Ms. Heck, in her opening statement, said that

Mr. Taber would testify that Mr. Gonzalez told him he had to

sign the paperwork without reading it. Of course, Mr. Taber

said no such thing. He merely said that Mr. Gonzalez told

him they need to get the paperwork signed.

He, on cross-examination, testified that signing

the paperwork is part of the usual business of doing work at

SabreTech and that Mr. Gonzalez did not tell him to sign the

paperwork without reading it, and he only considered the

comment about we need you to sign the paperwork as a request

to get the paperwork and the job wrapped up.

I'm not really sure what else to address

factually. I don't know if the Court has any questions that

I could answer. It seems to me almost clear beyond argument

on the face of it that there is insufficient evidence to

prove that Danny Gonzalez participated in any conspiracy of

any kind.

Certainly there is no relationship whatsoever

between the facts presented through the witnesses DiStefano

and Quan with respect to the fight with DiStefano regarding

the Aserca work paper organization and the fight, by the

facts related to the jury, by the mechanics Taber and

Rodriguez with respect to signing of documents in the

ValuJet work booth almost, I guess it was five or six months

later. No nexus whatsoever.

UNITED STATES vs SABRETECH, ET. AL - 11-29-99

41

There is simply no evidence of any kind of an

agreement, tacit, expressed or otherwise, to falsify work

cards. There's a complete insufficiency of evidence to show

that an agreement was ever formed between Mr. Gonzalez,

Mr. Florence or anyone else at SabreTech to falsify the

documents.

As I said, initially the allegation that work card

R 45904 was falsified simply has not been proven. Ms. Heck

has not shown that that work was not done. She certainly

recognized that was an essential component of the case in a

statement in opening argument. She predicted that

Mr. DiStefano would state that the work had not been done

prior to the flight.

Not only could he not say that, but as I said

previously, he did not even say that the work card had not

filled our -- had been filled out, nor could Mr. Quan.

The facts regarding the fight, to the extent

Ms. Heck wants to argue they provide any kind of a

circumstantial backdrop in support of the allegation there

was a falsification, are in vivid conflict between the

Government's two witnesses.

Mr. Quan testified that he saw -- overheard the

fight between Mr. DiStefano and Mr. Gonzalez, and that the

import of the fight was over the organization of the

paperwork and that Mr. Gonzalez's final resolution of the

UNITED STATES vs SABRETECH, ET. AL - 11-29-99

42

matter was, I'm in charge here. We are going to put the

paperwork back in the condition that it's usually placed in

and that's how we are going to proceed on this C-Check.

He stated that Mr. Gonzalez left the booth with

paperwork and handed paperwork out to the mechanics to work

on it in the usual way. I believe that was under

examination by the Court that brought that out.

Mr. DiStefano related a different version of

events altogether, stating that he saw Mr. Gonzalez handing

out work over his shoulder to mechanics without even looking

at them. But the most striking divergence in the

testimony -- and I believe the Court has to consider all the

evidence and it has to consider the evidence in the light

most favorable to the Government, but it cannot ignore and

should not ignore evidence from Government witnesses that is

just completely in conflict, and I would argue,

irreconcilable.

If not that, it creates, under the case law, such

an equivocal nature of proof that any reasonably minded jury

should enter a judgment of acquittal, and I suggest that the

Court should do the same under Rule 29.

On the essential issue of the handling of work

card R 45904 -- and that's the fact that the Government

wants to argue, solely the handling of R 45904 by Danny

Gonzalez that proves that he falsified.

UNITED STATES vs SABRETECH, ET. AL - 11-29-99

43

You will recall that Mr. DiStefano said there was

an initial fight, Mr. Quan reiterated the same; that after

that fight, depending on whose testimony you credit,

Mr. Gonzalez either left and routinely handed out cards, or

Mr. DiStefano left and returned and saw Mr. DiStefano in a

different manner handing out cards.

