CASE NO. 99-491-CR-KING
vs. MIAMI, FLORIDA
SABRETECH, INC.
DANIEL GONZALEZ, WEDNESDAY - 9:00 A.M.
Defendants.
CAROLINE HECK MILLER, A.U.S.A.
GEOFFREY BRIGHAM, A.U.S.A.
J.L.K. FEDERAL JUSTICE BUILDING
99 N.E. 4th Street
JANE RASKIN, ESQ.
MARTIN RASKIN, ESQ.
RASKIN & RASKIN, P.A.
2937 S.W. 27th Avenue, Suite 206
NORMAN MOSCOWITZ, ESQ.
SULLIVAN RIVERO & MOSCOWITZ, P.A.
201 South Biscayne Blvd.
JANE MOSCOWITZ, ESQ.
100 S.E. 2nd Street, Suite 3700
ROBERT DUNLAP, ESQ.
DUNLAP & SILVERS, P.A.
2601 S. Bayshore Drive, Suite 601
J.L.K. Federal Justice Building
Larry Fogg ............................. 4 36
Kay Peters ................... 61
E. Nesbitt Kuyrkendall ....... 70
John C. Lank ................. 84 91
Defense Florence ............ 31 17
Government Exhibit 44 .......................... 65 16
Government Exhibit 52 ........ 56 2
Government Exhibit 57 .......................... 60 14
Government Exhibits 102 ..... 74 3
Government Exhibits 102A, 104A, B, C, D, ...... 82 12
2 COURTROOM DEPUTY: All rise. Court is in
3 session. The Honorable Judge James Lawrence King
4 presiding.
5 THE COURT: Thank you. Be seated, please. Are
7 MS. MILLER: For the government, yes, Your Honor.
8 MS. MOSCOWITZ: With the Court's brief
10 to leave to take a kid to the airport. It depends on who
11 is questioning. Mr. Florence has agreed that it's okay
12 with him. Your Honor, may want to have that on the record.
14 Mr. Florence?
15 DEFENDANT FLORENCE: Yes.
16 THE COURT: It's okay with him.
17 [The jury returns to the courtroom].
18 THE COURT: Thank you, be seated. We will resume
19 with the witness, please.
21 BY MS. MOSCOWITZ:
22 Q. Mr. Fogg, you have been being paid by McDonnell Douglas
25 A. That's not correct.
1 Q. You haven't been being paid by McDonnell Douglas with
3 A. With respect to this accident, no I have not.
4 Q. When you reported to the accident scene on May 12, 1996
6 A. At that time I was being paid by McDonnell Douglas.
8 Douglas.
9 Q. When did you retire?
10 A. February 26, 1999.
11 Q. So you were paid by McDonnell Douglas up until February
13 A. That's correct.
14 Q. Then you were reengaged a few weeks later by a
18 Nova Scotia on an as required basis.
19 Q. So you were being paid by McDonnell Douglas after
21 A. For contract work, yes.
22 Q. Are you also receiving a pension from McDonnell
24 A. Yes, I am.
25 Q. Sir, yesterday we were talking about the D-compartment,
2 A. Yes.
3 Q. When we call that a D-compartment, that is a
6 A. That's be partially correct.
7 Q. What's the rest correct?
8 A. A Class D-compartment is a compartment which, by its
10 the amount of oxygen.
11 Q. Are you done?
12 A. Actually suppressing, I was having trouble with that
14 would continue to support combustion.
15 Q. Before 1996, or during 1996 there were no mechanical
18 A. There were no such systems on McDonnell Douglas
19 commercial airplanes.
20 Q. The NTSB had recommended smoke detection systems and
22 MS. MILLER: Objection, Your Honor.
23 THE COURT: This is an expert witness.
24 Overruled.
25 MS. MILLER: That wasn't the basis for my
1 objection.
3 MS. MILLER: That was not the basis for my
4 objection. The basis was that it is calling for the
5 opinions of the NTSB and outside the scope.
6 THE COURT: I think she asked him a fact. She
8 regulation. That tests his recollection about the
9 knowledge of these matters, and he may answer that. That
10 does not go to the truth of what the regulations say. The
12 he read it. He may answer that question.
13 MS. MOSCOWITZ: Let me ask him a different
14 question, Your Honor.
15 THE COURT: Let him answer the question. The
16 question is pending and an objection has been ruled on.
17 Now lets get an answer.
24 detection system.
25 Q. But McDonnell Douglas did not put in such a smoke
2 A. No, it did not.
3 Q. Also there are ways to take smoke out of passenger
5 A. Yes, there are.
6 Q. You can move the doors a little, and it will take the
8 A. That's not quite correct.
9 Q. How is it done?
10 A. Normally smoke is evacuated from the aircraft by the
15 yesterday afternoon. That's the normal passage of air in an
17 for smoke that would occur on the aircraft.
18 Q. But certain airlines use procedures in which the
21 A. There are procedures to do that; however, in order to
23 airplane. You must be below 10,000 feet. You crack a
5 that door at touch-down.
6 Q. And some airlines in Europe have implemented those
8 A. That's correct.
9 Q. But McDonnell Douglas never implemented those
11 A. McDonnell Douglas has a procedure that's been in effect
13 accident in 1983.
14 Q. The cargo doors, sir?
15 A. I'm sorry, the passenger door.
16 Q. There was no such procedure prescribed for ValuJet,
18 A. I'm not familiar in detail with Valujet's procedures.
19 That was another function of the investigation.
20 Q. Sir, you just told us, did you not, that the main way
23 A. Yes.
24 Q. You are aware, are you not, that on flight 592 it was
2 A. The physical evidence in the hangar at Tamiami Airport
4 packs was not functioning at the time of impact.
5 Q. So it would not have been able to remove smoke from the
7 A. The DC9 is equipped with two air-conditioning systems
8 driven from each of the two engines. Any one system is
10 its occupants and would remove smoke.
11 Q. Which is the one that wasn't functioning? Which side
14 A. I don't recall.
15 Q. It would have overloaded the other one to some degree,
17 A. No, it would not.
18 Q. Sir, your conclusions that you made and testified to
21 A. I'm not sure I understand your question.
22 Q. You didn't do any testing of materials; you looked at
24 A. I physically examined the wreckage that was recovered,
25 documented it in writing and photographically. I did not
1 personally do any testing on those materials.
4 investigation.
5 MS. MOSCOWITZ: Your Honor, I asked a question
6 that did not call for the long ranging answer.
7 THE COURT: Overruled.
8 If you ask a question, things are going to flow.
10 them.
11 BY MS. MOSCOWITZ:
12 Q. Sir, you made conclusions that you testified to based
15 A. Yes, that was part of my conclusions yesterday. It was
18 floor beams and seat tracks and other items, yes.
19 Q. So you made conclusions, to some degree, based on the
21 A. Yes, I did.
22 Q. And you made those observations after parts had been
25 A. It was a decontamination solution of chlorine bleach
1 from a small sprayer, yes.
2 Q. So the answer to my question is yes, correct?
3 A. Yes.
4 Q. You testified to a trail of soot you saw at the plane's
6 A. Yes, I did.
7 Q. You stated that soot would generally follow the air
9 A. Yes, I did.
10 Q. And I assume, therefore, that when the plane was flying
12 A. The physical evidence showed not only smoke trailing
16 aircraft.
17 Q. And that would have been visible to the naked eye as
19 A. No.
20 Q. You couldn't see the smoke?
21 A. I don't know whether you could see the smoke. I have
22 no knowledge with regard to what anybody might have seen. I
23 suppose it's possible.
24 Q. If the smoke was dark enough to leave soot you would
1 MS. MILLER: Objection, asked and answered.
2 THE COURT: Overruled.
4 smoke was coming out. There was certainly enough to attach
5 to the side of the aircraft.
6 BY MS. MOSCOWITZ:
7 Q. Sir, you testified that in your opinion this fire was
10 A. That's correct.
11 Q. You know that this plane was built in 1969, correct?
12 A. Yes, that's correct.
13 Q. We can agree that that would come under the term an
15 A. It was an older aircraft, yes.
16 Q. It had over 80,000 cycles, right?
17 A. That's correct.
18 Q. You are aware that the FAA has expressed its concern
20 A. The FAA has concerns regarding aging aircraft.
21 Q. In fact, they have established various plans for
23 A. That's correct.
24 Q. In 1998 they announced a plan regarding the electrical
1 MS. MILLER: Objection, Your Honor.
4 the truth of this matter. So if you want these items in
5 evidence I think you have to offer them some other way.
6 MS. MOSCOWITZ: I can do that, Your Honor.
9 certain things, he says yes or no. But the truth of these
11 that would be another part of your case. So the objection
12 is sustained in part. It's not cross-examination of the
13 direct.
16 when the time comes.
18 then there's no need to go into them in such depth. Testing
20 thing.
21 BY MS. MOSCOWITZ:
22 Q. Sir, the FAA -- you're aware that the FAA has expressed
25 A. The FAA has established some working groups, and I'm
3 of the wiring in those aircraft.
4 Q. There's a concern that old wiring can become
6 A. I don't understand the phrase "contaminated."
7 Q. Wear and tear on aged wire can cause it to be
11 A. Any wire on an aircraft that is improperly installed
13 that wire. However, the wiring that was on the ValuJet
17 chloride jacket over that. And then it has a woven
18 fiberglass braid over the polyvinyl chloride jacket. Over
20 wire identification stamps to be placed on the wire. That
21 wire is a very durable long lasting wire.
22 Q. So the answer to my question is yes?
23 MS. MILLER: Objection, Your Honor,
24 argumentative.
25 THE COURT: Sustained.
1 Ask the next question.
2 BY MS. MOSCOWITZ:
3 Q. The wiring that you just described, McDonnell Douglas
5 A. The quad four wire was used on the DC8 and DC9. It was
7 line. It was used on the DC9 until the mid '70s. On our
9 designed in the early 1970s, we used a different wire.
10 Q. Let me be clear. The wiring you just described,
13 A. In its current production line aircraft, McDonnell
14 Douglas Boeing Company no longer uses quad four wire.
15 Q. Sir, with respect to whether there were any electrical
20 A. I have not personally reviewed the maintenance records
21 or maintenance history of this aircraft. There were a
23 meetings during the investigation. One concerned a report
24 of a P.A. system malfunction. Another concern reported an
25 auxiliary hydraulic pump malfunction. There was also a
3 inoperative prior to the flight.
4 Q. Were you aware that on December 27, 1995 the left
7 A. I was not.
8 Q. Were you aware that on February 15, 1996 the left
10 A. I was not, but that would be normal aircraft
11 maintenance activity.
12 Q. By the way a bus is something that carries electricity,
14 A. A bus is a connection point between multiple circuit
16 aircraft.
17 Q. So it like centralizes a whole bunch of circuit
19 A. It's part of the circuit protection system in the
23 a bus.
24 Q. We were talking about February 15, 1996.
3 A. Buses do not pop.
4 Q. The circuit breaker popped.
5 I'm sorry I'm not an electrical engineer.
6 A. Okay. If a circuit breaker trips, the procedures in
9 necessary for continued flight of the aircraft.
11 action should be undertaken.
12 Q. Do you know whether that maintenance action was
14 A. As I said, I have not reviewed the maintenance records
15 for this aircraft.
16 Q. Were you aware that on March 3, 1996 the right forward
18 A. No, ma'am.
19 Q. Were you aware that on March 3, 1996 the left AC bus
21 A. No.
22 Q. Were you aware that on March 5, 1996 the circuit
25 A. No.
1 Q. Were you aware that on that same date two of the
3 A. No.
4 Q. Were you aware that on March 14, 1996 there was an
7 A. I believe that would be the same as a circuit breaker
8 trip.
9 Q. Were you aware that that happened on March 4, 1996?
10 A. No.
11 Q. Were you aware that on March 15, 1996 there was another
13 A. No.
14 Q. Were you aware that as a result of the loss of several
19 A. The pilot always has that option, but I was not aware
20 of the circumstances.
21 Q. Were you aware that maintenance personnel found that
24 A. No.
25 Q. Were you aware that on March 17, 1996, again, a circuit
1 breaker for one phase of the left AC bus popped?
2 A. No.
3 Q. Were you aware at that time that it was accompanied by
4 the popping of three circuit breakers protecting the right
5 forward fuel pump and two breakers associated with the left
6 aft fuel pump?
7 A. No.
8 Q. Were you aware -- let's talk again, you'd mention
9 something about the right auxiliary fuel pump.
10 On the flight into Miami on May 11, 1996, that
11 right auxiliary fuel pump was in bad shape, right?
12 A. First of all, I said it was auxiliary hydraulic pump.
13 Q. You're correct. I'm wrong.
14 A. And I didn't say bad shape.
15 Q. Were you aware that the day of the accident, as the
16 aircraft was departing the gate at Atlanta, there was a
17 delay because of a popped right auxiliary hydraulic pump
18 circuit breaker?
19 A. I was aware there was a report of maintenance action
20 with regard to the right auxiliary hydraulic system, yes.
21 Q. And you just told us you get one reset and one reset
22 only, right?
23 A. Yes, that is correct, and then you have maintenance
24 perform maintenance on the system.
25 Q. What happened here, you are aware, that they tried to
UNITED STATES vs SABRETECH ET, AL - 11-24-99
21 FOGG - Cross
1 reset it and it didn't stay in. And then they tried to
2 reset it and it didn't stay in again. And then tried to
3 reset it and it didn't stay in again. Then the mechanic
4 disconnected the cannon plug and cleaned it, and then they
5 were able to push in the circuit breaker, and they pushed it
6 in and they took off on that flight, right?
7 A. I was aware that the cannon plug had been cleaned and
8 that the circuit breaker had been reset. I was not aware of
9 how many times a mechanic may or may not have attempted to
10 reset prior to doing maintenance.
11 Q. Cleaning the cannon plug, that doesn't correct the
12 underlying problem that is causing this overload on the
13 circuit, does it?
14 A. It's possible that it could.
15 Q. It's possible that it could, and it's possible that it
16 couldn't, right?
17 A. Obviously, it corrected the problem because the circuit
18 breaker reset held.
19 Q. It held until they took off at least, right?
20 A. Well, I personally examined the wiring for that system
21 through the region from station 218, the right auxiliary
22 hydraulic pump wiring.
23 Q. When --
24 MS. MILLER: Objection, Your Honor. I don't
25 believe the witness completed his answer.
UNITED STATES vs SABRETECH ET, AL - 11-24-99
22 FOGG - Cross
1 MS. MOSCOWITZ: I'm sorry.
2 THE COURT: Go ahead.
3 THE WITNESS: There was no evidence of any
4 circuit overload of any of the wiring that went to the
5 auxiliary hydraulic pump on those circuit breakers.
