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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
MIAMI DIVISION
CASE NO. 99-491-CR-KING
THE UNITED STATES OF AMERICA,
Plaintiff,
vs. MIAMI, FLORIDA
NOVEMBER 30, 1999
SABRETECH, INC.
DANIEL GONZALEZ, TUESDAY - 8:00 A.M.
EUGENE FLORENCE
Defendants.
JURY TRIAL PROCEEDINGS
BEFORE THE HONORABLE JAMES LAWRENCE KING,
SENIOR UNITED STATES DISTRICT JUDGE
DAY 10
APPEARANCES:
FOR THE GOVERNMENT:
CAROLINE HECK MILLER, A.U.S.A.
GEOFFREY BRIGHAM, A.U.S.A.
J.L.K. FEDERAL JUSTICE BUILDING
99 N.E. 4th Street
MIAMI, FL 33132 - 305/961-9432
SPECIAL AGENT JOHN LONG
OFFICE OF INSPECTOR GENERAL
DEPARTMENT OF TRANSPORTATION
SPECIAL AGENT MIKE CLARK
OFFICE OF INSPECTOR GENERAL
DEPARTMENT OF TRANSPORTATION
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SPECIAL AGENT JACQUELINE FRUGE
FEDERAL BUREAU OF INVESTIGATION
FOR DEFENDANT SABRETECH:
JANE RASKIN, ESQ.
MARTIN RASKIN, ESQ.
RASKIN & RASKIN, P.A.
2937 S.W. 27th Avenue, Suite 206
Miami, FL 33133 - 305/444-3400
NORMAN MOSCOWITZ, ESQ.
SULLIVAN RIVERO & MOSCOWITZ, P.A.
Miami Center, Suite 2550
201 South Biscayne Blvd.
Miami, FL 33131 - 305/371-7781
FOR DEFENDANT FLORENCE:
JANE MOSCOWITZ, ESQ.
MOSCOWITZ STARKMAN & MAGOLNICK
100 S.E. 2nd Street, Suite 3700
Miami, FL 33131 - 305/379-8300
FOR DEFENDANT GONZALEZ:
ROBERT DUNLAP, ESQ.
DUNLAP & SILVERS, P.A.
2601 S. Bayshore Drive, Suite 601
Miami, FL 33133 - 305/854-9666
REPORTED BY:
ROBIN MARIE CARBONELLO
Official Federal Court Reporter
J.L.K. Federal Justice Building
Suite 1127
99 Northeast 4th Street
Miami, FL 33132 - 305/ 523-5108
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TABLE OF CONTENTS
Witnesses: Direct Cross Redirect Recross
Pamela Hettinger ............ 105 112
Donald C. Forman ............ 113 120
Fernando Pereyra ........... 123
Fernando Pereyra ..................... 137 141
Manny Quintana .............. 144 179
Gil Morgan .................. 197 200
Kathleen Wheaton ........... 209
Kathleen Wheaton ..................... 212 216
Manny Quintana ....................... 224
Reporter's Certificate ................................. 249
INDEX TO EXHIBITS
Exhibits Marked for Received
Identification in Evidence
Description Page Line Page Line
Defense Exhibit 26 ............................ 130 12
Defense Exhibits DG1(a) through 1(e) .......... 159 14
Defense Exhibit DG2 ........................... 163 25
Defense Exhibit DG3 ........................... 164 18
Defense Exhibit DG4 ........................... 168 25
Defense Exhibit DG8 ........................... 173 4
Defense Exhibits DG6(a), 6(b) and 6(c) ........ 174 1
Defense Exhibits DG5, 7 and 9 ................. 176 2
Government Exhibit 111 ........................ 183 6
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Defense Exhibit ST11 .......................... 242 2
Defense Exhibits 8, 9 and 10 .................. 244 10
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COURTROOM DEPUTY: All rise. Court is in
session. The Honorable Judge James Lawrence King
presiding.
THE COURT: All right. We will hear from the
Government in their response to the motions, the 75 or so
motions that have been made, give or take a dozen.
MS. MILLER: Your Honor, the evidence in this
case provides a basis for a reasonable jury to return
convictions on all counts as charged in the Indictment.
With regard to Count I, Your Honor, the evidence
presented allows the jury to find a single conspiracy as
charged in the Indictment. It was a conspiracy in which
the business interests of SabreTech vis-a-vis all its
customers were paramount. That's what ties Aserca and
ValuJet together. This was not a conspiracy that was
focused on one particular customer.
The business interests of SabreTech are
illustrated through such evidence as the aircraft
maintenance service agreement between ValuJet and
SabreTech, which includes a penalty clause, a $2,500 a day
penalty clause for late work. Your Honor, that is embedded
in one of the documents that we have introduced into
evidence.
We have Government Exhibit 2F, William
Drechsler's letter of complaint with regard to late work on
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Aserca and the discontent of a customer. We also have
Government Exhibit 95, the letter from Steve Towns,
promising indemnification to ValuJet for its costs of late
delivery of aircraft up to $20,00 a day.
The Indictment alleges that this was one in which
part of manner and means was to hurry and compress work at
the expense of skipping work steps and with the result of
pressuring workers into signing off for work. Evidence of
this pressure atmosphere certainly was adduced during this
trial.
We have probably the most single dramatic moment
in the trial, which is Danny Gonzalez screaming at and
berating Chris DiStefano in a voice loud enough to be heard
throughout the hangar for DiStefano's trying to rearrange
the work cards in a way that would make the arrangement
more accountable, even though at the expense of limiting
access to that work booth.
That message was literally loud and clear for
everyone at SabreTech: Don't rock the boat or you will
face the ire and the recriminations of Danny Gonzalez.
We also had the testimony that followed that
altercation. Mr. DiStefano lost his temporary promotion of
hangar manager.
We had testimony concerning lead mechanic Ray
Serano telling Mauro Valenzuela to sign a work card even
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though Mauro Valenzuela was saying he hadn't done the work.
Now, we had some interpolation of Grand Jury testimony
designed to show that, well, Valenzuela had inspected the
work.
But what is significant is that that was not told
to Ray Serano. What the testimony was, is that Ray Serano
was told by a SabreTech worker that he hadn't done the
work, yet Serano, part of the management chain --
THE COURT: Let's go into that just a little bit
more. The defense asserted in the argument yesterday that
the evidence of this case was to the effect that Valenzuela
did not make a false statement since Valenzuela -- since
the record shows that Valenzuela was charged with some sort
of responsibility for supervising, and that he did that,
and that his statement -- sorry I can't put my finger right
on it.
But his statement, according to one of the
defense counsel, was to the effect that Valenzuela had, in
fact, supervised the work and certified that the work was
done because he supervised it, as opposed to his actually
doing the work, or words to that effect. That may not -- I
am not trying to put words --
MS. MILLER: Your Honor, Thomas Silvers testified
at trial that Ray Serano had some papers -- first of all,
he testified that what he and Valenzuela were doing that
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day was inspecting generators, not installing them, but
inspecting them.
Ray Serano had some papers. He said that since
we had done the inspection, would we sign it. They're
supposed to sign for doing work. They're not inspectors
signing off on inspections.
Serano said, since he had done the inspection,
would he sign it. "I said I wasn't going to sign because I
hadn't done the inspection. Mauro Valenzuela and I
bantered back and forth, you sign it, no, you sign it, you
sign, no, you sign it. Then Mauro Valenzuela took the
papers. I kept on talking to Serano.
MR. MOSCOWITZ: What page?
MS. MILLER: This is Page 43 of the transcript of
volume 1, 11/19, '99.
"I kept on talking to Serano. He turned and he
gave the whole thing back to Serano." Page 45. "I asked
Mauro Valenzuela why did he do it. Valenzuela said, well,
it's signed now."
Then we went into this issue of Grand Jury
impeachment due to Silver's failure of memory, and
Mr. Brigham read a portion of the Grand Jury that said, "We
told Serano that we had not done the work on the generators,
but he had wanted us to sign it so that he could get rid of
the item."
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Then Mr. Raskin read a portion of the Grand Jury
that said, "I, Thomas Silvers, heard Mauro Valenzuela tell
Ray Serano he had not done the work. Ray Serano told Mauro
Valenzuela to sign it any way. Mauro Valenzuela had
inspected it. That's what we spent four hours checking.
Mauro Valenzuela had actually looked at the work that was
done, Ray, installation of oxygen, putting the generators
into the assemblies." That was the testimony.
Now, the document, Your Honor --
THE COURT: You anticipated me. I was going to
ask you, what does Exhibit No. 4, work card 45904, what
does it say about that item?
MS. MILLER: Your Honor, actually I don't think
that's the right exhibit number. The exhibit is part of
Exhibit 26.
THE COURT: It wasn't part of Exhibit 4?
MS. MILLER: No, sir.
THE COURT: They were arguing 4.
MS. MILLER: I think Mr. Moscowitz will concede
he was mixed up in his exhibits.
THE COURT: That's okay.
MS. MILLER: Your Honor, Government Exhibit 26
are the work papers associated with the oxygen generators
for aircraft 803, and what Mauro Valenzuela signed was two
different documents which are charged as false statements,
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one of which is work card 0069.
This is Mauro Valenzuela's number, as proved by
another exhibit, and his signature, and he signs item one
and then sub items A, B, C, D, and B is this item: If
generator has not been expended, install shipping cap on
firing pin. That is the false statement.
THE COURT: Marshal, would you hand me that. Let
me borrow that. Hand that up to me, Marshal. Thank you
very much.
Do you have another copy that you can argue from?
MS. MILLER: I don't need it, Your Honor.
THE COURT: All right. Now, I'm examining
Government Exhibit 26 and I'm looking at what appears to be
card number 0069 --
MS. MILLER: And that statement B is --
THE COURT: -- apparently dated April 28, 1996.
And you are saying section B is the one that would be the
one we should look at?
MS. MILLER: Yes, sir.
THE COURT: Section B. The entire card starts at
the top with some numerical data that deals with certain
things, but getting to the body of the ValuJet MD80 work
card instruction, "Chemical oxygen generator remove slash
install. Note: Removal installation procedures for all
generators are identical unless otherwise noted.
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"One, remove generator (Figure 1). Warning:
Unexpended oxygen generators contain live ignition trains
and when activated generate case temperatures up to 500
degrees Fahrenheit. Use extreme caution while handling to
prevent inadvertent removal of firing opinion. If
generators should become activated, immediately place on a
noncombustible surface.
"Note: Passenger overhead environmental panels
contain" -- I never heard this word before.
MS. MILLER: I think it's unitized, Your Honor.
THE COURT: -- "unitized oxygen insert units. If
generator is to be replaced in these units, remove and
replace insert unit" then it refers to a number.
"A. Manually open oxygen module door slowly,
making certain that the firing pin lanyards are free among
out pull firing pin on live generator. Note: Oxygen mask
in attendance modules will drop out of door if allowed to
swing open.
"B. If generator has not been expended, install
shipping cap on firing pin. Caution: Use caution not to
pull oxygen generator firing pin while disconnecting
lanyards.
"C. Disconnect firing pin lanyards from oxygen
mask. Note: Lanyards remain attached to firing pin.
"D. Press heat shield toward generator until
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heat shield bracket loads can be lifted out of mounting
holes and oxygen module and remove heat shield. Note:
Heat shield is not incorporated in forward attendance
module."
Now, Section B, which you have invited my
attention to, says that in those cases, my words, where the
generator has not been expended, you must install shipping
cap on firing pin, and that is signed off with a mechanics
signature. There is a signature there, which you say the
evidence reflects is Valenzuela's signature?
MS. MILLER: Yes, sir, Your Honor. We put in
evidence the table of employee numbers and that matches up.
THE COURT: So he signed off that that work had
been accomplished. Now, that doesn't say anything about
supervision. That says that he did that work, according to
this.
MS. MILLER: That's correct, Your Honor.
THE COURT: All right. How does this -- the
argument -- well, that was on Count II. The argument about
Gonzalez on Count II had something to do with a de-icer,
but we'll get to that, I presume.
Your argument on Count I is?
MS. MILLER: This is actually one of the
substantive counts and an overt act in Count I, and the
false statement is the statement that shipping caps had
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been installed. This was false.
Mr. Silvers went on in his testimony to testify
that after this incident where they told -- where Mauro
Valenzuela told Ray Serano that he hadn't done the work,
they went on and worked with these old oxygen generators,
with 20 to 30 of them. They were affixing green tags on
them and Thomas Silvers said there were not shipping caps
on the generators, contrary to the statement in the work
card.
Further, Your Honor, we had testimony later on
from a witness who also had worked on the oxygen generators
for that aircraft, which is 803. That was Robert Rodriguez,
who testified that he helped collect oxygen generators that
had been removed from 803. Mr. Rodriguez testified that he
also observed that there were not shipping caps on those
oxygen generators.
Now, further illustrating the conspiracy and the
manner and means of the conspiracy to hurry and compress
work at the expense of skipping required work steps we had
the testimony that supervisor David Wiles was told by
mechanics, in the presence of Eugene Florence, that there
were not shipping caps for these old generators, and
Mr. Wiles said, go ahead and do the work anyway, even though
there were no shipping caps.
Other evidence of the hurry and compression of
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work at SabreTech included Government Exhibit 36, which was
Danny Gonzalez's seven day a week memo. Defense counsel
argued that it's common to have such a memo, citing the
testimony of Al Ramos.
Actually, Your Honor, what Mr. Ramos testified to
was that it is common to work seven days a week; not that it
is common to require an entire work force to work seven days
a week.
Further exemplifying this manner and means of the
conspiracy, we had testimony about an incident at the work
booth on May 4, 1996. We know that date through the
testimony of Robert Rodriguez, who testified that it was a
Saturday in May and that it was a Saturday before the
ValuJet crash. The ValuJet crash was on Saturday, May 11th.
Therefore, this incident occurred on Saturday, May
7th, which also corresponds exactly to the date that appears
on the document that Eugene Florence signed at that time.
In this incident, both Mr. Rodriguez and Mr. Taber testified
to workers being summoned to this work booth and told to
sign documents.
Mr. Taber demurred and hung back from signing
documents, saying that he had to read the work cards before
he would sign them. He read one as to which he had in fact
done the work and signed it, and was asked to sign more but
said he wanted to read the work card first.
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Danny Gonzalez said, "We need this paperwork
signed now," further exemplifying the time pressure and the
position of management that the priority was to get items
signed, not to actually read what was being signed. When
Danny Gonzalez made that remark he was standing at Eugene
Florence's elbow and Eugene Florence was signing papers.
Mr. Taber testified that the work papers that he,
John Taber, saw in the booth that day were the documentation
for the oxygen generators.
Totally consistent with that testimony is the
actual documentation, Your Honor, and that is found in
Government's Exhibit 25. I'm not going to hand it up to the
Court unless the Court wishes, but it is a similar package
to Government Exhibit 26. Government Exhibit 26 is the
oxygen generator papers for aircraft 803. Government
Exhibit 25 are the similar papers for aircraft 802.
In that exhibit, Government Exhibit 25, is that
same work card, 0069, but for aircraft 802, and Eugene
Florence signed that work card, including signing off on
that item B which Your Honor just read, which is the false
statement that was made.
Other evidence of the hurrying and compression of
work at the expense of skipping work steps is exemplified in
testimony such as Robert Rodriguez of Jude Casamere telling
the crew to hurry up and clean out old generators that were
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still lying around the hangar. This is after May 4, 1996.
Between May 4th and May 11th, the crews had to get
together and clean out these old generators and in their
haste to do so, several of them went off. They were
basically put in boxes, not secured in the way that
Mr. Brennan testified that they needed to be secured, and
moved from there forward to SabreTech's stores, ValuJet's
hold area, and finally on to the aircraft.
Your Honor, the defense argued that there was no
rim to the conspiracy, that these were simply isolated acts.
That is not correct, Your Honor. They all fell into this
manner and means.
In addition to named unindicted co-conspirators,
the Indictment named unindicted co-conspirators who were
unknown. This company had other management members and each
defendant in this case had reason to know of other acts than
his own.
For instance, with regard to Aserca, Christopher
DiStefano had announced his intent to institute this new
system for improving the flow and accountability of
paperwork at a meeting that included not only Danny
Gonzalez, but other members of SabreTech, who was then
DynAir Tech management, including Jaime Galindo.
When Danny Gonzalez subsequently countermanded
that system, it is a fair inference that that was done with
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the knowledge and acquiescence of other management.
We also have the letter of William Drechsler,
Government Exhibit 2F, complaining, among other things, of
work cards done and work not accomplished. This letter was
circulated to other persons than Danny Gonzalez and it was
addressed to the director of marketing, yet it landed on
Danny Gonzalez's desk.
In that letter, Mr. Drechsler said, "We have
DynAir paperwork showing work completed and inspected and
not accomplished. We have DynAir paperwork showing approval
to accomplish signed off, yet no work done on the aircraft."
That letter, Your Honor, put management on notice of
problems concerning the veracity and accuracy of its
paperwork.
Now, Mr. Drechsler testified on cross-examination
that his concern was with the timing of paperwork, but on
the face of it, his letter put management on notice of a
larger problem and this should have raised a red flag.
In addition, Your Honor, Mr. Drechsler's belief
was that work was being done but, indeed, one of the
allegations in this case, which we submit is supported by
evidence, is that work on the aircraft which was stated as
being done, in fact, was not being done even though the
paperwork was signed off.
Further, Your Honor, with regard to knowledge by
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the defendant Eugene Florence of other acts in this
conspiracy, it should be remembered that Eugene Florence
worked not only on aircraft 802, but also on aircraft 3. We
know that through his statement to Mark Gentile and also his
written submission which is now in evidence in which he
acknowledges that he worked on both aircraft.
Eugene Florence knew that somebody had to sign a
similar parallel work card, 0069, as to aircraft 803, and to
do so falsely.
The result, Your Honor, of this knowledge on the
part of defendants and of this pattern that was demonstrated
through the evidence, is what's known as pencil whipping,
which is alleged in the Indictment and is testified to by
John Taber. Pencil whipping is signing for work that wasn't
done.
Specific instances of that, Your Honor, are
charged in Counts II, III, IV, V, and VI. Those are the
substantive 1001 counts. They also are overt acts in the
conspiracy.
Let me turn my attention now to Count II, which
relates to the work card for Aserca Airlines, the ice
protection system.
The Government's proof that this work was not done
consisted of the testimony of Christopher DiStefano and
William Drechsler that this job took longer than the time
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that Mr. Gonzalez had that paperwork. Both Drechsler and
DiStefano said that it is a two-person job. DiStefano said
it would take two people three hours and Drechsler said that
it would take people four hours.
Now, the testimony was that Danny Gonzalez was
gone with that paperwork from the work booth for only one to
one and a half hours according to DiStefano. Michael Quan,
who also testified, gave a somewhat wider range of time. He
said he thought the time was between twenty minutes to two
hours.
The work had not been done previously, Your Honor,
and the paperwork had not gone out previously. The
testimony and support of this came from Michael Quan and
from Christopher DiStefano. That testimony was that the
paperwork had been newly laid out in the work booth.
According to DiStefano, who was the supervisor on this
airplane, this was the first day of work on aircraft 720,
which would be the first day I started handing out the
paperwork. And the day began, Your Honor, with the fight
with Danny Gonzalez.