But after that happened, there came a time, an

hour and a half or two hours later, when Mr. Gonzalez

returned to the work booth, and according to Mr. Qaun,

Mr. Gonzalez pulled the work card out of the board and he

signed it and he put it down. And he said, you see, Chris,

we will have this C-Check done before you know it, and he

put it on the work desk. I think he, Mr. Quan, said he put

it in a bin or a box on the work desk.

Mr. Quan identified that card as the bio-bor fuel

card. He identified it sufficiently to place it in

evidence. Upon examination by Ms. Heck, he said he wasn't

real sure on it, but later in examination he said he did

recognize that card and he believed that was in fact the

card. It was admitted into evidence, I think as SabreTech

Exhibit 4.

Mr. DiStefano testified that Mr. Gonzalez returned

to the booth and he had a card in his hand and he identified

that card as the work card charged in Count II and then

overt act A of Count I. He indicated that Mr. Gonzalez put

UNITED STATES vs SABRETECH, ET. AL - 11-29-99

44

it on the table and said, we will get this C-Check done in

no time.

He said he didn't see Mr. Gonzalez sign it.

Mr. Quan said that he couldn't say that any of the work

cards that had been arrayed on the work board there had not

been signed prior to the fight or the argument.

So there is a complete divergence in testimony

from the Government's witnesses, and it came out in direct

and cross-examination, on which work card Danny Gonzalez

handled or put down on the table.

It's also worthwhile noting, I think, that Chris

DiStefano was unable to identify that card when he appeared

in the Grand Jury about a year and a half after the events

he described. They occurred in December, 1995. He first

testified in the Grand Jury in July of 1997, I think. He

not only couldn't identify the card in the Grand Jury, he

couldn't recall what kind of a card it was.

The Court will also recall that he offered an

estimate of time that it would take to complete the work on

R 45904, and part of the predicate the Government laid to

get that opinion testimony in was that he was well familiar

with the card. He knew what it was and had directed people

to complete that task before and had done that task himself.

So this was not something he was unfamiliar with.

The testimony was also that Mr. DiStefano made no

UNITED STATES vs SABRETECH, ET. AL - 11-29-99

45

copy of the card at the time, that he told nobody of this

suspect handling of that document by Mr. DiStefano. And

this is at a time when Mr. DiStefano testified that he made

a copy of a letter written by a William Drechsler because

impliedly he found that suspect on the desk of Mr. Gonzalez.

Some time later Mr. Gonzalez -- or excuse me,

Mr. DiStefano finally identifies that work card.

Mr. Gonzalez, [sic] of course, is the witness who testified

before the Court that he was the only witness who destroyed

evidence in this case. We know it's a key piece of

evidence, the ValuJet turnover log in this case.

Mr. DiStefano is the only witness who has admitted

lying under oath. He lied before the Grand Jury and I

believe it was with respect to an arrest that occurred while

he was in the military.

Now, all of these things taken together, I think,

have to be evaluated by the Court, respectfully suggest

should be evaluated by the Court. And having evaluated

them, I simply can't do better than say that no reasonably

minded jury could possibly return a verdict of guilty on the

charges against Danny Gonzalez in the Indictment.

It's my view that Mr. Gonzalez should never have

been charged to this case in the first place. The Court

doesn't have the background that we have, having reviewed

the Grand Jury transcripts and having worked through this

UNITED STATES vs SABRETECH, ET. AL - 11-29-99

46

case, but -- and I don't know that it's relevant at this

point, but the Government has done the best they could to

marshal facts and to bring together law and pleadings to try

to present a conspiracy to the jury and to the Court in this

case.

We argued to the Court in the beginning of this

case when we filed our pre-trial motions that there was

absolutely no nexus between the events as described by

Mr. DiStefano and Mr. Quan and the events that eventually

came out through the witnesses Taber and Rodriguez with

respect to the signing of work cards in the ValuJet booth.

I think that's been borne out completely in the testimony

here.

