro Gonzalez, and Danny

15 Gonzalez, are trained to work on the safety of the airplanes

16 that they are getting ready to put back in the air. The

17 paperwork and the work packages that you heard about today,

18 they are mainly designed to document the air worthy

19 condition of the planes that are being repaired.

20 The work package stays with the active planes and

21 it does not and, this is important, the work package does

22 not follow the old parts removed from the planes during the

23 repair process. So these MD-80 work cards, 0069 work cards,

24 they went with the MD-80 when they flew away. That

25 paperwork did not go to the stockroom, and was not relied on





1 by stock clerks or by ValuJet flight 592 or it's crew.

2 You will hear that Eugene Florence and Mauro

3 Valenzuela knew all of that. They knew they were signing

4 paperwork that was intended to document the fact that the

5 outgoing ValuJet planes that they had been working on, were

6 air worthy and they were.

7 Listen to the charges and the evidence. The

8 government has not found fault with any of the work done on

9 the 3 MD-80s aircraft on which those men were working. In

10 fact, those planes are still flying around today.

11 More specifically, ladies and gentlemen, Eugene

12 and Mauro knew that the primary purpose of the 0069 work

13 card was to tell ValuJet and the FAA that the cabin

14 objection system on those planes had been properly installed

15 and was operating correctly.

16 It had been properly installed. It was working

17 correctly, and Eugene and Mauro knew it when they signed

18 those work cards. The evidence will show that by signing

19 those cards, Eugene and Mauro weren't trying to deceive

20 anyone into thinking there were shipping caps on the old

21 generators, and neither they nor SabreTech had any financial

22 or monetary motive to do so.

23 As a matter of fact, you will hear evidence during

24 the course of this trial that even had the FAA been told

25 that the old generators did not have a shipping cap on them,





1 that fact would not have held up the release of the service

2 of the MD-80 aircraft.

3 So the penalty clause that Ms. Miller told you

4 about that SabreTech was so concerned to not violate, would

5 not have been triggered. You will hear that this is a

6 standard clause in the airplane repair industry, but it is

7 irrelevant in this case because that plane could have gone

8 back into service whether there were caps on those

9 generators or not.

10 Let's talk a little bit about hazardous materials

11 charges. The government says that SabreTech willfully and

12 recklessly handled the packages and shipped the packaged

13 generators, in violation of the department of transportation

14 hazardous materials regulations.

15 Ms. Miller explained that these generators are on

16 a list of hazardous materials published by the department of

17 transportation, and that they contain a chemical called

18 sodium chlorate. I'm sure as this trial progresses, we will

19 learn a lot about what that is, and we'll also learn about

20 the hidden dangers that these generators actually had.

21 But, of course, in deciding whether SabreTech and

22 it's employees willfully and recklessly violated the

23 hazardous materials regulations, you must not focus on what

24 we all know now, and what we are going to learn in this

25 courtroom over the next several weeks about the dangers of





1 oxygen generators.

2 You have to focus on what SabreTech's folks knew

3 then, not what they should have known, not what we wish we

4 had known, but what we actually knew, based on the

5 information then available to them. Let me review with you

6 now, the evidence that you will hear on that issue.

7 First, you will hear that these generators were

8 not common airplane parts, and that most airplane mechanics

9 rarely, if ever, worked on them. As Ms. Miller said, most

10 planes use bottles of compressed oxygen rather than the

11 chemical oxygen.

12 Devices. You will hear that these devices were

13 first manufactured in the 1970s, and have a useful life of

14 12 years. These are only changed once every 12 years,

15 unless they are used. This means a mechanic could go an

16 entire career never having changed one or dealt with one.

17 You will hear that the mechanics' handling -- let

18 me start over again. I was going to say that they didn't

19 know, but that's not what the evidence will show. You will

20 hear that these mechanics did know that these generators can

21 get hot, and they knew that because several of them had

22 worked at other airlines like Eastern in the past and had

23 dealt with these generators. So, some of the mechanics knew

24 they got hot. Some told other mechanics that they got hot.

25 As Ms. Miller told you, work card 0069 told the mechanics





1 that these things can get very hot.

2 Ladies and gentlemen, the information that they

3 had was very limited information, because you will see that

4 ValueJet's work card is not so much as mentioned that these

5 were hazardous materials or hazardous waste under the

6 department of transportation regulations.

7 This is an extremely important distinction knowing

8 that a device gets really hot to the touch doesn't lead to

9 the conclusion that it is a hazardous material that is to be

10 shipped according to specific department of transportation

11 guidelines. Remember, the issue is not whether the

12 mechanics knew they can get hot and burn you, the issue is

13 whether they knew because of that fact they were a specific

14 hazardous material.

15 Let's talk about a light bulb, 200 watt light bulb

16 that has been burning for an hour. We all know it's hot

17 enough to sear your skin if you touch it. But the fact that

18 the light bulb gets hot doesn't tell you anything about

19 whether it's classified as a hazardous material for shipping

20 materials. As you can probably guess, a light bulb isn't.

21 Think about it, there's nothing about the

22 generators that would instinctively lead these mechanics to

23 believe they were hazardous materials. After all, you will

24 hear that these uncapped generators sit inches above

25 passengers head when they are flying around in these planes.





1 They are there during every hard landing and during heavy

2 turbulence. They don't go off. Knocking them, they don't

3 go off.

4 The mechanics knew that. So, should it have been

5 obvious that the generators were hazardous materials? Of

6 course not. The evidence won't show that. You will also

7 hear, that the mechanics had other work instructions

8 provided by ValuJet in connection with the same removal and

9 installation of generators that were both contradictory and,

10 confusing.

11 For example, we will show you an engineering order

12 for a number of these generators which would simply tell the

13 mechanics to remove them, replace them, tag them and place

14 them in storage. That document doesn't mention shipping

15 caps, doesn't mention that they get hot, and contains no

16 hazardous materials warnings of any kind.

17 One piece of paper says they got hot. The other

18 one doesn't say anything about that. One says put on a cap

19 and the other one doesn't. These mechanics were supposed to

20 know what they weren't told. Even more important was the

21 fact that the generators themselves carried absolutely no

22 warnings about their hazardous nature. Think about that

23 one.

24 The generators that the government says were

25 explosive devices that caused the ValuJet plane to crash,





1 did not so much as have a warning label on them. You heard

2 that there came a time later that the manufacturer started

3 putting warning labels on the devices. But the ones that

4 these mechanics took off, had no warnings, didn't say

5 anything.

6 A bottle of household bleach tells more about it's

7 dangers than these specialized airplane parts that are due

8 to be replaced once every 12 years.

9 What about McDonald Douglas, the manufacturer of

10 the MD-80 owned by ValuJet? Did it warn SabreTech and the

11 mechanics about the hidden dangers of the oxygen generators?

12 The evidence will be, no. You'll hear that in the late

13 1980s, McDonald Douglas sent out two, what are called, all

14 operator letters, to airlines warning them about dangers

15 associated with oxygen generators.

16 Here in the late eighties, there was a problem

17 apparently, and the manufacturer sent around a letter to

18 airlines telling them that there was a problem. You will

19 hear that that letter didn't go to repair stations like

20 SabreTech, and you will hear that that letter wasn't shared

21 by SabreTech with it's customer, ValuJet.

22 You will hear that even the department of

23 transportation and Scott Aviation, who made the generators

24 were not sure how to classify them. When they were first

25 introduced in the 1970s, you will hear that they were





1 classified as new explosives. At Scott's requests, they

2 were reclassified as flammable solids. That sounds pretty

3 bad. But later, Scott simply began calling them oxidizers.

4 The bottom line, ladies and gentlemen, is that

5 SabreTech mechanics and stock clerks were never told by

6 anyone, whether it be ValuJet, the FAA or Scott Aviation,

7 that these were hazardous materials that had to be handled

8 in a special way.

9 SabreTech wasn't alone. You will hear that the

10 ValuJet tragedy was a wake up call for the entire aviation

11 industry. Repair stations, flight crews, airplanes,

12 aircraft manufacturers are all smart now. Unfortunately,

13 nobody was smart then.

14 The government contends that the expired

15 generators caused the ValuJet crash. As I told you before,

16 it is almost impossible for these devices to self initiate

17 without somebody yanking the cord. You will also hear that

18 the plane which crashed was an old plane, over 25 years old.

19 You will hear that it had significant electrical

20 problems, and it had old and worn out wiring.

21 On the ValuJet flight leg proceeding flight 592,

22 you will hear that the auto pilot was malfunctioning and

23 that plane was porpoising, going up and down. You will hear

24 that the plane had all kinds of electrical problems, even

25 the public address system wasn't working and the flight





1 attendants had to use a bullhorn to make it's announcements

2 to the passengers.

3 Let's remember what the issue is here. You are

4 not here to determine whether SabreTech and it's employees

5 caused the crash. You are here to determine whether

6 SabreTech and it's employees willfully, recklessly, and in

7 bad faith mishandled the generators, and caused them to be

8 placed on the plane.

9 To make that determination, it will be necessary

10 to hear a little bit about how those canisters got on that

11 plane. Ms. Miller told you a little bit about that and our

12 description doesn't materially vary from hers. You already

13 heard that the generators sat next to the planes at

14 SabreTech for weeks. Our mechanics worked around them day

15 in and day out. ValueJet's people wondered around them.

16 Hardly what you would expect of people who recognize these

17 things to be hazardous explosives.

18 Eventually, you will hear that they were placed in

19 boxes and taken by mechanics to the area of the SabreTech

20 facility where ValuJet's old parts were placed. That's

21 where the mechanics' involvement with these expired

22 generators ended.

23 It's now in a different part of the facility.

24 It's now part of someone else's responsibility to properly

25 handle. You will hear that the generators were in that hold




1 area for some time. That area was just about bursting at

2 the seams with the parts taken off of the MD-80 aircraft.

3 You'll hear that the SabreTech shipping clerk was

4 told to take the canisters to the airline. The evidence

5 will show that was not an unusual request because there was

6 a contract between ValuJet and SabreTech which specifically

7 says that ValuJet owns all of it's old parts.

8 The evidence will show that the storeroom clerk

9 was also unfamiliar with oxygen generators. He knew there

10 were oxygen canisters of some sort, and he also knew they

11 had to be serviced or repaired before they were installed on

12 a plane. The green tag told him that. He did not know that

13 they presented a potential danger, since he believed in good

14 faith, that they were empty.

15 So what he did, he packed the boxes containing the

16 generators, he placed bubble wrap in those boxes to make

17 sure they wouldn't moved around, and taped the boxes closed,

18 and had them labeled as "oxy canisters empty." A colmat

19 label was placed on the boxes indicating that these were

20 ValuJet's own company materials, and he returned those

21 materials to storage in Atlanta.

22 Yet another employee took the boxes to the ValuJet

23 ramp area. There you will hear that ValuJet's own employees

24 put them on a plane for transportation to their own facility

25 in Atlanta.





1 With those facts in mind, the question for you to

2 decide during the course of the trial is not whether what

3 was done, was done correctly. In 2020 hindsight, we all

4 know it wasn't. It could have and it should have been done

5 much better. But the question you have to confront,

6 whether SabreTech and it's clerks and mechanics, whether

7 what did was done recklessly and willfully, given what they

8 knew then, not what we all know now.

9 You will hear that SabreTech rarely shipped

10 hazardous materials from it's facilities. Those rare

11 exceptions would involve a situation where perhaps the

12 Phoenix facility, the part that was contained in the Miami

13 facility.

14 On those rare occasions, you'll hear that

15 SabreTech called in a hazardous materials shipping expert, a

16 company called dangerous goods consultants. They were

17 intimately familiar with the complexed department of

18 transportation regulations. Dangerous goods consultants did

19 the packaging, labeling and shipping of SabreTech's

20 hazardous materials. That's when we actually knew that

21 something has hazardous. The issue was whether given the

22 lack of hazardous materials warning, SabreTech was reckless

23 and willful in returning the generators back to their owner,

24 ValuJet.

25 Now, the government in it's charges, seems not to





1 question the clerk's good faith mistake in not recognizing

2 the generators as hazardous materials. The evidence will

3 not show that SabreTech ignored it's obligations to comply

4 with environmental training requirements and to protect

5 employees from dangers in the work place.

6 When viewed in the context of the limited

7 hazardous materials training throughout the industry,

8 including the FAA and including ValuJet, whatever short

9 comings that existed in hazardous materials training, you

10 will hear did not rise to the level of reckless or willful

11 criminal violation.

12 For example, during the course of this case, you

13 will hear that the FAA itself didn't even adequate train

14 it's own security inspectors to combat the dangers of

15 haz-mat. The FAA, the industry's own watchdog, was

16 woefully understaffed in hazardous materials oversight, and

17 never inspected aircraft repair stations for their

18 hazardous materials handling.

19 How about ValuJet? You will hear that ValuJet's

20 primary technical representative on site at SabreTech had

21 absolutely no hazardous materials training himself.

22 You will hear that ValuJet did not train

23 SabreTech, it's primary maintenance contractor. That is

24 mandated under FAA regulations. One important fact that

25 SabreTech didn't know, and didn't know because ValuJet





1 didn't tell it, was that ValuJet was not allowed to carry

2 any hazardous materials on it's planes at all.

3 Let me repeat that. ValuJet was a will not carry

4 airline concerning hazardous materials. It was not allowed

5 to carry haz-mat, but it never even told SabreTech this

6 critical information. It wasn't even allowed to carry

7 these generators empty or full. Why?

8 I submit that you will see during the course of

9 this case, it was because of confusion up and down the line

10 at ValuJet, from the airlines' president, all the way down

11 to it's own ramp agents. ValuJet's official position, even

12 after the crash, was that they could carry hazardous

13 materials as long as they were colmat. The FAA had to tell

14 them that they were wrong, that ValuJet was not authorized

15 to carry hazardous materials as could he mat or otherwise.