Now, counsel made much of the fact that they say
there are hopeless inconsistencies between the testimony of
Michael Quan and Chris DiStefano as to this fight. First of
all, as the Court has recognized, the resolution of factual
discrepancies is for the jury. In any event, Your Honor,
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their two accounts, although different, are not
irreconcilable.
Frankly, Your Honor, it may well be that the
reason their accounts are different is because, as we
elicited from them, they have not conformed their accounts.
They have not talked to each other about this matter since
it occurred. They both came in here and testified to their
best recollection.
Those recollections, Your Honor, although each of
them focus on different things are not irreconcilable. Both
recall a noisy and profane fight. In fact, Michael Quan
remembers that the actual discussion began when Danny
Gonzalez walked into the work booth, looked at the work
cards and said, what the expletive is this?
Both of them remember Danny Gonzalez taking a
bunch of the work cards and handing work cards out to
mechanics. Christopher DiStefano remembered Danny Gonzalez
stuffing this paper in his jacket as he walked out. Michael
Quan was not sure if Mr. Gonzalez had handed out all the
work cards.
Following this, Christopher DiStefano testified
that he hung out, that he was around the plane 720 during
this hour and a half interval and he did not see Danny
Gonzalez at that plane. He testified that during that time
he went past Danny Gonzalez's office and saw on Danny
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Gonzalez's desk the document that eventually was entered
into evidence as Government Exhibit 2, this ice protection
system work card.
Both Quan and DiStefano remember Gonzalez
returning to the booth. DiStefano remembers Danny Gonzalez
coming in with paper that was already signed and laying it
down. Michael Quan remembers Danny Gonzalez taking a work
card from the rack, signing it in their presence and putting
that down. Michael Quan does not recall if Danny Gonzalez
brought anything with him. It is not that he contradicts
Christopher DiStefano, he just doesn't remember.
The signing of a paper on the spot is more
consistent with the document that Mr. Quan recalls, which
was only three pages. But Government Exhibit 2, which
Mr. DiStefano identified as one that Mr. Gonzalez brought
into the work booth with him, which Mr. Quan does not in any
way contradict, is approximately ten pages long.
Your Honor, with regard to the length of that
document, I think it's significant also that in Grand Jury
Christopher DiStefano recounted this incident. He could not
identify the document at that time, but there were no
documents before him at that time.
THE COURT: Is that in evidence?
MS. MILLER: Yes, sir. That was part of the
impeachment and then I rehabilitated with the fact that in
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Grand Jury -- and you may recall that I called
Mr. DiStefano back to do a little bit of redirect that I
had omitted and in that redirect I established that in
Grand Jury, although he could not remember the exact
document, he did remember that it was approximately ten
pages.
Your Honor, Government Exhibit 2 is nine pages,
totally consistent with Mr. DiStefano's recollection.
THE COURT: That's the one that DiStefano says he
saw on Mr. Gonzalez's desk?
MS. MILLER: Yes, sir.
THE COURT: And there was other testimony by
DiStefano, I believe you said, that he was around the plane
and did not see Mr. Gonzalez working on the de-icing
mechanism.
MS. MILLER: He did not see Mr. Gonzalez working
on anything. He didn't see Mr. Gonzalez there working on
the plane.
THE COURT: There were other witnesses that said
this would normally be a two-man job; yes or no?
MS. MILLER: Yes. Your Honor, at this point,
Count II also involves an issue with regard to FAA
jurisdiction. Mr. Brigham has prepared that argument, and
with the Court's permission, I would like to defer to him
at this point to address the jurisdiction issue as to Count
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II, unless you want me to go forward with the rest of the
Indictment.
THE COURT: I would rather finish Count II.
MS. MILLER: Your Honor, I have substantively
addressed Count II, and now I will defer to Mr. Brigham
with regard to the jurisdictional issue.
MR. BRIGHAM: Your Honor, as a legal matter, the
falsification of the Aserca records that is charged are, in
fact, matters that fall within the jurisdiction of the FAA.
To facilitate my discussion, I would like to
provide the Court a small package which I provided to the
defense yesterday, including regulations that were
discussed yesterday. With the Court's permission, I would
like to tender that through the Marshal.
THE COURT: All right. I am seeing it for the
first time and you are maybe seeing it for the first time.
It is four pages. I will ask Ms. Kramerman to make a Xerox
copy for everybody. We will get copies made and
distributed.
These are -- refer to legal documents or whatever
and so, just go on with your argument and make three extra
copies. Go ahead. This has to do with the argument
regarding whether or not a foreign registered aircraft such
as the Aserca aircraft would fall within the scope of the
FAA and Department of Transportation regulations. Is that
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it?
MR. BRIGHAM: Yes, Your Honor. Your Honor, under
Part 145 of Title 14 of the FAA regulations there are two
types of repair stations. There's a domestic repair
station and a foreign repair station. The domestic repair
station is located in the United States. The foreign
repair station is located outside the United States.
The recordkeeping requirements for the domestic
repair station, which is what SabreTech was, an FAA
certified repair station, is Section 145.61, which is the
regulation that is on the first page of the package I
provided Your Honor. And it requires that each
certificated domestic repair station shall maintain
adequate records of all work that it does, naming the
certified mechanic or repairman who performed or supervised
the work.
I believe Mr. Dunlap misspoke when he indicated
that this provision is limited to U.S. registered aircraft.
It is not. What is limited to U.S. registered aircraft are
the recordkeeping provisions for foreign repair stations.
That's the section that's cited in the defense brief. That
is not relevant here.
The importance of that distinction is that when an
FAA certified repair station does work on a foreign
registered aircraft, that foreign registered aircraft
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necessarily flies over U.S. territory. Questions of
airworthiness are relevant.
One of the provisions that's in Part 145 with
respect to domestic repair stations is a provision which the
Court has that requires a repair station to report any
problems of airworthiness with respect to an aircraft. And
an aircraft is defined, not limited by it's place of
registration, but by the normal definition that we would
expect, which is a device that is capable of flight.
This is relevant because, Your Honor, on the
second page of the package I provided the Court there is a
statutory provision which is found in Title 49 of the United
States Code, and it's Section 44.709. And that provision
specifically states that the administrator of the FAA has
the authority to either amend, suspend or revoke a repair
station's certificate.
It talks about air agency certificates. A repair
station is an air agency. It can do that when the
administrator decides, after conducting an investigation,
that safety in air commerce and the public interest require
that action. That then asks the question: What is air
commerce?
That definition is provided at the bottom of the
second page. Air commerce means foreign air commerce. What
does foreign air commerce means? Foreign air commerce
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26
includes the operation of aircraft in furthering a business
or vocation between a place in the United States and a place
outside the United States when any part of the
transportation or operation is by aircraft.
Again, aircraft is defined under the statute to
mean any device that's capable of flight, or words to that
effect. Importantly, the definition of aircraft is not
limited by its place of registration.
This is important because it shows that the FAA
does have jurisdiction in circumstances involving foreign
registered aircraft, and that would apply to the Aserca
aircraft which would be obligated to fly out of the United
States to return to Venezuela.
We have noted also that in the ICAO Treaty that
there are provisions which give the FAA jurisdiction to act.
I've also included a provision which deals, for example,
with damage to aircraft, which makes it clear, contrary to
the statements of the defense, that the ICAO agreement does
not exclude all FAA jurisdiction.
For example, if in fact, it is sustained or
ascertained that an aircraft in the United States is, in
fact, damaged, which could be determined by a review of the
records, that -- the United States, even though it's not the
country of registry, has a right to bring that information
to the attention of the state of the registry.
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27
The ICAO agreement and the regulations are not --
do not establish a black and white jurisdiction, as it's
been represented. Venezuelan authorities may, under
Venezuelan law, have certain jurisdiction from the
perspective of the Venezuelan authorities, but that
certainly does not preclude the FAA from playing a role,
especially in a case of this nature where documents are
falsified at an FAA certified repair station for an aircraft
which is obligated to fly over U.S. territory.
For those reasons, Your Honor -- I would be happy
to go into more detail or to answer any questions, Your
Honor --
THE COURT: Let's go into the questions raised by
Mr. Dunlap regarding work card 904. He says and he argues
that the FAA does not have any jurisdiction over this
because there was no requirement that the work cards be
filed with the Federal Aviation Authority, the United
States FAA. It is only required that it be filed with the
Venezuelan FAA, and he cites U.S. v. Rogers at 466 U.S.
476.
What is your position with respect to the
requirement? I asked him the specific question in the
record in his argument yesterday at Page 51, and the
question was not artfully drawn. I just said: Were the
work cards required to be filed with the Venezuelan Air
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28
Force, to which he correctly replied, yes, they were.
That was part of the testimony of Mr. Drechsler.
I'm quoting from Page 51 of yesterday's transcript. 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 the aircraft back in service.
The Venezuelan FAA had to inspect it themselves
and determine whether the airplane was put back in service.
I believe part of the testimony was there -- it was some
part of the work package. That had to be finalized and he
had to get them sent back to Venezuela so they can be duly
executed and their counterpart could issue their
authorization for the plane to return to service.
The Court: There was no requirement that they be
filed with the American FAA? Answer, Mr. Dunlap: No,
there was not, none whatsoever. Then it goes on and he
makes his argument on jurisdiction.
I'll ask you the same question then, that is, is
there a requirement under the statutes that you rely upon
that requires these work cards, and specifically the one
referred to in Count II, being R 45904, and I believe
there's another card, was there a requirement that these be
filed with or maintained or kept -- it's a little different
TOTAL ACCESSTM COURTROOM REALTIME TRANSCRIPTION
29
question -- for inspection by the United States FAA?
MR. BRIGHAM: The answer is, yes, there was a
requirement that they be maintained at the repair station,
which is the requirement in general. Rarely are repair
stations required to file the maintenance records with the
FAA itself physically. The provision --
THE COURT: I'm sorry. Repeat that now. There
is or is not a requirement?
MR. BRIGHAM: There is not a requirement.
THE COURT: So, the requirement under all of
these regulations then seems to be that the repair station,
the licensed authorized FAA licensed repair station, is
required, under your analysis of the regulations, to
maintain the records, work cards, other data, paperwork, at
the repair station; is that correct?
MR. BRIGHAM: That's correct.
THE COURT: Is that true whether it is an
airplane like the Aserca airplane that was being
refurbished and rechecked and worked on as well as, say, an
American Airlines or Delta Airlines plane?
MR. BRIGHAM: Yes, Your Honor. What I would
direct the Court's attention to would be the first
provision on page one which is --
THE COURT: So you and Mr. Dunlap have a
diametrically opposed interpretation of the statute
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30
apparently.
MR. BRIGHAM: Apparently, Your Honor.
I believe he felt that that provision was limited
by special language which limited the keeping of the records
to only U.S. registered aircraft.
THE COURT: It may have been the way I asked the
question. I simply said, were they required to file in
Venezuela, and he correctly answered, yes, it was.
The thrust of what I was trying to get at is, it
is your interpretation of these regulations that the repair
facility here in the United States must maintain these
records for inspection by the FAA?
MR. BRIGHAM: That's correct.
THE COURT: And it may also be that they have to
send copies or send something down to Venezuela also, but
they must maintain them for inspection by the United
States?
MR. BRIGHAM: Right. And I rely not only on the
CRF, Your Honor, but also with respect to the statute
that's found in Title 49, which talks about the
administrator's right to amend, modify, suspend or revoke
the certificate of a repair station if he determines, after
investigation, that safety in air commerce and the public
interest require that action.
THE COURT: I understand. Let's focus just for a
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31
moment, all of you, on the proposition that a mechanic
certified on one of these work order forms, specifically in
this instance, R 45904, Government Exhibit 2, that he did
certain work.
Now, if the regulations require that he furnish
that information or that it be available upon inspection by
the FAA, then that is a statement that is being made to the
American FAA. If there is no requirement that he make that
inspection or that they be maintained by the FAA or
anything of the sort, then, that would impact upon the
jurisdictional argument of Mr. Dunlap and other counsel.
What I'm saying is, quite simply, and yesterday
at the conclusion of the argument it would appear that
there was no requirement that this be furnished to or given
to the American FAA, which lends a lot of credence to
Mr. Dunlap's argument.
Now, if the regulations provide otherwise, and
they seem to do that, then this would bolster the
Government's argument that the FAA in America had
jurisdiction over these work cards where the alleged false
statement was made. That's the point of all of this. It's
not whether an inspector could come in and take away their
license or not.
The question is whether or not they were required
by American law to maintain these records, and apparently
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32
they were. Let's move on to something else.
MR. BRIGHAM: Your Honor, that would be our
argument. We don't only rely on that provision. We rely
very strongly on the statute itself which I have quoted to
the Court which we believe is alternative authority, and in
addition, the ICAO Treaty which we have cited, which
demonstrates that the United States, even with foreign
registered aircraft, on airworthiness issues has certain
jurisdiction.
With that, Your Honor, we submit that the Aserca
aircraft document which was, as we have alleged, falsified
would fall within the jurisdiction of the FAA in this
particular case where, in fact, the aircraft is on U.S.
territory and will fly out over U.S. territory.
THE COURT: All right. Ms. Miller?
MS. MILLER: Your Honor, I would like to turn now
to Counts III, IV, V and VI. These counts allege four
distinct false documents that were used and that were made
by SabreTech and its agents concerning oxygen generators.
Counts III and IV relate to aircraft 803. Counts
V and VI related to aircraft 802. And Mr. Eugene Florence
is also charged as an individual defendant in Counts V and
VI.
First of all, Your Honor, I would like to address
the argument by counsel that the counts are multiplicitous,
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33
that the documents in III and IV and then in V and VI are
essentially the same false statement and therefore should
be collapsed into one count.
THE COURT: Excuse me. These four now deal with
alleged false statements; is that right?
MS. MILLER: Yes, sir.
THE COURT: All right.
MS. MILLER: The argument on multiplicity is
incorrect. It was raised pre-trial. The motion was
recommended for denial by the District Court which was
affirmed -- by the Magistrate Court, which was affirmed by
the District Court. Your Honor, I would point out that in
these counts, III, IV, V and VI, we charge not only making
a false statement, but also "knowingly and willfully making
and using a writing and document knowing the same to
contain a false statement," which is a separate prong of
the statute.
Your Honor, there is case law that clearly states
that when this is alleged each document is a separate count.
I have some case citations if the Court wishes them. One is
U.S. v. Guzman, G-U-Z-M-A-N, 781 F.2d, 428, Fifth Circuit,
1986, and of course, that draws on prior Fifth Circuit law
which we have in common with that circuit.
Other cases that stand for this proposition are
United States v. Betenhausen, 499 F.2d, 1223, a Tenth
TOTAL ACCESSTM COURTROOM REALTIME TRANSCRIPTION
34
Circuit Court case, 1974. And the relevant portion appears
at Page 1234. And a third case, Your Honor, is United
States v. Grossman, this is a District Court decision, 154
F.Supp, 813, District of New Jersey, 1957.
All of them state the same proposition, that where
there are two documents each stating the same falsity, there
are two distinct counts and it is not multiplicitous.
Your Honor, moving on to the substance of those
counts, let me address first Counts III and IV which relate
to 803. Now, Your Honor, as the Court has pointed out,
Mauro Valenzuela is not on trial here. What is on trial is,
of course, SabreTech, which is charged in those counts.
For the purposes of SabreTech's liability it is
not really pertinent that it was Mauro Valenzuela who signed
the card. What's pertinent is that it was an agent of
SabreTech that signed that card acting in furtherance of the
business of SabreTech, and that is what the evidence shows.
In any event, there certainly is evidence with
regard to this particular agent's knowledge of the falsity
of that statement, as we have just gone over with regard to
the testimony of Thomas Silvers.
It was further argued, Your Honor, that the
Department of Transportation has no jurisdiction here, only
the FAA does. That is not correct, Your Honor.
First of all, of course the FAA is part of the
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35
Department of Transportation, and further, Your Honor, as we
developed extensively in pre-trial motions, the Department
of Transportation has jurisdiction over the transportation
of hazardous materials which these work cards and
non-routine work cards related to.
With regard to Counts V and VI specifically, Your
Honor, including the liability of the individual defendant
Eugene Florence, the proof is very clear. Eugene Florence
knew that there were no shipping caps, yet he stated in this
work card at that same item B which the Court has earlier
referred to, that shipping caps had been installed on the
firing pins.
Ms. Moscowitz addressed the issue that, well,
shipping caps don't really go on firing pins, they go on a
percussion cap. But as the Court pointed out, the
defendant's statement was unequivocal. He said he had put
shipping caps on the firing pins. There were no shipping
caps. He had not put shipping caps on anything. It was
clearly a false statement with no ambiguity.
There was also evidence, although this evidence is
beyond what the Government has to show, but there is
evidence that Eugene Florence knew of and appreciated the
importance of the shipping caps.
Two witnesses testified, that was Mr. Taber and
Mr. Rodriguez, that Eugene Florence was sitting at the table
TOTAL ACCESSTM COURTROOM REALTIME TRANSCRIPTION
36
working on oxygen generators, wrapping the lanyards, putting
tape on, putting the new generators into the PSUs, at the
time of a conversation when John Taber and Robert Rodriguez
discussed the fact that there were no shipping caps.
They further discussed the fact that SabreTech
management, David Wiles, had been told about this. Eugene
Florence knew of the need for shipping caps. John Taber
testified that as they were working there, there were
generators that had actually gone off in the box and had
melted the plastic heat shield. Eugene Florence told Mark
Gentile following the crash that he worked on 802 and 803
and that there were no shipping caps.
Further, Your Honor, again there are items in the
documents which we have not yet brought out before the jury
but certainly are available for argument and I will now
argue them, if you'll bear with me.
For instance, Your Honor, Eugene Florence signed
an engineering order, which is in evidence, relating to the
oxygen generators in which the item he signed referenced a
particular chapter of the maintenance manual, Chapter 3520.
So, Eugene Florence was representing his knowledge and
appreciation of maintenance manual chapter 3520.
Now, Government Exhibit 104B is Chapter 3520.00.
In fact, that is the only portion of 3520 and therefore it
constitutes 3520.
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37
So Mr. Florence acknowledged appreciation of this
chapter, and this chapter provides further knowledge of the
nature of an oxygen generator. It notes that the generator,
upon initiation, supplies "pure oxygen." It describes how
the generator works. I'm reading from the maintenance
manual selection.
"On initiating the oxygen generator, the firing
pin strikes the primer which fires into and ignites the
enriched starting cone of the sodium chlorate core. As the
core decomposes, pure oxygen is generated and forced through
the filter and into the outlet."
Further quoting, "The mask supplies a mixture of
pure oxygen and ambient air." Further quoting, "Pure oxygen
flows through the oxygen mask reservoir bag within seconds
of such initiation."
Then, the chapter also includes several warnings
that are repeated on the work card, which further gave
Mr. Florence knowledge of the dangers associated with oxygen
generators. It's the same language that the Court read
earlier about Warning: Oxygen generators contain live
ignition trains, when ignited generate housing temperatures
up to 500 degrees Fahrenheit.
THE COURT: Now, when you started in with your
argument on Mr. Florence's knowledge you suggest that he
signed off on something. You've been read from the manual,
TOTAL ACCESSTM COURTROOM REALTIME TRANSCRIPTION
38
the training manual. What is it that he signed off on?
You told me, but I --
MS. MILLER: It's Exhibit 25, and the very first
page is the non-routine work card. This is charged as
Count VI of the indictment.
THE COURT: The non-routine work card.
