1

1 UNITED STATES DISTRICT COURT

2 SOUTHERN DISTRICT OF FLORIDA

3

4 UNITED STATES OF AMERICA Case 88-491-CR-KING

5 v. MIAMI, FLORIDA

November 17, 1999

6 VOLUME I

PAGES 1 TO 265

7 SABRETECH, INC.,

DANIEL GONZALEZ, and

8 EUGENE FLORENCE

9

JURY TRIAL

10 BEFORE THE HON. JAMES LAWRENCE KING, J.

UNITED STATES DISTRICT JUDGE

11

APPEARANCES:

12

FOR THE GOVERNMENT:

13

CAROLINE HECK MILLER, ESQ.

14 GEOFFREY BRIGHM, ESQ.

Assistant United States Attorneys

15 99 N.E. 4th Street

Miami, FL 33132

16

FOR THE DEFENDANT:

17

SABRTECH, INC. JANE RASKIN, ESQ.

18 MARTIN RASKIN, ESQ.

19 DANIEL GONZALEZ ROBERT DUNLAP, ESQ.

MARSHA SILVERS, ESQ.

20

EUGENE FLORENCE JANE MOSKOWITZ, ESQ.

21 NORMAN MOSKOWITZ, ESQ.

22

REPORTED BY: DAVID S. EHRLICH, RPR

23 Official Court Reporter

301 N. Miami, Room 504

24 Miami, Florida 33128-7788

(305) 523-5537

25 Proceedings recorded by mechanical stenography, transcript

produced by computer-aided transcription (CAT).

BRENNAN - DIRECT (MRS. MILLER)

2

1 (Court convened at 9:17 a.m., out of the

2 presence of the jury.)

3 THE COURT: Good morning.

4 We are all ready. Bring the jury in,

5 please.

6 (The jury entered the courtroom at 9:18

7 a.m.)

8 THE COURT: Thank you, ladies and

9 gentlemen. Be seated please.

10 All right, if you would call Mr. Brennan

11 back to the witness stand, please.

12 (The witness, Robert Brennan, resumed the

13 witness stand.)

14 THE COURT: You are reminded you are still

15 under oath.

16 THE WITNESS: Yes, Your Honor.

17 THE COURT: All right, Mrs. Miller.

18 MRS. MILLER: Thank you, Your Honor.

19 DIRECT EXAMINATION

20 BY MRS. MILLER: (Continued.)

21 Q. Mr. Brennan, you were testifying yesterday about

22 Scott Aviation chemical oxygen generators; were you

23 not?

24 A. Yes, ma'am.

25 Q. Mr. Brennan, did there come a time when Scott

BRENNAN - DIRECT (MRS. MILLER)

3

1 Aviation prepared some model oxygen generators AT the

2 request of the United States Attorney's Office?

3 A. Yes.

4 Q. I am handing you what has been marked Government

5 Exhibit 30A and ask if you recognize that item.

6 A. Yes, I do.

7 Q. What do you recognize it as?

8 A. A training aid or model that was assembled at our

9 plant at your request.

10 Q. And it is a model of what?

11 A. This is a model of a McDonnell Douglas type

12 three-person generator.

13 Q. A chemical oxygen generator?

14 A. Yes, ma'am.

15 Q. Does it contain any hazardous materials?

16 A. No, it is a completely empty shell. I drilled

17 holes in it to show people it is empty.

18 Q. Was any further modification made to any part of

19 it, including the percussion cap?

20 A. No, they are all production parts. It is just

21 there are no insides whatsoever, and there is no

22 percussion cap whatsoever. But everything else is a

23 production part.

24 Q. What appears where the percussion cap ordinarily

25 would be?

BRENNAN - DIRECT (MRS. MILLER)

4

1 A. An empty space or hole in the generator.

2 Q. You just removed something from the generator

3 with your hand. What is that?

4 A. The safety cap or shipping cap.

5 MRS. MILLER: Your Honor, at this point I

6 would request that Mr. Brennan be given permission to

7 step over to the magnifying machine so that we may

8 place the oxygen generator on that machine for a

9 closer look at it.

10 THE COURT: Granted.

11 Q. Could you place the shipping cap on the surface,

12 first of all.

13 A. Oh, to look at it, you mean.

14 Q. Yes, sir.

15 A. That's looking at it with -- looking at it from

16 like underneath when it is on top of the generator.

17 Q. Hold it in your fingers and rotate it a bit so it

18 can be seen in three dimensions on the screen.

19 Thank you.

20 Put aside the shipping cap and place the

21 actual oxygen generator on the surface. And if you

22 can adjust the zoom so we can see it.

23 A. I don't believe it will fit. Well, just about.

24 Okay.

25 Q. Mr. Brennan, could you point out the mechanical

BRENNAN - DIRECT (MRS. MILLER)

5

1 parts of the oxygen generator. There is a pointer

2 there also if that would assist you in doing this.

3 A. Yes, the same as was on the chart yesterday.

4 These are the outlets down here.

5 Q. How many are there on this oxygen generator?

6 A. In this case, there is three of them. That is

7 where the tube would normally be attached.

8 Q. When you say "take the cap off," what are you

9 referring to?

10 A. The green safety caps covering the end of this

11 thing.

12 Q. Those are not the shipping caps you were

13 discussing earlier yesterday; are they?

14 A. No, ma'am. That is this one here.

15 And then, when it mounts to the airplane,

16 it mounts to these three studs. These are relief

17 valves in case anything should happen to kink the

18 hoses while the oxygen is flowing. This is not a

19 pressure nozzle, so there is a pair of relief valves

20 so the pressure won't build up.

21 Then this is a stainless steel shell.

22 And then this is the top end where the

23 actuating mechanism is.

24 This is the pull pin we talked about

25 yesterday. This is the hammer that was down onto the

BRENNAN - DIRECT (MRS. MILLER)

6

1 percussion cap.

2 And then you can see the spring back here

3 under the lanyard. This is the spring that forces the

4 hammer down. And this is the lanyard that is actually

5 the pull pin, and the rest of the lanyard is wrapped

6 around --

7 Q. Zoom out so we can see that lanyard in a fuller

8 view.

9 A. The rest of the lanyard is wrapped around the

10 generator.

11 Q. I am going to ask you about the lanyard in a

12 moment, Mr. Brennan, but tell us first if any labels

13 appear on this -- withdrawn.

14 Before I do that --

15 MRS. MILLER: Your Honor, the government

16 would like to offer into evidence this model, which

17 has been marked as Government Exhibit 30A.

18 MR. RASKIN: No objection.

19 THE COURT: Government Exhibit 30A is

20 admitted into evidence.

21 (Government's Exhibit 30A in evidence.)

22 BY MRS. MILLER:

23 Q. Mr. Brennan, do any labels appear on Government

24 Exhibit 30A?

25 A. Yes, ma'am. There is two labels front and back.

BRENNAN - DIRECT (MRS. MILLER)

7

1 Q. What do the labels say?

2 A. "Notice: Not an operational generator. Training

3 aid only. Contains no hazardous materials."

4 And the same label appears in the back.

5 And it looks like you put a label on here, a yellow

6 one.

7 Q. Now, none of those labels ordinarily appears on

8 any actual Scott generator; does it, Mr. Brennan?

9 A. No, ma'am.

10 Q. Those are labels that are applicable only to this

11 because it is a model; is that correct?

12 A. Yes, that's correct. It is considered a training

13 aid.

14 Q. Now, there are no other labels or warnings on

15 that particular exhibit; are there, Mr. Brennan?

16 A. No, ma'am.

17 Q. And does the absence of any warning label

18 correspond to any type of Scott Aviation oxygen

19 generator?

20 A. Excuse me? I didn't follow the question.

21 Q. Was there a time when there were no warning

22 labels on Scott Aviation oxygen generators?

23 A. Yes. A fixed generators did not have warning

24 labels on, oh, before 1988, I believe.

25 Q. And -- all right, we'll get to post-1988

BRENNAN - DIRECT (MRS. MILLER)

8

1 situation in a bit.

2 Is it then correct -- withdrawn.

3 Mr. Brennan, would you show us please the

4 arrangement of the lanyard on this model oxygen

5 generator.

6 A. Well, as we said yesterday, this is a three-

7 person generator. It is actually three lanyards.

8 There is one lanyard tied through the loop on the end

9 of this pull pin that you can see here. Then there

10 are two other lanyards, have little rings on them, and

11 the lanyards is tied to the ring. The ring is slipped

12 over the pin, so if you pull on any one of the three

13 lanyards, you will pull the pin out.

14 Did you want me to unwrap the lanyards?

15 Q. No, Mr. Brennan.

16 If I might, let me hand you a part of

17 Government Exhibit 30C at this moment out of order.

18 And let me ask if you recognize Government Exhibit

19 30C.

20 A. Yes, I do.

21 Q. What is Government Exhibit 30C?

22 A. Well, it's the top of an oxygen generator

23 without -- like this one, without the percussion cap.

24 But this one is mounted on a plastic base and it has a

25 plastic support so you can handle it without damaging

BRENNAN - DIRECT (MRS. MILLER)

9

1 it.

2 Q. And was this model made at the request of the

3 United States Attorney's Office?

4 A. Yes, ma'am.

5 Q. Does it have the exact same type of mechanical

6 mechanism as 30A?

7 A. These are all manufacturing -- production parts,

8 just like this one is; it is just they are mounted on

9 a plastic base so you can handle them.

10 MRS. MILLER: The government offers 30C in

11 evidence.

12 THE COURT: Without objection, 30C is

13 admitted into evidence.

14 (Government's Exhibit 30C in evidence.)

15 BY MRS. MILLER:

16 Q. Now, Mr. Brennan, can you place 30C for a moment

17 on the screen and show us any lanyard, including

18 unwrapping any lanyard if you need to, to show us

19 those rings.

20 A. Yes, ma'am.

21 You see the end of the pull pin. I will

22 pull on the lanyard and pull the lanyard right out.

23 Q. If you could do that away from the screen,

24 because I just want to look at the lanyard at this

25 moment.

BRENNAN - DIRECT (MRS. MILLER)

10

1 A. All right.

2 Q. Now, if you could show us the lanyard on the

3 screen, please, so we can get a good look at that.

4 And, would it help if you had a colored

5 paper backing that, since the lanyard is white?

6 A. Yes.

7 It is a stainless steel pin with a hook in

8 the back and a -- I believe it is nylon cord with this

9 little crimp that makes the loop in the cord.

10 Q. Now, this is just one lanyard; is that correct?

11 A. Yes, ma'am.

12 Q. In a generator that services more than one

13 person, is the lanyard arranged differently?

14 A. No. This is in every generator. When you have

15 more than one lanyard, you have another cord, just the

16 same cord. And instead of being through this loop, it

17 is through a little brass ring. The brass ring slips

18 on the end. If you have a two-man generator, you put

19 one of them on; if you have a three-man generator, you

20 put two of them on; a four-person generator, you put

21 three of them on.

22 Q. Show us that with the exhibit in front of you.

23 A. Oh, yes.

24 THE COURT: If that happens at 30,000 feet,

25 and you got 30 seconds to get that thing on your face,

BRENNAN - DIRECT (MRS. MILLER)

11

1 what happened?

2 THE WITNESS: That is why we shipped them

3 wrapped around the generator instead of wrapped around

4 your hand, like this one was. Actually, there is much

5 more lanyard here than you need. You put them in and,

6 depending on what seat it is or what kind of aircraft,

7 you are supposed to cut the lanyard off according to

8 the instruction manual and tie the mask on.

9 So the lanyards, we ship them all to

10 McDonnell Douglas full length. But when they put them

11 in different places in the airplane, they cut them off

12 and tie it to whatever length the mask has to be.

13 THE COURT: I am glad to hear that.

14 A. The general idea is, that is a single lanyard

15 (exhibiting); this is an add-on lanyard: This is the

16 little ring. And you slip it over that. Now you have

17 a setup for a two-person generator. If it is going to

18 be a three-person generator, you put the first one

19 on.

20 We do this at the factory, though. This is

21 the way it is shipped out.

22 The second one goes on, then you install

23 that in the generator. If it is going to be a four-

24 person generator, you need four lanyards.

25 And it is set up like that.

BRENNAN - DIRECT (MRS. MILLER)

12

1 Then we put them in the actuating

2 mechanism, take them around the top of it, and then

3 take the slack up around the generator so we don't

4 tangle them, and put a rubber band on.

5 Q. Mr. Brennan, could you take the pin that you have

6 now put the lanyards on and insert it back into 30C

7 for a moment.

8 A. Yes, ma'am.

9 It would help if I had the tool.

10 Thank you. (Pause)

11 Q. The more lanyards in there, the harder it is --

12 A. Yes.

13 Q. Do you want to take off some of the lanyards and

14 do it as a two-person --

15 That is not how they do it in the factory;

16 is it, Mr. Brennan?

17 A. No.

18 THE COURT: Maybe we can send it back and

19 get it fixed and bring it back a little quicker than

20 this.

21 Have him tell it to us. It is hard to do

22 here in the courtroom.

23 A. I was a little nervous.

24 Here it is.

25 Q. If you can turn your attention back for a moment

BRENNAN - DIRECT (MRS. MILLER)

13

1 to Exhibit 30A.

2 And, again, with regard to the arrangement

3 of lanyards on 30A, is this how the generator is

4 arranged as it is shipped from the factory with the

5 lanyard wrapped like that?

6 A. Yes, ma'am.

7 Q. Why does Scott send the generators with the

8 lanyards wrapped in that fashion?

9 A. There is two reasons. We discussed we don't want

10 them tangled, to keep them straight. But the big

11 reason is, if you want to make sure there is no slack

12 in the lanyard here that could catch on something,

13 pull the pin.

14 Q. Now, does the wrapping of the lanyard protect the

15 oxygen generator from initiating?

16 A. To the extent that it -- as long as the cap is

17 on, it doesn't really matter whether the lanyard is

18 pulled; it won't initiate. But it is basically so you

19 don't have to go through what I just went through to

20 try to put the pin back.

21 Q. What is the mechanism on the generator that is

22 designed to prevent initiation?

23 A. That's this little cap, yellow cap here.

24 Q. Mr. Brennan, if we can set aside, please, 30A for

25 a moment and return to the other exhibits.

BRENNAN - DIRECT (MRS. MILLER)

14

1 First of all, with regard to 30A, when it

2 was originally made, can you use that to demonstrate

3 for me how the firing pin, pull pin, can be pulled?

4 A. This is 30A?

5 Q. Yes, sir.

6 A. Yes.

7 Q. And was that demonstration performed several

8 times?

9 A. Oh, yes.

10 Q. Is an oxygen generator designed to be used

11 several times?

12 A. No. It is a one-time operable device.

13 Q. What happened to 30A if it is used several times?

14 A. You try to put the lanyard back in. This black

15 guide tube was leaned on with the palm of the hand and

16 it was pulled out.

17 Q. So did you make some repair to 30A?

18 A. It took some superglue in your office and we put

19 it back.

20 Q. In response to that, did you cause this sturdier

21 version of a holder for that black tube to be made?

22 A. Yeah. You make something you can handle over and

23 over and over again. I asked my shop to put a support

24 on the guide tube so when you lean down with the palm

25 of your hand, you wouldn't snap it off.

BRENNAN - DIRECT (MRS. MILLER)

15

1 Q. Now, Mr. Brennan, if you could please use --

2 withdrawn.

3 Did you bring one other model of a part of

4 an oxygen generator?

5 A. Yes. The top alone.

6 Q. Is that item marked as an exhibit?

7 A. Yes. 30D.

8 MRS. MILLER: Government offers 30D in

9 evidence.

10 MRS. MOSKOWITZ: Can we just see it, Your

11 Honor?

12 MRS. MILLER: (Exhibiting same to

13 Mrs. Moskowitz.)

14 MRS. MOSKOWITZ: No objection, Your Honor.

15 THE COURT: Government Exhibit 30G is

16 admitted into evidence.

17 MRS. MILLER: Your Honor, that's 30D.

18 THE COURT: D like in David?

19 MRS. MILLER: Yes, sir.

20 THE COURT: All right. Admitted into

21 evidence.

22 (Government's Exhibit 30D in evidence.)

23 BY MRS. MILLER:

24 Q. I am handing you 30D, and I would ask you to put

25 that on the base, and if you could please remove the

BRENNAN - DIRECT (MRS. MILLER)

16

1 shipping cap from it.

2 A. Yes, ma'am.

3 Q. Can you show us, please, and hold the generator

4 as you are showing us, the actual firing mechanism

5 motion of an oxygen generator as the lanyard is

6 pulled?

7 A. Yes. I think so.

8 Q. And just explain to us verbally what you are

9 doing.

10 A. And you want me this time to pull the pin?

11 Q. Yes. And if you can get it as lit so that the

12 pin is as visible as possible, I would appreciate it.

13 THE COURT: Watch your thumb.

14 A. This is the spring we talked about. This is the

15 pull pin holding the hammer back. This is the

16 hammer. This is where the percussion cap goes; but it

17 is not there now, it is an empty hole. This is the

18 guide tube. This is the lanyard.

19 Q. Before you pull it, Mr. Brennan, on this one, the

20 firing pin appears to go clear across that little

21 channel over to the other edge; is that correct?

22 A. The pull pin, you mean.

23 Q. Yes, sir.

24 A. Yes, ma'am.

25 Q. Does that appear differently depending on whether

BRENNAN - DIRECT (MRS. MILLER)

17

1 there are more than one lanyard on that oxygen

2 generator?

3 A. Yes, because the lanyard rings go in here, and

4 then the more lanyard rings you have, the further to

5 the left the pull pin extends, the less to the right

6 the pull pin extends.

7 Q. Now, could you, as slowly as possible, please

8 pull on the lanyard and explain to us what you are

9 doing as you do it.

10 A. All right. The spec on this is 1 to -- at that

11 time was 1 to 4 pounds, now it is 1 to 7 pounds. The

12 pull on the lanyard is supposed to pull the pull pin

13 out. I will try to do it as slow as I can.

14 There it goes. See it moving?

15 That's it.

16 Q. Thank you, Mr. Brennan. If you could take your

17 seat, please.

18 (Witness resuming the witness stand.)

19 Q. Mr. Brennan, does an oxygen generator have a

20 limited life?

21 A. Yes, they do.

22 Q. And what do you mean by a limited life for this

23 device?

24 A. It's what they call a hard-time component. It

25 has to be removed from service a certain period of

BRENNAN - DIRECT (MRS. MILLER)

18

1 time from its date of manufacture. It is called a

2 hard-time component. You can't repair it, overhaul

3 it, zero-time it.

4 Q. What happens after this limited life? Does it

5 stop working?

6 A. Well, actually it is, the statistical probability

7 that it might not work starts to increase. It is not

8 that it stops working. You can't test the oxygen

9 generators individually.

10 Q. And why is that, if you can tell us, please.

11 A. Well, if you actuate them, you use them up and

12 you have to throw them away. They are built in

13 batches, and you take a group out of the batch and

14 test them to make sure they all work. And that gives

15 you a reliability that they are going to work.

16 But as time passes and they sit in the

17 airplane, the airplane takes off and lands, and

18 vibration and everything -- it is a solid core. You

19 start to get -- you start to worry about the core

20 being affected by the vibration.

21 Q. When you say "the core," what are you talking

22 about?

23 A. That funnel-shaped thing on the diagram

24 yesterday, the actual sodium chlorate core where the

25 reaction takes place.

BRENNAN - DIRECT (MRS. MILLER)

19

1 MRS. MILLER: If I might refer the witness

2 to the chart, Your Honor?

3 THE COURT: All right.

4 Q. Mr. Brennan, what on this chart are you referring

5 to as the core?

6 A. From the flash down to the bottom.

7 Q. You are talking about the light gray structure?

8 A. Yes, ma'am.

9 Q. And what is the physical nature of that

10 structure? You told us yesterday the chemicals, but

11 can you tell us, is it gooey? Is it solid? What is

12 it like in there?

13 A. It is actually pressed granules, pressed powder.

14 Sodium chlorate is related to sodium chloride, which

15 is table salt. It is similar in nature that it is a

16 powdery material you press into that shape, but it is

17 not solid like cast metal.

18 Q. And what is the concern about what could happen

19 to this material over time with the vibration, etc.,

20 as you mentioned?

21 A. You may start to get some small fissures or

22 cracking in the sodium chlorate core. And if you got

23 that, the reaction may not continue. In other words,

24 you may get a situation where the generator produces

25 oxygen for a couple of minutes and then it might stop,

BRENNAN - DIRECT (MRS. MILLER)

20

1 it might not. It depends on whether the reaction

2 front can jump over whatever cracks are there.

3 And then another concern is that although

4 it is a stainless steel case and all sealed up, you

5 start to worry about corrosion. Because if you get a

6 leak through the case and you get outside air into the

7 generator, that's why you have check valves in the

8 outlet.

9 This material is what they call

10 hydroscopic. It picks up water. And if it picks up

11 water, then it may not decompose; the reaction may not

12 go the way we want it to go.

13 So you start to worry about both the

14 possibility of corrosion as time passes, and the

15 possibility of mechanical fractures opening up in the

16 core due to vibration.

17 Q. And what is the designated life limit of a

18 chemical oxygen generator such as is made by Scott

19 Aviation for McDonnell Douglas?

20 A. Presently the life limit --

21 Q. Let me ask you -- I should have prefaced my

22 question.

23 What was that life limit during the time

24 March through May of 1996?

25 A. '96. It had already been extended. It was 12

BRENNAN - DIRECT (MRS. MILLER)

21

1 years at that point.

2 Q. And what happens to an oxygen generator once it

3 is more than 12 years old?

4 A. Well, you can't fly it in an airplane anymore.

5 And you have to dispose of it.

6 Q. In what way does it have to be disposed of?

7 A. Our military safety data sheet indicates that you

8 expend them and dispose of them as barium-containing

9 material.

10 Q. And do they lose their hazardous nature at that

11 point?

12 A. Well, when you expend them, you go from a solid

13 oxidizer, which is a hazardous material, to table

14 salt; but you create soluble barrier salts from the

15 barium salts we put in there. Barium are considered

16 by the EPA, barium salts, they can get into the ground

17 water, so it still hazardous material for disposal.

18 You have to declare it as barium-containing material

19 and dispose of it according to the rules that the EPA

20 has for disposing of that.

21 Q. What about an oxygen generator that is more than

22 12 years old, but that has not been expended?

23 A. Well, it is a cannister basically of sodium

24 chlorate, and that is a hazardous material. And you

25 have to declare that as a hazardous material and

BRENNAN - DIRECT (MRS. MILLER)

22

1 dispose of it according to the rules for that.

2 Q. Are these materials wastes?

3 A. When you go to dispose of a generator, the

4 generator is a waste.

5 Q. What is the nature -- withdrawn.

6 Now, you have told us that at a certain

7 time Scott generators started to carry warning labels;

8 is that correct?

9 A. Yes, ma'am.

10 Q. Have you brought with you a sample of a Scott

11 oxygen generator bearing such a warning label?

12 A. I have an outer shell of an actual generator

13 there.

14 Q. I am handing you what has been marked as

15 Government Exhibit 30B (exhibiting same to defense

16 counsel.)

17 Do you recognize Government Exhibit 30B?

18 A. Yes, ma'am.

19 Q. What is it?

20 A. This is the outer shell of what used to be -- I

21 believe it is a Douglas, McDonnell Douglas two-man

22 generator.

23 Q. And has any modification been made to it?

24 A. Yes. I cut off -- had my shop cut off the end of

25 it, and we scraped out all the chemicals. And then we

BRENNAN - DIRECT (MRS. MILLER)

23

1 took the -- it had been expended, and we took the

2 remains of the percussion cap and drilled it out.

3 Q. Accordingly, that Exhibit 30B does not contain

4 any chemicals; is that correct, Mr. Brennan?

5 A. That's correct.

6 MRS. MILLER: The government offers 30B

7 into evidence.

8 MRS. MOSKOWITZ: No objection, Your Honor.

9 THE COURT: 30B admitted into evidence.

10 (Government's Exhibit 30B in evidence.)

11 BY MRS. MILLER:

12 Q. Are there certain labels on that oxygen

13 generator?

14 A. Yes, there are.

15 MRS. MILLER: And, Your Honor, I would ask

16 Mr. Brennan bring the generator over to the machine so

17 we can show the labels.

18 THE COURT: All right.

19 Q. Put it on the machine and tell us if there is any

20 writing on there in Magic Marker.

21 A. Yes, there is.

22 Q. Was that writing put on there for the purpose of

23 this case as opposed to being on there originally?

24 A. No, that happened to be on there when I located

25 the expended generator.

BRENNAN - DIRECT (MRS. MILLER)

24

1 Q. What does that writing say?

2 A. "Expended 2M DCA," which is -- 2M would be two-

3 man or two-person, and DCA is Douglas Aircraft

4 Company. And I don't know who, but at the time it was

5 expended someone marked it with a Magic Marker,

6 "expended, two-person, McDonnell Douglas."

7 Q. So that would not appear on the original one; is

8 that correct?

9 A. Yes.

10 Q. And there is also a little yellow government

11 sticker on there; is there not?

12 A. Yes.

13 Q. And that wouldn't appear on the original one,

14 correct?

15 A. No, ma'am.

16 Q. Are there other labels on that generator?

17 A. Yes.

18 Q. How many?

19 A. Two labels.

20 Q. Would those labels have been on the generator

21 when it was shipped out from Scott Aviation?

22 A. I'm not sure this generator was ever shipped out,

23 but this is the label we put on the ones that are

24 shipped out.

25 Yes, this one was built to be shipped out,

BRENNAN - DIRECT (MRS. MILLER)

25

1 but apparently we used it up in a test rather than

2 shipping it.

3 Q. Now, would you please tell us first about the

4 black label that you are focusing on right now and

5 tell us what that label is?

6 A. It is actually a green label. It is green and

7 silver, and the machine doesn't want to focus on it.

8 Well, that is pretty good.

9 That is called the Iden plate, and that

10 gives the contractual required information, spec

11 required information for this particular generator.

12 Q. Now, that plate, how long was that type of plate

13 -- Withdrawn.

14 When was that type of plate -- the type of

15 plate we are looking at right now, did that appear on

16 Scott Aviation oxygen generators prior to this time in

17 the mid to late 1980s that the warning labels started

18 to be affixed?

19 A. Yes. An Iden plate was put on the generators

20 and, you said, the mid 1980s. Yes, of course.

21 Q. What about in the early 1980s, was there such

22 a --

23 A. Yes, ma'am.

24 Q. Do you know of a time when Scott ever shipped

25 generators without an Iden plate?

BRENNAN - DIRECT (MRS. MILLER)

26

1 A. It is required by the Boeing specifications. So

2 I don't believe we could ship them without an Iden

3 plate. The plate may have changed in size over the

4 years, but we were not allowed to ship them without

5 the plate.

6 Q. You mentioned Boeing specifications --

7 A. I meant McDonnell Douglas. We also manufacture

8 for Boeing.

9 Q. Now, this type of plate, then, would have

10 appeared on old oxygen generators as well as current

11 oxygen generators; is that correct?

12 A. Yes, that is correct.

13 Q. Why did you not put such a plate on Government

14 Exhibit 30A, the training aid?

15 A. Well, because it doesn't have a serial number.

16 It is a training aid.

17 Q. Now, is there another label that appears on

18 Government Exhibit 30B?

19 A. Yes, ma'am.

20 Q. And would you please show us that label.

21 A. Yes, ma'am.

22 Q. Now, when did that label start to be affixed to

23 Scott Aviation generators?

24 A. I believe the beginning of 1988, ma'am.

25 Q. And did that situation continue to be applied to

BRENNAN - DIRECT (MRS. MILLER)

27

1 Scott Aviation chemical oxygen generators, beginning

2 in 1988 through and including, at least, May of 1996?

3 A. Yes. It has been continuous since '88.

4 Q. And is this the label that has been used during

5 that time?

6 A. Yes, it is.

7 Q. Could you please read for us the label.

8 A. "Warning: This unit gets hot. When removing

9 unit, install safety cap over primer. Do not pull

10 lanyard. If activated, place on surface that won't

11 burn." And then the label number and the print date

12 number or the text date number.

13 Q. Thank you, Mr. Brennan. If you could resume your

14 seat, please.

15 Scott Aviation's practices with regard to

16 the wrapping and packaging of oxygen generators that

17 it shipped out during the time period between January

18 and the end of May, 1996, turn your attention to that

19 time.

20 A. All right.

21 Q. Could you please describe to us -- well,

22 withdrawn.

23 Let me show you one exhibit before we do

24 that. Excuse me.

25 How did Scott Aviation identify new oxygen

BRENNAN - DIRECT (MRS. MILLER)

28

1 generators it was shipping out during the time period

2 January through May of 1996?

3 A. Yes.

4 THE COURT: Could I interrupt you just a

5 minute.

6 May I see, Mrs. Miller, and one

7 representative from the defense counsel.

8 Mrs. Moskowitz, you are closest. Just

9 briefly here.

10 Don't worry, Mr. Ehrlich. You can't get

11 it. Won't worry.

12 (Sidebar off the record.)

13 BY MRS. MILLER: (Continued.)

14 Q. Mr. Brennan --

15 (Off-the-record discussion between the

16 government and defense counsel, Mrs. Moskowitz and

17 Mr. Dunlap.)

18 Q. I am handing you what has been marked as

19 Government Exhibit 53C, and I am just going to ask you

20 whether you can identify it, without going on and

21 telling us what is in it, please.

22 A. You mean if I can identify the things in the

23 picture?

24 Q. Do you recognize any of the things in the

25 picture?

BRENNAN - DIRECT (MRS. MILLER)

29

1 A. Yes, I do, ma'am.

2 Q. And do you recognize any of them as oxygen

3 generators?

4 A. Yes, ma'am.

5 Q. And do any of those oxygen generators bear a

6 warning label on them?

7 A. Yes, ma'am.

8 Q. Do you recognize the warning label?

9 A. Yes, I do.

10 Q. Is that the warning label that Scott Aviation

11 affixes on oxygen generators such as the one on

12 Exhibit 30B?

13 A. It's the one we just saw, Your Honor.

14 MRS. MILLER: The government is not

15 offering this exhibit at this time, Your Honor.

16 Q. Now, Mr. Brennan, could you please describe to us

17 how Scott Aviation packages oxygen generators as it

18 ships them out of the plant.

19 A. In what time frame?

20 Q. Thank you. During the time period January

21 through May of 1996.

22 A. At that time, the oxygen generators were placed

23 in a plastic bag; this is after they are like you saw

24 them, with the cap on, the lanyards, inspection done,

25 everything was done. You put them in the plastic bag;

BRENNAN - DIRECT (MRS. MILLER)

30

1 the plastic bag was closed, laid down on a piece of

2 special cardboard about this size (indicating) with

3 four creases, and they were placed in a shrink-

4 wrapping machine.

5 You take a -- the machine takes a piece of

6 plastic, heats it up, and then there is a vacuum table

7 down below. The frame comes down, the vacuum is

8 turned on, and this cardboard that has pinholes in it,

9 it sucks the plastic down onto the cardboard where it

10 sticks. Now you have the generator trapped under the

11 sheet of clear plastic.

12 Then you take and fold it up by the

13 creases, so you make the flat sheet into a square,

14 hollow tube. You put a piece of tape on the seam of

15 the tube, and that makes the inner package.

16 Then you take up to twelve of these, and

17 put them in a spec box. You put a cap, a piece of

18 cardboard down in the bottom of the box, stick the

19 twelve tubes. They don't all have to be generators,

20 some could be empty if you are shipping out ten or

21 nine. You put another cap, which is a sheet of

22 cardboard, on top of them. You take the flaps, fold

23 them in, run the tape on them, put the labels on them,

24 and you are ready to go.

25 Q. Mr. Brennan, I am handing you what has been

BRENNAN - DIRECT (MRS. MILLER)

31

1 marked as Government Exhibits 48A and 48B, and I ask

2 you if you recognize any of the objects in those

3 photographs.

4 A. Yes, I do.

5 Q. What do you recognize them as?

6 A. Apparently it is four of our boxes. One shows

7 them with the top open so you can see the little

8 square tubes. This one shows them with the flaps

9 pushed down.

10 Q. And which one is open and one which is closed, so

11 we can have it for the record?

12 A. 48A shows the flaps down; and 48B shows the flaps

13 pulled back.

14 Q. Do these photographs illustrate the packing

15 method you just described?

16 A. Yes, they do.

17 MRS. MILLER: Your Honor, we are not

18 offering these photographs at this time.

19 Q. Let me hand you back 48A for the moment, the

20 exterior view of those boxes.

21 Does the yellow placard oxidizer label

22 appear on that box?

23 A. Yes, they do, on all of them.

24 Q. And is it clearly visible?

25 A. Yes, it is.

BRENNAN - DIRECT (MRS. MILLER)

32

1 MRS. MOSKOWITZ: Objection, Your Honor.

2 They are testifying about an exhibit that --

3 THE COURT: The objection is sustained.

4 The document is not in evidence. Don't tell us what

5 is in it.

6 Q. Mr. Brennan, I am handing you what has been

7 marked as Government Exhibit 30E, and I would ask you

8 if you recognize that.

9 A. Yes, I do.

10 Q. What is 30E?

11 A. 30E is what is called a placard. It is a device

12 required to be put on the outside of this kind of

13 shipment.