6 BY MS. MOSCOWITZ:
7 Q. When a circuit breaker pops it means there is some kind
8 of surge in the wire, right?
9 A. It means a higher current is being conducted through
10 the wire than the circuit breaker will allow to travel, yes.
11 Q. If you reconnect the circuit you permit that to happen
12 again if you don't get to the underlying problem and correct
13 it, right?
14 A. If the anomaly or whatever is drawing the higher
15 current and it's still there when you reset the circuit
16 breaker, you'll reset it into that same anomaly, and you'll
17 draw the same high current, yes.
18 Q. You also know, do you not, that for several flights
19 before and including May 11, 1996, the auto pilot was
20 causing the plane to porpoise, right?
21 A. I was aware that there were reports of porpoising that
22 were mentioned during the progress meeting. Beyond that, I
23 have no recollection --
24 Q. Could you tell the jury what it means --
25 MS. MILLER: Objection, Your Honor. He did not
UNITED STATES vs SABRETECH ET, AL - 11-24-99
23 FOGG - Cross
1 finish his answer.
2 THE COURT: Finish your answer.
3 MS. MOSCOWITZ: I'm sorry, Your Honor.
4 BY MS. MOSCOWITZ:
5 Q. Did you finish your answer?
6 A. Beyond the fact that that statement was made in a
7 progress meeting, I don't have any knowledge concerning the
8 porpoising of the auto pilot system.
9 Q. Just tell the jury, sir, if you would, what it means
10 for a plane to porpoise.
11 A. I think the word "porpoise" has many connotations. In
12 the normal usage of the term "porpoise," which is relatively
13 a slang term, the auto pilot or the aircraft would tend to
14 deviate slightly from level flight at some point in its
15 time.
16 Q. Slightly?
17 A. Generally it's slightly, yes.
18 Q. Sir, you are aware, are you not that when the problems
19 were first detected on flight 592 that the pilots said to
20 each other and to the control tower that they were about to
21 lose a bus and that they had an electrical problem?
22 A. I'm aware that approximately six minutes after the take
23 off there was a conversation on the cockpit voice recorder
24 that said, "we are about to lose a bus." This occurred
25 slightly after the big bang that was heard on the cockpit
UNITED STATES vs SABRETECH ET, AL - 11-24-99
24 FOGG - Cross
1 voice recorder. It was approximately eleven seconds before
2 screams of fire came from the cabin. So I would not
3 associate the comment "about to lose a bus" with anything
4 associated with an initiation of this fire. Eleven seconds
5 is much too narrow a time wind window for that to be an
6 initiating event.
7 Q. Have you listened to that recording?
8 A. I have not listened to the recorder.
9 Q. So you just wanted to add that to the jury when the
10 question was something else; is that correct, sir?
11 MS. MILLER: Objection, Your Honor.
12 THE COURT: The objection is sustained. We are
13 dealing here with an expert witness.
14 The question was dealing with something the pilot
15 had said. If you wish to ask him about that without asking
16 him if he has listened to it first, that leaves a
17 difficulty.
18 BY THE COURT:
19 Q. You did not listen to whatever was recorded in the
20 cockpit, is that right? You only know what someone has told
21 you about that, right?
22 A. Your Honor --
23 Q. Is that a yes or no?
24 A. I read the official transcript.
25 Q. Listen to my question.
UNITED STATES vs SABRETECH ET, AL - 11-24-99
25 FOGG - Cross
1 Have you listened to the official tape recorder
2 that we all understand goes on in the cockpits, the black
3 box or whatever it is? Have you listened to the
4 conversations?
5 A. No, Your Honor.
6 THE COURT: All right. Then don't tell us what
7 somebody has told you, or what you've read unless
8 specifically asked.
9 Next question.
10 BY MS. MOSCOWITZ:
11 Q. Sir, you found the most damage on the left side of the
12 class D forward cargo hold, right?
13 A. The amount of heat damage to the structure in the area
14 of the floor beams was greater on the left hand side for the
15 fuselage skin than it was on the right hand side. But both
16 sides of the compartment in the region from approximately
17 station 313 to approximately 389 had damage.
18 Q. At what point in the cargo hold do you believe the fire
19 initiated?
20 A. Would you give me the question again, please.
21 Q. At what location in the cargo hold do you believe the
22 fire initiated?
23 A. It initiated somewhere just forward of the lower cargo
24 compartment door, which would be just forward of station
25 370, somewhere in that region.
UNITED STATES vs SABRETECH ET, AL - 11-24-99
26 FOGG - Cross
1 Q. On the left side?
2 A. It could be on the left side or the center. But it's
3 somewhere within that region of the compartment.
4 Q. Now, sir, you only recovered -- you did not recover --
5 what I want to turn to and try to talk about is the left
6 generator power feeder cable. You did not recover from
7 station 295 to station 679 of that left generator power
8 feeder cable, right?
9 A. I'm having trouble with specific station locations and
10 the left generator power cable.
11 You see, I examined all of the generator power
12 cables for both the left generator, the right generator and
13 the auxiliary power unit from the E and E compartment back
14 into the area of fire damage in the tunnel. The wiring
15 itself showed that there was no overload or excessive
16 current transmitted through those wires.
17 All fractures on the large ot-gauge (phonetic)
18 aluminum wires which were exclusively for the generator
19 feeds and/or the APU start cable through the constant
20 section of the aircraft were examined.
21 The total --
22 THE COURT: Let me interrupt you just for a
23 moment.
24 BY THE COURT:
25 Q. Did you recover the wire between the two stations she
UNITED STATES vs SABRETECH ET, AL - 11-24-99
27 FOGG - Cross
1 mentioned, if you know?
2 A. I don't recall.
3 THE COURT: Next question.
4 BY MS. MOSCOWITZ:
5 Q. Is there anything that would refresh your recollection?
6 A. I would have to go back to the hangar notes that I made
7 to refresh my recollection.
8 Q. So you don't know whether the left generator power
9 feeder cable was recovered from an area that goes right by
10 this cargo compartment; is that your testimony? You don't
11 remember that?
12 A. I remember that the left generator feed wires outboard
13 of this compartment from station 218 aft to, I don't recall
14 the exact station location, but it would have been back in
15 the area of the fire, were recovered and were examined.
16 Q. You stated in your report the left generator power
17 feeder cables from station 294 forward to approximately
18 station 150 were recovered intact with no evidence of fire
19 or heat damage, right?
20 A. That would be my understanding, yes.
21 Q. And it doesn't mention what happened aft or back of
22 that station, right, Mr. Fogg?
23 A. Aft of station 427, on all of the wiring on the left
24 side of the aircraft, there was only evidence of soot
25 accumulation on the nylon conduits, and there was no
UNITED STATES vs SABRETECH ET, AL - 11-24-99
28 FOGG - Cross
1 evidence of heat damage to any of the wiring associated with
2 this aircraft.
3 Q. But that's 427. What I just read you from your reports
4 still leaves us an area between 294 and 427 on that airplane
5 that you did not recover, correct?
6 A. I don't know whether it was recovered or not, because
7 the wires were fragmented. I laid them out and made a total
8 overall length computation for the recovered ot-gauge
9 wiring.
10 Q. If you don't know whether they were recovered then you
11 don't know whether they arced or showed damage, do you?
12 A. The wires that we are talking about, the three phase
13 ot-gauge aluminum electrical power wires are contained
14 within a ridged nylon conduit. They also are protected by a
15 differential protection circuitry which consists of current
16 transformers, and a very rapid response, much more rapid
17 than circuit breakers, goes into play if there's any
18 imbalance occurring, and that would have prevented any
19 failure of these wires from breaching the nylon conduit if
20 there had been a problem. And there's no evidence there was
21 a problem.
22 Q. There's no evidence because you don't have the wire,
23 right?
24 A. The wire that was recovered had no evidence of any
25 electrical malfunctions. And all I can say is all of the
UNITED STATES vs SABRETECH ET, AL - 11-24-99
29 FOGG - Cross
1 wire that was recovered of this category, which is a
2 specific ot-gauge wire was examined and the overall length
3 of the wiring was computed and documented in the report.
4 Q. Sir, we can assume that if you had recovered a wire
5 that ran exactly by this cargo compartment you would have
6 thought it important enough to put in your report, correct?
7 A. The problem with the "ot-gauge" wires --
8 BY THE COURT:
9 Q. Would you have put it in your report if you had the
10 wires to examine?
11 A. The ot-gauge wires have an outer nomex (phonetic)
12 braid, and it's impossible to --
13 THE COURT: I guess the answer is he wouldn't
14 have put it in his report. Let's move on.
15 MS. MOSCOWITZ: Actually, I disagree, Your Honor.
16 I think it is very important and he would have.
17 THE COURT: Oh, he would have put it in his
18 report. Obviously, if he had wiring that he found that
19 went by this compartment, and he examined it carefully and
20 made notations, he would have put it in his report. The
21 fact that it's not there indicates that he didn't have the
22 wire to examine.
23 BY MS. MOSCOWITZ:
24 Q. The generator power feeder cable is a wire about a half
25 an inch thick, right?
UNITED STATES vs SABRETECH ET, AL - 11-24-99
30 FOGG - Cross
1 A. It's a large diameter wire. I don't know the cross
2 sectional dimensions.
3 Q. That wire goes directly under the lavatory and right
4 around this cargo compartment, right?
5 A. That wire is -- I'm sorry I said nylon conduit -- It's
6 wired in nylon floor troughs and it goes out in the tunnel
7 area, I guess.
8 Q. It goes very close to the seat track, doesn't it?
9 A. The outboard seat track, yes.
10 Q. Sir, your belief that the fire started inside and moved
11 outside the cargo hold, you stated, is based on your belief
12 that it would be difficult to burn through the outside
13 liner, correct?
14 A. That's correct.
15 Q. Now, you are aware, are you not, that there have been
16 occasions in which fires began outside the liner and burned
17 in to the degree that McDonnell Douglas and the Federal
18 Government issued air worthiness directives and service
19 bulletins on this topic, correct?
20 THE COURT: Excuse me. That's a multiple
21 question.
22 MS. MOSCOWITZ: It is.
23 BY THE COURT:
24 Q. Have you read any air worthiness reports issued by
25 McDonnell Douglas dealing with the concern about fires
UNITED STATES vs SABRETECH ET, AL - 11-24-99
31 FOGG - Cross
1 burning from outside in to the type of compartment?
2 A. No, I have not.
3 THE COURT: Next question.
4 BY MS. MOSCOWITZ:
5 Q. You are not aware of the '91 --
6 THE COURT: You will have to get those into
7 evidence. He says he is not aware of them.
8 MS. MOSCOWITZ: May I show it to him and ask him
9 if he is aware?
10 THE COURT: Yes.
11 MS. MOSCOWITZ: Thank you, sir.
12 THE COURT: The question is: Have you seen this
13 document. We will mark it as what?
14 MS. MOSCOWITZ: I think it's Florence 4, Your
15 Honor, for identification.
16 THE COURT: Florence 4 for identification.
17 [Defense Florence Exhibit 4 marked for identification].
18 BY MS. MOSCOWITZ:
19 Q. Sir, have you seen that document? It starts in the
20 middle of the page.
21 THE COURT: Let him take a look at it.
22 THE WITNESS: I have not seen this document.
23 BY MS. MOSCOWITZ:
24 Q. And that is to eliminate --
25 THE COURT: Why don't you just have another
UNITED STATES vs SABRETECH ET, AL - 11-24-99
32 FOGG - Cross
1 witness come and tell us all about the document. He says
2 he hasn't seen it. And then you all can argue to the jury
3 whether or not he should have or whatever. But let's move
4 on.
5 BY MS. MOSCOWITZ:
6 Q. You also told us there were some lights in the cabin
7 and light switch, correct, in the class D cargo compartment,
8 the forward cargo hold?
9 A. Yes, I did.
10 Q. And you did not recover the lights, the switches, the
11 light bulbs, the light sockets or the light socket
12 assemblies in that cargo compartment, did you?
13 A. I don't have any specific recollection of recovering
14 any of that hardware.
15 Q. And again, that's something that probably you would
16 remember, right?
17 A. I would hope so.
18 Q. Now, there is a door from the passenger compartment,
19 the passenger cabin into that compartment, isn't there?
20 A. There is, I believe, there's an access panel that you
21 can take up from the floor and eventually access the lower
22 cargo compartment in the event of a malfunction to the cargo
23 door operating mechanism. It would not be functional or
24 accessible in flight.
25 Q. What station is that door located at?
UNITED STATES vs SABRETECH ET, AL - 11-24-99
33 FOGG - Cross
1 A. I don't recall.
2 MS. MOSCOWITZ: May I approach the witness, Your
3 Honor?
4 THE COURT: Yes.
5 BY MS. MOSCOWITZ:
6 Q. Let me show you a document and ask you if it refreshes
7 your recollection, sir, as to where that door is located.
8 Does that refresh your recollection as to the location of
9 what stations the door is located at?
10 THE COURT: Let him read it please. Let him take
11 time to read it.
12 THE WITNESS: No, it does not because this
13 particular drawing, someone has made additions to it
14 subsequent to when I last saw it.
15 BY MS. MOSCOWITZ:
16 Q. You made the drawing initially and then somebody added
17 something to it. Is that your testimony?
18 A. This drawing was part of the fire group on site field
19 notes, and someone has subsequently added a portion that
20 says "access door from passenger compartment barrier door
21 and normal door --
22 THE COURT: It's not in evidence. Let's not get
23 into it. She has handed it to you. Does that refresh your
24 recollection as to where the access door is? That was the
25 question.
UNITED STATES vs SABRETECH ET, AL - 11-24-99
34 FOGG - Cross
1 THE WITNESS: It does not.
2 THE COURT: Next question.
3 BY MS. MOSCOWITZ:
4 Q. You have no independent knowledge as to what station
5 that door is?
6 A. No, I don't.
7 Q. If a door from the passenger cabin into that cargo hold
8 was opened, that would, of course, allow oxygen into the
9 hold, correct?
10 A. We are calling this a door. It's a means to access the
11 compartment in the event that the cargo door malfunctions --
12 THE COURT: Well, if the opening, whatever it was
13 called, was opened.
14 THE WITNESS: If there was an opening in the
15 liner that would allow fire to escape the compartment.
16 BY THE COURT:
17 Q. And you don't know whether there was an opening or not
18 an opening on this plane?
19 A. I have no knowledge, or I actually have no knowledge,
20 of whether the liner was there or not there in that
21 particular area on this flight.