MS. MILLER: Yes. It's the very first page in
the package. The second page that's got a big tab on it is
the routine work card. This is Count V of the Indictment,
Your Honor, also signed by Eugene Florence.
THE COURT: Let the Marshal hand it to me.
MS. MILLER: Your Honor, the third tab is the
engineering order that Eugene Florence signed where it
said, perform operational checkout per maintenance manual
Chapter 3520. That's where he acknowledged reference to
that maintenance manual.
Finally, Your Honor, at the back of the packet is
tabbed another document that Mr. Florence signed, dated May
5, 1996, in which he signed that he removed all safety caps
from O2 generators after the final drop check. If I may
hand that package to the Court.
THE COURT: Thank you very much. If you'll pause
for just a moment. Thank you.
I have in hand Government Exhibit 25. The first
document appears to be a work card signed May 4, 1996,
TOTAL ACCESSTM COURTROOM REALTIME TRANSCRIPTION
39
allegedly by Mr. Florence, where he states that he removed
and replaced all carbon oxygen generators per ValuJet card
0069. This is what has been referred to as the 802
non-routine work card.
Then the work card itself -- well, then there are
a whole series of documents with part numbers involving
generators, page after page of them. Then the 802 work card
0069 is the same ValuJet MD80 instruction and work card that
we read before, the form part is the same. This one is
dated 5/4/96, and talks -- several warnings are on there
about the live ignition trails, the temperatures up to 500
degrees, use extreme caution, so on and so on.
On that document, Mr. Florence certifies that he
removed the safety caps from the generator primer and
checked the firing mechanism on all the oxygen generators to
make sure they were in cocked position.
Now, the engineering order in Exhibit 25, the
form, what is the significance? I know the signature, but
what is --
MS. MILLER: The significance is Mr. Florence's
signature at the very last line on that page, Your Honor,
where it says -- I might not be quoting it exactly -- but
performed operational check in accordance with maintenance
manual Chapter 35-20. So, the significance of that
document is Mr. Florence's acknowledgment of the provisions
TOTAL ACCESSTM COURTROOM REALTIME TRANSCRIPTION
40
of chapter 35-20, which are the provisions which I have
just gone over with the Court about supplying pure oxygen
and the enriched starting cone.
THE COURT: Then we have the non-routine work
order, 728-H-12-W144.
MS. MILLER: Your Honor, that one does not have
Mr. Florence's signature, although it does have
Mr. Gonzalez's signatures.
THE COURT: Then the non-routine work order for
removal of safety caps from the O2 generators at final drop
down check. This purportedly is signed by Mr. Florence,
and he certifies that he removed all safety caps from O2
generators after final drop check. All right, thank you.
MS. MILLER: Your Honor, if I may take back the
exhibit. That last document, the removal of the safety
caps from the new generators really drives home the
recklessness, the proof of recklessness on the part of
Mr. Florence, because at the same time that -- just a day
earlier, on May 4th, he had lied about shipping caps being
put on the old generators, he never went back and took any
action to use those shipping caps and put them on the old
generators.
As he told Mark Gentile after the crash, there
were no shipping caps on the generators that ended up being
shipped out.
TOTAL ACCESSTM COURTROOM REALTIME TRANSCRIPTION
41
Your Honor, Ms. Moscowitz argued that Eugene
Florence acted in good faith. Legally, I don't believe that
that argument has any place at Rule 29. I think it's more
an argument for the jury. But in any event, Your Honor,
it's truly inapposite because what she is arguing is the
issue of good faith with regard to Mr. Florence's actions in
wrapping lanyards.
This count is not a count saying it was a crime
for him to wrap lanyards. This count is saying that it was
a crime for him to tell a lie; that he lied about putting
shipping caps on. Ms. Moscowitz's good faith argument
simply doesn't address that. It addresses good faith with
regard to something different than the truth or falsity of
his statement.
THE COURT: I think they were suggesting, she and
counsel for SabreTech, that the bad faith and criminal
intent played into the willfulness argument, that is, was
it willful, and the definition of willfulness being that it
was done in bad faith, bad intent to disobey or disregard
the law. They argue that placing oxygen generators on an
aircraft might be a mistake, might be error, but it lacked
criminal intent.
MS. MILLER: Your Honor, that might be an
argument for SabreTech to make, but Mr. Florence is not
charged in that count of -- Count XXIV, of putting oxygen
TOTAL ACCESSTM COURTROOM REALTIME TRANSCRIPTION
42
generators on an aircraft. I think Ms. Moscowitz is making
that argument with regard to the false statement counts and
that does not vitiate a false statement.
In any event, Your Honor, as I noted, it is an
issue for the jury rather than something that is
appropriately entertained at Rule 29.
Your Honor, I would like to move now to the counts
charging SabreTech with willful violation of Title 49,
United States Code, Section 5124.
THE COURT: Is this still under Counts III, IV, V
and VI?
MS. MILLER: No, Your Honor. This is Counts VII,
IX, XI, XIII, XV, XVII, XIX, XXI and XXIII.
A major thrust -- first of all, Your Honor,
counsel has not even disputed the fact that the regulations
cited in those counts were violated. I'll take that back
with regard to Count XXIII. That's a separate issue,
training.
With regard to the other counts, counsel does not
contend nor could they that the regulatory violations
didn't occur. Obviously they occurred. The oxygen
generators were shipped out. They weren't properly marked
and labeled. They exceeded the permissible weight. They
didn't have proper packaging materials, all the things that
those regulations address. Clearly there's evidence of
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43
violation.
Rather, counsel's whole argument is that the
Government has not made a prima facie showing of
willfulness. However, Your Honor, that's not correct.
THE COURT: I just noticed the time. It's 9:21.
Is there any objection to my asking Ms. Kramerman and the
Marshal to go in and excuse the jury for a couple of hours?
MR. MOSCOWITZ: No objection, Your Honor.
MS. RASKIN: No, Your Honor.
MS. MILLER: No, sir.
THE COURT: I've buzzed Ms. Kramerman and as soon
as she arrives I'll ask -- would you go in and ask the jury
to come back at 11:00? Thank you very much. Express our
apologies.
You were talking about Counts VII, IX, XI, XIII,
XV, XIX, and do you want to include XXII?
MS. MILLER: Yes, XVII, XIX, XXI and XXIII, the
odd numbered counts.
THE COURT: All right.
MS. MILLER: First of all, Your Honor, the
defense argues that to prove willfulness the Government
must show that somebody at SabreTech knew of these specific
hazardous materials regulations. Your Honor, that is not
correct.
The case that I called the Court's attention to
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44
last night, a Supreme Court case, makes that quite clear,
United States v. International Minerals. That case makes
the point that when dealing with what they call, I think,
noxious substances, it is enough for the Government to show
that the entity dealing with them knew that the substances
were noxious. That in an of itself suffices to put them on
notice of the need to bring their behavior into conformity.
THE COURT: You are saying now that if the
corporate entity knew that these were hazardous materials,
that's sufficient?
MS. MILLER: Yes, sir, that's correct.
THE COURT: All right.
MS. MILLER: I believe that's right on point with
United States v. International Minerals.
The analogy -- first of all, that case makes the
point that this is the general rule. The general rule, of
course, is that actors are presumed to know the law. There
is no need to show knowledge of specific regulations. The
example they give is, as long as a company knows that it's
dealing with, say -- I think they say hydrochloric acid,
then it's responsible for all the rules that go along with
that.
Now, if in fact they thought that they were
dealing with distilled water and it was actually
hydrochloric acid, then they would not be liable. The
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45
Government must show that they knew that they were dealing
with something hazardous.
Your Honor, the Government has amply proved that
SabreTech, the corporation, knew of the hazardous of these
generators. It knew it from many items of information that
came to many of its employees and that SabreTech is
accountable for as a corporation.
The generators themselves had a warning on them.
This item gets hot. The generators kept going off.
Christopher DiStefano testified to two generators that went
off and initiated in aircraft 830. Robert Rodriguez
testified to one that went off in aircraft 830.
Robert Rodriguez further testified that when they
were doing the clean up of the generators several of them
went off even though, at that stage, the lanyards of many of
them had been tied. John Taber testified that oxygen
generators had gone off in the boxes, melting the plastic
heat shields.
Your Honor, SabreTech also knew of the hazards of
oxygen generators because of its receipt of new oxygen
generators. As you may recall, we had quite a bit of
testimony about the way that new oxygen generators come
packed and labeled. We have in evidence such items as
Government Exhibit 30E, the hazard label that appeared on
the boxes of new generators that Scott Aviation shipped to
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46
SabreTech.
We also have in evidence, Your Honor, Government
Exhibits 48A and 48B, which are photographs of boxes that
new generators had been shipped in that were discovered at
SabreTech following the crash. These photographs were
identified by several mechanics as the way that they saw
these boxes.
You may recall, Your Honor, that I believe it was
Robert Rodriguez who testified that when they were working
with the old generators, taking them out of the insert units
and putting in new generators, they were getting them from
boxes such as these. These boxes, Your Honor, have this
yellow hazard label on them. Although it is taped over in
this photograph, it would not have been taped over when
first received by SabreTech.
In addition, there are other labels on those
photographs. The interior of the boxes, Your Honor, display
the elaborate packing mechanism that further gives notice of
the need for these items to be packed carefully and in
isolation.
THE COURT: What is the exhibit number?
MS. MILLER: This is, Your Honor, 48B. The two
exhibits are 48A and 48B, A being the exterior of the boxes
an B being the interior of the boxes.
In this picture one can see how oxygen
TOTAL ACCESSTM COURTROOM REALTIME TRANSCRIPTION
47
generators -- one can see, just as SabreTech could see, how
oxygen generators are supposed to be packed in these
individual cardboard sleeves. And Mr. Brennan testified
how the generators are not only in these sleeves, they are
rigidly affixed to these sleeves by a plastic shrink wrap
that goes over the cardboard as well.
This is in contrast to the way the mechanics
packed them where they basically just stacked them one on
top of the other with no cardboard separating the
generators one from the other.
Your Honor, further exemplifying the notice to
SabreTech of the hazardous nature of the oxygen generators
is Government Exhibit 49B, which I would like to hand up to
the Court. Your Honor, 49 -- if I may approach the Court or
give it to the Marshal.
THE COURT: Thank you very much.
MS. MILLER: Your Honor, Exhibit 49B came in
through the testimony of Mark Gentile, who testified that
almost immediately after the crash, on May 14, 1996, he
went to Andy Salis, the SabreTech shipping clerk, showed
him that shipping ticket that said "five boxes oxy
canisters empty" and asked, what is this? What does this
refer to?
THE COURT: Who said that?
MS. MILLER: Mark Gentile testified that Salis
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48
said that. Salis was the SabreTech shipping clerk.
Salis immediately had summoned and brought to him
a file that contained this document, Government Exhibit
49A. Government Exhibit 49A is a shipper's declarations of
dangerous goods. It is the shipping ticket that was
accompanying some new generators that had been sent to
SabreTech, thereby evincing Andrew Salis's appreciation of
the fact that the old generators were covered by the
information that appears in this shipper's declaration of
dangerous goods.
Your Honor, this document clearly gave notice to
Salis and to SabreTech of the hazardous nature of oxygen
generators. The document is called a shipper's declaration
of dangerous goods. It's surrounded by a red dash line.
It has the term "dangerous goods" in the text of the
document.
It references the UN number and the hazard class
and the other required information for proper shipment of
oxygen generators and provides further evidence of the
knowledge and appreciation of SabreTech of the hazardous
nature of the oxygen generators.
Indeed, given Mr. Moscowitz's argument, it does
put SabreTech on notice of the several of the regulatory
aspects of these generators, including their UN number,
hazard class and some of the other specified data.
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49
Your Honor, another way in which SabreTech can be
shown to have known the hazardous nature of the oxygen
generators is through the maintenance manuals that it
maintained. These maintenance manual chapters appear in
evidence as Government's Exhibits 104A, 104B, 104C, 104D,
and 104E.
If the Court will bear with me, I will just go
over some of the points that are made in those chapters that
puts SabreTech on notice of the hazardous nature of the
oxygen generators.
THE COURT: Is there a reason you think the Court
won't bear with you, given the fact that I've listened to
you folks for six or eight hours now? You precede every
new introduction of something, if I will bear with you.
I'm just wondering if I have given the impression I am not
bearing with you. It's a friendly question, but I don't
know why.
MS. MILLER: Not at all, Your Honor. Just
yesterday, as I was sitting here, I was thinking it must be
very wearing to get the tides of information from people
and I don't want to wear the Court out.
THE COURT: No, you're not doing that. Go ahead.
MS. MILLER: Government Exhibit 104A, for
instance, is maintenance manual Chapter 3500-00.
THE COURT: These were in the possession of
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50
SabreTech?
MS. MILLER: Yes, Your Honor.
THE COURT: Is that your suggestion, that they
had all of these manuals and therefore they are put on
notice of the hazardous materials?
MS. MILLER: Yes, sir. The Court may recall that
these maintenance manuals were obtained from SabreTech on
August 7, 1996. SabreTech argued that's too remote in time
to associate them with us. The Court ruled that that goes
to weight rather than admissibility and the Government is
entitled to the full probative weight of those maintenance
manuals at this Rule 29 argument.
Government's Exhibit 104A, for instance, provided
that oxygen generators are sodium chlorate oxygen generators
of sufficient capacity to supply oxygen to the mask for a
period of 15 minutes.
Under safety and operation precautions it says,
Warning: Be very careful when you move oxygen generator to
prevent accidental removal of firing pin. Live oxygen
generators contain explosive solid chemicals when generator
is fired. Case temperature can become 500 degrees
Fahrenheit. If generator fires, immediately put generator
on surface that will not burn. Serious injuries can occur
if case is touched.
Then there was some repetition of warnings we have
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51
seen several times before such as, prior to removal of
unexpended oxygen generator install shipping cap over firing
pin to prevent inadvertent initiation of generator.
Warning: On installation of oxygen generator make
sure shipping cap is removed from firing pin prior to
closing oxygen module door.
Here's something that is of particular
significance, Your Honor, this goes to the issue of
hazardous waste. Warning: Oxygen canister contains barium
oxide. Prior to removal of expended oxygen canister make
sure all persons obey all precautions when barium oxide is
used.
The chapter goes on to speak of the hazards of
barium oxide and includes an admonition: Talk with the
local safety department or authorities for the procedures to
discard this hazardous agent. Explicit notice to SabreTech
that this material was a hazard and had to be disposed of as
a hazardous waste, Your Honor.
Then we have a maintenance manual chapter,
Government Exhibit 104B. This is one that I earlier
discussed because this is the one that Eugene Florence also
acknowledged having access in that engineering order.
This is the one that said, upon initiation the
generator supplies pure oxygen. Upon initiating the oxygen
generator, the firing pin strikes the primer which fires
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52
into and ignites the enriched starting cone of the sodium
chlorate core. As the core decomposes pure oxygen is
generated and forced through the filter and into the outlet.
The mask provides a mixture of pure oxygen and
ambient air. Pure oxygen flows through the oxygen mask
reservoir bag within seconds of such initiation. The oxygen
flow rate gradually declines. Again it says, Warning:
Oxygen generators contain live ignition trains and when
ignited generate housing temperatures up to 500 degrees
Fahrenheit.
Your Honor, it is a reasonable inference to make
that a corporation that is in the business of dealing with
oxygen and aircraft in all forms, when it is notified that
it has a device that generates pure oxygen and that is
capable of heating its outer core to 500 degrees, is on
nature of the oxidizing nature of this component and its
capability of enhancing combustion and other materials.
Then, Your Honor, Government Exhibit 104C is
another chapter of the maintenance manual that was found at
SabreTech. This is Chapter 3522-01. It relates to the
removal and installation of chemical oxygen generators.
It has the warning which we have heard several
times about containing live ignition trains. Exercise
extreme caution to prevent inadvertent removal of firing
pin. If generator has not been expended, install shipping
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53
cap on firing pin. Use caution while not to pull oxygen
firing pin while disconnecting lanyards.
Then it has a section, Your Honor, on storing and
disposing of oxygen generators, certainly of great
significance for this case.
It says in that section, "Oxygen generators must
be stored in safe environment. Each unit shall be checked
before placing it in storage to assure that release pin
restraining firing mechanism is correctly installed. All
serviceable and unservivable (unexpended) oxygen generators
are to be stored in an area that insures that each unit is
not exposed to high temperatures or possible damage."
Your Honor, that provision is totally at odds with
the way that SabreTech packaged and shipped these
generators.
The chapter goes on further at item D: "Disposal
of oxygen generator. No oxygen generator is to be disposed
of until it is initiated and chemical core is fully
expended." Then it gives instructions on how to expend.
Notes that during initiation the temperature -- exterior
will reach temperatures in excess of 450 degrees Fahrenheit.
And says, "Area and adjacent surroundings must be free of
oil or other combustible substances that may be hazardous in
an oxygen enriched atmosphere."
Then it goes on to note that an expended oxygen
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generator contains both barium oxide and asbestos fibers and
must be disposed of in accordance with local regulatory
compliances and using authorized procedures. In event
oxygen generator cannot be ignited and expended in normal
means or if user has additional questions they are direct to
contact manufacturer for information.
Your Honor, that constitutes explicit notice to
SabreTech that there are regulatory provisions that must be
complied with in the disposition of these generators.
Finally, Your Honor, at Government Exhibit 104D,
which is Chapter 3522-03 of the maintenance manual, that
chapter again provides the warning that unexpended oxygen
generators in insert units contain live ignition trains and
when activated generate temperatures in excess of 500
degrees.
And further provides, if generator has not been
expended install safety cap over primer. Remove safety cap
from generator primer and check that firing mechanism of the
oxygen generator is in cocked position. Note: Safety cap
must be removed or generator will not fire.
Your Honor, to use the analogy to International
Mining, surely at this point SabreTech knows that it is
dealing with hydrochloric acid and not with distilled water.
It is certainly fair and, indeed, required that when we look
at the corporation, we look at the knowledge that all of its
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agents had. That is the very essence of the corporation, to
compartmentalize the functions, and that
compartmentalization results in the corresponding
accountability by the corporation for the knowledge of its
compartments.
Your Honor, in light of all of these notices,
certainly the shipping ticket that SabreTech provided, which
I'm showing the Court, which is Government's Exhibit 18F1,
is inaccurate and represents willfulness on the part of
SabreTech in shipping these oxygen generators so poorly
identified.
Obviously, there is no hazard class. There are no
UN labels. There are no weights. There is nothing that
indicates that these are dangerous goods. This shipping
ticket meets none of the requirements of the regulations,
and given the knowledge that SabreTech possessed as to the
hazardous nature of oxygen generators, both expended and
unexpended, this constitutes willfulness.
Your Honor, with regard to specifically these
counts, counsel also argued -- sorry, withdrawn.
With regard to the training counts, Your Honor,
they relate to a regulation. Counsel argued that they apply
only to persons who ship for the shipper. On the contrary,
Your Honor, the regulation also includes employees who
handle hazardous materials and bring them within the ambit
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of haz-mat employees.
In any event, Your Honor, this really gets to a
point about Eugene Florence. The work card that was
falsified referred to shipping caps.
Now, we have had a lot of argument from counsel
about how these defendants had no way of knowing and never
dreamed that these items were going to be shipped, yet the
very false statement that they made was that they said that
"shipping caps" had been put on the oxygen generators.