14 MRS. MILLER: Government offers --

15 withdrawn.

16 Q. Was that placard in use in that form during the

17 time period March through May of 1996 on Scott

18 Aviation shipments?

19 A. Yes, it was.

20 MRS. MILLER: Government offers 30E in

21 evidence.

22 MRS. MOSKOWITZ: Objection, Your Honor.

23 Foundation.

24 THE COURT: Sustained. There is no

25 showing -- connection with the defendants in this

BRENNAN - DIRECT (MRS. MILLER)

33

1 case.

2 Q. I am handing back to you Government Exhibit 48A,

3 Mr. Brennan. Do you see that placard, Government

4 Exhibit 30E, depicted in 48A?

5 A. Yes, ma'am.

6 MRS. MILLER: Government offers 30E in

7 evidence.

8 MRS. MOSKOWITZ: Objection. Same

9 objection, Judge.

10 THE COURT: Marshal, would you hand the

11 document up and let me take a look at it and see what

12 it is?

13 Hand it up here, Mrs. Miller.

14 MRS. MILLER: I'm sorry. Two people were

15 speaking.

16 THE COURT: Well, when I tell you

17 something, let's get it done.

18 MRS. MILLER: Yes, sir.

19 THE COURT: You are offering 30E into

20 evidence, is that correct?

21 MRS. MILLER: Yes, sir.

22 THE COURT: And the objection was made on

23 foundation. The objection is sustained.

24 All right, you can hand it back to her and

25 she can show it to whoever she wants to.

BRENNAN - DIRECT (MRS. MILLER)

34

1 MRS. MOSKOWITZ: I am going to withdraw my

2 objection, Your Honor.

3 THE COURT: All right. Let's -- please,

4 the time is --

5 MRS. MILLER: Your Honor, it is my fault.

6 If I had shown it to Mrs. Moskowitz first, we wouldn't

7 have the problem.

8 THE COURT: Well, whoever's fault it is, we

9 are sort of wasting time.

10 All right. She has shown you an exhibit.

11 And what is your question?

12 Exhibit 30A, I believe it is, is admitted

13 into evidence, without objection. All right.

14 (Government's Exhibit 30A in evidence.)

15 THE COURT: Let's move on.

16 BY MRS. MILLER:

17 Q. Mr. Brennan, you have told us that oxygen

18 generators -- how oxygen generators initiate. Is

19 there any other manner in which an oxygen generator

20 can initiate?

21 A. Yes.

22 Q. What is that?

23 A. Well, if you get it hot enough, physically hot

24 enough to start the reaction, even though you don't

25 pull the pin and hit the percussion cap, the generator

BRENNAN - DIRECT (MRS. MILLER)

35

1 will start producing oxygen.

2 Q. Are you speaking of heat that is generated --

3 that is applied from the inside or the outside of the

4 generator?

5 A. It doesn't really matter, as long as you apply

6 the heat. But I don't know how you get the heat on

7 the inside.

8 Typically you think about heat coming from

9 the outside getting into it, heating it up. And you

10 get to the point where you've got it hot enough so the

11 reaction starts, and it starts and produces oxygen.

12 Q. Mr. Brennan, what, if any, role did you have with

13 regard to the events and the aftermath of the crash of

14 ValuJet flight 592?

15 A. Well, the NTSB requested our company to

16 participate in the accident investigation, and I was

17 sent to Miami and I reported to the hazardous material

18 subcommittee chairman of the NTSB, Mr. Henderson, and

19 I worked with Mr. Henderson until the NTSB released us

20 from the investigation.

21 Q. During the course of that investigation, did you

22 have occasion to observe any portions of oxygen

23 generators?

24 A. Yes, I did.

25 MRS. MILLER: If I could have a moment to

BRENNAN - DIRECT (MRS. MILLER)

36

1 show these to counsel, Your Honor, please?

2 THE COURT: All right.

3 (Pause)

4 Q. I am handing you five reproductions of certain

5 photographs, Mr. Brennan, and I would ask you to turn

6 your attention first, please, to the small pictures,

7 59O and 59I.

8 A. Yes.

9 Q. Do you recognize any of the items depicted in

10 those photographs?

11 A. Yes, ma'am.

12 Q. What do you recognize them to be?

13 A. 59O shows a pair of very damaged Scott oxygen

14 generators.

15 And 59I shows a single very mangled Scott

16 oxygen generator.

17 Q. And do you recognize those as Scott generators?

18 A. Yes, I do.

19 Q. Would you please turn your attention now to 54E,

20 54K and 54F.

21 A. Yes, ma'am.

22 Q. Do you recognize anything of those photographs?

23 A. (Pause while examining photographs.)

24 Yes, I do.

25 Q. What do you recognize in those photographs?

BRENNAN - DIRECT (MRS. MILLER)

37

1 A. Again, damaged, crushed and torn Scott oxygen

2 generators.

3 Q. And how do you know that they are Scott oxygen

4 generators?

5 A. Well, you can see the labels in most of the

6 pictures; and in some of them -- you can even see a

7 little inspection stamp in one of them here.

8 They are Scott oxygen generators, as near

9 as I can tell.

10 Q. And at the top of those pictures does there

11 appear certain information corresponding to the labels

12 on those Scott oxygen generators?

13 A. Well, the labels aren't all that clear. There is

14 information that would correspond. There is a serial

15 number up on top of these. It is different.

16 There is one where you can make the serial

17 number out. The others, I would need a magnifying

18 glass. But there is a serial number up on the top.

19 Q. Which is the one you can make the serial number

20 out?

21 A. The one that says, "Oxygen generator" --

22 THE COURT: He has been testifying for five

23 minutes about a document that is not yet in evidence.

24 MRS. MILLER: I am trying to lay the

25 foundation.

BRENNAN - DIRECT (MRS. MILLER)

38

1 THE COURT: Ask him if he knows what they

2 are, if he recognizes it and identifies it. Then you

3 offer it into evidence. If he tells us what it is,

4 which tape is missing out, what is there, what is not,

5 then you don't need it in evidence.

6 Is there any objection to these documents,

7 these photographs?

8 (Off-the-record discussion among counsel.)

9 THE COURT: Hearing none, they are admitted

10 into evidence as Government Exhibit Number -- what

11 number?

12 MRS. MILLER: 59O, 59I, 54E, 54K and 54F.

13 THE COURT: They are each admitted into

14 evidence on those numbers.

15 (Government's Exhibits 59O, 59I, 54E, 54K

16 and 54F in evidence.)

17 THE COURT: Now he can talk about them and

18 show them to the jury or anything you want to do with

19 them.

20 BY MRS. MILLER:

21 Q. Mr. Brennan, so that the jury can see, I am

22 placing a larger version of 54E on the easel. If you

23 can just use your smaller version on the witness

24 stand.

25 A. Yes, ma'am.

BRENNAN - DIRECT (MRS. MILLER)

39

1 Q. Would you tell us, please, in which of these four

2 pictures do you see the serial number?

3 A. In the lower left-hand corner of the four is a

4 close-up of a Scott Iden label. And in the second box

5 from the top is where the serial number goes, and you

6 can read it.

7 Q. Now, Mr. Brennan, I would ask you to step down to

8 the easel. I am going to give you the pointer,

9 please.

10 And with regard to Government Exhibits 54K

11 and 54F, which are leaning against the easel, could

12 you look at them, please, and tell us what, if any --

13 where, if at all, you can see any remains of the

14 percussion cap.

15 A. Just the top or both pictures ma'am?

16 Q. First do 54K.

17 Could you indicate to us where, if at all,

18 on this photograph you see anything that relates to

19 the percussion cap of the Scott Aviation generator.

20 A. Yes. Clearly in the top two views, that's a

21 copper-colored circle here and here. This is the same

22 generator, just a closer view. That's the percussion

23 cap.

24 Q. Is the percussion cap depicted in that picture,

25 is it convex, that is rounded out, or concave, or

BRENNAN - DIRECT (MRS. MILLER)

40

1 rounded in?

2 A. It is slightly convex. It is slightly rounded

3 out.

4 Q. What does that indicate with regard to the

5 condition of the percussion cap?

6 A. Well, that is what they look like when they had

7 not been struck. Looking at the picture, I would say

8 that one has not been struck because it looks like

9 what it should look like when they are not struck.

10 Q. Now I would ask you to turn your attention,

11 please, to 54F. And tell us where, if at all, on that

12 photograph, show us with the pointer, is there any

13 indication depicting a Scott Aviation percussion cap?

14 A. In three of the four, you can see it here at the

15 end of the -- this is a closer view, and it simply got

16 really, really close here.

17 That's it. It is inside that inner circle,

18 that round kind of coppery-colored thing.

19 Q. And is the percussion cap you see in 54F convex

20 or concave?

21 A. In this photograph it appears definitely

22 concave. That little round little mark in the center

23 right there (pointing), it is dished in.

24 Q. What is the significance of the concave shape?

25 A. That's the way they look when they have been

BRENNAN - DIRECT (MRS. MILLER)

41

1 struck by the hammer.

2 Q. If you could resume your seat, please,

3 Mr. Brennan.

4 A. (Resuming seat.)

5 Q. Mr. Brennan, among the wreckage of the flight

6 ValuJet 592, what, if anything, did you observe with

7 regard to any burning of oxygen generators, their

8 physical structure?

9 A. Well, there were several that appeared to have

10 soot on them.

11 MRS. MOSKOWITZ: Objection. Foundation.

12 THE COURT: Yes.

13 Q. Let me just ask about -- withdrawn.

14 With regard to wreckage that you saw from

15 ValuJet crash 592, and specifically wreckage you

16 recognized as oxygen generator pieces, can you

17 describe to us physically what, if anything, you saw

18 about any condition of stainless steel?

19 A. Well, most of the pieces I looked at were badly

20 crushed and torn. One of the pieces that I looked at

21 had what they sometimes refer to as lacing, in the

22 edge of it. Little round holes in the stainless steel

23 that were not torn or punched. It looked like the

24 stainless steel --

25 Q. Don't tell us what it looked like. Physically

BRENNAN - DIRECT (MRS. MILLER)

42

1 describe it.

2 A. The edge of the stainless steel showed little

3 round holes. If you hold it right up to the light,

4 you can see the little holes; and they were not sharp-

5 edged, they were round-edged holes.

6 Q. So they were not mechanically produced; is that

7 what you are saying?

8 A. Yes.

9 MRS. MILLER: I have no further questions

10 for this witness, Your Honor.

11 THE COURT: All right.

12 Mrs. Moskowitz, for the defendant

13 Florence.

14 CROSS-EXAMINATION

15 BY MRS. MOSKOWITZ:

16 Q. Mr. Brennan, you have worked with Scott your

17 entire career, correct?

18 A. Well, I was a professional photographer before I

19 went to work for Scott.

20 Q. You were still in college when you went to work

21 for Scott?

22 A. I was -- yes, I was in college at the time.

23 Q. And you have worked there for 35 years.

24 A. Thirty-four, yes, ma'am.

25 Q. And you are Scott's party representative to the

BRENNAN - CROSS (MOSKOWITZ)

43

1 NTSB investigation of this accident, correct?

2 A. That's correct.

3 Q. And you know that Scott has been sued in various

4 civil actions by family members, correct?

5 A. I know that Scott has been sued as a result of

6 that crash, yes, ma'am.

7 Q. You were the Scott representative in depositions

8 in that case, correct?

9 A. Yes, ma'am.

10 Q. And, of course, it is in Scott's interest to have

11 somebody else be liable for that accident, right?

12 A. I'm not sure I follow you, ma'am.

13 Q. Well, those are litigations trying to get money,

14 right? People are seeking compensation, correct, for

15 their losses?

16 A. Yes, I believe so.

17 Q. And they are seeking compensation from Scott.

18 A. We are named in the suit. That's all I can tell

19 you.

20 Q. As a defendant, correct?

21 A. Yes.

22 Q. Sir, oxygen generators are not designed to be

23 dangerous; are they?

24 A. They are not -- they are designed to give oxygen

25 when they are activated.

BRENNAN - CROSS (MOSKOWITZ)

44

1 Q. They are designed to ride just a few inches above

2 passengers' heads in airplanes, correct?

3 A. Yes, ma'am, that is where they are put, and also

4 put in seat backs.

5 Q. And when they are put either in seat backs or

6 above passengers' heads, they don't have shipping caps

7 or safety caps on them then; do they?

8 A. That's right. If they did, they wouldn't work.

9 Q. Right. So, if they had them on there, when you

10 pulled them, you wouldn't get any oxygen, right?

11 A. That's correct.

12 Q. So they would have to be up there without

13 shipping caps?

14 A. That is correct.

15 Q. And you don't want -- they get jostled around up

16 there, right?

17 A. Not to my knowledge. They are subject to some

18 vibration, but they are mounted in a passenger unit,

19 passenger service unit, and they are not jostled, as

20 far as I understand it.

21 Q. Sir, didn't you tell that -- didn't you speak

22 with Miss Fruge in July of 1996, and didn't you tell

23 her the generators have a statistically determined

24 finite life due to the physical jolting and jostling

25 of landing and taking off of the aircraft?

BRENNAN - CROSS (MOSKOWITZ)

45

1 A. The aircraft gets jostled. We see the vibration

2 result of it. That is one of the big factors in

3 setting the --

4 Q. Because the oxygen generators might have

5 become -- might get loose, might lose their

6 effectivity, something could happen to them, so you

7 want to make sure they can operate right?

8 A. You have in there, "getting loose." As far as I

9 know, the oxygen generators don't -- can't get loose

10 when they are up in the overhead.

11 The vibration that is transmitted to the

12 oxygen generator by the landing, take off and general

13 vibration of the plane, is what we are concerned

14 about. And there is a vibration spec on the

15 generators. But, as far as I know, the generators are

16 certainly not intended ever to be loose in the PSU

17 compartments.

18 Q. But they get these vibrations, landing, take off,

19 turbulence, correct?

20 A. Correct.

21 Q. You don't anticipate those will set them off

22 accidentally, correct?

23 A. Should not.

24 Q. In fact, you have to pull fairly hard to get an

25 oxygen generator to work, right?

BRENNAN - CROSS (MOSKOWITZ)

46

1 A. No. The specification is 1 pound of pull, at

2 that time, to 4 pounds. It has been changed by

3 McDonnell Douglas to now 1 to 7 pounds of pull. That

4 is not a lot of pull, ma'am.

5 Q. So, if somebody just sort of tugged on the

6 lanyard a little, that would pull out the pin?

7 A. Yes, as long as you are between 1 and 4 pounds.

8 Q. Sir, the firing pin, is that the same thing as

9 the pull pin?

10 A. The pull pin is what you saw me pull back on the

11 screen, okay? I would not use the term generally

12 "firing pin" for that. The hammer may sometimes be

13 called the firing pin.

14 Q. The government referred to the firing pin and the

15 pull pin by the same terms; is that not correct?

16 A. I normally would not call that pin a firing pin.

17 I would call it a pull pin, but you call it what you

18 want.

19 Q. What does McDonnell Douglas call it?

20 A. I don't know. You will have to see what they

21 call it.

22 Q. When McDonnell Douglas says "firing pin," what

23 are they referring to in the maintenance manual?

24 A. I would expect they were referring to the hammer.

25 But you have to ask McDonnell Douglas.

BRENNAN - CROSS (MOSKOWITZ)

47

1 Q. Are you not familiar with the maintenance manual

2 that the mechanics use?

3 A. No, ma'am. I became familiar with some of the

4 pages through the course of the investigation. But I

5 am not familiar with McDonnell Douglas's maintenance

6 manual.

7 Q. Scott had no responsibility, in your view, to

8 make sure that the directions in the maintenance

9 manual were clear for mechanics operating under it?

10 THE COURT: These are asking more of

11 opinion-type questions. He is not an expert, not been

12 declared to be one. He says he doesn't know what is

13 in the manual. Now, that is a fact.

14 Asking him whether it is his company's

15 responsibility to be familiar with it is an opinion.

16 So I think we ought to stick with the facts, whatever

17 the -- what are the facts he knows.

18 Q. You testified that the oxygen generator is a

19 hazardous material, correct?

20 A. It is a hazardous material for shipment, yes,

21 ma'am.

22 Q. Does the generator say on it anyplace that it is

23 a hazardous material?

24 A. No, ma'am.

25 Q. Did it say on it in 1987 that it was a hazardous

BRENNAN - CROSS (MOSKOWITZ)

48

1 material?

2 A. No, ma'am.

3 Q. Did it say on it in 1996 on your generator that

4 it was a hazardous material?

5 A. No, ma'am.

6 Q. Did the box that generators come in say anyplace

7 it is a hazardous material?

8 A. Yes, ma'am.

9 Q. Where did it say it is a hazardous material?

10 A. The diamond label we just looked at here, the box

11 says the UN number for hazardous material, the boxes,

12 the marks, to indicate it is a hazardous material.

13 Q. Does the box have the words on it "hazardous

14 material"?

15 A. No, ma'am. They have the marks called for to

16 indicate hazardous material.

17 MRS. MOSKOWITZ: Your Honor, may I approach

18 the witness?

19 THE COURT: Yes.

20 Q. Let me show you what we have marked as

21 Defendant's Exhibit 1 and ask you if you recognize

22 that document. (Handing to the witness.)

23 Sir, do you recognize that document?

24 A. Yes, I believe I do.

25 Q. That's the MSDS, or the material safety data

BRENNAN - CROSS (MOSKOWITZ)

49

1 sheet, regarding your oxygen generators, correct?

2 A. Well, this is the material safety data sheet that

3 applies to the -- to some of the oxygen generators.

4 The -22, -32, -34, -81, -82, -83 and -84 models, yes,

5 ma'am.

6 Q. Is it the material safety data sheet that applies

7 to oxygen generators to be installed in MD-80s?

8 A. Well, it depends on which part number generator

9 you are putting in. As I said, this sheet will refer

10 to the ones that are -- they are all 801386s. This

11 sheet covers the ones that have dash numbers, 22, 32,

12 34, 81, 82, 83 and 84.

13 Q. And those are designed for McDonnell Douglas

14 aircraft; is that correct?

15 A. They are designed for McDonnell Douglas aircraft,

16 yes, ma'am.

17 Q. The material safety data sheet is the sheet that

18 describes what is hazardous about hazardous materials,

19 correct?

20 A. I am not sure I -- material safety data sheet is

21 to provide the information required for hazard

22 identification for the workplace for products sent

23 into the workplace. I am not sure that is what you

24 just said.

25 Q. We'll take it your way then, sir.

BRENNAN - CROSS (MOSKOWITZ)

50

1 It is dated November 30, 1995 correct?

2 A. This one is, yes, ma'am.

3 MRS. MOSKOWITZ: I move the admission of

4 Defendant Exhibit 1, Your Honor.

5 MRS. MILLER: No objection.

6 THE COURT: Normally, of course, the

7 defense exhibits would come in on the defense side of

8 the case; but if there is no objection, then the

9 document will be admitted as Defense Exhibit 1. That

10 is, Defendant Florence Exhibit 1. All right.

11 (Defendant Florence's Exhibit 1 in

12 evidence.)

13 BY MRS. MOSKOWITZ:

14 Q. Let met direct your attention, sir, to page 2 of

15 this document. It says, "fire-fighting measures"?

16 A. Yes, ma'am.

17 Q. What does it say where it says, "flash point"?

18 A. NA.

19 Q. What does NA mean?

20 A. That means this is a solid material, there is no

21 flash point for solid material.

22 Q. And what does it say after "flammable limits"?

23 A. NA. It is not a gaseous material, so there is no

24 flammable limit.

25 Q. And what does it say after "autoignition

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51

1 temperature"?

2 A. NA.

3 Q. So it means it is not applicable, no autoignition

4 temperature is applicable, correct?

5 A. Correct. This is an oxidizer, not a flammable,

6 so there is no autoignition to them.

7 Q. How about the OSHA flammability classification?

8 A. Again, it is an oxidizer, so it is NA.

9 Q. Is there anyplace on here that says -- let's

10 see. Handling and storage. Storage temperature.

11 What does it say for storage temperature?

12 A. That's the next page?

13 Q. Yes, sir, page 3.

14 A. "Room temperature."

15 Q. Does it say anything in there about special

16 storage or handling for this generator?

17 MRS. MILLER: Objection, Your Honor. The

18 question was about storage temperature.

19 MRS. MOSKOWITZ: Well, we answered that

20 one.

21 THE COURT: Actually, all he is doing right

22 now is reading from a document to the jury. And the

23 document is in evidence and the jury can look at it

24 and see it.

25 Perhaps a summary question about these

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52

1 matters, for example, the handling and storage.

2 Is there anything in the document anywhere

3 that indicates to whoever is reading that document

4 that this generator needs some special storage above

5 and beyond room temperature, normal handling?

6 THE WITNESS: Your Honor, under "General,"

7 it says, "Do not store in wet or moist areas," because

8 water will affect it, yes. It says, "Do not store in

9 wet or moist areas."

10 THE COURT: So that's the only instruction

11 in the document that you can see that would alert

12 someone who is reading the document that this needed

13 some special handling?

14 THE WITNESS: No, because the document is

15 broken up into sections. And under, "Stability and

16 reactivity," it says "Avoid storing, mixing or

17 contaminating with chemicals, mineral acids and

18 combustible materials. Incompatibility is oils,

19 organic metals and acids."

20 And I think there is something else on

21 storage in here. (Pause) Yeah, it gives the hazard

22 class, the UN number, which guides you in storing its

23 compatibilities.

24 THE COURT: Mrs. Moskowitz.

25 BY MRS. MOSKOWITZ:

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53

1 Q. Is there anything in that document that says

2 anything about shipping caps or safety caps, sir?

3 A. Not in this document, no, ma'am.

4 Q. Sir, when -- Scott provides shipping caps or

5 safety caps as part of its product line, right?

6 A. Excuse me?

7 Q. Scott provides as part of its produce line

8 shipping caps and safety caps, correct?

9 A. Do you mean if we sell them separately? Yes, we

10 do.

11 Q. Yes, you sell them separately from the generators

12 themselves, correct?

13 A. We put them on all new generators. We also have

14 them available as a separate item, yes, ma'am.

15 Q. Of course, you know that when somebody, either

16 repair station or an airline itself, installs new

17 generators, it has to keep the cap on that new

18 generator until the generator is ready to go into

19 service, correct?

20 A. The caps' got to be on until you are ready to use

21 the generator, to make it ready for use. That much I

22 know, yes, ma'am.

23 Q. And, so, if somebody is taking off an old

24 generator, they have to have a different cap to take

25 off the old generator than the cap that is on the new

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54

1 generator, correct?

2 A. Unless they expend or unless they are taking it

3 off an expended generator or they expend the generator

4 before they take it off, the instructions are to cap

5 it, yes.

6 Q. You wouldn't recommend expending the generator

7 before they take it off the plane; would you?

8 A. I don't see why not. It is designed to run in

9 that compartment. I am not McDonnell Douglas. I

10 don't know what their practices are. But there is no

11 reason in the world why you couldn't just open the

12 door as you would in flight, pull the pin, expend the

13 generator, then take the generator -- take the

14 expended generator out.

15 Q. Oxygen generators can burn from the outside in,

16 correct?

17 A. I am not sure what you mean. You can set off an

18 oxygen generator from outside heat.

19 Q. External heat can cause an oxygen generator to

20 begin to produce oxygen, correct?

21 A. Yes, ma'am.

22 Q. And, in fact, you could also set off a generator

23 by external heat being applied to the percussion cap,

24 correct?

25 A. My experience says it will start, sometimes, not

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55

1 if the hammer is not down, yes, ma'am.

2 Q. If -- it has been tested by Scott and determined

3 that the percussion cap can get set off at 302

4 degrees, right?

5 A. That's correct. I am not sure about the real

6 number. It is around 300.

7 Q. So it might happen at 298, right?

8 A. I don't have all that stuff memorized.

9 Q. And if that happens, the generator may at that

10 time become activated, correct?

11 A. It may or may not, yes.

12 Q. Sir, what temperature do plastic shipping caps

13 melt at?

14 A. That's -- (pause) They begin melting at around

15 350, I believe, for that material. At least begin

16 softening at 350.

17 Q. Sir, there have been reported incidents reported

18 to Scott where electrical arcing caused a generator to

19 become activated, correct?

20 A. Are you referring to incidents? I am aware of

21 one.

22 Q. A Scandinavian aircraft incident?

23 A. It was in Europe somewhere, and the report was

24 that a shorted power line shorting -- I guess arcing

25 the generator was the cause -- caused the generator to

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56

1 initiate.

2 Q. Sir, before the time of this accident, did Scott

3 send out to its customers instructions on how

4 generators should be shipped and handled?

5 A. Well, Scott has sent out several service

6 bulletins. I don't know which ones you are referring

7 to.

8 Q. Service bulletins go to operators, correct?

9 A. Well, certainly -- in the aviation, civil

10 aviation like this, the service bulletin goes to the

11 certifier of the part, which is generally the aircraft

12 manufacturer. And then he, in turn, distributes it to

13 all the people who are registered owners of the

14 aircraft.

15 MRS. MOSKOWITZ: I have to object. That is

16 not responsive.

17 Q. You don't know what the second level does with

18 them, correct?

19 A. Well, yes. I am told they will distribute to

20 service bulletins. We go to the operators and the

21 operators go to the user.

22 I'm sorry, we go to the customers --

23 THE COURT: The difficulty with all this

24 is, if you ask the question, it is hard for me to

25 strike the answer.

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57

1 The best way to do it is just not to ask

2 the question about these things.

3 Try to limit your answer to what she is

4 saying.

5 Move onto your next question, please.

6 MRS. MOSKOWITZ: I will, Your Honor.

7 If I may approach the witness, Your Honor?

8 THE COURT: Yes, indeed.

9 Q. If I can show you what we marked for

10 identification as Defendant Florence Exhibit 2, and I

11 will ask you if you recognize that document, sir.

12 A. (Pause)

13 Yes, I do.

14 Q. What is that?

15 A. That's a letter to OEMs and distributors that was

16 sent out in '97.

17 Q. What is an EOM?

18 A. That's what the McDonnell Douglas, a Boeing, a

19 Lockheed.

20 MRS. MOSKOWITZ: Your Honor, I move the

21 admission of Defendant's Exhibit 2.

22 MRS. MILLER: Objection, Your Honor. It is

23 dated after the events of our case. There is no

24 showing of relevance. This is October 1 --

25 THE COURT: I will hear from you -- I will

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58

1 reserve ruling. I will hear from you the next

2 recess. Defendant's Exhibit 2B.

3 MRS. MOSKOWITZ: May I inquire about the

4 document, Your Honor?

5 THE COURT: Not without showing its

6 relevancy, and we don't want to argue that in front of

7 the jury. We can excuse the jury, argue the issue,

8 and bring them back.

9 MRS. MOSKOWITZ: It is okay. If I can

10 publish it later, Your Honor --

11 THE COURT: If it is admitted, you can

12 publish it. If not, you can't.

13 MRS. MOSKOWITZ: Fine. With the Court's

14 indulgence.

15 THE COURT: All right.

16 MRS. MOSKOWITZ: (Pause)

17 I have nothing further, Your Honor.

18 THE COURT: All right.

19 Ms. Raskin, if I may interrupt you. You

20 are going to be next, are you?

21 MS. RASKIN: Yes, Your Honor.

22 THE COURT: If it is convenient, we'll take

23 a brief recess at this time. It is now 10:42. We'll

24 take a short recess, ladies and gentlemen. If you

25 will step into the jury room.

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1 (The jury left the courtroom at 10:42 a.m.)

2 THE COURT: What is the materiality of this

3 document that, according to Mrs. Miller's brief

4 statement, was issued after the tragedy, the

5 accident?

6 MRS. MOSKOWITZ: Your Honor, it is our

7 position that in the industry there really wasn't

8 information out for people like Mr. Florence to know

9 the dangers of this equipment. And a lot of these

10 issues about whether it is hazardous material, whether

11 he had anything to do with mishandling, depend upon

12 that.

13 Since the accident, many, many things have

14 changed. And among them are Scott, which took no

15 responsibility to do anything like this before, sends

16 out to its customers a multipage single-spaced

17 document which describes in detail how these items

18 should be packaged and handled, and something which,

19 of course, if it had been sent out earlier, might have

20 changed things dramatically.

21 THE COURT: All right. The objection is

22 sustained. The document will be marked for

23 identification, but not admitted into evidence.

24 Now, so that we may have integrity of the

25 record and complete control of these exhibits, I will

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1 require the parties to hand up the document to the

2 courtroom deputy, if she is present in court. She is

3 excused from time to time to attend other duties.

4 If she is not in court, then I will be ask

5 they be handed to her for marking at each recess.

6 Then they will be available on the table,

7 counsel table, in front of the courtroom deputy and

8 Court Reporter, for use by all lawyers.

9 I do not want the lawyers to be put to the

10 burden of having to go to each others' tables to ask

11 for some exhibit, and that they wish to cross-examine,

12 and we have to rout through boxes and barrels and so

13 on. So we will just maintain this exhibit table right

14 in front of the courtroom deputy.

15 Now, the record should be clear that thus

16 far, on November 16, that is, yesterday, there were

17 three exhibits admitted into evidence, according to my

18 records. They are Exhibit 30F -- these are Government

19 Exhibits -- Government Exhibit 30F like in Frank,

20 Government Exhibit 31, Government Exhibit 32.

21 Today, November 17, there have been

22 admitted into evidence the following exhibits:

23 Government Exhibit 30A, B, C, and D; Government

24 Exhibit 54A, B, K, and a jumble of other numbers that

25 I didn't catch. But it is Government Exhibit 54.

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61

1 And Defense Florence Exhibit Number 1.

2 Those have all been admitted into evidence.

3 Defense Florence Exhibit Number 2 will be

4 marked for identification and maintained by the Clerk

5 of Court. It is not admitted. It has not been

6 admitted into evidence.

7 The exhibits that I have just enumerated, I

8 will now require counsel to deliver to the clerk so

9 that she may mark them as admitted into evidence, and

10 then they may be maintained on the table in front of

11 her desk.

12 I am advised by the courtroom deputy,

13 Government Exhibit Number 1 was admitted yesterday.

14 At this point in time during the recess,

15 will you please furnish those documents and/or

16 exhibits, whatever they may be, to the clerk so that

17 she can mark them in evidence. Thank you.

18 MRS. MILLER: Your Honor, there were other

19 exhibits also. 30E --

20 THE COURT: Well, if you will hand them to

21 her, have them marked with her initials. Otherwise we

22 are going to -- this thing will rapidly degenerate --

23 MRS. MILLER: That's why he wanted to make

24 clear on the record, 30E was also admitted during the

25 testimony of Mr. Brennan, the yellow oxidizer label.

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62

1 THE COURT: All right. 30E then will be

2 included in that group. If you will hand them to the

3 clerk. Thank you.

4 (Court recessed at 10:46 a.m.)

5 (Court reconvened the 11:12 a.m., out of

6 the presence of the jury.)

7 THE COURT: Before we bring the jury in,

8 let me advise you that -- and I really hate to tell

9 you that I told you so; but, sure enough, the jury

10 today has advised my staff one of them has asked the

11 question about whether or not -- that person, I don't

12 know whether it is a man or woman, I don't know who it

13 is, it doesn't matter; but one of them wants to take

14 notes.

15 What is your position with respect to note

16 taking at this point? We have a jury asking to take

17 notes. For the government, any objection?

18 MRS. MILLER: No, Your Honor, we have had

19 no objection.

20 THE COURT: All right.

21 For the defense?

22 MRS. MOSKOWITZ: Yes, Your Honor, we

23 object.

24 THE COURT: The objection is overruled.

25 Bring them in. I will give a standard

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63

1 instruction to them.

2 It is my firm belief, in having dealt with

3 hundreds if not thousands of jurors, juries, all we

4 can do to accommodate their request -- two of them

5 wanted to go down for a smoke, we sent them down with

6 the Marshal. We try to accommodate them as best we

7 can, because we think a happy juror, like a happy

8 child or even a happy lawyer, is much easier to deal

9 with.

10 I will give the standard instruction

11 regarding note taking.

12 (The jury entered the courtroom at 11:13

13 a.m.)

14 THE COURT: Ladies and gentlemen, I

15 understand that someone on the jury has asked the

16 clerk or the Marshal about taking notes by members of

17 the jury during the trial. If you would like to take

18 notes during the trial, you may of course do so, and

19 the clerk will provide notebooks and pens or pencils

20 for those of you -- for each of you, or all of you --

21 for those who wish to take notes to do so.

22 On the other hand, of course, you are not

23 required to take notes if you prefer not to do so.

24 That is entirely left up to you individually.

25 I do wish to instruct you, however, that if

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64

1 you do take notes, be careful so as to not get so

2 involved in the note taking that you become distracted

3 from observing the witness, the demeanor of the

4 witness while he or she testifies, and observe what is

5 going on in the courtroom.

6 But don't try to summarize all of the

7 testimony as you do your note taking. Jot down those

8 things that you think -- those of you that take notes,

9 jot down those things that you think are important,

10 perhaps a date, perhaps a number, perhaps something

11 you think that is important that will help you

12 remember whatever it is that you are -- that

13 particularly you want to make note of at that time

14 later on when you go back and look over your notes.