22 It is inconceivable that it would not be in place.
23 Q. Let me ask you this: You've worked for McDonnell
24 Douglas for a long time. You've been an engineer there.
25 You have had all of these series of positions, and you are
UNITED STATES vs SABRETECH ET, AL - 11-24-99
35 FOGG - Cross
1 familiar with and are an expert on the DC9. At this point
2 in time, can you tell the jury whether or not there was an
3 access opening, whether you call it a door or a small
4 opening, or large opening, whatever it may have been that
5 would permit a person to go from the cabin to that
6 compartment in the event of malfunction that you described
7 of the locking mechanism on the outer door and when they are
8 on the ground they do this. Are you familiar, do you know
9 anything about an opening that will permit somebody to open
10 the cabin into that luggage compartment?
11 A. I am familiar, Your Honor, that there is a means to
12 access the compartment from above.
13 Q. Would you describe that means of access to the jury.
14 What is it?
15 A. It is possible to remove a floor panel from the
16 passenger cabin and access the lower forward cargo
17 compartment through the ceiling liner area. And the exact
18 mechanism of the ceiling liner area and dimensions, I do not
19 recall.
20 Q. Would it be big enough for a person to move through?
21 A. Yes, it would.
22 Q. And to remove it, what is the process? Tell the jury
23 how one would remove that ceiling liner or whatever it was.
24 How would they do that?
25 A. I don't know at this point.
UNITED STATES vs SABRETECH ET, AL - 11-24-99
36 FOGG - Redirect
1 Q. Would they have to take a knife and cut up carpet, or
2 would they have to lift up a latch, if you know?
3 A. I don't know.
4 THE COURT: Next question.
5 BY MS. MOSCOWITZ:
6 Q. Sir, you don't know what, if anything, was in any
7 passenger luggage that was traveling in that compartment, do
8 you?
9 A. I do not.
10 MS. MOSCOWITZ: I have nothing further, Your
11 Honor.
12 THE COURT: Anyone else for the defense?
13 MR. RASKIN: No, sir.
14 MR. DUNLAP: No, Your Honor. Thank you.
15 THE COURT: Redirect examination.
16 REDIRECT EXAMINATION
17 BY MS. HECK MILLER:
18 Q. Mr. Fogg, you were shown a diagram, and you said it did
19 not refresh your recollection; is that correct?
20 A. That's correct.
21 Q. Is there a later version of that diagram?
22 A. There's an earlier version.
23 Q. I'm handing you what I'm marking as Government Exhibit
24 103 for identification. And 103A and 103B is two sheets.
25 Do you recognize 103A and 103B?
UNITED STATES vs SABRETECH ET, AL - 11-24-99
37 FOGG - Redirect
1 A. Yes, I do.
2 Q. Do 103A and 103B relate at all to the diagram you were
3 earlier shown?
4 A. Yes.
5 Q. Are they a later or earlier version?
6 THE COURT: What materiality is that? It was
7 handed to him to see if it refreshes his recollection. Now
8 you're handing him some more documents.
9 BY THE COURT:
10 Q. Do these refresh your recollection in any way?
11 A. Yes, sir. These are the documents that were prepared
12 --
13 THE COURT: Well, they're not in evidence. They
14 have not been offered yet. We don't know if they are
15 material or not.
16 BY MS. HECK MILLER:
17 Q. Do those documents refresh your recollection?
18 THE COURT: He said they did.
19 BY MS. HECK MILLER:
20 Q. What role, if any, do you have in the preparation of
21 those documents?
22 A. The only role I had in the preparation of these
23 documents was to review them for correctness.
24 Q. Did you find them to be correct?
25 A. Yes, I did.
UNITED STATES vs SABRETECH ET, AL - 11-24-99
38 FOGG - Redirect
1 Q. Did you find them to be a true and accurate depiction
2 of what is shown in those diagrams?
3 A. The portions that are shown in these diagrams are a
4 true and accurate depiction.
5 MS. MILLER: Government moves 103A and B into
6 evidence.
7 MS. MOSCOWITZ: I just need to look at them, Your
8 Honor.
9 THE COURT: Please hand them to her and let her
10 look at them. We will see if she has any objection.
11 Any objection?
12 MS. MOSCOWITZ: My objection is relevance and
13 materiality, Your Honor.
14 THE COURT: I will have to take a look at them.
15 They dealt with some element from cross-examination of some
16 sort. I'll look at them at the next recess. I'll reserve
17 ruling on it. Let's move onto something else.
18 BY MS. HECK MILLER:
19 Q. Mr. Fogg, you were asked several questions about the
20 three phase ot-gauge aluminum wires. Are those related to
21 the left generator power feeder cable?
22 A. Yes.
23 Q. What is the relationship between these wires and the
24 left generator power feeder cable?
25 A. The left generator power feeder cable consists of two
UNITED STATES vs SABRETECH ET, AL - 11-24-99
39 FOGG - Redirect
1 gauge copper wire from the generator to a point in the aft
2 fuselage area that goes to a terminal strip which is a
3 junction termination device transitions to ot-gauge aluminum
4 which are routed up the left hand side of the airplane in
5 nylon floor troughs up to the forward portion where it
6 translates down through aluminum conduit into the electrical
7 and electronic compartment area to a second terminal strip
8 from which two gauge copper wire continue on to the main
9 power contractor for the left generator system itself.
10 Q. This ot-gauge wire, how is it packaged?
11 A. The ot-gauge wire is stranded aluminum conductor within
12 an installation jacket material.
13 I don't recall the composition of the inner
14 installation jacket. It has an outer installation jacket of
15 braided nomex.
16 Q. Does the braiding on this outer jacket have some effect
17 on the ability to mark this wire with specific location
18 numbers?
19 A. The braiding on this wire is a very dark green
20 approaching black. It is an open braid without a coating on
21 it. It's very difficult to stamp these wires with a white
22 ink stamp which is stamped at various locations along the
23 wire for each particular wire. Particularly after the
24 impact situation and the recovery efforts it is extremely
25 difficult to read the wire numbers on the wires to identify
UNITED STATES vs SABRETECH
ET, AL - 11-24-99
40 FOGG - Redirect
1 the specific location circuit-wise for a piece of ot-gauge
2 cable that has been recovered.
3 Q. Did you examine any recovered ot-gauge cable?
4 A. I examined every piece of ot-gauge cable that was
5 recovered.
6 Q. This ot-gauge cable that you recovered, were you able
7 to determine that it was associated with locations other
8 than between stations 294 and 424?
9 MS. MOSCOWITZ: Objection, leading.
10 THE COURT: Overruled. You may answer that
11 question.
12 THE WITNESS: I recall recovering a substantial
13 portion of the generator feeder cables from the aft portion
14 of the aircraft forward.
15 When we get to the station locations 294 back to
16 some particular degree, as I said before, all I had to work
17 with were a lot of small broken segments of ot-gauge cable
18 for which I examined and made a total count notation in the
19 notes.
20 BY MS. HECK MILLER:
21 Q. Were you able to determine approximately what
22 proportion of the under-floor wiring was recovered from the
23 ValuJet flight 592 wreckage.
24 A. Somewhere in the order of ninety percent or a little
25 more.
UNITED STATES vs SABRETECH ET, AL - 11-24-99
41 FOGG - Redirect
1 Q. Did you examine all of that wire?
2 A. Yes, I did.
3 Q. Have you told us of all the evidence that you
4 discovered in all of that wire of any possibility of arcing?
5 MS. MOSCOWITZ: Objection, argumentative and
6 leading.
7 THE COURT: It's not argumentative with her own
8 witness, but it is broken up into multiple parts.
9 BY THE COURT:
10 Q. The question is you've examined ninety percent of the
11 wiring recovered from the crash site?
12 A. That's right.
13 THE COURT: What was your question about his
14 opinion based on that? Repeat it.
15 MS. MILLER: I will rephrase, Your Honor.
16 BY MS. HECK MILLER:
17 Q. Based on your examination of the wiring that you have
18 just told us of, what is your opinion to a reasonable
19 scientific certainty with regard to electrical origin of any
20 fire on flight 592?
21 MS. MOSCOWITZ: Objection, asked and answered.
22 THE COURT: This is redirect. You may answer the
23 question.
24 THE WITNESS: Based on my examination of the
25 wiring and my knowledge of the circuit protection on a DC9
UNITED STATES vs SABRETECH ET, AL - 11-24-99
42 FOGG - Redirect
1 and the fact that none of the wiring showed a situation of
2 current overload in the wires that were recovered, no
3 evidence of any electrical arcing.
4 One wire that had an area of minor localized melt
5 with a tapering at the end of station 370. It's my opinion
6 there was no electrical arcing that would have initiated
7 this event.
8 Further, it is not possible for an electrical arc
9 outside of the compartment to initiate a fire that will
10 penetrate the compartment from the outside in.
11 MS. MILLER: If I may lead with a foundational
12 question, Your Honor?
13 THE COURT: Do you have anymore after the last
14 one, particularly with respect to the cross-examination?
15 MS. MILLER: Yes, Your Honor.
16 THE COURT: Ask the question and I'll see.
17 BY MS. HECK MILLER:
18 Q. Is it correct that the left generator power feeder
19 cable is routed in nylon floor troughs?
20 A. Yes.
21 Q. And does this feeder cable run close to any seat track?
22 A. It runs near the seat track parallel to it.
23 Q. Is that the inboard or the outboard seat track?
24 A. It's the inboard seat track.
25 Q. Mr. Fogg, you were asked about whether you knew
UNITED STATES vs SABRETECH ET, AL - 11-24-99
43 FOGG - Redirect
1 anything about oxygen generators other than from
2 Mr. Brennan; do you recall that?
3 A. Yes, I do.
4 Q. Prior to your participation in the investigation of the
5 crash of flight VJ 592, had you participated in any other
6 accident investigations that involved oxygen generator
7 related fires?
8 A. Yes, I did.
9 Q. When was that?
10 A. It was about 1986, I believe. It was a DC10 aircraft
11 at OHARE Chicago operated by American Transair.
12 Q. Did you have occasion to learn about oxygen generators
13 based on that experience separate and independent from your
14 participation in the ValuJet crash investigation?
15 A. Yes, I did. On this particular --
16 MS. MOSCOWITZ: Objection, Your Honor.
17 THE COURT: Sustained. The answer has been
18 given. Next question.
19 BY MS. HECK MILLER:
20 Q. Mr. Fogg, you were asked concerning any interest you
21 would have in protecting McDonnell Douglas from findings of
22 fault. Do you recall those questions?
23 A. Yes, I do.
24 Q. In the course of your work over the past 35 years have
25 you had occasion to find that McDonnell Douglas systems were
UNITED STATES vs SABRETECH ET, AL - 11-24-99
44 FOGG - Redirect
1 implicated or at fault in accidents or in investigations
2 which you investigated?
3 A. Yes, I have.
4 Q. Did you report such findings?
5 A. It's my role as an --
6 MS. MOSCOWITZ: Your Honor, objection.
7 THE COURT: Sustained.
8 You first must answer the question.
9 The question was did you report such findings.
10 THE WITNESS: Yes, I did.
11 BY MS. HECK MILLER:
12 Q. Did you suffer negative repercussions from reporting
13 such findings?
14 A. No, I didn't.
15 Q. Mr. Fogg you were asked on cross-examination concerning
16 the depletion of oxygen supply as a fire safety feature of a
17 Class D cargo hold; do you recall that?
18 A. Yes.
19 Q. Are there other fire safety features of a Class D cargo
20 hold in addition to the depletion of oxygen?
21 A. The liners themselves are fire resistant laminated
22 fiberglass liners.
23 Q. You were asked about several instances of reported
24 electrical faults in the aircraft that was also used in
25 aircraft flight 592. Do you recall those questions?
UNITED STATES vs SABRETECH ET, AL - 11-24-99
45 FOGG - Redirect
1 A. Yes, I do.
2 Q. Assuming such faults to have been true, do they change
3 the opinion which you have stated as to the cause and
4 origination of the flight in ValuJet 592?
5 A. No.
6 Q. And what is the reason for that?
7 A. The electrical wiring systems frequently have
8 maintenance related anomalies that are appropriately
9 documented in the flight logs and corrected during
10 maintenance corrective action.
11 With regard to electrical faults outside the lower
12 cargo compartment, we had circuit protection that protects
13 the wiring, and with the Class D cargo compartment
14 construction and the lack of combustible materials,
15 sufficient combustible materials in the tunnel areas, it's
16 not possible for a fire to be generated outside the
17 compartment with enough intensity to penetrate the fire
18 resistant liners.
19 Q. Mr. Fogg, I'm handing you what has been marked for
20 identification purposes as Government Exhibit 52. And I
21 would ask if you recognize Government Exhibit 52?
22 A. Yes, I do.
23 Q. Now, you recall being asked several questions about the
24 cockpit voice recorder; is that correct?
25 A. That's correct.
UNITED STATES vs SABRETECH ET, AL - 11-24-99
46 FOGG - Redirect
1 Q. And you told us that you had read the transcript but
2 had not listened to the tape, is that correct?
3 A. That's correct.
4 Q. And you testified concerning several noises that were
5 associated with words in the transcript; is that correct?
6 A. That's correct.
7 Q. Mr. Fogg, does the cockpit voice recorder include
8 notations as to noises as well as to words?
9 THE COURT: The objection is sustained.
10 You are asking him to tell this jury something
11 that he has read where some other person has written down
12 words or sounds. So you are asking him to comment on the
13 opinion of the person who is the author of that document,
14 which is not verified or before the Court at this point in
15 time. This is total and complete inadmissible evidence.
16 It can be, if that recorder is important, you can
17 offer it and the jury can make their own interpretation.
18 MS. HECK: Your Honor, government does offer
19 Exhibit 52.
20 THE COURT: You have to bring in somebody that
21 can identify it.
22 MS. MILLER: Your Honor, we have a stipulation in
23 that regard.
24 THE COURT: There was nothing brought out about
25 that -- well, we got off into it and then we found out that
UNITED STATES vs SABRETECH ET, AL - 11-24-99
47 FOGG - Redirect
1 he hasn't even listened to it. I have a lot of reluctance
2 about letting people coming in here that said, I read
3 something that somebody wrote about what they heard on it,
4 and I'm going to tell you what I read. It's about 3 people
5 removed from the event. I have trouble with that.
6 We will take a brief recess, and I'll take it up
7 with counsel. You all step into the jury room.
8 [The jury leaves the courtroom].
9 THE COURT: First of all, does the counsel have a
10 stipulation that the transcript may be admitted in
11 evidence?
12 MS. MOSCOWITZ: No, Your Honor. We agree that
13 it's accurate or something like that, but we don't agree
14 that it's admissible.
15 MS. MILLER: Your Honor, I have the stipulation
16 here, if I might.
17 Your Honor, I believe that we are in agreement as
18 to all foundational elements of the transcript.