16 In short, ladies and gentlemen, when SabreTech's

17 state of mind is measured according to industry standards in

18 place in 1996, you will see that SabreTech is not guilty of

19 any of these hazardous materials charges. At the end of

20 this case, you will have learned that the ValuJet crash

21 resulted from systems failures and mistakes on the part of

22 countless individuals, both inside and outside the SabreTech

23 organization.

24 For the government to lay blame for this

25 catastrophe only at the feet of SabreTech, Danny Gonzalez





1 and Eugene Florence, is an unfair and unwarranted attempt to

2 make them scapegoats. The evidence will show, it's a tragic

3 accident and not a crime and at the end of this case, I will

4 ask that you set the record straight and find these men and

5 the corporation not guilty.

6 Thank you so much for your attention.

7 THE COURT: Which counsel would like to proceed

8 next? Mr. Dunlap?


10 MR. DUNLAP: May it please the Court?

11 Good afternoon, ladies and gentlemen. I'm Robert

12 Dunlap. I represent Danny Gonzalez. I would like to begin

13 by telling you something about my client, Dan Gonzalez,

14 what his life's work has been, what it was at SabreTech and

15 I would like to tell you a little bit about the

16 organization of SabreTech and how he fit into it.

17 Ms. Miller has told you and it's true, Danny is an

18 excellent mechanic. He is a top notch mechanic, and he has

19 been involved in aviation mechanics all of his life. He is

20 currently employed as a maintenance supervisor at American

21 Airlines' heavy aircraft maintenance facility in Tulsa,

22 Oklahoma. He is on leave from that job with pay so he can

23 work with me defending his case.

24 Danny, from July of 1995 until August of 1996, was

25 the head mechanic at SabreTech. He was the chief of hangar





1 operations. He was not the boss at SabreTech. He was not

2 the chief executive officer. That man's name was Jamie

3 Galinda.

4 Your Honor, I have got some charts I want to use.

5 May I pass them up to the Court?

6 THE COURT: Only by agreement.

7 MS. MILLER: I have no objections.

8 MR. DUNLAP: If I can pass it up to the Court.

9 THE COURT: All right. The marshal will hand it

10 to me. By agreement, the counsel is going to use this

11 document.

12 MR. DUNLAP: The first chart I would like to show

13 you is, this is a national overview of what SabreTech was

14 at the time that Danny was the chief of hangar operation.

15 These are various departments on a national level. This

16 shows you the various offices of SabreTech's repair

17 facilities. The original one that depicts Miami is one of

18 their facilities. The Vice President and general manager,

19 the head of SabreTech Miami, Danny's boss was a man named

20 Jamie Galinda.

21 The second chart I would like to show you is a

22 chart that shows the general organization of SabreTech in

23 Miami when Danny was the chief of operations there. Again,

24 that was between July of '95 through September of '96.

25 You are going to hear a lot about all of the





1 departments, and I don't want you to worry about all the

2 details right now. I would just like you to see that Danny

3 is down here and he is in charge of three different

4 departments of operation that involve different types of

5 mechanical work.

6 But the principal people that you'll hear about

7 here are the mechanics over on this right side. They are

8 the guys that go in to the plane and do the internal work on

9 the plane, replace parts and check out various systems. The

10 people here on the right, avionics deal with electronics in

11 the cabin, the people in the middle deal with the bigger

12 structure of the plane, the major components of the plane.

13 These people on the right, most of the witnesses

14 from SabreTech are going to come from these people, and

15 these people are who you are going to hear about. Danny was

16 in charge of all the mechanics. Danny was a mechanics'

17 mechanic. He was in charge of their daily operation.

18 The project manager had oversight for the whole

19 operation of the facility. It had many planes in there at

20 one time. There were two planes in there at all times.

21 Maintenance supervisors would be assigned to one or two

22 planes on a given shift and their job was to see that the

23 work went on smoothly. They had a big responsibility in

24 handling paperwork to make sure that the paperwork was

25 organized and handed out and worked on by the mechanics in





1 an efficient manner. That's called flowing the job, and

2 there's an art to you. You could be a perfectly fine

3 mechanic, but no good at supervising.

4 There was approximately 16 maintenance supervisors

5 at the time Danny was chief of the mechanics. Then, there

6 were lead mechanics. Lead mechanics are responsible for

7 crews of mechanics, who actually go on the planes and do

8 jobs on a particular shift. They may be supervising the

9 lead mechanics between five or ten mechanics at any given

10 time working on a specific project. There were about 150 or

11 160 mechanics at the time Danny was working there.

12 Danny, as you heard Ms. Miller say, was an

13 hands-on guy. He would, from time to time, work on the

14 planes, pitch in and work on projects. By and large, he

15 supervised his project managers and maintenance supervisors

16 to see that the jobs were moving along correctly and

17 officially, and that the jobs were done right and done on

18 time.

19 Now, after the crash of ValuJet flight 592 on May

20 11, 1996, the government immediately focused on SabreTech

21 because that is where the oxygen generators, the old ValuJet

22 oxygen generators that were found at the crash site had come

23 from.

24 The government initially began pursuing a

25 conspiracy theory in this case, and not an accident theory.





1 Why that was the case, is really better left for closing

2 argument. Nonetheless, the evidence will show that no fair

3 consideration of a simple accident was ever given here.

4 The government spent three years before they

5 indicted this case this past July. Thousands of man hours

6 were spent and untold money, looking for proof of a

7 conspiracy theory. I want to say this very clearly, there

8 never was any conspiracy. The evidence will show that.

9 Just as Ms. Miller agrees, no one ever intended to

10 cause the crash of ValuJet 592. No one at SabreTech ever

11 conspired or agreed to work together for any criminal

12 purpose such as falsely claiming work that had been done,

13 when it hadn't. At SabreTech, there was no proof of pattern

14 or fabric of routine lying on paperwork or of skipping

15 steps.

16 Danny and everyone else on paperwork, worked

17 together and you will see that there are hundreds and

18 hundreds of examples, if not thousands of heavy maintenance

19 repair tasks done correctly, and inspected correctly by

20 SabreTech's own in-house inspectors, their own in-house

21 watchdogs called quality control. I will tell you more

22 about them later.

23 I would also like to tell you about the indictment

24 in this case, and how it relates to Danny. You really

25 haven't heard what the indictment consists of in this case,





1 and you need to know the specifics of it because you are

2 going to be called about to render your verdict based upon

3 the indictment. That's why we are here, because of very

4 specific allegations.

5 The indictment consist of 24 separate counts.

6 Twenty-two of those counts do not related to Danny. He is

7 not charged in them. Those 22 counts all relate to, in one

8 way or the other, the old ValuJet oxygen generators. He

9 doesn't have any involvement in them. He is not charged

10 with any count that deals with the oxygen generators.

11 Why, you may ask, is he here? You heard

12 Ms. Miller say in her opening statement and I want to be

13 exact, that the evidence in this case will show that

14 SabreTech was a business that had lies woven into it's very

15 fabric. Well, that brings up Count I. Count I does charge

16 Danny and it charges him with being a member of a

17 conspiracy.

18 The government has alleged that this business,

19 SabreTech, was run on a day-to-day basis, with lies woven

20 into it's very fabric. The government investigated and

21 investigated for three years, and they couldn't find any

22 facts that showed that Danny knew there was any

23 falsification with respect to the old ValuJet oxygen

24 generators, and so he is not charged in those counts.

25 They couldn't find any facts that could suggest





1 that he was involved, in any way, of improper shipping of

2 those oxygen generators, and so he is not charged in that.

3 You heard Ms. Miller say that he was on the floor

4 at certain times when the oxygen generators were being

5 worked on and that is true. As she said, it is a business

6 and there is nothing illegal or wrong with being a manager

7 of a business. The evidence will show that he was not

8 involved in those facts. So how is he charged? How is he

9 here at all?

10 The government in pursuit of this conspiracy

11 theory looked for three years time to come up with some

12 facts that would show a pattern that would show that Danny

13 is involved with these pattern of lies. At the end of the

14 day, they have one allegation that will be brought into

15 court on this witness stand by a witness named Chris

16 DiStefano.

17 It has to do with a plane absolutely unrelated to

18 the ValuJet crash. It has to do with Aserca. A S E R C A.

19 You will hear that Mr. DiStefano told the government that he

20 believed that Mr. Gonzalez falsified one work card, and that

21 has to do with a check system called an anti-ice system. On

22 the strength of that one allegation, the government has

23 indicted Mr. Gonzalez.

24 You will see when you look at the conspiracy

25 charge, and that's the first count of the indictment, that





1 Mr. Gonzalez is charged with, in continuing overall fashion,

2 pressuring people to do work quickly and to skip work steps,

3 and to falsify paperwork to increase profits and to make

4 money.

5 You will also see there is, but one actual

6 falsification that he is charged with. That is reflected

7 also in Count I, which is simply a count, Count II, excuse

8 me, that he actually falsified a document and both of those

9 counts relate to the Aserca work card, having to do with a

10 test system, a couple of pressure tests in the system not

11 the entire system, called the anti-ice system.

12 That will be brought into court. You will hear

13 about that from Christopher DiStefano. The government has

14 told you a little bit about him. I would like to tell you a

15 little bit more.

16 First of all, you are going to find that he was

17 wrong. In fact, the test was done. The evidence will show

18 that. You are going to find also, that as the government

19 told you, he is a witness that does not like Danny. Danny

20 removed him from the Aserca project. He was trying to do a

21 different job on the Aserca project, and Danny blew up

22 because he didn't like the way he was doing that job. In

23 fact, you will hear that Chris DiStefano couldn't handle the

24 paperwork part of the supervisor's job on that plane, the

25 fact that he was overwhelmed by it, and that he had to be





1 removed. It was also one of the first times he was given

2 the opportunity to be a supervisor.

3 You are going to also hear that Chris DiStefano,

4 like everybody else, was employed at SabreTech when the

5 tragedy of the crash of 5 '92 occurred. At that time, he

6 was a supervisor on the ValuJet project. He was a

7 supervisor or had been a supervisor on the ValuJet plane

8 830.

9 Now, he was at SabreTech when the crash occurred

10 and when the authorities arrived at SabreTech after the

11 crash. As you can imagine, the SabreTech facility and that

12 facility is located on Northwest 36 street on the north

13 boarder of the airport. It's one of those big, tall two-

14 story type warehouses that you can see right from 36 street.

15 -- Shortly after the crash, that building, that facility was

16 pretty much overwhelmed with investigators. People were

17 going in and out of there on a constant basis, questioning

18 everybody as they should do, looking into the cause of the

19 crash, and Danny cooperated fully.

20 Mr. DiStefano was interviewed, and he indicated

21 at that time that he had no knowledge of the safety caps on

22 the oxygen generators. Mr. DiStefano continued to work

23 there, and you will hear, in August 1996, the Federal

24 Government sealed off SabreTech, surrounded the place with

25 police, went in with FBI agents and searched the place.





1 They took everything that wasn't nailed down that

2 related to ValuJet. They sought the assistance of people in

3 identifying ValuJet materials and carted them away.

4 You will hear after that search, Chris DiStefano

5 had in his possession a crucial piece of evidence that you

6 will not have to guide you in your deliberation. That

7 evidence was called the ValuJet turnover log. You will hear

8 that he took it home. He will tell you for safekeeping.

9 And he threw it away. He doesn't know exactly how, but he

10 threw it away.

11 Now, I'm going to explain to you a little bit

12 about SabreTech, and you will hear also what a turnover log

13 is. I'll show a chart. Again, it's got a lot of

14 information on it. You will learn about the heavy

15 maintenance business as we go through this case. This chart

16 is intended to show you how a typical plane moved through

17 SabreTech's heavy maintenance facility.

18 I don't want to go into all of this at this time,

19 but you will see that throughout this whole process, there

20 is intensive required participation in the inspections on

21 the plane and in the movement of the plane as it goes

22 through the facility with the owner of the plane.

23 That is set out in orange. You will see that it

24 moves along in a step by step order determine fashion. Down

25 here, shortly after the plane's owner on-site technical





1 representative. You will hear about they're on-site

2 approving work job by job. How do they work on a plane?

3 Well, a customer dictates exactly what is done.

4 It's not like when you and I drop off our car and say, it's

5 running funny call us back and tell us what is wrong. The

6 process runs through a standard procedure called a C-Check.

7 It is guided by a whole stack of documents called a work

8 card deck. It is a large stack of engineering documents

9 that tells the workers specifically how to do work on the

10 plane.

11 Over here, you see this color in red. That color

12 is meant to indicate the participation of that completely

13 separate part of the SabreTech's business called quality

14 control. Remember, I showed that to you on this other

15 chart, quality control.

16 Quality control and quality assurance is a

17 completely separate section of SabreTech and it is above the

18 mechanics section. It's existence is required by the

19 Federal Aviation Administration. Why is it required? It is

20 there as an in-house watchdog. They are there to check,

21 step by step, that each piece of work is done right, it is

22 accomplished properly according to the FAA required

23 paperwork. They are there day in and day out, and before

24 any piece of work can be closed, they have to approve it.

25 I can't remember the exact phrase. I will do my




1 best that Ms. Miller used in the opening statement, but I

2 think she told you that the people that hold the keys to the

3 treasury in SabreTech are the mechanics. I believe the

4 evidence will show you, that is incorrect.

5 The people who own the keys to the treasury in

6 SabreTech, in other words, who say when the plane goes out

7 the door, are quality control. Because you see, the

8 mechanics can do the work, they can say it's done. But the

9 people who say it is done right, the plane can go, are these

10 people right here. Quality control and quality assurance.

11 If they say it has not been done right, the plane

12 doesn't leave. The mechanics have to do it over again. You

13 will find that this section of SabreTech, the evidence will

14 show, that this section of SabreTech functioned correctly,

15 inspected every day each piece of work that it was required

16 to check, step by step, and there will be no evidence that

17 any inspector was ever compromised, falsified any work

18 documents or tolerated that type of falsification. You will

19 find that the type of conspiracy, the fabric of lies that

20 Ms. Miller has described literally is impossible under this

21 type of internal check and independent examination.