15 Sometimes it is difficult to remember

16 dates, times, amounts of measurements, identities or

17 relationships. But, remember, you must decide upon

18 the credibility or believability of each witness; and

19 you must, therefore, observe the demeanor and

20 appearance of the witness while testifying. And

21 taking notes may distract you from that important

22 task.

23 Also, your notes should be used only as

24 memory aids. You should not give your notes

25 precedence over your independent recollection of the

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65

1 evidence. And whether you take notes or not, you

2 should rely upon your own independent recollection of

3 the facts and the proceedings, and not be unduly

4 influenced by the notes of other jurors.

5 I emphasize, and this is most important,

6 that the notes are not entitled to any greater weight

7 than the memory or impression of each juror as to what

8 the testimony was. When you get in the jury room, the

9 fact somebody has notes does not give that person any

10 greater position over anybody else.

11 So, with all that being said -- I told you

12 the pros and cons. There has been a great deal of

13 literature on the subject written over the years.

14 There was a big controversy in the federal system

15 years ago, and some judges feel that notes are very,

16 very important in the case, and other judges think it

17 might cause you to be distracted from observing the

18 truthfulness and demeanor of the witnesses, and so

19 forth.

20 On balance, it is going to take -- well, we

21 are not sure, but up to six weeks, let's say. It may

22 be that you have a comfort level about having made

23 some notes throughout the trial that will help you at

24 the end. And if you want to do that, that is fine.

25 If you don't want to do that, that is fine.

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66

1 So, at this point in time, my courtroom

2 deputy has some pads and pencils for you.

3 If you like to just have a pad to make one

4 line a day or fill up the book a day, you can do so.

5 Don't feel obliged to do it; but if you

6 want to, there they are.

7 All right, let's get back with the witness,

8 Mr. Brennan.

9 Okay, Mrs. Raskin.

10 CROSS-EXAMINATION

11 BY MRS. RASKIN:

12 Q. Mr. Brennan, I believe you testified during your

13 direct examination that Scott began manufacturing

14 generators we have been speaking about this morning in

15 the early '70s?

16 A. Yes, ma'am.

17 Q. And at or about that time, sir, Scott made an

18 application to the Bureau of Explosives, did it not,

19 for approval to ship those generators?

20 A. Yes, it did, ma'am.

21 Q. And without the approval of the Bureau of

22 Explosives, Scott would have been forbidden to ship

23 those generators; isn't that correct, sir?

24 A. That assembly like that needs classification.

25 Without the classification, you are not supposed to

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67

1 ship them, that is correct.

2 Q. And that's because the generator contains the

3 explosive and the percussion cap you discussed during

4 your direct examination; isn't that right, sir?

5 A. It precludes a percussion cap. If you include a

6 cap in your product, you have to submit it to the

7 Bureau of Explosives for classification before you are

8 allowed to ship the product.

9 Q. Because it has an explosive component, correct?

10 A. I don't know how to answer that. The percussion

11 cap makes a bang and puts out like a flame. But it is

12 a regulatory thing, and I am not sure that I really

13 understand all the definitions that they put on the

14 word "explosive." To me it is the same as a cap.

15 Q. I don't need you to tell us every definition.

16 But you are in charge of regulatory compliance; isn't

17 that correct?

18 A. Yes.

19 Q. And you are generally familiar with what the DOT

20 regulations require in terms of classifications; isn't

21 that correct?

22 A. Yes, ma'am.

23 Q. And prior to the DOT assuming direct

24 responsibility for that, you are aware of the fact

25 that it was the Bureau of Explosives that classified

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68

1 materials such as this?

2 A. That is correct.

3 Q. And it is your understanding, sir, that it was

4 the explosive component of that generator that

5 required Scott initially to go to the Bureau of

6 Explosives and seek an approval before it could ship

7 the generators?

8 A. That the percussion caps have to be submitted for

9 classification, is my understanding.

10 It is not shipped as an explosive after it

11 is classified. I don't know anything past that.

12 Q. I am simply asking whether it was your

13 understanding that the reason why the classification

14 needed to be approved was because of the presence of

15 the explosive in the generator.

16 A. Because of the presence of the percussion cap,

17 that you have to go get the item classified.

18 Q. Well, sir, in fact, you did get an approval by

19 the Bureau of Explosives? And by "you," I am

20 referring to Scott Aviation.

21 A. Yes, we got a classification letter.

22 Q. And that letter authorized you to apply a

23 shipping name to the generators of flammable solid;

24 did it not?

25 A. I believe that was in the original letter, yes,

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69

1 ma'am.

2 Q. And that the classification would also be

3 flammable solid followed by NOS, correct, sir?

4 A. I think that is correct, yes, ma'am.

5 Q. Now, sir, you testified on direct examination as

6 to the appearance of the DOT placard that represents

7 the warning label as you described it for oxidizers.

8 Are you also familiar, sir, with what the

9 DOT placard governing flammable solids was during

10 1996?

11 A. I have to look it up. Off the top of my head I

12 wouldn't be able to describe it to you.

13 Q. Might I refresh your recollection by showing you

14 something and asking you whether that helps?

15 A. I will try.

16 MS. RASKIN: May I approach the witness,

17 Your Honor?

18 THE COURT: Yes.

19 A. Again, I recognize the placard after looking for

20 it. It is not the placard we use.

21 Q. But do you recognize it as the placard that

22 describes a flammable solid, sir?

23 A. It gives a Hazard Class 4 at the bottom. We

24 don't have Hazard Classes 4. I have to look it up to

25 see what it really describes. All I know, you showed

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70

1 me a placard for Hazard Class 4.

2 Q. Now, sir, after having obtained this approval

3 from the Bureau of Explosives in 1970, sir, you did,

4 in fact, use the shipping name flammable solid and the

5 classification flammable solid for a period of time,

6 correct?

7 A. For a period of time, yes, ma'am.

8 Q. And there came a time thereafter, did there not,

9 when Scott ceased using a shipping name flammable

10 solid and the classification flammable solid NOS, and

11 started instead to use the shipping name sodium

12 chlorate, and the classification, oxidizer 5.1?

13 A. That is correct.

14 Q. When Scott made the decision to start using these

15 different shipping names and shipping classifications,

16 did it return to the Bureau of Explosives and ask

17 permission to use the different names than those that

18 appeared in the original approval, sir?

19 A. I believe it was done because of a change in CFR,

20 not because of anything that the Bureau of --

21 Q. Answer my question, please.

22 A. I am not sure the Bureau of Explosives still --

23 THE COURT: Just a moment. Time out.

24 This gentleman cannot take down what both

25 of you are saying at the same time, nor can the jury

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71

1 probably follow it.

2 So what we'll have to do -- let me ask

3 Mr. Brennan to wait until she has finished her

4 question and then you can answer.

5 Ms. Raskin, please wait until he finishes

6 his answer and then you can ask your next question.

7 All right, let's repeat the question,

8 please.

9 Q. The question, sir, is, when Scott began using a

10 different shipping name and a different shipping

11 classification for the oxygen generators, did it seek

12 approval of the Bureau of Explosives to change the

13 shipping name and the shipping classification?

14 A. To the best of my knowledge, no. But I believe

15 at that point the --

16 Q. And, sir --

17 THE COURT: Wait.

18 To the best of your knowledge, no.

19 Go ahead.

20 A. I believe at that point that was after the change

21 in the CFRs, and the Bureau of Explosives was just one

22 of the agencies you make an original submission to.

23 And I believe we followed the revised CFRs.

24 Q. What revised CFRs are you referring to?

25 A. When they published the table that we referred to

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72

1 yesterday, I believe it was, and the instructions that

2 you are to match the material you are shipping with

3 the table and follow the placarding, etc., in the

4 table.

5 I also -- it was submitted. There is two

6 classification agencies in the United States, the

7 military has their own one separate from the DOT. And

8 the military, I believe, around that same time that we

9 changed to sodium chlorate classification and

10 oxidizing solid was for the military.

11 We did not go to the Bureau of Explosives,

12 but I believe that was after the change in the CFRs,

13 and it was done pursuant to the CFRs.

14 Q. Did you go back to any agency of the Department

15 of Transportation and seek permission to change the

16 classification, sir, during that period of time?

17 A. That period of time, you mean prior to '80? No,

18 I don't believe so.

19 Q. Now, Mr. Brennan, you did at some point in time

20 return to the Department of Transportation and ask

21 whether the shipping name and the classification that

22 you had been using -- and by those I am referring to

23 sodium chlorate oxidizer 5.1, were, in fact, the

24 proper shipping name and classification?

25 MRS. MILLER: I will object to relevance of

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73

1 this line. We are getting far afield into the

2 dealings of this company with government agencies,

3 having nothing to do with --

4 THE COURT: Is this prior to or after the

5 accident?

6 THE WITNESS: Clarification was after the

7 accident, Your Honor.

8 THE COURT: Then I will sustain the

9 objection.

10 MS. RASKIN: May I be heard?

11 THE COURT: All right. The jury will step

12 out to the jury room and I will listen to counsel.

13 (The jury left the courtroom at 11:28 a.m.)

14 THE COURT: Yes, ma'am.

15 MS. RASKIN: Your Honor, the government in

16 this case has charged SabreTech with misclassifying

17 and mislabeling these generators.

18 THE COURT: That's correct.

19 MS. RASKIN: The evidence I am going to

20 elicit, Your Honor, tends to show that, according to

21 the Department of Transportation in 1996, the

22 classification that Scott Aviation was using and the

23 classification that Ms. Heck suggests in the

24 Indictment is the correct classification, in fact, was

25 not. The Department of transportation came back and

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74

1 said no, we think you should be calling them something

2 else.

3 I think it goes directly to the fact at

4 issue here; that is, whether these oxygen generators

5 were improperly labeled and handled and, if so, how.

6 THE COURT: I fail to understand. You are

7 asking a series of questions about what his company

8 did to comply with federal regulations after the

9 crash. Now that I submit to you is immaterial just as

10 would be the whole series of cases that says you can't

11 talk about, oh, settlement offers or -- let's change

12 it to civil, take it away from criminal. But the city

13 goes out and repairs a street light immediately after

14 the accident or the city or county sends out -- all

15 those cases that say remedial steps taken after an

16 incident or accident or terrible tragedy are not

17 admissible for the reason that you would discourage

18 any remedial action being taken --

19 I am digressing.

20 This is all after the accident, is my

21 point. I think what we have to deal with here is,

22 what were the regulations in place that governed

23 everybody's conduct up to the time of the accident.

24 What they did after that to straighten things out that

25 may have been in error or not is not the point. The

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1 person to call if you would need that information

2 would be, obviously, the person who issued the

3 regulation or authorized to issue it, somebody from

4 the transportation board or whatever it is that is

5 responsible for issuing those. And let that person

6 take the stand and say, my agency made a horrible

7 mistake before this accident, and we corrected it

8 right after the accident.

9 But even there I am not sure that that is

10 admissible. But at least that would be the point.

11 It wouldn't be what Scott, or ValuJet

12 Airlines or SabreTech Airlines or anybody else did to

13 comply with remedial steps that were taken.

14 That is the basis of my ruling.

15 Do you have any authority that would

16 indicate otherwise that you would like to bring to my

17 attention?

18 MS. RASKIN: As to the subject of remedial

19 measures, I am well aware of the rule to which Your

20 Honor refers. And I would suggest that that rule is

21 meant to apply to situations in which you are

22 attempting to introduce that evidence against a

23 defendant; for example, in a negligence case. And, of

24 course, the public policy behind the rule is that you

25 don't want to discourage people who have been sued

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1 from bettering their products.

2 We don't have that situation here. Scott

3 Aviation is not a party; SabreTech is. And the

4 evidence is being introduced to establish what the

5 intent of SabreTech and its mechanics was at the time

6 with respect to the crimes charged. And clearly

7 relevant to the issue of their intent is what the

8 industry standards were, what the appropriate

9 regulations and approvals were.

10 And what I am trying to show is that there

11 is only one approval, and that approval classifies

12 these things as a flammable solid, not sodium chlorate

13 or an oxidizer. And, indeed, after the crash, the DOT

14 told Scott that what it had been doing at the time of

15 the crash was not appropriate in terms of how it was

16 classified. So, Your Honor --

17 THE COURT: This gets back to a point that

18 I raised with Mrs. Moskowitz and Mrs. Miller at

19 sidebar, the materiality of what Scott was doing prior

20 to the crash.

21 Mrs. Miller -- the government offered

22 evidence on this point to show that they were or were

23 not complying with the regulations, and it was

24 totally -- I still think it was totally immaterial,

25 and nobody objected and it went forward. Now we are

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1 into the morass of trying to show that what they were

2 doing was wrong.

3 It doesn't matter what Scott was doing

4 about shipping hazardous waste. Mrs. Miller suggested

5 at the sidebar that she would tie it up by showing

6 that SabreTech received the materials appropriately

7 marked on the boxes as containing dangerous substances

8 or hazardous waste, or whatever the label was. I am

9 not trying to say what it is, I don't know. And that,

10 therefore, they should have known -- what they should

11 do to ship it in boxes to somebody else.

12 As I indicated at sidebar, I am not sure at

13 all that that is material or I need to get into it.

14 But now you suggest you want to show what

15 the industry standard was industrywide prior to the

16 accident, and by shipping these things. Well, if the

17 industry standard differs from the regulations

18 governing the handling of hazardous waste, what

19 difference does it make?

20 Suppose you prove everybody in the nation

21 was ignoring the regulations. Is that a defense to

22 one individual? Suppose you prove that the government

23 only selected one individual, one company, out of all

24 the companies that were disobeying the regulations.

25 We all know that that is not a defense; that the

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1 government has the right -- city policeman can watch

2 twelve cars go through the red light and pick up the

3 eleventh car. The eleventh car can't defend he broke

4 the law by running the red light, the other ten didn't

5 and he should be excused.

6 It is a human and appealable argument, but

7 it has no place in the presentation of the evidence;

8 certainly the matter after the accident is not.

9 Mrs. Miller, what is the government's

10 position with respect to the materiality of whatever

11 the industry was doing prior to the accident? Is it

12 material at all?

13 MRS. MILLER: It is not what the industry

14 was doing; it is how items were wrapped and packaged

15 that were actually received by SabreTech. And that is

16 specifically going to be proved in this case.

17 THE COURT: Why is that material?

18 MRS. MILLER: Because that shows knowledge

19 by SabreTech of the hazardous nature of the

20 materials.

21 MS. RASKIN: Your Honor --

22 THE COURT: If somebody, a shipping clerk

23 at the loading dock of SabreTech, receives a box and

24 opens it up, and on that box is a label marked "Watch

25 out, C4," or something like that. Not even "watch

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1 out," just "C4," you are suggesting that then charges

2 SabreTech with knowledge up and down the operation

3 with the fact that this thing might be -- or they

4 might be dealing with hazardous material? Is that the

5 test? Or is the test whether or not SabreTech should

6 have known of the CFR regulations governing all of

7 handling hazardous waste?

8 Suppose that there was nothing on the box

9 to indicate that? Would that be a defense for them?

10 Certainly not, if they violated the regulations.

11 MRS. MILLER: It would not be probative in

12 that case.

13 THE COURT: It is not probative in either

14 case. That's the point. If it is not probative as a

15 defense, it is not probative as proof for the

16 government.

17 MRS. MILLER: You asked, if the box said

18 nothing, that would be probative of nothing. If the

19 box said hazardous material, that is probative that

20 SabreTech knows it is hazardous material.

21 THE COURT: Correct. And if it says

22 nothing, they would be entitled to bring in every box

23 that says nothing to show that there was no

24 knowledge.

25 You see, the probative issue you are

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1 talking about is knowledge. You say you wish to offer

2 a box that has the label on it to show knowledge on

3 the part of SabreTech in dealing with hazardous

4 material. They wish to show that they didn't know,

5 and that a lot of the boxes came through with nothing;

6 and/or that the guy that got paid the minimum wage on

7 the loading dock that ripped into the box never went

8 and told the president of the company about it or the

9 mechanics or anybody else.

10 Then we are off onto whether or not all

11 that knowledge got transmitted with that label, got

12 ultimately transmitted to the people who were dealing

13 with the hazardous material, all of which I submit to

14 you -- and I want you to think about this -- has very

15 little to do with whether or not a company who is

16 handling and dealing in these types of materials is

17 charged with knowledge of the national regulations

18 regarding the handling of hazardous waste.

19 Obviously they are, no matter what the

20 six-dollar-an-hour guy -- pardon me, I don't know the

21 minimum wage these days, it may be 7.50 an hour. I

22 hope it is, anyway.

23 Whatever the minimum wage man who unloaded

24 that box, what he knew, what he saw, what he

25 understood, what he transmitted to others, is getting

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1 too far afield. I don't think that is material to

2 anything.

3 If you got a conversation that somebody

4 from the national board called up the president of the

5 company and said, Hey, you guys, you better watch this

6 stuff, it's hazardous, that is probative evidence.

7 But this other thing is so far removed it is opening

8 up -- the defense can come in and rebut that and show

9 all the boxes they got that were not labeled at all,

10 or show the extent of knowledge of the minimum-wage

11 guy at the loading dock of what he did or didn't do

12 after that as far as passing this information along.

13 I just don't think this whole area is

14 material.

15 But getting back to the objection that has

16 been made as to remedial steps taken after the

17 accident, and whether or not Scott complied with

18 anything after the accident or not, the Court is going

19 to rule is immaterial.

20 And when it gets around to -- and, frankly,

21 if somebody on your side will simply make an

22 objection, I believe that it will be sustained.

23 I am not going to prejudge at this point, I

24 am going to listen to both of you. But if somebody

25 would make an objection to whether or not SabreTech at

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1 one of their plants received a box with a label that

2 said C4, and that was supposed to tip everybody off in

3 the world to the fact it is hazardous material, handle

4 with care, I think that is probably going to be

5 sustained in the future, because it just simply is not

6 probative of the point for which it is offered.

7 That's all.

8 It may be proper, it may be something on

9 rebuttal that the government would need to get into if

10 there is some sort of defense brought forth that

11 SabreTech didn't know that this was hazardous. But

12 what Scott did, or, indeed, any other -- let's take, I

13 don't know, pick another airline, one that -- forgive

14 me, Air Florida, or somebody that is not in business

15 today. What they did or didn't do, I don't think it

16 has anything to do with this case. The question is

17 whether or not the company was chargeable with the

18 knowledge of the regulations governing hazardous

19 material.

20 I think -- clearly, I don't think there is

21 any dispute; they weren't chargeable with knowledge.

22 And whether or not a shipping clerk did or did not --

23 a shipping or receiving clerk knew or didn't know, I

24 don't see any sense to that at all.

25 MS. RASKIN: May I make one point directly

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1 as to that?

2 THE COURT: Please do.

3 MS. RASKIN: I think part of the problem is

4 that our position is that the issue is not whether

5 SabreTech is chargeable with knowing or complying with

6 the hazardous materials regulations in this case. We

7 all agree that, as a civil matter, as an

8 administrative matter, it is no defense for a company

9 to say, gee, we didn't know. Ignorance of the law is

10 no excuse. But they have charged willful violations.

11 And in order to establish that, they have to show more

12 than simply the regulations apply to us. They have to

13 show that we knew they applied to us and we

14 disregarded them nonetheless.

15 And, so, in order to defend ourselves in

16 that kind of a context, what we are -- we believe we

17 are entitled to show is that even experts in the

18 industry, even the manufacturers of the generators,

19 were wrong at worst, confused at best, as to what the

20 appropriate classifications for these things are.

21 It is not a collective prosecution

22 argument, Your Honor. That is not our point.

23 THE COURT: That would come after someone

24 takes the stand and says, I didn't know. And at that

25 point in time, then you may wish to offer evidence.

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1 But this comes as a matter of defense. It is not a

2 matter of the government proving it.

3 Once the government has submitted the

4 regulations and I have taken judicial notice of all of

5 that portion of the CFR, once that is in there, the

6 government, I think, has met its burden of

7 establishing at the threshold level there was

8 knowledge these things are hazardous.

9 The government may have to prove that was

10 sent down from the top to the mechanics, but they are

11 not going to prove that, I submit, by offering

12 evidence that Mr. Florence, for example, opened one of

13 the boxes. That to me is so far removed that it is

14 not going to get past a Rule 29. But -- that evidence

15 might come in rebuttal to evidence from the defense

16 that they didn't know anything about the hazardous

17 material. But proving what the industry thought or

18 didn't think, that is all speculative, that is all in

19 people's opinions, people's minds three years after a

20 tragic accident when their opinions change, they got

21 modified, adjust to the facts in light of pending

22 litigation.

23 I'm sorry, I don't think we'll spend six

24 weeks to listening to somebody, whatever they think

25 the regulations meant or are or were. The regulations

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1 are there and the government has to prove that

2 SabreTech knew about it. I think there is a

3 presumption printed that the company knew about it.

4 It may be the government has to prove in some way that

5 got filtered down to the individual supervisors or

6 mechanics who were actually working with the

7 material. And that may be what they got to prove.

8 But I submit to you, they are not going to

9 prove it by somebody saying they mailed a package to

10 them that had labeled hazardous. Suppose they open it

11 up and it had ping-pong balls? You know, this

12 thing -- we have to be -- there has to be some reason

13 to this.

14 But, in any event, what the industry was

15 doing after the accident certainly is not material.

16 What they are doing before the accident may be

17 material if it is first established that there was --

18 that there was no knowledge that these were hazardous

19 materials. I think you have to bring that evidence

20 forward.

21 I think the government has indicated, I

22 don't know what, but in their opening statement they

23 said something -- and you all said something at

24 length -- Mr. Dunlap was on the cutting edge of some

25 interesting stuff there about immunity and that sort

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1 of thing, and arguments and so on about some gentleman

2 that is going to come in and say that they all knew

3 this, they knew it was hazardous waste material.

4 So we don't have to bother whether or not a

5 receiving clerk opened a box that had a stamp on it

6 that should indicate to his or her mind that that was

7 hazardous material.

8 I am going to sustain the objection,

9 without prejudice to the defense's right to bring it

10 up on their side of the case if they wish to call this

11 man back, or somebody else back to show that, if it

12 becomes relevant, that the industry standard knowledge

13 about these materials is relevant to this case, fine.

14 Then you can bring him back. But at this point in

15 time it is sustained.

16 And you may wish to -- what is it, 947.

17 You may wish to evaluate appropriate and proper

18 fairness to you -- not any of you expecting this,

19 maybe you want to reevaluate some of your other

20 cross-examination.

21 I recognize that I want to be fair to you.

22 It is close to the noon hour. So I think we'll take a

23 recess at this time, and then we'll see where we go

24 after we resume with that.

25 All right. Bring the jury in, I will

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1 instruct them on the noon recess.

2 It is my intention to advise the jury I

3 understand there is some publicity about the case. A

4 friend from Tallahassee faxed to me an article that

5 was in the New York Times, a Mr. Berg, purportedly. I

6 will ask them if they read or considered anything, and

7 remind them about the rule, unless there is some

8 objection to that.

9 MRS. MOSKOWITZ: No, Your Honor.

10 MS. RASKIN: No, Your Honor.

11 (The jury entered the courtroom at 11:48

12 a.m.)

13 THE COURT: Ladies and gentlemen, we are

14 going to take a recess for the noon hour at this

15 time. I wish to mention two things to you. One I

16 forgot to do earlier this morning when you came in.

17 I have been advised that there has been

18 some publicity or newspaper -- there has been some

19 news articles both written and transmitted to --

20 electronically over television and the radio, I

21 understand, about the case. As I say, something like

22 this may come to your attention, maybe innocently or

23 accidentally something has, and I wish to ask all of

24 you collectively if any of you during the intervening

25 night recess had heard anything on television, radio,

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1 watched anything on TV, or read anything that may have

2 been -- or was, I understand, in the newspaper about

3 this case -- and please don't be -- I am not going to

4 fuss at anybody. If something happened, I would

5 rather know it than not know it.

6 If anything like that happened, please

7 raise your hand and we'll talk to you separately.

8 (No hands.)

9 THE COURT: Very good. Let me compliment

10 you on following our instruction, which is the same

11 instruction we will give you again now:

12 If there is anything in the newspaper, on

13 radio or television, don't read it, watch it or listen

14 to it. Don't let anything come to your attention

15 except what you see here in the courtroom.

16 We thank you very much for your patience.

17 We'll recess at this time.

18 For certain reasons that have nothing to do

19 with this trial, we will resume at 1:30. 1:30. We'll

20 have an hour and a half.

21 Thank you very much.

22 Marshal, would you see that they get to the

23 elevator?

24 (The jury left the courtroom at 11:50 a.m.)

25 THE COURT: Again, Mr. Brennan, you are

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1 still in your testimony, so you are under the same

2 instruction not to discuss it with the agents or the

3 government or with the defense or anybody, your

4 testimony. The whole idea is, not going out and say,

5 How am I doing? You are doing great, you are doing

6 bad. You are not to do that.

7 THE WITNESS: Yes, sir.

8 THE COURT: All right, sir.

9 1:30 this afternoon.

10 (Court recessed at 11:50 a.m.)

11 AFTERNOON SESSION.

12 (Court reconvened at 1:35 p.m., out of the

13 presence of the jury.)

14 THE COURT: Thank you.

15 Bring the jury in, please.

16 MR. MC GUIRK: James McGuirk.

17 May I have permission to file with the

18 Court on behalf of a witness who is going to testify,

19 I believe, this afternoon a motion without argument

20 for the Court? I think it may assist the Court in the

21 organizing of the case.

22 THE COURT: Thank you.

23 I am sure that whatever you would file

24 would indeed be helpful to the Court.

25 MR. MC GUIRK: For the record, I am filing

MOTIONS

90

1 a motion and sealed Exhibit A, but not sealed Exhibit

2 B, unless the Court requests it.

3 THE COURT: Okay. Fine.

4 (The jury entered the courtroom.)

5 CROSS-EXAMINATION

6 BY MS. RASKIN: (Continued)

7 Q. Good afternoon, sir.

8 Before the break we were discussing an

9 approval that had been issued to Scott Aviation

10 concerning the oxygen generators from the Bureau of

11 Explosives. Do you remember that?

12 A. Yes, ma'am.

13 MS. RASKIN: At this time, Your Honor, I

14 have what has been marked as Defendant's Exhibit 1,

15 which is the approval. I would like to offer it into

16 evidence. It is a public record, Your Honor.

17 MRS. MILLER: We have no objection, Your

18 Honor.

19 THE COURT: All right. This exhibit will

20 be admitted into evidence as Exhibit -- how should we

21 number it?

22 THE CLERK: I guess it would be SabreTech

23 1.

24 THE COURT: Admitted into evidence as

25 Defendant's Exhibit, SabreTech Exhibit Number 1.

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1 (Defendant SabreTech's Exhibit 1 in

2 evidence.)

3 BY MS. RASKIN:

4 Q. Sir, that approval is the approval that

5 classified the oxygen generators as a flammable solid,

6 correct, sir?

7 A. If I recall, it is a letter of classification

8 that classifies this as a flammable solid, yes,

9 ma'am.

10 Q. Between the date of the issuance of approval in

11 1970 and May of 1996, that is the only existing

12 approval that Scott Aviation has with respect to the

13 shipment of that generator; is that correct, sir?

14 A. I don't understand what you mean. That is a

15 letter of classification. The generator is shipped

16 under FAA, PMA approval. That is my -- that -- to my

17 understanding, that is the level of classification.

18 MS. RASKIN: May I have permission, Your

19 Honor, to approach and retrieve my exhibit?

20 THE COURT: Yes.

21 MS. RASKIN: Thank you.

22 THE WITNESS: Your Honor, there is two

23 original exhibits sitting here.

24 THE COURT: Thank you.

25 Would you hand them to Ms. Raskin and she

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1 will put them on the table there. Just lay them on

2 the table right in front of the Court Reporter.

3 Thank you.

4 Q. I would ask you to look at that document, sir,

5 and just confirm, if you can, that it states that the

6 appropriate classification of the generators is as a

7 flammable solid.

8 A. The letter does classify this as a flammable

9 solid NOS under 173.145 of tariff number 23, ma'am.

10 Q. And it was your understanding and is your

11 understanding, sir, that without having received that

12 document from the Bureau of Explosives, Scott Aviation

13 would not have had authority to ship its generators?

14 A. (Pause)

15 MRS. MILLER: If I could ask, at what time,

16 Your Honor?

17 THE COURT: We are asking him his opinion

18 about things now, and I don't know where this leads

19 us, but --

20 MS. RASKIN: Sir --

21 THE COURT: He is talking about facts.

22 This is an opinion.

23 Suppose he were to say in response to your

24 last question, no, it doesn't say that at all, and

25 suppose the document does say that? The jury does

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1 have the document. We are getting off into asking him

2 what something says or his interpretation of it.

3 These are opinions and he is not an expert.

4 But I guess the question is, could your

5 company have shipped these cannisters if the

6 appropriate authority had not written that letter?

7 THE WITNESS: The reason for my hesitation,

8 Your Honor --

9 THE COURT: If you know. Do you know or

10 not?

11 THE WITNESS: The reason for my

12 hesitation --

13 THE COURT: Say yes or no. Do you know or

14 not? Do you know the answer to the question?

15 THE WITNESS: It is my belief that at this

16 time you are required to go to the Bureau of

17 Explosives, a private organization, and get a

18 classification before shipping something with a

19 precaution cap in it, Your Honor.

20 THE COURT: And this time, being prior to

21 this crash in May of 1996?

22 THE WITNESS: Yes, at this time it was

23 1971.

24 THE COURT: Next question.

25 BY MS. RASKIN:

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1 Q. And further, Mr. Brennan, you say that the reason

2 you needed that was because of the percussion cap.

3 The reason the percussion cap in turn requires that is

4 because the percussion cap contains an explosive;

5 isn't that correct, sir?

6 A. I don't know the technical nature of the material

7 that they use in that cap, so I can't answer your

8 question, other than my understanding is percussion

9 caps in general had to go to the Bureau of Explosives

10 to be classified.

11 Q. Mr. Brennan, do you recall testifying before the

12 NTSB hearing in 1996 to the effect that your

13 understanding was that the initiate cap is technically

14 explosive and you couldn't ship any of this explosive

15 without being specifically reviewed in those years by

16 the Bureau of Explosives?

17 A. Yes. It is regulated. If it is not classified

18 it is regulated, to my understanding, as a class A

19 explosive, which means it is forbidden for shipment

20 unless you get it classified.

21 Q. Between the time that classification was issued

22 in 1970 and May of 1996, did Scott ever go back to the

23 Bureau of Explosives, or any successor agency in the

24 Department of Transportation, and seek a different

25 classification?

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95

1 A. Well, first of all, the Bureau of Explosives was

2 not --

3 THE COURT: Did you or not? Answer the

4 question. Then you can explain it.

5 THE WITNESS: The answer basically is no,

6 because the Bureau of Explosives, first of all --

7 THE COURT: She didn't ask you why. She

8 just asked you if you did. Did your company or did it

9 not?

10 THE WITNESS: We did not go back to the

11 Bureau of Explosives.

12 THE COURT: Good. Next question.

13 Q. Did you go to any agency of the DOT that may have

14 succeeded the Bureau of Explosives with regard to the

15 approval process of explosives such as the oxygen

16 generator?

17 THE COURT: Up to the time of the crash.

18 Q. Up to the time of the crash.

19 A. My understanding is, the oxygen generator is not

20 explosive. And the question said explosive devices

21 like your oxygen generator.

22 THE COURT: So I guess the answer is no,

23 you did not.

24 THE WITNESS: That's correct.

25 THE COURT: That's a very simple answer.

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1 Let's try to answer the question.

2 Next question.

3 Q. With respect to the percussion cap which contains

4 an explosive and is a component of the oxygen

5 generator, did you return to any agency of the

6 Department of Transportation that may have succeeded

7 the Bureau of Explosives to request a different

8 classification of the generator?

9 A. Yes. But after the accident.

10 THE COURT: Limit your answers to before

11 the accident. All of them, from now on.

12 Next question.

13 Before the accident, no, you did not; is

14 that correct?

15 THE WITNESS: That's correct, Your Honor.

16 THE COURT: Next question.

17 Q. Mr. Brennan, you testified on direct examination

18 that in, I believe, August of 1988, Scott for the

19 first time began affixing a warning label to the new

20 generators it was manufacturing. Is that correct?

21 A. That is correct.

22 THE COURT: This is after the accident?

23 MS. RASKIN: No, sir, this is before the

24 accident.

25 THE COURT: You said 1998.

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97

1 MS. RASKIN: I'm sorry, I misspoke. I

2 meant to say 1988, sir.

3 THE COURT: And that one, the accident was

4 in 1996, correct?

5 MS. RASKIN: Correct.

6 THE COURT: All right.

7 With that modification, what is your

8 answer?

9 THE WITNESS: Yes, sir.

10 THE COURT: All right, next question.

11 Q. Those warning labels were placed on the new

12 generators that were manufactured after that date,

13 correct, sir?

14 A. Of the McDonnell Douglas type, yes, ma'am.

15 Q. But before Scott realized that, there remained in

16 airplanes flying around the country a number of --

17 probably thousands of Scott generators that did not

18 contain that label because they were manufactured

19 before the decision to use it, correct?