19 THE COURT: The defense says they don't agree
20 that it will be admitted into evidence.
21 MS. MILLER: Your Honor, they challenge
22 relevance. I believe that Ms. Moscowitz made it relevant.
23 THE COURT: That's not what she just said. She
24 says she objects to the whole thing.
25 MS. MILLER: All right, let me find the
UNITED STATES vs SABRETECH ET, AL - 11-24-99
48 FOGG - Redirect
1 stipulation and consult, Your Honor.
2 THE COURT: We will take a short recess while you
3 look for the stipulation.
4 You may step down.
5 THE WITNESS: Thank you.
6 [There was a short recess].
7 COURTROOM DEPUTY: All rise. Court is in
8 session.
9 THE COURT: Be seat please.
10 Is this Exhibit 52 for identification? Is that
11 the transcript of the black box tape recorder?
12 MS. MILLER: Yes, sir.
13 THE COURT: May I see it, please.
14 Now, it's my understanding that there is some
15 sort of stipulation between the parties that says there is
16 no need to have this authenticated by the person who made
17 this transcript. But there is an objection to the
18 transcript being Government Exhibit 52 upon the basis of
19 relevancy.
20 Let me inquire of defense counsel since defense
21 counsel elicited the testimony in this transcript on
22 cross-examination. How do we now keep it out of evidence?
23 I had no idea you had any sort of stipulation until you
24 announced it here earlier.
25 The proper way to address all of this would be
UNITED STATES vs SABRETECH ET, AL - 11-24-99
49 FOGG - Redirect
1 have you heard all of this. Have you read it, yes. Is
2 this a copy of it, yes. Well, then you know from this that
3 certain people know certain things and does that change
4 your opinion, and he would have said yes or no, as I now
5 understand it. And that would be the end of the
6 conversation.
7 But we backed into it on cross-examination
8 inquiry being directed as to matters that were said by
9 someone in the cockpit just before the crash to which he
10 then gave his opinion and so on. Where are we now? We are
11 now in a quagmire of evidentiary technicalities. We have
12 Government Exhibit 52. The objection is, among other
13 things, materiality. Any other objection?
14 MS. MOSCOWITZ: The objection is rule 403
15 prejudice, Your Honor. I inquired about a small area of
16 the transcript of which he was aware. He says it says what
17 it says, which is about the electricity.
18 THE COURT: He is aware because he read something
19 that someone wrote after listening to a black box without
20 any authentication or any evidence of genuineness or
21 anything else. Of course, you are suggesting that you can
22 only offer a part of the document and not offer all of it?
23 MS. MOSCOWITZ: I don't want to offer any of it,
24 Your Honor.
25 THE COURT: You already offered it orally. You
UNITED STATES vs SABRETECH ET, AL - 11-24-99
50 FOGG - Redirect
1 said, "didn't someone say on this transcript" and you
2 uttered the words. Now, that's offering it into the
3 evidence, I think.
4 MS. MOSCOWITZ: Can I get in all the maintenance
5 records from the airplane?
6 THE COURT: Do you want to strike what you asked
7 him about this then and let the jury disregard all of this
8 and let them bring in the person to authenticate it if they
9 think it's otherwise important?
10 MS. MOSCOWITZ: Yes.
11 THE COURT: Ms. Miller.
12 MS. MILLER: Your Honor, I believe that counsel's
13 cross-examination has now unfairly created an imputation
14 against the witness which I am unable to refute. Not only
15 did she ask him about portions of it, but she suggested
16 that because he had not listened to the tape he was somehow
17 making up other things that he testified to such as sounds
18 of shouts.
19 THE COURT: Tell me about your stipulation. What
20 does the stipulation say about authenticity of Government
21 Exhibit 52?
22 MS. MILLER: Your Honor, the stipulation has been
23 placed in front of you on the bench there.
24 THE COURT: What does this language mean? I'm
25 going to have to hire an expert of mine own to find out
UNITED STATES vs SABRETECH ET, AL - 11-24-99
51 FOGG - Redirect
1 what you all are talking about in this. What do you mean
2 by this? "The United States and the defendants, naming
3 them, without conceding relevance, agree and stipulate that
4 all required foundational facts required for admissibility
5 are established." What does that mean? Does that mean
6 they come in without any objection? Is that what it means?
7 MS. MOSCOWITZ: No, Your Honor, it means we
8 wouldn't stand up and say, "objection foundation," but we
9 would say objection whatever else.
10 THE COURT: Genuineness?
11 MS. MOSCOWITZ: No, not genuineness because that
12 would be foundation, but relevance, prejudice, materiality,
13 all of those things we have preserved our objections to.
14 THE COURT: So you admit that this document is
15 genuine and truthful and accurate?
16 MS. MOSCOWITZ: Yes, sir.
17 THE COURT: And your only objection is that it is
18 not relevant and what?
19 MS. MOSCOWITZ: Your Honor, it is 403. It is
20 overly prejudicial.
21 THE COURT: Tell me why.
22 MS. MOSCOWITZ: Because it is the sounds. It is
23 the crash. The crash is in there. I didn't quibble that
24 there were sounds of people hollering. What I quibble
25 with, and I'm willing to live with this, is that this man
UNITED STATES vs SABRETECH ET, AL - 11-24-99
52 FOGG - Redirect
1 who is sitting here listening to this while he is on
2 redirect --
3 THE COURT: Mr. Fogg, would you mind stepping
4 out. I didn't know that there was any objection to you
5 being here.
6 Your objection is to what?
7 MS. MOSCOWITZ: My objection is to admitting it.
8 Ms. Miller says that I want to quibble with the fact that
9 people were screaming. Actually, I don't. I know it's
10 there. Nor do I have any quibble with it.
11 My quibble was the question that I asked the man
12 did not necessarily elicit that. He was just demonstrating
13 his bias.
14 THE COURT: In his opinion there was a fire on
15 the plane.
16 MS. MOSCOWITZ: But he added that part and so be
17 it. That's life. And I'm willing to forego getting to use
18 this point, that "there was a big bang." If Your Honor
19 looks at the transcript, the word on the transcript is a
20 "chirp." A chirp is a far cry from a big bang.
21 THE COURT: Your question was without finding out
22 whether he had listened to the tape or read the tape or
23 anything, you may know the answer to all of that, but no
24 one in the courtroom did.
25 MS. MOSCOWITZ: I didn't.
UNITED STATES vs SABRETECH ET, AL - 11-24-99
53 FOGG - Redirect
1 THE COURT: You did not know whether he had
2 listened to it or read it, but you said, "didn't someone in
3 the cockpit say that" I had forgotten the word.
4 MS. MOSCOWITZ: "We are about to lose a bus. We
5 have an electrical problem."
6 THE COURT: And he said, "yes, that's there. And
7 11 seconds later someone cried out or called out "fire in
8 the plane." And he said, "my reason for thinking what you
9 have asked me about is not indicative of what caused the
10 fire or changing my opinion is that in 11 seconds there
11 could not have been an arcing, or whatever the word was,
12 that would cause the fire to go from outside inside into
13 the compartment, so he explained his answer."
14 Now, Ms. Miller wishes to introduce the entire
15 transcript into evidence. The objection is materiality and
16 necessity with the prejudice outweighing the probative
17 value.
18 If the document were in evidence, what would you
19 develop from this witness that he has not already said
20 about his opinion? He said this wouldn't change his
21 opinion and he told us why. He said 11 seconds is not
22 enough that it would make any difference. So he has
23 already explained his opinion. What would there be in this
24 transcript that would refute anything that Ms. Moscowitz
25 brought out on her cross-examination about the bang and the
UNITED STATES vs SABRETECH ET, AL - 11-24-99
54 FOGG - Redirect
1 bug, or the bug and the bang, or whatever it was she said?
2 MS. MILLER: First of all, Your Honor, I am
3 entitled to corroborate, through this transcript, that it
4 was 11 seconds later that the shouts occurred. At this
5 point we just have it as his claim, and Ms. Moscowitz
6 certainly is attacking him for bias and for the integrity
7 of his decision.
8 THE COURT: Normally you would do that through
9 another witness. You would call someone with the black box
10 that made this transcript, and offer that. But it's
11 backing into all of these things that troubles me.
12 If this transcript is important to either side
13 then it should be offered directly and not by way of some
14 redirect kind of backing into an offhand comment or offhand
15 statement of the witness, given the fact that there is a
16 lot of material in here, apparently, I have not read it,
17 but from what you collectively tell me, the lawyers,
18 there's a lot of material in here that would reveal some
19 intense pain, drama, excitement, a lot of things that don't
20 have anything to do with his opinion as to how the
21 electrical fire started.
22 I just don't know.
23 MS. MILLER: Your Honor, I had not anticipated
24 offering the transcript through this witness's testimony.
25 It was only when counsel, so clearly, opened the door by
UNITED STATES vs SABRETECH ET, AL - 11-24-99
55 FOGG - Redirect
1 actually quoting from the transcript in her
2 cross-examination.
3 THE COURT: That gets back to my original concern
4 which goes back to his memory of something he read that
5 somebody else wrote quoting something that somebody else
6 said. It's getting way down the road. I think if the
7 transcript is important, that needs to be offered directly,
8 and then we rule on the relevancy or the prejudice as it
9 may be.
10 I think at this point in time this is not the way
11 of going about getting this document in evidence. I don't
12 think the door has been opened sufficiently to admit this
13 whole transcript into evidence.
14 Right now it's unrefuted that 11 seconds after
15 the first bug and the bang, or the bang and the bug that
16 somebody hollered fire. That is uncontradicted in the
17 record. And nobody can argue against that unless they
18 offer some other evidence that shows the defense side of
19 the case that it was an hour and a half later that somebody
20 shouted fire.
21 So I am going to sustain the objection at this
22 time without prejudice to the government's right to reoffer
23 Government Exhibit 52 if it should become relevant at some
24 other point, perhaps rebuttal testimony at some other time.
25 It will be marked for identification,
UNITED STATES vs SABRETECH ET, AL - 11-24-99
56 FOGG - Redirect
1 Ms. Krammerman.
2 [Government Exhibit 52 marked for identification].
3 THE COURT: Are we ready to resume with the
4 redirect examination?
5 MS. MILLER: Yes, sir.
6 THE COURT: Bring in the jury.
7 [The jury returns to the courtroom].
8 THE COURT: Thank you be seated.
9 Ms. Miller?
10 BY MS. HECK MILLER:
11 Q. Mr. Fogg, on cross-examination you said that you did
12 not listen to the exact tape; do you recall that?
13 A. That's correct.
14 THE COURT: Let's not ask what he recalls. Just
15 ask him a question. If he doesn't recall what he said 15
16 minutes ago, I'm sure that is something the defense would
17 rather bring out than the government. He is a very
18 intelligent man. I'm sure he remembers all the questions
19 asked. Just say with reference to whatever it was and then
20 your question.
21 MS. MILLER: I understand.
22 BY MS. HECK MILLER:
23 Q. Is there a reason you did not listen to the tape?
24 MS. MOSCOWITZ: Objection.
25 THE COURT: Sustained. Materiality.
UNITED STATES vs SABRETECH ET, AL - 11-24-99
57 FOGG - Redirect
1 Next question.
2 BY THE COURT:
3 Q. Did you need to do it to form your opinion?
4 A. Did I need to listen to the tape?
5 Q. Yes, in order to form your opinion that you've already
6 given to this jury?
7 A. No, I did not.
8 THE COURT: Next question.
9 BY MS. MILLER:
10 Q. With reference to procedure of depressurizing or
11 opening a cabin door as a means of venting smoke, Mr. Fogg,
12 was there a reason why McDonnell Douglas did not institute
13 this procedure?
14 A. I don't recall the exact means of implication. The
15 procedure was in some of our manuals prior to the AirCanada
16 1983 in-flight fire crash, and I believe remains in the
17 manuals.
18 Q. Of the two air-conditioning systems on a DC9 series 30
19 aircraft, is one adequate to ventilate smoke from a
20 passenger cabin?
21 MR. RASKIN: Asked and answered.
22 MS. MOSCOWITZ: Objection.
23 THE COURT: On redirect she is entitled to
24 rehabilitate or redirect on certain questions that have
25 been covered. We hope they are kept at a minimum, of
UNITED STATES vs SABRETECH ET, AL - 11-24-99
58 FOGG - Redirect
1 course.
2 You may answer the question. Overruled.
3 Can it do it?
4 THE WITNESS: Yes, it can.
5 THE COURT: Next question.
6 BY MS. HECK MILLER:
7 Q. Mr. Fogg, how much time did you spend examining
8 recovered wire from ValuJet flight 592?
9 MS. MOSCOWITZ: Objection, asked and answered.
10 THE COURT: I don't believe he told us the time.
11 He said that ninety percent was recovered. He was handling
12 all of it.
13 BY THE COURT:
14 Q. Approximately how much time did you spend doing it?
15 A. I spent most of the time that I was in the hangar
16 examining the wire.
17 Q. Can you give us days or hours?
18 A. I believe when I started full time in the hangar it was
19 approximately May 25. I returned to Los Angeles
20 approximately June 6. Was back in the hangar June 10, and
21 departed around the 20 of June to the conclusion of the
22 activities. So it would be in that time frame, Your Honor.
23 Q. Did you spend one hour a day, ten minutes a day? How
24 much time did you spend?
25 A. It was a minimum of eight hours a day.
UNITED STATES vs SABRETECH ET, AL - 11-24-99
59 FOGG - Redirect
1 THE COURT: Next question.
2 BY MS. HECK MILLER:
3 Q. With regard to the acceptability of a pilot trying one
4 reset on an open circuit breaker, Mr. Fogg, is that cycle
5 renewed by intervening maintenance?
6 A. Yes, it is.
7 Q. With regard to any pop that you mentioned in
8 cross-examination, Mr. Fogg, did you physically examine any
9 item which, in your opinion, was associated with a pop?
10 A. Yes, I did.
11 Q. What item was that?
12 A. It was one of the main landing gear wheels and tire
13 assemblies that was being shipped back from SabreTech to
14 ValuJet along with the oxygen canisters.
15 Q. Was wreckage of that tire recovered?
16 A. Yes, it was.
17 Q. Did you examine that wreckage?
18 A. Yes, I did.
19 Q. What did you observe about that tire?
20 A. The tire had extensive fire damage around it, and in
21 one area the outer plies had been burned from the outside
22 in, nine of the twelve, with an X shaped rupture across the
23 tire. And the edges around that rupture were pushed in an
24 outward direction, which is indicative of an explosion of
25 the tire.
UNITED STATES vs SABRETECH ET, AL - 11-24-99
60 FOGG - Redirect
1 Q. Mr. Fogg, I'm showing you what has been marked for
2 identification as Government Exhibit 57 and I ask if you
3 recognize that item?