How did we get to this point where the Government

has come in with this incredibly attenuated case that

Mr. Gonzalez, through some sort of a dispute over paperwork,

launched or created some sort of a conspiracy or somehow

that is implimatic of a conspiracy?

Well, because the Government, I think, in a

preordained fashion, went through every record in SabreTech,

talked to a million witnesses, and finally -- in a way I'm

rephrasing my opening statement -- finally came up with

Aserca and, you know, was determined to argue that it was

linked up to the facts such as they were that they had

involving Danny Gonzalez and the signing of documents on

UNITED STATES vs SABRETECH, ET. AL - 11-29-99

47

ValuJet flight 802, or rather, aircraft 802.

The Government has stated that pressure is not a

crime, but wanting to have it both ways, they recently

argued in connection with the admission of a document that

pressure is all about a crime. The evidence that they

offered about pressure was, frankly, merely that it was time

to close out the work on ValuJet 802. The mechanics were

summoned to sign paperwork.

The Government predicted, as I said before, in its

opening that Mr. Taber would say that Danny Gonzalez told

him, no, you can't leave the work booth. We don't have time

for you to read these work orders, you have to sign them

out. That, so far as I'm aware, was never the testimony of

John Taber at any time, whether in the Grand Jury or

debriefings, and it certainly was not the testimony of John

Taber here.

I think the cross-examination of John Taber really

kind of establishes a leitmotif in this case and the

pressure as he saw it was to get the job done, was to do the

paperwork, which was simply an integral part of the work

doing heavy aircraft maintenance at SabreTech; that he was

not told, you can't read this before you sign it. He was

never asked to sign something that wasn't true.

He never felt that the pressure that he was under

was any different than any other pressure that anybody else

UNITED STATES vs SABRETECH, ET. AL - 11-29-99

48

was under there, and that was to do the job and do it right,

but to do it in a timely fashion.

At any point, you know, I would invite inquiry by

the Court if there's anything that I could help to fill in

or to answer the Court's concern at this point. If not, I

would suggest that it might be economical to let

Mr. Moscowitz get up and cover much of the same ground for

the corporation, or we can let Ms. Hack respond to either

one of our arguments. Ms. Moscowitz.

THE COURT: All right. Thank you, Mr. Dunlap.

MR. DUNLAP: I haven't addressed the

jurisdictional issue, but I thought we could do that, with

the Court's permission, after we address the --

THE COURT: I'm going to hear all of your

argument at one time so it can be answered at one time, any

way you want to divide up your argument, and take whatever

time you need. But let me hear everything that you have at

one time.

MR. DUNLAP: The final point I would make, Your

Honor, is with respect to the allegations raised on work

card R 45904, that that is not a matter within the

jurisdiction of the FAA.

Ms. Heck has provided the Court with a memorandum

on jurisdiction and she has tried to address this matter or

anticipate it in a number of fashions. First by a request

UNITED STATES vs SABRETECH, ET. AL - 11-29-99

49

for judicial notice, which really, I think, had a lot of

surplusage in it that essentially tried to get the Courts

to adopt her interpretation of the statute.

Then she was going to put on Mr. Hoke Weiss, a

witness who was going to testify, I anticipate, that the

FAA looks at all records in a repair station, thereby boot

strapping or trying to, through opinion testimony, bolster

her view of what the jurisdiction is.

In fact, the jurisdiction of the FAA is clearly

defined by statute, by the CFR. The FAA has jurisdiction

because of the Chicago convention requiring the

registration of the aircraft to each country. It's clear,

and I believe Ms. Heck will stipulate, that the Venezuelan

aircraft on work card R 45904, which was Aserca Airlines

aircraft widebeam 720-C, was a foreign registry aircraft

and not registered by the FAA.

Not withstanding that, Ms. Heck has argued that

all the repair records at Aserca, any of them, whether they

are for a foreign carrier or domestic carrier, come within

the supervision of the FAA or come within their

jurisdiction. Essentially, Ms. Heck is really trying to

turn the regulatory scheme on its head.