20 A. That is correct, ma'am.

21 Q. And in order to address that problem, Scott

22 Aviation sent out a service bulletin; did it not, sir?

23 A. Scott Aviation prepared the service bulletin,

24 yes, ma'am.

25 Q. And that service bulletin that was prepared by

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1 Scott Aviation was sent out to all operators of MD-80

2 and DC-10 aircraft by McDonnell Douglas; is that

3 correct sir?

4 MRS. MILLER: Objection to what was done by

5 McDonnell Douglas.

6 MS. RASKIN: I will rephrase the question.

7 THE COURT: All right. Your company

8 prepared a memorandum and sent them, as you said, to

9 those people.

10 THE WITNESS: Yes, Your Honor.

11 THE COURT: Was that done under your

12 direction or someone else's or what?

13 THE WITNESS: No. At that time that was

14 done by the tech pub area, which was not under my

15 control.

16 THE COURT: Do you know of -- well, I guess

17 you would know if they had told you; but do you of

18 your own knowledge know who they sent those

19 memorandums to?

20 THE WITNESS: We sent them to McDonnell

21 Douglas, Your Honor.

22 THE COURT: To McDonnell Douglas Aircraft

23 Company.

24 THE WITNESS: That's the air frame

25 manufacturer, yes, sir.

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1 THE COURT: Where, in Washington

2 someplace?

3 THE WITNESS: No, that was out in

4 California.

5 THE COURT: All right. Next question.

6 MS. RASKIN: May I approach, Your Honor?

7 THE COURT: Yes.

8 BY MS. RASKIN:

9 Q. Mr. Brennan, I am showing you what has been

10 marked as SabreTech Exhibit 2, and I would ask you to

11 turn to the last two pages of that.

12 A. Yes, ma'am.

13 Q. Do you recognize that document?

14 A. Yes, I do.

15 Q. What do you recognize it to be?

16 A. Well, it is actually a three-page document.

17 Q. I apologize, sir. Three-page document.

18 A. That's the service bulletin prepared by Scott

19 Aviation in the end of '97 or the beginning of '98.

20 Q. And it is your understanding, is it not --

21 THE WITNESS: I misspoke. '87 or the

22 beginning of '88.

23 THE COURT: '87, '88. Go ahead.

24 Q. It is your understanding, is it not, that the

25 service bulletin was prepared at the request of

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1 McDonnell Douglas Corporation?

2 A. And the FAA.

3 Q. And it was prepared and then combined with a

4 McDonnell Douglas all operators letter; is that

5 correct, sir?

6 A. It went with a McDonnell Douglas all operators

7 letter, that is correct.

8 Q. I would address your attention to the first two

9 pages of that document and ask you whether that is the

10 McDonnell Douglas all operators letter that you

11 referred to.

12 A. (Pause)

13 Yes, it appears it is.

14 Q. Mr. Brennan, is this document, the McDonnell

15 Douglas all operators letter and the attached Scott

16 service bulletin, a record that was kept by Scott

17 Aviation in the regular course of its business?

18 A. I don't know where this copy originated, but we

19 have a copy of the AOL at the service bulletin, yes.

20 Q. Is it the regular practice of Scott Aviation to

21 maintain records such as this, the service bulletin

22 and attached McDonnell Douglas AOL, all operators

23 letter?

24 A. The service bulletin definitely. We do not

25 normally retain McDonnell Douglas AOL letters, but we

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1 did retain this one.

2 Q. Okay. And is it your understanding that this

3 document was created at or about the time that the

4 event it refers to occurred?

5 A. Excuse me?

6 THE COURT: He gave you the date when it

7 was sent out.

8 Was it created about that time in 1987,

9 '88?

10 THE WITNESS: Yes, the document dated

11 February 21, 1989, but it was created sometime in '88.

12 THE COURT: Go ahead.

13 MS. RASKIN: I would move the admission of

14 SabreTech Exhibit 2.

15 MRS. MILLER: I object on the ground of

16 relevance. This was a document that went from Scott

17 to McDonnell Douglas. No showing of relevance to this

18 case.

19 THE COURT: I will listen to both of you at

20 the next recess. We'll mark it for identification,

21 unless you were going to have more examination on this

22 document. Were you?

23 MS. RASKIN: No, that is fine. I can

24 wait.

25 Well, I would like to proceed and ask him

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102

1 questions about it, but may I do that without

2 referring to the document?

3 THE COURT: Well, it is not in evidence at

4 this point so you can't ask any questions about it

5 beyond identifying it. If you have no other area you

6 can go into, we can excuse the jury and take this up.

7 If you do, you might go past that and at the next

8 recess we'll get into it.

9 Is there anything else you can go into at

10 this time?

11 MS. RASKIN: Yes, sir, there is.

12 Q. You mentioned several times that the oxygen

13 generators have a life limit of 12 years. You --

14 correct?

15 A. At this time, yes, ma'am.

16 Q. And that they cannot be reused?

17 A. That is correct.

18 Q. They are just a one-time item; once they are

19 used, they cannot be reused.

20 A. That is correct.

21 Q. My question is, did Scott ever, between the time

22 the generators were first manufactured and the time of

23 the crash in May of 1996, print on any of the oxygen

24 generators or label them in any way to indicate that

25 they are a life-limited part?

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103

1 A. I don't believe so, ma'am.

2 Q. Did the generators during that period of time

3 ever contain any information to the effect that they

4 cannot be reused?

5 A. You mean on the exterior container?

6 Q. Correct.

7 A. I don't believe so, ma'am.

8 Q. Was there anywhere, interior or exterior, that

9 they contain such information?

10 A. Not to my knowledge.

11 Q. This morning you described the procedure that

12 Scott uses to prepare the oxygen generators, the new

13 oxygen generators, for shipment.

14 A. At an earlier period of time. Not new today.

15 Q. Not new today. I am referring to the period of

16 time prior to May of 1996.

17 A. Yes, ma'am.

18 Q. And you testified that you first tightly wind the

19 lanyard through the firing pin and then wrap it around

20 the body of the generator, correct?

21 A. The first part of your question didn't make sense

22 to me about winding it through. We assembled the

23 lanyard and then the lanyard to the generator and then

24 take it around the top of the housing and then the

25 excess around the body.

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104

1 Q. And the purpose of that procedure is to keep the

2 firing pin from pulling out and accidentally

3 discharging the generator; isn't that correct, sir?

4 A. The purpose of that procedure is to eliminate

5 slack in that lanyard that could catch and pull the

6 pin out and to keep the rest of the lanyard from

7 tangling it up, to keep it straight on the cylinder.

8 Q. The reason that is important, you want to make

9 sure it does not allow the generator to accidentally

10 discharge, correct?

11 A. No, ma'am, the generator has a cap on tight

12 prevent the discharge. The pulling of the pin would

13 allow the hammer to fall, but against the cap it won't

14 do anything. Then you have to go through the business

15 of holding the hammer back and threading the pin back

16 into the guide tube and everything in order to put the

17 generator back in service.

18 Q. And that's -- the method of wrapping the lanyard

19 that you have described, however, is another method of

20 preventing accidental discharge of the generator;

21 isn't that correct?

22 A. No, ma'am. You can still pull the pin. That is

23 to keep the pin from being pulled by slack. The way

24 to keep it from being discharged is to put the cap

25 over the percussion cap.

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105

1 Q. Do you recall, Mr. Brennan, testifying before the

2 NTSB --

3 THE COURT: This will be asking -- oh, I'm

4 sorry. His testimony.

5 MS. RASKIN: Correct.

6 THE COURT: All right, go ahead.

7 Q. Do you recall being asked by Mr. Henderson about

8 that design: "Basically that design is an attempt to

9 keep the pin inside of that sheath so it doesn't pull

10 free?"

11 And answering on your part: "Yes, sir.

12 The whole intent of the packaging is to prevent

13 accidental initiation of the generator during

14 shipment."

15 Do you remember that?

16 A. Yes, I do, that was in the context of describing

17 the total package in which we described the heat

18 shrinking and everything we do to keep from tampering,

19 moving or touching anything on the generator.

20 Q. If I may, Mr. Brennan, the question before your

21 answer was: "Okay. You mentioned the lanyards as

22 well as the safety cap you wrapped the lanyards

23 around."

24 You answered: "Yes, sir. The lanyards are

25 supplied with the generator because they are attached

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106

1 to the initiate pin. When you go into the aircraft,

2 you have to attach the end of the lanyard to the

3 mask. Now these lanyards are quite long, so the

4 lanyard is first tied around the initiation mechanism

5 to make sure there is no slack that can catch and fall

6 on the pin, and then the balance is tied around the

7 body of the generator and secured with the rubber band

8 and that is all under shrink wrap.

9 "Question: And basically that design is

10 an attempt to keep the pin inside of the sheath so it

11 doesn't pull free?

12 "Answer: Yes, sir. The whole intent of

13 the packaging is to prevent accidental initiation of

14 the generator during motion of shipment."

15 So, sir, you are not saying, are you, that

16 the wrapping of the lanyard was not a part of the

17 design intended to keep the pin from falling from the

18 sheath and preventing accidental discharge; are you?

19 A. I am saying in that testimony and I am saying

20 today that it's all part of the packaging when we ship

21 it out. Tying the lanyard around the top and running

22 it around the bottom is intended to prevent slack from

23 pulling the pin, okay? You asked me what is intended

24 to set -- to keep the generator from going off, and

25 that's the cap.

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107

1 THE COURT: Let me ask you a question, sir,

2 just one simple question. If there is a cap in place

3 prior to shipment, if the lanyard is pulled, will the

4 generator ignite and start to make the oxygen?

5 THE WITNESS: No, Your Honor.

6 THE COURT: Thank you.

7 Q. If I may ask you, sir, if there were not a cap

8 present, would it be not important to have the

9 lanyards wrapped in the method you have described to

10 prevent an accidental discharge?

11 A. Wrapping the lanyards the way I described can't

12 be sure to prevent an accidental discharge. We do

13 it. I told you why we do it. But to be sure it would

14 prevent an accidental discharge, you cover the

15 percussion cap.

16 Q. But, sir, if the percussion cap is covered and

17 that's the only method of safety you are concerned

18 about, then what is the point of wrapping the lanyard

19 so that you keep the pin from coming out?

20 THE COURT: He has already answered that

21 question.

22 THE WITNESS: Yes.

23 THE COURT: Let's move on.

24 Q. I just have one other quick question. And that

25 is, sir, you testified you were Scott Aviation's party

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108

1 representative to the NTSB in connection with the

2 ValuJet accident.

3 A. Yes, ma'am.

4 Q. Could you explain what NTSB stands for?

5 A. National Transportation Safety Board.

6 Q. And what, sir, is your understanding of the

7 function of the National Transportation Safety Board?

8 THE COURT: Oh, you -- yes, ma'am.

9 You object. Sustained.

10 He is not here to give an opinion of the

11 duties of that agency. He is not an expert in that.

12 MS. RASKIN: With reserving the issue that

13 we discussed before, I am finished.

14 THE COURT: All right. Fine.

15 Any other questions, Mr. Dunlap? Do you

16 have any?

17 MR. DUNLAP: No, Your Honor.

18 THE COURT: Let's go through redirect and

19 we'll leave that one issue for the end.

20 REDIRECT EXAMINATION

21 BY MRS. MILLER:

22 Q. Mr. Brennan, what is it that keeps an oxygen

23 generator from igniting other oxygen generators when

24 it is in place in the airplane?

25 A. Lack of physical -- they are not touching each

BRENNAN - REDIRECT (MILLER)

109

1 other, so one can't affect the other.

2 Q. What, if anything, covers an oxygen generator

3 when it is in place in an airplane?

4 A. Well, when it is stowed, it goes -- at --

5 McDonnell Douglas type generators, they usually go

6 behind heat shields, but all of them go behind a

7 closed panel that doesn't open until the oxygen is

8 required.

9 Q. What is a heat shield?

10 A. It is a curved -- originally aluminum, I think,

11 and McDonnell Douglas now makes them out of plastic.

12 It is a curved piece of white plastic with holes in it

13 that holds little oxygen masks, little yellow cups,

14 and holds the generator in place, but provides a gap

15 for air to flow around the generator.

16 Q. Following the Bureau of Explosives's letter of

17 the early 1970s, why did Scott Aviation not go back to

18 any governmental authority before starting to use the

19 classification of oxidizer for oxygen generators?

20 A. Well, my recollection, there was a change to the

21 CFRs; and under the new regulations, sodium chlorate

22 was a listed material. And if you shipped with sodium

23 chlorate, it was -- the shipping requirements -- I

24 read them out in the courtroom here yesterday. And

25 that was what you were supposed to use.

BRENNAN - REDIRECT (MILLER)

110

1 Q. Were those the pages from the hazardous materials

2 table you read out yesterday, Mr. Brennan?

3 A. Yes.

4 Q. You used the abbreviation "CFR." Do you know

5 what that stands for?

6 A. Yes, I do.

7 Q. Tell us, please.

8 A. Code of Federal Regulations.

9 Q. With regard to the life limit on oxygen

10 generators, Mr. Brennan, what entity is it that sets

11 or states the life limit on oxygen generators?

12 A. The OEM, aircraft manufacturer, states it and

13 gets -- files it with the FAA.

14 Q. Is that a Scott Aviation determination?

15 A. Originally we recommended ten years. The

16 extension to twelve years was handled by McDonnell

17 Douglas with the FAA.

18 MRS. MILLER: I have no other questions,

19 Your Honor.

20 THE COURT: All right. Ladies and

21 gentlemen, we'll take up this matter.

22 Ladies and gentlemen, if you would step on

23 into the jury room, we will attempt to be brief.

24 Thank you.

25 (The jury withdrew from the courtroom at

MOTIONS

111

1 2:03 p.m.)

2 THE COURT: I am not sure of the exact

3 wording of the question, but it dealt with the subject

4 matter of the dissemination of a letter on --

5 operating manual page or pages by Scott Aviation, sent

6 to McDonnell Douglas aircraft. And I have forgotten

7 the exact wording of the question. The objection was

8 materiality. I think the question had something to do

9 with it -- what happened after it left McDonnell

10 Douglas, but I am not sure.

11 Could you refresh my recollection as to

12 what the question was that was objected to?

13 MS. RASKIN: I believe that Mrs. Miller

14 objected to the introduction of the document on the

15 basis that --

16 THE COURT: Well, she can --

17 MRS. MILLER: That's correct.

18 THE COURT: The document is Exhibit Number

19 2 for McDonnell Douglas. Defendant's Exhibit 2 we are

20 talking about, what is your objection?

21 MRS. MILLER: Relevance and materiality.

22 The testimony is this was a document sent from Scott

23 Aviation to McDonnell Douglas, and there is no linkage

24 of that document to the defendants here or to the

25 events in this case.

MOTIONS

112

1 THE COURT: Will you be able to link it up

2 as being connected with ValuJet or SabreTech?

3 MS. RASKIN: The way I would like to link

4 it up is in a sense precisely the way Miss Heck just

5 did it for me. The point is, this was sent to

6 airlines, operators; it was not sent to repair

7 stations such as SabreTech. And I am introducing the

8 document to show that SabreTech and repair stations

9 like it were never notified that there was a new

10 warning label that they could call Scott Aviation and

11 purchase to put on old generators such as the ones at

12 issue in this case. So it goes directly to the state

13 of mind of SabreTech.

14 THE COURT: It is not material. The

15 objection is sustained.

16 You can argue to the jury they were never

17 told, that's all you have to do. You don't have to

18 hand in a bunch of documents that were circulated

19 elsewhere or whatever. That wouldn't prove you never

20 got it. I presume it would be a simple thing to do,

21 call some executive from one of the companies and say,

22 Did you ever get this, and say no, if that is

23 important. But if you never got it, you couldn't be

24 held responsible.

25 Objection sustained.

MOTIONS

113

1 You may step down. You are excused.

2 (Witness excused.)

3 THE COURT: Who is your next witness? Does

4 it involve Mr. McGuirk's motion?

5 MRS. MILLER: No. That relates to the

6 witness following the next witness.

7 THE COURT: All right. Call your next

8 witness, please.

9 (The jury re-entered the courtroom at 2:05

10 p.m.)

11 THE COURT: All right, your next witness.

12 MICHAEL FRANCIS QUAN, sworn.

13 COURT REPORTER: State your full name for

14 the record, please.

15 THE WITNESS: Michael Francis Quan.

16 DIRECT EXAMINATION

17 BY MRS. MILLER:

18 Q. What is your occupation?

19 A. I am a quality chrome inspector.

20 Q. For whom do you work?

21 A. I work for Solair.

22 Q. Where is that located?

23 A. In Ft. Lauderdale, Florida.

24 Q. You have recently begun that job?

25 A. Yes.

QUAN - DIRECT (MILLER)

114

1 Q. And do you hold any professional licenses or

2 certificates related to aviation?

3 A. Yes.

4 Q. What licenses or certifications do you hold?

5 A. I hold an air frame and power plant certificate.

6 Q. For how long have you held those?

7 A. For ten years.

8 Q. Is that one certificate or two certificates?

9 A. Two certificates.

10 Q. And what does air frame refer to?

11 A. Air frame refers to that part of the aircraft

12 which is not engine related.

13 Q. And what does power plant refer to?

14 A. It refers to the engine and its components.

15 Q. Now, when did you first come to Miami to live,

16 Mr. Quan?

17 A. In January of 1990.

18 Q. At that time were you working as an -- is there

19 an abbreviation for air frame and power plant?

20 A. Yes.

21 Q. What is that abbreviation?

22 A. A and P.

23 Q. In 1990 when you moved to Miami, were you working

24 as an A and P mechanic?

25 A. Yes, I was beginning a job as an A an P mechanic.

QUAN - DIRECT (MILLER)

115

1 Q. Where did you work as an A and P mechanic?

2 A. For Eastern Airlines.

3 Q. Now, did there come a time when you stopped

4 working full-time and went to school?

5 A. Yes.

6 Q. And did there come a time when you received a

7 degree?

8 A. Yes.

9 Q. What degree did you receive and when?

10 A. I received an associate in arts and mechanical

11 engineering, and I received that in 1994.

12 Q. Did you resume work at some point thereafter as a

13 full-time A and P mechanic?

14 A. Yes.

15 Q. When was that?

16 A. That was in the fall of 1995.

17 Q. And where did you go to work?

18 A. I went to work for Dynair Tech of Florida.

19 Q. Where is -- where was that located?

20 A. That was located at Miami International Airport

21 on Northwest 36th Street, Building 25.

22 Q. Do you remember the street address?

23 A. I don't.

24 MRS. MILLER: Your Honor, counsel stipulate

25 that the address is 4900 Northwest 36th Street,

QUAN - DIRECT (MILLER)

116

1 Building 25, Miami.

2 THE COURT: All right.

3 Q. Mr. Quan, how was it that you learned of the

4 prospect of working at Dynair Tech of Florida?

5 MR. DUNLAP: Objection. Hearsay.

6 MRS. MILLER: Let me rephrase that.

7 THE COURT: All right.

8 Q. Mr. Quan, who introduced you to Dynair Tech of

9 Florida?

10 A. Chris DeStefano.

11 Q. And how did you know Chris DeStefano?

12 A. He was a friend of mine for several years since

13 Eastern Airlines.

14 Q. Did Chris DeStefano bring you to meet anybody?

15 Withdrawn.

16 Whom, if anyone, did Chris DeStefano bring

17 to you meet at Dynair Tech of Florida?

18 A. He brought me to meet the director of

19 maintenance, Danny Gonzalez.

20 Q. Had you previously known Danny Gonzalez?

21 A. No. I had been acquainted with him, but not

22 known him.

23 Q. How is it you had been acquainted with Danny

24 Gonzalez?

25 A. I had seen him at Eastern Airlines.

QUAN - DIRECT (MILLER)

117

1 Q. Do you see Mr. Gonzalez here in the courtroom

2 today?

3 MR. DUNLAP: I will stipulate Mr. Gonzalez

4 is here in the courtroom.

5 THE COURT: They stipulate the witness has

6 identified Mr. Danny Gonzalez.

7 THE WITNESS: Yes.

8 Q. Were you hired?

9 A. Yes.

10 Q. And what was your assignment?

11 A. To work with Chris DeStefano.

12 Q. What was your relationship? Were you on an equal

13 level with him or was one subordinate and one

14 superior?

15 A. I was subordinate to Chris. Chris was my direct

16 supervisor.

17 Q. By the time you went to work for Dynair Tech of

18 Florida, do you know who owned it?

19 A. No, I did not.

20 Q. Did there come a time when the name of the

21 company that you were working for changed?

22 A. Yes.

23 Q. And approximately when was that?

24 A. There were several changes, but in the fall of

25 1995 I learned that a company called Saber Liner was

QUAN - DIRECT (MILLER)

118

1 purchasing Dynair Tech, and there were several

2 proposed name changes for our facility, but eventually

3 it became SabreTech Incorporated.

4 Q. And have you ever heard of the name Air Tech?

5 A. Yes.

6 Q. What, if anything, was the significance of Air

7 Tech in relationship to any possible name of the

8 business?

9 A. That was one of the proposed names for the

10 facility.

11 Q. After you went to work at SabreTech in the autumn

12 of 1995, what, if any, project were you assigned to

13 work on?

14 A. I was assigned to work with Chris DeStefano on

15 Ascera company project.

16 Q. What is Ascera?

17 A. Ascera is a South America airline.

18 Q. And you mentioned something called a C check?

19 A. Yes.

20 Q. Mr. Quan, what is a C check?

21 MR. MOSKOWITZ: Objection. Foundation,

22 Your Honor.

23 THE COURT: All right. Let's establish

24 that he has the requisite background and knowledge to

25 be qualified as an expert on his opinion about C

QUAN - DIRECT (MILLER)

119

1 check.

2 MRS. MILLER: Your Honor, we would not

3 qualify him as an expert and I don't believe that is

4 the objection. I believe it is a question of fact,

5 and counsel is simply questioning his knowledge of

6 this fact, if I might inquire in that regard.

7 THE COURT: I don't believe that was their

8 objection. His objection was that there is no showing

9 that he has the requisite background to answer this

10 opinion type question.

11 What is a C check? That means he is going

12 to give us his opinion as to what a C check is. That

13 is not a fact question. The fact question is, do you

14 have a pen in your pocket, or something of that sort.

15 But if you ask him, what is a pen, you have to show

16 that he worked for Waterman Company for ten years or

17 so.

18 Q. What aircraft of Ascera Airlines was at Dynair

19 Tech of Florida awaiting this C check in the fall of

20 1995?

21 A. It was an Ascera DC-9 aircraft number 705.

22 Q. And were there any other Ascera aircraft that

23 arrived for similar work in 1995?

24 A. Yes.

25 Q. And what aircraft was that?

QUAN - DIRECT (MILLER)

120

1 A. The aircraft number was 720, also a DC-9, and

2 that arrived in December of 1995.

3 Q. During the time that you were working on the

4 project concerning aircraft 705, were there problems

5 in connection with that project?

6 MR. DUNLAP: Objection. Vague.

7 THE COURT: All right. Unless you lay the

8 proper predicate. Sustained at this point.

9 Q. Mr. Quan, what were your specific

10 responsibilities with regard to work on 705?

11 A. I was hired to work in the control booth for the

12 C check.

13 Q. And what is the control booth?

14 A. The control booth is where the work cards are

15 located.

16 Q. And what were your responsibilities with regard

17 to work cards?

18 A. I was to help control the flow of the work cards

19 and also to make sure that the proper parts were

20 ordered and received.

21 Q. And did you make -- without telling us what they

22 were, did you make any suggestions with regard to the

23 flow of work cards?

24 A. Yes.

25 MR. DUNLAP: Objection. Relevance.

QUAN - DIRECT (MILLER)

121

1 MRS. MILLER: I am trying to lay the

2 foundation counsel requested.

3 THE COURT: No. He simply asked for a date

4 is all he asked for. And we have gotten off into

5 these other matters now.

6 But when did you work on the DC-9, 705, in

7 the control booth? What date?

8 THE WITNESS: November of 1995.

9 THE COURT: November 1995.

10 And how long did you work there? How long

11 were you in that job working in the control booth?

12 THE WITNESS: Through the rest of the

13 year. Through the duration of the C check.

14 THE COURT: How long was that?

15 THE WITNESS: That was up until the end of

16 1995, late December.

17 THE COURT: So from October '95 to December

18 '95, is that it?

19 THE WITNESS: Yes.

20 THE COURT: Two months, you worked there

21 for two months?

22 THE WITNESS: In the control booth, yes,

23 approximately one and a half, two months, yes, sir.

24 BY MRS. MILLER:

25 Q. Mr. Quan, did your employment at Dynair Tech of

QUAN - DIRECT (MILLER)

122

1 Florida continue after December of 1995?

2 A. Yes.

3 Q. And did you continue to perform a similar

4 function to what you had performed on 705 after

5 December of 1995?

6 A. Yes.

7 Q. With regard to the aircraft 705, and your

8 responsibilities concerning work cards, did you make

9 any suggestions?

10 MR. DUNLAP: Objection. Relevance to any

11 suggestions. There is no predicate --

12 MRS. MILLER: Your Honor --

13 THE COURT: Excuse me. There is a

14 relevancy objection here.

15 All right, ladies and gentlemen, if you

16 will step into the jury room, please.

17 (The jury withdrew from the courtroom at

18 2:17 p.m.)

19 THE COURT: Mr. Quan, what year did you

20 work there?

21 THE WITNESS: From 1995 into 1996.

22 THE COURT: What is the relevancy,

23 Mrs. Miller?

24 MRS. MILLER: The testimony of this witness

25 and the next two witnesses relate to an incident that

QUAN - DIRECT (MILLER)

123

1 occurred in December of 1995 in this control booth.

2 It was an argument that took place and that was

3 witnessed by this individual on the stand now between

4 Danny Gonzalez and Christopher DeStefano. The subject

5 of the argument was a revised work card system that

6 Mr. DeStefano and Mr. Quan were putting in place.

7 THE COURT: Okay.

8 MR. DUNLAP: The point of my objection is,

9 if the issue is that there was a fight about a revised

10 work card system, why not just cut to the incident

11 itself. I don't see what the relevance is of

12 explaining why he instituted a new work card system,

13 which is where Miss Heck is going. If there was a new

14 work card system and somehow a fight developed, she

15 can just cut right to the chase and get to the facts.

16 THE COURT: If that is the purpose of the

17 testimony, is there any problem with asking him if he

18 observed in a certain time in '95 a dispute or

19 discussion between some of the employees over the

20 processing or handling or entries on the work card?

21 MRS. MILLER: Your Honor, I do intend to

22 ask him that. For that testimony to establish that it

23 was about the work cards, this witness will need to

24 testify as to what was done in that booth, the

25 physical arrangement that gave rise to this fight.

QUAN - DIRECT (MILLER)

124

1 THE COURT: You are trying to prove who was

2 right or wrong?

3 MRS. MILLER: Absolutely not.

4 THE COURT: It wouldn't make any difference

5 and, therefore, is immaterial if he had an excellent

6 suggestion or he had a terrible suggestion, or

7 Mr. DeStefano had an excellent or terrible

8 suggestion. The fact that is material to the case is

9 apparently they had a dispute or argument over the

10 work cards.

11 MRS. MILLER: That's correct, Your Honor.

12 THE COURT: So leading up to what all they

13 did and when they went to lunch and what time they

14 came on and all that just doesn't matter.

15 MRS. MILLER: It is Mr. Dunlap who said I

16 am going to show why they changed the system. That is

17 not where I was going at all, and that is not what I

18 asked.

19 THE COURT: Well, I thought you asked him

20 if he had any suggestions implicitly to improve the

21 handling of the work cards.

22 MRS. MILLER: No, Your Honor. If you may

23 recall, what I asked, had there been a discussion

24 about suggestions. I told him to not say what the

25 suggestions were.

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1 THE COURT: I will sustain the objection to

2 the last question. Perhaps you can get at it a

3 different way.

4 Bring the jury in. Let's move on.

5 (The jury re-entered the courtroom at 2:21

6 p.m.)

7 THE COURT: All right. Be seated.

8 Mrs. Miller.

9 BY MRS. MILLER:

10 Q. Did there come a time when you and Mr. DeStefano

11 rearranged the system of work cards in the control

12 booth?

13 A. Yes.

14 Q. Would you explain to us just physically what you

15 did to rearrange that system?

16 A. The system we came up with was a different

17 arrangement of the work cards. Instead of the cards

18 being vertically on the board, we were going to

19 arrange them horizontally.

20 Q. Were they organized differently in addition?

21 A. They were organized by -- no, by the same section

22 of the aircraft.

23 Q. Was there any chronological arrangement to them?

24 A. The only chronological -- the arrangement in that

25 respect was to priority of work to be done.

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1 Q. And approximately when was this rearrangement

2 made?

3 A. This was approximately a week before Christmas in

4 1995.

5 Q. And was this rearrangement made with regard to

6 the work for 705 or 720?

7 A. Aircraft 720.

8 Q. Now, I am handing you what has been marked in

9 evidence --

10 MRS. MILLER: If I might just show it to

11 counsel. (Showing to counsel.)

12 Q. I am handing you what has been marked as

13 Government Exhibit 71, and I would ask you to look at

14 that to yourself.

15 A. (Pause)

16 Q. Do you recognize Government Exhibit 71?

17 A. Yes.

18 Q. What do you recognize it to be?

19 A. This to be the floor plan of the SabreTech

20 facility.

21 Q. Is that floor plan substantially accurate?

22 A. Yes, it is substantially accurate.

23 THE COURT: Is there any objection to the

24 document by counsel?

25 MR. MOSKOWITZ: No objection, Your Honor.

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1 THE COURT: Are you offering it into

2 evidence?

3 MRS. MILLER: I am.

4 THE COURT: Submit it into evidence,

5 Government Exhibit 71.

6 (Government's Exhibit 71 in evidence.)

7 MR. MOSKOWITZ: If there are any

8 inaccuracies, I would ask they be corrected.

9 MRS. MILLER: That was what I was about to

10 do with the witness.

11 THE COURT: If there are any to be

12 corrected, at the first recess, let's move it along.

13 MRS. MILLER: If I might display the large

14 version of this, Your Honor.

15 THE COURT: All right. Fine.

16 BY MRS. MILLER:

17 Q. If you would step down and explain to us the

18 floor arrangement.

19 MR. DUNLAP: If it please the Court, may my

20 client come over with me to view the exhibit?

21 THE COURT: Yes, certainly. If you are

22 going to use these, you have to be in a position to

23 see. Yes, you may.

24 MR. DUNLAP: Thank you, Judge.

25 Q. Could you please explain the physical layout of

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1 the SabreTech main floor.

2 A. Okay. These are the two main hangars. This is a

3 hangar where the planes were parked and work was

4 actually done.

5 THE COURT: This is getting awkward, and it

6 is no one's fault.

7 May I ask the spectators in the first row

8 to move to the second row, and then all the counsel

9 and all the clients can walk in on that first row.

10 Sorry to do that. Or you can perhaps move

11 over to the side, wherever you are. But right now we

12 have people standing within inches of defense

13 counsel -- of the prosecution and table and so on.

14 All right, Mr. Dunlap, can you and

15 Mrs. Moskowitz see the diagram?

16 MR. DUNLAP: Yes, Your Honor. Thank you.

17 THE COURT: All right. It affords you a

18 little more privacy on these matters.

19 All right, would you describe the floor

20 plan to the jury, tell them what it is.

21 THE WITNESS: This is the hangar, one of

22 the hangars. This is another hangar. These are the

23 sliding doors, they move back and forth, and we park

24 the planes in there.

25 These were the work booths where we control

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1 the C checks from.

2 This was a storage area where they kept the

3 parts. Purchasing, where the buyers were.

4 This is also a tools area in here.

5 And this was director of maintenance

6 office.

7 And this is 36th Street out here. We

8 received parts into this area. And this is the

9 storage receiving.

10 This is the planning department. Then you

11 have various shops that support the aircraft

12 maintenance.

13 Q. Can you indicate to us, Mr. Quan, which of these

14 rooms was the control booth for the Ascera Airlines

15 project?

16 A. This booth right here.

17 Q. Thank you. If you could resume your seat.

18 You told us there came a time the work

19 cards were rearranged in the work booth. Was access

20 to the work booth also changed at approximately the

21 same time?

22 A. Yes.

23 Q. In what way was access to the booth changed?

24 What had it been before the change?

25 MRS. MILLER: Your Honor, with the Court's

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1 permission, I am going to move the chart so it doesn't

2 block anyone's view.

3 THE COURT: Thank you.

4 A. Access before the new system was -- access

5 available particularly to everybody, including the

6 mechanics.

7 We limited access to most of the hangar

8 except for those who had specific duties in the

9 control booth. That was me and the supervisors and,

10 of course, the management of the facility.

11 Q. And why was this done?

12 MR. DUNLAP: Objection. Relevance.

13 THE COURT: Sustained. Calls for an

14 opinion.

15 Next question.

16 MRS. MILLER: Your Honor, it is related to

17 the discussion that is coming up.

18 THE COURT: Well, it calls for his

19 opinion. It is not a fact. You may elicit facts from

20 him. He says it was changed. The fact would be when,

21 where, things like that; not why, not his opinion of

22 why. It is an opinion question. The objection is

23 sustained.

24 After the booth was changed, go ahead.

25 When it was changed, where did you sit in

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1 the booth?