22 What is the evidence again going to be of this

23 fabric of lies? What actual proof is the government going

24 to call upon you to evaluate at the end of the day? Well,

25 it is going to be one alleged falsified work card. Aserca,





1 a plane, I believe the evidence will show you that is not

2 related in any way, forms no kind of a fabric of any kind of

3 conspiracy, a work card that was, in fact, accomplished.

4 What is a turnover log? You need to know about

5 that because that is the document that the key witness

6 against Mr. Gonzalez, Chris DiStefano, that's the piece of

7 evidence that he threw away. Remember, you will hear that

8 this turnover log, and it is depicted here in black, was in

9 his possession after the FBI went through the SabreTech

10 facility searching for anything that related to ValuJet.

11 It was in his possession, and you will hear him

12 testify that he took it home for safekeeping, and then some

13 how, threw it away. Well, first of all, you will see what

14 it looks like. It is a hardbound book like accountants

15 used. The pages are sewn into it, and the pages are numbers

16 so they can't be torn away. It is a document that the FAA

17 requires to be maintained. It's a document, as the name

18 suggests, turnover log, that is literally turned over from

19 shift to shift at the SabreTech facility, and all facilities

20 of this kind in the United States.

21 It's turned over between the project manager to

22 another and one supervisor to another from shift to shift.

23 They are suppose to write in it things they think are

24 important, that they think the next shift is suppose to know

25 about, to give them a heads up as to what to look for. More





1 importantly, you are going to find out from your

2 deliberations that this is the turnover log.

3 It covered the period of time when the oxygen

4 generators were being worked on, when people were

5 considering what to do because of the absence of shipping

6 caps. It's during the very period of time that your service

7 as jurors is going to be focused on, but you won't have to

8 look at because the government's key witness has thrown it

9 away. As a matter of fact, he was able to get immunity for

10 that.

11 You will hear that he didn't mention anything

12 after the crash about any kind of falsification of documents

13 until July of 1997. Remember, I told you he stated he

14 didn't know anything about shipping cap, and had no problems

15 with the oxygen generators. He didn't say anything further

16 until he went into the grand jury and said, by the way, you

17 ought to know about Aserca. He even brought a letter that

18 he stole from Danny's office. There is a letter where a

19 technical representative complained about some work on one

20 of the Aserca planes. He wanted to save that because he

21 thought it might walk out, and he thinks it's adverse today.

22 Well it's not. He was very careful and he saved that

23 letter.

24 He couldn't quite keep his hands somehow on the

25 turnover log. Moreover, he waited until he got into the





1 grand jury, and the United States immunized him before he

2 popped it on them. You will hear from the evidence that the

3 government's key witness is the only person in this whole

4 case who destroyed evidence, and you will hear that he was

5 clever very enough to dupe the government into immunizing

6 him for it. That's what the government's case is going to

7 consist of.

8 I would like to close by telling you a little bit

9 about what a typical workday was for Danny Gonzalez at

10 SabreTech, what his contrary career has been like in a

11 little bit more detail, and a little bit about his personal

12 life.

13 He lives in Hialeah, just north of 36 street. He

14 is married, and has a wife and three daughters, and five

15 grandchildren. He has been a heavy aircraft maintenance

16 mechanic his entire career. He is an absolute ace mechanic.

17 He is considered to be a top mechanic. At ValuJet he was

18 not the big shot. He was not a CEO. He didn't get stock

19 options or bonuses or a corporate car. He worked very hard.

20 He didn't have an office in the second story two story

21 building I told you about on 36 street. He was on the

22 ground floor working on the planes and his mechanics on a

23 day-to-day basis.

24 As you heard Ms. Miller say, he was a guy who from

25 time to time, would roll his sleeves up, and work on planes





1 himself. So what was a typical day like for Danny? Danny

2 would arrive at 5:30. Very early. Usually before 6:00. He

3 would walk through the entire hangar. He would walk through

4 planes to make sure that all the major projects were moving

5 along. Obviously, not too microscopic, but to make sure

6 nothing was grossly out of order.

7 He would walk through the various work booths, and

8 you'll hear that there were work booths, which was a

9 separate area near the planes were the paperwork was worked

10 on by the supervisors, to see that the paperwork was being

11 moved along at the same time that the work was being

12 completed on the plane. You will hear that that was an

13 important part of the supervisor's as well, to make the

14 progress of the paperwork reflect actually the progress on

15 the plane.

16 Then he would meet with the supervisor of the

17 evening shift, the one at 11:00 to 7 in the morning. There

18 were three shifts, 11:00 p.m. to 7:00 a.m., approximately

19 7:00 a.m. to 3:00 or 3:30, and then, 3:00 or 3:30 to 11:00

20 a.m. He would talk to that supervisor and talk to him about

21 any problems that occurred on the shift, anything that was

22 out of the ordinary to see if he needed to know about it, as

23 the chief of all the mechanics.

24 He would then work in his office for an hour and

25 prepare for the morning meeting. He had a meeting with





1 Jamie Galinda up stairs in the general office. They would

2 have a general discussion about everything that was going

3 on, any big topics that had to be taken care of.

4 Mr. Gonzalez would then go back to his office. He would

5 work there for another couple of hours, and sometimes around

6 mid afternoon, he would go back out and walk through the

7 hangars. See what has been accomplished on his shift E.

8 Then he would meet with the new supervisors coming

9 on the next shift. The supervisors at SabreTech were

10 required to arrive a little bit earlier to be able to get

11 the paperwork ready, in shape and hand it out to the lead

12 mechanics, remember those are the guys that control and

13 direct the various crews, he talked to them about what had

14 been accomplished on the last shift and what they intended

15 to do on the next shift. He stayed and work on paperwork in

16 his office to about 6 or 6:30, walk through the hangar one

17 more time, and then go home. That was a typical day for

18 Danny.

19 Let me close by saying, I am going to do the best

20 I can to provide you with all the facts so you can learn the

21 truth. Let me respectfully suggest to you that at the close

22 of the evidence you will find that in truth, and in fact,

23 there was never any conspiracy at SabreTech, just as no one

24 ever intended to cause the crash of flight 592.

25 Please keep track of what the evidence will show.





1 There was one work card out of thousand and thousands of

2 documents. The Aserca work card and you're going to hear

3 about that based on the testimony of one witness, Chris

4 DiStefano, a witness who destroyed evidence and was

5 immunized by the government. I respectfully submit to you

6 that the evidence will show that Danny Gonzalez is not

7 guilty, and further, that Danny Gonzalez should never have

8 been charged in the first place.

9 Thank you all very much for your attention.

10 THE COURT: Ladies and gentlemen. I think we

11 will take a brief recess since it's now almost 3:00, before

12 we hear the last opening statement from Ms. Moscowitz.

13 It's 2:57. We will resume at 3:15. Thank you.

14 [There was a short recess].

15 COURTROOM DEPUTY: All rise. Court is in

16 session. The Honorable Judge James Lawrence King

17 presiding.

18 [The jury returns to the courtroom].

19 THE COURT: Ms. Moscowitz?


21 MS. MOSCOWITZ: May it please the Court. Ladies

22 and gentlemen, I'm Jayne Moscowitz. I represent Eugene

23 Florence. I only represent Eugene Florence. He doesn't

24 represent Mr. Gonzalez or the company. I have to do

25 something very difficult now in the beginning of my opening





1 presentation. They say people are very influenced by what

2 they hear at the beginning of any new matter and I'm coming

3 fourth. So, I want you to try to pretend that you're

4 hearing this opening statement first because when we come

5 to the end of the case, you will be deciding separately on

6 each person in the company and it's important to focus on

7 each one of them separately. I know it's not easy, because

8 it's been a long day.

9 Ladies and gentlemen, Eugene Florence is an

10 ordinary hard working man. He has got loving wife, and a

11 close knit family. He is raising 14 children. One is in

12 college, one's a senior applying for college, one's a 10th

13 grader already playing varsity football, and one's happily

14 in middle school and not thinking about those things yet.

15 Gene's wife is a bus driver and can't be here during the

16 trial because she works during the day. Eugene is a

17 licensed airframe and power plant aviation mechanic. He

18 took courses for three years to qualify him to take the FAA

19 test, and he took and passed that test and became an

20 airplane mechanic. He is regarded as a hard working and

21 skilled mechanic. He was always given special jobs due to

22 the skills that he showed and the dedication to the work

23 that he was doing.

24 Eugene Florence was not part of any conspiracy to

25 place SabreTech's interest above all others. He didn't even





1 work for SabreTech. He came to SabreTech as a

2 subcontractor. His employer was a company called PDS, which

3 has a staff of mechanics which places mechanics when those

4 companies need work. Eugene Florence was offered a job with

5 SabreTech on numerous occasions, but because his wife has

6 benefits with the county driving a bus, he didn't need the

7 benefits, and he could remain a contractor so he could make

8 a little bit more an hour.

9 He didn't conspire with SabreTech, nor did he make

10 any knowing or willful any false statements. On any

11 paperwork he signed, he signed work cards in good faith in

12 the belief that what he was doing, and what he had done had

13 made the generators safe, and it was okay for him to sign

14 the cards.

15 Ladies and gentlemen, you will hear that in the

16 spring of 1996, Eugene Florence was assigned with dozens of

17 other mechanics to work on the plane you have heard referred

18 to as 802. It was one of these three planes that ValuJet

19 had bought that had been in-service in Slovenia, which is

20 one of those Yugoslav Republics, which needed to be brought

21 up-to-date and reconfigured to look like the rest of the

22 ValuJet fleet. They were doing a lot of remodeling to make

23 the plane look different. The work that they were doing

24 didn't just consist of oxygen generators. Among the work

25 was reinstalling the panels, those are the things on the





1 plane that cover the working systems on the plane. They all

2 have to come down when you do one of those checks, and then

3 various systems are checked to see whether they need repair

4 work and things like that.

5 He worked on the elevator trim tabs something that

6 has to do with the tail. He worked on removing and

7 replacing the spoil, letters which have to do with keeping

8 the plane balanced when it flies. He lubricated the flight

9 controls. He helped remove and replace main tires and

10 helped change the brakes. He helped change the hydraulic

11 filters.

12 That was some of the work that he and his crew did

13 on 802. You will hear that the mechanics worked and worked

14 hard to make sure that all the work they did on 802 was done

15 well and safe, that the plane was up-to-date and trouble

16 free. The air worthiness of 802 was their goal. They were

17 not focused on what happens to used parts that come off

18 planes. They were not focused on it. In general, the work

19 cards are not focused on, what happens to parts that are

20 taken off a plane.

21 You will hear and see that the inspectors from

22 quality control, the quality assurance people that you heard

23 about from Mr. Dunlap, don't even inspect what happens with

24 parts that come off of planes. The grand finale of any

25 maintenance check is the return of air worthiness that you





1 heard about.

2 The certification of the plane that they're

3 working on is ready to go back in the sky. That is true on

4 802. I'm sure you understand that 802, the plane Eugene

5 Florence was working on, is not the plane involved in the

6 crash. And there was no question about it's maintenance.

7 Ladies and gentlemen, I don't mean to minimize that parts

8 should be -- parts that are taken off that are no longer

9 going to be used on an airplane, should be handled properly.

10 They should be properly stored and disposed of. But

11 mechanics are not trained to do this, nor should they be

12 trained to do it. Everybody in a company can't know how to

13 do everything.

14 In all businesses, we have divisions of labor.

15 There are many technical things that people need to know in

16 the modern age, and particularly when you were dealing with

17 sophisticated machines like airplanes and lots of lots of

18 regulations like OSHA and other regulations that guide us in

19 the work place in these days.

20 SabreTech had a group of people whose job it was

21 to see to the proper disposition of parts. In general, of

22 course, SabreTech, as a repair facility didn't really own

23 parts itself. It's parts belonged to the various companies

24 for which it was doing repair work. For example, the used

25 oxygen generators in this case were ValuJet property. It





1 was either ValuJet or people in the shipping and receiving

2 department of SabreTech, whose job it was, and you will see

3 their job description to make sure that if anything was

4 going to be shipped, it would be shipped properly.

5 That area of SabreTech was fenced off from the

6 mechanics. The mechanics weren't even permitted to go in

7 there because, of course, there are so many mechanics.

8 There are hundreds of mechanics at SabreTech. Lots of

9 valuable property belonging not to SabreTech, but to it's

10 customers and that area was fenced off. Only the people who

11 worked in that department went in there.

12 The removal and the replacement of the generators

13 as you heard was one of the hundreds of tasks that the

14 mechanics were working on in the spring of 1996. Along the

15 way, as you heard, they took the generators out of the plane

16 and put them in their work area which was near the plane.

17 They were there for a long time. They were there for a long

18 time because there was a lot of confusion about exactly what

19 ValuJet wanted done in the installation of the new

20 generators.

21 First, they decided they wanted four generators.

22 ValuJet wanted four generators on the three seat side. Then

23 they wanted three and then four, and then finally, they

24 decided to have four. So the mechanics did numerous other

25 tasks while the generators were sitting there.





1 Finally, these four mask generators came in and

2 they were installed, and the mechanics worked hard to make

3 sure they were installed appropriately and safely. Some of

4 the mechanics, including Eugene, cleaned up the used

5 generators from the floor of the area and from the work

6 tables. From the floor, meaning not literally the floor,

7 but the area in which they worked. They didn't have caps.

8 They asked their supervisor for them and they were told

9 ValuJet knows there are no caps and we are ordering caps.

10 They then took measures which they believed would

11 render the generators safe. We agree that the mechanics

12 thought that the generators were dangerous. Not that they

13 thought they could cause a fire in an airplane. They had no

14 idea they would cause a fire on the airplane. But they knew

15 they got hot.