4 A. Yes, I do.
5 Q. Does it truly and accurately depict what is shown in
6 the photograph?
7 A. Yes, it does.
8 MS. MILLER: Government offers Government Exhibit
9 57 into evidence.
10 MR. RASKIN: No objection.
11 MS. MOSCOWITZ: No objection.
12 THE COURT: Government Exhibit 57 for
13 identification is admitted into evidence.
14 [Government Exhibit 57 received in evidence].
15 BY MS. HECK MILLER:
16 Q. What is Government Exhibit 57, Mr. Fogg?
17 I have placed it on the magnifier.
18 A. Exhibit 57 is the recovered main landing gear wheel
19 tire assembly with the fire damage, the area where the
20 explosion occurred and the deformed portion of the still
21 attached wheel.
22 Q. Now, I'm pointing with my pointer to an area of this
23 tire, Mr. Fogg. Can you correlate this to what you told us
24 with regard to any fire damage?
25 A. Yes. That's the area where the tire plies had been
UNITED STATES vs SABRETECH ET, AL - 11-24-99
61 PETERS - Direct
1 burned from the outside in, nine of the twelve plies, and
2 the tire subsequently ruptured.
3 Q. How were you able to determine that this damage was
4 fire damage as opposed to mechanical damage from impact in a
5 crash?
6 A. The surface of the tire has physical fire and burn
7 damage to it.
8 MS. MILLER: No further questions for this
9 witness, Your Honor.
10 THE COURT: You may step down. Thank you.
11 Your next witness, please.
12 MS. MILLER: The government calls Kay Peters.
13 THE COURT REPORTER: Please raise your right
14 hand. Do you solemnly swear the testimony you are about to
15 give will be the truth the whole truth and nothing but the
16 truth, so help you God?
17 THE WITNESS: I do.
18 THE COURT REPORTER: State and spell your full
19 name for the record.
20 THE WITNESS: My name is Kay Peters, K-a-y,
21 P-e-t-e-r-s.
22 KAY PETERS, GOVERNMENT'S WITNESS, SWORN.
23 DIRECT EXAMINATION
24 BY MS. HECK MILLER:
25 Q. Ms. Peters, were you employed at a company called, at
UNITED STATES vs SABRETECH ET, AL - 11-24-99
62 PETERS - Direct
1 first, DynAir Tech of Florida and later SabreTech?
2 A. Yes.
3 Q. During what time period were you employed at that
4 company?
5 A. From January of '91 through February, the beginning of
6 February '97.
7 Q. Can you pull that microphone right close to where you
8 are speaking, please, so we can hear your voice.
9 Ms. Peters, what was your position at this company
10 during the years 1995 and 1996. I was the personnel manager
11 of human resources.
12 Q. How big was the department that you imagined managed?
13 A. During that period I had two other people working with
14 me.
15 Q. What responsibilities, if any, did you have with regard
16 to interaction with contract providers of aviation labor to
17 the company DynAir Tech of Florida or SabreTech, as it later
18 came to be known?
19 A. I placed the orders for contract employers.
20 Q. Did you deal with the contract companies?
21 A. Yes.
22 Q. What companies did you deal with?
23 A. I dealt with PDS, with STS, with McDonnell Douglas
24 Technical Services. Those were the three primary companies
25 that I recalled. There were a couple of others that I dealt
UNITED STATES vs SABRETECH ET, AL - 11-24-99
63 PETERS - Direct
1 with off and on.
2 Q. What, if any, responsibility did your department, Human
3 Resources, have with regard to the assignment of any
4 employee numbers to either regular employees or contract
5 employees who came to work at DynAir Tech of Florida or
6 SabreTech?
7 A. We assigned employee numbers to anyone that worked on
8 an aircraft who went on our payroll system.
9 Q. What were these employee numbers?
10 A. They were generally a five digit number that the first
11 digit indicated if they were full-time with SabreTech,
12 temporary with SabreTech. The contract employees had a
13 unique number that indicated the contract. The first two
14 alpha, the first two digits were alpha, and they indicated
15 the contract company.
16 Q. Were these numbers used for payroll purposes?
17 A. They were used for time keeping purposes. They were
18 used for, in the case of our employees, they were used for
19 payroll purposes. For the contractors, it was for giving
20 them payroll information.
21 Q. Did employees use these numbers for other purposes as
22 well?
23 MS. RASKIN: Objection, foundation.
24 BY MS. HECK MILLER:
25 Q. If you know.
UNITED STATES vs SABRETECH ET, AL - 11-24-99
64 PETERS - Direct
1 A. Yes. They used them for identification. If they
2 signed off on something, most people would use their payroll
3 numbers. I don't recall if it was required, but it was
4 generally easier, considered easier, to read a payroll
5 number than to read some signatures.
6 Q. Did you have access to data concerning these numbers?
7 A. Yes.
8 Q. Did you run reports that involved these numbers?
9 A. Yes, I did.
10 Q. Are you familiar with the type of report that was
11 created at SabreTech called the employee master report?
12 A. Yes.
13 Q. What was the employee master report?
14 A. It was a report that showed all employees who were in
15 our time keeping system. As I recall, it showed payroll
16 numbers, names, departments, there was other information
17 that you could put on it but that was the basic report.
18 Q. Ms. Peters, I'm handing you what has been marked
19 Government's Exhibit 44 for identification, and I ask if you
20 recognize that?
21 A. Yes, I do.
22 Q. How is it that you recognize it?
23 A. It has my name on it that indicates that I ran it.
24 Also it's a report that I ran on a regular basis.
25 Q. Does it have any handwriting on it?
UNITED STATES vs SABRETECH ET, AL - 11-24-99
65 PETERS - Direct
1 A. Yes, it does.
2 Q. Whose handwriting is on it?
3 A. It's mine.
4 Q. Did you run this report in the regular course of
5 business conducted at SabreTech?
6 A. Yes, I did.
7 Q. Was that report run or made at about the time of the
8 matters that it reports?
9 A. It indicates that it was run on May 8, and it would be
10 current with that date.
11 MS. MILLER: Government offers that report.
12 THE COURT: May 8 of what year?
13 THE WITNESS: '96.
14 THE COURT: Any objection? Hearing none, it is
15 admitted into evidence as Government Exhibit 44.
16 [Government Exhibit 44 received in evidence].
17 BY MS. HECK MILLER:
18 Q. Now, Ms. Peters, how many pages -- you can take the
19 report out of that plastic sleeve. How many pages are there
20 in Government Exhibit 44?
21 A. Including the total page, 42.
22 Q. Could you turn your attention to page 10 of the report.
23 A. Yes.
24 Q. Is that a page that relates to a particular contractor
25 provider of aviation labor to SabreTech?
UNITED STATES vs SABRETECH ET, AL - 11-24-99
66 PETERS - Direct
1 MS. RASKIN: Objection. The document speaks for
2 itself.
3 THE COURT: Sustained. Don't lead your witness.
4 It's a leading question.
5 BY MS. HECK MILLER:
6 Q. Ms. Peters, on the top of that page, under department,
7 it says "022" and under name is says "STS Tech Group." Do
8 you see that?
9 A. Yes.
10 Q. What was STS Tech Group?
11 A. These were contract employees employed by STS that
12 worked in the technical crew which was primarily A and P
13 mechanics.
14 Q. Who are the people who are listed on that report?
15 A. Those are aircraft mechanics.
16 Q. What company provided those mechanics to SabreTech?
17 A. STS.
18 Q. Is there a number on that report associated with the
19 name Mauro Valenzuela?
20 A. Yes.
21 Q. What number is that?
22 A. ST0088.
23 Q. Ms. Peters, could you now turn your attention please to
24 page 14 of the report.
25 What is the overall department and name associated
UNITED STATES vs SABRETECH ET, AL - 11-24-99
67 PETERS - Direct
1 with that page of the report?
2 A. This is department 26 which is PDS Tech Group.
3 Q. What was PDS Tech Group?
4 A. Again this is A and P mechanics that worked for PDS,
5 which was a contract supplier.
6 Q. To SabreTech?
7 A. To SabreTech, yes.
8 Q. Could you tell us, please, what, if any, number appears
9 at the name Eugene Florence on that page?
10 A. His number was 0T3898.
11 Q. What is the significance of 0T in that configuration?
12 A. It shows that he was a contract employee from PDS, the
13 first two indicated the contractor.
14 Q. Ms. Peters, could you turn your attention now to page
15 37 of the report.
16 What is the department and name for that page of
17 the report?
18 A. This is department 81, which is maintenance
19 administration.
20 Q. What is maintenance administration?
21 A. These are the managers and supervisors in the
22 maintenance division.
23 Q. Are these contract employees or SabreTech employees?
24 A. No, they are all SabreTech employees.
25 Q. What number is associated with the name Daniel Gonzalez
UNITED STATES vs SABRETECH ET, AL - 11-24-99
68 PETERS - Direct
1 on that page?
2 A. 051011.
3 Q. Ms. Peters, were the numbers that were assigned in this
4 system unique to particular employees?
5 A. Yes.
6 Q. If an employee left SabreTech what would happen to his
7 or her number?
8 A. It would not be used again. The number came out of a
9 system that we used to assign numbers.
10 MS. MILLER: No further questions, Your Honor.
11 THE COURT: Any questions of this witness?
12 MS. RASKIN: No questions.
13 MS. MOSCOWITZ: No, sir.
14 THE COURT: Thank you, Ms. Peters. You may step
15 down.
16 Next witness, please.
17 MR. DUNLAP: Your Honor, we have an issue that we
18 would like to bring up before the next witness testifies.
19 THE COURT: Could you use the microphone please,
20 Mr. Dunlap?
21 MR. DUNLAP: Your Honor, we could either approach
22 the bench or address the Court out of the presence of the
23 jury, if it please the Court, regarding the testimony of
24 the next witness.
25 THE COURT: The next witness?
UNITED STATES vs SABRETECH ET, AL - 11-24-99
69 PETERS - Direct
1 MR. DUNLAP: Yes, sir.
2 THE COURT: Ladies and gentlemen, if you will
3 step into the jury room please.
4 [The jury leaves the courtroom].
5 MR. DUNLAP: Your Honor, the government's next
6 witness was going to be a Mr. Weitz. He is from the FAA.
7 We want to raise to the Court an objection to his testimony
8 substantially will be opinion and matters that he wants to
9 testify about involve questions really abroad and some that
10 we discussed briefly last night in the government's
11 requested motion for judicial notice.
12 Mr. Moscowitz had been prepared to argue the
13 motion and handle the cross on behalf of SabreTech. He is
14 going to be back shortly. He had to take his oldest
15 daughter to the airport. She is flying to New York for
16 Thanksgiving. I asked Ms. Heck Miller and she said she can
17 call another witness who will take about a half hour, and
18 hopefully Mr. Moscowitz will be back at that time.
19 THE COURT: If you all agreed on this, why don't
20 you just announce the other witness. Why did we have to
21 send the jury out on this? I don't in what order you call
22 them in.
23 MR. DUNLAP: I, unfortunately, had not had an
24 opportunity to talk to Ms. Miller.
25 THE COURT: Bring the jury in please. Call your
UNITED STATES vs SABRETECH ET, AL - 11-24-99
70 PETERS - Direct
1 next witness.
2 MR. BRIGHAM: The United States calls Special
3 Agent Nesbitt.
4 [The jury returns to the courtroom].
5 THE COURT: Thank you ladies and gentlemen. Be
6 seated please.
7 Is she on her way in?
8 MR. BRIGHAM: She is on her way up, Your Honor.
9 THE COURT: Is there anybody else we can use
10 until she gets here?
11 MR. BRIGHAM: We have one other witness out
12 there.
13 THE COURT: I would hate to waste all of this
14 valuable time.
15 MS. MILLER: I'll bring him in, Your Honor.
16 THE COURT REPORTER: Please raise your right hand.
17 Do you solemnly swear the testimony you are about to give
18 will be the truth the whole truth and nothing but the truth,
19 so help you God?
20 THE WITNESS: I do.
21 THE COURT REPORTER: State your full name,
22 spelling your last name for the record.
23 THE WITNESS: E. Nesbitt, N-e-s-b-i-t-t,
24 Kuyrkendall, K-u-y-r-k-e-n-d-a-l-l.
25 E. NESBITT KUYRKENDALL, GOVERNMENT'S WITNESS, SWORN.
UNITED STATES vs SABRETECH ET, AL - 11-24-99
71 NESBITT KUYRKENDALL - Direct
1 DIRECT EXAMINATION
2 BY MR. BRIGHAM:
3 Q. Agent Kuyrkendall, where do you presently work?
4 A. I work for the FBI.
5 Q. What is your position at the FBI?
6 A. I'm a Special Agent.
7 Q. I would like to show you what's been marked as
8 Government Exhibit 102A. It's been shown to defense
9 counsel, and ask you to examine it and tell me if you
10 recognize it.
11 A. Yes, I recognize it.
12 This is a microfiche tape that I took from
13 evidence collected in the case.
14 Q. What did you do with that?
15 MR. BRIGHAM: Excuse me. I'll move to admit it at
16 this time, Your Honor?
17 MS. RASKIN: Objection.
18 THE COURT: Sustained. No foundation.
19 BY MR. BRIGHAM:
20 Q. From where did you obtain this tape?
21 A. I obtained this tape from evidence collected in the
22 case.
23 Q. Upon taking custody of it what did you do with it?
24 A. I made copies of it.
25 Q. How did you make copies of it?
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72 NESBITT KUYRKENDALL - Direct
1 A. On a microfiche copy machine.
2 Q. Did you make copies of the entire tape or part of the
3 tape?
4 A. Sections of the tape.
5 Q. Now the microfiche machine that you were using, was it
6 in proper working condition?
7 A. Yes, it was.
8 Q. Were you able to make copies from that machine?
9 A. Yes, I was.
10 Q. I would like to show you what has been marked as
11 Government Exhibit 104A, B, C, D and E. Do you recognize
12 those documents?
13 A. Yes, I do.
14 Q. What are those?
15 A. They are the copies I made from the microfiche tape.
16 Q. Are those true and accurate copies that you made?
17 A. Yes, they appear to be from looking at the covers.
18 Q. Were you able to observe the images on the screen?
19 A. Yes, I was.
20 Q. Did those images compare to the copies that you made?
21 A. Yes.
22 Q. What did you do with respect to the copies to ensure
23 that those were the copies that you made?
24 A. I initialed the back of each copy.
25 Q. Are you familiar with Government Exhibit 43?
UNITED STATES vs SABRETECH ET, AL - 11-24-99
73 NESBITT KUYRKENDALL - Direct
1 A. Yes.
2 Q. And what comparison, if any, did you do between the
3 copies that you made and Government Exhibit 43?