2 THE WITNESS: I was all over the booth.

3 THE COURT: All right. You sat like the

4 gorilla, wherever you wanted to.

5 Q. Did the lead mechanics have access to the booth

6 under the new system?

7 A. Yes.

8 Q. Did line mechanics have access to the booth under

9 the new system?

10 A. Generally not.

11 Q. Did there come a time when you observed a heated

12 discussion in that booth?

13 A. Yes.

14 Q. Approximately when was that?

15 A. Approximately four or five days before Christmas

16 1995.

17 Q. When was it in time in relationship to the

18 changes you just told us about?

19 A. It was the beginning of the second C check on

20 aircraft of 720 of Ascera Airlines.

21 Q. On what aircraft was that second C check?

22 A. Aircraft 720.

23 Q. What kind of aircraft was 720?

24 THE COURT: He already told us. A DC-9.

25 Q. I am showing you what has been marked as

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1 Government Exhibit 2D and ask if you recognize that.

2 A. Yes.

3 Q. What do you recognize that to be?

4 A. As a DC-9 aircraft.

5 Q. Can you tell which DC-9 aircraft?

6 A. Aircraft 720.

7 Q. Of what airline?

8 THE COURT: You are asking him about the

9 picture.

10 You recognize it as a photograph. Have you

11 ever seen it before? You understand what it is, do

12 you?

13 THE WITNESS: Yes.

14 THE COURT: All right. Does it truly and

15 accurately portray what it purports to portray?

16 THE WITNESS: Yes.

17 THE COURT: Do you offer it in evidence?

18 MRS. MILLER: We do.

19 THE COURT: Any objection?

20 MR. MOSKOWITZ: No objection.

21 THE COURT: What is the exhibit number?

22 Q. There is a sticker on the back, Mr. Quan. Tell

23 us what that number is.

24 A. 2D.

25 THE COURT: 2D is admitted into evidence.

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1 (Government's Exhibit 2D in evidence.)

2 BY MRS. MILLER:

3 Q. What is depicted in that photograph?

4 A. Ascera DC-9.

5 Q. And which DC-9 is this?

6 A. Aircraft 720.

7 Q. Is this the aircraft as to which the work cards

8 had been arranged in the control booth?

9 A. Yes. It has a different paint job, but it is the

10 same aircraft.

11 Q. Different paint job from when you saw it?

12 A. Yes.

13 Q. Describe to us what you observed on the occasion

14 of this discussion.

15 First of all, tell us what time of day you

16 first observed it.

17 A. This was between 7 and 7:30 in the morning.

18 Q. Where were you?

19 A. In the control booth.

20 Q. Was there anyone in there with you?

21 A. Chris DeStefano.

22 Q. What happened?

23 A. Danny Gonzalez walked into the control booth.

24 Q. And what did you observe Mr. Gonzalez to do?

25 A. He walked over to the board where the cards were

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1 located.

2 Q. And did you observe anything after that?

3 A. Yes.

4 Q. What did you observe?

5 A. Well, actually he made a statement.

6 Q. What did he say?

7 A. He said, "What the fuck is this?"

8 Q. And what did you observe after that?

9 A. I observed Chris and Danny get into an argument.

10 Q. What did you hear -- did you hear Mr. DeStefano

11 make any response to Mr. Gonzalez?

12 A. Yes.

13 MR. DUNLAP: Objection. Hearsay.

14 THE COURT: Overruled on the basis of the

15 defendant was present.

16 Was he? Who was in the control booth at

17 this time?

18 THE WITNESS: Chris DeStefano, Danny

19 Gonzalez and myself.

20 THE COURT: And everything that was said

21 therein could be heard by the three people who were

22 there, is that right?

23 THE WITNESS: Yes.

24 THE COURT: You may answer. It is not

25 hearsay.

QUAN - DIRECT (MILLER)

135

1 What did you hear said? What did

2 Mr. DeStefano -- the question was, what did

3 Mr. Gonzalez say, or what did Mr. DeStefano say in

4 response to Mr. Gonzalez, if anything?

5 THE WITNESS: Chris DeStefano responded,

6 "Danny, we have to do this C check differently. We

7 can't screw this one up like we did the last one."

8 MR. DUNLAP: I would renew the objection,

9 Your Honor.

10 THE COURT: Overruled.

11 What else? What was said next?

12 THE WITNESS: They got into an altercation

13 with a lot of curse words.

14 BY MRS. MILLER:

15 Q. Do you recall any of the content of what they

16 were saying? You don't need to tell us the curse

17 words, but can you tell us any of the contents of the

18 words they were saying?

19 A. Yes. They were discussing the new system that we

20 had for the C check. And they were arguing about

21 which system was better, or which was the best way to

22 do this.

23 Q. And what was said in that regard?

24 A. Chris said we had to do things differently, that

25 we can't screw this check up like we did the last one,

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136

1 and Danny was disagreeing.

2 Q. What, if anything, was said with regard to who

3 would prevail?

4 A. Nothing at that point. They just continued the

5 argument.

6 Q. And did the argument end?

7 A. It did briefly, yes.

8 Q. And what happened that ended it?

9 A. Danny Gonzalez picked up several pieces of the

10 paper, the work cards, and walked out the door.

11 Q. Approximately how long did this argument last

12 that you observed?

13 A. Approximately three to five minutes.

14 Q. And after Danny Gonzalez walked out the door,

15 what happened next?

16 A. Chris followed him out the door and they were

17 still arguing and cursing.

18 Q. What were they saying? Again, skipping over the

19 curse words, please.

20 A. Chris was telling him how we have to do this C

21 check differently than the last one so we don't screw

22 it up. And Danny was disagreeing.

23 Q. And what, if anything, was referred to about

24 whose way it would get done?

25 MR. MOSKOWITZ: Objection. Leading.

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137

1 MR. DUNLAP: Objection. Leading.

2 THE COURT: I think the problem here is we

3 are at a point we need to know what was said,

4 eliminating as best you can, if you can, the

5 profanity. Just tell the jury what you heard Chris

6 say to Danny and what you heard Danny say to Chris.

7 THE WITNESS: Chris was telling Danny that

8 we will do this check differently than the last check

9 was so screwed up we lost so many pieces of paperwork

10 that we have to do it differently this time.

11 Danny was disagreeing, saying, I want it

12 done the same way we did it before. I like the board

13 the way the previous one was.

14 And they continued on in those lines

15 arguing back and forth.

16 THE COURT: And then how --

17 THE WITNESS: Also Chris was telling him,

18 we have to control the paperwork, we have to have more

19 control in this booth. We just can't allow access to

20 anybody like it was on the previous C check.

21 And Danny disagreed.

22 THE COURT: Then did Danny walk away or

23 Chris walk away, or how did it end?

24 THE WITNESS: Danny walked out the door,

25 Chris followed him. Danny had several of the work

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138

1 cards in his hand, approximately ten to twelve of the

2 work cards in his hand. He walked out of the door

3 with Chris in hot pursuit. They were still arguing

4 and there were curse words.

5 THE COURT: Then what happened after that?

6 THE WITNESS: Danny walked out to the floor

7 and handed several of the cards out to some of the

8 mechanics.

9 THE COURT: What happened next?

10 THE WITNESS: I continued into the booth

11 and approximately 20 minutes later -- I'm sorry,

12 approximately five to ten minutes later, Danny and

13 Chris came back into the booth. And they were still

14 arguing. And still going back and forth.

15 Finally it ended with, "We are going to do

16 it my way" -- Danny saying, "We are going to do the C

17 check my way, change the board back."

18 BY MRS. MILLER:

19 Q. Mr. Quan, as between Danny Gonzalez and

20 Christopher DeStefano, who was superior to whom?

21 A. Danny Gonzalez was superior to Chris DeStefano.

22 Q. And did there come a time when you left the work

23 booth and left them there?

24 A. Yes.

25 Q. And when was that and how did that come about?

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139

1 A. When they came back into the booth the second

2 time, Danny Gonzalez turned to me and politely asked

3 me to leave, and I did.

4 Q. Where did you go?

5 A. I stepped outside the booth.

6 Q. How far outside the booth?

7 A. Several feet. Maybe 20 feet.

8 Q. Was the door closed behind you?

9 A. I closed the door behind me.

10 Q. What could you hear from your position from

11 approximately 20 feet outside the booth?

12 A. Arguing and cursing.

13 Q. Could you hear the content of what was being

14 said?

15 A. Yes.

16 Q. How is it you could hear that content?

17 A. Because they were very, very loud.

18 Q. Were there other people in the area where you

19 were?

20 A. Yes, there were mechanics and inspectors, a

21 hangar full of people.

22 Q. Did the sound carry to you?

23 MR. DUNLAP: Objection. Relevance.

24 THE COURT: Well, object to the form of the

25 question.

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140

1 Did you hear what was going on? Not the

2 words, but the tone of the voice.

3 THE WITNESS: Yes.

4 THE COURT: Describe it to the jury.

5 THE WITNESS: We could hear the curse

6 words. From where I was standing outside the control

7 booth with the doors closed, we could very clearly

8 hear that was an irate argument going on in the

9 control booth.

10 BY MRS. MILLER:

11 Q. How long did that argument continue while you

12 were outside the control booth?

13 A. It continued approximately another five to ten

14 minutes.

15 Q. And could you -- were you able to see into the

16 work booth?

17 A. Yes.

18 Q. And why is that? How is that?

19 THE COURT: Well, that is his opinion.

20 Did you see into the work booth?

21 THE WITNESS: I did.

22 They are glass window partitions.

23 THE COURT: What did you see?

24 THE WITNESS: I saw Danny and Chris in the

25 booth arguing.

QUAN - DIRECT (MILLER)

141

1 BY MRS. MILLER:

2 Q. Did there come a time when one or the other of

3 them left the work booth, that you could observe?

4 A. Yes.

5 Q. Which one left the booth?

6 A. Danny Gonzalez left the booth.

7 Q. Did there come a time later that day when you

8 again saw Danny Gonzalez at that booth?

9 A. Yes.

10 Q. Approximately how long was it afterward that you

11 again saw Danny Gonzalez at that booth?

12 A. It was approximately 20 minutes to two hours

13 later, Danny came back into the booth.

14 Q. And where were you?

15 A. I was in the booth.

16 Q. Who, if anyone, was in the booth with you?

17 A. Chris DeStefano.

18 Q. What did Danny do?

19 A. Danny walked in and in a calm way said hello to

20 us, and made a couple of statements.

21 Q. And was he carrying anything?

22 A. (Pause) I don't recall.

23 Q. Did he do anything?

24 A. Yes.

25 Q. First of all, did he make the statements before

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142

1 he did something or did he do the thing before he made

2 the statement?

3 THE COURT: What did you see him do when he

4 came in the booth, if anything?

5 THE WITNESS: He walked into the booth,

6 said hello; then he walked over to the board and

7 picked up a work card.

8 THE COURT: And what? What did he do?

9 THE WITNESS: And I saw him sign something

10 off on the work card.

11 THE COURT: All right.

12 THE WITNESS: I saw him write on the work

13 card.

14 BY MRS. MILLER:

15 Q. Did you hear anything at that point?

16 A. Yes.

17 Q. What did you hear?

18 A. Danny made a statement to Chris and me in the

19 work booth that, "See, Chris, this C check will be

20 over before you know it."

21 Q. Did you observe or hear Danny Gonzalez do

22 anything further?

23 A. No.

24 Q. Did you observe him leave?

25 A. Yes.

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143

1 Q. Before he left, did you see anything that

2 happened to the document that he had signed?

3 A. He placed it on a -- in a box on a table.

4 Q. Do you know what the document was?

5 A. Yes.

6 Q. How is it that you know what the document was?

7 THE COURT: I'm sorry. I'm sorry to

8 interrupt you.

9 He put a card on the table. What was the

10 card?

11 THE WITNESS: It was a work card related to

12 fuel bio-bor treatment of fuel tanks on the airplane.

13 THE COURT: Did you see what he had written

14 on the card?

15 THE WITNESS: No, I did not.

16 BY MRS. MILLER:

17 Q. How firm is your recollection as to what the

18 document was?

19 A. It is not very firm.

20 Q. What was Christopher DeStefano's position prior

21 to this discussion?

22 THE COURT: You mean, what was his job?

23 MRS. MILLER: Yes, sir, what was his title.

24 THE COURT: What was his job title?

25 THE WITNESS: He was supervisor.

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144

1 Q. Did that change following this discussion?

2 A. He remained supervisor, but not on that project.

3 He switched. He was removed from the Ascera project

4 and placed on another project.

5 Q. What happened with regard to the new work card

6 system that you and Mr. Gonzalez -- excuse me, that

7 you and Mr. DeStefano arranged?

8 MR. DUNLAP: Objection. Relevance.

9 Foundation.

10 THE COURT: Well, did the work card

11 arrangement system you established or set up, did it

12 change at some time?

13 THE WITNESS: Yes, Your Honor.

14 THE COURT: When?

15 THE WITNESS: Immediately after the

16 argument, I switched it back to the old system.

17 THE COURT: Did you do that of your own

18 volition?

19 THE WITNESS: No. I did it on orders of

20 Danny Gonzalez.

21 THE COURT: And that occurred after the

22 argument?

23 THE WITNESS: Yes, Your Honor.

24 THE COURT: How soon after the argument?

25 THE WITNESS: Immediately after.

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145

1 THE COURT: The same day?

2 THE WITNESS: The same day. After the

3 argument when Danny left the booth for the final time,

4 he said change it back, and I did.

5 THE COURT: All right.

6 BY MRS. MILLER:

7 Q. I would like to turn your attention to a later

8 period in time, Mr. Quan, 1996. Did you continue to

9 work at this company in 1996?

10 A. Yes.

11 Q. Did its name change?

12 A. Yes.

13 Q. And what project were you working on in the

14 spring of 1996?

15 A. I was working on Carnival Airlines, on their C

16 checks, and I was working on the Carnival Airbus.

17 Q. Were you aware of other projects ongoing in the

18 SabreTech repair station at the same time?

19 A. Yes, I was.

20 Q. And were you aware of any projects related to any

21 MD-80s?

22 A. Yes, I was.

23 MR. MOSKOWITZ: Objection. Foundation.

24 THE COURT: Sustained.

25 When, where, who was present?

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146

1 Q. In the spring of 1996, Mr. Quan.

2 A. Yes, I was aware of other projects there, of

3 other aircraft and other airlines that the company was

4 working on.

5 Q. How is it that you were aware of them?

6 A. Because I saw them, and one of the supervisors

7 wanted me to go work on that project.

8 Q. Which project was that?

9 A. ValuJet.

10 Q. What type of aircraft were they?

11 A. They were both DC-9 and MD-80s.

12 Q. Did you go to work on that project?

13 A. No, I did not.

14 Q. Mr. Quan, I am handing you what has been marked

15 as Government Exhibit 36. Do you recognize Government

16 Exhibit 36?

17 A. Yes.

18 Q. When did you first see that?

19 A. In April of 1996.

20 Q. Where did you first see Government Exhibit 36?

21 A. This was posted right beside the time clocks.

22 Q. Is this at SabreTech?

23 A. At SabreTech, in the hangar facility.

24 Q. Did it relate to --

25 THE COURT: Before we get into what it is,

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147

1 could we establish it appears to be and it is genuine

2 and then offer it and then let's see. Let's not get

3 into what it is and what it says.

4 You have seen this document before?

5 THE WITNESS: Yes.

6 THE COURT: Is it an accurate and correct

7 copy or the original of what you saw before?

8 THE WITNESS: Yes, Your Honor.

9 THE COURT: And you saw it posted on a

10 bulletin board at ValuJet in April of 1996, is that

11 right?

12 THE WITNESS: Yes, Your Honor.

13 THE COURT: Are you offering it in

14 evidence?

15 MRS. MILLER: Yes.

16 MR. MOSKOWITZ: Objection, Your Honor.

17 Relevance.

18 THE COURT: All right. Marshal, hand it up

19 to me. Let me look at the relevancy.

20 The objection as to relevancy is

21 overruled. The document is admitted into evidence as

22 Government Exhibit 36.

23 (Government's Exhibit 36 in evidence.)

24 THE COURT: Now you may inquire what this

25 document is all about.

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148

1 BY MRS. MILLER:

2 Q. Mr. Quan, what is this document all about?

3 THE COURT: Sorry. My fault. I misled

4 you.

5 I have no objection to you handing it to

6 the jury and letting them read it. It is a one-line

7 statement.

8 MRS. MILLER: I thought I would put it on

9 the magnifier, Your Honor.

10 THE COURT: All right. That will be good.

11 That will be great.

12 This basically says everybody has work

13 seven days a week.

14 THE WITNESS: Yes.

15 THE COURT: And did you do that, for the

16 period thereafter?

17 THE WITNESS: For the first week I did; but

18 I did not thereafter, I personally did not.

19 THE COURT: So you worked the first week

20 seven days a week?

21 THE WITNESS: Yes.

22 THE COURT: Your regular schedule.

23 THE WITNESS: Plus my days off. But after

24 that, I continued to take my days off.

25 BY MRS. MILLER:

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149

1 Q. Who was this memo sent by, Mr. Quan?

2 MR. DUNLAP: Objection. Document speaks

3 for itself.

4 MRS. MILLER: Your Honor, it is pretty

5 small type.

6 THE COURT: Oh, well, the jury may have

7 trouble reading it then.

8 It is on SabreTech --

9 MR. DUNLAP: If I may object. She asked

10 who it was sent by. Foundation.

11 THE COURT: Yeah. All right.

12 MRS. MILLER: Your Honor, may I read the

13 document out loud?

14 THE COURT: If you like, yes.

15 MRS. MILLER: "Inter-office memorandum,

16 SabreTech. To directors, supervisors and maintenance

17 personnel. From Danny Gonzalez. Re: Heavy work

18 load. Date, April 26, 1996.

19 "Effective immediately, due to the present

20 work load, all maintenance personnel including

21 management are required to work seven days, including

22 days off. We will return to regular work schedule

23 when the three (3) MD-80s are delivered.

24 "Message:" Quote, "Teamwork is the

25 ability to work together toward a common vision, the

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150

1 ability to direct individual accomplishment toward

2 organizational objectives. It is fuel that allows

3 common people to attain uncommon results." Jay

4 Galindo.

5 Who is Jay Galindo?

6 A. The president of SabreTech in Miami.

7 Q. Is that G-A-L-I-N-D-O?

8 THE COURT: If you know.

9 THE WITNESS: I don't know for certain.

10 THE COURT: All right. Let's move on.

11 Q. Did there come a time when you, Mr. Quan, made a

12 copy of any records at SabreTech?

13 A. Yes.

14 Q. And when was that?

15 A. This was in May of 1996.

16 Q. Was it before or -- approximately when in May was

17 it?

18 A. This was several days after the ValuJet aircraft

19 crashed.

20 Q. What did you copy?

21 MR. MOSKOWITZ: Objection. Relevance, Your

22 Honor. Relevance to what copies this gentleman made

23 after the crash.

24 THE COURT: All right.

25 Is there anything else you can go into and

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151

1 come back to this?

2 MRS. MILLER: Your Honor, this is just

3 about -- this is just about the end of my examination.

4 THE COURT: Thank you.

5 Would you step out please, ladies and

6 gentlemen.

7 (The jury withdrew from the courtroom at

8 2:52 p.m.)

9 THE COURT: She asked you if you took a

10 document from the premises. Did you?

11 THE WITNESS: Yes.

12 THE COURT: What did you take?

13 THE WITNESS: A copy of the maintenance

14 manual relating to the oxygen generators.

15 THE COURT: Do you have it today?

16 THE WITNESS: I don't.

17 THE COURT: Do you know where it is?

18 THE WITNESS: I don't. I lost it. Threw

19 it away. It is long gone.

20 THE COURT: What is the relevance of a

21 document that is missing and not available?

22 MRS. MILLER: Because he recognizes

23 Government Exhibit 38 as a copy of what he copied that

24 day.

25 THE COURT: Well, the objection to the

QUAN - DIRECT (MILLER)

152

1 question at this time is as to materiality of

2 something that is taken and missing --

3 MRS. MILLER: It is not missing, Your

4 Honor.

5 THE COURT: Excuse me.

6 I did not realize when Mr. Moskowitz made

7 his objection that there appeared to be some sort of

8 copy that she was going to attempt to get identified.

9 So if the document is or -- let's go through that

10 then.

11 Can you take a look at this document

12 Mrs. Miller is going to hand you and tell me if you

13 have ever seen anything like that before, or seen that

14 or anything like it before.

15 MRS. MILLER: (Handing a document to the

16 witness.)

17 THE WITNESS: (Pause)

18 MR. DUNLAP: We have not seen or know what

19 she is offering.

20 MRS. MILLER: Here it is.

21 THE COURT: Well, if he can't identify it,

22 Mr. Dunlap, it doesn't matter whether you look at it

23 or not.

24 MR. DUNLAP: I agree.

25 MRS. MILLER: I just handed a copy to

QUAN - DIRECT (MILLER)

153

1 defense counsel.

2 THE COURT: Very good.

3 THE WITNESS: I can identify this copy of

4 what I took out, a copy of the maintenance manual, and

5 I took home.

6 THE COURT: So you made a copy of a

7 maintenance manual and took it home with you.

8 THE WITNESS: Yes, Your Honor.

9 THE COURT: And you have lost that. But

10 this document that you have in your hand appears to be

11 a true and correct copy of what you took from the

12 office, made a copy of, took home and have since

13 lost.

14 THE WITNESS: Yes, Your Honor.

15 And there are key words here that I

16 recognize on this copy, like the 500 degrees

17 Fahrenheit.

18 THE COURT: Do you know where that copy

19 came from? You, yourself.

20 THE WITNESS: This is a copy of -- looks

21 like a copy of the MD-80 maintenance manual. I don't

22 know who made the copy or where they got it from.

23 THE COURT: Now, you don't have the

24 original and you have -- you made a copy of the

25 original maintenance manual, correct?

QUAN - DIRECT (MILLER)

154

1 THE WITNESS: We use these cartridge tapes

2 in the machines and we put them in and we just hit the

3 print button and print it out, and this is done for

4 all types of maintenance. We hit the button and get

5 the printouts and go look at it that way. It is very

6 common.

7 THE COURT: This is a maintenance manual.

8 It is not a work record or anything of that sort; is

9 that right?

10 THE WITNESS: Yes, Your Honor, it is a

11 maintenance manual.

12 THE COURT: And a maintenance manual is

13 something that you and/or the other supervisors and

14 mechanics use in doing work on these airplanes; isn't

15 that right?

16 THE WITNESS: Yes, Your Honor.

17 THE COURT: So it is for use of the person

18 who is -- whoever it is that is performing the work or

19 responsible for supervising it is what you are

20 supposed to be doing; is that it? It's a manual.

21 THE WITNESS: Yes, Your Honor.

22 THE COURT: All right. Now, then, what is

23 your objection, Mr. Moskowitz?

24 MR. MOSKOWITZ: Your Honor, if this is the

25 maintenance manual SabreTech for these aircraft and

QUAN - DIRECT (MILLER)

155

1 there is no implication it has been missing, tampered

2 with or otherwise made unavailable, then I don't see

3 why this excerpt should come in through this witness.

4 He is not in a position to testify about the

5 contents. He is not in a position to testify if this

6 is presumably exactly what he took or even if it is

7 relevant. I just don't get the point.

8 THE COURT: There is no chain of custody,

9 no predicate laid for the introduction of this

10 particular piece of paper.

11 This witness can testify that he Xeroxed a

12 copy of a portion of a maintenance manual, he took it

13 home and he doesn't have it now.

14 You can show -- I suppose you can hand him

15 a maintenance manual and ask him if that is it and

16 call his attention to a particular page, the one that

17 was in use at the time at SabreTech. And if you have

18 a correct and true copy of that, show it to counsel,

19 see if they have any objection, and then he can state

20 that that is what he took home.

21 But if your real intent is to ask him why

22 he did that --

23 MRS. MILLER: No, sir.

24 THE COURT: -- that is going to be objected

25 to and --

QUAN - DIRECT (MILLER)

156

1 MRS. MILLER: No, that is not my intent at

2 all.

3 THE COURT: Given that, is there any --

4 Mr. Dunlap, any objection?

5 MR. DUNLAP: My objection to the line of

6 questioning is that whether he made a copy or not is

7 irrelevant. Apparently, from my point of view, it is

8 Miss Heck's intent to show he copied it to highlight

9 it, to show it is significant or somehow very

10 important and to emphasize its importance in the mind

11 of the jury, or to imply he felt it would become

12 missing or something.

13 If I am not mistaken, this is one of many

14 documents we have offered to stipulate to; is it not?

15 MRS. MOSKOWITZ: I don't know. I have a

16 different objection.

17 MR. DUNLAP: Well, I have to check with my

18 cocounsel.

19 THE COURT: Let me interrupt all of you,

20 please, to say that the manual that was used by the

21 mechanics at that given time may -- there may be other

22 problems with it, but, generally speaking, is probably

23 admissible into evidence.

24 I see no reason for this witness to give

25 this testimony except to indicate that there was some

QUAN - DIRECT (MILLER)

157

1 particular problem in his mind with what was going on

2 at the shop, and his opinion about that is irrelevant,

3 inadmissible, and cannot be argued to this jury. It

4 is totally immaterial what he thought or did not

5 think.

6 He can tell the jury what he heard people

7 say, what he saw and observed; but not what he in his

8 opinion thinks. And that's where this seems to be

9 headed.

10 MRS. MILLER: That is not where it is

11 heading. I was not going to ask any questions like

12 that.

13 THE COURT: You just want to get the manual

14 in evidence.

15 MRS. MILLER: I want to introduce in

16 evidence through this witness's testimony that this is

17 a copy of what he saw and that was there at SabreTech

18 in late May of 1996.

19 THE COURT: And he wouldn't remember

20 whether he saw the manual there or not; is that it?

21 MRS. MILLER: He remembers he copied the

22 manual and recognizes this as a copy of what he saw.

23 THE COURT: Do you remember seeing a manual

24 at SabreTech in those years?

25 THE WITNESS: Yes, Your Honor.

QUAN - DIRECT (MILLER)

158

1 THE COURT: You worked with it every day?

2 THE WITNESS: I didn't work on the ValuJet,

3 but --

4 THE COURT: You had it available and you

5 are familiar with it, is that right?

6 THE WITNESS: Yes, Your Honor.

7 THE COURT: If somebody handed it to you,

8 you could glance through it and see if it appears to

9 be the same manual; couldn't you?

10 THE WITNESS: It is not in book form. It

11 is on cartridge tapes.

12 THE COURT: So somebody would have to play

13 the tapes for you?

14 THE WITNESS: Yes, Your Honor.

15 THE COURT: That is the best you will get

16 out of this. Otherwise it is simply highlighting and

17 leaves the impression in the minds of the jury that he

18 though that there is a need for that particular page

19 or that particular tape.

20 I think that objection is a good one. And

21 there it is. We will sustain that objection without

22 prejudice to the government's right to have the

23 particular tape he is talking about printed out, shown

24 to counsel, and admitted probably on stipulation.

25 MRS. MILLER: Your Honor, what we would --

QUAN - DIRECT (MILLER)

159

1 THE COURT: I have ruled on this. Let's

2 move on.

3 MRS. MILLER: But I am not sure what you

4 ruled on.

5 THE COURT: Well, I'm telling you what I

6 ruled on. Make a copy of the manual, bring it in.

7 Anybody can identify it. You can ask anybody to

8 identify it. And it will be admitted.

9 Picking out something that this man made a

10 copy of, took out of there, is only trying to show the

11 jury that he had some problem with that particular

12 part of the manual. And that's not relevant, and

13 that's it.

14 Bring the jury in.

15 Do you have any other questions of this

16 witness?

17 MRS. MILLER: Your Honor, I may not.

18 THE COURT: Fine. Bring the jury in.

19 MRS. MILLER: Well, I am not sure --

20 Well, bring them in. I will ask him.

21 (The jury re-entered the courtroom at 3:03

22 p.m.)

23 THE COURT: Be seated.

24 Next question

25 BY MRS. MILLER:

QUAN - DIRECT (MILLER)

160

1 Q. With regard to Government Exhibit 36, Mr. Quan,

2 let me just ask you a yes-or-no question, if I might.

3 Did you have a state of mind with regard to

4 the matter that is discussed there concerning the late

5 deliveries of MD-80s?

6 MR. DUNLAP: Objection. Relevance.

7 MR. MOSKOWITZ: Objection.

8 THE COURT: Sustained.

9 Q. What, if anything, had you heard at SabreTech

10 with regard to --

11 THE COURT: The objection is sustained.

12 You can ask him what he did after that,

13 and --

14 That said, if everybody came to work and

15 you came to work for a week, including your days

16 off --

17 THE WITNESS: I worked my two days after

18 the first week, and after that I continued to take my

19 days off.

20 THE COURT: -- and you worked your regular

21 shift without working your days -- without working the

22 days on your holidays?

23 THE WITNESS: Yes, Your Honor.

24 THE COURT: After the first week?

25 THE WITNESS: Yes.

QUAN - DIRECT (MILLER)

161

1 THE COURT: That is what he did. His

2 opinions about all that is sustained.

3 MRS. MILLER: I am not offering it --

4 THE COURT: The objection is sustained.

5 Do you have another question?

6 MRS. MILLER: No, sir, no questions for

7 this witness.

8 THE COURT: Any questions for this

9 witness?

10 MR. MOSKOWITZ: Yes, Your Honor.

11 THE COURT: Mr. Moskowitz.

12 CROSS-EXAMINATION

13 BY MR. MOSKOWITZ:

14 Q. Good afternoon, Mr. Quan. My name is Norman

15 Moskowitz, and I represent SabreTech.

16 You began working at SabreTech just before

17 Thanksgiving in 1995; is that correct?

18 A. Yes, sir.

19 Q. It was not October, it was late November, 1995?

20 A. I don't recall the exact date.

21 Q. You filled out an application form?

22 A. Yes, I did.

23 Q. If I showed you your application, would that

24 refresh your recollection as to when you applied and

25 when you began?

162

1 A. Yes.

2 MR. MOSKOWITZ: I will just mark this for

3 identification. I will not offer it.

4 THE COURT: Just show it to him and he will

5 tell you the date. Whatever the date shows is the day

6 he commenced. There is no big issue over this. Let's

7 not waste a lot of time.

8 When is your best recollection of when you

9 started?

10 THE WITNESS: November of 1995. I don't

11 recall the exact date.

12 THE COURT: Fine.

13 Ask him the date on the application. You

14 can say it from there.

15 What does the date show? If the date shows

16 November --

17 Q. Does November 20, around November 20, 1995, sound

18 correct?

19 A. Yes.

20 THE COURT: See how easy it is? Let's move

21 on. Very easy.

22 Q. Mr. Quan, you testified that you were

23 recommended -- a recommendation to come to SabreTech

24 came from Chris DeStefano; is that correct?

25 A. Yes.

163

1 Q. And had you known Mr. DeStefano about five years?

2 A. Since 1990.

3 Q. From Eastern Airlines?

4 A. Yes.

5 Q. And you were friend at the time he recommended

6 you come to SabreTech; is that correct?

7 A. Yes.

8 Q. And the person who hired you at SabreTech was

9 Mr. Gonzalez, correct?

10 A. Yes.

11 Q. Mr. DeStefano brought to you meet Mr. Gonzalez;

12 is that correct?

13 A. Yes.

14 THE COURT: He said all this just ten

15 minutes ago. Why don't we move to whatever it is

16 predicated on, the fact that DeStefano brought him

17 there, Mr. Gonzalez hired him, he worked there. Let's

18 move to whatever your question is.

19 MR. MOSKOWITZ: Just give me one more

20 moment on this and I believe I can tie it up.

21 THE COURT: Sure.

22 Q. In deciding to go to work there, Mr. DeStefano

23 told you various things about SabreTech; is that

24 correct?

25 A. Yes.

164

1 Q. I am not going to ask you --

2 A. Actually it was Dynair Tech.

3 Q. I will not ask you the content of what he told

4 you; but whatever Mr. DeStefano told you about the job

5 he wanted you to take, it was positive, correct?

6 MRS. MILLER: Objection, Your Honor.

7 THE COURT: Sustained.

8 Q. Is there anything Mr. DeStefano told you in

9 suggesting you take the job at SabreTech which would

10 cause you not to want to take the job?

11 MRS. MILLER: Objection.

12 THE COURT: Overruled. He may answer

13 that.

14 A. No. As a matter of fact, he told me that he had

15 some problems with --

16 THE COURT: No, you can't tell the jury

17 what he said. That is hearsay.

18 But after your discussion with him, you

19 went over and took the job, right?

20 THE WITNESS: Yes, Your Honor.

21 THE COURT: All right.

22 And you were happy to get the job?

23 THE WITNESS: Yes.

24 THE COURT: Okay. Next question.

25 Q. You went to work as Mr. DeStefano's assistant; is

165

1 that correct?

2 A. Yes.

3 Q. And he was working as a supervisor on this Ascera

4 Airline project, correct?

5 A. Correct.

6 Q. And the Ascera Airline project involved two

7 aircraft owned by Ascera; is that correct?

8 A. When I first went to work there, it was one

9 aircraft, aircraft 705. The second aircraft came

10 later.