16 Again, you hear about the OSHA regulations, the

17 safety in the work place, that the fact the sign said the

18 generators get hot, means watch out you could burn yourself

19 or you could damage the plane you are working on. They knew

20 they needed to take measures to make the generators safe.

21 And, they did.

22 Eugene Florence and the mechanics that he was

23 working with, worked very hard to do what they believed

24 disabled the oxygen generators. You will hear that they may

25 have done as well as the shipping caps. What they did was





1 they wrapped the lanyards. The lanyards are the strings

2 that are attached to the mask. That would be what you would

3 pull if you were sitting on a plane to activate the

4 generator. They wrapped them around the firing mechanism

5 and taped them. The idea was the lanyards would not be

6 loose, so there was nothing that could be pulled and the

7 fire mechanism would be disabled.

8 So they thought that they had done what they could

9 do in the absence of caps to make the generators safe, an

10 equivalent alternative safety measure. They also took steps

11 to make sure that the used generator wouldn't be used on the

12 plane. They put a green tag on them, and the green tag

13 meant to the mechanics at SabreTech that that part could not

14 be reinstalled on an airplane without some work being done

15 on it.

16 The prosecutors say it is the heart of their

17 conspiracy charge that the mechanics were rushed through

18 their work to get the plane out, to get the plane back in

19 the air, 802. But you will hear that the work that Eugene

20 and the mechanics on his crew did, the work of wrapping the

21 lanyards and putting them around the body of the generator

22 and taping them probably took five times as long as it would

23 have taken them to put a safety cap or shipping cap. It's

24 called different things in different places, but to put that

25 on a generator, it took them five times as long to do what





1 they did to fix those generators and disable them the best

2 they could. They did not rush to do it. They took their

3 time. They spent hours doing it. Those methods that they

4 undertook are sufficient. Shows Gene's good faith in the

5 work that he did and that is a total defense to these

6 charges.

7 You will hear more. You will hear, in fact, some

8 of this you have heard already. You will hear that at the

9 very same time that the mechanics were working from a work

10 card, that had this whole list of instructions which

11 included as one of them, install shipping cap on firing pin,

12 that the mechanics were also working off of a set of

13 instructions which was entirely inconsistent and

14 contradictory. That was called the engineering order.

15 We assume it will be in evidence, and you will see

16 it and the engineering order which was generated by ValuJet.

17 ValuJet hired an engineer to write that order when they

18 decided to make that change to the floor mask generators.

19 That engineering order contained the same task that the work

20 order 0069 does. It covers the task of removing the old

21 generators and installing the new once.

22 When it says how to take out the generator, how to

23 take out the passenger service unit and retain the removed

24 hardware for future installation, it says remove the oxygen

25 mask and retain them. It says from the passenger unitized





1 oxygen insert assembly unit, remove the existing insert

2 bracket assembly and the oxygen generator, and then it says

3 tag and return to stores. Tag and return to stores. Where

4 is the notation about the shipping caps? Nothing. Nothing

5 about shipping caps at all on the alternate set of

6 instructions that the mechanics were using at the very same

7 time they were using the 69 work card.

8 You could, Eugene did, follow that card

9 completely. Never put on caps. Sign it off and there would

10 be nothing wrong with it at all. That card didn't call for

11 caps at all. You will also learn that the warnings that

12 were given the mechanics were completely inadequate. The

13 generators that they took off the planes had no warning on

14 them at all. They said oxygen generators on them. The work

15 card said this unit gets hot. The new generator said this

16 gets hot. The maintenance manual had no instructions about

17 disposal of generators in any section that was referenced on

18 the work cards that the mechanics were using.

19 So, the information that they had, didn't signal

20 to them what they needed to know. But perhaps most

21 significant, ladies and gentlemen, you will hear and see

22 that McDonald Douglas issued in 1998 a maintenance manual

23 two years after the crash, a year before the government

24 decided to indict Eugene Florence, a maintenance manual

25 which said you don't have to have shipping caps.





1 It said if shipping caps aren't available, use

2 special handling procedures until you can either put

3 shipping caps on or disable the generator by alternative

4 method.

5 If they could use alternative method by a FAA

6 manual in 1998, after all the things we have learned since

7 this crash.

8 So that you will see that in 1998, the FAA and

9 McDonald Douglas said it was okay to do exactly what Eugene

10 Florence did, and the other mechanics did, in wrapping and

11 taping these lanyards.

12 The other things the mechanic did, is that they

13 also labeled those tags. There are charges in here about

14 mislabeling and mishandling all sorts of things, you will

15 hear about at the end of the case. But you will hear that

16 the mechanics tagged the generators entirely accurately.

17 There is one left. You will see the photograph of

18 it. There was one left behind and you will see the tag. It

19 says 02 generator out-of-date. That is the only information

20 that was on those generators when they went over to the

21 ValuJet hold area.

22 The government concedes that when the shipping

23 clerk made out the shipping ticket that said "oxy" canisters

24 empty," he didn't have any information from Eugene Florence,

25 other than the accurate information that the generators were





1 02 generators, and they were empty. He didn't rely on

2 anything that Eugene Florence did. In fact, as the

3 government told you, Eugene Florence could never have

4 foreseen that those generators would end up on an airplane.

5 The prosecutors tell you that the accident shows

6 that the work card was material. We think that is wrong

7 because we think that the question was what was in Eugene's

8 mind when he signed the work card on May 4, 1996, and not

9 after the accident. You will hear what that was. That the

10 caps were being ordered. That they weren't even important

11 enough to be required on the engineering order, and most

12 important, that the work he had done together with his crew

13 on the generators had rendered them safe.

14 He didn't lie or make a false statement. He acted

15 very conscientiously you will hear. You will hear more

16 things. These things don't relate to Eugene Florence, but

17 they are very important. You will hear that the government

18 can't prove to you beyond a reasonable doubt that the oxygen

19 generators caused flight 592 to crash.

20 You will hear that the fire started in the

21 electrical wiring and not the oxygen generators. You will

22 hear that the plane that crashed into the Everglades was

23 twenty-seven years old, and it was in terrible condition.

24 It was old, and it had month after month electrical

25 problems.





1 You will hear in the cockpit voice recorder that

2 when the problem is first noticed, what the pilot and the

3 co-pilot are saying is, we have an electrical problem.

4 There's an electrical problem, we have lost a bus. That is

5 a piece of electrical equipment. You will also hear that

6 oxygen generators really can't start a fire like this.

7 They can be set on fire, if the temperature gets hot

8 enough.

9 You will hear that the FAA conducted a whole

10 series of tests and at the end, the oxygen generator fire

11 is not a "statistically reproducible event." That is,

12 government language for the fact that they couldn't do it.

13 It couldn't be. In their tests, they had to trigger the

14 fire of the generators themselves. They had to pull the

15 lanyards. The FAA, you will hear is not neutral here.

16 In the late eighties, the NTSB, the national

17 transportation safety board told the FAA that they should

18 require passenger planes to have fire compression systems in

19 these fire compartments that you heard about. Something

20 should tell the pilot that there is smoke in those

21 compartments and moreover, maybe a sprinkler or something

22 that puts out the fire. But the FAA, you will hear, bowed

23 to industry pressure, pressure from the airlines and did not

24 make the systems mandatory. And they could have because

25 since the accident, they have. Since the accident, they





1 have made those systems mandatory. It is part of a lot of

2 changes that have happened. If it had been beforehand,

3 perhaps this accident wouldn't have happened.

4 Ladies and gentlemen, this is Eugene Florence's

5 own trial even though he is on trial together with the

6 company and Danny Gonzalez. You are going to be asked to

7 reach separate verdicts on a number of charges and with

8 respect to each different defendant. Because of the way the

9 evidence comes in sometimes, it's difficult to keep track of

10 what pertains to a particular person. It's a difficult task

11 but we have to ask you to did it because that's what our

12 system depends upon. Your being able to make individualized

13 determinations. Claims about Aserca, claims about

14 destructive devices have nothing with Eugene Florence. And

15 the things that have nothing to do with him, are not

16 evidence against him. It's a difficult task ahead for you.

17 Finally, ladies and gentlemen, there is a much

18 more difficult task ahead of you. That is to consider the

19 evidence without being overwhelmed by the tragedy of this

20 accident. It was a terrible, terrible tragedy. The

21 government doesn't have to prove that to you. We all know

22 it. We agree with it. We know mistakes were made. We know

23 what a calamity it was. We are not asking you to forget it.

24 No one ever could.

25 But what we are asking is that when you hear and




1 consider the evidence in this case, you hear and see it from

2 the point of view of Eugene Florence at the time he was

3 working in the best of faith as a licensed airplane

4 mechanic, the licensed airplane mechanic that he is at

5 SabreTech, and not let this tragedy sweep you away and over

6 shadow the trial evidence in this case.

7 You will hear evidence that Eugene Florence acted

8 only in the best of faith. After you consider the evidence,

9 I am confident that you will render the right verdict and

10 that is, that Eugene Florence is not guilty.

11 Thank you.

12 THE COURT: Ladies and gentlemen, at this point

13 we would normally commence and will commence the taking of

14 testimony through sworn witnesses. It may be that the

15 lawyers need to rearrange some of the things in the

16 courtroom. Do you, Ms. Miller?

17 MS. MILLER: I will need to move the podium.

18 There is a matter that we need to discuss with you, Your

19 Honor.

20 THE COURT: We will take a five minute recess.

21 Before we do, let me advise the jury that it may be, given

22 the length of the trial that we are about to embark on that

23 some of you would -- I'm sorry, Ms. Moscowitz, do you have

24 a chance to talk to your colleagues?

25 MS. MOSCOWITZ: I didn't, Your Honor. It won't





1 take more than a moment to do so.

2 THE COURT: Could you do so now?

3 MS. MOSCOWITZ: Yes, sir.

4 MS. MOSCOWITZ: Your Honor, I was mistaken. It

5 will take us a minute or two. I apologize.

6 THE COURT: Ladies and gentlemen. If you will

7 step into the jury room, please. Thank you very much.

8 [The jury leaves the courtroom].

9 THE COURT: I have asked the jury if there was

10 any objection to the standard instruction to be given with

11 their ability to take notes. The standard instruction

12 tells them that they make take notes if they wish. We have

13 explained the pros and cons, that there are down sides to

14 it and up sides to it. Notes don't take any special

15 priority over anybody else's memory and so on. I have a

16 copy of the charge here if you would like to read it.

17 Sometimes some of them generally, in a long

18 trial, some of them feel more comfortable jotting down

19 dates or numbers or notes or that sort of thing so. My

20 inquiry of you, I recommend it in this case which is

21 suppose to take about six weeks to try, it would seem that

22 it would be appropriate to let them do that. No one has

23 requested it yet. Frequently, this request comes about the

24 third day, but there it is. What is your position? I

25 think Ms. Miller has no objection.




1 THE COURT: For the defense?

2 MS. MOSCOWITZ: We have conferred and we are

3 opposed to it.

4 THE COURT: They have not asked for it at this

5 point, but if they do, I am inclined to accede to their

6 request and grant it. That request usually comes at about

7 the second or third day of the trial. It has happened in

8 almost every trial we have had in the last year, and I have

9 tried 50 trials. In the jury trials that I have had,

10 somebody must have seen it on television or something

11 because all of a sudden, we have got it in every case.

12 Since they have not asked for it, we will not be a

13 self-starter on it. But there may be advantages or

14 disadvantages to doing it a day or two into the trial for

15 both sides. Let's bring in the jury.

16 MR. MOSCOWITZ: Your Honor, I have indicated

17 before that we have a motion based on Ms. Heck's opening

18 statement.

19 THE COURT: We will take it up at tomorrow

20 morning at 8:00. You all can stay as long as you want. I

21 have indicated in the record that you indicated a time and

22 place in the order. So you are fully protected in the

23 record. Bring in the jury please.

24 [The jury returns to the courtroom].

25 THE COURT: Thank you. Be seat. The government



68 LITTLE - Direct


1 will call it's first witness.



4 COURTROOM DEPUTY: State your name, please, and

5 spell your last name for the record.

6 THE WITNESS: Walton S. Little Junior,

7 L-i-t-t-l-e.


9 Q. Mr. Little, by whom are you employed?

10 A. Compact Computer Corporation in Houston Texas.

11 Q. What is your title?

12 A. I am the manager of advanced technology support for the

13 disc storage division.

14 Q. In May of 1996, where were you living and working?

15 A. In Margate, Florida, and I was working for Concurrent

16 Computer Systems formerly known as Harrison Computer

17 Systems.

18 Q. What, if any, background do you have in aviation?

19 A. When I was finished in college in 1978, I enrolled in

20 an aeronautical engineering course and got my pilots

21 license.

22 Q. What, if any, background or experience do you have with

23 regard to aerobatics courses in aircrafts?

24 A. While I was doing my flight training at Pompano Air

25 Center, I enrolled in some of the aerobatics training



69 LITTLE - Direct


1 courses that they had, and did some site maneuvers.

2 Q. What, if any, personal interests or hobbies do you have

3 relating to observation aircraft?

4 A. I had followed aviation and aircraft identification

5 much as a lot of people might get into something like

6 identifying different models of cars.

7 Q. Mr. Little, where were you on the afternoon of May 11,

8 1996?

9 A. I was in canal L 67 A of Everglades Holiday Park,

10 approximately 13 miles southwest of the landing ramp.

11 Q. What were you doing there?

12 A. I was bass fishing.

13 Q. Is that something you do frequently?

14 A. That is something I've done since about age five.

15 Q. Are you familiar with this area of Everglades Holiday

16 Park, and with that canal in particular?

17 A. I have fished in that canal since, between 1979 and

18 1997, when I moved to Houston.

19 Q. Do you know if you were in Dade or Broward county?

20 A. I'm not sure, but I know I was very close to the county

21 line. I'm not sure which side I was on.