Your Honor, the only case that we really have to
go on -- let me tie this in to the next counts that I'm
going to address. Those are the violations of 49, United
States Code, Section 46312. Those are counts VII, X, XII,
XIV, XVI, XVII, XX and XXII.
Those counts charge SabreTech with acting
willfully, and there is a second prong to the statute
relating to recklessly causing the transportation of
property, in violation of haz-mat regulations, and under
that prong both SabreTech and Mr. Eugene Florence are
charged.
Now, counsel for Mr. Florence argued that he
should not be charged under this count because he did not
contemplate any shipping.
First of all, Your Honor, it is far from clear
that the statute requires that one contemplate shipping in
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order to be liable. He is charged with recklessly causing
the transportation and the very word "recklessly" bespeaks a
callous disregard and a non-knowing circumstance. He must
have the requisite criminal intent, but whether he must
contemplate shipping the Government disputes.
In any event, Your Honor, there is evidence that
he contemplates shipping; the false statement that he made,
of course, with regard to "shipping caps." In the only case
that we have --
THE COURT: Tell me this again. With respect to
the charge against Mr. Florence in these counts, VIII
through XXII, the even numbered counts, what is it that you
suggest that the Government must prove with respect to the
individual?
MS. MILLER: Your Honor, I'm going to reference
our jury instructions, if I might, because we set forth
what we believe are the elements there.
THE COURT: Take your time.
MS. MILLER: What we are proposing as the
elements are that Defendant Florence -- this is at proposed
jury instruction number 24. Defendant Florence can be
found guilty of this offense only if all of the following
facts are proved beyond a reasonable doubt.
First, that the defendant recklessly caused the
transportation in air commerce of property containing
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hazardous material and --
THE COURT: Recklessly caused what now?
MS. MILLER: The transportation in air commerce
of property containing hazardous material; and second, that
the transportation was in violation of a regulation
relating to the transportation of hazardous materials.
THE COURT: All right. Now then, how do you
suggest that the -- what evidence do you suggest in this
case establishes that he recklessly caused this
transportation or reasonably inferred from the facts in the
case?
MS. MILLER: That by falsely certifying that
these oxygen generators had shipping caps on them he acted
at least recklessly and that his actions contributed to and
caused the transportation of these oxygen generators.
THE COURT: All right. Is it Exhibit 25 that you
rely upon to show that he certified that they contained
shipping caps?
MS. MILLER: Yes, sir.
THE COURT: The non-routine work card?
MS. MILLER: Work card 0069.
THE COURT: Okay.
MS. MILLER: I think I took back Exhibit 25. I
think I left you with Exhibit 26. Again, Your Honor, if I
may hand to the Marshal Exhibit 25, and I have opened it to
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that work card.
THE COURT: Now, this certificate, being the 802
work card 0069 purportedly signed by or with a number of
Mr. Florence, certifies 2A through D, the lanyards -- which
part?
MS. MILLER: I think on the first page it's item
B, Your Honor. The first page of the tab, not of the whole
set. Item B, on that page that the Court has opened right
now.
THE COURT: Disconnect firing pin lanyards?
MS. MILLER: No.
THE COURT: B, if generator has not been
expended, install shipping cap on firing pin. You are
suggesting that by signing that, that he caused the
transportation in interstate commerce of hazardous
material.
MS. MILLER: That, Your Honor, and also, I
believe it's the very last page, his certification and -- I
think it's the last page, that it was he who, the very next
day, removed shipping caps from the new oxygen generators.
It was Mr. Florence, Your Honor, more than
anyone, really, who was in a position to make those oxygen
generators safe at that point. He had removed the shipping
caps from the new generators. He did not place them on the
old generators even though he knew that he had just lied
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60
about that the previous day.
Your Honor, what I'm talking about is a work card
that I think is either the very last page or the very last
tab in Government Exhibit 25.
THE COURT: The non-routine work card?
MS. MILLER: Yes. And it says, remove safety
caps from generators following drop test.
THE COURT: Now, by certifying that he had done
that, if the jury should so believe, how does that fulfill
the requirement of proof and burden on the Government to
show that this caused transportation in interstate commerce
of a hazardous material?
MS. MILLER: Because, Your Honor, at that point
the generators had not yet moved to the stores area.
Mr. Rodriguez testified that it was in the days following
that they moved to the stores area.
Mr. Florence had removed the shipping caps, had
the ability to place those shipping caps on the old
generators, did not do so, with the knowledge that he had
just lied about the presence of shipping caps on the old
generators, and that was a critical step in the movement of
these generators in their uncapped stage that culminated in
their placement on ValuJet flight 592.
Again, it was a shipping cap, as stated on the
work cards.
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61
THE COURT: Given the fact that there is some
testimony that some of the workmen, and I'm not sure
whether the defendant Florence was there when this was said
or not, but there is some testimony in here that these
generators were to be dumped, disposed of, the language
that we won't repeat, what would that -- what is the
connection between certifying, let us assume for the moment
falsely that these things had been done, and the
realization or the knowledge that they ended up or could
end up on an airplane?
MS. MILLER: Your Honor, first of all, there is
conflicting testimony as to whether Eugene Florence was
present at that conversation. That was a conversation that
Robert Rodriguez testified about, that Robert Rodriguez
said took place during the clean-up in the last week before
ValuJet flight 592.
Robert Rodriguez testified that that statement
was made while he was working with his whole crew, he
thought also with Eugene Florence. John Taber testified as
to that same clean-up session. Taber acknowledged that he
was there and Rodriguez was there. Rodriguez acknowledged
that Taber was there. They are consistent on that. But
John Taber testified that Eugene Florence was not present
at that time.
In any event, Your Honor, disposition or trashing
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62
of the generators -- I think we remember the term that was
used, it was equivalent to they were going to be trashed --
is not inconsistent with their being shipped. There was
nothing that was said that would lead anyone to believe
that they were not going to be shipped; that they were to
be put in the garbage can, et cetera, et cetera.
THE COURT: Is there anything consistent with the
argument they are going to be shipped? In other words, you
say it is not inconsistent.
MS. MILLER: I think it's neutral, Your Honor.
THE COURT: Well, if it's neutral, then what
would put somebody on notice that that act of labeling
something, assuming for the moment falsely, that that would
cause somebody to later ship these things in interstate
commerce?
MS. MILLER: I think, again, one has to take into
account what it was that the false statement was. It
referenced a shipping cap. And also the fact that Eugene
Florence was the last person in a position to make the
generators safe prior to their further movement.
THE COURT: Now, the testimony in this record, as
argued by counsel, I'm not sure which one, Ms. Moscowitz, I
believe, was that after the labels were put on O2
generators out of date, that the defendant Florence left
the generators for a period of time, perhaps from March
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63
until May, or there about, on a table or in a box near the
airplane or some place near the airplane, and that there's
no connection between Florence's leaving them in a box,
just a jumbled up box there --
Obviously it would be clear that anybody looking
at that box and pile of generators would have to, I think,
assume that they weren't going to be shipped anywhere in
that condition.
Then, when Mr. Salis decided to ship them,
whether it was on instruction by management or not, that
there's no connection between Florence leaving them in a
box piled up there for what may have been over a month, or
may not, I'm unclear on that point, but for a long period
of time, and then piled up there, overflowing, that that
would indicate that there was no intention to ship at all.
It was just sort of a trash bin that they were
putting them in or a storage place that they were putting
them in until they could decide what they were going to do
with them or whatever, and that Florence would have no
connection between that and the actual shipping by
Mr. Salis later on.
MS. MILLER: Well, Your Honor, first of all,
Robert Rodriguez, I believe, did testify that Eugene
Florence was present at this later session. Now, that's
inconsistent --
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64
THE COURT: Later session. Which later session?
MS. MILLER: Robert Rodriguez testified that in
the week after May 4th, sometime between May 4, 1996 and
May 11, 1996, that Jude Casamere, the lead mechanic for the
crew that he was on with Eugene Florence and John Taber and
others, told them, we have to clean this place up. We have
to gather together the loose oxygen generators.
They went on a project of gathering up loose
generators from 803 and from 802. During the course of
that, they put tags on some of them. They put them in
boxes. Robert Rodriguez, I believe, testified that he
thought that Eugene Florence was present.
Frankly, Your Honor, that's my recollection. I
had not checked it last night.
THE COURT: Let's assume that is correct. The
fact that the mechanics all came to clean the place up and
put the stuff in overflowing boxes, as it turned out, where
is there an indication to any of the mechanics doing that,
that these boxes were -- they knew they were going to be
returned to ValuJet because they were ValuJet's property,
according to the record, and they had to be returned to
ValuJet.
But how would anybody know or be charged with the
knowledge that this was going to be then shipped in air
transport?
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65
MS. MILLER: First of all, Your Honor, I
mentioned it not specifically for that point, but because
you were asking me about Ms. Moscowitz's point that he had
nothing to do with the old oxygen generators since March.
And there was testimony --
THE COURT: Of course. They were all involved
throughout. But basically the false statement, now, that
he made, the question is whether or not that fulfills the
requirement of the charge to the jury and the element that
you must prove of recklessly causing transportation in
interstate commerce of hazardous materials.
All right. Now then, Florence is charged in each
of these counts, VII through XXII, the even counts, along
with SabreTech. On Counts VII through XXIII is SabreTech
alone? Just help me out.
MS. MILLER: Yes, that's right, Your Honor.
THE COURT: All right. Now then, and I don't
mean to interrupt your train of thought, but while I'm on
this train of thought, are the elements of the offense of
the even numbered counts, VIII through XXII, with respect
to SabreTech, are they the same elements, that SabreTech
recklessly caused transportation in interstate commerce of
hazardous materials; and two, that the transportation was
in violation of regulations, or is there additional ones?
MS. MILLER: Your Honor, SabreTech is charge with
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66
two means of committing that violation.
THE COURT: First of all, they are charged in all
of these counts.
MS. MILLER: Yes, sir.
THE COURT: And they have these two elements, the
same two elements?
MS. MILLER: What I was referring to is the
statute provides two ways in which the count can be
violated. They are charged with both of them. One is the
same --
THE COURT: Excuse me. Pardon me. What must the
Government show? Let's assume I'm charging the jury. What
am I going to tell the jury about Counts VIII through XXII
with respect to the burden of proof upon the Government to
prove the following elements?
I think I'm going to tell them that the
defendant, SabreTech and Florence, or whatever, recklessly
caused transportation in interstate commerce of hazardous
materials in air transport.
MS. MILLER: Your Honor, our proposed instruction
for SabreTech, the essential elements for SabreTech are,
first, that the defendant SabreTech either:
A, willfully delivered or caused to be delivered
property containing hazardous material to an air carrier or
to an operator of a civil aircraft for transportation in
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67
air commerce, as agreed to unanimously by you, the jury or;
B, recklessly caused the transportation in air
commerce of property containing hazardous material, as
agreed to unanimously by you, the jury; and that such
action was in violation of the regulations related to the
transportation of hazardous material, as alleged in the
Indictment.
THE COURT: So, the elements of Florence are
slightly different than the elements for SabreTech.
MS. MILLER: That's correct, Your Honor. And for
SabreTech, SabreTech can be convicted on just the
recklessly caused prong, just like Eugene Florence.
We also have alleged willfully delivering and
causing to be delivered property containing haz-mat, in
violation of the regulations. For the same reasons that
willfulness is clearly established with regard to SabreTech
for the odd numbered counts, willfulness is also
established for SabreTech with regard to the even numbered
counts.
THE COURT: Are the actions of Florence in Counts
VIII through XXII essential to the Government's proof of
the elements regarding SabreTech on the same counts?
What I'm getting at is, it appears to me there is
a different set of operative facts that go into the
elements that the Government has to prove. One is, you are
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68
suggesting that with respect to SabreTech you may prove --
or you have satisfied your burden if you prove that
SabreTech willfully delivered or caused to be delivered the
materials.
The delivery by SabreTech could be, I suppose,
considered to be the actions of Mr. Salis and these other
people.
MS. MILLER: Yes, sir.
THE COURT: Whereas with Florence it was
recklessly caused transportation, and the contributory
negligence or operative fact there would be whether or not
he falsely signed or certified to, if that should be the
decision that he did that, whether or not that was -- you
have suggested it was a key element and a key step, but
whether or not it meets the burden of showing recklessly
causing transportation might be a different thing.
I'm just talking out loud. I'm not asking for
comment.
MS. MILLER: Your Honor, I think we have thrashed
that one out.
Your Honor, that leaves us with one more count to
address.
THE COURT: It's 10:06. We have been sitting
here since 8:00. Why don't we take a brief recess.
Mr. Raskin has been shifting back and forth over there. As
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69
you know from your own lives, little boys get edgy more
than little girls. I know that from my granddaughter and
grandson.
So, let's give Mr. Raskin a break. We will take
a brief recess at this point.
[There was a short recess].
COURTROOM DEPUTY: All rise. Court is in
session.
THE COURT: Thank you. Be seated, please.
Ms. Miller.
MS. MILLER: Yes, sir, just one last thing about
these counts on Mr. Florence on Section 46312, those even
numbered counts.
The Government would also point out that
Mr. Florence is charged as an aider and abettor in those
counts as well as directly, and we submit that that is
supported by, again, the reference of the shipping caps in
the work card, and that puts him in the same position as
somebody who might fill the shipping box although claiming
no knowledge that it was going to go on in the shipment.
THE COURT: Thank you.
MS. MILLER: Your Honor, with regard to Count
XXIII, I mentioned that this regulatory count was the only
one as to which SabreTech made a specific argument
challenging the application of the actual regulation.
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70
What they changed was, they said that the
Government had to prove that SabreTech knew that it was a
haz-mat employer. Your Honor, there is no support for that
proposition. It's really another form of the argument that
the Government has to prove that the defense knows of the
individual regulations, which we submit is incorrect.
What the Government has to show is that -- the
willfulness of the defendant SabreTech and that willfulness
is made out by SabreTech's appreciation that its employees
were handling and shipping hazardous materials and had not
received hazardous materials training.
Your Honor, the defenses' premises that somehow
only those who know of regulations can be prosecuted for
their willful violation is, when you think about, it is
really quite perverse. What we would end up with is that
only people like Mr. Brennan, who are actually in the
business of handling oxygen generators, can be prosecuted
for willfully mishandling of them. Certainly the law does
not require that.
THE COURT: 23 deals with training, right, and it
charges SabreTech with failing to train its employees?
MS. MILLER: Yes, sir. And we had testimony from
numerous employees that they had not been trained with
regard to hazardous materials; that they had not been
trained with regard to handling oxygen generators.
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I believe Mr. Rodriguez also testified that
SabreTech had not even inquired as to previous training of
his.
THE COURT: Let me turn back just for a moment.
The defense argued, of course, that Section 5124, which is
charged in the odd numbered counts, and 46 -- Section
46312, charged in the even numbered counts, dealt with the
requirement, according to the defenses' interpretation, of
those sections. Can you hear me all right?
MS. MILLER: Yes, sir.
THE COURT: That their vicarious liability was
dependent upon evidence in the record that an employee was
liable. That is the question. This sort of gets back to
where we were before the recess.
The defense says that SabreTech -- Mr. Norman
Moscowitz for SabreTech argued that if you don't find an
employee liable under Section 46312, that you can't find --
if there's not enough evidence to go to the jury with
respect to the employee's liability, that you then cannot
find -- you cannot submit SabreTech's liability to the jury
on the even numbered counts involving Section 46312.
It gets a little involved, but what is your
position?
MS. MILLER: We don't agree with that position at
all, Your Honor. A corporation is comprised of many
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72
actors. To look to a corporation's liability it is
appropriate to look to all the actors and what any actor
knows, the corporation knows.
Counsel made an effort to characterize this notion
of collective knowledge, which is reflected in the Bank of
New England case. They kept saying, well, it's never been
accepted in the Eleventh Circuit, suggesting that it had
somehow been criticized in the Eleventh Circuit.
Your Honor, that doctrine has been universally
accepted wherever it had been dealt with. Counsel cited no
cases adverse to it. I'm not aware of the Eleventh Circuit
having addressed it one way or the other. The Eleventh
Circuit case that SabreTech cited had nothing to do with
that doctrine. It is a sound doctrine and, indeed, it's the
only doctrine that makes sense in light of the nature of a
corporate employer.
In that regard, Your Honor, I would call the
Court's attention to a case and a decision by Judge Fay. It
was not on collective knowledge per se, but I think it's
illuminating in terms of corporate responsibility.
THE COURT: You've gotten to the opinions I read.
I read all of his opinions. That should create havoc in
the Eleventh Circuit when you get there, if you ever do.
What can I say? The truth is the truth. I read them all.
I try to read them all. I read his with more interest than
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others because we get to argue about them over lunch.
MS. MILLER: Well, I hope you wouldn't argue with
this one, Your Honor.
THE COURT: What does Judge Fay say?
MS. MILLER: It's U.S. v. Hartley, 678 F.2d, 961,
Eleventh Circuit, 1982. He was discussing a different
issue of corporate liability. It's not the same issue of
corporate liability we have, but he has some general
language that I think is applicable here.
He speaks of the "underlying purpose that led to
the creation of the fiction of corporate personification.
It originated to broaden the scope of corporate
responsibility. We will not use it to shield individuals
or corporations from criminal liability."
That principle is really at play here.
Corporations benefit from collectivity, from aggregating
the actions and knowledge of all of their employees and
agents in order to accomplish their ends. They must be
similarly and complimentarily held accountable for that
same collectivity.
That is the simple principle in the Bank of New
England case which we cited in our memorandum. It is very
well illustrated here, Your Honor. For instance, with
regard to the 46312 counts, we have been discussing what is
it that Eugene Florence knew. But certainly SabreTech knew
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many more things than we can show that Eugene Florence
knew.
SabreTech knew, because Andrew Salis was
SabreTech's agent, that the oxygen generators were being
shipped. SabreTech knew that the oxygen generators had all
of the features that were described in those maintenance
manual chapters that I read, including the barium oxide
being a hazardous waste.
SabreTech knew of the -- the way that the
shipping ticket was labeled, that it was saying empty oxy
canisters. SabreTech knew of the shipper's declaration of
dangerous goods, Government Exhibit 49A, which I previously
have given to the Court. So certainly SabreTech's
knowledge is a composite of all the things that its
employees and agents knew.
THE COURT: Now, they sharpen it down to focus
on, and therefore make the statement that unless SabreTech
knew that oxygen canisters were or constituted hazardous
material, that they then had no duty to train. That was
their submission.
Do you perceive the statute to be that focused or
that narrow that it focuses on a requirement that the
Government prove that they knew a canister was or
constitutes hazardous material? And if you do feel that
that is a requirement on the Government, then, do you feel
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that has been established in this record?
MS. MILLER: For Count XXIII, what they had to
know, Your Honor, is that their employees were handling and
shipping hazardous materials. For the same reasons that we
elaborated earlier that they understood that what they were
dealing with were hazardous materials, all of that evidence
also applies to Count XXIII.
The maintenance manual provisions, the fact that
the oxygen generators had initiated melting plastic on
their premises, the fact that oxygen generators were
initiating in the airplanes as they tried to clean them up,
the fact of the shipper's declaration of dangerous goods
that explicitly referenced the hazard class, the UN
identification number.
The maintenance manual provisions that told them
that oxygen canisters -- and they use the term canisters
and generators in the maintenance manual -- that they
contained barium oxide which was hazardous, all of those
facts provide an ample basis for a jury to conclude that
SabreTech knew that its employees were handling and
shipping hazardous materials.