11 Q. That is the aircraft you identified as 720?

12 A. Yes.

13 Q. 705 are the registration numbers of the aircraft?

14 A. Yes.

15 Q. It appears up on the tail; that is how you know

16 what the aircraft is?

17 A. Yes.

18 Q. You testified that Mr. DeStefano wanted your help

19 in dealing with the paperwork on that project; is that

20 correct?

21 A. That's correct.

22 Q. And he was having -- this is a project where he

23 was the supervisor in charge of that paperwork; is

24 that correct?

25 A. That's correct.

166

1 Q. And you understood when you got there that there

2 were significant problems with that paperwork,

3 correct?

4 A. That's true.

5 Q. In fact, you testified earlier that --

6 A. If I may say here, when I first got there, I

7 didn't understand anything. He acclimated me to the

8 procedures of the booth and the problems he was

9 having. Oh, very shortly after I started, I

10 understood the problems.

11 Q. You were completely new to this?

12 A. I was not completely new to C checks, but I was

13 new to the booth.

14 Q. You were new to handling this type of paperwork?

15 A. I handled work cards before Eastern, but not in a

16 control booth setting, that's correct.

17 Q. You were new to the process of trying to control

18 the flow of paperwork?

19 A. That's true.

20 Q. This was a new job for you?

21 A. Yes. Actually --

22 Q. Can you just wait? I have another question.

23 MRS. MILLER: I don't know if the witness

24 completed his answer.

25 THE COURT: Ask your next question. What

167

1 is it?

2 Q. In fact, you testified to Mrs. Miller's questions

3 that Mr. DeStefano complained on this job he lost a

4 lot of paper; is that correct?

5 A. No, didn't say he had lost it. He said there was

6 a lot of lost paperwork on the project.

7 Q. This was the project on which he was the

8 supervisor, correct?

9 A. That's correct.

10 Q. So the project which he was supervising, where he

11 was supervising the paperwork, there were a lot of

12 problems with that paperwork, correct?

13 THE COURT: According to what you heard him

14 say to the defendant, right?

15 THE WITNESS: I'm sorry, repeat that, Your

16 Honor?

17 THE COURT: Well, you told the jury what

18 you heard him say to the defendant.

19 THE WITNESS: Yes.

20 THE COURT: All right. Did that involve or

21 did the subject of lost paperwork come up in that

22 conversation with the defendant that you heard the

23 argument?

24 THE WITNESS: Yes, it did.

25 THE COURT: And what was said, precisely?

168

1 THE WITNESS: This was on the second check

2 that the argument occurred.

3 THE COURT: What was said about lost

4 paperwork?

5 THE WITNESS: We are losing too much

6 paperwork, we are losing way to much paperwork on this

7 check. On the previous check aircraft 705, I am

8 paraphrasing, we can't do this check the same way, we

9 have to do this check differently. We have to control

10 the paperwork, limit access to the booth and not lose

11 as much paperwork the next time around.

12 BY MR. MOSKOWITZ:

13 Q. That was the project under Mr. DeStefano's

14 position, correct?

15 A. That's correct.

16 Q. Now, you testified that shortly before Christmas

17 you were a witness to an argument between

18 Mr. DeStefano and Mr. Gonzalez, correct?

19 A. That's correct.

20 Q. And that took place in the control booth; is that

21 correct?

22 A. In the control booth and out in the hangar, it

23 continued on out into the hangar.

24 Q. The control booth is where the work cards and the

25 other documents relating to that C check on that

169

1 aircraft would be found, correct?

2 A. That's correct.

3 Q. And each day the supervisors hand out the

4 assignments to the various mechanics who do work from

5 that control booth, correct?

6 A. That's not the way it happened on the first

7 check. On the first check, some of the mechanics

8 actually went into the booth and picked up whatever

9 assignments they wanted to work.

10 Q. Now, you testified that Mr. Gonzalez came to the

11 booth and looked at the way the paperwork had been

12 arranged by you and Mr. DeStefano in that booth,

13 correct?

14 A. That's correct.

15 Q. Now, you understood that Mr. Gonzalez was, of

16 course, Mr. DeStefano's supervisor; is that correct?

17 A. I did.

18 Q. And you knew Mr. Gonzalez from Eastern Airlines

19 as well from five years ago?

20 A. Acquainted with him.

21 Q. You knew he was senior mechanic there?

22 A. Yes.

23 Q. You knew Mr. Gonzalez was a very experienced

24 maintenance mechanic and supervisor, correct?

25 A. I knew his reputation for being a mechanic was

170

1 good.

2 Q. He had a good reputation.

3 A. Yes.

4 Q. In fact, his reputation even as a supervisor is,

5 he was a supervisor that would roll up his sleeves and

6 do work with mechanics on the floor; is that correct?

7 MRS. MILLER: Objection to reputation, Your

8 Honor.

9 THE COURT: Did you ever see him go onto

10 the planes and do work with the mechanics?

11 THE WITNESS: He was -- yes, he would

12 frequently roll up his sleeves and work, even as a

13 director of maintenance.

14 BY MR. MOSKOWITZ:

15 Q. This aircraft working on 720, it was a DC-9,,

16 correct?

17 A. Yes.

18 Q. You knew that at this facility there had been a

19 lot of work before on DC-9s, correct?

20 A. No. I was just hired there and I didn't know

21 what work had just been done, no, I didn't.

22 Q. Do you know whether there had been work on DC-9s

23 before?

24 A. I didn't know.

25 Q. Were there DC-9s at Eastern Airlines?

171

1 A. There were.

2 Q. Do you know that Mr. Gonzalez was an expert on

3 DC-9s?

4 MRS. MILLER: Objection.

5 THE COURT: You can develop through

6 conversations he may have had about this, but just

7 asking him generally opinion questions, I will have to

8 sustain the objection.

9 Q. Sir, you are aware that at a repair facility like

10 the Dynair Tech facility, all the work is controlled

11 by written procedures; is that correct?

12 A. That's correct.

13 Q. And there were procedures which define what each

14 employee's responsibilities are, correct?

15 A. Yes.

16 Q. And those are written down in manuals, correct?

17 A. I don't recall seeing that.

18 Q. You don't recall.

19 A. I can't recall that. I can't -- I don't recall.

20 Q. Is it your understanding with regard to doing the

21 work which is done at SabreTech, the repair work, that

22 that is controlled by manuals which the employees are

23 supposed to follow, correct?

24 A. Yes.

25 Q. And there are manuals which set up the procedures

172

1 for doing work on a job like the Ascera job, correct?

2 A. I didn't see any manual for controlling the

3 Ascera project.

4 Q. Are you aware, sir, that there was a manual which

5 defined the job responsibilities of all the employees

6 at SabreTech?

7 MRS. MILLER: Your Honor, that has been

8 asked and answered. Objection.

9 THE COURT: Well, it calls for an opinion

10 also.

11 Did you ever see a manual control the

12 procedures?

13 THE WITNESS: No, I did not. I never saw a

14 manual for the Ascera project.

15 Q. Before the Ascera?

16 A. Before or during the Ascera project, nobody

17 showed me a manual saying this is how we do it.

18 Q. With regard to, for example, the procedures to be

19 followed in organizing the work cards on the project,

20 are you aware whether there were written procedures

21 which required that that be done in a particular way?

22 A. I was not aware of any written procedures, no.

23 Q. Are you saying you don't know whether there were

24 or there weren't or you know there weren't?

25 MRS. MILLER: Objection.

173

1 THE COURT: Did you ever see a manual that

2 showed you how to lay out the work cards in the

3 control booth?

4 THE WITNESS: No, I did not.

5 THE COURT: Next question.

6 Q. Are you aware, sir, that --

7 THE COURT: The difficulty, Mr.

8 Moskowitz -- I'm sorry to interrupt you -- every

9 question starts with "are you aware." That could be

10 something having a couple of beers with somebody after

11 work, could be from something he read since this.

12 It is what he knew at the time that is

13 causing the problem about the objections. Maybe if we

14 can find out what he saw, what he dealt with, what the

15 people said to him, if it is not hearsay --

16 MR. MOSKOWITZ: Let me approach it a little

17 differently.

18 Q. You testified you and Mr. DeStefano worked out a

19 new set of procedures for controlling that paperwork;

20 is that correct?

21 A. That's correct.

22 Q. And you and Mr. DeStefano put that into effect on

23 the Ascera job; is that correct?

24 A. We attempted to. We didn't actually put it into

25 effect.

174

1 Q. You went so far as reorganizing the paperwork on

2 the board; is that correct?

3 A. That's true.

4 Q. Before you made those changes, did you or

5 Mr. DeStefano consult with Mr. Gonzalez about doing

6 that?

7 A. I consulted with Chris about consulting with

8 Danny.

9 Q. But you did not consult with Danny; did you?

10 A. I did not personally consult with Danny about it.

11 Q. And you do not -- personally do not know if Chris

12 consulted with Danny; do you?

13 A. I don't know.

14 Q. Now, above Mr. Gonzalez there are other people in

15 the managerial chain at that facility; is that

16 correct?

17 A. That's true.

18 Q. Now, did you consult with anyone above

19 Mr. Gonzalez about making those changes?

20 A. No. I just consulted with my direct supervisor,

21 Chris DeStefano.

22 Q. And you don't know if Chris consulted with anyone

23 but Mr. Gonzalez; do you?

24 A. I don't know.

25 Q. So you have no idea whether Mr. DeStefano took

175

1 this upon himself without consulting with his

2 superiors about making these changes; do you, of your

3 own knowledge?

4 MRS. MILLER: Objection, Your Honor. Asked

5 and answered.

6 THE COURT: No. It is sustained on

7 materiality.

8 Q. You testified that this argument took place

9 shortly before Christmas, correct?

10 A. That's correct.

11 Q. Now, you didn't maintain a notation in the diary

12 or calendar, the date of the argument?

13 A. No.

14 Q. You don't have any written notes which should

15 tell you the precise date; do you?

16 A. No.

17 Q. So it could be the day before Christmas or two

18 days before Christmas?

19 A. It was three to four days before Christmas. It

20 was not Christmas Eve or two days before Christmas.

21 It was three to five days before Christmas.

22 Q. So three days could be December 22?

23 A. Yes.

24 Q. And as early as December 20th. You are not sure;

25 is that correct?

176

1 A. I'm not sure, that's correct.

2 Q. You testified that at some point Mr. Gonzalez --

3 during this argument Mr. Gonzalez asked you to leave

4 the booth; is that correct?

5 A. Yes, he did.

6 Q. Did he do that in a polite fashion?

7 A. Yes.

8 Q. Professional manner?

9 A. Yes. He asked me to please leave the booth, and

10 I did. He was not angry towards me.

11 Q. You testified Mr. Gonzalez at some point took a

12 number of these work cards that were in the booth and

13 took them out on the floor and gave them to mechanics;

14 is that correct?

15 A. Yes, he did.

16 Q. You observed him doing that.

17 A. Yes.

18 Q. And you understood that he was giving those work

19 cards to those mechanics for them to perform their

20 work; is that correct?

21 A. That's true.

22 THE COURT: I'm sorry. You said

23 "understood." You can ask him what he saw him do

24 with the work cards or what he learned from

25 Mr. Gonzalez or some authorized -- I mean, something

177

1 that wouldn't be hearsay about what happened to him.

2 Did you see what Mr. Gonzalez did with the

3 work cards thereafter?

4 THE WITNESS: Yes, I did.

5 THE COURT: Tell the jury what you saw.

6 THE WITNESS: He took the work cards,

7 walked out of the booth, and he handed them out to

8 mechanics.

9 THE COURT: What did you see after that?

10 THE WITNESS: Then he disappeared.

11 THE COURT: What happened to the work

12 cards?

13 THE WITNESS: The mechanics took the work

14 cards and began to work -- went to their assignments.

15 THE COURT: And commenced doing their

16 work.

17 THE WITNESS: Yes.

18 THE COURT: Is there anything unusual about

19 that?

20 THE WITNESS: No, Your Honor.

21 THE COURT: Next question.

22 BY MR. MOSKOWITZ:

23 Q. Now, you saw Mr. Gonzalez come back into the

24 booth after some period of time, correct?

25 A. Yes.

178

1 Q. And take one of the work cards that was still in

2 the booth, correct?

3 A. Yes.

4 Q. And take it down and make notations on that card?

5 A. Yes. I saw him writing on the card.

6 Q. Now, this is one of the cards that was arrayed up

7 on the wall, correct?

8 A. Yes.

9 Q. Do you at this time have a recollection whether

10 any of those cards, other cards, were already filled

11 out or not?

12 A. No.

13 Q. Okay.

14 Now, you testified that the card that you

15 saw Mr. Gonzalez filled out to your recollection

16 related to the biobar?

17 A. Bio-bor.

18 Q. Bio-bor?

19 A. Yes.

20 Q. Bio-bor is a chemical treatment which is added to

21 the fuel in the aircraft; is that correct?

22 A. Yes.

23 Q. It is an additive that is placed into the fuel.

24 A. Yes.

25 Q. And this work card set out a procedure for adding

179

1 that bio-bor additive; is that correct?

2 A. Yes.

3 Q. Are you familiar with the purpose of that

4 procedure?

5 A. Yes, to prevent algae growth and microgrowth in

6 the fuel tanks while fuel is in there.

7 Q. What this card does is set out the steps to be

8 followed if you are going to undertake that procedure;

9 is that correct?

10 A. That's true.

11 Q. And you saw Mr. Gonzalez come in and fill out

12 that card, correct?

13 A. I saw him writing on the card, yes.

14 Q. Let me show you what we have marked for

15 identification as SabreTech 4, and let me ask you if

16 you recognize what this document is.

17 A. Yes, I do.

18 Q. And you recognize it based on your work at

19 SabreTech?

20 A. Yes.

21 Q. All right. And this is a document that you, in

22 fact, saw while you were working on the Ascera project

23 at SabreTech, correct?

24 A. It appears to be the same document.

25 MR. MOSKOWITZ: We move into evidence

180

1 SabreTech Exhibit Number 4.

2 THE COURT: Show it to Mrs. Miller.

3 MRS. MILLER: I have seen it, Your Honor.

4 I have no objection.

5 THE COURT: All right. SabreTech Exhibit

6 Number 4 for identification is admitted into evidence

7 as Exhibit Number 4.

8 (Defendant SabreTech Exhibit 4 in

9 evidence.)

10 MR. MOSKOWITZ: Your Honor --

11 THE COURT: Defense Exhibit Number 4.

12 MR. MOSKOWITZ: May I hand a copy to the

13 Court and --

14 THE COURT: Yes, or you can show it to the

15 jury.

16 MR. MOSKOWITZ: Can I publish copies to the

17 jury?

18 THE COURT: Yes, certainly. Show it on the

19 thing or whatever you want to do.

20 Hand a copy to the jury and let them pass

21 it down and read it.

22 MR. MOSKOWITZ: Does Your Honor wish a

23 copy?

24 THE COURT: I don't think so, unless you

25 think I need -- if you think it is something I need to

181

1 read. I can probably pick up from your extended

2 leading questions everything that is in it in about 30

3 seconds, can't I? I think I will.

4 Defense counsel on cross, I don't want you

5 to misunderstand. They are entitled to ask leading

6 questions.

7 BY MR. MOSKOWITZ:

8 Q. Mr. Quan, this is what is called a routine work

9 card, correct?

10 A. Yes.

11 Q. And this routine work card is three pages,

12 correct?

13 A. Yes, it is.

14 Q. And this is one of the routine work cards from

15 the Ascera Airline project, correct?

16 A. Yes.

17 Q. Now, can you tell for which aircraft this work

18 card was made?

19 A. Yes, it is aircraft 720, the second Ascera plane.

20 Q. How can you tell that?

21 A. The top right corner, under "card number," you

22 will see the notations YV720C. That's the aircraft

23 tail number.

24 Q. Now, just to put this in context, when the Ascera

25 project came in, Ascera Airlines would have delivered

182

1 a whole stack of these routine work cards, correct?

2 A. That's correct.

3 Q. And each routine work card relates to a different

4 task, maintenance task, which Ascera wants performed

5 on that aircraft; is that correct?

6 A. That's correct.

7 Q. And if Ascera wants a task done, it provides a

8 routine work card for that task, right?

9 A. Yes.

10 Q. If there is no work card for a task, the task

11 isn't done, correct?

12 A. That's correct.

13 Q. So this is a document that Ascera provided,

14 correct?

15 A. I don't know if they provided this or not. I

16 assume they did.

17 Q. That is your understanding how the system works.

18 A. Yes.

19 Q. Now, this particular work card relates to the

20 bio-bor treatment, correct?

21 A. Yes, it does.

22 Q. And this is the work card you just talked about a

23 moment ago, correct?

24 MRS. MILLER: It is becoming repetitious.

25 I object --

183

1 THE COURT: I'm sorry, it's what?

2 MRS. MILLER: Repetitious. It is the same

3 document he has been talking about. Asked and

4 answered.

5 THE COURT: I don't know whether it is or

6 not.

7 Can you tell whether that is the document

8 that Mr. Gonzalez took out of the booth and handed to

9 a mechanic?

10 THE WITNESS: It appears to be the same

11 document, but my recollection is not firm.

12 THE COURT: All right. Next question.

13 BY MR. MOSKOWITZ:

14 Q. How do you know this is the work card for the

15 fuel bio-bor treatment?

16 A. Because it says "fuel bio-bor treatment" at the

17 top.

18 Q. Where, approximately?

19 A. Top left corner.

20 Q. Below that double line?

21 A. Yes.

22 Q. All right.

23 Now, now, over to the right where it says

24 "sign off," there are various signatures, is that

25 correct, down that column?

184

1 A. Yes.

2 Q. These signatures on all three pages?

3 A. Yes.

4 Q. Do you recognize whose signature is in that

5 column for the sign off?

6 A. Yes.

7 Q. Whose signature is that?

8 A. Danny Gonzalez.

9 Q. That is Mr. Gonzalez sitting over here.

10 A. Yes.

11 MRS. MILLER: Your Honor, asked and

12 answered.

13 THE COURT: Overruled.

14 Next question.

15 Q. Now, sir, in each of these boxes, except for the

16 first, above Mr. Gonzalez's signature it says N/A. Do

17 you know what that means?

18 A. Yes.

19 Q. What does that mean, sir?

20 A. Nonapplicable.

21 Q. Do you know what it means when a work card is

22 signed off as nonapplicable?

23 A. Yes.

24 Q. What does that mean?

25 A. It means it doesn't apply in this case.

185

1 Q. And does that mean that the work is not -- this

2 particular work is not being done on this aircraft?

3 A. That's true.

4 Q. So when Mr. Gonzalez -- now, it is your

5 recollection that this is the card that Mr. Gonzalez

6 came into the booth when you were there with

7 Mr. DeStefano, and Mr. Gonzalez took down from the

8 rack and then signed off and put in the box, correct?

9 A. Yes.

10 Q. So when Mr. Gonzalez did that and made these

11 notations, he was indicating that this is work that

12 was not going to be done; is that correct?

13 MRS. MILLER: Objection, Your Honor, to

14 what Mr. Gonzalez was indicating.

15 MR. MOSKOWITZ: I am asking what it means.

16 THE COURT: You can rephrase the question

17 to ask this witness, as the controller in that booth,

18 when he saw that card, what did that indicate to you

19 that that meant regarding whether the work was going

20 to be done or not going to be done on that particular

21 item on that particular time.

22 THE WITNESS: As I read it now, N/A means

23 the work is not to be done. It means nonapplicable

24 and the work is not to be done.

25 THE COURT: Stating it differently, if

186

1 somebody handed you a work card and they signed, in

2 that space that says N/A, their name, what would that

3 mean to you as you receive that card?

4 THE WITNESS: That means this work is not

5 to be done on this aircraft. It does not apply.

6 THE COURT: All right.

7 Next question.

8 BY MR. MOSKOWITZ:

9 Q. Mr. Quan, you have no reason to think that this

10 was a false document; do you?

11 A. From Ascera?

12 Q. From Mr. Gonzalez.

13 THE COURT: I'm sorry, sir. You are asking

14 him to give an opinion about truth and veracity of a

15 bit of evidence. That is solely up to the jury.

16 You have been handed this document. Does

17 it appear to be, as far as you are aware, being

18 familiar with these things, to be a proper and genuine

19 copy and original of a document?

20 THE WITNESS: Yes, Your Honor.

21 THE COURT: Does appear to be that.

22 THE WITNESS: Yes, Your Honor.

23 THE COURT: All right.

24 Next question.

25 Q. You are not aware the bio-bor treatment was done;

187

1 are you?

2 A. I don't know. I don't know what treatment or

3 work was done or was not done with regards to the fuel

4 bio-bor treatment.

5 Q. According to this document, the treatment was not

6 done, correct?

7 MRS. MILLER: Your Honor, the document

8 speaks for itself.

9 THE COURT: Sustained.

10 Next question.

11 MR. MOSKOWITZ: One moment, Your Honor.

12 (Pause.)

13 MR. MOSKOWITZ: I have no further

14 questions, Your Honor.

15 THE COURT: Mr. Dunlap?

16 CROSS-EXAMINATION

17 BY MR. DUNLAP:

18 Q. I am Robert Dunlap, and I represent Danny

19 Gonzalez. Good afternoon, sir.

20 A. Good afternoon.

21 Q. When Danny came back into the booth after the

22 initial part of the fight, did you testify he didn't

23 have anything with him, nothing in his hands?

24 A. I don't recall.

25 Q. You don't recall him carrying anything?

BRENNAN - CROSS (DUNLAP)

188

1 A. I don't recall. My memory is not good on that

2 one.

3 Q. On the morning that the fight occurred, you I

4 think testified that it occurred somewhere between 7

5 and 7:30 in the morning?

6 A. Yes.

7 Q. What time did that shift start?

8 A. At 7 o'clock.

9 Q. And what time did you arrive there that day?

10 A. I usually --

11 Q. Approximately.

12 A. I usually arrive 15 to 20 minutes prior to the

13 beginning of my shift.

14 Q. Why is that?

15 A. I liked to be prepared.

16 Q. What would that preparation consist of?

17 A. Going into the booth and seeing what the work --

18 talking with the supervisor.

19 Q. The supervisor would typically be there at that

20 time as well?

21 A. Yes.

22 Q. And that is so you could put the men to work

23 right there at the beginning of the shift?

24 A. Yes.

25 Q. When Mr. Gonzalez showed up, had any paperwork

BRENNAN - CROSS (DUNLAP)

189

1 been handed out to the men so they could start their

2 shift?

3 A. I don't know.

4 Q. You don't recall?

5 A. No.

6 Q. You don't recall there was a line of mechanics

7 waiting -- out the door, waiting to get their

8 paperwork?

9 A. I don't recall. I don't remember that.

10 Q. On SabreTech Exhibit 4 --

11 MR. DUNLAP: May I approach the witness,

12 Your Honor?

13 THE COURT: Yes, sir.

14 Q. -- there is a -- on the first page up at the top

15 of the document it says "Note: Bio-bor treatment not

16 required on tanks not opened, dried and opened for a

17 minimum of 72 hours."

18 Do you see that that has been circled?

19 A. Yes.

20 Q. What does that indicate to you?

21 A. It indicates that is a true statement. Somebody

22 circled it indicating that this is what they were

23 signing off on.

24 Q. Do you know when this plane came in?

25 A. Four or five days, but I don't know the exact

BRENNAN - CROSS (DUNLAP)

190

1 date of when it came in. It was four or five days

2 before Christmas, several days before Christmas of

3 1995.

4 Q. Isn't one of the first things that happens with a

5 plane when it comes in for a C check is that the tanks

6 are drained and opened?

7 A. Typically, yes.

8 Q. So typically the tanks would have been opened

9 several days before this fight broke out?

10 MRS. MILLER: Objection to what happens

11 typically as to what happened in this instance.

12 THE COURT: You may ask him when the plane

13 was drained, but asking him to supply argument is

14 simply getting into argument.

15 When was this plane, 720, drained of its

16 fuel, if you know?

17 THE WITNESS: I don't know when the plane

18 came in. I do not know the exact date that it came

19 in. And I don't know if the fuel tanks at that point

20 had been opened or dried.

21 Q. Did you know that there was a nonroutine work

22 card that had been issued some four days before the

23 fight calling for the tanks to be drained and cleaned

24 and inspected by an independent company called East

25 Coast Tanks?

BRENNAN - CROSS (DUNLAP)

191

1 A. I was not aware of that.

2 Q. You were not aware that was part of the paperwork

3 you were handling in the booth?

4 A. I don't recall that piece of paper.

5 Q. Was that something that happened on 705?

6 A. I started after 705 had gotten to the hangar, so

7 I was not there at the beginning of 705, so I was not

8 there when it would have happened.

9 Q. But if a plane that is going to have an -- do you

10 know what East Coast Tanks does, by the way?

11 A. Yes. They repair fuel tanks on aircraft.

12 Q. Do they do interior inspections of the fuel tanks

13 to see if there are any leaks or problems in the fuel

14 tanks?

15 A. Yes. They get dirty. Lots of fuel on them.

16 Q. And in order to do their work, those tanks have

17 to be drained?

18 A. Yes.

19 Q. And, of course, if the tanks are to be drained,

20 is there any point of putting bio-bor into the tanks?

21 A. No.

22 Q. So that would not be applicable, that work?

23 A. That's true.

24 MR. DUNLAP: No further questions.

25 THE COURT: Mrs. Moskowitz?

BRENNAN - CROSS (DUNLAP)

192

1 MRS. MOSKOWITZ: No, sir.

2 THE COURT: Nothing.

3 Redirect?

4 REDIRECT EXAMINATION

5 BY MRS. MILLER:

6 Q. You testified on cross-examination that mechanics

7 previously were picking up whatever cards they wanted

8 to work. Do you recall that testimony?

9 A. Can you repeat the question? I'm sorry.

10 Q. You testified on cross-examination that, prior to

11 the new system, mechanics were picking up whatever

12 cards they wanted to work. Do you recall that

13 testimony?

14 A. Yes. On aircraft 705, mechanics have free access

15 to the booth and they were able to go in and pretty

16 much pick what card and what assignment they wanted to

17 work.

18 Q. What effect did that have on the documentation

19 and control of the work on 705?

20 MR. MOSKOWITZ: Objection. Asking for his

21 opinion.

22 THE COURT: Did that affect in any way the

23 paper flow and the responsibility to fill out these

24 cards on 705?

25 THE WITNESS: Yes, Your Honor, very much

BRENNAN - REDIRECT (MILLER)

193

1 so. We lost a lot of paperwork regarding the

2 maintenance of 705. We couldn't find a lot of the

3 paperwork --

4 MR. MOSKOWITZ: Objection, Your Honor. I

5 believe he is not testifying based on personal

6 knowledge here. He testified he arrived at a later

7 date.

8 THE COURT: All right.

9 Did you actually see this or is this

10 something you heard from Mr. DeStefano or somebody

11 else?

12 THE WITNESS: No. There was an everyday

13 occurrence. We go into the booth --

14 THE COURT: This is after you arrived.

15 THE WITNESS: Yes. And while you are

16 working there everyday, you would go into the booth

17 and somebody would be asking, Where is this piece of

18 paper? Where is this? So it was an everyday

19 occurrence, we were always looking for some of the

20 work cards.

21 THE COURT: For the work cards.

22 THE WITNESS: For the work cards.

23 THE COURT: All right.

24 Next question.

25 BY MRS. MILLER:

BRENNAN - REDIRECT (MILLER)

194

1 Q. When Mr. Gonzalez left the control booth with

2 work cards in his hands, did you see whether he gave

3 out all the work cards to mechanics on the floor?

4 A. No.

5 MR. DUNLAP: Objection. Beyond the scope

6 of cross.

7 THE COURT: The question is, did you see

8 whether or not he gave out all the work cards.

9 THE WITNESS: No, I didn't see if he

10 gave -- he gave out some, but -- I didn't see him

11 give out all of the work cards. I seen him give out

12 some of the work cards.

13 MRS. MILLER: No further questions.

14 MR. DUNLAP: If I may just briefly.

15 THE COURT: Yes. Can you do it from there

16 in a good loud voice?

17 MR. DUNLAP: Yes, sir, I certainly can.

18 RECROSS-EXAMINATION

19 BY MR. DUNLAP:

20 Q. With respect to the problem of the control of

21 work cards on 705 with mechanics coming in and out of

22 the booth, that was Mr. DeStefano's principal job;

23 wasn't it?

24 THE COURT: This had been asked and

25 answered.

BRENNAN - REDIRECT (MILLER)

195

1 You may step down, sir.

2 (Witness excused.)

3 THE COURT: Ladies and gentlemen, we'll

4 take a brief recess at this time before we take the

5 next witness. Thank you. If you will step into the

6 jury room.

7 (The jury withdrew from the courtroom at

8 3:37 p.m.)

9 MRS. MILLER: Your Honor, I just wanted to

10 alert the Court, the next witness is the one that

11 Mr. McGuirk's motion relates to.

12 THE COURT: All right.

13 This indicates you have been served copies

14 of this. Do any of you intend to get into the areas

15 Mr. McGuirk is concerned about, any of the defense

16 counsel?

17 MR. MOSKOWITZ: Yes, Your Honor.

18 THE COURT: On what basis do you suggest

19 that you may inquire as to what he discussed with his

20 counsel outside the presence of the Grand Jury?

21 MR. MOSKOWITZ: Your Honor, what

22 happened -- I don't know if Your Honor is familiar

23 with the motion.

24 THE COURT: I just read it. That's all I

25 know about it.

MOTIONS

196

1 MR. MOSKOWITZ: Inside the Grand Jury, this

2 concerns a document, a turnover log that

3 Mr. DeStefano, Mr. McGuirk's client, removed from the

4 premises of SabreTech the day after the FBI came in

5 and did a search. He destroyed this document.

6 In the Grand Jury, when he was testifying

7 under immunity, he testified that Mr. McGuirk -- the

8 day after the search, he discovers this document, the

9 FBI has left it; he claims he calls up Mr. McGuirk who

10 is his lawyer, and Mr. McGuirk advises him to remove

11 that document from SabreTech and take it home for safe

12 keeping. He says, based on that advice, he took it

13 home and kept it there.

14 Several months later -- this is his

15 testimony in the Grand Jury -- Mr. McGuirk called him

16 to ask about the document. He then searched for it

17 and he somehow had destroyed it.

18 Our position is, that testimony in the

19 Grand Jury is a waiver of his attorney-client

20 privilege --

21 THE COURT: What is it material to, what

22 his lawyer said to him? What is that material to in

23 this case?

24 MR. MOSKOWITZ: It goes -- that is his

25 explanation.

MOTIONS

197

1 THE COURT: What difference does it make

2 what his explanation is? What you want are facts, not

3 his opinion as to why he took it. What you want --

4 and I hope we are going to get on to facts here in

5 this case, that's the idea of where -- the idea where

6 you under the impression, generally, did you know,

7 what about the atmosphere, were you all breathing

8 heavy fumes and got confused and all that.

9 We need facts and we are starting to get to

10 them, I think. Fact: Did you take Mr. --

11 Mr. DeStefano, did you take -- whatever this thing is,

12 a log, from the premises?

13 Yes.

14 Did you have permission to do so?

15 No, or yes, or whatever he says. And he

16 takes it home.

17 Where did you go?

18 I took it home.

19 What did you do with it after that?

20 I burned it up or threw it away or thought

21 it was going to get me in trouble and I threw it in

22 the Everglades, whatever he did. I don't know.

23 That is what you want to establish.

24 Does it make any difference to your client

25 that he thinks, rightly or wrongly, that his attorney

MOTIONS

198

1 told him to take it?

2 MR. MOSKOWITZ: It does, because I don't

3 think that is credible. I think his explanation of

4 why he took it is simply not truthful, just as long as

5 his explanation is --

6 THE COURT: You can't ask him his opinion

7 why he took something. That is not a proper question

8 to start with. So you never get an answer to that.

9 You are asking for his opinion about

10 things. And that is not a matter of impeachment of

11 credibility, not opinions. Facts are. Facts.

12 He says, I didn't take it and you have a

13 witness that can prove he did take it, now, that's

14 impeachment. But he said, I took it because the

15 spirit moved me or whatever, and you want to argue

16 about that, that is not impeachment.

17 MR. MOSKOWITZ: I understand what the Court

18 is saying. Our position is this: If Mr. DeStefano

19 does not intend to state he took it because

20 Mr. McGuirk told him to take it, we are not --

21 THE COURT: If the government attempted to

22 ask him a hearsay declaration about a conversation he

23 had with his counsel, and if anybody over on the

24 defense objected, and you all have been loath to

25 object because, of course, this opens the hangar door

MOTIONS

199

1 wide open to a whole bunch of immaterial and

2 irrelevant material that you can get into; but

3 assuming somebody would perhaps object to that, clear

4 hearsay declaration, clear hearsay statement,

5 violative of the attorney-client privilege, everything

6 else under the book, it would be sustained. At that

7 point in time it never comes into evidence in this

8 case.

9 So there it is. That's it.

10 The government is -- according to

11 Mr. McGuirk's motion, the government has indicated --

12 and I shall ascertain from Mrs. Miller I suppose at

13 this point in time, the motion indicates -- and

14 Mrs. Miller does not intend to ask him why he took

15 this document, whether it be -- you referred to it in

16 opening statement as the stolen or purloined

17 document. Shades of Edgar Allen Poe. Are you going

18 to get into the purloined document as to why he took

19 it?