22 Q. What kind of vessel were you on?

23 A. I was in a fiberglass bass boat, 18 and a half foot,

24 high performance style.

25 Q. Did you have any communication equipment with you?



70 LITTLE - Direct


1 A. I had a standard cellular phone.

2 Q. Did you have any mechanical locating equipment with

3 you?

4 A. I had a piece of electronic equipment known as a GPS

5 receiver.

6 Q. What is a GPS receiver?

7 A. It is a piece of electronic equipment that can receive

8 signals from multiple satellites that are in position around

9 the world, and by doing some calculations, it can tell you

10 where you are anywhere in the world within about 50 meters

11 or 55 yards.

12 Q. Did there come a time that afternoon when you observed

13 something unusual?

14 A. Yes, I did. Actually, my observation was first to hear

15 something that was different from what I normally experience

16 there.

17 Q. What time did this occur?

18 A. The approximate time was 2:20 p.m.

19 Q. Where were you physically?

20 A. I was standing on the front deck of my bass boat. The

21 boat was pointing northeast, which is the canal runs

22 northeast, southwest. It was pointed in a north easterly

23 direction. I was facing a little bit below east, so not

24 quite straight east.

25 Q. What was it that you first observed?



71 LITTLE - Direct


1 A. I heard a loud sound of jet engines, much as I would

2 expect to hear when a jet fighter flies over at a low

3 altitude.

4 Q. What did you do?

5 A. I instinctively looked toward the direction that I

6 heard the sound coming from.

7 Q. Why did you look?

8 A. Because the sound seemed abnormally low. Normally in

9 that area, there is a lot of air traffic going into and out

10 of Fort Lauderdale, but it's usually at an altitude of

11 several thousand feet. This seems very close to the ground

12 and that was strange, so I turned my head to my left

13 shoulder to look and see what the source of the sound was.

14 Q. What did you see?

15 A. I saw an aircraft larger than I expected, since I was

16 aware that an air show was being held at the beach that day.

17 I was expecting to see one of the fighter jets that might

18 have been participating. Rather, I saw a much larger

19 aircraft very low to the ground in a nose level pitch that

20 is it's fuselage was parallel to the ground, but it's wings

21 were tilted at a higher than normal angle.

22 Q. Were you able to estimate approximately how far this

23 aircraft seemed from you?

24 A. Somewhere between three quarters of a mile and a mile.

25 Q. Could you describe the airplane that you saw?



72 LITTLE - Direct


1 A. The airplane that I saw was what pilots refer to as a

2 heavy. That is, a large heavy aircraft, high performance

3 jet aircraft with swept back wings. There was no engines on

4 the wings. There were two engines on the rear and the

5 aircraft had a tea tail, that is, the elevator was at the

6 top of the tail instead at the bottom. The aircraft was

7 mostly white with blue trim.

8 Q. Did you recognize the model of the airplane?

9 A. I suspected that it was a DC9.

10 Q. Did you see any other markings on it, besides white

11 with blue trim?

12 A. Yes. On the front portion of the fuselage, I saw what

13 I could only refer to as squiggly lines. They didn't have

14 significance to me.

15 MS. MILLER: May I approach the witness with an

16 exhibit?

17 THE COURT: Yes.


19 Q. I'm handing you what is marked for demonstrative

20 exhibits, government 1A, and I would ask if you recognize

21 that object?

22 A. Yes, this appears to be a model of a DC9.

23 Q. What relationship does that model bear to what you saw?

24 A. It has the general shape and profile of the engines and

25 the same configuration of the tail.



73 LITTLE - Direct


1 Q. Now, you have told us of the pitch and the banging of

2 the aircraft that you saw. Mr. Little, can you take that

3 airplane off that mount and physically hold it and show us

4 what the position of that aircraft was, and describe for us

5 please, what you are showing us?

6 A. When I initially spotted the aircraft, the pitch was

7 level, meaning that the nose was not pointed up or down, but

8 the angle was to the right. A normal bank angle that an

9 aircraft would use would be about 30 degrees. I estimated

10 that the bank angle of the aircraft at the time I spot it,

11 was certainly greater than 45 degrees. But not as much as

12 60 degrees. Part of the reason I estimated that, is because

13 I could see the second engine on the other side of the

14 aircraft at the time.

15 Q. Mr. Little, why don't you put the model down in front

16 of you for one moment, please.

17 What, if anything, that was unusual, did you

18 notice about the airplane, other than it's level and bank?

19 A. The fact that such an aircraft would be close to the

20 ground, in that vicinity, was just not a normal kind of

21 thing that someone would do. A professional pilot of an

22 aircraft such as this would not be doing that type maneuver.

23 Q. What, if any, smoke did you observe?

24 A. I did not see any smoke.

25 Q. What, if any, debris in the air did you observe?



74 LITTLE - Direct


1 A. I did not see any debris.

2 Q. What, if any, strange engine noises did you observe?

3 A. The engine sounded very healthy, then just sounded

4 louder because the aircraft was close and low to the ground.

5 Q. What, if any, dangling materials did you observe?

6 A. None.

7 Q. What, if any, defamation of the airplane or missing

8 panels did you observe?

9 A. None.

10 Q. Could you tell us, please, what you proceeded to do

11 after your initial sighting of the plane? If you would like

12 to show it, please feel free to show us with the model.

13 A. The entire time that I saw the aircraft, it was always

14 in a turn to the right. As the aircraft proceeded forward,

15 the wings slowly tilted or the bank angle increased to a

16 point where it was virtually 90 degrees. That is, the wings

17 were pointing straight up and down. At that point, an

18 aircraft has a lot of trouble in maintaining lift. I

19 witnessed that the nose pitched abruptly from a level to

20 pointing down. As that happened, the sound of the engines

21 increased and the speed of the aircraft began to increase,

22 and that became somewhat more dramatic and the nose began to

23 point more toward the ground, and the tilting kept slowly

24 going such that the aircraft was past the point of being

25 straight up and down and going more close to being up side



75 LITTLE - Direct


1 down, and it impacted the Everglades at something greater

2 than a 45 degree angle.

3 Q. Were you able to observe any gear associated with

4 landing or breaking on this aircraft?

5 A. No. I was never able to see the underside, because the

6 aircraft was always titled towards me.

7 Q. Why don't you put the model down for a minute,

8 Mr. Little. You mentioned impact. Did you see impact?

9 A. The impact that I saw was what was visually available

10 to me when looking from a standing position on the front of

11 my boat across the Everglades grass, which is approximately

12 8 feet tall. So there's not very much between me and where

13 the airplane hit the ground.

14 Q. What did you observe as the plane moved behind the

15 sawgrass between you and the view of the plane?

16 As the nose of the plane moved below the

17 sawgrass, I knew because the grass was very short that, in

18 fact, the aircraft was beginning to hit the ground. The

19 position of the aircraft did not change. It did not begin

20 to tilt or cartwheel or shift about, it sort of moved as

21 though the earth really weren't there, other than it did

22 begin to slow down.

23 Q. Did you hear anything?

24 A. At the first instant that I felt that the aircraft was

25 hitting the ground, I didn't because of the sound delay for



76 LITTLE - Direct


1 the sound to reach me. I heard a sound that I really can't

2 remember well enough to describe. It wasn't very loud but

3 it was followed by a tremendous sound.

4 Q. Before hearing the tremendous sound, did you see

5 anything?

6 A. Yes. I did. As the aircraft disappeared below the

7 grass line on the horizon, I saw a tremendous wave of water

8 rise up from the horizon. That wave reminded me of

9 something like the waves that the surfers ride in Hawaii,

10 except that the wave was going away from me rather than

11 towards me.

12 Q. Did you see any vegetation in the wave?

13 A. Yes. Initially I thought this might actually be --

14 Q. Let me ask you not to tell us what you were thinking.

15 Just tell us if you did see any vegetation?

16 A. Yes. I saw what appeared to be clumps of sawgrass

17 through the water.

18 Q. Approximately how high was the wave?

19 A. I estimated 150 feet.

20 Q. Did this wave proceed or follow this second sound that

21 you told us of?

22 A. Preceded.

23 Q. Did you then hear the second sound?

24 A. Yes. The second sound was a combination thud and boom.

25 Q. How loud was it?



77 LITTLE - Direct


1 A. I felt that it was the loudest sound that I ever heard.

2 Q. Did you feel anything?

3 A. My boat sitting on the water vibrated under my feet and

4 I felt a shock wave hit my body.

5 Q. Did you hear any engine noise?

6 Yes. It seemed eerie to hear the engine do what

7 pilots refer to as spool bound. When a turbo engine is

8 shut off, it's R p.m. decreases, and it makes a whining

9 sound. I actually heard that sound.

10 Q. Following that, did you physically observe anything

11 more about the aircraft?

12 A. No.

13 Q. From the first time you heard the sound of the aircraft

14 until the moment you no longer observed anything, could you

15 estimate how long the time was?

16 A. My best guess would be ten seconds.

17 Q. What did you do following this event?

18 A. Paused for a moment.

19 Q. Please don't tell us about any mental processes?

20 A. I turned to the rear of my boat to the storage

21 compartment and retrieved my cell phone, and placed a call

22 to 911.

23 Q. Were you able to get through?

24 A. Yes.

25 Q. Did you have a conversation?



78 LITTLE - Direct


1 A. Yes.

2 Q. Approximately how long was the conversation?

3 A. Five minutes or more.

4 Q. What caused the conversation to end?

5 A. The battery on my cell phone died.

6 Q. What did you do after that?

7 A. I returned in my boat to the landing ramp.

8 Q. Did you meet anyone there?

9 A. I met law enforcement officers and fire rescue people.

10 Q. Mr. Little, I'm handing you what has been marked as

11 Government Exhibit 1, and I would ask you to look at that

12 and tell us if you recognize that?

13 A. Yes, this appears to be a ValuJet. It looks like a

14 DC9. I can't identify the series. I'm not quite that good.

15 Q. What, if any, resemblance does that bear to the one you

16 saw in the crash?

17 A. This one has the same engine configuration and the tail

18 marking and the color marking with the tail being blue, and

19 the engine being white. I also see what I can only describe

20 as the squiggly lines on the front, which I considered

21 insignificant at that point and time, and I can now see that

22 it's actually like a cartoon airplane.

23 MS. MILLER: Government offers Exhibit One into

24 evidence.

25 MR. DUNLAP: No objection.



79 LITTLE - Direct


1 THE COURT: Government Exhibit 1 is admitted into

2 evidence.

3 [Government Exhibit 1 received in evidence].

4 MS. MILLER: No further questions from this

5 witness.

6 THE COURT: Mr. Raskin, any cross-examination?

7 MR. RASKIN: None, Your Honor.

8 THE COURT: Mr. Dunlap?

9 MR. DUNLAP: None, Your Honor.

10 THE COURT: All right. Your next witness.

11 MS. MILLER: We will have to move the equipment,

12 Your Honor.

13 THE COURT: We will take a short recess.

14 [There was a short recess].

15 COURTROOM DEPUTY: All rise. Court is in

16 session. The Honorable Judge James Lawrence King

17 presiding.

18 THE COURT: Are we ready to proceed?

19 MS. MILLER: Your Honor, if I might mention that

20 the defense has agreed to the motion I made this morning.

21 I believe I provided a copy to the Court for the Court to

22 take judicial notice of materials. I had excerpted some

23 pages from the hazardous materials tables. The defense

24 agrees that they wish to have the entire table judicially

25 noticed. I don't have objection to that. The defense



80 BRENNAN - Direct


1 agreed that I may use these selected tables.

2 THE COURT: Let the record reflect that upon

3 agreement of all parties, the Court takes judicial notice

4 of the table entitled hazardous materials table published

5 at 49 CFR section 17 2.1 01 of the October 1, 1995 edition

6 and 49 CFR section 17 2. 01, the October 1, 1996 edition.

7 The Court takes judicial notice of that table. The parties

8 may utilize the entire table or any parts thereof in their

9 examination of witnesses or argument to the jury.

10 Bring in the jury.

11 [The jury returns to the courtroom].

12 THE COURT: Thank you. Be seated, please. Ms.

13 Miller, would you please call your next witness?

14 MS. MILLER: Government calls Robert Brennan.

15 COURTROOM DEPUTY: Please raise your right hand.

16 Do you solemnly swear the testimony you are about to give

17 will be the truth, the whole truth and nothing but the

18 truth so help you God?


20 COURTROOM DEPUTY: Please state your name and

21 spell your last name for the record.

22 THE WITNESS: Robert Brennan, B-r-e-n-n-a-n.






81 BRENNAN - Direct


1 Q. Mr. Brennan, what is your occupation?

2 A. I am manager of regulatory affairs for Scott Aviation.

3 Q. What is Scott Aviation?

4 A. Scott Aviation is a company headquartered in Lancaster,

5 New York. It manufacturers respirators and respiratory

6 equipment that fireman wear to go inside burning buildings,

7 and we also manufacturer a line of oxygen equipment for use

8 in aviation.

9 Q. How long have you been with either Scott Aviation, or a

10 predecessor that it had when it had different names?

11 A. I am in my 34 year.

12 Q. What, if any, responsibility do you have with regard to

13 chemical oxygen generators at Scott Aviation?

14 A. Prime airline, I'm responsible for making sure the

15 company complies with regulations, and I also am called upon

16 to exam any accidents or unusual occurrences that happen

17 with our products.

18 Q. How long have you had job responsibilities associated

19 with chemical oxygen generators?

20 A. Approximately ten years, ma'am.

21 Q. Now, now you have told us that Scott Aviation

22 manufacturers certain equipment for oxygen for use in

23 aviation. Can you tell us what type of equipment Scott

24 makes in that regard?