THE COURT: What about Count XXIV?
MS. MILLER: First of all, Your Honor, with
regard to Count XXIV, counsel repeatedly referred to this
as one involving an explosive device. The statute actually
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refers to destructive device and I believe that was just a
misstatement by counsel.
In any event, SabreTech was on notice of both
explosive and flammable properties of the oxygen
generators. The maintenance manual refers to such, refers
to the term "explosive." We also had Defense Exhibit -- I
forget the number, but it was that Bureau of Explosives
letter that defined oxygen generators as a flammable solid.
Mr. Fogg also testified --
THE COURT: Excuse me. I don't mean to interrupt
you, but before you get to that, you are saying that the
defense focused on explosive material. Well, that's the
Indictment -- that's part of the Indictment, is it not?
The Indictment says, oxygen generators, this is Count XXIV,
"Paragraph 51, oxygen generators are and contain flammable
material, explosive substance and matter of a combustible
and explosive nature." Then you go on with the charge.
Now, I presume that that is what counsel picked
up on and was arguing in their support of their motion,
that you had to prove that it was an explosive substance.
MS. MILLER: That may be, Your Honor.
THE COURT: That's just the defense point of
view. I'm not -- I'm asking you to comment on it.
MS. MILLER: I was just concerned that -- the
statute itself and the gravamen language is with regard to
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a destructive device, and explosive is one way in which a
device can be destructive. We have alleged that.
THE COURT: You have alleged that. Have you --
their issue at this point is, have you proven it with such
clarity as to go to the jury under the standard that we
take it in the light most favorable to the Government?
Does this record bear that out?
MS. MILLER: Yes, Your Honor. Government Exhibit
104A --
THE COURT: What is 104A?
MS. MILLER: Maintenance manual chapter 3500-00.
THE COURT: Okay.
MS. MILLER: Live oxygen generators contain
explosive solid chemicals.
THE COURT: Let me go back to one more question I
have on this. Now then, the argument is that -- the charge
is that SabreTech knowingly and willfully caused ValuJet
aircraft N 904VJ to be made unworkable and unstable and
hazardous to work with and used, so that placing and
causing to be placed and making and causing to be made --
and such making and causing to be made will likely to
endanger the safety of ValuJet aircraft 940 -- N 904 VJ.
Basically, that would charge SabreTech with
knowingly and willfully placing the generators on the
aircraft knowing it would cause the aircraft to become
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unworkable. Then they argue this explosive device, which
you have already answered.
The defense argument is that this was done with
bad purpose and bad intent to disobey and disregard the law
and that there's no evidence that SabreTech put the
generator on the plane knowing it would cause the plane to
be unworkable and crash.
Salis, they argue, is the only employee of
SabreTech involved and he did not place it on with bad
intent to cause the destruction or unworkability. They say
that the Government has to establish and prove that.
That just sort of summarizes their argument which,
of course, you already know, but what is your possession?
MS. MILLER: First of all, Your Honor, I think
their argument was even broader than that. They continue
to insist that the Government has to prove intent to damage
or destroy the aircraft. I've written a legal memorandum
about this that counsel just seems not to address at all.
It is explicit in the statute that this provision
of the statute does not require intent to damage, destroy
or disable the aircraft. That intent is a provision of a
different provision of the statute which we have not
charged.
If that were not clear enough, Congress has
explicitly spoken to this point in the legislative history
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that I cited which says, "The new provision" -- which is
our provision that we have charged -- "does not contain the
requirement that the proscribed act be done with intent to
damage or disable the aircraft, a requirement of current
law."
So they changed the law to remove it.
"Rather, it requires only that the placing of the
destructive device or substance in such a location where,
if the device explodes, it is likely to damage or destroy
the aircraft or any part of other materials used with it."
The omission of the intent element is necessary
to avoid a requirement of proof of those offenses which
would be greater than that required by the Montreal
convention."
Your Honor, in my memorandum I gave the citation
from that. It's a particular Senate report when this
statute was revised to include this provision.
So counsel are simply wrong when they insist that
it is an essential element that the Government prove intent
to damage the aircraft. What the Government has to prove,
as stated in that legislative history, is the placing of
the device in such a location where, if it explodes, it is
likely to damage or destroy the aircraft or any other part
or materials used with it.
That is certainly --
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THE COURT: How do we overcome, in dealing with
it conceptually -- how do you overcome, I should say, the
proposition that it was the ValuJet employees who literally
placed this in cargo hold number 1, and that it was not a
SabreTech employee that placed it there? What is your
theory with respect to that?
MS. MILLER: Your Honor, I think that Title 18,
United States Code, Section 2 would cover that. That's the
aiding and abetting statute which also includes causing and
says, one who causes an act to be done is liable for that
act.
If that were not enough, Your Honor, this statute
itself has its own causing provision. The language of the
statute is, whoever willfully places or causes to be placed
a destructive device or substance in, upon, or in proximity
to, and clearly SabreTech intended for that and took steps
to ensure that that cargo would be placed on the ValuJet
flight.
We had the testimony from Mr. Perez that Andrew
Salis wanted him to take it out on Friday, the 10th. He
couldn't take it out until Friday, the 11th. We had the
testimony of Christopher Ramkissoon that there was
conversation with Perez and the SabreTech driver in which
they talked about, well, if it can't go out on this flight,
it will go out on the next flight.
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Further, Your Honor, the shipping ticket itself,
which is Government Exhibit 18F1, says, "Ship to ValuJet
Airlines, Concourse C, Gate 28, Hartsfield Airport,
Atlanta, Georgia." This was SabreTech's shipping ticket.
It brought the devices to the ValuJet ramp and clearly
intended them to be placed on that airplane and caused them
to be placed on that airplane, as called for by that
statute.
In short, Your Honor, the Government has provided
evidence that fully supports this count. There is no
ambiguity with regard to the intent that is required. It is
not intended to damage the aircraft. There's evidence of
the explosive nature. There's evidence of the flammable
nature. There's evidence that, in fact, these devices did
act in a destructive way.
The testimony and the legitimately certified
expert opinions of Mr. Fogg provide the jury with the basis
so to conclude.
Finally, Your Honor, counsel argued that there
were no crimes by SabreTech that led to the generators being
placed on the aircraft. That, of course, is not correct.
The failure to mark and to placard these hazardous
materials certainly caused them to be placed on the
aircraft. Even Dennis Segurra, the man who was in the belly
of the cargo hold, testified that he knew hazardous
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materials labels. Had those labels been placed on these
boxes they never would have gone on that aircraft, and it
was SabreTech that caused them to be shipped in this totally
inadequate and perilous fashion.
Your Honor, that concludes the Government's
presentation. We submit that all elements of all offenses
have been established and that the motion for directed
verdict pursuant to Federal Rule of Criminal Procedure 29
should be denied.
THE COURT: All right. Now then, as briefly as
you can, Mr. Moscowitz.
MR. MOSCOWITZ: Your Honor, I will be brief. Let
me work backwards.
Your Honor, with regard to the last count, I'm
not making the argument that Ms. Miller claims I'm making,
that this requires a separate requirement that it has to be
shown that the defendant intended to destroy the aircraft.
My only argument is that there is a requirement
under the statute that willful -- knowing and willfull
placing a destructive device on the aircraft and also
willfully making and causing the aircraft to be made
unworkable. That, I believe, is not an element which
requires resort to legislative intent.
What does it mean to willfully place a
destructive device on an aircraft? What does it mean to
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willfully make and cause it to be made unworkable? This is
not a question of transferred willful intent. This is
specifically willfully doing that with regard to a
destructive device.
I was thinking of an example. What if somebody
was given a quantity of a controlled substance, let's say a
package of marijuana, and he wanted to take it on an
aircraft. He knew that it was illegal to take it on an
aircraft, so he didn't declare it, but in fact contained in
that marijuana was an explosive device that someone else
had given him, and it was discovered that he had willfully
taken this object on the aircraft but wasn't aware that it
was an explosive device.
Now, he willfully engaged in an unlawful act, but
he did not willfully take an explosive on the aircraft.
Clearly there has to be willfully as being in terms of
taking a destructive device on the aircraft.
Now the larger point, Your Honor, that I did want
to address briefly, and I think we want to brief this in
connection with the jury instructions, is the Government's
view of SabreTech's liability as a corporation for the acts
of its employees. We started with the premise, which we
think is clear, well settled law that a corporation is
vicariously liable if any of its employees violate the law
and commit an offense. That simply is the standard law.
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The Government is now proposing what I really
think is a very radical departure from settled law in
reliance on a single case, Bank of New England, which is a
First Circuit case, which is not widely accepted and not
widely followed and has never been cited, even referred to
in this circuit.
In this circuit there have been numerous
corporations convicted of crimes and the issue has not
emerged in a single case involving that, and I submit that
is because that law is not accepted in this circuit.
This concept of Bank of New England, Your Honor,
which the Government proposes, first of all, as argued here
is an extension even of Bank of New England. In the Bank of
New England case, Your Honor, the Court accepted a
collective knowledge theory, but premised on showing that
there the bank had intentionally compartmentalized the
knowledge so that to avoid anyone personally knowing the
facts. It really was a deliberate ignorance theory.
Here, the Government is arguing not deliberate
willful ignorance on behalf of this corporation, which makes
that justifiable. We are simply arguing, you can take
whatever knowledge, innocent knowledge in various places and
aggregate it. That just goes way beyond any settled
exception notion of what corporate liability is.
A corporation is, after all, a legal fixture.
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It's a business. It's an entity composed of individuals
interest. A corporation certainly has no sole, but it has
no mind. It can't form intent of its own. Just like there
are individuals who are incapable of violating the law
because they are incapable of forming requisite intent, a
corporation similarly cannot form an intent. It only has
whatever willful bad intent individuals within it has.
The Government's proposal seems to really go
beyond that. Philosophically, I won't get into it now, we
agree corporations should be held accountable for their
wrongs. Congress could have passed a statute holding this
corporation -- the corporation liable for transport under
these statutes without a willfulness requirement. And had
it done so, then the corporation could be found liable,
found strictly liable on the basis of evidence, but not
under a statute which requires a willfulness finding.
I think we will need, Your Honor, to brief this
further, but the Government's theory is not supported by the
law.
I think, though, it is instructive that the
Government relies so heavily on this theory because that's
the only way they can make the argument that there's a
sufficient knowledge or intent because they can't point to
any individual who has the requisite knowledge and the
requisite willful intent to violate any of these statutes,
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and we think we have shown that.
One further point, Your Honor. The Supreme Court
case the Government relies on, United States v.
International Chemical, which says that there's no specific
requirement showing knowledge of the regulations, that
crime, Your Honor, under which that -- in which the crime
there is charged is not a specific intent crime. It is
simply a general intent statute.
The Government is clearly right there where, if
this were a general intent crime, willfulness is not
required, there would be no requirement to show knowledge of
the regulations. But the law throughout the United States
and in this circuit is quite clear that for a specific
intent crime there must be a showing of knowledge of the
regulations.
We relied on United States v. Davis, 583 F.2nd,
190, Fifth Circuit, 1978, which was a case under the Arms
Control Act involving the export of a sawed-off shotgun,
where the Court instruct that everyone is presumed to know
what the law requires. The Fifth Circuit reversed saying,
this is a specific intent crime. With regard to a specific
intent offense where willfulness is required, ignorance of
the law is a defense.
There must be a showing that, in this case
particularly, the defendant was aware that a sawed-off
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shotgun is on the United States admissions list and requires
an export license. Specifically there the Court
distinguished this statute from, for example, firearms
statutes which make it illegal to possess a sawed-off
shotgun where there is no knowledge requirement of the
regulations.
Since then, the Eleventh Circuit, in a variety of
similar cases, has also held that a specific intent crime
involving violation of regulations is a requirement of
showing the defendant is specifically aware of the
regulations.
For example, the United States -- I'll just rely
on a decision out of this district. United States v.
Zevallos, Z-E-V-A-L-L-O-S, 748 F.Supp 1569, a case decided
by Judge Nesbitt, which is a trading with the enemy act case
which relies on a whole line of Eleventh Circuit cases in a
variety of contexts holding that knowledge of the
regulations is required where a willful offense is charged.
Your Honor, going back to the argument relating to
Mr. Gonzalez on Count II with regard to the Aserca work
card, I believe the Government did not accurately state the
testimony. Again, as we cited the testimony yesterday of
Mr. DiStefano, he doesn't say that Mr. Gonzalez comes into
the work booth with the card signed which he had previously
seen an hour and a half ago.
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His testimony was not that he had seen this card
before in the work booth when Mr. Gonzalez left. His
testimony was the first time he saw this card was in
Mr. Gonzalez's office on Mr. Gonzalez's desk when he,
DiStefano, was looking into the office from the outside.
That's the first time he sees it.
THE COURT: Didn't he testify, one of them, that
Mr. Gonzalez came in, took a group of work cards out and as
is his normal practice to hand them out, nothing wrong with
that, took them and put them under his arm, went out and
handed some out. Then later he saw it on the desk in the
work room and then later saw it back in the work room
signed? That's not your recollection?
MR. MOSCOWITZ: Your Honor, Ms. Miller had asked
him specifically when the first time was that he,
DiStefano, saw the de-icer work card, and he said the first
time he have saw it was after he left the booth when he saw
it on Mr. Gonzalez's desk.
THE COURT: Okay.
MR. MOSCOWITZ: So there's no claim that this is
the same card that had been taken out an hour and a half
before.
Now, the second critical point, which I think is
important, that DiStefano testified that this was the first
day the aircraft was in the hangar.
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THE COURT: Right. They brought it in and they
cleaned it up outside before they brought it in because
there was a lot of stuff they had to do outside before they
really started tearing it apart.
MR. MOSCOWITZ: That's right. On the direct he
said the first day in the hangar, making it sound as though
work had not yet begun. But then he later testified that
before it was going to the hangar, when it was in this
pre-dock test, that's when a lot of these tests are done.
So, that destroys an inference to his own
testimony that work could not have been done before that
date. Thank you, Your Honor.
THE COURT: All right. Yes, Mr. Dunlap?
MR. DUNLAP: Your Honor, I understand that
opening statements are not evidence, but I would like to
briefly restate, the Government thought it important enough
to make the following statement in opening argument.
Mr. DiStefano will testify that the work, that is
on the de-icing, anti-icing work card R 45904, had not been
done previously and that the work was not done. Ms. Heck
said that the Government would prove that the work on R
45904 had not been done. Mr. DiStefano will testify that
previously, that is, prior to the argument inside the work
booth, that the work had not been done. That's at the
transcript of November 16, Volume 1 at Page 97.
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That is really the singular most important point
I would like to stress with respect to Count II. The
Government has not shown by any evidence that the work was
not done. Mr. Quan testified that he could not say that
none of the work cards had not been filled out at the time
of the argument.
"Question: Do you at this time have any
recollection whether any of those cards -- other cards were
already filled out or not?
"Answer: No."
That's at the transcript of November 17th at Page
178.
Now, Ms. Heck has stated that Mr. DiStefano
testified in her argument to you here in opposition to our
request for acquittal pursuant to Federal Rule of Criminal
Procedure 29, that Mr. DiStefano stated that no work had
been done on the aircraft prior to the fight. His exact
testimony was about what he told assembled people at a
morning meeting about what his new organizational approach
to paperwork would be.
"Question: -- this is at Page 212, Your Honor, of
the transcript of November 17th.
"Question: At the meeting, did you discuss a time
table for when this would happen? And this is the
reorganization of the paperwork.
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"Answer: Yes, just merely that it would start the
day we started working on the aircraft, which would be the
first day I started handing out the paperwork."
This is what he said at that meeting he expected
would happen.
Now, he also testified, as Mr. Moscowitz pointed
out, that the first step in the induction of a plane at
SabreTech is that operational checks are done before the
plane comes in the hangar, while the plane is just out on
the ramp. Before you can bring it into the hangar you have
to do an engine run debrief and that is a normal part of the
induction of an aircraft.
He also testified that at 7:20, at the time of
this argument with Mr. Gonzalez, it had already come into
the hangar. Work had already been done on the aircraft. At
no place in Mr. DiStefano's testimony does he say that work
had not been done prior to the fight on work card R 45904,
and no work could have been done.
He does not testify to that essential critical
fundamental fact in order to prove that Mr. Gonzalez's
signature on that work card constitutes false statements
under 18 U.S.C., Section 1001, no evidence of that.
Similarly, as Mr. Moscowitz pointed out, he does
not even say that he sees the work card R 45904 taken out of
the work booth by Mr. Gonzalez. He first sees it on the day
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of the argument on Mr. Gonzalez's desk, first sees it then.
Doesn't identify it as one of the documents Mr. Gonzalez
leaves the work booth with.
As the Court noted, the testimony on those
documents is that they were handed to the mechanics and they
took those documents in a perfectly normal way and went
about their work.
Also, Mr. Drechsler testified, another Government
witness, that a pre-dock is the first portion of an aircraft
inspection and that the work to be done on R 45904 is
preferred to be done at that pre-dock because, like many of
the other pre-dock tests, it determines functional
discrepancies in the plane's components. That's located,
Your Honor, at Pages 99 and 100 of the transcript of
November 18th.
Again, Mr. Drechsler testified that those
components need to be tested, and here it is the pressure
switches, the system low and system high for the anti-ice
system need to be tested so that if they are defective they
can be immediately sent out for repair and back in time for
the release of the aircraft.
Now, in summary, all of this evidence shows that
there is a complete dearth of evidence to establish that the
work was not done, and there is ample affirmative evidence
from the Government's own witnesses to show that the work
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was done. There is no statement by Mr. DiStefano that I
know the work was not done before the fight and it could not
have been done. There is only the inference that the jury
could draw possibly that the work may not have been done.
Now, where you have countervailing witnesses
saying one thing and another thing, I think the Court is
correct, the evidence must be considered in the light most
favorable to the Government and the jury is free to believe
one witness over another.
In that vein, the Court talked to Mr. Moscowitz
about the conflicting testimony of Mr. Quan and
Mr. DiStefano about which work card it was that ultimately
was placed on the desk in the box.
But here, Mr. DiStefano's testimony is, at best,
totally equivocal. He just says that I saw the work card on
Mr. Gonzalez's desk and it was placed on a box by him on a
table later on.
Now, Ms. Heck, in her argument, I think
unreasonably characterized the argument with Mr. DiStefano
as a loud lesson, I think that was her opening statement, or
a demonstration that anybody who came up with any new system
would be dealt with harshly. There's no basis in the record
to support that.
Ms. Heck expect or hoped to show, this in her
opening statement, lots of opinion testimony or state of
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mind testimony from Mr. DiStefano about why the work system
or the paperwork system that was in place was conducive to
falsifying paperwork.
Now, that evidence was, I believe, correctly
disallowed by the Court, not admissible. It's not in this
record. The inference that she is asking to draw is, I
think, not one that a reasonable finder of fact could
possibly draw. The only reasonable inference is that there
was a fight, a dispute over the organization of paperwork.
Nothing more, nothing less.
It's certainly fair to characterize something that
may otherwise be a normal business procedure, whether it's
pressure or an argument, in the complete context of the
totality of facts in existence in a case. But on the other
hand, we have to be fair when all of the facts, Your Honor,
on a singular point are totally equivocal. I respectfully
submit that a judgment of acquittal is called for.