20 MRS. MILLER: No, not why he took it. I

21 believe it is Mr. McGuirk's position, and I believe it

22 is correct, that the mere fact Mr. DeStefano talked to

23 his lawyer is not privilege. We did intend to elicit

24 that.

25 THE COURT: That he talked to his lawyer.

MOTIONS

200

1 MRS. MILLER: Yes.

2 THE COURT: And you can bring out what he

3 said to his lawyer.

4 MRS. MILLER: Yes.

5 THE COURT: Why ask him if he talked to

6 him?

7 MRS. MILLER: Because he did consult before

8 he took the book.

9 THE COURT: So you want to get across to

10 the jury that he took the book on some sort of implied

11 consent or approval of his lawyer?

12 MRS. MILLER: No, Your Honor; just that he

13 did consult with somebody to take it.

14 THE COURT: Then right after that he ran

15 out and got the book and took it home, is that the way

16 it would come out? Sorry. I'm sorry. No.

17 If you want to establish for some

18 legitimate reason that the government didn't overreach

19 because they let him talk to his lawyer before he

20 testified to a Grand Jury, although it is immaterial,

21 I suppose you can bring it in, no serious objection.

22 If your intent is to imply he was acting

23 under instructions from his lawyer when he took this

24 so as to provide some sort of an excuse or innocent

25 reason for his taking it, no.

MOTIONS

201

1 The reason he took it is not important.

2 What is important -- what is a fact is that

3 he took it or he didn't take it.

4 And I am not even sure that is important.

5 I don't know what the document is. It may be a

6 relevant document, it may not be. We seem to be

7 trying some irrelevant issues here in this case

8 already, but I guess a few more won't matter.

9 Is this document important in some way?

10 What was the document?

11 MRS. MILLER: Your Honor, it was called a

12 turnover log. It is a record of work that one shift

13 turns over to the next shift.

14 THE COURT: And it was just a particular

15 given shift; is that right?

16 MRS. MILLER: I believe it covered all

17 shifts, Your Honor, with regard to certain work.

18 THE COURT: All shifts --

19 MR. MOSKOWITZ: Your Honor --

20 THE COURT: Tell me.

21 MR. MOSKOWITZ: It covers, according to

22 Mr. DeStefano, a four-month period, from December 1995

23 through early May 1996, on the three ValuJet planes

24 being worked on at this facility.

25 This is the log which is kept by the

MOTIONS

202

1 supervisor as to what happens on each shift. So it is

2 a very important document.

3 THE COURT: Well, he took it, and that is a

4 fact, and you all can argue to the jury your

5 respective logical interpretations to that.

6 Mrs. Miller will argue to the jury, well,

7 he took it -- what would be a good, innocent reason?

8 He took it -- I am trying to think of something that

9 would be -- some argument she would make. He took it,

10 he wanted to work on it at home, something like that.

11 Whatever she wanted.

12 And you will argue that he took it for some

13 nefarious reason, perhaps to insert the poem about the

14 haunting of -- I don't know. Maybe he wanted it as a

15 bookmark or something, whatever your agile mind --

16 You all must argue the facts that you

17 develop in the case. And what these people were

18 thinking in their -- their ideas and all that, their

19 opinions about why they did things is just simply not

20 relevant.

21 So, in any event, the fact that he

22 discussed this with his lawyer, whether it be a

23 violation of attorney-client privilege or not, is

24 immaterial. You never get to the issue because you

25 can't provide him an innocent or an evil reason for

MOTIONS

203

1 taking that by asking him what he was thinking.

2 You can ask him what he did, or what he

3 said to somebody. Maybe he went home and told his

4 wife: I took this because I am afraid it incriminates

5 me. If so, if he had that conversation, I can see a

6 way that you can bring that into this case. I don't

7 want to give it to you because I don't want to be here

8 another three days.

9 All right.

10 (Court recessed at 3:47 p.m.)

11 (Court reconvened at 4:15 p.m., out of the

12 presence of the jury.)

13 THE COURT: All right. Ready to proceed?

14 Bring in the jury.

15 (The jury re-entered the courtroom at 4:15

16 p.m.)

17 THE COURT: Thank you. Be seated.

18 Call your next witness, please.

19 MRS. MILLER: The government calls

20 Christopher DeStefano.

21 THE CLERK: Raise your right hand please.

22 CHRISTOPHER MARIO DeSTEFANO, sworn

23 COURT REPORTER: State your full name for

24 the record please.

25 THE WITNESS: Christopher Mario DeStefano.

DeSTEFANO - DIRECT (MILLER)

204

1 DIRECT EXAMINATION

2 BY MRS. MILLER:

3 Q. What is your profession?

4 A. Aviation maintenance.

5 Q. Do you hold any licenses or certificates in that

6 regard?

7 A. A and P, air frame and power plant license.

8 Q. How long have you held that license?

9 A. Ten years.

10 Q. And where are you currently working?

11 A. At Polar Air Cargo.

12 Q. Where were you working in 1991?

13 A. P.S.A. International.

14 Q. Excuse me. Where were you working in 1990?

15 A. Eastern Airlines.

16 Q. And how long were you -- why did you leave

17 Eastern?

18 A. Went out of business.

19 Q. Where did you go after Eastern?

20 A. P.S.A. International.

21 Q. Did there come a time when you started working

22 for another entity than P.S.A. International?

23 A. I'm sorry, say that again.

24 Q. Did there come a time when you started working

25 for some other entity or business than P.S.A.

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1 International?

2 A. Yes, ma'am. About 19 -- I believe it was around

3 1994, I started working for Dynair Tech.

4 Q. Where was Dynair Tech?

5 A. Miami International Airport. At that time it was

6 located in one of the old Eastern hangars.

7 Q. And what job did you take with Dynair Tech?

8 A. Lead mechanic.

9 Q. How long did you remain a lead mechanic at Dynair

10 Tech?

11 A. I believe it was about nine months.

12 Q. What position did you have after lead mechanic at

13 Dynair Tech?

14 A. As one of the tech crew supervisors.

15 Q. Was that at Dynair Tech?

16 A. Yes, ma'am.

17 Q. What is a tech crew supervisor?

18 A. You oversee basically -- basically, you are

19 assigned an airplane, you oversee the maintenance on

20 it, make sure that it is done in a timely -- according

21 to their schedule that is set forth. And make sure

22 the airplane gets done right.

23 Q. How long did you remain a tech crew supervisor?

24 A. Until, I believe, September 13, when I resigned,

25 1996.

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1 Q. During the time that you were a tech crew

2 supervisor, between approximately mid 1995 through

3 September of 1996, to whom did you report?

4 A. I'm sorry, could you say that again?

5 Q. To whom did you report as a tech crew supervisor?

6 A. During what period?

7 Q. Why don't you start telling us when you first

8 became a tech crew supervisor.

9 A. I first became a tech crew supervisor, the

10 director of maintenance there was a man by the name of

11 Jim (pause) --

12 Q. Do you recall his last name?

13 A. Not at this time.

14 THE COURT: Obviously not. Why don't we

15 move on.

16 A. That was in 1995.

17 Q. Did there come a time when you reported to a

18 different supervisor?

19 A. Yes. I can't remember how much before I was --

20 it was at the end of 1995 when Danny Gonzalez took

21 over. He was the director of maintenance.

22 Q. And did you report to Danny Gonzalez?

23 A. Yes.

24 Q. Did you know Danny Gonzalez prior to your

25 experience at Dynair Tech of Florida?

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1 A. I just knew he was. I didn't know him

2 personally.

3 Q. How is it you knew who he was?

4 A. He was a maintenance supervisor of some sort at

5 Eastern. I saw him at Eastern.

6 Q. Do you recognize Danny Gonzalez in the courtroom

7 here today?

8 A. Yes, ma'am. He is right here to my right,

9 standing up.

10 Q. In the autumn of 1995, what was your assignment

11 at Dynair Tech of Florida?

12 A. I had a couple of aircraft -- actually, at that

13 time I had one craft in from Ascera Airline and I was

14 the maintenance supervisor on it.

15 Q. Do you remember the number on the aircraft that

16 you had in from Ascera in the autumn of 1995?

17 A. (Pause) I believe it was Yankee Victor 705

18 Charlie.

19 Q. Was the aircraft 705 the only Ascera aircraft

20 that you worked on or that you had responsibility for

21 in late 1995?

22 A. No. I believe it was Yankee Victor 720 Charlie

23 came in after that in December of '95.

24 Q. Did there come a time, Mr. DeStefano, when you

25 attended a meeting in the presence of Danny Gonzalez

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1 relating to the work flow system?

2 A. Yes.

3 Q. Could you tell us when was that meeting?

4 A. It was approximately December, from the 18th to

5 about the 21st of December, 1995.

6 Q. Was it one meeting or did it cover several days?

7 A. No, it was one meeting.

8 Q. Who was present at this meeting?

9 A. Jaime Galindo, Danny Gonzalez, Bill Giral, the

10 heads of the avionics and sheet metal shops, and

11 (pause) I can't recall the QC director's name, but he

12 would have been there also.

13 Q. Did you discuss something at this meeting?

14 A. Yes.

15 Q. What did you discuss?

16 MR. DUNLAP: Objection. Hearsay, Your

17 Honor.

18 THE COURT: Was Mr. Gonzalez present at the

19 meeting?

20 THE WITNESS: Yes.

21 THE COURT: All right. And was this

22 conversation held in his presence?

23 THE WITNESS: Yes.

24 THE COURT: You may answer the question.

25 Overruled.

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1 A. Okay. I had -- at that meeting I brought up that

2 there was some changes that I wanted to make in the

3 way that we were working on our aircraft, that I felt

4 that I could make it more efficient operation. And I

5 gave him all those changes I listed on the form.

6 Q. Can you recall what you said in terms of those

7 changes?

8 A. Yes. It was basically that -- how I wanted to

9 have control of the work booth; I wanted total control

10 over the paperwork; I wanted track -- I wanted to

11 track the paperwork, where it went out, to what

12 mechanisms. And those were the basic principles I

13 laid down for him.

14 Q. What, if anything, did you describe you would do

15 with the paperwork?

16 A. Well, as far as the paperwork goes, I didn't want

17 anyone in the work booth --

18 MR. DUNLAP: Objection. State of mind.

19 Opinion.

20 THE COURT: Yes. The answer to the

21 question is, what did you tell him about the people in

22 the work booth, or whatever you said to them at that

23 time.

24 THE WITNESS: As far as what I said to them

25 about the people in the work booth was that I didn't

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1 want them in there.

2 Q. And what, if anything, further did you say about

3 that?

4 A. The only other thing that I had to say about that

5 was that I had contacted all three shifts of

6 personnel, inspectors --

7 MR. DUNLAP: In anticipation, Your Honor,

8 I'm sorry, this contains hearsay within hearsay.

9 THE COURT: This is what he said in the

10 presence of the defendant. It is, therefore, not

11 hearsay. As long as it is what he is saying at that

12 meeting, he may relay it to the jury.

13 You are saying you contacted the work

14 chiefs, you told these people at that meeting you

15 contacted the work chiefs --

16 MR. DUNLAP: I am only concerned that he

17 may say what they said.

18 THE COURT: Well, if he told them what his

19 investigation revealed, that is permissible testimony

20 and not hearsay. It is not for the truth of the

21 matter. That is to say, if he said, I spoke to work

22 chief number one and he told me his wife was pregnant,

23 that does not mean his wife is pregnant. That means

24 he said that, that is what he told this group. That

25 is admissible.

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1 You may tell them. You were saying you

2 talked to the three work chiefs. What else did you

3 say at that time in the presence of the defendant and

4 others?

5 THE WITNESS: In the meeting that morning,

6 that I had contacted all the personnel, let them know

7 of all these changes that I was going to make;

8 everyone agreed to it. The people at that meeting,

9 that morning, congratulated me, said that it was about

10 time that somebody started --

11 MR. MOSKOWITZ: Objection, Your Honor. Who

12 said? They could have all said it.

13 THE COURT: The objection is sustained

14 unless it was a statement made by the defendant.

15 You can only tell the jury what you said at

16 that meeting, or what the defendant may have said, if

17 anything, at the meeting.

18 The other conversation you may not tell the

19 jury. That will have to come from those people.

20 So you told them you talked to the work

21 chiefs and that everyone agreed with you about these

22 changes you wanted to make.

23 THE WITNESS: Yes.

24 THE COURT: All right.

25 BY MRS. MILLER:

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1 Q. Mr. DeStefano what, if anything, did Danny

2 Gonzalez say at that meeting?

3 A. I don't recall anything in particular that Danny

4 said.

5 Q. At the meeting, did you discuss a timetable for

6 when this would happen?

7 A. Yes. Just merely that it would start the day

8 that we started working on the aircraft, which would

9 be the first day I started handing out the paperwork.

10 Q. Which aircraft?

11 A. Aircraft 720.

12 Q. Did there come a time when you arranged the booth

13 to start working on aircraft 720?

14 A. Yes. I believe it was -- to my recollection, it

15 was the first or second day before Christmas of 1995.

16 Q. Mr. DeStefano, I am handing you what has been

17 marked as Government Exhibits 64D and 64E.

18 I am handing you those two exhibits.

19 Please look at those and tell us if you recognize

20 them.

21 A. Yes, ma'am, I do.

22 Q. Are those photographs?

23 A. Yes.

24 Q. Are they a true and accurate depiction of

25 something you recall?

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1 A. Yes. It would have been the work booth --

2 Q. Don't tell us what it is, please.

3 MRS. MILLER: I offer 64D and 64E into

4 evidence.

5 MR. MOSKOWITZ: No objection, Your Honor.

6 THE COURT: Government Exhibits 64B for

7 identification is admitted into evidence as Government

8 Exhibit 64B; 64E for identification is admitted into

9 evidence as Government Exhibit 64E.

10 MRS. MILLER: The first one Your Honor is D

11 as in dog.

12 THE COURT: All right.

13 (Government's Exhibits 64D and 64E in

14 evidence.)

15 BY MRS. MILLER:

16 Q. Now, please tell us what is 64D and 64E,

17 Mr. DeStefano.

18 A. 64D and 64E are both photographs of a -- of the

19 work booth that I worked out of while I was there at

20 Dynair/SabreTech.

21 Q. Is this the work booth where Ascera cards were

22 kept?

23 A. That was the work booth I was working at up at

24 that time, yes.

25 Q. I am placing 64D on the magnifier. You have a

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1 monitor to your left. If you could just turn your

2 attention to that monitor and please tell us what is

3 depicted in this photograph.

4 A. Over here on the left hand of the picture, these

5 are what we call the racks for the paperwork. You

6 line all your paperwork in the racks.

7 Over here on the left-hand side towards the

8 front of the photograph, on the wood top of the table

9 appears to be "in" and "out" baskets for paperwork,

10 completed or to be audited.

11 Q. What is the physical makeup of these racks? Are

12 these slots?

13 A. Yes, they are wood boards, and they had like

14 aluminum shelves that went the full length of the

15 board, and they were divided off -- we could divide

16 them off into categories, such as left wing, right

17 wing.

18 Q. What types of documents are kept in these racks?

19 A. Any routine, nonroutine items, items that parts

20 are being ordered for.

21 Basically, all your paperwork from the

22 aircraft that you are working on is either on that

23 board or it is out in the mechanic's hands. Those are

24 about the only two places it should be.

25 Q. Now, Mr. DeStefano, I am now placing 64E on the

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1 magnifier. Could you tell us what this depicts?

2 A. That is from the back part of the booth looking

3 out towards the hangar. Other than that, you got a

4 closer view on the right-hand side of your board with

5 the slots and the paperwork in it.

6 You can see from this photograph there is

7 two desks in the office, and like the board on the

8 left could be one aircraft, and the board on the right

9 could be another aircraft. So you might have two to

10 three aircrafts in one booth.

11 Q. What did you do with regard to rearranging

12 paperwork in these racks in these days before

13 Christmas?

14 A. Well, I had rearranged the paperwork differently

15 in the fact that the common way of doing it was

16 from -- let's say we got ten items numbered 1 through

17 10, and the norm was to put 1 at top and 10 on the

18 bottom. So you can look at all 10 items.

19 I put it 1 going from left to right, number

20 1 item being on the left, number 10 being over here on

21 the right; so that the first item was completed, the

22 board would flow to the left.

23 It helped me keep track of the work that

24 day, and that is how I had the board set up.

25 Q. What, if any, change did you institute with

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1 regard to access to that work booth at that time?

2 A. I absolutely forbid any mechanics to be in that

3 work booth. The only people allowed in there were

4 inspectors, lead mechanics, other supervisors, the

5 people that helped out in the booth, the booth

6 personnel. I believe that is what I had it limited

7 to.

8 Q. How long was this arrangement in place before you

9 had an altercation with Danny Gonzalez?

10 MR. MOSKOWITZ: Objection, Your Honor.

11 Leading and characterization.

12 THE COURT: Sustained.

13 Q. How long was the system in place -- how long was

14 the system in place physically?

15 A. Eighteen hours.

16 Q. And did you have a meeting with Danny Gonzalez?

17 A. Just he and I personally?

18 Q. Did you have any encounter -- withdrawn.

19 Did you have any encounter with Danny

20 Gonzalez in that work booth during the time that that

21 system was physically in place?

22 A. Yes, ma'am. I sure did.

23 Q. And when was that encounter, the closest date

24 that you can tell us?

25 A. I believe it was, like I say, the first or second

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1 day before Christmas of '95.

2 Q. And what shift were you working that day?

3 A. What was known as the day shift, from -- I

4 believe it went from 7 to 3:30.

5 Q. What occurred at the beginning of that shift with

6 regard to any encounter with Danny Gonzalez?

7 MR. DUNLAP: Objection. Leading as to

8 time.

9 THE COURT: Well, on that day, December 23

10 or thereabouts, did you see the defendant,

11 Mr. Gonzalez?

12 THE WITNESS: Yes, sir.

13 THE COURT: Where did you see him.

14 THE WITNESS: In the work booth.

15 THE COURT: What time, approximately?

16 THE WITNESS: Approximately 7 to 7:05 in

17 the morning.

18 THE COURT: And did you say anything to him

19 or did he say anything to you?

20 THE WITNESS: Yes, I did.

21 THE COURT: Tell the jury what was said.

22 THE WITNESS: I came into the work booth,

23 and the first thing was that Danny looked at the board

24 and said, "What is this? I can't read it." I said,

25 "If you would give me five minutes I will explain it

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1 to you."

2 At that time I had some mechanics call me

3 out on the hangar deck for approximately five

4 minutes.

5 When I turned around and went back to the

6 work booth, there was a line of mechanics that

7 extended from the far wall of the work booth all the

8 way to the door in the hangar. They were all in a

9 line. And that's when I told them all to clear out of

10 the office --

11 Q. Mr. DeStefano, did you observe Danny Gonzalez

12 doing anything at that point?

13 A. While Danny was -- the mechanics were in -- and

14 if you don't mind, I have to stand up to show you

15 this.

16 MRS. MILLER: Your Honor, may the witness

17 stand?

18 THE COURT: Stand up.

19 A. Danny was at the board handing items out like

20 this (indicating), without even turning his back to

21 the mechanics. And he would take one and stick it

22 under his jacket like that (indicating), and keep

23 handing the rest of them out.

24 And that is when I told everybody to get

25 out of the work booth.

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219

1 Q. Did everybody get out of the work booth?

2 A. Yeah.

3 Q. Were you there alone at that point?

4 A. Myself and Danny.

5 Q. What happened at that point?

6 A. I know I was angry. I don't recall everything

7 that we said, and I know that we yelled.

8 Q. Who yelled?

9 A. Probably both of us.

10 Q. Do you recall that?

11 A. Oh -- (pause) yeah. No, I remember him raising

12 his voice to me and me raising my voice to him.

13 Q. What was said?

14 A. That -- I can remember myself saying that he

15 wasn't just hurting me, that he was hurting everybody

16 in that hangar that thought that they were going to

17 get something better, and that he was proving to all

18 of us that Steve --

19 MR. DUNLAP: Objection. Hearsay within

20 hearsay.

21 THE COURT: This is a conversation he had

22 with your client. The objection is overruled.

23 State what was said.

24 A. He was proving to everybody there that Steve

25 Townes was a liar, and that -- at that -- at that

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1 point or so, Danny said, "I'm the boss."

2 And I said, "That's right, you are the

3 boss." And I said, "But as long as you are the boss,

4 I will not go upstairs and answer questions at a

5 maintenance meeting that I don't have control over the

6 aircraft."

7 And he then -- he said, "Then you are

8 relieved, I'm in charge."

9 I say, "Okay." I turned around and walked

10 out of the office.

11 Q. Where did you go?

12 A. I stood out in front of the hangar at the

13 southeast -- I'm sorry, would have been the southwest

14 corner of the hangar, and I stayed out there and

15 smoked a cigarette for a while and cooled off.

16 Q. What could you see from that position?

17 A. I could see the entire hangar and all the

18 airplanes.

19 Q. Could you see aircraft 720?

20 A. Yes, I could.

21 Q. Did you see Danny Gonzalez at that time?

22 A. No.

23 Q. What was the farthest you were from aircraft 720

24 as you were taking this smoke break?

25 A. Seventy-five to one hundred feet.

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221

1 Q. Did you go anyplace after this smoke break?

2 A. After the -- after I sat out there and cooled off

3 some, I went back to my work booth and I sat down at

4 the desk, and just sat there.

5 Q. Did there come a time when you again saw Danny

6 Gonzalez?

7 A. Yes. I believe, to the best of my recollection,

8 it was an hour to an hour and a half later, Danny

9 walked in my work booth, put a routine work item down

10 on my desk, and as I recall, he made the comment, "The

11 C check will be done in no time," and he walked out.

12 Q. Was there anyone in the work booth with you at

13 that time?

14 A. All I can remember is myself and Michael Quan

15 being in there.

16 Q. What, if anything, else did Danny Gonzalez have

17 in his hand at that time?

18 A. Just the routine work card. That's all I can

19 remember.

20 Q. I didn't hear what you said. Routine what?

21 A. Work card.

22 Q. And did you look at that work card?

23 A. Yes, I did.

24 Q. Did it bear any signatures on it?

25 A. It had all his signatures on it.

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222

1 Q. Had you seen that work card previously?

2 A. Yes, I had.

3 Q. When had you previously seen that work card?

4 A. There was a period when I went out and smoked a

5 cigarette, and between the time I went and smoked a

6 cigarette and went back to my work booth, I went to

7 the hallway where the rest rooms are. Then Danny's

8 office was right on the corner of that hallway and has

9 a window right there that you can see his desk from

10 the hangar deck. And I saw that item sitting on his

11 desk.

12 MRS. MILLER: (Pause)

13 THE COURT: I am sure you have been over

14 all these exhibits before today. Can we move the case

15 along? Thank you.

16 Q. I am showing you what has been marked as

17 Government Exhibit 2. Do you recognize that document?

18 A. Yes, ma'am.

19 Q. What is that document?

20 A. Item 716HO1L004. It is a work card --

21 MR. MOSKOWITZ: Objection, Your Honor.

22 THE COURT: The question was, have you seen

23 it before. Have you seen it before?

24 THE WITNESS: Yes, sir, I have.

25 THE COURT: Where did you see it?

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223

1 THE WITNESS: I had seen it the day that

2 Danny laid it on my desk. I saw it the day that it

3 was on his desk, and I have seen it after that --

4 THE COURT: Is that the same card that you

5 saw Danny lay on your desk on the date you described

6 it?

7 THE WITNESS: Yes, sir.

8 MRS. MILLER: The government offers Exhibit

9 2 into evidence.

10 MR. MOSKOWITZ: Objection. Still

11 foundation.

12 THE COURT: Beg your pardon?

13 MR. MOSKOWITZ: Objection, Your Honor.

14 Foundation.

15 THE COURT: Is that --

16 Establish that that is the same --

17 Does that card appear to be the same card

18 that you saw laid on your desk that day?

19 THE WITNESS: Yes, sir.

20 THE COURT: Appears to be any changes,

21 modifications, additions to it?

22 THE WITNESS: No.

23 THE COURT: The document is submitted into

24 evidence as Government Exhibit -- what?

25 MRS. MILLER: 2.

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224

1 THE COURT: -- 2 in evidence.

2 (Government's Exhibit 2 in evidence.)

3 BY MRS. MILLER:

4 Q. Mr. Gonzalez, what is that document?

5 THE COURT: I think he just told us --

6 MRS. MILLER: I'm sorry. I misspoke.

7 Q. Mr. DeStefano, what is that work card for?

8 A. That's to do a functional check on the ice

9 protection system of the DC-9.

10 Q. Are you acquainted with that job?

11 A. Yes, ma'am, fairly.

12 Q. What is a functional check on an ice protection

13 system on a DC-9?

14 A. You need to find out if the right amount of air

15 pressure is going through the system, that it has the

16 right air pressure, and that all the valves are

17 working.

18 MRS. MILLER: Your Honor, if I may

19 circulate this document among the jury as the witness

20 testifies.

21 THE COURT: All right. Fine.

22 Q. Before I do that, Mr. DeStefano, how many pages

23 is the document?

24 A. Nine.

25 Q. And how many of those pages bear signatures?

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225

1 A. Six.

2 Q. Mr. DeStefano, how long does this work take to

3 do?

4 MR. MOSKOWITZ: Objection. Foundation for

5 Mr. DeStefano's knowledge about this.

6 THE COURT: All right.

7 Establish that he has some familiarity with

8 this work.

9 Q. Mr. DeStefano, what, if any, familiarity do you

10 have with the tasks that are outlined in this work

11 card?

12 A. Just that they are cards that I assigned to

13 mechanics on a regular basis on any DC-9s that I

14 worked on.

15 Q. Does that assignment including your assessing the

16 amount of time that a job will be taking?

17 A. I normally don't assign times.

18 Q. And what, if any, acquaintance did you have in

19 December of 1995 with the amount of time that it would

20 take to do that work? I'm not asking you how much

21 time would it take. I am asking you, what was the

22 nature of your knowledge.

23 A. That from working on the DC-9s with other

24 supervisors at that time that worked there with me,

25 and having -- having been in on these functional tests

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226

1 myself before, gave me what I considered an estimate

2 in what time this job should have been accomplished

3 in.

4 Q. Mr. DeStefano, as of December 1995, how long had

5 you been working on DC-9s?

6 A. Five years.

7 MRS. MILLER: Government offers Exhibit 2

8 into evidence.

9 MR. DUNLAP: Objection.

10 MR. MOSKOWITZ: Objection. It is hearsay.

11 THE COURT: Government 2 I think is --

12 isn't that the document you just handed to the jury?

13 MRS. MILLER: I'm sorry, Your Honor.

14 THE COURT: Government's 2 is in evidence.

15 MRS. MILLER: Wrong question.

16 Q. Mr. DeStefano, how much time does it take to do

17 the work outlined on Government Exhibit 2?

18 MR. DUNLAP: Objection. No foundation,

19 Your Honor. May I voir dire briefly?

20 THE COURT: She is tendering him as an

21 expert witness in this field of familiarity or

22 knowledge about these work cards, and he has been

23 working in this field for five years.

24 Have you performed these tests yourself?

25 Have you done this work yourself when you were a

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227

1 mechanic?

2 THE WITNESS: Yes, sir.

3 THE COURT: I will permit him to answer.

4 What is your best estimate of the time it

5 would normally take to check this ice protection

6 maintenance system with the work that was outlined on

7 that card, whatever that work was called? What would

8 it approximately take?

9 THE WITNESS: About three hours.

10 BY MRS. MILLER:

11 Q. Is this a job to be done by one person or two

12 persons, Mr. DeStefano?

13 A. Two people.

14 Q. And what is it about the job that makes it a two-

15 person job?

16 A. Just that you have to have a test box to hook up

17 to the accessory section, and you have to have one

18 person in the cockpit operating the controls, and the

19 person on the test box takes the reading.

20 Q. Can you show us -- Withdrawn.

21 With regard to your estimate of three

22 hours, is that three hours for each of the two persons

23 or three hours for the two persons together?

24 A. For two people together.

25 Q. So are you talking of three man hours or six man

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228

1 hours?

2 A. I'm sorry.

3 THE COURT: Pardon me. If two people went

4 out to do this work --

5 THE WITNESS: Right. It would be six man

6 hours.

7 THE COURT: Forget that.

8 If two people went out to do this work and

9 performed these tests and signed off on the card and

10 came back and handed it to you, how long would they be

11 gone?

12 THE WITNESS: Three hours.

13 Q. Mr. DeStefano, did this work card call for any

14 inspections to be done?

15 A. Yes.

16 Q. What happened to the work card after Danny

17 Gonzalez left it in your office, if you know?

18 A. I don't.

19 Q. Does the work card reflect any signatures of

20 inspectors?

21 A. Yes. There were some inspections.

22 Q. What are the inspection items on the work card?

23 A. Just merely that the test equipment was unplugged

24 from the aircraft.

25 Q. Does this inspection verify whether work has been

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229

1 done?

2 A. No.

3 Q. Mr. DeStefano, what did you do following this

4 incident in the work booth?

5 MR. DUNLAP: Objection. Relevance.

6 THE COURT: Well, it is a little broad

7 based.

8 MRS. MILLER: I am trying not to lead, Your

9 Honor.

10 THE COURT: After that day -- did you

11 finish up your shift that day?

12 THE WITNESS: Yes, sir.

13 THE COURT: Did you ever see Mr. Gonzalez

14 any more after the second incident you told us about

15 when he laid the card on your table?

16 THE WITNESS: Well, I just finished up the

17 shift for that day and I believe I took a couple of

18 days vacation.

19 THE COURT: Did you go home after you

20 finished your shift?

21 THE WITNESS: Yes, sir.

22 THE COURT: And you took a couple of days

23 off?

24 THE WITNESS: Yes, sir.

25 THE COURT: When did you come back to

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230

1 work?

2 THE WITNESS: I believe it was around the

3 2nd of January.

4 THE COURT: So you took about a week off,

5 eight days off.

6 THE WITNESS: Yes, sir.

7 THE COURT: Next question.

8 BY MRS. MILLER:

9 Q. Did your work status change when you returned to

10 work?

11 A. Yes, ma'am.

12 Q. And what was the change in your work status?

13 A. That I had been transferred as a -- to a

14 supervisor on the ValuJet crew.

15 Q. Was that any change in the level of your

16 position?

17 THE COURT: Was this a promotion, demotion,

18 or what was it?

19 Or was it just a transfer --

20 THE WITNESS: It was just a -- I took it as

21 a demotion.

22 THE COURT: Well, when you moved over

23 there, did they change your pay any?

24 THE WITNESS: No.

25 THE COURT: Your responsibility any?

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231

1 THE WITNESS: No.

2 THE COURT: Everything was the same, just a

3 different airplane.

4 THE WITNESS: Yes, sir.

5 THE COURT: Next question.

6 BY MRS. MILLER:

7 Q. Had you received any temporary promotion --

8 A. Yes, I had.

9 Q. -- prior to this incident?

10 A. Yes.

11 Q. What temporary promotion had you received?

12 A. As hangar manager.

13 Q. From whom had you received that temporary

14 promotion?

15 A. Danny.

16 Q. What happened to your temporary promotion after

17 this incident?

18 A. As far as I know, the only thing I ever saw from

19 it, it was lined out of my personnel record.

20 THE COURT: You saw it lined off his card,

21 his personnel record. What else?

22 Q. What was the new task you were assigned to?

23 A. I was just a maintenance supervisor for the

24 ValuJet crew.

25 Q. And what assignment did you have on the ValuJet

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232

1 crew?

2 A. The -- we had -- immediately it was finishing up

3 whatever ValuJet aircraft were there and getting ready

4 for the next three that were coming in.

5 Q. What were the next three?

6 A. I believe they were 802, 803 and 830.

7 Q. What kind of aircraft are 802, 803 and 830?

8 A. They were MD-80s.

9 Q. What, if any, assignment did you receive with

10 regard to any of those three MD-80s?

11 A. I was assigned to 830.

12 Q. What was the work that SabreTech was engaged to

13 do on 830?

14 A. We were to change it over -- I believe it came

15 from Scandinavia, and we were to change it over to a

16 ValuJet configuration and paint job.

17 Q. Were any checks involved?

18 A. Yes.

19 Q. What, if any, checks were involved?

20 A. You had to check the dates on certain pieces of

21 equipment to make sure everything was still valid.

22 Q. What, if any, equipment had to be checked?

23 A. The oxygen generators in the overhead bins.

24 Q. What had to be done with regard to the oxygen

25 generators in the overhead bins?

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233

1 A. Just check the expiration date on them.

2 Q. And what were you checking for?

3 A. The expiration date, if it was still valid or

4 not.

5 Q. What role did you have with regard to those

6 checks being made?

7 A. I'm sorry?

8 Q. What role did you have with regard to those

9 checks being made?

10 A. I just merely handed out the paperwork and saw

11 that it got done.

12 Q. Were you present on the aircraft with regard to

13 any of that work?

14 A. Yes.

15 Q. What was the result of the checks that were made

16 on the timeliness of the oxygen generators that were

17 on 830?

18 A. Well, on aircraft 830, I know some of the results

19 were that we fired off two of the cannisters that day.