25 A. Well, we make boast gases and solid state equipment.



82 BRENNAN - Direct


1 We make the oxygen equipment for the pilot and for the

2 passengers. We manufacturer the little yellow masks that

3 come down. We manufacturer the pilots' masks and

4 regulators. These are all aircraft components that are used

5 in aircraft's oxygen systems.

6 Q. What is the purpose of an aircraft's oxygen system?

7 A. Well, primarily as you get higher over the earth, the

8 air gets thinner. Although it's got the same percent oxygen

9 in it there, is just plain less air. At high altitudes,

10 people have trouble staying awake. They go unconscious. It

11 is even possible to die at high altitudes unless you have a

12 supply with supplemental oxygen. That is what the mask and

13 everything are all for.

14 Q. What is supplemental about it?

15 A. Well, you are breathing the air that is up there. This

16 equipment supplies you with extra oxygen with each breath or

17 supplies you with extra oxygen on a constant basis, but

18 either way, you are breathing an enriched atmosphere.

19 Q. Is this happening during every flight?

20 A. No, no. Normally, they pressurize the cabin to 10,000

21 feet and you breath normal air. This will only happen if

22 they lose pressure in the airplane, they get a hole in the

23 cabin or lose a window, and they are above 10,000 feet.

24 Then the little midst will come down and the pilot and

25 co-pilot will have to use supplemental oxygen.



83 BRENNAN - Direct


1 Q. How is oxygen stored in airplanes?

2 A. There are two basic ways in civil aviation. You can

3 store it as pressurized gas in tanks or you can store it as

4 solid state oxygen, you can store it as a powder in a

5 generator.

6 Q. Now you have mentioned the term generator. Are you

7 familiar with the term chemical oxygen generator?

8 A. Yes, ma'am.

9 Q. Which of the two systems you have described includes

10 chemical oxygen generator?

11 A. That is the systems that stores the oxygen as a solid

12 granulated powder until it is ready to be used.

13 Q. Does a chemical oxygen generator have anything to do

14 with compressed oxygen?

15 A. No, that is two separate systems. The crew is always

16 on compressed oxygen because they can turn it on and off

17 whenever they need it. Sometimes the little yellow masks in

18 the cabin are supplied with compressed oxygen and sometimes

19 they are supplied with oxygen stored as solid state oxygen

20 in oxygen generators.

21 Q. Mr. Brennan, would you tell us please, what is a

22 chemical oxygen generator?

23 A. Well, it is an aircraft part that is used to store

24 oxygen until it is needed. That's what it is.

25 Q. In what form is the oxygen stored?



84 BRENNAN - Direct


1 A. Well, it is stored as a salt. It is actually a

2 chemical compound called sodium chlorate. It is basically

3 table salt with three extra oxygen atoms attached to each

4 sodium chlorate molecule. It is a salt that will decompose

5 using table salt, oxygen and heat.

6 Q. There is a term that describes the kind of reaction

7 that generates heat?

8 A. Yes. It's called exothermic.

9 Q. What is does exothermic mean?

10 A. Technically, it means, the reaction when it happens

11 gives up more heat than it uses to react. Some chemical

12 reactions you have to constantly put heat in to keep it from

13 going. Some will give off a little heat when they go.

14 Q. Mr. Brennan, how does the mechanical aspect of an

15 oxygen generator work? You have told us about the

16 chemistry, let me can you about the mechanical aspect of the

17 machine?

18 A. Well, mechanically, it just sits there until it is

19 initiated.

20 Q. What do you mean by initiated?

21 A. The chemical sodium chlorate is stable by itself until

22 you put heat into it. Once you heat it up, it will start

23 decomposing, giving off the oxygen. What you have to do is

24 arrange when you want this oxygen. You've got to arrange

25 for a way to put heat into the sodium chlorate to make it



85 BRENNAN - Direct


1 start. That's called initiation. In oxygen generators, it

2 can be done either by percussion cap or by an electric

3 impulse cap.

4 Q. What do you mean by percussion cap?

5 MS. MOSCOWITZ: Your Honor, I need to object. I

6 think we need to be qualifying Mr. Brennan as an expert.

7 THE COURT: All right.

8 MS. MILLER: Your Honor, I'm not offering any

9 opinions. I'm offering only factual, descriptive matters

10 with regard to this witness.

11 THE COURT: It seems to me, he is giving us his

12 opinion as to what happens. If he's talking about facts,

13 he would say the container has salt and whatever the other

14 chemicals is. As to how it works and the process is

15 getting into his opinion. Obviously, he is knowledgeable

16 about these things and maybe you can bring out his

17 background. But I think you will need to do that if you

18 are going to ask him opinions.

19 MS. MILLER: Your Honor, I didn't intend to, but

20 if the Court feels it is getting close to opinions.

21 THE COURT: You ask the question, and we will see

22 if there is an objection.


24 Q. Mr. Brennan, I am handing you what has been marked as

25 Government Exhibit 32 and I would ask if you recognize that?



86 BRENNAN - Direct


1 A. Yes, I do.

2 Q. Could you tell us, please what, you recognize that to

3 be?

4 A. It is a skematic type drawing of a McDonald Douglas

5 type oxygen generator.

6 Q. Is it a true and accurate skematic drawing of a

7 McDonald Douglas type oxygen generator?

8 A. It appears to be, yes.

9 Q. Is this particular type of McDonald Douglas type oxygen

10 generator one that is associated with your company?

11 A. Yes.

12 MS. MILLER: Government offers exhibit 32 in

13 evidence.

14 THE COURT: Without objection, it is admitted.

15 MS. MOSCOWITZ: No, Your Honor. I think we need

16 a predicate for this man's specialized knowledge.

17 THE COURT: You object to it on the base of what?

18 MS. MOSCOWITZ: Foundation.

19 THE COURT: You wish to voir dire him on this

20 particular document?

21 MS. MOSCOWITZ: Yes, on his background and

22 training to be offering and testifying about it. Yes, sir.

23 THE COURT: Would you like to establish where the

24 document came from as a further predicate.




87 BRENNAN - Direct


1 Q. Have you ever seen a document like that before?

2 A. Yes, Your Honor.

3 Q. Where?

4 A. A document like that was circulated in FAA notice after

5 the ValuJet air crash.

6 Q. Where did it originate from? Who drew it?

7 A. I don't know who drew the original skematic. It is a

8 pretty fair representation of a generator.


10 Q. If I may. Mr. Brennan, have you reviewed drafts of

11 this document at the United States Attorneys Office?

12 A. Yes, ma'am.

13 Q. Have you spoken with the United States Attorneys

14 Office's graphics person who used a computer to make this

15 drawing?

16 A. Yes, I did.

17 Q. Did you work with this person until the drawing was

18 accurate based on your knowledge of oxygen generators?

19 A. Yes, ma'am.

20 THE COURT: Are you going to offer it into

21 evidence?

22 MS. MILLER: Yes, sir.

23 THE COURT: Any objection?

24 MS. MOSCOWITZ: The objection is, what is the

25 basis of Mr. Brennan's knowledge that it's accurate?



88 BRENNAN - Direct

1 THE COURT: Overruled. The document is admitted

2 into evidence as Exhibit 32.

3 [Government Exhibit 32 received in evidence].

4 MS. MILLER: Your Honor, I would like to put a

5 larger version on the easel where the jury can see it.

6 THE COURT: All right. Show the larger version

7 to counsel to see if there is any objection.

8 MS. MILLER: Your Honor, may I ask the witness to

9 step down to where the chart is?

10 THE COURT: Yes, you may. Take this pointer and

11 take this microphone so you can speak into it.


13 Q. Would you please describe the oxygen generator using

14 the chart and the pointer to indicate the parts you were

15 discussing?

16 A. An oxygen generator has got a core which is light gray,

17 and it is shaped like a stubby funnel. That is primarily

18 sodium chlorate with some iron powder mixed into it. On the

19 top part -- that is actually where the oxygen is being

20 stored. On the top part of this area, is an area called

21 flash. That is primarily, instead of iron powder there, is

22 titanium powder there, and that is to get the core hot, so

23 that the reaction will start. In order to get the reaction

24 to start, there is a percussion cap mounted on the outside

25 of the top and connected by a hollow tube from the bottom of



89 BRENNAN - Direct


1 the percussion cap to the top of the flash. The percussion

2 cap is a pill shaped thing here, and it is a little round

3 aspirin and when it is hit it makes a snap and a tongue of

4 alumnus gas or a flame comes out of it, and down this tube

5 and touches the flash on top. The flash starts reacting to

6 produce heat. It heats up the top of the sodium chlorate.

7 As it gets hot, it starts to break down to sodium chloride

8 and give off oxygen.

9 Q. You mentioned iron in the sodium chlorate?

10 A. It's powder. It really won't keep going by itself.

11 So, what we do is mix a little iron powder in with the

12 sodium chlorate. As the sodium chlorate breaks down, and

13 yields oxygen, and it's got to be hot to do this. Some of

14 that oxygen combines with the iron powder to make rust. But

15 the point is, it gives off more heat. So it keeps the

16 temperature of the core where the reaction is occurring. It

17 keeps it up so the reaction will keep going. When somebody

18 needs the oxygen, you got to get it out fast and it's got to

19 keep going until you don't need it anymore, and that's the

20 purpose of the iron powder, is to make sure the core stays

21 hot enough to keep giving off oxygen.

22 Q. How hot does the core get?

23 A. The reaction is between 700 degrees C and 800 degrees

24 C.

25 Q. What do you mean by C?



90 BRENNAN - Direct


1 A. Centigrade.

2 Q. Is there a reason for the shape of that core?

3 A. Yes. These are only used for the little yellow masks

4 that fall down for the passengers. The design is such that

5 he presumes that they are flying at the maximum altitude the

6 plane can. We have to supply enough oxygen for the maximum

7 altitude, but he knows where he's going to fly at the

8 descent. He gives us a descent profile. As the plane

9 comes, down you have to supply less and less oxygen.

10 Q. Why is that?

11 A. First of all, you need less. And as to why they want

12 to do it that way, gas systems have regulators, too. This

13 is what they tell us. They give us an altitude profile. As

14 time goes on, this canister is to generate less and less

15 oxygen until in 15 minutes, it stops.

16 Q. Where does the oxygen come out, if you can show us?

17 A. It starts up here and it comes out down here. There is

18 insulation on both sides of this. It is little granules of

19 emiculite (phonetic). It is like a brown powder, the kind

20 of thing you stick plants in. It is a very good insulator

21 and oxygen can get through that. The oxygen travels through

22 the emiculite (phonetic) and these outlets attach to little

23 plastic tubes that attach to the masks.

24 Q. How many outlets are there on an oxygen generator?

25 A. It depends. There are one man oxygen generator, two



91 BRENNAN - Direct


1 man, three man and four man, at least of the McDonald

2 Douglas type.

3 Q. What do you mean by a three man or two man?

4 A. That is the number of oxygen masks it is meant to

5 supply. In a two man oxygen generator, there will be two

6 men and two masks, and a four man oxygen generator, four

7 person oxygen generator, there will be four outlets and

8 there will be four plastic tubes.

9 Q. You mentioned plastic tubes and masks. What is the

10 arrangement of a plastic tube and mask with regard to the

11 oxygen outlets?

12 A. When it gets in the airplane the yellow masks and

13 oxygen generator, will be packed in a panel typically

14 overhead, but it can be put in a seat back that will be put

15 in a wall, and the oxygen masks are attached by tubes,

16 plastic tubes to these outlets so the oxygen can flow. And

17 they are also attached by a white cord called a lanyard. It

18 goes from the mask to this pull tab up here. The lanyard is

19 on here because it is supplied with the generator.

20 Q. Before we move on with the lanyard, you have told us

21 about the core. Can you tell us what physical object the

22 core sits in?

23 A. The whole core as I said is encased in the emiculite

24 (phonetic) has a jacket around it. And it is inside a

25 stainless steel with a dome shape on top and a flat issue



92 BRENNAN - Direct


1 round bottom.

2 Q. What is the main content of the oxygen generator?

3 A. It is mostly sodium chlorate.

4 Q. Approximately how much sodium chlorate is there in a

5 two man oxygen generator?

6 A. It would be a little more than a half pound, less than

7 three quarts of a pound.

8 Q. How much can a three man oxygen generator?

9 A. Three quarts of a pound.

10 Q. How much in a four man?

11 A. A little less than a pound. About .8 or .85, something

12 like that.

13 Q. You have told us about iron powder. Is there any other

14 substance that exists in that sodium chlorate core?

15 Yes, ma'am. There are several. There are iron

16 peroxide, there is sodium dioxide, ground up sand. This is

17 basically sodium chloride, iron powder, iron peroxide and

18 silva codoxide (phonetic).

19 Q. Does Scott manufacturer the percussion cap?

20 A. No, ma'am.

21 Q. Does Scott manufacturer the oxygen generator?

22 A. Yes.

23 Q. What does it do with regards to obtaining and utilizing

24 the percussion cap?

25 A. I'm sorry, I don't understand.



93 BRENNAN - Direct


1 Q. Does it get a percussion cap from some place?

2 A. No, we purchase percussion caps, and as part of the

3 assembly step, we press them into the top of the generator.

4 Q. Does that percussion cap have a name or part number

5 associated with it?

6 A. Yes. It is Olan Winchester divisions. They have got a

7 big long name and a number.

8 Q. Would looking at a document refresh your recollection

9 in that regard?

10 A. It may.

11 Q. Are you familiar with something called the hazardous

12 materials table.

13 A. Yes, ma'am. If you are referring to the document in 49

14 CFR.

15 THE COURT: If you are through with this exhibit,

16 move it so counsel can see the witness and let them be

17 seated.

18 MS. MILLER: Yes, sir. I will return to it but I

19 will put it down right now.

20 THE COURT: The difficulty is, I don't like all

21 the confusion in the courtroom. The lawyers need to stand

22 where they can see the document. I don't mind that but

23 after that then, I would like for everyone to be seated.