Your Honor, I've given you my view on Count I.
Count I, obviously, also depends fundamentally on overt act
A, which is the Aserca facts. Absent the -- I mean with the
Aserca facts, there is no agreement, no conspiracy
whatsoever. And certainly Ms. Heck, in her argument, has
shown absolutely no evidence that Mr. Gonzalez joined with
or conspired with anyone on or about May 4th to falsely sign
any cards for the ValuJet aircraft.
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Again, the totality of the evidence is that
Mr. Gonzalez simply said, we need to get these work cards
signed after the mechanics said, we are leaving. We are not
reading them right now. Mr. Taber, on cross-examination,
said, no, nobody ever told me to sign cards without reading
them. Signing documents is an integral part of my job and I
never took Mr. Gonzalez's statements to be anything other
than let's get the work done.
Finally, Your Honor, with response to
Mr. Brigham's comments with respect to the jurisdiction, he
characterized my argument as being based on a special
provision in the regulations. The provision I made
reference to repeatedly is not a special provision. It is
the provision through which all the other regs flow and
through which they are created. That is the provision that
provides for the FAA to register an aircraft.
All of the provisions Mr. Brigham refers to flow
solely so the FAA can exercise the power that it's been
given, and that is to monitor and to audit and to register
FAA aircraft. The maintenance of records in a repair
station, the certification of repair stations, comes into
existence solely so the FAA can pursue its mandate of
monitoring these records.
Mr. Brigham makes a reference to broad language in
these ancillary provisions to the code dealing with the
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creation of a framework so that the FAA can fulfill its
mandate of monitoring these U.S. aircraft. But the fact
remains that jurisdiction, as articulated in U.S. v. Rogers,
depends on the power of an agency to take action.
In this instance, the Government has offered no
case law, no administrative decision, nothing whatsoever,
Your Honor, to support its claim that the FAA has power to
act, power to act with respect to the documents, the work
cards at U.S. air stations for foreign aircraft.
This, obviously, the Court understands, is an area
where the Government has searched far and wide. The reason
there is this absence of proof here or the absence of
evidence is there's no jurisdiction. They have never acted
in this capacity. They don't take action against U.S. air
stations for anything having to do with foreign aircraft.
No history of this whatsoever. There is no jurisdiction.
For that reason, I would also argue that Count II
of Rule 29 -- of the Indictment should be dismissed alone on
that basis, and also overt act A of Count I should be
stricken and taken from the jury. Thank you.
THE COURT: Count II and count what?
MR. DUNLAP: Count two, Your Honor, and overt act
A of Count I, at a minimum, should be dismissed.
THE COURT: All right. Thank you.
Ms. Moscowitz.
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MS. MOSCOWITZ: Your Honor, I always end up in
this last position so I'm only going to say two things.
One is, the evidence is clear that Mr. Salis did
not rely on anything Mr. Florence certified to. We have
been using the word "certified."
One of the facts that we haven't discussed is
this idea that somehow not having the shipping caps changed
the character of the material. These items were hazardous
materials shipping caps or no. There is nothing that
Mr. Florence did that converted them into or out of
hazardous materials.
He is simply unrelated to the independent
decision by Mr. Salis to ship, to transport, to cause the
transportation of the used oxygen generators.
THE COURT: All right. At the outset of my
ruling on the respective motions that have been made on
these 24 counts of this Indictment let me make it perfectly
clear that nothing that I -- that no ruling that I'm now
about to make pertains to the fugitive Mauro Valenzuela.
He is not entitled to any consideration of any
aspect of any phase of his case as it may be since he is a
fugitive. When he is returned or comes back, then he will
get every consideration.
So, therefore, since Valenzuela is named in Counts
III, VIII, X, XII, XIV, XVI, XVIII, XX and XXII, these
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98
rulings have not applicability to him.
With respect to Count I, the conspiracy count
charging all defendants, including Valenzuela to whom this
really does not apply, the motion for a Rule 29 directed
verdict of acquittal at this point is denied.
With respect to Count II of the Indictment
charging only the defendant Daniel Gonzalez, the Court
reserves ruling on the Rule 29 motion for directed verdict
of acquittal until a subsequent time in the case.
With respect to -- going back for a moment. With
respect to Count II, the Court -- and as to any other place
that it may be applicable in these 23 counts, the Court does
find as a matter of law that the work that was being done on
the Aserca airplanes at the repair station operate by the
defendant SabreTech, Incorporated in Miami, Florida, does
fall within the jurisdiction of the FAA and the Department
of Transportation. So this Court does have jurisdiction
under Part 145 of the FAA regulations.
This would also pertain, this ruling, to those
other counts, being III, IV, V and VI.
The Court finds further that the allegations in
Counts III and IV and V and VI, although one of those series
pertains to Valenzuela, and that would be -- Counts III and
IV pertain to Valenzuela. Count III, SabreTech and
Valenzuela are charged. Count IV, SabreTech and Valenzuela
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are charged. Count V, SabreTech and Florence are charges
Count VI, SabreTech and Florence.
With respect to those counts, the Court finds that
they are not multiplicitous and rejects the argument of
counsel for the defense upon the multiplicity aspect of
those counts.
I note that this has been ruled upon heretofore by
the Magistrate Judge and by this Court. However, I have
reconsidered the matter in consideration of the arguments
submitted yesterday and today on these counts and make that
determination.
With respect to knowledge, the Court concludes
that the Government has established at this juncture with
sufficiency to mandate denial of the Rule 29 motions on
Counts III, IV, V and VI that Florence and Gonzalez had
knowledge of the dangerous aspect of these oxygen canisters.
MR. DUNLAP: Your Honor, I believe the Court
meant to say Valenzuela and not Gonzalez had knowledge --
THE COURT: Well -- yes, Valenzuela. Pardon me.
Thank you, Mr. Dunlap.
Now, with respect to whether or not SabreTech had
explicit notice or knowledge of the dangerous propensity of
the oxygen generators and the necessity to affix the safety
caps and the necessity to dispose of the oxygen generators,
even the expended oxygen generators properly, I think that
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the International Mining case and the other authorities
cited by the Government cover that matter.
And the Court so finds that they had explicit
knowledge and had a duty to store them in a safe place, if
it was shipped, to ship properly, and to dispose of them in
an appropriate manner, label them, and specifically, that
SabreTech clearly had notice of the hazardous material that
they were involved with.
The Court finds that the SabreTech employees who
filled out the information on the shipping ticket and the
other labels when these materials were shipped did not
comply with the regulations.
These rulings are based upon the fact of whether
or not these issues should go to the jury on these matters.
They overlap somewhat into the instructions that will be
given, but that's the finding of the Court with respect to
that.
With respect to Count XXIII, whereas only
SabreTech is charged with failing to train employees
regarding hazardous material, the issue is whether or not
there's enough evidence in the record to go to the jury
respecting the issue of whether or not SabreTech knew that
these oxygen generators were hazardous.
The Court finds that clearly there is sufficient
evidence in the record to have put SabreTech on notice that
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they were dealing with hazardous materials, therefore they
had an obligation to train employees in handling and
shipping of hazardous materials. Therefore, the defense
motions with respect to Count XXIII are denied.
With respect to Count XXIV, the Court is persuaded
had by the authorities and argument of counsel for the
Government that an airline or an entity, a corporation that
causes to be placed upon an aircraft hazardous materials can
be found guilty if the jury so believes the testimony of the
witnesses on their credibility, that there is sufficient
evidence in this record and that the airline -- or SabreTech
can or a corporation in the place of SabreTech could be
found guilty even though they may not have had or did not
have the intent, did not have the intent to damage or
destroy the aircraft.
It is sufficient for the Government to prove,
under Count XXIV, that they caused to be placed on an
aircraft or intended for to be placed on an aircraft in
interstate transportation hazardous materials that then can
be, upon proof of that, sufficient facts. The Court finds
there are sufficient facts here to go to the jury on that
issue. They can be found liable under that statute.
Therefore, the motion is denied.
Here, it is noted that it is quite clear that
ValuJet instructed their employees to take the oxygen
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102
containers to the ValuJet airplane at Miami International
Airport with the clear intent for them to be loaded on the
airplane traveling in interstate commerce. They all knew
this was hazardous material and they failed to follow the
regulations.
Now then, going back to Counts VII, IX, XI, XIII,
XV, XIX, XXI and XXIII, where SabreTech alone is charged, I
believe that my last finding covers this, but it is clear
that SabreTech knew these were hazardous materials and that
they did not follow the regulations as required on the
evidence in the record thus far.
So, the SabreTech motions with respect to those
counts just named, the several motions being the same are
hereby denied. That's with respect to Counts VII through
XXIII where SabreTech alone is charged.
Now, with respect to Counts VIII, X, XII, XIV,
XVI, XVIII, XX and XXII, there are three defendants named.
The three defendants are SabreTech, Mr. Florence and
Valenzuela. I've already dealt with Valenzuela.
With respect to the defendant Eugene Florence, the
Court is persuaded that that motion is appropriate and
proper and should be granted. So, with respect to the
Defendant Florence on Counts VIII -- the even numbered
Counts VIII through XXII, the motion is granted, with the
finding that the evidence on these counts in this record, in
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103
the judgment of the Court, does not meet the standard of
proof required even when taken in the light most favorable
to the Government to permit a jury to find that Florence
recklessly caused hazardous materials to be shipped.
The evidence is clear, and I've discussed it
during your argument, that by making what the jury could
conclude were false statements regarding the hazardous
material and the shipping caps does not link up to the
requisite proof necessary for the elements of recklessly
causing transportation in interstate commerce of hazardous
materials.
Now then, with respect to Counts III and IV
charging SabreTech and Valenzuela, I have ruled on those
denying the motions.
On V and VI charging SabreTech and Florence, I may
have covered that. Let's see. Those motions with respect
to SabreTech and Florence are denied.
With respect to the generalized motion made by all
counsel renewing all motions heretofore made either at the
pre-trial level or thereafter, those motions, the Court
makes the same rulings that it made earlier on the
evidentiary matters and/or the other legal matters presented
either to the Magistrate or to this Court.
The record should be clear that counsel have
timely made a renewal of all those motions so as to
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104
eliminate any doubt that they have a right to raise any
rulings therein that are adverse to their respective clients
on appeal should it become necessary.
With respect to that, unless counsel can recollect
anything that I've missed in these 60, 70 rulings, that's
it. Yes?
MS. MILLER: Your Honor, you announced your
ruling with regard to Counts VIII through XXII with regard
to Eugene Florence. You did not announce a ruling on those
counts with regard to SabreTech.
THE COURT: With respect to SabreTech, the motion
is denied for the reasons that I have stated.
MS. MILLER: Thank you.
THE COURT: It is now 11:38. We told the jury to
come back at 11:00. What is your pleasure? Do you want to
try to go forward with a little evidence or do you want to
wait until after lunch?
MR. RASKIN: Your Honor, on behalf of the
defense, we have a couple of brief witnesses that we can
put on or wait, whatever the Court's pleasure.
THE COURT: What do you think we should do?
MR. RASKIN: Given the jury has come back
specifically to hear some evidence, perhaps we should give
them a half hour worth of evidence.
THE COURT: That is fine with me.
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105 HETTINGER - Direct
MS. MILLER: Your Honor, if I might just step out
for a second while they are coming in.
THE COURT: Mr. Moscowitz, do you have something?
MR. MOSCOWITZ: Your Honor, the first witness is
on crutches. I was wondering if you would like to have her
in the box when the jury comes in.
THE COURT: Perhaps. If it's convenient with
her, she can start coming in now.
Bring in the jury, please.
[The jury returns to the courtroom].
THE COURT: Thank you. Be seated, please.
Ladies and gentlemen, we are sorry we have held
you up this morning, but we are now ready to proceed with
testimony for the defense. Mr. Raskin will proceed on
behalf of SabreTech.
First we will have the witness sworn. She may
remain seated.
THE WITNESS: Pamela Hettinger,
H-e-t-t-i-n-g-e-r.
PAMELA HETTINGER, DEFENDANT'S WITNESS, SWORN.
DIRECT EXAMINATION
BY MR. RASKIN:
Q. Ms. Hettinger, where do you reside?
A. In Prospect, Kentucky. It's a suburb of Louisville.
Q. What do you do for a living?
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106 HETTINGER - Direct
A. I work for my husband and he is a producer of corporate
shows for sales meetings and things like that.
Q. Do you work full-time for him?
A. Yes.
Q. I refer your attention to the morning of May 11, 1996.
Where were you and what were you doing?
A. We were getting ready to go on a cruise and we were
boarding a flight out of Louisville to Atlanta.
Q. On what airline was that?
A. ValuJet.
Q. The plane landed in Atlanta?
A. Yes, and then we got on the plane in Atlanta for Miami,
was our destination. That's where we picked up the cruise
ship.
Q. What was that flight number, if you recall?
A. 591.
Q. Do you recall the time that you got on flight 591 on
May 11th?
A. No.
Q. Was it in the morning, afternoon?
A. Mid morning.
Q. Were you alone or with someone else?
A. My husband and I.
Q. Do you recall whether or not the flight boarded on
time?
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107 HETTINGER - Direct
A. Yes. Yes.
Q. It did board on time?
A. Yes.
Q. Did anything unusual happen during the boarding and
take-off process?
MS. MILLER: Objection, Your Honor, to
foundation.
THE COURT: Let's establish if there was a
conversation; and if so, who was present, where it was and
so on.
BY MR. RASKIN:
Q. Where was your seat on that flight, Ms. Hettinger?
A. We were on the left-hand side, looking toward the
cockpit, second row. I was in the window seat.
Q. When you say "second row," was there a first class
cabin or was it all coach?
A. It was all coach.
Q. You were in the second row?
A. Yes.
Q. From where you sat, what could you see?
A. Well, I could see the galley where the flight
attendants work.
Q. Did there come a time when the plane pushed back to
take off?
A. Yes. We did it three different times, actually. We
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108 HETTINGER - Direct
backed up and then everything would shut down, the lights
and everything and the engines, and then they would push us
back up. That happened three different times.
Q. When you were pushed back or went back to the gate, did
you see anybody come on board?
MS. MILLER: Your Honor, objection to vagueness.
There have been three push backs. Could we clarify which
one we are talking about?
BY MR. RASKIN:
Q. Let's start with the first one. After the first push
back, did you see anybody come on board?
A. Yes.
Q. Who would that be?
A. It was a mechanic. He would come on with something in
his hands and he would pull the panels from the floor and
the wall. There were wires in the panels on the wall that I
could see and he was working in that area, in the galley
area.
Q. That was the first time; is that correct?
A. Yes.
Q. Did there come a time that he left?
A. Well, he would get off the plane when we would push
back again.
Q. Then, what happened the second time?
A. Same thing.
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109 HETTINGER - Direct
Q. Would you describe again what --
A. Well, he would come back on and, you know, I could see
him come on. I could see his legs and I could see the
panel. I couldn't see exactly what he was doing, but he was
doing something in that area.
Q. When you pushed back the second time, did the same
thing occur as the first time?
A. Exactly.
Q. What was that?
A. Well, all of the lights and the engines would shut
down. Then we would go back in again.
Q. When you say the lights, what lights are you referring
to?
A. Well, like the interior lights of the plane, the lights
that come on with the seat belts.
Q. Was it all the lights?
A. Yes.
Q. Was there a third time that you pulled back and
returned?
A. Yes.
Q. Tell us about that, please.
A. Well, the same thing took place again. At that time
they came on and they said that we would get going, but the
pilot needed to fill out some paperwork, and that's how it
was explained to us, why there was so many.
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110 HETTINGER - Direct
Q. When you pulled back the third time, what, if anything,
happened?
A. Then the lights went out. It was the exact same thing.
The mechanic still got back on.
Q. Did he work on the panel?
A. Yes.
Q. Did there come a time that you pulled back and the
plane took off?
A. Yes. Yes.
Q. Tell us about the flight from Atlanta to Miami. Was it
eventful or uneventful?
MS. MILLER: Objection, Your Honor, to the
foundation.
THE COURT: Well, she can describe what she saw.
If she gets into a conversation, she'll have to tell us a
little more.
Are you asking her what happened on the flight,
what did she see? Is that the question?
MR. RASKIN: Yes.
THE COURT: Overruled.
THE WITNESS: The flight was very uneventful
until we got to probably about 10,000 feet, because I've
sky dived before and I remember looking down. It was the
Everglades and I knew they were making their final
approach. That's when all the lights in the whole plane
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111 HETTINGER - Direct
went out, the lights above, all the interior lights went
out.
The flight attendant went to pick up the mike and
it wasn't working, and they looked at each other. There
were two of them up front and they looked at each other and
it kind of gave me a weird feeling, and then she told the
other one to get the bull horn. So she got the bull horn
out of the closet so she could tell the people at the back
of the plane to put their seat belts on because they
couldn't use the P.A. system.
BY MR. RASKIN:
Q. Were there any lights on at that time?
A. No.
Q. Did the lights, if you recall, come back on during the
remainder of that flight?
A. No. No.
Q. What did you notice concerning the condition of that
plane otherwise?
A. Well, where I was sitting, I was sitting in a window
seat and there was a seam close to the window. It was all
put together with duct tape. The seam was all duct taped,
all around my window was duct taped. I didn't really notice
across from -- you know, it was just over there by my seat.
That's all I really paid attention to.
MR. RASKIN: I have no further questions of this
TOTAL ACCESSTM COURTROOM REALTIME TRANSCRIPTION
112 Hettinger - Cross
witness, Your Honor.
THE COURT: Cross-examination.
CROSS EXAMINATION
BY MS. HECK MILLER:
Q. Good morning, Ms. Hettinger.
A. Good morning.
Q. Ms. Hettinger, you don't know of your own knowledge
what the source of these problems were, do you?
A. No.
Q. And you don't know what repairative or other action the
mechanic took, do you?
A. No.
Q. You don't know what corrective action may have been
taken in Miami after you got off the plane, do you?
A. No, I don't.
Q. You were interviewed by the NTSB and recounted this
information to them, did you not, Ms. Hettinger?
A. Yes.
MS. MILLER: I have no other questions for this
witness.
THE COURT: Redirect?
MR. RASKIN: None, Your Honor. Thank you.
THE COURT: Thank you, Ms. Hettinger. You may
step down.
Do you have another witness?
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113 FORMAN - Direct
MR. RASKIN: I do. Mr. Forman.
THE WITNESS: Donald Forman, F-o-r-m-a-n.
DONALD C. FORMAN, DEFENDANT'S WITNESS, SWORN.
DIRECT EXAMINATION
BY MR. RASKIN:
Q. Sir, where do you live?
A. I live in a little town called Puyallup, Washington.
Q. How long have you lived in that town?
A. 56 years.
Q. You may have to spell that for the court reporter.
A. P-u-y-a-l-l-u-p.
Q. Mr. Forman, are you currently employed?
A. No, sir. I am a retired boiler maker.
Q. How long were you a boiler maker, sir?
A. 35 years.
Q. Where were you employed?
A. All over the west coast, up and down the State of
Washington, Oregon, and California.
Q. Prior to becoming a boiler maker, were you employed in
any other capacity?
A. I worked for a while at the Boeing Aircraft Company in
Seattle, Washington for a short period.
Q. What did you do for Boeing?
A. I was what they called a jig builder. We built small
jig drill templates for the 727 series aircraft.