20 Q. When you say we fired them off, who are you

21 referring to?

22 A. Well, I mean me.

23 Q. How did that happen?

24 A. The mechanics were having some problems trying to

25 read the dates on them, and I felt I could go out and

DeSTEFANO - DIRECT (MILLER)

234

1 help them. And in the process of trying to turn the

2 cannister in its holder, I fired off two of them.

3 Q. Was that done deliberately?

4 A. No.

5 Q. Now, you referred to the holder, Mr. DeStefano.

6 I would like to show you --

7 I am handing you what has been marked

8 received into evidence as Government Exhibit 30B and

9 ask if you recognize this item.

10 A. Yes, ma'am.

11 Q. It is an O2 generator?

12 A. Yes, ma'am.

13 Q. Anything different from that O2 generator than

14 the ones you work with?

15 A. Yeah. It's empty.

16 Q. What about the bottom of it?

17 A. Yes, it is cut out. It is empty. It is gone.

18 Q. You started to show us with your hand that you

19 were turning the generator and it discharged. Could

20 you please show us now?

21 A. As you can see, they have a data plate on there.

22 When they are -- when they are in a holder up like

23 this. And so, of course, we were, I believe, trying

24 to do things as easy as we could and spin it like this

25 to read the date. And in the process of spinning it,

DeSTEFANO - DIRECT (MILLER)

235

1 of course I spun it and popped this pin out, which set

2 it off.

3 It was about like that (indicating).

4 Q. How did you know that you had set it off?

5 A. Well, on the first one I didn't. A mechanic told

6 me I did it.

7 Q. And did you observe anything after he told you

8 that?

9 A. Yeah, just that I put it up to my ear and I could

10 hear a hissing noise, and I felt it getting hot.

11 Q. And what did you do with it?

12 A. I believe I had some towels or rags there with

13 me, and I picked it up with the rags, took it out to

14 the front of the hangar to let it burn.

15 Q. And where did you put it?

16 A. I just set it down on the concrete and let it

17 burn.

18 Q. Did you try touching it without the rag?

19 A. Yeah. I tested it.

20 Q. And what did you experience?

21 A. Just that it was too hot to touch.

22 Q. And did you observe how long it continued to go

23 off?

24 A. No. I really don't know how long it went, it

25 burned for.

DeSTEFANO - DIRECT (MILLER)

236

1 Q. What happened to the generator after it burned,

2 if you know?

3 A. That one in particular, the first one, we took

4 it -- I took it into my office, which was the ValuJet

5 office, and I had it tagged, and I kept it on the desk

6 I believe for about a week.

7 Q. Was there anyone in the office when you brought

8 it back?

9 A. Well, all the -- sure. The lead mechanics, the

10 other two ValuJet supervisors.

11 MR. MOSKOWITZ: Objection.

12 THE COURT: He is telling us who is in the

13 office, who he saw in the office.

14 MR. MOSKOWITZ: I thought I heard him

15 say --

16 THE COURT: What is your objection? To

17 what?

18 MR. MOSKOWITZ: I heard him say, "I'm sure

19 it was."

20 THE COURT: The question was, who was in

21 the office when you brought it back in there, or who

22 was in and out of the office during this period of

23 time?

24 THE WITNESS: All right. The other ValuJet

25 supervisors, Dave Wiles; I know the other lead

DeSTEFANO - DIRECT (MILLER)

237

1 mechanic -- Luke Casimir. I believe my lead mechanic

2 at the time was Pat Reading, and Manny Quintana.

3 Q. Did you say anything in the presence of these

4 individuals?

5 A. Well, just that I had --

6 Q. Let me ask you first, Mr. DeStefano, did you say

7 anything in the presence of those individuals? If you

8 can tell us, just yes or no, if you said anything.

9 A. Yes.

10 Q. What did you say?

11 A. Just that I had set it off, that I had it in

12 there to make sure we reordered the right parts.

13 Q. And what happened to the generator that you

14 brought into your office that day?

15 A. Like I say, it stayed in my desk for about a

16 week.

17 Q. What happened to it after that?

18 A. It was taken to the ValuJet lockup.

19 Q. Did it have any kind of -- what, if anything, did

20 it -- what was its condition when it was taken to the

21 lockup?

22 A. That it was -- that it had been discharged and

23 red-tagged.

24 Q. What do you mean by red-tagged?

25 A. That we put a red unserviceable tag on it.

DeSTEFANO - DIRECT (MILLER)

238

1 Q. Mr. DeStefano, I am showing you what has been

2 marked as Government Exhibit 47 and I would ask you to

3 look at that object. Do you recognize that object?

4 A. Yes, ma'am, SabreTech red tag.

5 MRS. MILLER: The government offers it into

6 evidence.

7 THE COURT: What number?

8 Number 47 is admitted into evidence as

9 Government Exhibit Number 47.

10 (Government's Exhibit 47 in evidence.)

11 BY MRS. MILLER:

12 Q. Is that red tag filled out?

13 A. No, ma'am.

14 Q. And what is the function of a red tag?

15 A. Just to show that the parts are not serviceable

16 to be put on an aircraft.

17 Q. You earlier testified there were two generators

18 that were set off.

19 A. That day, yes, ma'am.

20 Q. What happened with regard to any second

21 generator? When and where did that occur?

22 A. I'm not sure of the exact time that they were

23 discharged. I know that I came into work. I believe

24 that it was about two days early. I would come into

25 work early to look at the airplane; and I was walking

DeSTEFANO - DIRECT (MILLER)

239

1 through the aircraft and I went up in the cockpit, and

2 there were two of them laying up in the cockpit on the

3 ground.

4 Q. Two of what?

5 A. I'm sorry, two of the O2 generators, and they had

6 been fired off.

7 Q. How could you tell they had been fired off?

8 A. Just that the hammers were down on the primer.

9 Q. And did you ever see another one go off in

10 addition to the first one that you described?

11 A. Not other than that very first day I actually set

12 two of them off.

13 Q. And could you tell us about the second one that

14 you set off? When did that occur and where?

15 A. Well, that was basically the same thing. We were

16 still trying to figure out how to get the data plates

17 without taking them out of the holder. And I guess I

18 felt like I could do a better job on the second one,

19 and set it off too.

20 Q. Did you?

21 A. No.

22 Q. What did you do with the second one?

23 A. I had it red-tagged and taken to the ValuJet

24 lockup after it cooled off.

25 Q. What did you do with the two generators that you

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240

1 found in 830 one morning?

2 A. Those were all -- they were red-tagged and taken

3 to the ValuJet lockup.

4 Q. Did any generators on 830 have to be replaced?

5 A. I believe a total of six of them.

6 Q. Mr. DeStefano, who, if anyone, did you seek

7 assistance from at SabreTech with regard to oxygen

8 generator work?

9 A. Well, there is not any name in particular. I

10 would have just tried to seek out some of the older

11 Pan Am and Eastern people that had more experience

12 than me.

13 Q. And what did you do about obtaining any

14 additional services to check the generators on 830?

15 A. I don't believe I understand your question.

16 Q. Let me ask this question. What is a drop test?

17 A. Well, a drop test is a test you have to perform

18 on the oxygen generator system after it has been

19 worked on, or I suppose even during the C check, on a

20 time basis, to make sure all the oxygen masks are

21 going to drop down in an emergency like they are

22 supposed to.

23 Q. How is a drop test conducted?

24 A. You can -- you go out and there is a manual pull,

25 you can hook up and reduce the pressure because it

DeSTEFANO - DIRECT (MILLER)

241

1 senses barometric and air pressure drop.

2 So either way, you set it off with air

3 pressure or manually, and you make sure that they

4 drop.

5 Q. Did you have responsibility for seeing that such

6 a test was done on 830?

7 A. I don't specifically recall the piece of

8 paperwork, but I remember asking for a mechanic to

9 come do it.

10 Q. And what mechanic did you ask to come do it?

11 A. Eugene Florence.

12 Q. Do you see Eugene Florence in the courtroom?

13 A. Sure. He is right there next to me.

14 MRS. MOSKOWITZ: We stipulate, Your Honor.

15 THE COURT: Let the record reflect he has

16 identified the defendant, Eugene Florence.

17 Go ahead.

18 Q. What response was made --

19 What happened as a result of your request

20 to have Eugene Florence assist?

21 A. I remember asking the lead mechanic from another

22 crew, Luke, if I could use Eugene that day to help me

23 get my oxygen system working.

24 Q. And what response was made?

25 MR. MOSKOWITZ: Objection. Hearsay.

DeSTEFANO - DIRECT (MILLER)

242

1 THE COURT: Don't tell us the words, but

2 what happened as a result of the inquiry?

3 A. I really don't remember if Eugene came and did it

4 or not.

5 Q. Mr. DeStefano, how many MD-80s were being worked

6 on in the early months in 1996 at SabreTech?

7 A. Well, the only ones I remember are the three

8 ValuJets, because that is where I was working.

9 Q. And of those three ValuJet aircraft, 830, 802 and

10 803, which one was done first?

11 A. I believe it was 830.

12 Q. Do you know whether the other two aircraft were

13 on time?

14 A. No, I don't know.

15 Q. I am handing you what has been received in

16 evidence as Government Exhibit 36, a memorandum of

17 April 26, 1996, from Danny Gonzalez, re: Heavy work

18 load. And I would ask if you recognize that

19 document.

20 A. Yes, I do.

21 Q. And when did you first see that document?

22 A. April 26.

23 Q. Where was it?

24 A. Posted on the work booth doors.

25 Q. And did you do anything as a result of that

DeSTEFANO - DIRECT (MILLER)

243

1 memorandum?

2 A. No.

3 Q. Was that memorandum providing any directive to

4 you?

5 A. Yes.

6 Q. What was it directing?

7 A. That I was to work seven days a week.

8 Q. Did it state why you worked seven days a week?

9 MRS. MOSKOWITZ: Objection. The document

10 speaks for itself.

11 THE COURT: Sustained. The document is in

12 evidence. They have read it, everybody has read it.

13 Perhaps since it is 5:20, or am I

14 misreading that -- they are smiling. I must be

15 reading it correctly.

16 Is this a convenient time to break? We

17 usually break around 5:30, unless you think you can

18 finish.

19 MRS. MILLER: This would be a convenient

20 time to break, Your Honor.

21 THE COURT: Any objection to recessing at

22 this time?

23 MR. MOSKOWITZ: No, Your Honor.

24 MRS. MOSKOWITZ: No, Your Honor.

25 THE COURT: I wonder if any one of them had

DeSTEFANO - DIRECT (MILLER)

244

1 the guts to say they objected. I didn't think they

2 would.

3 All right, ladies and gentlemen, you have

4 been so conscientious about coming on time, and we

5 really appreciate that. It enables us to get started

6 promptly.

7 We ask you to remember very carefully the

8 instruction, because apparently there are newspaper

9 stories and other things being written about the

10 case.

11 Please don't read anything; don't watch

12 anything; don't listen to anything on the radio; don't

13 let anybody talk to you about the case; and don't you

14 have any conversations with anybody else about the

15 facts of the case. Certainly tell your family you are

16 still on a jury; you will tell them all about it at

17 the end of the case.

18 You know, this has one good thing: If you

19 tell -- those of you have been married -- you haven't

20 been married as long as I have, but if you are married

21 a long time, you have come to realize your spouse

22 listens to only to half of what you are saying, if

23 that. If you tell him every day, every day, every

24 day, I can't tell you what I am doing, one thing at

25 the end, when you finally do talk about the case, they

MOTIONS

245

1 will listen.

2 Thank you very much. We'll see you

3 tomorrow morning at 9 o'clock. Let's keep it the same

4 schedule. 9 o'clock tomorrow morning. Thank you very

5 much.

6 You folks can --

7 Leave all the exhibits here. But leave

8 your note pads in the jury room in the middle of the

9 jury table. The Marshal will see that they are all

10 secure. Nobody will read them, nobody will look at

11 them. But any of those exhibits or pieces of paper

12 they have been handing you, leave those here, please.

13 But take your pad -- if you have made any notes in

14 them, take them. Thank you very much.

15 (The jury left the courtroom at 5:18 p.m.

16 p.m.)

17 THE COURT: Let me explain to the witness:

18 You are in the middle of your testimony. So,

19 therefore, it would be inappropriate for you or for

20 anyone to attempt to talk to you about your

21 testimony.

22 If you weren't in the middle of it, it is a

23 different thing. But in the middle of your testimony,

24 please, don't have any conversations with anybody

25 connected with the case; don't discuss your testimony

MOTIONS

246

1 with anybody, just don't talk about it.

2 THE WITNESS: Yes, sir.

3 THE COURT: We'll see you tomorrow morning

4 at -- we'll ask that you be here a few minutes before

5 9 o'clock. I don't anticipate there are any legal

6 matters that requires our presence any earlier than --

7 Do you, Mr. McGuirk?

8 MR. MC GUIRK: No, Your Honor.

9 THE COURT: You are free to go.

10 This includes talking with Mr. McGuirk

11 about -- I mean, don't go up to him about and say how

12 did I do, do you have any suggestions? Don't do

13 that. He won't talk to you about it anyway.

14 Don't talk about your testimony.

15 You and Mr. McGuirk are free to leave now

16 if you wish, and we'll see you tomorrow morning a

17 little before 9 o'clock. Thank you.

18 Are there -- do we have -- does somebody

19 have a list of all the motions you want to take up now

20 before the Court Reporter expires?

21 Mr. Moskowitz has a list.

22 If we are going to hear oral arguments if

23 anybody wants to leave, good-bye, good night, see you

24 tomorrow. If you want to stay, have a seat.

25 MRS. MOSKOWITZ: Your Honor, may

MOTIONS

247

1 Mr. Florence be excused during the legal argument?

2 THE COURT: Yes, he may be excused.

3 MRS. MOSKOWITZ: Thank you, sir.

4 MR. MOSKOWITZ: This is fortunately a very

5 short list. All we wish to raise is our motion for

6 judgment of acquittal, which we raised last night.

7 We have since gotten the transcript, and we

8 have had the opportunity to review it, and I believe

9 we can present the argument fairly quickly.

10 Your Honor, we had a motion with regard to

11 Count 24, which is the antiterrorism count, and also

12 with regard to the HazMat counts. I would like to

13 address solely the antiterrorism count, which is Count

14 24.

15 THE COURT: All right. Now, that count has

16 been raised before the Magistrate, and argument on it,

17 and rulings on it, that came to me on appeal with --

18 and I made my rulings on that. I think I understand

19 rather clearly the defense position, that the

20 government must prove that the individual -- the

21 individual defendants -- or do you contend all three

22 defendants, the corporate and individual?

23 MR. MOSKOWITZ: Any defendant. Only the

24 corporation is charged, but there has to be some

25 evidence of -- I apologize for interrupting you, Your

MOTIONS

248

1 Honor.

2 THE COURT: It is your position, as I

3 understand it -- and I invite you to correct me if I

4 am mistaken about this -- that the government must

5 prove beyond the exclusion of reasonable doubt that

6 all three defendants intended to kill 110 people when

7 they made these alleged false statements. That's not

8 your position?

9 MR. MOSKOWITZ: No, Your Honor.

10 THE COURT: That they knew that what they

11 were doing was going to result in death or injury to

12 people. Isn't that your position?

13 MR. MOSKOWITZ: Your Honor, that's very --

14 that is close to it. Let me rephrase it, if I can.

15 What the count alleges, and only SabreTech

16 itself is a defendant, that SabreTech -- and presuming

17 this would be through some individuals -- willfully

18 placed that explosive on the plane with the intention

19 to cause it -- to do harm to it, to cause it to crash.

20 Now, that is not necessarily -- I think

21 this is where the issue becomes confusing. That

22 requires a willfulness intent requirement, and that is

23 a different willfulness than the intent requirement

24 for the false statements. There are separate

25 allegations of false statements which require that the

MOTIONS

249

1 false statements were made willfully; there are

2 separate statements which require the HazMat

3 violations were willful. This count requires that

4 they intended to blow up that plane, which is a

5 different intent; which is a different willfulness

6 element.

7 Now, this is not a legal issue. This is --

8 really is a question of whether the government has

9 projected that it will present proof which will show

10 that SabreTech through anybody intended to blow that

11 plane up.

12 THE COURT: What you are saying -- if I may

13 put it in a little bit differently so I understand it,

14 and this is the only way I understand these concepts,

15 if I talk to you about them and then you can address

16 them if I am mistaken.

17 But it is your position that they --

18 You put it in the negative there. Let's

19 see. (Pause)

20 -- that the government must prove that

21 SabreTech, and perhaps inferentially its employees,

22 with knowledge that their act was going to harm or

23 kill someone, willfully, deliberately, set about to do

24 that act; that's your position.

25 MR. MOSKOWITZ: For that count, yes, Your

MOTIONS

250

1 Honor.

2 THE COURT: For Count 24.

3 MR. MOSKOWITZ: Right, which is not

4 required for the other count, but just for that

5 count.

6 THE COURT: And the government takes the

7 converse of that and says, no, we don't have to prove

8 that. What we have to prove is that they knowingly

9 and willfully violated this statute by intentionally,

10 knowingly, and willfully, making a false statement

11 about the handling of hazardous materials and/or the

12 disposal of these things.

13 MR. MOSKOWITZ: Maybe that is, but I don't

14 see how that can be a defensible position in terms of

15 proof, because the statute requires, as the count

16 alleges, that the defendant willfully placed an

17 explosive device on a plane with the intention to

18 destroy it, to cause it to blow up.

19 It can't be transferred intent. They may

20 make that argument, but I don't think the count itself

21 or the statute permits this notion of transferring

22 it. If you had the intent, sufficient willful intent

23 for the false statement counts, that doesn't transfer

24 over to having the bad purpose and intent for the

25 bombing count.

MOTIONS

251

1 The elements of the statute I think are

2 clear, and the way it is indicted it is clear. It is

3 not indicted that they are liable for the destruction

4 of the plane because of the false statements. The

5 Indictment alleges specifically that we willfully

6 placed that device on the plane knowing and willfully

7 causing and intending that it be made unworkable.

8 THE COURT: Intending that it be made --

9 MR. MOSKOWITZ: Made unworkable and

10 unusable and hazardous to work with and use, which is

11 destroying it.

12 THE COURT: Okay.

13 MR. MOSKOWITZ: If I may continue.

14 THE COURT: Sure.

15 MR. MOSKOWITZ: Now, here is what -- I have

16 the transcript of Mrs. Miller's argument. Now, when

17 it comes to the false statements, which is a different

18 count, she alleges willfulness and alleges what the

19 evidence will show on that.

20 It is less clear to me on the HazMat

21 counts; Jane Moskowitz will address that.

22 But on this count, it is quite clear that

23 the government is conceding that they are not going to

24 put on evidence to show that SabreTech or anybody

25 willfully caused or intended to destroy that plane.

MOTIONS

252

1 Let me quote what Mrs. Miller said on page

2 93 of the transcript: "And you will not hear any

3 evidence that SabreTech focused on anything bad

4 happening with regard to flight 592. Let me repeat

5 that, ladies and gentlemen. You will not hear

6 evidence that SabreTech or any of these defendants

7 were indeed -- or indeed anyone at SabreTech intended

8 for that plane to crash or," and this is critical,

9 "foresaw that it would crash. That is not what this

10 case is about and that is not what the government's

11 proof is going to show.

12 "The evidence is going to show that there

13 was no more ill will, no particular ill will at all

14 towards ValuJet or toward, for instance, Ascera

15 Airlines or any other customer."

16 If the evidence is not going to show that,

17 they will not be able to prove that SabreTech

18 willfully intended to destroy that plane, which is

19 what they have to show. And I think Your Honor is

20 right. Anticipating Mrs. Miller's argument, she is

21 going to argue that they have alleged we willfully

22 made the false statements, and that simply -- that is

23 a different willful act. Here, the proof has to be

24 you willfully intended to destroy the plane and she is

25 acknowledging they can't do it, they are not going to

MOTIONS

253

1 do it.

2 So I think that's the basis for the Court

3 at this point for granting that Rule 29.

4 THE COURT: All right.

5 Perhaps we might as well break this into

6 two parts if that is convenient with everyone, and

7 hear from the government with respect to the response

8 to the motion regarding Count 24, if that is

9 convenient.

10 MRS. MILLER: That is fine, Your Honor.

11 Indeed, this matter has been litigated

12 previously in the motions. Mr. Moskowitz's statement

13 and insistence, as if it is a given fact that this

14 statute has an essential element as an intent to blow

15 up the aircraft, is absolutely wrong. We know that

16 because Congress has explicitly stated that. The

17 material is cited in our motion responses.

18 This statute was amended, I cannot give you

19 the exact year, but I think it was within the past 15

20 years, to bring it into conformity with the Montreal

21 Convention. And in my response I cited the language

22 of the Congressional committee in which they said it

23 was expressly their intent, that purpose, that intent

24 to destroy the aircraft not be an essential element of

25 this offense so as to bring it into conformity with

MOTIONS

254

1 the terms of the Montreal Convention.

2 This is not even something that is arguably

3 an essential element --

4 THE COURT: Which means what?

5 MRS. MILLER: Which means that the

6 government is not required to prove intent to destroy

7 the aircraft, as Mr. Moskowitz insists.

8 THE COURT: What is it --

9 MRS. MILLER: I really don't want to have

10 to recite all the essential elements just off the top

11 of my head, but it is required to prove that the

12 government knowingly and willfully placed and caused

13 to be placed destructive devices on the aircraft, and

14 did knowingly and willfully make and cause ValuJet to

15 be made unworkable and unusable and hazardous to work

16 with and use; does not require that the government

17 show that the defendants intended for that airplane to

18 stop working. It requires that the government show

19 that the defendants did knowingly and willfully

20 make -- not intend to make, but make -- and cause to

21 be made unworkable and unusable and hazardous to work

22 with and use that aircraft.

23 And the only thing that meshes with what

24 Mr. Moskowitz said --

25 THE COURT: Excuse me, but help me through

MOTIONS

255

1 this now.

2 What is the difference in the requirement

3 that the government have to prove that someone

4 intended --

5 What is the distinction or difference --

6 and I will ask each of you have the same question --

7 between a requirement that the government prove an

8 intent to make an aircraft, an airplane, unworkable,

9 and the government's requirement to prove that a

10 defendant willfully intended to destroy the aircraft,

11 as using Mr. Moskowitz's words. What is the

12 distinction between the two of them?

13 MRS. MILLER: For the latter, Your Honor,

14 the defendant would have to have as his or her goal,

15 his or her express motivation or goal, the destruction

16 of the aircraft. To do something that knowingly and

17 willfully makes and causes the aircraft to be made

18 unworkable requires only that the defendant know and

19 willfully do the things, such as in this case, placing

20 on board the aircraft generators which the corporation

21 knew were of this dangerous quality, which generators

22 made and caused to be made unworkable and unusable.

23 The statute and intent do not speak of

24 knowingly and willfully intending to make the aircraft

25 unusable, but of knowingly and willfully making the

MOTIONS

256

1 aircraft unusable. And that is done by knowingly and

2 willfully -- the willfulness attaches to, they know

3 what they are doing in terms of the generator that is

4 placed on there, and that they know that generator is

5 in violation of the law. That is what the knowingly

6 and willfully attaches to.

7 THE COURT: The statutes, in your judgment,

8 do not make a distinction then between placing

9 something on an aircraft that will make it unworkable,

10 and deliberately -- and placing something on there,

11 and both acts being deliberate, that will destroy it.

12 Now let me inquire: If, for example,

13 Congress said you can't fly, you can't place on a

14 passenger aircraft in the cargo hold and transport --

15 or you can't place it in there, a dead body in a

16 coffin. Let us assume that the placing of a dead body

17 in the coffin might be distasteful or unpleasant, or

18 disquieting is a better word, I guess, to passengers

19 if they knew it was there. But let us assume

20 hypothetically that there is no real danger, no

21 hazard -- maybe there is, but let's assume --

22 Let's assume you can carry a coffin from

23 Miami to New York in the hold of an airplane, and that

24 that would in and of itself not create any hazard.

25 And it might, shifting, things could happen. But it

MOTIONS

257

1 is not in the same category of placing a case of

2 dynamite in there.

3 And let's assume Congress said you can't

4 carry coffins. You can't carry it on cargo planes,

5 but not on passenger planes, or something like that.

6 Then willfully putting that cargo in there, I guess,

7 would under your argument be a violation of the

8 antiterrorism act, or would it?

9 MRS. MILLER: No, Your Honor, it wouldn't

10 because it would not be a destructive device.

11 THE COURT: So it is all -- so you suggest

12 that your argument is limited under this statute to

13 something that could be a destructive device.

14 MRS. MILLER: Yes, sir.

15 THE COURT: So you are saying, as I

16 understand it, that the deliberate placing of

17 something that is a destructive device on an aircraft,

18 the knowingly placing, the deliberate placing it

19 there, with nothing more, could be or would be a

20 violation of this statute.

21 For example, if somebody placed a case of

22 dynamite with detonators already inserted and all that

23 on an aircraft and rolled it to the far end of the

24 runway and just left it there, that would be a

25 violation; whether anything happened or not.

MOTIONS

258

1 MRS. MILLER: If it was knowing and

2 willful, Your Honor.

3 THE COURT: Assume knowing and willful in

4 all these examples.

5 MRS. MILLER: Yes, sir.

6 THE COURT: Somebody goes out there and

7 places -- and I use dynamite because you wouldn't have

8 to be worrying about whether they knew or probably

9 knew that could be very dangerous.

10 So, you suggest what you have to prove is

11 the knowing placing of something on an aircraft that

12 could disable that aircraft. And that's --

13 What somebody, inconceivable as it might

14 be, placed a wad of bubble gum on the fuel injector

15 system that was vital, or a little carburetor or

16 something that is vital, instead of sticking it behind

17 his ear as he normally did. He would have to be

18 pretty dumb to do that anyway.

19 But let's assume he stuck a wad of chewing

20 gum there, and, you know, the chewing gum in and of

21 itself is not dangerous; but placing it over in that

22 particular place would have the effect of cutting off

23 the gas, and he knew that; he is a mechanic and he

24 knew that that could cut off the fuel injection

25 system, and it could disable the airplane; and if in

MOTIONS

259

1 light could cause it to crash, and on the ground could

2 cause it to stall, or whatever, that would be a

3 violation, I believe, under your theory, your

4 interpretation of this statute; would it not?

5 MRS. MILLER: No, Your Honor. Because the

6 provision we charged requires it be a destructive

7 device, and a wad of bubble gum is not a destructive

8 device.

9 THE COURT: Why not, if it causes the

10 plane --

11 MRS. MILLER: Because there is a statutory

12 definition of a destructive device in Section 31.

13 THE COURT: Tell me what that is.

14 MRS. MILLER: Section 31. "Destructive

15 substance means any explosive substance, flammable

16 material, internal machine, or other chemical,

17 mechanical or radioactive device or matter of a

18 combustible contaminative, corrosive or explosive

19 nature."

20 THE COURT: So it has to be contaminatable

21 or explosive or corrosive. They can't be something as

22 innocent as a wad of bubble gum, which doesn't hurt

23 anybody if chewed; but would hurt somebody if -- it

24 can't be that. It has to be something corrosive or

25 explosive or something of that sort; is that it?

MOTIONS

260

1 MRS. MILLER: Under this provision, Your

2 Honor. There are other provisions under Section 32.

3 And I am not as well acquainted with them. There may

4 be some other provisions that don't apply to our case

5 that might make an act of sabotage unprosecutable.

6 But I don't want to address that --

7 THE COURT: We are not dealing here, as I

8 sense, with anything of sabotage. Certainly your

9 opening statement would indicate we are not dealing

10 with the deliberate intent to bring this plane to --

11 to cause this plane to destruct.

12 MRS. MILLER: And, Your Honor, if I might

13 point out, we have changed Section 32 Subsection 2.

14 There is a subsection of section 32, that is

15 Subsection 4, that explicitly requires intent to

16 damage, destroy or disable the aircraft. We have not

17 charged that.

18 And the fact that that intent is limited to

19 that subsection further illustrates what I was

20 referring to, which is, that Congress expressly

21 intended that intent to damage, destroy or disable the

22 aircraft is not an element of this provision, which is

23 Subsection 2. It is only an element of Subsection 4,

24 which we have not charged.

25 THE COURT: All right. Well, we'll hear --

MOTIONS

261

1 we are now almost at 6 o'clock. We'll hear from

2 Mrs. Moskowitz in the morning and Mrs. Miller further

3 in the morning on the other motion.

4 MR. DUNLAP: I beg -- I beg the indulgence

5 the Court. Can you hear me?

6 THE COURT: If you shout, I can.

7 MR. DUNLAP: I don't think this motion is

8 of such burning urgency -- maybe a poor choice of

9 words -- that we couldn't wait until tomorrow evening

10 if the Court would be so inclined.

11 THE COURT: Well, you know, it is a lot

12 easier to take these things up at the beginning of the

13 day. All of you young people, you know, being half my

14 age, would rather, as my former law partner used to

15 say, when we were practicing law together, he would

16 tell clients, Don't ever arrange a breakfast meeting

17 for King. He is a night fighter, he will talk to you

18 all night; but don't get him up early in the morning.

19 Well, time changes, you see, in 35 years or so, and it

20 seems to me that we -- I can assimilate these things a

21 little better in the morning; maybe not, I don't

22 know.

23 But the other thing is, too, I have a

24 concern about my staff, my Court Reporter and

25 everybody else, and keeping them here late evening

MOTIONS

262

1 after evening is not always a desirable -- not always

2 good.

3 And so, also you will hit all that traffic

4 if you come in in the morning early, you see. So

5 there is some big advantage there.

6 (Off-the-record discussion.)

7 THE COURT: It has just been a long day,

8 and Mr. Ehrlich has had a long day and so on.

9 Although you have been considerate about going -- not

10 ripping through a lot of this question and answer that

11 sometimes occurs, more with the witnesses than the

12 lawyers. But we haven't had that today like we did

13 yesterday.

14 To nobody's fault.

15 Mr. Ehrlich was gracious enough to come

16 over here today.

17 Well, I want to give you a chance to argue

18 it, but I just don't know -- do you think we can make

19 any dent in it if we made it 8:30? Could we do

20 something in 30 minutes? Mrs. Moskowitz's argument.

21 MRS. MOSKOWITZ: Whatever suits you. We'll

22 be here.

23 THE COURT: I understand.

24 Well, let's say 8:30 then.

25 MRS. MOSKOWITZ: That's great.

MOTIONS

263

1 THE COURT: And we'll take about 15 minutes

2 a side and we'll get it resolved.

3 If this is in the category of that motion

4 Mr. Moskowitz made yesterday, please by all means tell

5 me and I can dispose of it this evening, the one he

6 said, Judge, I really don't think you are going to

7 grant this, but I want to make it anyway. If it is in

8 that same category, let me know.

9 MRS. MOSKOWITZ: No, sir. This is one we

10 really want you to grant and we really think you

11 should.

12 THE COURT: The last item of business that

13 we have, I would like to review with you, and I want

14 you to correct the record if there is a mistake in

15 this anyway, but it is, from my notes it appears that

16 the following government exhibits have been admitted

17 into evidence in the afternoon session of Court.

18 Government Exhibit 71, a floor plan;

19 Government Exhibit 2D for David, picture of a DC-9;

20 Government Exhibit 36, I am not sure what that was;

21 Government Exhibit 64D for David; pictures of the work

22 booth; Government Exhibit 64E pictures of the work

23 booth; Government Exhibit 2, a work card; Government

24 Exhibit 47, a red tag.

25 In addition, Defendant's Exhibit Number 4,

MOTIONS

264

1 Defendant SolarTech's Exhibit Number 4 was admitted

2 into evidence.

3 If I have omitted something, please so

4 state.

5 That won't bar you if you find something

6 overnight. I would just like to have as complete and

7 accurate record as I can.

8 If you hand them to my courtroom deputy,

9 she will mark them and put them on the table in front

10 of us and we'll have an accurate record.

11 We'll see you at 8:30 in the morning.

12 MRS. MILLER: The oxygen generators, I am

13 not remembering if they were introduced yesterday or

14 today, because if it was today, you didn't read off

15 those numbers.

16 THE COURT: I only read off the afternoon

17 numbers. The morning numbers I read off at noon, and

18 yesterday's numbers.

19 The generators were admitted into evidence,

20 but that is already noted in the record carefully,

21 already.

22 8:30 in the morning.

23 (Court adjourned at 5:45 p.m.)

24

25

MOTIONS

265

1 I N D E X

2

3 GOVERNMENT'S WITNESS DIR CROSS REDIR RECROSS

4 ROBERT BRENNAN 2 42, 109

90

5

MICHAEL FRANCIS QUAN 114 162, 192 195

6 188

7 CHRISTOPHER DeSTEFANO 204

8

GOVERNMENT'S EXHIBITS ID IN EVID

9

30A 6

10 30C 9

30D 15

11 30B 23

30A 34

12 59O, 59I, 54E, 54K and 54F 38

71 127

13 2D 133

36 148

14 64D and 64E 214

2 224

15 47 238

16 DEFENDANT'S EXHIBITS ID IN EVID

17 Florence's 1 50

SabreTech's 1 91

18 SabreTech 4 180

19

20

21

22

23

24

25

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