4 A. I compared page by page, line by line, the copies that
5 I made from the microfiche film to the Government Exhibit
6 43.
7 Q. What did you fine?
8 A. That they exactly matched.
9 MR. BRIGHAM: Your Honor, at this time I would
10 move to introduce Government Exhibit 102A and 103A through
11 C in conjunction with a stipulation of counsel that counsel
12 has, in fact, signed.
13 MS. RASKIN: Objection, foundation, relevance and
14 materiality.
15 THE COURT: All right. Ladies and gentlemen, if
16 you will step out. I'm sorry. I will have to take this up
17 with the lawyers.
18 [The jury returns to the courtroom].
19 THE COURT: We are referring to 102 for
20 identification and 103?
21 MR. BRIGHAM: A through E.
22 THE COURT: A through E for identification.
23 MR. BRIGHAM: Your Honor I said 103. Actually
24 there was a numbering change. It's 104 excuse me.
25 THE COURT: 104A, B, C, D and E for
UNITED STATES vs SABRETECH ET, AL - 11-24-99
74 NESBITT KUYRKENDALL - Direct
1 identification and 102 you are offering.
2 MR. BRIGHAM: Correct, Your Honor.
3 [Government Exhibits 102 and 104A, B, C, D, E marked for
4 identification].
5 THE COURT: Ms. Raskin, I'll hear from you or
6 anyone else. Please use the microphone.
7 MS. RASKIN: Your Honor, first addressing the
8 microfiche tape. That is a tape that was taken pursuant to
9 a search of the SabreTech facility on August 6, 1996, some
10 three months after the accident and some five to six months
11 after the mechanics were working on the oxygen generators,
12 according to the testimony in the trial.
13 The stipulation that we have entered into with
14 the government is limited to a stipulation that, in fact,
15 that videotape was taken from the second floor of the
16 SabreTech facility on that date pursuant to the search.
17 That's the limit of the stipulation. Our position first is
18 that the length of time between the search and the events
19 alleged in the indictment is so attenuated that no
20 relevance or materiality has been established.
21 Second, I would point out that --
22 THE COURT: I'm sorry, let's take these one at a
23 time.
24 First of all, I take it, unless somebody raises
25 an objection, that there is no objection to the witness
UNITED STATES vs SABRETECH ET, AL - 11-24-99
75 NESBITT KUYRKENDALL - Direct
1 sitting here. I assume there is not, given the nature of
2 the evidence. Leave us not be left in the situation where
3 we were on the last witness where midway through it
4 somebody tossed an offhand comment that the witness was
5 sitting there. If you want the witness out, you all have
6 to move for it. Do you want this lady to sit here?
7 MS. RASKIN: I have no objection to Agent
8 Kuyrkendall staying, Your Honor.
9 THE COURT: You're objecting to a videotape that
10 was seized at the SabreTech headquarters on August 6; is
11 that what you are objecting to?
12 MS. RASKIN: That's the first objection.
13 THE COURT: You're objecting that it was taken
14 three months after the crash. What relevancy does the time
15 that it was seized have to do with the videotape? Are you
16 suggesting it was made up on August 6, three months later?
17 MS. RASKIN: No, Your Honor, but I'm suggesting
18 there has been no connection between a videotape that was
19 taken from the second floor of this facility three months
20 after the accident to any other evidence in this case.
21 There's no evidence that anybody looked at this thing, to
22 my recollection. The only evidence as to microfiche
23 manuals at all in this case was one mechanic, John Taber --
24 THE COURT: This lady said she looked at it and
25 she examined it, and she has compared this document from
UNITED STATES vs SABRETECH ET, AL - 11-24-99
76 NESBITT KUYRKENDALL - Direct
1 that, and it is exactly what was on that tape.
2 I'm missing something. What is it I'm missing?
3 MS. RASKIN: The objection I'm making initially
4 is relevance and materiality. I don't object to that that
5 is what she says it is. I understand that it primarily
6 goes to weight.
7 THE COURT: Pardon me. Let's look at the
8 document and see what the document is. I don't know what
9 it is. Let's take a look at the document that she prepared
10 from the videotape. Is it microfiche tape?
11 MR. BRIGHAM: Yes, it is, Your Honor.
12 May I approach, Your Honor?
13 THE COURT: Yes. I have before me Government
14 Exhibit 102A labeled "maintenance manual." You are
15 suggesting that -- what is it that this manual is not shown
16 and from that this agent made these printed copies, is that
17 what she did?
18 MS. RASKIN: Yes, Your Honor.
19 THE COURT: If I look at the printed copies I
20 will know what's on the microfiche tape?
21 MR. BRIGHAM: In part, Your Honor.
22 THE COURT: They appear to be maintenance
23 manuals. We will read it and see whether or not there's
24 anything in the manual that is material to the case. That
25 will tell as to the materiality. It looks like a whole lot
UNITED STATES vs SABRETECH ET, AL - 11-24-99
77 NESBITT KUYRKENDALL - Direct
1 of numbers.
2 Mr. Brigham, what is the relevancy of all of these
3 numbers on all of these pages?
4 MR. BRIGHAM: These documents, Your Honor, are
5 maintenance manuals for the oxygen generators including
6 portions dealing with the removal and installation of
7 oxygen generators.
8 THE COURT: Excuse me.
9 Ms. Raskin, why would the manuals that show how
10 to put these generators into and out of an aircraft, why
11 would that not be relevant?
12 MS. RASKIN: If might, Your Honor, if the
13 government could suggest that someone in this case had
14 access to it and looked at it. I'm suggesting that the
15 timing --
16 THE COURT: How about SabreTech? Didn't they
17 have access to it? It's a SabreTech manual.
18 MS. RASKIN: Yes, Your Honor, but my point is
19 initially one of timing. What they have established is
20 that in the SabreTech facility, some three months after the
21 accident, and some six months after the maintenance that
22 has been described, that manual existed in the facility.
23 THE COURT: I think that goes to the weight that
24 the jury will give to it. You will argue to the jury that
25 there's no showing that the manual even existed at the time
UNITED STATES vs SABRETECH ET, AL - 11-24-99
78 NESBITT KUYRKENDALL - Direct
1 the work was done or not.
2 I guess Mr. Brigham will argue that he heard, as
3 we all did, some of the man in the work station or one of
4 the witnesses say that it was customary for the mechanics
5 when they were working on these parts to come up, if they
6 wanted to or needed to, and punch up a videotape and then
7 print out a page, and then take that page with them when
8 they did there work. The jury will decide whether or not
9 the videotape was there or not there. And they may agree
10 with you. That's weight to be given to it.
11 If it was seized at the premises three months
12 later, I don't think the government is required to show
13 that it was not surreptitiously placed there by an FAA
14 secrete agent or something. I don't think they have that
15 burden.
16 I think that it is three months later. What would
17 be your argument? She is arguing to the jury now, if this
18 gets into evidence, what is to say that good looking secret
19 agent on the stand the other day, Mr. Gentile, Agent
20 Gentile. Let's say Agent Gentile didn't go out there until
21 in one of these little 09 black jobs, two months and ten
22 days afterwards in the middle of the night and slipped this
23 in and then the next day they came out and they seized it.
24 Now, if she wants to make that argument what would you say
25 to that to show that that didn't happen. It seems to me,
UNITED STATES vs SABRETECH ET, AL - 11-24-99
79 NESBITT KUYRKENDALL - Direct
1 the big thrust here is that it was found three months later.
2 MR. BRIGHAM: Your Honor, that's an unrealistic
3 scenario in a case of this nature. One of the witnesses
4 that testify, Mr. Quan, testified about the use of
5 maintenance manuals. We have testimony establishing that
6 these manuals were in place at that time. The microfiche
7 itself --
8 THE COURT: The manuals?
9 MR. BRIGHAM: Both, Your Honor. The microfiche
10 was available --
11 THE COURT: Excuse me. The testimony by Mr. Quan
12 is that both of them were available at the time.
13 MR. BRIGHAM: The microfiche was available.
14 There was a printing machine that allowed mechanics to
15 print out --
16 THE COURT: I know that. You just said that they
17 had the manuals were available. You maybe meant that they
18 had the microfiche available.
19 MR. BRIGHAM: Yes, Your Honor.
20 THE COURT: If the manuals were available, why
21 didn't they seize the manuals when they went out there.
22 MR. BRIGHAM: Your Honor, I misspoke. When I
23 said manual I meant microfiche.
24 THE COURT: All right. The microfiche is
25 available. They punched it up. They could print it out
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80 NESBITT KUYRKENDALL - Direct
1 from the microfiche and then take it off with them and take
2 it with them to do there work. I think that's a matter
3 that will have to go to the weight. That part of the
4 object is overruled.
5 What is the next part of the objection?
6 MS. RASKIN: The next part of the objection is
7 the evidence is the microfiche and the microfiche alone.
8 The print-out should not be allowed into evidence. They
9 were not at the facility. It's misleading to the jury to
10 have printed out selected portions from a microfiche that
11 contains literally, I'll say hundreds and hundreds of
12 pages. I don't know the precise number. The hard copy was
13 not in the facility. That was not the way the mechanics
14 looked at it, and I think it really creates a real risk of
15 misleading the jury by presenting now --
16 THE COURT: We will have to wait until
17 Mr. Brigham has finished examination. I presume that he is
18 in the process, or may have already done so, shown or
19 established -- if he doesn't I'm sure you will -- that
20 these were made up from the FBI, and later on they weren't
21 lying around in the facility, and then if somebody wanted
22 to look at what was on there they had to make their own and
23 so on and so on.
24 I don't think it's misleading to say that only
25 those sections dealing with the canisters are being offered
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81 NESBITT KUYRKENDALL - Direct
1 for the simple reason that the defense, if they wished,
2 could Xerox a whole list of things, 1,000 things and then
3 offer them in if they wish to do so. And Mr. Brigham could
4 argue that you offered 1,000 pages of matters that had
5 nothing to do with the case, and he only offered a few
6 select pages that he felt were correct and appropriate.
7 If he left something out there that is material
8 to these canisters, by all means, cross-examine on that and
9 develop that, but the FBI and the government has been very
10 selective to the prejudice of your client. But you are
11 capable of doing that on cross-examination.
12 I think that these documents, as long as it's
13 clearly made plain to the jury through this witnesses that
14 this is something that was taken from the microfiche and
15 duplicated in written form so the jury can understand it,
16 and that it is not suggested to the jury in any way that
17 these things are all laying around and available for anybody
18 to pick up and read them with the microfiche or not. I
19 think it's admissible on that basis.
20 Matter of fact, I think it's much more clarifying
21 to the jury than simply giving them the microfiche and
22 saying we are going to give you a machine and you all take a
23 look at it one by one. So I think this is the proper way to
24 do it.
25 Is there any other part to the objection?
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82 NESBITT KUYRKENDALL - Direct
1 MS. RASKIN: No, sir.
2 THE COURT: The objection is overruled with the
3 caveat that if it has not already been established that it
4 be established that these were made at your request by the
5 government to facilitate the reading of the microfiche.
6 That the microfiche is what the mechanics had and not just
7 laying around the office.
8 With that in mind, these Exhibits 102A and then
9 104A through E, being a microfiche cassette and then some
10 print out of MD-80 maintenance manuals being the same are
11 hereby admitted into evidence.
12 [Government Exhibits 102A, 104A, B, C, D, E received in
13 evidence].
14 THE COURT: Bring in the jury, please.
15 [The jury returns to the courtroom].
16 THE COURT: Thank you, be seated.
17 Marshal, would you hand these documents back.
18 They have been admitted into evidence, Exhibit 102 and 104
19 A through E. Thank you.
20 Yes, sir?
21 BY MR. BRIGHAM:
22 Q. If I may, for clarification, reiterate a couple of
23 points.
24 You were given the microfiche tape marked as 102A
25 at the request of the U.S. Attorneys Office and the
UNITED STATES vs SABRETECH ET, AL - 11-24-99
83 NESBITT KUYRKENDALL - Direct
1 Department of Transportation; is that correct?
2 A. Yes.
3 Q. And you made copies pursuant to instructions to copy
4 certain instructions of part of this microfiche tape; is
5 that correct?
6 A. Yes.
7 Q. Those certain sections were not all the parts that were
8 on this particular microfiche tape, 102A?
9 A. No, they weren't.
10 Q. What you did copy is now marked and admitted as
11 Government Exhibit 104A through E; is that correct?
12 A. Yes.
13 MR. BRIGHAM: No further questions.
14 THE COURT: Any questions?
15 MS. RASKIN: No questions.
16 THE COURT: Thank you. You may step down.
17 MR. BRIGHAM: Would this be a bad time to read
18 the stipulation with respect to the exhibits?
19 THE COURT: I don't really care what you do at
20 this point in time. Whatever pleases your heart.
21 MR. BRIGHAM: In that case, Your Honor, I will
22 read it with the Court's permission.
23 THE COURT: Unless there is objection, you can
24 read the stipulation to the jury.
25 MR. BRIGHAM: I will so read it, Your Honor.
UNITED STATES vs SABRETECH ET, AL - 11-24-99
84 LANK - Direct
1 The following exhibits were obtained from the
2 second floor of SabreTech, Inc. in Miami on August 7, 1996
3 including Government Exhibit 102 maintenance manual case.
4 That is pursuant to a stipulation by the parties
5 in this case.
6 Your Honor, the next witness will be Mr. Lank.
7 THE WITNESS: John C. Lank.
8 THE COURT REPORTER: Please raise your right
9 hand. Do you solemnly swear the testimony you are about to
10 give will be the truth the whole truth and nothing but the
11 truth, so help you God?
12 THE WITNESS: I do.
13 THE COURT REPORTER: State your full name,
14 spelling your last name for the record.
15 THE WITNESS: My name is John C. Lank, L-a-n-k.
16 JOHN C. LANK, GOVERNMENT'S WITNESS, SWORN.
17 DIRECT EXAMINATION
18 BY MR. BRIGHAM:
19 Q. Mr. Lank, where do you presently work?
20 A. I'm employed at the United States Environmental
21 Protection Agency in Atlanta, Georgia.
22 Q. What position do you have there?
23 A. I'm a senior criminal enforcement specialist at EPA.
24 Q. Briefly what you are your responsibilities there?
25 A. I guess that's the same as everybody. They vary a lot
UNITED STATES vs SABRETECH ET, AL - 11-24-99
85 LANK - Direct
1 from day-to-day, but basically I provide advice and
2 regulatory interpretations, waste identifications for other
3 EPA employees both within our branch and the various
4 criminal enforcement agents around the region.