TOTAL ACCESSTM COURTROOM REALTIME TRANSCRIPTION
114 FORMAN - Direct
Q. Did you have any part-time employment during your
contrary?
A. Yes. I spent 21 years as a police reserve director and
supervisor for a little town called Fife, that's spelled
F-i-f-e, just outside of Seattle. It was a volunteer force.
I spent 21 years there.
Q. I refer your attention, sir, to the morning of May 11,
1996. Where were you and what were you doing?
A. I was in the Atlanta airport headed for Miami to catch
a cruise line, and I was flying ValuJet from Atlanta to
Miami.
Q. Were you alone or with someone else?
A. No, I had a friend with me that flew with me.
Q. What flight number did you board in Atlanta on May 11,
1996?
A. Flight 591.
Q. Where were you sitting on flight 591?
A. In the first row starboard side, or right side, seat
1D, I believe it was.
Q. From where you were sitting in the first row, what
could you see ahead of you?
A. Of course, I was looking right in the door of the
cockpit and I could see right to the captain's chair.
Q. You could see right into the cockpit?
A. Right into the cockpit.
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115 FORMAN - Direct
Q. Sir, do you travel often?
A. I did for many years. I've flown pretty close to a
million miles over 17 years as a business manager.
Q. While you were awaiting takeoff, can you tell this jury
what you saw, what happened?
A. Yes. We were sitting, like I said, my partner and I
were in seats 1D and E, which gave me a full view of the
cockpit area. His was a little bit blocked because of the
wall there. There was a long time we sat at the -- what do
you call it, where they roll out the gate there. We sat at
the gate for quite a while.
I noticed in the cockpit I could see the captain's
steering wheel and the dashboard and I saw the light above
the captain's steering wheel. It's referred to as a go, no
go light, and the light was on. I believe that all the
discussion that took place was about this go, no go light.
MS. MILLER: Your Honor, objection to the
discussion.
BY MR. RASKIN:
Q. Don't tell us about what anyone said to you, but you
certainly can tell us about what you saw.
A. You misunderstood me. I saw the light. What they were
discussing, it doesn't matter, but I saw the go, no go light
on the dash and my partner and I commented on it.
Q. What does it mean when that light is on?
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116 FORMAN - Direct
MS. MILLER: Objection, Your Honor.
THE COURT: Establish that he knows.
BY MR. RASKIN:
Q. Do you know what that light means?
A. I absolutely do.
Q. What does it mean?
THE COURT: Pardon me. Mr. Forman, tell the jury
how you have information or knowledge about the light you
described.
THE WITNESS: It's on the panel, it's called a
go, no go light. It's installed in there for the purpose,
if there's a problem with that panel --
THE COURT: How do you know that?
THE WITNESS: Working at the aircraft plant in
the 1960s, they were installed at that time.
THE COURT: You've actually installed these
lights?
THE WITNESS: No, sir, but I know what they
represent.
THE COURT: Overruled. You may answer the
question. You may wish to rephrase it.
BY MR. RASKIN:
Q. Please tell the jury what a go, no go light is?
A. It's a light on the dashboard that simply tells the
Captain, hey, look in your panel, there's something wrong,
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117 FORMAN - Direct
don't take off.
Q. Did there come a time that the plane pushed back?
A. Yes. It pushed back and we started to go out to the
runway. We were back probably a couple of hundred yards
from the gate. The plane stopped, proceeded to put back in
forward and it pulled right back up to the gate.
Q. Did anything unusual happen when you pulled back?
A. When we left, they unplugged the shore power and all
the lights dimmed and everything. The air conditioner
stopped, the little nozzles up at the top.
Q. Talk to the jury, sir.
A. The nozzle on the top that you turn for the air, the
air stopped coming out of there. As we pulled up and
stopped at the gate and plugged back in, then the lights
come up and air conditioner worked.
Q. What happened then?
A. There were some people that come aboard and they were,
evidently, technicians or something. They started to work
in the cockpit area and we spent quite a bit of time there.
Like I said, I keep looking into the cockpit and as they
went in and out this light never did go off.
We were there probably 15, 20 minutes, I believe
it was, and we backed out a second time. The second time
out we got about the same place. When we backed out they
unplugged and the lights went down. The air-conditioning
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118 FORMAN - Direct
went off out and backed up and she pulled it back into the
gate again. Again, they plugged it back in. Some power
came back up. The air-conditioning came back on and they
rolled the gate up to her again and on come these people and
again --
Q. When you say "these people" who are you referring to?
A. I presume they were ground technicians. I don't know
who they were, but they had blue coveralls on and stuff like
that.
Q. Did they have any tools or equipment with them?
A. In the pocket type tools, pliers, screw drivers, stuff
like that. Not an actual case that I saw.
Q. Did you see what they were working on?
A. I couldn't see exactly what they were working on, but
they would go into the cockpit area. When they were in
there I could still see this light and this go, no go light
was still on on that aircraft. I presume that they were
working to try to get that light to go out.
Q. How many times did this plane pull in and out before
you ultimately took off?
A. I believe the third time we backed out, they unplugged,
power went down, the air conditioner went down and we sat on
the tarmac for 20 to 30 minutes there. I believe there were
some people that came on. We had pulled back up to the gate
again and some people come back on that plane again.
TOTAL ACCESSTM COURTROOM REALTIME TRANSCRIPTION
119 FORMAN - Direct
Eventually they left and we took off.
Q. Was the door to the cabin open or closed before you
took off?
A. It was open and this light had never gone out that I
know of.
Q. Is it your testimony that the plane took off with that
light on?
A. That's my testimony. When that door closed that light
was not out. When that door closed for us to take off that
light was still on.
Q. Can you tell us about the flight from Atlanta to Miami?
A. Well, as many miles as I've flown, a lot of things you
tend to brush off as wind shear, rough air and so forth, but
about 45 minutes into the flight, maybe a little longer, the
plane took a hard left bank to the port side. It was quite
hard, unusually hard. I had commented to my partner, boy,
that was weird.
MS. MILLER: Objection.
THE COURT: As to what he said he may tell the
jury. Not what the partner said to him. Go ahead and tell
the jury what you said.
THE WITNESS: Anyhow, the Captain pulled the
plane back around, banked it back to the right, leveled it
out and we went on and landed. The landing was not a
smooth landing, but I wouldn't call it a real rough landing
TOTAL ACCESSTM COURTROOM REALTIME TRANSCRIPTION
120 FORMAN - Cross
either. We got up to the gate and that was about it.
BY MR. RASKIN:
Q. Tell us about whether or not -- did anything occur with
reference to the electrical system during the course of the
flight?
A. Yes. The lights were coming dim and bright, dim and
light. They never did come to full light like this. The
air conditioning never came on. The speaker system, she
used a megaphone to speak to us, to show us the safety
procedures. The two little gals had to talk through this
megaphone rather than through the speaker system because
there was no speaker system whatsoever.
I don't believe the lights ever came up to full
power. They were dim ninety percent of the time. I had
some concerns because as many times as I have flown --
MS. MILLER: Objection, Your Honor.
THE COURT: Mr. Raskin, next question.
MR. RASKIN: I have no further questions of this
witness, Your Honor.
THE COURT: Cross.
CROSS EXAMINATION
BY MS. HECK MILLER:
Q. Mr. Forman, you're not saying that the cockpit door was
open during the flight, are you?
A. No.
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121 FORMAN - Cross
Q. And in fact, the cockpit door closed before you flew,
did it not?
A. Not until we were on the runway.
Q. Did the cockpit door close before you took off?
A. Yes, ma'am.
Q. Now, all the work that you were able to observe the
mechanics doing was in the cockpit area; is that correct?
A. Yes, ma'am.
Q. Mr. Forman, you don't know what, if any, work was done
after the plane got to Miami, do you?
A. No, ma'am.
Q. Mr. Forman, of course, you have not examined any
physical items from the wreckage of this flight 592, have
you?
A. No, ma'am.
MS. MILLER: I have no further questions of this
witness.
MR. RASKIN: No questions, Your Honor.
THE COURT: Thank you, Mr. Forman. You may step
down.
Is this a convenient time to recess?
MR. RASKIN: Yes, Your Honor.
THE COURT: Ladies and gentlemen, we thank you
for your patience. We now should go on rather smoothly
with the jury.
TOTAL ACCESSTM COURTROOM REALTIME TRANSCRIPTION
122 FORMAN - Cross
So you will understand, we did go into the
evening a little bit last evening and we were here this
morning at 8:00, so we were not wasting your time. I just
did not anticipate the proper time to bring you back.
That's my fault, not the lawyers' fault.
We are about to recess for the noon recess.
Please remember the instruction not to discuss the case with
anyone, not to permit anyone to have any contact or
communication with you. Please don't talk to any of the
parties, lawyers or witnesses or anybody.
Be careful going down the hall to lunch that you
don't accidently run into someone and make some comment. We
would have to have a big hearing on that and let's try to
avoid that if we can. If there's anything in newspaper, on
television, the radio don't watch it or listen to it and we
will resume this afternoon at 1:30.
Marshal, will you see that they get to the
elevator, please. Thank you.
[The jury leaves the courtroom].
THE COURT: All right. Thank you. Be seated.
Where are we procedurally now, Mr. Raskin?
MR. RASKIN: We have several other witnesses this
afternoon ready to go at 1:30, Your Honor.
THE COURT: Do you anticipate utilizing the rest
of the day with presentation of evidence at this point?
TOTAL ACCESSTM COURTROOM REALTIME TRANSCRIPTION
123 PEREYRA - Direct
You are not held to it.
MR. RASKIN: I know, Your Honor. Probably, but
we are readjusting as we go.
THE COURT: All right. 1:30 this afternoon.
MR. RASKIN: Thank you, sir.
[There was a luncheon recess].
AFTERNOON SESSION
1:30 P.M.
COURTROOM DEPUTY: All rise. The Honorable Judge
James Lawrence King presiding.
THE COURT: Thank you. Be seated, please. Call
your next witness.
MR. RASKIN: The defense calls Fernando Pereyra.
COURTROOM DEPUTY: State your full name, spelling
your last name for the record.
THE WITNESS: My last name is Pereyra,
P-e-r-e-y-r-a.
COURTROOM DEPUTY: First name.
THE WITNESS: Fernando.
FERNANDO PEREYRA, DEFENDANT'S WITNESS, SWORN.
DIRECT EXAMINATION
BY MR. RASKIN:
Q. Mr. Pereyra, where do you reside?
A. I reside in Phoenix, Arizona.
Q. How long have you resided in Phoenix?
TOTAL ACCESSTM COURTROOM REALTIME TRANSCRIPTION
124 PEREYRA - Direct
A. About two years.
Q. Are you employed?
A. Yes, I am.
Q. Would you tell the jury what you do for a living?
A. I am the Director of Sales for a company called
Aviation Management Systems in Phoenix, which repairs and
maintains aircraft.
Q. Have you been in the aviation industry -- how long have
you been in the aviation industry?
A. Almost 31 years.
Q. Can you describe to the jury your background?
A. I'll be glad to. I began as an licensed airframe and
power plant mechanic in 1969 with a company called Western
Airlines, progressed and maintained aircraft as a mechanic
for seven and a half years, until I received my degree in
aeronautics, then transferred to headquarters in Los
Angeles, and after 16 years, left Western Airlines as a
Director of Tech Services. Went to work for McDonnell
Douglas, the builder of McDonnell Douglas aircraft for about
five and a half years.
Then I went to a company called Lockheed, where a
new maintenance center for Boeing 747 aircraft were being
developed, and I worked there as a Manager of Planning and
Production Control for two years.
Then I later was employed by a company called
TOTAL ACCESSTM COURTROOM REALTIME TRANSCRIPTION
125 PEREYRA - Direct
Matrix Aeronautica in Mexico. I was asked to open and
operate the maintenance and planning department there. I
did that for two and a half years. Shortly thereafter, I
went to work for DynAir Tech in Florida.
Q. What year was that, sir?
A. That was in 1995.
Q. What was your title when you worked for DynAir Tech?
A. My title was Director of Marketing.
Q. Did you have any other function at DynAir Tech?
A. As far as marketing is concerned, that was the
function, the job that went with that function was marketing
sales contracts proposals and customer service.
Q. Would that have included customer complaints as well?
A. Yes, it would.
Q. Did there come a time that DynAir Tech changed its
name?
A. Yes, it did.
Q. When was that, do you recall?
A. I believe it was in 1995. I believe it was.
Q. What was that name change?
A. It became SabreTech.
Q. Referring your attention to the fall of 1995, do you
recall whether DynAir Tech did business with a company
called Aserca Airlines?
A. Yes, we did.
TOTAL ACCESSTM COURTROOM REALTIME TRANSCRIPTION
126 PEREYRA - Direct
Q. What is Aserca Airlines?
A. Aserca is a Venezuelan registered airline with a
Venezuelan registered aircraft.
Q. What did you do concerning the Aserca airline
negotiations?
A. My task as Director of Marketing was to seek that
business, develop a contract, a proposal and, indeed, see
that the airplane would come to the facility for the work.
Q. What was the subject matter of your negotiations with
Aserca?
A. All of the subject matter centered around what the
terms and conditions would be for the contract, the proposal
and it also dealt heavily in the financial terms by which
the contract would be executed.
Q. How many planes were you negotiating over?
A. We were negotiating primarily one at a time. There
were to be three to four aircraft.
Q. Do you recall any of the specifics of the contract
negotiations with Aserca?
A. About the only specifics that come to mind that's
significant, I think, would be lengthy discussions regarding
payment terms.
Q. Who did you have those discussions with?
A. With Mr. Jesus Mora.
Q. Who is Mr. Mora?
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127 PEREYRA - Direct
A. Mr. Mora was the Vice President of Maintenance for the
airline.
Q. Did DynAir Tech ultimately reach agreement to service
one or more Aserca planes?
A. Yes, we did.
Q. Do you know an individual by the name of William
Drechsler?
A. Yes, I do.
Q. Who is Mr. Drechsler?
A. Mr. Drechsler was the technical representative for
Aserca.
Q. Did you have an opportunity to observe and speak with
him during the Aserca maintenance time period?
A. Yes, I did.
Q. Was Mr. Drechsler present during the entire period that
these planes were being serviced by DynAir Tech?
MS. MILLER: Objection, Your Honor. Leading.
THE COURT: Overruled.
BY MR. RASKIN:
Q. You may answer.
A. He was not there all the time.
Q. Do you know where Mr. Drechsler lived?
A. I believe it was Minneapolis.
Q. Do you know where Mr. Drechsler was when he wasn't at
the DynAir Tech or SabreTech facility?
TOTAL ACCESSTM COURTROOM REALTIME TRANSCRIPTION
128 PEREYRA - Direct
A. Likely --
MS. MILLER: Objection.
MR. RASKIN: Only if you know.
THE COURT: Yes or no, do you know where he
lived?
A. No, I'm not sure.
BY MR. RASKIN:
Q. Okay. Did his absence from the SabreTech facility
cause a problem with the maintenance of the Aserca aircraft?
MS. MILLER: Objection, Your Honor. Relevance.
THE COURT: Well, it's relevant so I would have
to overrule that, but it does call for an opinion.
MS. MILLER: Objection on that ground, Your
Honor.
THE COURT: So are you tendering him as an expert
witness, or not? Otherwise, you can elicit facts from him
as to what took place, day by day.
MR. RASKIN: That's fine, Your Honor.
BY MR. RASKIN:
Q. Sir, at a time when Mr. Drechsler was not present, did
you do anything in response to that fact?
A. Yes, because the representative is required to be
present so he can approve --
MS. MILLER: Objection, Your Honor. Move to
strike the answer as not responsive. The question was,
TOTAL ACCESSTM COURTROOM REALTIME TRANSCRIPTION
129 PEREYRA - Direct
"did he do anything"?
BY THE COURT:
Q. All right. When a problem would come up from time to
time, -- first of all, did problems come up?
A. Yes, they did, sir.
Q. What did you do about that when you couldn't find
Mr. Drechsler?
A. I notified Mr. Mora that there was a problem with lack
of representation and, therefore, a problem with the
progress of the airplane.
BY MR. RASKIN:
Q. How did you notify Mr. Mora, orally or in writing?
A. I wrote him a letter.
Q. What did you tell him, do you recall?
A. Basically, that --
MS. MILLER: Objection.
THE COURT: I suppose the letter would be the
best evidence. Do you have a copy of it?
MR. RASKIN: I do. May I approach the witness?
THE COURT: Yes.
BY MR. RASKIN:
Q. Sir, I show you what has been pre-marked Defendant's
Exhibit 26 for identification. Do you recognize that
document?
A. Yes, I do.
TOTAL ACCESSTM COURTROOM REALTIME TRANSCRIPTION
130 PEREYRA - Direct
Q. Whose signature is on that document?
A. My signature.
Q. Tell the jury what that document is?
A. It's a letter addressing aircraft Y. V. 720-C in
reference to the C-Check at our facility.
MR. RASKIN: Don't read it. Your Honor, I move
it into evidence at this time.
MS. MILLER: No objection.
THE COURT: The document is admitted into
evidence as Defendant SabreTech's 26.
[Defense Exhibit 26 received in evidence].
BY MR. RASKIN:
Q. Sir, it's short. Can you read that to the jury?
A. I'll be glad to.
"Dear Mr. Mora: Regarding the referenced aircraft
currently undergoing a C-Check at our facility, the
following requires your immediate attention".
MS. MOSCOWITZ: Is that microphone on? Because I
can't hear, and I'm very --
THE WITNESS: Hello. Am I too far?
THE COURT: Well, if counsel is having trouble,
you know, the jury is. There's a difference of about ten
yards or so.
THE WITNESS: Okay. Shall I start over?
MS. MOSCOWITZ: Do you mind?
TOTAL ACCESSTM COURTROOM REALTIME TRANSCRIPTION
131 PEREYRA - Direct
THE WITNESS: No.
"Dear Mr. Mora: Regarding the referenced aircraft
currently undergoing a C-Check at our facility, the
following requires your immediate attention:
a) We have had no Aserca representative since the
induction of the aircraft. This is now affecting the
programs scheduled.
b) We have completed ninety-five percent of the
routine C-Check requirements. Initial inspection will
be completed today, December 27, 1995.
c) We have generated over 350 non-routine items
requiring Aserca representative disposition. We have
numerous items which require parts procurement.
d) We are beginning to reduce crew sizes for your
aircraft due to lack of work. Personnel assigned to
your aircraft are being reassigned to other projects or
are being sent home.
Jesus, we urgently need a representative here.
The aircraft schedule is already impacted and will
continue to suffer until action is taken. Please
advise as to what actions we should take.
Best regards."
BY MR. RASKIN:
Q. Sir, why was it necessary for SabreTech to have a
technical representative on site?
TOTAL ACCESSTM COURTROOM REALTIME TRANSCRIPTION
132 PEREYRA - Direct
MS. MILLER: Objection, Your Honor. Calls for an
opinion.
THE COURT: Do you wish him to be qualified as an
expert or are you tendering him as an expert, or what?
MR. RASKIN: Yes, Your Honor, based on his
extensive aviation background in maintenance facilities
around the country.
THE COURT: Does the government have any voir
dire questions?
MS. MILLER: Not voir dire, but I object to this
as an area of expertise.
THE COURT: The expertise is in. What do you
suggest, Mr. Raskin?
MR. RASKIN: In the necessity to have a technical
representative on site during the course of a maintenance
operation.