24 It is not criticism of them standing at all. Maybe now, we

25 can get back to the normal witness on the witness stand



94 BRENNAN - Direct


1 situation.


3 Q. What, if any, relationship does an oxygen generator

4 have and, if I could focus your attention specifically in

5 the time period of March through May of 1996? What, if any,

6 relationship did the Scott Aviation chemical oxygen

7 generator have to the hazardous materials table that appears

8 at 49 CFR.

9 A. An oxygen generator is a hazardous material for

10 shipment under 49 CFR, and it was in the time frame you

11 stated also.

12 Q. What about in the period from October 1, 1996 through

13 October 1, 1999?

14 A. Yes. It's a hazardous material according to the 49

15 CFR.

16 Q. How is the oxygen generator referred to in that

17 hazardous materials table?

18 A. Now?

19 Q. In the period March through May, 1996?

20 A. It wasn't specifically named oxygen generator. It was

21 sodium chlorate rate. And sodium chlorate is listed in the

22 hazardous material table.

23 Q. Is there any other listing in the hazardous materials

24 table that also was used with regard to description of an

25 oxygen generator during the time period March through May



95 BRENNAN - Direct


1 1996?

2 A. Sodium chlorate is a solid oxidizer. It could also be

3 shipped under solid oxidizer.

4 Q. Mr. Brennan, I'm handing you four pages and, if I may

5 state that these pages have been pages from the hazardous

6 materials table, pages A and B being from the October 1,

7 1995 edition, and pages C and D from the October 1, 1996

8 edition. I would ask do those pages list any of the

9 substances that you have been referring to, that is, sodium

10 chlorate or oxidizing solid?

11 A. Yes, ma'am, two pages list sodium chlorate. Two pages

12 list oxidizing salt.

13 Q. Is that because each page refers to the two years?

14 A. Yes.

15 Turning your attention first to page B, listing

16 sodium chlorate for the October 1, 1995 edition, is the

17 hazard class or addition that is related with regard to

18 that substance?

19 MS. MOSCOWITZ: Objection, foundation.

20 MS. MILLER: I believe this is the material that

21 has been judicially noticed.

22 THE COURT: Are your asking him to read from the

23 table?

24 MS. MILLER: Certain items of it, yes.

25 THE COURT: The last question asked you to read



96 BRENNAN - Direct


1 from the table and to tell the jury what it says you may do

2 that.

3 THE WITNESS: The listing for sodium chlorate

4 gives a hazard class of 5.1. a U.N. identification number

5 of 1495. Packing group two- labels require oxidizer, and

6 it gives special provisions A9, N34 and T8. Package

7 authorizations gives exceptions as 152, none bulk packing

8 as 212, bulk packing is 240 and it gives quantity

9 limitations for passenger aircraft derail cars is 5

10 kilograms and for cargo aircraft is 25 kilograms, and for

11 vessel storage requirement is storage requirement A and

12 other storage requirements 56, 58 and 106.

13 THE COURT: 56, 58 and what.

14 THE WITNESS: 106.

15 THE COURT: Thank you.


17 Q. Mr. Brennan, you mentioned something called an

18 identification number and told us U.N. 1495, what does that

19 U N stand for?

20 A. United Nations.

21 Q. What is a U N identification number?

22 A. For all the hazardous materials in 49 CFR, there is a

23 world recognized U.N. number. They have an agreement with

24 some U.N. body and the Federal Government publishes these

25 numbers, and they tell you what the hazard is if you have



97 BRENNAN - Direct


1 one of these.

2 Q. You also mentioned a hazard class or division?

3 A. Yes, ma'am.

4 Q. This is 5.1?

5 A. Yes.

6 Q. What is hazard class division 5.1?

7 A. In the same CFR, they divide up the hazards into

8 various divisions, and they make regulations based on which

9 division it is, and you go to this table to see which

10 division it is. In this case, it is division 5.1.

11 Q. What are the items that are grouped in 5.1?

12 A. Basically, oxidizers are things that can release

13 oxygen.

14 Q. What is an oxidizer?

15 A. Well, an oxidizer is something that can supply oxygen

16 or cause oxidization. As an example, all compressed oxygen

17 is an oxidizer. Certain compounds are considered oxidizers.

18 Q. What is the effect of oxidizers on combustion of

19 materials?

20 A. Combustion is something burning. Burning is what is

21 called rapid oxidization. It is the combination of a fuel

22 with oxygen.

23 MS. MILLER: Your Honor, the government offers in

24 evidence pages A, B, C, D, and offers them in evidence as

25 Government Exhibit 30 F.



98 BRENNAN - Direct


1 THE COURT: I believe that counsel could read

2 that these tables may be admitted into evidence. The Court

3 takes judicial notice of it. Government Exhibit 30 F is

4 admitted or the documents are admitted into evidence.

5 [Government Exhibit 30F received in evidence].

6 MS. MILLER: And if I might return to the chart

7 at this point?

8 THE COURT: I think we should recess at 5:30. So

9 when you have an intelligent break in your examination, but

10 go right ahead.


12 Q. Mr. Brennan, could you step down please, again?

13 THE COURT: Counsel may remove themselves to a

14 point where they can see the chart if they wish.


16 Q. I would like to refer your attention to the upper

17 portion of the chart. The portion that appears above the

18 percussion cap. Could you please tell us what the various

19 marked parts on the oxygen generator are, and what their

20 function is?

21 A. Well, the marked parts are pull pin, spring activated

22 hammer and lanyard. This basically is used when you want to

23 initiate the operation of the generator. This hammer is the

24 thing that is going to hit on the percussion cap to start

25 the generator. It is backed by a spring. This is a coiled



99 BRENNAN - Direct


1 spring here with two arms on it, one of them pressing on the

2 hammer. So the hammer is spring loaded to come down. It is

3 held in place by a steel pull pin that comes across in front

4 of it so it can't come down. The lanyards are attached to

5 the masks. The other end to the steel pull pin, when you

6 are in an airplane that has one of these. The stewardess

7 says reach for the yellow mask and pull it towards you. To

8 pull it towards you is intended to tension the lanyards and

9 cause the pull pin to pull out. Once the pull pin is out,

10 nothing is holding the hammer back. The spring drives it

11 down and this little round ball type thing hits in the

12 percussion cap which lights the flame that comes down to

13 start the flash.

14 MS. MILLER: Thank you. I believe I am finished

15 with the chart, Your Honor.


17 Q. When that oxygen generator initiates -- did you use the

18 term actuate?

19 A. Yes, ma'am.

20 Q. Are those terms used?

21 A. Yes.

22 Q. When the oxygen generator initiates or actuates, does

23 it make a sound?

24 A. Yes. It pops down from the percussion cap and then

25 after it starts to run, you sometimes hear the check valve



100 BRENNAN - Direct


1 which is not shown in the drawing, but it is a thing in the

2 outlet, and you sometimes hear the humming. Those are the

3 only sounds it makes.

4 Q. What hoses are not attached to the oxygen generator?

5 A. Then what you have got is the check valve is right down

6 on the bottom where the outlets are. If the hoses aren't

7 attached, you can almost always hear the generator singing.

8 It is the vibration from the spring.

9 Q. Mr. Brennan, with regards to terms you have told us

10 about a percussion cap. Are there any other terms

11 associated with that piece?

12 A. With the oxygen generator?

13 Q. Yes, sir.

14 A. Well, you have got in the chart the mounting studs.

15 Q. Is the percussion cap ever referred to by any other

16 term than percussion cap?

17 A. It may be. I refer to it as a percussion cap.

18 Q. Are you familiar with the term primer?

19 A. Yes. I believe we use primer cap from time to time.

20 Q. As meaning the same thing?

21 A. Yes. It would be like actuate and initiate. Primer

22 would be the same thing, interchangeable words.

23 Q. Mr. Brennan, you have testified that the oxygen

24 generator, when in use, generates heat and you've told us

25 about temperature inside the generator. What, if any,



101 BRENNAN - Direct

1 generator is at the surface, the temperature when it is in

2 use?

3 A. Well, it is different for different generators. But

4 the specifications on all the series is 545 degrees F.

5 Q. F meaning?

6 A. Farenheit.

7 Q. How is the oxygen generator designed to be held when in

8 place in the aircraft?

9 A. There is three mounting studs and they fit what is

10 called the drop out box. We don't make that. They fit into

11 the drop out box. They are held in place typically by a

12 heat shield.

13 Q. And does that type of placement have any relationship

14 to the temperature that the exterior of an oxygen generator

15 may reach?

16 A. Well, yes. The specification is valid when it is in

17 that kind of environment. That environment is meant to

18 allow air to convect over to the generator, to carry off

19 some of the heat and the max temperature specification is

20 valid when that generator is mounted so air can flow over

21 it.

22 Q. What if the oxygen generator is not so mounted?

23 A. Well, if it were rolled up so that air couldn't get at,

24 it I would expect the skin temperature to be higher than

25 normal.



102 BRENNAN - Direct


1 BY MS Moscowitz: Objection. This is calling for

2 expert opinion.

3 THE COURT: Sustained. Next question.


5 Q. What is the rate of heating of an oxygen generator?

6 A. I don't know whether I could tell it to you in B. T. U.

7 On this type of generator, you can safely hold the generator

8 in your hand for about a minute. About the time, you get to

9 three minutes, you've got to drop it or you are going to

10 burn your hand.

11 Q. How many times can an oxygen generator be used?

12 A. Once and once only.

13 Q. You have told us about the percussion cap on the oxygen

14 generator. Are you familiar with the term cap as applied to

15 any other part of the oxygen generator.

16 A. Well, it is not a part of the oxygen generator. These

17 oxygen generators are supplied with a little yellow plastic

18 cap called a safety cap or shipping cap.

19 Q. What is the purpose of this little cap?

20 A. It covers the primer to prevent the primer from being

21 struck accidently. Percussion cap, whichever you want to

22 call it.

23 Q. Mr. Brennan, I am handing you what has been marked as

24 Government Exhibit 31 and I ask if you recognize Government

25 Exhibit 31?



103 BRENNAN - Direct


1 A. I think so. Can I take it out of the bag?

2 Q. Yes, sir.

3 A. It looks like a little safety cap from the McDonald

4 Douglas generator.

5 Q. Are you familiar with the safety cap used on the

6 McDonald Douglas generator on?

7 A. Yes.

8 Q. Are you familiar with the shipping caps that were used

9 on Scott Aviation chemical oxygen generators prior to 1996?

10 A. As far as back as I can remember, that was it.

11 MS. MILLER: Government offers exhibit 31 in

12 evidence.

13 MR. RASKIN: No objection.

14 THE COURT: Government Exhibit 31 is admitted

15 into evidence.

16 [Government Exhibit 31 received in evidence].


18 Q. What is the correct name for that piece, Mr. Brennan?

19 A. I think the drawing title is tap, shipping. We refer

20 to it as a safety cap.

21 Q. Either term is used to refer to the same object?

22 A. Yes, ma'am.

23 Q. Is this the same thing as the percussion cap?

24 A. No, that is the primer which we referred to, the little

25 pill shape on the generator. That is the percussion cap.



104 BRENNAN - Direct


1 Q. At what point is a shipping cap present on a Scott

2 Aviation oxygen generator?

3 A. We put them on at assembly as soon as we got the

4 percussion cap in place and the pivot station is welded on.

5 We put the cap on and it stays on.

6 Q. Why do you do that?

7 A. So nobody accidently hits one of these percussion caps.

8 Q. Why is that a concern?

9 A. Well, if before you put the core in the generator you

10 have to throw the top away, if somebody hit the percussion

11 cap. Once you put the core in the generator if the hammer

12 accidently fell or somebody hit the percussion cap, the

13 generator would start producing oxygen and get hot. You

14 would have to throw it out because it can only be once. You

15 put the cap on so it doesn't happen.

16 MS. MILLER: Your Honor, this might be an

17 appropriate place to break for this witness.

18 THE COURT: Let me instruct Mr. Brennan that you

19 were in the middle of your testimony now so you will not be

20 able to discuss your testimony during the night recess with

21 anyone connected with the trial, the lawyers agents or

22 anyone else. So we will ask you be here tomorrow morning,

23 a few minutes before 9:00, and we will resume with your

24 examination at that time. We thank you and you may step

25 down and be excused at this time.



105 BRENNAN - Direct


1 Ladies and gentlemen, we are about to recess for

2 the evening recess. It is 5:27. You have been very patient

3 today, and listened to a lot of opening statements and we

4 have covered two witnesses.

5 We thank you for your patience and I wish to

6 particularly thank you for being prompt this morning. You

7 were here on time. I am not sure that we were able to get

8 right to you, but that was not because we had an early

9 morning round of golf and we were here this morning at 8:00.

10 We will do better tomorrow morning. If you will be here a

11 few minutes before nine.

12 Thank you very much for your attention and

13 patience. Remember the instruction and after about three

14 days, I'm going to get you to tell me. Don't read anything

15 in the newspaper. Don't watch anything on television.

16 Don't listen to the radio. If there should be anything in

17 the news media, don't let anything come to your attention

18 accept what you hear in this courtroom.

19 Marshal, if you will see that they get down to the

20 elevator.

21 [The jury returns to the courtroom].

22 THE COURT: All right, we will ask that everybody

23 be seated and I will hear from MR. MOSCOWITZ on a motion

24 that he referred to earlier on at the conclusion of the

25 opening statement by the government. He indicated he had a



106 BRENNAN - Direct


1 motion at that time. The Court asked him to wait until

2 this point to make the motion. He agreed. So the motion

3 is timely made.

4 BY MR. MOSCOWITZ: Thank you, Your Honor. I make

5 this on behalf of SabreTech and on behalf of Eugene

6 Florence. I don't think this relates to Mr. Gonzalez.

7 Mr. Dunlap, can correct me if I'm wrong.

8 I would like to argue the motion now briefly.

9 Since it relates to things that Ms. Miller said in her

10 opening, we are going to have the transcript some time

11 tomorrow so it may make sense to consider the motion

12 carefully tomorrow.