5 Q. Briefly, describe your experience that you have had
6 with respect to hazardous waste?
7 A. My experience involved in hazardous waste, I guess,
8 started in the '79 '80 time period because that's really
9 when the hazardous waste regulations became effective.
10 There was a two year period between, I guess, '82 and '84
11 when I was out of it. But since then I've been in RCRA.
12 RCRA is Research Conservation Recovery Act which is the
13 federal act that covers hazardous waste management.
14 Through that time, the majority of the time, I was
15 chief for the enforcement section that covered half of that
16 region, and following that I became a national expert. All
17 that means is more than anybody that was more than 100 miles
18 away from home or was too old to do anything else, but
19 anyway, that became my current position at that time.
20 Q. Sir, what degrees do you hold?
21 A. I have a Bachelors of Science in civil engineering from
22 Clemson University and I have a Masters in Science in civil
23 with environmental major from the University of Idaho.
24 Q. Do you participate in any national task forces?
25 A. Yes. I assume you're talking about an EPA. I'm a
UNITED STATES vs SABRETECH ET, AL - 11-24-99
86 LANK - Direct
1 member of the Hazardous Waste Identification Role Task Force
2 which is a group within EPA from all over the nation which
3 is looking at modifications of our hazardous waste rules.
4 Q. How often are you called upon to identify hazardous
5 waste?
6 A. I mean, it varies from time to time. I've done several
7 hundred maybe a thousand of them over the time period which
8 I've been with EPA. Maybe two or three times someone asked
9 me for something in a week and then it may be several weeks
10 before the next one comes along. So it varies just
11 depending on how the workload goes.
12 MR. BRIGHAM: Your Honor, I move Mr. Lank as an
13 expert in the identification of hazardous waste.
14 THE COURT: Any voir dire or objection?
15 MR. RASKIN: Is he going to testify as to the
16 regulations?
17 THE COURT: He is tendered as an expert on
18 hazardous waste. That is the subject in which he is
19 offered or tendered as an expert.
20 MR. RASKIN: No objection.
21 THE COURT: All right. The Court then will
22 recognize Mr. John Lank as an expert witness in the subject
23 matter of hazardous waste. As I told you yesterday, an
24 expert may express opinions, opinions, as well as facts, if
25 he knows facts about particular issues pending before you.
UNITED STATES vs SABRETECH ET, AL - 11-24-99
87 LANK - Direct
1 But he may be given hypothetical questions and asked his
2 opinions, that sort of thing. You treat his testimony the
3 same with respect to credibility the same as any other
4 witnesses.
5 If his reasons are sound and make sense to you
6 and so on, you accept them. And if you feel that he is
7 mistaken or not accurate in some respect then you do not.
8 The fact that he is an expert doesn't mean that you have to
9 accept his opinion, but you should certainly give due
10 credence to his educational background and experience which
11 you've heard. The big difference is he can express
12 opinions.
13 BY MR. BRIGHAM:
14 Q. Mr. Lank, I would like to show you what has been
15 admitted as Defense Exhibit Number 1 and ask you if you have
16 had an opportunity to review that?
17 A. This is an MSDS for the oxygen generators, and I've
18 seen it before.
19 Q. Sir, as an expert, do you have an opinion as to whether
20 oxygen generators constitutes hazardous waste?
21 MS. RASKIN: Objection. I want to make it clear
22 that what he means is not what the regulations say.
23 THE COURT: I don't know. We will have to find
24 out what his opinion is. He is an expert. The last
25 question was: Is an oxygen generator something that is
UNITED STATES vs SABRETECH ET, AL - 11-24-99
88 LANK - Direct
1 defined as hazard waste. I presumed he means after it is
2 expended or maybe not.
3 BY THE COURT:
4 Q. Sir, do you have an opinion as to whether oxygen
5 generators constitute hazardous waste? Do you have an
6 opinion?
7 A. Yes, I do. Oxygen generators, once they have past
8 their expiration date or stated life would be a hazardous
9 waste at that point.
10 BY MR. BRIGHAM:
11 Q. If those oxygen generators that have past their stated
12 life or before are expended, do you have an opinion as to
13 whether they would constitute hazardous waste?
14 MS. MOSCOWITZ: Objection, compound.
15 THE COURT: All right, break it down.
16 BY MR. BRIGHAM:
17 Q. If oxygen generators are expended, do you have an
18 opinion as to whether expended oxygen generators constitute
19 hazardous waste?
20 A. Yes, they would.
21 Q. If, in fact, would that matter whether they were
22 expended before or after the time limit on the oxygen
23 generators?
24 MS. MOSCOWITZ: Objection, leading.
25 THE COURT: Overruled. Answer the question.
UNITED STATES vs SABRETECH ET, AL - 11-24-99
89 LANK - Direct
1 THE WITNESS: That wouldn't really matter. From
2 my research and what I have been able to determine, once
3 they have been expended there is no further use. They are
4 not reused. There is no market for them and; therefore,
5 they would still be a hazardous waste regardless of the
6 time frame.
7 BY MR. BRIGHAM:
8 Q. What about the composition of oxygen generators do you
9 base your opinion on?
10 Should I rephrase the question?
11 A. Yes, if you would please.
12 Q. On what basis do you base your opinion that expended or
13 out of time oxygen generators constitute hazardous waste?
14 A. Under an expended one I would base my opinion on the
15 barium concentration that is remaining in the expended
16 oxygen generator because that would remain or most of it
17 would.
18 Q. What is barium?
19 A. Barium is an element. It's been determined to be a
20 toxic element.
21 Q. I would like to refer to the MSDS that you just
22 testified about and direct your attention to the first page
23 under section 2 and a listing that makes reference to barium
24 peroxide. That listing as an entry of "percent by weight
25 4," what does that mean?
UNITED STATES vs SABRETECH ET, AL - 11-24-99
90 LANK - Direct
1 A. Well, it means it's four percent of the composition of
2 the chemical core. That would be 100 pounds, 4 pounds of it
3 would be barium peroxide.
4 THE COURT: Would you spell barium peroxide.
5 THE WITNESS: Barium is b-a-r-i-u-m. Peroxide is
6 p-e-r-o-x-i-d-e.
7 I'm glad you let me refer to it, because I'm a
8 horrible speller.
9 THE COURT: Thank you.
10 BY MR. BRIGHAM:
11 Q. How do does that quantity compare to the regulatory
12 limits defining hazardous waste?
13 A. A regulatory limit for barium is defined by the TCOP
14 test is 100 parts per million. Barium peroxide, four
15 percent would be approximately 40,000 parts per million. If
16 you converted that --
17 THE COURT: Excuse me, sir. She has to get it
18 down.
19 THE WITNESS: 40,000 parts per million which is
20 basically the same as milligrams per liter. If you convert
21 that to just the barium peroxide part, we are talking in
22 excess of 30,000. I don't have the exact figure. I would
23 have to calculate that out.
24 BY MR. BRIGHAM:
25 Q. Now, sir, with respect to non-expended oxygen
UNITED STATES vs SABRETECH ET, AL - 11-24-99
91 LANK - Cross
1 generators, what other basis, if any, do you base your
2 opinion that non-expended oxygen generator out of time
3 constitutes hazardous waste?
4 A. That would be based on the fact that oxygen generators
5 or an oxidizer and of the various ways that we classify
6 hazard waste, one of those is ignitability. That's
7 classified as a D001 classification of waste.
8 One of the criteria that would make a waste a D001
9 or an ignitable waste is that is an oxidizer --
10 THE COURT: Slow it down.
11 THE WITNESS: Let me rephrase it. There are
12 several ways that a waste can be ignitable. One of those
13 ways is if it is classified as an oxidizer under the DOT
14 regulations in 49 CFR. These materials, particularly the
15 sodium chloride, was classified as an oxidizer so that
16 would make these materials an ignitable hazardous waste.
17 BY MR. BRIGHAM: No further questions.
18 THE COURT: All right. Cross-examination?
19 CROSS EXAMINATION
20 BY MR. RASKIN:
21 Q. Is it Agent Lank or Mr. Lank.
22 A. Mister will do fine.
23 Q. I'm Marty Raskin. I represent SabreTech. I just have
24 a few questions for you. Did you do an evaluation of oxygen
25 generators to prepare for this testimony?
UNITED STATES vs SABRETECH ET, AL - 11-24-99
92 LANK - Cross
1 A. I've reviewed the literature on oxygen generators, and
2 I've looked at all the stuff that EPA has done. I guess
3 that's an evaluation.
4 Q. When did you do that evaluation? When were you asked
5 to do that evaluation?
6 A. Originally, right after the plane crashed. Again
7 Monday night.
8 Q. I understand. But the initial time that the EPA
9 focused on this issue was after the ValuJet crash; is that
10 correct?
11 A. That's correct.
12 Q. And prior to that, is not an area that the EPA or the
13 Florida Department of Environmental Protection really
14 focused on; would that be accurate?
15 MR. BRIGHAM: Objection, Your Honor. That's not
16 within the scope of the expertise, when a state agency may
17 have focused on the problem.
18 THE COURT: Excuse me. Excuse me. We are
19 dealing with an expert. As part of an expert, the
20 cross-examination of an expert is to test his knowledge
21 about a subject. One of the ways of doing that is to ask
22 him if he is aware of other publications or other actions
23 taken. He may be and may not be, and if he is that may
24 indicate that he is very knowledgeable or it may not.
25 Those are all matters you all have to decide. He can be
UNITED STATES vs SABRETECH ET, AL - 11-24-99
93 LANK - Cross
1 asked about other publications or other actions taken.
2 As I understand the thrust of your question,
3 Mr. Raskin, it deals with whether or not he is familiar
4 with other actions taken by the State of Florida Department
5 of Transportation?
6 MR. RASKIN: And the EPA and his agency as well.
7 THE COURT: That's a broad question.
8 Do you understand the question?
9 THE WITNESS: I believe I understand the
10 question. The basic answer is I'm not aware of what
11 Florida DER did.
12 In my research on this, after the crash, I did
13 not find specific references to oxygen generators. I did
14 find reference to oxidizers in a general way. There's
15 millions of different waste streams out there and EPA
16 hasn't addressed each one of them. That's why we have the
17 overall categories of waste.
18 BY MS. RASKIN:
19 Q. I understand.
20 Are you also aware of a September 30, 1996
21 memorandum from United States Environmental Protection
22 Agency Region 4 in Atlanta concerning liability of code
23 generators under RCRA.
24 THE COURT: Under what?
25 MR. RASKIN: RCRA. It means the Resource
UNITED STATES vs SABRETECH ET, AL - 11-24-99
94 LANK - Cross
1 Conservation Recovery Act.
2 MR. BRIGHAM: Objection, Your Honor. That's not
3 the applicable law in this particular case.
4 THE COURT: No, but he can ask this expert if he
5 knows about it if it's published somewhere in the world.
6 THE WITNESS: Yes, I have seen that.
7 BY MR. RASKIN:
8 Q. Isn't it a fact that that publication came out several
9 months after the ValuJet accident?
10 A. I believe so.
11 Q. Wasn't it in part as a result of the ValuJet accident
12 that this clarification was published?
13 MR. BRIGHAM: Objection, Your Honor.
14 THE COURT: As to the form of it. The question
15 is you told the jury that it came out after the ValuJet
16 crash, and the question is was part of the reason that it
17 was published, if you know, that the ValuJet plane had
18 crashed.
19 THE WITNESS: I believe so.
20 THE COURT: Next question.
21 BY MR. RASKIN:
22 Q. Didn't it deal with really the removal of hazardous
23 parts from an aircraft and who would be responsible and
24 liable for those activities?
25 A. That particular thing I haven't read for a while, but I
UNITED STATES vs SABRETECH ET, AL - 11-24-99
95 LANK - Cross
1 believe you're right.
2 MR. RASKIN: I have no further questions. Thank
3 you.
4 THE COURT: Any other defense questions?
5 MS. MOSCOWITZ: No, Your Honor.
6 THE COURT: Redirect?
7 MR. BRIGHAM: No redirect, Your Honor.
8 THE COURT: Thank you, Mr. Lank, you may step
9 down.
10 MR. BRIGHAM: United States calls Mr. Hope Weitz.
11 MR. DUNLAP: This is the witness we are talking
12 about.
13 THE COURT: We will have to take him up after
14 lunch. We will return at 2:00 this afternoon. Please
15 remember the instruction not to discuss the case with
16 anyone during the noon recess. Don't read anything or
17 watch anything or listen to anything. Thank you. You may
18 step out to the elevators.
19 [The jury leaves the courtroom].
20 THE COURT: Let the record reflect that there
21 have been the following exhibits admitted into evidence
22 this morning in the morning session, all government
23 exhibits, Exhibit 57, 44, 102, 104A, B, C, D and E. They
24 should be marked in evidence. Present them to
25 Ms. Krammerman and let her mark them in evidence.
UNITED STATES vs SABRETECH ET, AL - 11-24-99
96 LANK - Cross
1 The other exhibits marked for identification are
2 103A, 103B, 52 and Florence Exhibit Number 4.
3 MS. MILLER: Your Honor, the government is quite
4 close to resting its case. Following the next witness we
5 would like to take a pause so that we can regroup, review
6 our exhibits, because we will have some final submissions
7 based on stipulations, but we don't want to just have to
8 abruptly say we rest without an opportunity to do that.
9 THE COURT: Certainly I would give you that
10 opportunity in any case. I'm sorry I didn't know before.
11 We could have had them come back at 2:30. But certainly
12 all you would have to do is say you have to take a brief
13 recess, and we'll take a brief recess.
14 [There was a recess for the noon hour].
15 AFTERNOON SESSION
16 2:00 P.M.
17 COURTROOM DEPUTY: All rise. Court is in
18 session. The Honorable Judge James Lawrence King
19 presiding.
20 THE COURT: Ms. Krammerman reminded me at noon
21 that I would recess early today. I had forgotten about
22 that. This next witness will take approximately very
23 roughly how long?
24 MR. BRIGHAM: I would say 15 to 20 minutes on
25 direct-examination.
UNITED STATES vs SABRETECH ET, AL - 11-24-99
97 LANK - Cross
1 THE COURT: Because I would try to recess around
2 3:00 because of Mr. Dunlap's family commitment which he
3 didn't even remind me of, but nevertheless, if we can do
4 it. I had forgotten about it.
5 MR. MOSCOWITZ: Your Honor, as Mr. Dunlap
6 indicated before the break we wish to move in limine
7 against this witness's testimony. We understand that he is
8 an employee of the FAA.
9 THE COURT: Is he a local witness or is he out of
10 town?
11 MR. BRIGHAM: He is a local witness, Your Honor.
12 THE COURT: Would there be any problem with
13 perhaps taking this up on Monday, and that would give us
14 time to get this matter resolved this afternoon? Is there
15 a problem with that?