The registration -- or the certification of

repair stations, if the Court reads our response, came into

being to certify and monitor the operation of these repair

UNITED STATES vs SABRETECH, ET. AL - 11-29-99

50

stations with respect to aircraft described within this

part, as referred to in our brief. "This part" means the

section of the FAA that describes the aircraft over which

they have jurisdiction, which are U.S. aircraft.

Ms. Heck is essentially saying, prove we don't

have jurisdiction. In effect, it's really her obligation

to prove that they do have jurisdiction. The jurisdiction,

again, flows strictly from the FAA's primary jurisdiction,

which is over the aircraft.

As a corollary of that, the FAA has granted

licenses to domestic repair stations and in some cases to

foreign repair stations, but solely for the purpose of

working on U.S. aircraft. Ms. Heck has cited a couple of

other sections which I will deal with if the Court thinks

it's necessary in an attempt to try to save the issue and

establish jurisdiction, but they are inapposite.

She, for example, suggested to the Court in her

pleading that because the Aserca aircraft had come up here

to be worked on, that that makes it qualified as an

aircraft involved in foreign air commerce. If the Court

reads on Page 18 of our submission the CFR describing what

foreign air commerce means, it means transportation of

property, passengers by aircraft for compensation.

In fact, and the Court can refer back to the

testimony of the tech rep, Drechsler, that aircraft came up

UNITED STATES vs SABRETECH, ET. AL - 11-29-99

51

here for no commercial purpose. It was ferried up here

under a ferry permit for the specific purpose of being

maintained. That aircraft came up here and the air station

itself, Aserca, had to be approved by the Venezuelan FAA,

so that the conduct of the repair on that aircraft was

within the jurisdiction of the Venezuelan FAA.

You'll recall that Mr. Drechsler said that the

counterparts of our FAA in Venezuela had come up, we even

had to pay for their airline tickets to come up and for

their lodging and boarding to look at the station and

approve their station.

THE COURT: Were the work cards required to be

filed with the Venezuelan Air Force?

MR. DUNLAP: Yes, they were. That was part of

the testimony of Mr. Drechsler, that a complete set of work

cards had to be sent back to Venezuela. He was asked, did

you release the aircraft to service? He said, I signed a

release form, but I don't have the authority to put that

aircraft back in service. The Venezuelan FAA had to

inspect it themselves and determine whether the airplane

was back in service.

I believe part of the testimony was there was

some part of the work package that had to be finalized and

he had to get them sent back to Venezuela so they could be

duly executed and that their counterpart could issue their

UNITED STATES vs SABRETECH, ET. AL - 11-29-99

52

authorization for the plane to return to service.

THE COURT: There was no requirement that they be

filed with the American FAA?

MR. DUNLAP: No, there was not, Your Honor, none

whatsoever. Ms. Heck has cited a few things that I think

may be worthy of mentioning. She cited some general

requirements for repair stations to maintain records, but

that section, 145.23, requires that they are maintained for

determining compliance with this part. That means the

section of the FAA that defines what aircraft are within

their jurisdiction.

Those are U.S. registered aircraft and foreign

registered aircraft that are operated by U.S. carriers.

I'm confident Ms. Heck will stipulate that the Aserca

aircraft satisfied neither one of those classifications.

On that point, Ms. Heck has cited U.S. v. Rogers

and, of course, there is some dicta that she is citing

there. But the specific holding in Rogers, 466 U.S. 476,

is the department or agency has jurisdiction when it has

the power to exercise authority in a particular situation.

Sometimes these things that we have to prove,

like I said, it is like proving a negative. Prove that

there's not jurisdiction. There is no reported instance

either in Federal case law or administrative actions where

the FAA has ever taken or attempted to take action in a

UNITED STATES vs SABRETECH, ET. AL - 11-29-99

53

matter where a U.S. maintenance facility has performed

maintenance on a non U.S. plane, simply because they

wouldn't. They don't have jurisdiction over it. It's not

within their jurisdiction.