13 But the thrust of the motion is, based on the

14 concession that Ms. Miller made in her opening, we think it

15 is appropriate for the Court to grant a Rule 29 on count 24

16 which is the last count which is the antiterrorism count

17 which alleges that SabreTech knowingly and willfully placed

18 an explosive device on the aircraft, willfully intending to

19 disable it, which is to make it crash.

20 Also, we think based on concession made in opening

21 that a Rule 29 at this point is appropriate with regard to

22 the hazardous material violation counts which are counts 8

23 through 23, which allege that SabreTech willfully violated

24 those regulations and allege that SabreTech and Eugene

25 Florence recklessly violated the hazardous material



107 BRENNAN - Direct


1 regulations.

2 Let me just briefly state, what we think the

3 concessions are. Your Honor, well knows far better than me,

4 that after the government makes it's opening where it

5 predicts or tells a jury what the evidence is, that it

6 expects to prove in support of the allegations in the

7 indictment, if listening to those predictions, taking them

8 all as correct that that is the full extent of what we have

9 proven, if that doesn't constitutes on it's face a showing

10 of proof of each of the elements, it is appropriate for the

11 Court to enter a Rule 29 at that point without even hearing

12 the evidence further. The critical statements that

13 Ms. Miller made and the transcript will bear this out that

14 she started out conceded that nobody, not even the

15 defendants, not SabreTech, not Eugene Florence intended to

16 do any harm to that aircraft, that they did not intend that

17 the aircraft would crash. That they did not foresee what

18 would happen. That they bore no ill will towards ValuJet or

19 towards that aircraft.

20 I think that is absolutely correct. That was an

21 accurate concession that there will be evidence that anybody

22 had any idea that what happened would lead to destruction of

23 an aircraft. Now, the point is that, however, that is

24 precisely what is required to be proven by count 24 by the

25 government.



108 BRENNAN - Direct


1 In count 24, the government alleges that on May

2 11, 1996 which was the date of the crash that SabreTech

3 knowingly and willfully placed and caused to be placed

4 destructive devices, the generators on that flight, and that

5 more specifically, knowingly and willfully made and caused

6 that aircraft to be made unworkable and unusable, and hazard

7 to work with and use in order to endanger the safety of that

8 aircraft. That is what required that SabreTech specifically

9 intended with a bad purpose to violate the law to put those

10 generators on that flight to cause the terrible crash that

11 took place.

12 The government has conceded, it cannot meet that

13 burden and will not produce such evidence. Based on the

14 fact that it already concedes that it can not make a showing

15 of willfully endangering that aircraft which is the

16 requirement, we move for a Rule 29 that at this point, the

17 Court rule that it not be able to prove that violation and

18 we move for judgment of acquittal on that count.

19 With regard to the hazardous materials count, do

20 want to have a chance to look at the transcript tomorrow?

21 But, my recollection is that again, Ms. Miller made the

22 following concession.

23 First of all, she conceded that there was a

24 separation within SabreTech between the mechanics, the

25 people who were working with these generators, and the



109 BRENNAN - Direct


1 government alleges they were charged with knowing that they

2 were dangerous, that they got hot and unsafe, the separation

3 between the mechanics and the people in shipping, the people

4 who actually took the generators and put them on the plane.

5 There was, I believe, a concession or a prediction

6 that there was no indication that the people involved in

7 shipping related to the ValuJet aircraft had any idea as to

8 the potential danger or risk or any knowledge that these

9 generators could be classified as hazardous materials. The

10 people with whom the government is alleging charged with

11 hazardous materials are Mr. Florence and the mechanics who

12 worked with them.

13 As Your Honor heard, Ms. Miller said quite

14 correctly that SabreTech is in effect vicariously liable for

15 the acts and for the knowledge and state of mind of it's

16 employees. Conceding that the employees in shipping had no

17 such knowledge, did not act willfully in loading those

18 generators on to the plane again is really a concession that

19 the government is unable to prove that SabreTech, and also

20 Eugene Florence, knowingly and willfully violated those

21 haz-mat regulations and caused those generators to be put on

22 the plane. There was no indication to the contrary that

23 Mr. Florence had any reason to know that these were going to

24 be transported.

25 I want to look more closely at what was, in fact,



110 BRENNAN - Direct


1 said. It is my recollection that Ms. Miller may have gone

2 so far as to say that SabreTech, that Mr. Florence could not

3 have foreseen that these generators would wind up on that

4 plane. If she made that concession, that would be the basis

5 for Rule 29. Even if there is no concession, the separation

6 between Mr. Florence and the mechanics were charged with

7 knowing and the people in shipping, who were not alleged to

8 have any knowledge, would certainly show that they cannot

9 demonstrate that SabreTech willfully caused these hazardous

10 materials to be transported.

11 THE COURT: All right. Does the government wish

12 to respond?

13 MS. MILLER: Your Honor, the motion should not be

14 granted certainly. It basically is an attempt to jump

15 ahead to the charge conference and will legal elements of

16 these defense. Counsel is flat wrong in his statement that

17 intent to destroy the aircraft is an element of count 24.

18 It appears in one of our pleadings.

19 This statute was amended of certain points some

20 years ago expressly to be brought into conformity with the

21 Montreal convention. There was an explicit statement by

22 Congress that such intent was not an element of this

23 offense, precisely so that the statute would be brought in

24 conformity with the Montreal convention. That is cited in

25 our motion pleading before the Magistrate Judge.



111 BRENNAN - Direct


1 It was the motion where counsel was making the

2 point that the government would be proving that they

3 committed terrorism and sabotage, and we said, of course,

4 we are not proving that.

5 With regard to the hazardous materials counts,

6 again, counsel is leaping ahead to what I think we will

7 certainly be having disputes about in the charge conference.

8 Knowledge of risk is not an element of those defenses.

9 Knowledge of the haz-mat violation is not an element of that

10 offense. It is the reckless delivery of the material that

11 causes the transportation of the violative substance that is

12 the defense.

13 The government does not concede any actual

14 innocence on the part of the SabreTech's shipping department

15 and did not so argue, and did not argue or concede that

16 Mr. Florence could not have foreseen that the generators

17 wouldn't go on the plane.

18 I think we made the point that the very thing

19 Mr. Florence made a false statement about, was with regard

20 to parts designated explicitly shipping caps. The motion,

21 Your Honor, should be denied.

22 THE COURT: I suppose it would be important to

23 move the opening statement which as MR. MOSCOWITZ has

24 indicated, it will be available tomorrow. Let's all take a

25 look at the precise opening statements. It is within the



112 BRENNAN - Direct


1 procedures and rules for the Court to consider a motion for

2 directed verdict of acquittal as to counts of the

3 defendants at the conclusion of the opening statement by

4 the prosecution.

5 It is extremely rare that it comes up or is

6 asserted and even more rare that it is granted without

7 giving the parties an opportunity to present whatever

8 evidence they may have consistent with the burden that is

9 upon the government to establish each element of the

10 offense beyond and to the exclusion of all reasonable

11 doubt. The motion has been timely made. We will all read

12 and review, and/or I will listen to your submissions about

13 the appropriate portions of the transcript that counsel for

14 the defense suggests are material to this motion, and we

15 will come back to this issue at a subsequent time. I don't

16 know whether the transcript will be available at 8:00 in

17 the morning. I don't know the details. When will it be

18 available?

19 MR. MOSCOWITZ: We would be content to argue this

20 after court tomorrow.

21 THE COURT: All right. We will revisit the issue

22 after court tomorrow. Are there any other motions for the

23 early morning traveler's check that you are making to the

24 courthouse?

25 MR. MOSCOWITZ: We have nothing further at this



113 BRENNAN - Direct


1 time.

2 THE COURT: Does the government have anything

3 further in the morning?

4 MS. MILLER: No, Your Honor.

5 MR. MOSCOWITZ: Your Honor, I want to be very

6 careful when I say this. During Ms. Miller's opening

7 toward the very end when she came back to the subject of

8 the crash itself. Your Honor recalls the structure of the

9 opening is, she started with the crash and she came back to

10 what actually happened in the crash at the very end. We

11 were seated behind her. We did not see her face when she

12 was talking.

13 THE COURT: You did not see her face.

14 MR. MOSCOWITZ: The defense says we heard her

15 voice and it sounded to all of us that she became really

16 overcome for a few seconds and it sounded like her voice

17 was cracking, and she was on the verge of tears. I don't

18 for a minute suggest that Ms. Miller did anything

19 intentionally. She is a prosecutor of the highest

20 integrity. I don't think she would attempt to do that, but

21 none the less it is our impression that that was expressed.

22 And that's what we all heard. I think that in opening from

23 the prosecutor is extremely prejudicial. Given what

24 subjects we are talking about.

25 I raise this because I think it should be on the



114 BRENNAN - Direct


1 record. We talked about is this as a basis for a mistrial.

2 I don't expect the Court to grant a mistrial over that at

3 this point. Our concern is that the whole issue of the

4 crash and what happened is a very overwhelming fashion that

5 booms large in this case and could well overwhelm it. There

6 may be a number of things that are going to happen in this

7 trial that related to that crash which would be the basis

8 for the Court to consider a mistrial.

9 THE COURT: Are you moving for a mistrial?

10 MR. MOSCOWITZ: I move for a mistrial on behalf

11 of the defense.

12 THE COURT: On the basis that there was

13 prejudicial emotion expressed by the prosecutor in her

14 opening statement, is that it?

15 MR. MOSCOWITZ: Yes, Your Honor.

16 THE COURT: What is the prejudice to indicate

17 that she personally felt sympathy for the people who

18 tragically perished in this? What is prejudice to the

19 defendant?

20 MR. MOSCOWITZ: I'm not saying she expressed it

21 intentionally. But if that is how the jury perceived it,

22 that if this prosecutor has strong personal feeling which

23 go beyond the government's presentation of the evidence

24 about what happened to the victims in the crash.

25 THE COURT: Was not the same sentiment expressed



115 BRENNAN - Direct


1 in the opening statements for the defense who very

2 diplomatically, and I submit very properly indicated a

3 similar concern and indeed sympathy for the tragic victims

4 of this accident. That same sentiment, seems to me, was

5 expressed by all counsel. All of them are very decent

6 human beings, and it didn't come as a shock to me that that

7 sort of statement would be made by any of you or indeed,

8 all of you.

9 Given that that sentiment was expressed coming as

10 it does from a very decent feeling by all of you, what

11 would be the overwhelming prejudice to SabreTech for

12 example? Isn't it the same expression being expressed by

13 all of you? If it is, why would it be grounds for first of

14 all, any prejudice, and secondly, to rise to the level of a

15 mistrial if the government also expresses a similar

16 sentiment or perhaps the same sentiment that counsel for

17 the defense does? Where is the prejudice?

18 MR. MOSCOWITZ: Your Honor, for example, let me

19 answer this way. Clearly, if a lawyer for the prosecutor

20 during the argument to the jury were to breakdown in tears

21 about what had happened and it didn't happen here, in terms

22 of making the argument, that type of display of emotion,

23 feeling, would be clearly inappropriate and it would be

24 sanctionable, and clearly prejudicial.

25 THE COURT: Do you have some authority for that?



116 BRENNAN - Direct


1 You see, that may be something you want to look into over

2 the evening. There are a number of very emotional cases

3 frequently in the civil context. But I suppose that we

4 could recall or think back and remember some in the

5 criminal case context.

6 Certainly tragic events occur in domestic

7 litigation. There is a lot of litigation that is highly

8 emotionally charged. If the sentiment that comes out at a

9 given time in a very emotional case is genuine, that is

10 opposed to something that appears to be contrived or

11 simulated just for effect or something of that sort, is

12 that, a friendly question, is it sanctionable?

13 I have observed lawyers that had to, in closing

14 argument, actually leave the courtroom and the marshal

15 would tell me one of them just cried in the lobby. Not

16 that the jury heard or not that it was part. But those

17 things do occur. I've seen grown men that normally are

18 pretty tough litigators with tears in their eyes. If it is

19 a sincere motion, I have never felt obliged, I have never

20 had it raised that it is something sanctionable or

21 improper. I have never had that problem.

22 MR. MOSCOWITZ: I want to make clear that none of

23 us are insinuating that any sanctions at all against

24 Ms. Miller for anything that happened during opening --

25 THE COURT: Well, it's a mistrial. That is the





1 most devastating sanction you can impose.

2 MR. MOSCOWITZ: I don't think that this alone,

3 the prejudice that it would cause, rises to that level.

4 Although I felt we need to put it on the record.

5 THE COURT: I don't look, in a very friendly

6 manner, upon what one might call a specious motion. If you

7 are sincere about your motion, I treat all of your motions

8 as being made sincerely until you establish a track record

9 otherwise. Certainly I have treated all of your motions

10 seriously. I assume they were made seriously, and I don't

11 really expect counsel to make motions for mistrial for

12 purposes of putting something on the record.

13 Let's try to refrain from doing that. If you

14 have a serious motion and you believe you should make it

15 for your client, do so with great fortitude, and I will

16 treat it seriously and listen to it seriously.

17 If you think the case ought to be thrown out

18 because of the conduct of the prosecutor, you are going to

19 have to say so. Just bringing me a problem is not

20 something that I am going to be spending any time on.

21 There has got to be a motion. You make it. She makes it.

22 The other side responds. We will look at the transcript

23 tomorrow afternoon.


25 (Proceedings were concluded at 5:50 p.m.)



1 C E R T I F I C A T E

2 I hereby certify that the foregoing is an accurate

3 transcription of proceedings in the above-entitled matter.





8 ______________ _______________________________________


9 Official Federal Court Reporter

Federal Justice Building, Ste. 1127

10 99 Northeast 4th Street

Miami, FL 33132 - 305/523-5108

















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