16 MR. BRIGHAM: No, Your Honor.
17 MR. MOSCOWITZ: No, Your Honor. We think it's a
18 brief motion.
19 THE COURT: Go ahead.
20 MR. MOSCOWITZ: Your Honor, we understand that
21 this witness is an employee of the FAA which as Your Honor
22 knows is the federal agency which has oversight over repair
23 and maintenance facilities and repair and maintenance
24 records. The thousand and one counts in this indictment
25 allege that the false statements were within the
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98 LANK - Cross
1 jurisdiction of the Federal Aviation Administration and
2 were material to its functions.
3 THE COURT: I'm sorry. What is he going to say?
4 MR. MOSCOWITZ: The problem is, Your Honor, we
5 don't know exactly what he is going to say.
6 THE COURT: Let me cut to the chase. What is he
7 going to say very briefly?
8 MR. BRIGHAM: Your Honor, he will assist in the
9 introduction of the FAA files which indicate the defendants
10 have A and P certificates. He will testify that his
11 responsibilities include reviewing aviation maintenance
12 records like those that are charged in the indictment.
13 THE COURT: And?
14 MR. BRIGHAM: That's basically it, Your Honor.
15 THE COURT: All you're going to do is offer the A
16 and P certificates of the individuals that are involved?
17 MR. BRIGHAM: Yes, Your Honor.
18 THE COURT: Can you stipulate to that?
19 MR. MOSCOWITZ: Yes.
20 MR. BRIGHAM: The stipulation would be that the
21 defendants have A and P certificates.
22 MR. MOSCOWITZ: Stipulated.
23 THE COURT: The stipulation is that Mr. Eugene
24 Florence has a valid or had and has a valid A and P license
25 at all times relevant to these proceedings including the
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99 LANK - Cross
1 period of 1996 up until the present time.
2 MR. BRIGHAM: If we could say within the scope of
3 the indictment, June of 1995 to May of 1996.
4 MS. MOSCOWITZ: No problem, sir.
5 THE COURT: What was the other aspect?
6 MR. BRIGHAM: He would also testify that as an
7 FAA inspector he would review aviation maintenance records.
8 THE COURT: What difference does it make who
9 reviews it?
10 MR. BRIGHAM: It's one of the elements under the
11 1,001 counts would be these records fall under the
12 jurisdiction of the FAA.
13 THE COURT: So you want to call him to say that
14 issuance of these license falls within the jurisdiction of
15 FAA. Is there any dispute about that?
16 MS. MOSCOWITZ: No, sir.
17 MR. BRIGHAM: It would also be that the aviation
18 maintenance records which are charged in specifically
19 counts 2 through 6 fall within the jurisdiction of
20 Department of Transportation FAA.
21 THE COURT: Well, that's his opinion, and you
22 would have to qualify him as an expert witness for that
23 which would bring him in as a lawyer or something and I
24 don't need that. You all argue that to me. I'm the only
25 expert you've got. You have to live with me.
UNITED STATES vs SABRETECH ET, AL - 11-24-99
100 LANK - Cross
1 You argue to me whether or not this falls within
2 the jurisdiction of the Department of Transportation. I
3 presume it does if the statute says it does. I don't know.
4 Is there any defense argument that it does not
5 fall within the jurisdiction of the FAA?
6 MR. DUNLAP: Yes, Your Honor, we will have an
7 argument that the documents relating to Aserca did not fall
8 within the jurisdiction of the FAA because the Aserca
9 aircraft questioned why the 720 was a Venezuelan aircraft
10 not regulated in any way by the FAA.
11 THE COURT: That's their position and we'll
12 listen to the respective argument on that. But having a
13 man come in here and say, "I've looked at it and boy, in my
14 judgment they do," that is not admissible or relevant
15 evidence.
16 MR. BRIGHAM: Your Honor, if I may ask, so the
17 record is clear, we have asked for stipulations that
18 Mr. Eugene Florence, Mr. Daniel Gonzalez and Mr. Mauro
19 Valenzuela had during the relevant time period A and P
20 certificates. I did not include the Mauro Valenzuela.
21 THE COURT: Why are you still prosecuting Mauro
22 Valenzuela?
23 MR. BRIGHAM: We are not. We are prosecuting
24 SabreTech. And Mr. Valenzuela was acting as an agent of
25 the corporation.
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101 LANK - Cross
1 MR. RASKIN: No objection, Your Honor.
2 THE COURT: Fine. You can draft up that
3 stipulation over the weekend, Mr. Brigham, and everybody
4 will sign it, and you'll read it to the jury Monday
5 morning.
6 MR. BRIGHAM: Thank you.
7 One other point, Your Honor, if I may. We are
8 requesting the certified copies of the temporary airman
9 certificates for purposes of the signatures on those
10 certificates. Those should be self-authenticating
11 documents.
12 THE COURT: You mean the individual certificates
13 issued to the individual persons you've just named, you
14 want to offer those into evidence?
15 MR. BRIGHAM: Yes.
16 THE COURT: Any problem with that, gentlemen?
17 MR. DUNLAP: My only concern, Your Honor, is
18 there's no prejudicial surplusage in those certificates.
19 But just for the purpose of having a conforming signature,
20 I don't believe we have any problem with it.
21 THE COURT: I don't see there's any problem.
22 Is that a stipulation, yes or no?
23 MR. DUNLAP: Yes, sir.
24 THE COURT: If we get into something that is
25 really a problem, we can bring him in on Monday morning. I
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1 think you've got your stipulation worked out. I don't see
2 any problem with this.
3 So you can let the witness go. Shall we bring
4 the jury in and wish them happy Thanksgiving?
5 MS. MOSCOWITZ: Is the government going to rest?
6 MS. MILLER: Your Honor, actually yes. All that
7 remains that we would like to move on and do the rest on
8 Monday is we have admission of self-authenticating or
9 stipulated documents.
10 THE COURT: We are at the point where we were
11 going to let you take some time to look at the exhibits any
12 way.
13 [The jury returns to the courtroom].
14 THE COURT: Thank you, be seated.
15 Ladies and gentlemen, we have been working on
16 some stipulations or agreements. You know what
17 stipulations are by now, that will save the necessity of
18 calling some witnesses, so the lawyers are all working on
19 that and cooperating and working together, and we have been
20 talking about it so we have hit a point really where I
21 think it is probably convenient to recess for the day.
22 This will give those of you who are having to cook a chance
23 to get a running start on it, and those of you who are
24 planning to sit and eat and maybe watch a football game
25 will give you a chance to get a few hours heads up on your
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1 rest so you can eat a big dinner.
2 All of us wish you a very pleasant Thanksgiving
3 and holiday. We are going to be in a four day recess now
4 as you know and as you can see. It's very very important
5 that you continue to not speak to anybody about the facts
6 of the case, even your spouses or friends or anybody else.
7 Tell them you are on a jury or what the case is, but don't
8 have any discussions about the facts of the case.
9 Now, other than that, again, you know what. Don't
10 listen to it or read it or watch it if it's on T.V. or radio
11 or television. We thank all of you for your patience.
12 Sorry we didn't anticipate this before lunch, or we could
13 have let you go earlier. But in any event, go now and have
14 a good Thanksgiving. We will see you Monday morning.
15 I have not discussed this with the lawyers, but
16 perhaps it is well for us to have the jury come in a little
17 bit later Monday morning?
18 MR. DUNLAP: Yes, sir.
19 MS. MILLER: Yes, sir.
20 THE COURT: Is everybody comfortable with that?
21 MS. MOSCOWITZ: Yes, sir.
22 MR. MOSCOWITZ: Yes, sir.
23 THE COURT: All right, ladies and gentlemen, we
24 will ask when you come back on Monday that you come back at
25 1:30 in the afternoon, and we should be ready for you at
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1 that time. We thank you very much. We will see you at
2 1:30 Monday afternoon. Thank you.
3 [The jury leaves the courtroom].
4 THE COURT: Ms. Miller?
5 MR. MOSCOWITZ: Your Honor, I want to make sure
6 that we understand what is happening. The government has
7 told us that this would have been their last witness and
8 they were planning to rest now.
9 THE COURT: Subject to a review of all of their
10 records and going through the 800 charts that are stacked
11 around the courtroom and make sure they have gotten
12 everything offered, they have not rested but they have
13 indicated at this point that this is their last witness.
14 MS. MILLER: Yes, Your Honor, but I think I
15 mentioned we have additional self-authenticating or
16 stipulated to evidence.
17 THE COURT: Yes, it's documentary evidence.
18 They may or will want to after some documentary
19 evidence on Monday, which they have the absolute right to
20 do. Then after that, I'm not requiring anybody to rest at
21 this point, they will look at all of their records, but
22 basically we are 98 percent finished with the government's
23 case. If there is anything unusual or startling in the
24 documentary evidence that you know about now, you might
25 want to tell them before we recess so you can be working on
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1 your Rule 29 motions. I presume that's why he asked the
2 question because he doesn't want to stand up here and say
3 you forgot to prove item A and then you walk in with item
4 A, a filing cabinet.
5 You have the right to introduce things, even if
6 there's something you are not thinking of right now. If
7 you run into it over the weekend, fine. Whatever the
8 objections are, I will rule on it. If you need to take an
9 hour off to look at that new startling earth shattering
10 document, so be it. Actually we are 12 days ahead of where
11 we thought we would be anyway, so we have got plenty of
12 time.
13 So then after that we will take up the usual
14 motions that are made at the conclusion of the government's
15 case. When the jury comes the government will offer
16 whatever they wish to offer in the presence of the jury,
17 but basically we can get into the legal arguments at that
18 time.
19 MR. MOSCOWITZ: In the morning?
20 THE COURT: Yes, that's why I put it off, so we
21 could get all of that out of the way.
22 Indeed, that brings up another good point. If
23 you have not already done so, I will ask that counsel
24 submit to the clerk, on Monday morning when you come, your
25 projected or anticipated or requested jury instructions.
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1 We hit a point now where I want to start reading through
2 those, studying your positions and reading the file, and I
3 don't want to do this at the last minute. So I would like
4 your proposed very tentative jury instructions. You are
5 not bound by them. You can change them later and all of
6 that. So let's have them Monday morning.
7 MR. MOSCOWITZ: At this point, do we submit those
8 to the Court or to each other?
9 THE COURT: It doesn't matter to me. Probably to
10 each other is a good idea. It may well be that there are a
11 great number that are agreed upon. If you are familiar
12 with what each other is requesting, there won't be any
13 secret Monday morning anyway. I doubt there is a secret
14 now about that because the law is the law.
15 So we have that. Is there anything else that we
16 need? Oh, let me ask a very general question, and without
17 any binding or limiting effect in any way, whether or not
18 the defense can give me a very generalized idea, and this
19 is not prejudging any Rule 29 motions or anything else, but
20 if the defense has to go forward on Monday afternoon with
21 witnesses, can you give me a very very general idea of how
22 long you will need?
23 MR. MOSCOWITZ: I would say at the most several
24 days.
25 THE COURT: Several days being what two or three?
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1 MR. MOSCOWITZ: Two or three days, Your Honor.
2 THE COURT: This is for planning purposes only.
3 That's just a rough estimate and that's fine.
4 Ms. Miller?
5 MS. MILLER: Your Honor, I have spoken to counsel
6 already. We have endeavored throughout the trial in
7 response to counselors' request to keep them apprised of
8 what witnesses were upcoming. I have asked counsel who
9 told me, and I certainly wouldn't question it, but they
10 don't know who they are going to be calling. Of course,
11 there will come a time when they will know and I have asked
12 counsel to notify me on Friday. I will be working on
13 Friday, and I would frankly request the Court's backing in
14 trying to get that information.
15 In addition, as I stated earlier, I do not yet
16 have a defense exhibit list from any defendant except for
17 Ms. Moscowitz's client and also don't yet have any Jencks
18 material. This is really that 11th hour where I need to
19 get those materials so that the trial can proceed
20 expeditiously next week.
21 MR. MOSCOWITZ: We have already agreed we will do
22 our best on Friday to give Ms. Miller our witnesses for
23 Monday. We simply, at this point, truly do not know who
24 the witnesses are going to be. Government's case have gone
25 far more quickly than we have ever anticipated. The
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1 government has told us at least a day before who the
2 witnesses are. We are not going to be sandbagging them. I
3 don't think the Court's back is needed for that. We have
4 agreed to that.
5 THE COURT: As we all know, what occurs if we
6 don't have reasonable disclosure of the upcoming witnesses
7 is that the party who must cross-examine may be confronted
8 with a problem of not being prepared to move forward with
9 cross-examination at the conclusion of the
10 direct-examination.
11 Putting it more simply, if a witness is produced
12 Ms. Miller doesn't know anything about, and the material
13 and the Jencks is handed to her at the end of the direct
14 testimony, which was her right and your right, subject to
15 the Court's rulings, then the difficulty is she may say
16 Judge, I need an hour or two hours or a day or two days to
17 study this material. We all know what happens. That's
18 what happens.
19 To avoid that, we try to implement the rule in
20 this district, a long standing rule, of having these
21 materials furnished to each other sufficiently ahead of
22 time to avoid jerking, and starting, and stopping, and
23 moving, and recessing and doing all of that. There, of
24 course, is not the penalty attached to the defense not
25 furnishing this that there is to the government, because
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1 with the government we can all say fine and go home
2 whenever the government is ready to proceed. With the
3 defense we can't very well do that. We can all go home but
4 everybody goes home and stays home. The case is over.
5 So it's a little bit different with the defense.
6 The bottom line is I'm going to rely on your good faith
7 statement that you are going to furnish this as quickly as
8 you can and hopefully in a sufficient time that we don't
9 have to jerk and stop like we are driving down US1 at 6:00
10 in the evening. Let's try to keep it flowing smoothly.
11 If we have to take an hour break after each
12 witness, the defense is going to be putting it on in not a
13 very smooth way. That's the best we can do with that.
14 I will see all of you Monday morning at 9:00. We
15 will go forward from that point. And then take the case
16 from there.
17 I wish for everyone a very pleasant Thanksgiving,
18 and I appreciate the way the case has been organized and
19 presented at least after the first day or so, rather
20 smoothly, and I compliment you.
21 COURTROOM DEPUTY: All rise.
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1 C E R T I F I C A T E
2 I hereby certify that the foregoing is an accurate
3 transcription of proceedings in the above-entitled matter.
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7 ______________ _______________________________________
DATE ROBIN MARIE CARBONELLO
8 Official Federal Court Reporter
Federal Justice Building, Ste. 1127
9 99 Northeast 4th Street
Miami, FL 33132 - (305)523-5108
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