The FAA similarly -- as I said, to try to address

this thing by reversal, by saying, well, since the FAA has

created these repair stations, therefore, we can turn the

syllogism around and say, they have the certified repair

stations, therefore they have authority over everything

they do, is simply not the case.

The FAA certified repair station is solely to be

able to work on FAA registered planes and for no other

purpose.

That is the complete argument I have to present to

the Court at this time. Again, if the Court has any

questions, I'm available to answer them.

THE COURT: All right. Thank you.

Mr. Moscowitz.

MR. MOSCOWITZ: Thank you, Your Honor.

I'm presenting a motion under Rule 29 for

judgment of acquittal on behalf of the corporation. Some

of the things I have to say, Your Honor, relate to matters

covered by Mr. Dunlap and I'll try not to be repetitive.

Your Honor, this Indictment alleges that the

corporation and its employees, these defendants committed

UNITED STATES vs SABRETECH, ET. AL - 11-29-99

54

crimes substantial enough to cause this air tragedy and the

death of 110 people. Having now heard the Government's --

all the Government's evidence, the Government's evidence

proves what was really never in dispute, that this tragedy

took place.

They presented some evidence that the crash was

caused by the oxygen generators, although that evidence is

in dispute, so it's not for argument here. But they have

presented no evidence, Your Honor, showing that these

defendants committed any crimes which led to the placing of

those generators on that aircraft.

There is a complete lack of evidence showing any

willfulness, any bad faith, any criminal intent on behalf of

anybody working at SabreTech in connection with those

generators.

Now, they have put on evidence, and it's largely

not in dispute, as to the events, the facts which led to

those oxygen generators being placed on that aircraft, and

we really don't dispute the evidence showing that chain or

that sequence of events.

What that evidence shows, Your Honor, is not a

series of crimes, but it shows a series of missteps and at a

critical point, a lack of coordination, a lack of

communication, which led to the generators being placed on

that aircraft.

UNITED STATES vs SABRETECH, ET. AL - 11-29-99

55

This is simply a case -- this evidence shows

beyond any reasonable doubt that this tragedy, if it was

caused by the generators, was a result of mistake, error,

lack of purpose, lack of intent, and not, as alleged in the

Indictment, as a result of criminal intent, willfulness and

intentional conduct.

Your Honor, I will address the evidence with

regard to each count separately, briefly, and we are seeking

judgment of acquittal on each count.

Let me just say a few things generally about what

the undisputed evidence will show. We will put aside for a

minute, Your Honor, the evidence relating to Mr. Gonzalez

and Aserca Airlines, which is a separate matter.

With regard to the conduct of these defendants,

SabreTech and its employees relating to the oxygen

generators, all the evidence without dispute shows from the

very beginning the mechanics who worked on the generators

were working and operating in absolute good faith, seeking

to perform their jobs and doing what they believed they were

suppose to do.

Where the problem with the generators began was

with an effort to properly service the three ValuJet

aircraft that they were working on. Your Honor will recall

the testimony that the generators only became an issue when

the mechanics, Mr. DiStefano among them, Mr. Taber and the

UNITED STATES vs SABRETECH, ET. AL - 11-29-99

56

others, checked the aircraft and found out that the

generators on those aircraft that had come in from ValuJet

were out of date; that they only had a useful life of no

longer than 12 years and a number of these were beyond that

date.

So, quite properly, to ensure that there were

properly functioning generators on those aircraft, they took

steps to replace them, to take those generators off. The

undisputed testimony was that in every step in handling

those generators they did the best they could to handle them

safely and responsibly.

They removed them carefully. When they removed

them they did not have the caps. These defendants, the

mechanics, Mr. Florence, Mr. Taber and others, notified

their superiors that they didn't have caps. To ensure that

they were safe they went to great pains to carefully, as

Your Honor heard, wrap the lanyard around the firing pins,

around the generators, to ensure that they could not

accidentally discharge.

As you heard, that work took hours and hours. It

took several days of work by a compliment of these mechanics

doing that. They put the generators aside and continued

with their work as they were supposed to do.

With regard to disposal of these generators, Your

Honor, first, the only testimony that the Court heard, that

UNITED STATES vs SABRETECH, ET. AL - 11-29-99

57

the jury heard with regard to what these mechanics believed

they were doing, intended they were doing, they were focused

on properly completing the maintenance work on these

aircraft to make sure that when they returned to service

they were air worthy. And they were quite properly

concerned with the performance of the duties and the safety

of these aircraft.

As far as these mechanics knew, and this is

undisputed testimony, they believe, Mr. Valenzuela,

Mr. Florence, all the others, that these generators removed

from the aircraft were out of date, would not be used again,

would simply be disposed of as garbage, not that they were

going to be put on another aircraft and transported back to

Atlanta.

What they believed and what Mr. Taber testified to

was that these generators would be disposed of as garbage by

ValuJet, and that simply is the undisputed testimony with

regard to the mechanics' state of mind, their intent and

good faith.

Now, I would like to first address, Your Honor,

Count II, which is the false statement count relating to

Mr. Gonzalez and Aserca Airlines.

As the Court heard, all the evidence related to

Aserca Airlines, has nothing to do with ValuJet aircraft

that would be worked on at SabreTech. It has nothing to do

UNITED STATES vs SABRETECH, ET. AL - 11-29-99

58

with the oxygen generators that wound up on that flight on

May 10th. It has nothing to do with oxygen generators at

all.

It's a totally separate incident, a totally

separate piece of work being done at SabreTech prior to the

work being done, in fact, on these generators. Your Honor

will recall that the work on this aircraft was in December,

1995. The ValuJet aircraft work really began in January,

1996.

With regard to the false statement alleged in this

Count II against Mr. Gonzalez alone -- and only Mr. Gonzalez

is charged with this false statement. And it's worth

noting, and I will get back to this, that there's not even

any other alleged co-conspirators who are alleged to have

been involved with Mr. Gonzalez in this false statement.

For a brief period of time the Government alleged

that Mr. DiStefano was a co-conspirator with Mr. Gonzalez

regarding that false statement, but then they withdrew that

allegation. So it is Mr. Gonzalez by himself.

The false statement is alleged to be on Government

Exhibit 4, which is the work card relating to the deicer

system. The Government alleges that Mr. Gonzalez falsified

that document, claiming that he had done the work when, in

fact, the work wasn't done.

As Mr. Dunlap points out, the only evidence, the

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59

only testimony that that is the document which is in

question comes from Mr. DiStefano.

The Government presented another witness,

Mr. Quan, who testifies that it was a different document

which was at issue on that date. The problem with the

Government's evidence, Your Honor, starts right there, that

taking their evidence as true -- and we can't choose between

Mr. DiStefano and Mr. Quan, they are both Government

witnesses -- there's a hopeless contradiction between the

Government's only two witnesses on this false statement as

to what the document is, even before you get to whether it's

false, as to what the document is.

Mr. DiStefano testified that he saw Mr. Gonzalez

sign or present the deicer card. Mr. Quan testified that he

saw Mr. Gonzalez present -- that the document in question is

this bio-bor card, which is a different card for a different

function altogether.

Now, both Mr. Quan and Mr. DiStefano were present

with Mr. Gonzalez at the same time. They are clearly

talking about the same incident. It was a small room.

While Mr. DiStefano appears to be the more aggrieved of the

two, Mr. Quan had equal opportunity to view whatever

document Mr. Gonzalez is alleged to have signed and

presented, and there is simply no way to reconcile the two.

Mr. DiStefano's testimony, he acknowledged that in

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