THE COURT: All right. So his expertise would be
that of a person involved with maintenance of these types
of aircraft, and knowledge about whether who was necessary
to fulfill the contract which he negotiated or something.
I suppose that's it.
MS. MILLER: Your Honor, I do object to that as
an area of expertise. It's only a veiled way of allowing
Mr. Pereyra to testify as to his side of the business --
THE COURT: Well, let's try it, at this point at
TOTAL ACCESSTM COURTROOM REALTIME TRANSCRIPTION
133 PEREYRA - Direct
least, with having him tell the jury what problems, if any,
arose and then what happened thereafter. If there was a
delay or not delay, whatever took place. So at this point,
we will sustain the objection, without prejudice to renew
it if it becomes necessary in some field of expertise.
It's pretty straight-forward factual.
BY MR. RASKIN:
Q. What problems were occasioned by Mr. Drechsler's
absence?
A. The problems were lack of approval from the
representative from Aserca to proceed with the new items
found as a result of the inspection of the C-Check, and the
parts, if any, that were required to be ordered and
purchased for that aircraft.
Q. Why was that a problem, sir?
MS. MILLER: Objection, Your Honor.
THE COURT: Why don't you work him through an
example, if you can recall it. An engine or a wing or
something, whatever.
BY MR. RASKIN:
Q. Sir, the contract that you negotiated, was it for
particular maintenance items?
A. Yes, they were.
Q. Were those maintenance items set forth specifically in
the contract?
TOTAL ACCESSTM COURTROOM REALTIME TRANSCRIPTION
134 PEREYRA - Direct
A. Yes, they were.
Q. And was there a price based on those specific
maintenance orders?
A. Yes, there was.
Q. If one of your mechanics were to find something
different than what was in the contract, what would happen?
A. A non-routine item would be generated which is a
request --
THE COURT: Mr. Pereyra, would you, please, reach
your left hand forward and place it on that microphone, and
pull it back, please?
THE WITNESS: Oh, I'm sorry. It does work.
THE COURT: Now then, you said if a mechanic
needed a wing, he went to the contract and the wing was
down there for $18.53. And if the wing he needed was going
to cost $20.00, what would he do?
A. Basically, it's a bit different, but the contract
called for a routine work to be done, go and inspect an
area. The second portion to that is, if you find a
discrepancy, you must now notify the representative that a
discrepancy has been found, and we evaluate the discrepancy
in terms of labor required to accomplish it, and also any
materials that may be required. That is the area that the
representative was needed for to approve those items.
Without his signature on the work order, the work could not
TOTAL ACCESSTM COURTROOM REALTIME TRANSCRIPTION
135 PEREYRA - Direct
proceed.
BY MR. RASKIN:
Q. That's the reason for your writing that letter?
A. That is correct.
MS. MILLER: Objection, Your Honor. Leading.
THE COURT: Well, overruled.
BY MR. RASKIN:
Q. What's the date on that letter, sir?
A. This letter is dated, I'm sorry, I've got to get my
glasses, December 27, 1995.
Q. That was SabreTech Exhibit 26, sir?
A. That's what it says.
Q. Did there come a time thereafter, that you received a
letter from someone at Aserca Airlines?
A. Yes, subsequent to this, I received a hand-written
letter from Mr. Drechsler addressed to the Vice President of
Marketing.
Q. I show you what has been marked in evidence as
Government Exhibit 2 F, and ask you if you recognize it?
A. Yes, it looks like the letter I received.
Q. Did you have any discussion with anyone at Aserca
Airline concerning that letter?
A. Yes, I did. I went directly to Mr. Mora.
Q. Without telling me what Mr. Mora said, what did Aserca
do as a result of your conversations?
TOTAL ACCESSTM COURTROOM REALTIME TRANSCRIPTION
136 PEREYRA - Direct
A. Basically, we would schedule a meeting within a few
days in Miami with Mr. Mora to discuss the letter, and
basically, Mr. Mora understood the contents. He understood
our position. The matter was cleared up then, and nothing
further said.
Q. Were any other Aserca employees involved in the
maintenance of those aircraft thereafter?
A. There was a representative of Aserca subsequently sent
to DynAir to assist with the airplanes.
Q. Were there anymore contract negotiations thereafter
with Aserca and SabreTech?
A. Yes, there was.
Q. And tell us about that.
MS. MILLER: Objection, Your Honor.
THE COURT: Lay a predicate, when, where, and who
was present.
BY MR. RASKIN:
Q. Following your conversation with Mr. Mora, did
SabreTech endeavor to do further business with Aserca?
A. Yes, we did.
Q. When was that?
A. It was a few weeks after that.
Q. What was those negotiations?
A. We were negotiating for follow-up aircraft, potentially
one to two more.
TOTAL ACCESSTM COURTROOM REALTIME TRANSCRIPTION
137 PEREYRA - Cross
Q. What was the result of those negotiations?
A. Ultimately, the payment terms became an issue and
subsequent to that, Aserca found another location to do it.
MR. RASKIN: I have nothing further of this
witness.
BY MR. RASKIN:
Q. One moment. Sir, who approached who, concerning that
third aircraft?
A. Aserca approached me.
MR. RASKIN: Nothing further.
CROSS EXAMINATION
BY MS. HECK MILLER:
Q. Mr. Pereyra, you're not saying that Bill Drechsler was
not ever at DynAir Tech in the autumn of 1995, are you?
A. No, I'm not.
Q. He was there, was that correct?
A. He was there.
Q. In fact, he was there as recently, before your letter,
as December 26, wasn't he?
A. I believe he was.
Q. In fact, Mr. Drechsler had come back on December 26,
the day after Christmas, and was disappointed and expressed
concern at what he found there, did he not?
A. I believe he did.
Q. And he left shortly thereafter, is that correct?
TOTAL ACCESSTM COURTROOM REALTIME TRANSCRIPTION
138 PEREYRA - Cross
A. I don't recall that.
Q. Was he there on the 27th when you wrote your letter?
A. I don't recall if he was there or not.
Q. But you knew Mr. Drechsler was very unhappy at that
point, didn't you?
A. Yes, I did.
Q. He was unhappy because he had been led to believe that
there would be a full crew working on his airplane when he
came back early from Christmas, isn't that correct,
Mr. Pereyra?
A. I don't recall that.
Q. Did you recall that he was unhappy because he felt
there was not enough crew working on his airplane when he
came back from Christmas early?
A. No, I don't recall that.
Q. Now, when you got the letter that Mr. Drechsler sent
you, Government Exhibit 2 F, do you have that in front of
you, the handwritten letter?
A. Yes.
Q. What did you do with that letter?
A. I initiated an investigation internally.
Q. With whom did you share that letter at SabreTech?
A. I shared that with Danny Gonzalez and a gentleman by
the name of Manny Castinero, Director of Planning and
Production Control.
TOTAL ACCESSTM COURTROOM REALTIME TRANSCRIPTION
139 PEREYRA - Cross
Q. Were you concerned about the things in this letter?
A. Yes, I was.
Q. Were you concerned when it said that "we have DynAir
paperwork showing work completed and inspected and not
accomplished"?
A. Yes, I was.
Q. Now, Mr. Pereyra, in your letter, SabreTech Exhibit 26,
do you have a copy there in front of you?
A. Yes, I have it.
Q. On the 27th, you wrote, "we have completed ninety-five
percent of the routine C-Check requirements," do you see
that?
A. Yes, I do.
Q. However, that aircraft, YV720C was not ready for a long
time thereafter, isn't that correct?
A. I don't recall that.
Q. Do you recall that it was not ready for test flight
until March of 1996?
A. I don't recall that.
Q. Mr. Pereyra, I'm handing you a document. Your Honor,
I'm going to mark this for identification purposes as
Government's Exhibit 110, and I'm sorry, it's very faint.
MR. DUNLAP: I'm sorry. Can we look at it first?
MS. HECK MILLER: Mr. Pereyra, I'm going to ask
you to look at it. It's a very faint copy, but if you
TOTAL ACCESSTM COURTROOM REALTIME TRANSCRIPTION
140 PEREYRA - Cross
could take a moment and look at that document, and tell us
if you recognize it.
BY MS. HECK MILLER:
A. I recognize what it is, but not specifically this
document.
Q. Do you recognize it as a record of SabreTech?
A. It appears to be.
Q. Do you recognize that form as a SabreTech form?
A. It appears to be.
Q. Are you familiar with that form and is that the form
that you encounter when you worked at SabreTech?
A. I may have.
Q. Did SabreTech maintain this type of record in the
course of it's regular business activity?
A. I believe they do.
Q. Was that record made at or about the time of the events
that it reports?
A. This particular one, I don't know.
MS. MILLER: Your Honor, government offers
exhibit 110 into evidence.
MR. RASKIN: Lack of foundation, Your Honor.
THE COURT: I believe the witness said --
BY THE COURT:
Q. Can you identify that document? Have you seen that
document before?
TOTAL ACCESSTM COURTROOM REALTIME TRANSCRIPTION
141 Pereyra - Redirect
A. Not specifically, that one. No.
Q. Do you know anything about who sent it or who received
it?
A. No, sir.
Q. When is the first time you saw the document?
A. Just now.
MS. MILLER: Your Honor, I do believe that the
witness recognized it as the type of document that
SabreTech generated, and that he was familiar with that
type of document which, I believe, meets the business
record predicate.
THE COURT: The objection is sustained. Next
question.
BY MS. HECK MILLER:
Q. When was work completed on 720?
A. That I don't recall.
Q. Was it in January?
A. I don't remember.
Q. Could it have been as late as March?
THE COURT: He said he didn't know. He's
answered the question. Next question, please.
MS. MILLER: No further questions.
THE COURT: Redirect?
REDIRECT EXAMINATION
BY MR. RASKIN:
TOTAL ACCESSTM COURTROOM REALTIME TRANSCRIPTION
142 Pereyra - Redirect
Q. Sir, Ms. Heck asked you, whether or not Mr. Drechsler
was unhappy. Do you recall that question?
A. Yes, I do.
Q. Are you aware of any other reason that Mr. Drechsler
might have been unhappy?
A. Yes, I am.
Q. What is that?
A. Mr. Drechsler was unhappy in general with DynAir.
Q. Why is that?
A. My understanding is, from conversations --
MS. MILLER: Objection, Your Honor.
THE COURT: Yes, this is what we get into with
somebody unhappy or not. It may be that they didn't get a
good nights sleep. The wife didn't cook breakfast for him.
We get off into so much, but, perhaps, you can elicit some
specific facts he knows about, rather than his opinion
about happiness.
BY MR. RASKIN:
Q. Do you know whether or not Mr. Drechsler formerly
worked for DynAir?
A. Yes, he did work for DynAir.
Q. Do you know whether or not he left of his own volition
or was asked to leave?
MS. MILLER: Objection, Your Honor.
BY THE COURT:
TOTAL ACCESSTM COURTROOM REALTIME TRANSCRIPTION
143 Pereyra - Redirect
Q. Well, did you have anything to do with his leaving?
A. No, I did not.
Q. Were you involved with hiring or firing or anything
like that?
A. No, sir.
THE COURT: Next question.
BY MR. RASKIN:
Q. Yes, Your Honor. Was there any issue before release of
this plane, with receipt of payment?
A. Yes, payment was an issue.
Q. Was payment received timely under the contract?
A. No, it was not.
Q. Did DynAir release the plane before you got payment?
A. No, we did not.
Q. Did all of Aserca checks clear the bank?
MS. MILLER: Objection, Your Honor. This is
outside the scope of cross and irrelevant.
MR. RASKIN: Your Honor, we are going into,
again, the number of happiness questions, and how long that
plane was there, and whether or not it was delayed, and why
it was delayed.
MS. MILLER: Your Honor, then we are going to get
into other issues relating to these disputes that are --
THE COURT: I would sure like to stick with
facts. A fact would be that Mr. Pereyra took out his
TOTAL ACCESSTM COURTROOM REALTIME TRANSCRIPTION
144 Quintana - Direct
special thermometer that he keeps in his desk which is a
happiness thermometer, and he jabbed it in the appropriate
place of Mr. Drechsler and he read off, and it came to
98.6.
That would be a fact, you see. Well, we haven't
established that he's got a happiness thermometer. We
haven't established that he jammed it into the appropriate
place. And we haven't gotten a reading. Until we do, I
think we abandon people's opinions about happiness. Let's
just strike all the happiness out of the record. Now,
let's go on --
BY MR. RASKIN:
Q. Was this plane withheld pending payment?
A. Yes, it was.
MR. RASKIN: Nothing further.
THE COURT: You may step down. Next witness.
MR. DUNLAP: Mr. Gonzalez calls Manny Quintana.
COURTROOM DEPUTY: Please be seated. State your
full name, spelling your last name for the record.
THE WITNESS: Manny Quintana, Q-u-i-n-t-a-n-a.
MANNY QUINTANA, DEFENDANT'S WITNESS, SWORN.
DIRECT EXAMINATION
BY MR. DUNLAP:
Q. Good afternoon, sir. How are you?
A. Fine, sir.
TOTAL ACCESSTM COURTROOM REALTIME TRANSCRIPTION
145 Quintana - Direct
Q. I need you to speak up and speak right into the mic so
we can hear you.
A. Yes, sir.
Q. Would you begin by telling us a little bit about
yourself. How old are you?
A. 39.
Q. What do you do for a living?
A. I market landing gear and touring for a company called
A and R.
Q. You are in the aviation business?
A. Yes.
Q. Do you have any certifications that you hold in the
aviation business?
A. I hold an A and P mechanics' license.
Q. Slow down and speak up.
A. I hold an A and P mechanics' license.
Q. Airframe and power plant license?
A. Yes, sir.
Q. When did you become licensed as an airframe and power
plant mechanic?
A. 1985.
Q. Who were you working for at that time?
A. United States Army.
Q. What type of work were you doing in the army?
A. Helicopter mechanic.
TOTAL ACCESSTM COURTROOM REALTIME TRANSCRIPTION
146 Quintana - Direct
Q. Did there come a time when you left the army?
A. Yes, sir.
Q. Did you continue after you left the army to work on
aircraft?
A. Yes, sir.
Q. And where did you find employment after you left the
army?
A. AirTech, Miami, Florida.
Q. Where was AirTech located?
A. Approximately 36 Street, Miami International Airport.
Q. The facility that ultimately became DynAir Tech?
A. The old facility, yes.
Q. Did you continue to work there for a while?
A. Yes, sir.
Q. What was your position there?
A. Mechanic.
Q. What type of things did you do as an avionics mechanic?
A. As an A and P mechanic, I would -- aircraft maintenance
on different type of aircrafts.
Q. Did you do C-Checks?
A. Yes, sir.
Q. Did there come a time when you left AirTech, and went
to another place?
A. Yes. I left AirTech about a year and a half later and
went to Eastern Airlines, a year and a half later.
TOTAL ACCESSTM COURTROOM REALTIME TRANSCRIPTION
147 Quintana - Direct
Q. What did you do at Eastern Airlines?
A. A and P mechanic.
Q. Were you a line mechanic?
A. No, I was a C-Check mechanic.
Q. You worked on C-Checks, right?
A. Yes, sir.
Q. Could you explain to the jury the difference between
line maintenance and heavy or C-Check maintenance?
A. Line maintenance is maintenance that is performed on
the line on anything that has happened during the flight or
you walk around the aircraft. It's just minimal kind of
maintenance. C-Checks are major repairs and major
inspections of the aircraft.
Q. So line maintenance would be where an aircraft has a
problem or discrepancy that occurs, and they pull it in, get
it fixed, and leave again?
A. Correct.
Q. Heavy maintenance is where they bring the plane in, the
aircraft company signs a contract, and the plane comes in
for --
THE COURT: I think you are leading him very far
up field. Let him tell us.
THE WITNESS: A C-Check is heavy maintenance. It
consists of numerous phases of checks and services on the
aircraft. Line maintenance is basic service and
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troubleshooting repair on the line of any problems that
arise during the flight or during the walk around of the
aircraft or any pilot reports.
BY MR. DUNLAP:
Q. Did there come a time when you left employment with
Eastern?
A. Yes, sir.
Q. Did you find a job thereafter in the aircraft business?
A. The same week I went to work for DynAir Tech.
Q. That's the same DynAir Tech that was located on
Northwest 36th Street?
A. Yes, sir.
Q. What did you do for DynAir Tech?
A. I began as a mechanic.
Q. What year was that?
A. Approximately, March 1989.
Q. Did you progress, move up through the ranks in the
mechanics' section of DynAir?
A. Yes, sir I was promoted to lead mechanic.
Q. In charge of a crew of mechanics?
A. Yes, sir.
Q. Later on, did you move up further?
A. I moved up to a supervisor position.
Q. Again, what does a supervisor do as compared with what
a lead mechanic does?
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A. The lead mechanic manages the crew, manages the crew on
the aircraft, the individuals. The supervisor manages the
aircraft that might include more than one crew, making sure
the parts are coming in. It's a little bit more detailed
than lead mechanic.
Q. When did you get promoted to be a supervisory mechanic
at DynAir Tech?
A. Less than a year, or a year after I started.
Q. So that would be about 1990?
A. Approximately, yes.
Q. Did there come a time when you were promoted to a
higher position at DynAir Tech, above a supervisory
mechanic?
A. I was promoted to project manager.
Q. When were you promoted to project manager of DynAir
Tech?
A. About a year and a half, or a year after that.
Q. 1992, approximately?
A. Approximately.
Q. Could you please tell the jury what a project manager's
duties are comparing hem to the duties of a supervisor?
A. Project manager flows the paperwork in the booth.
Flows the maintenance of the aircraft, assigns different
tasks to the supervisor to be carried out on the aircraft.
It's a more detailed position. The project manager might
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have more than one aircraft they are working on at the same
time.
Q. So since 1992, you have been a project manager?
A. Plus or minus.
Q. You were a project manager at DynAir Tech?
A. Yes, sir.
Q. And DynAir Tech eventually became SabreTech?
A. Yes, sir.
Q. And when did you leave -- did you leave SabreTech?
A. I left SabreTech, yes.
Q. When did you leave it approximately?
A. Approximately, April '96.
Q. Up until that time, you were a project manager at
SabreTech?
A. Yes, sir.
Q. During your employment as a project manager at
SabreTech, and as a supervisor at SabreTech, did you work on
C-Checks?
A. Yes.
Q. Do you understand all the various components of
C-Checks?
A. Yes.
Q. Let me ask you. Are you familiar with a particular
phase of a C-Check called the pre-dock phase?
A. Yes, sir.
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Q. First of all, before we go to that, what is the term
"dock," what does that mean?
A. Dock is where the aircraft eventually ends up inside
the hangar.
MR. DUNLAP: May I approach the witness, Your
Honor?
THE COURT: Yes.
BY MR. DUNLAP:
Q. Let me ask you to make reference to this chart, which
is Government Exhibit 71. Does this fairly depict the
layout or part of the layout of the SabreTech facility?
A. It looks familiar, yes.
Q. What is up here on the north, what street?
A. 36th Street.
Q. Around the facility, it says ramp, west ramp, south
ramp?
A. Yes, sir.
Q. Is the ramp a large extensive area or is it only?
A. It's pretty large.
Q. Is it bigger than depicted here, a little larger?
A. Yes.
Q. You mentioned the dock. What is the dock area again?
A. The dock is where the aircraft would be parked inside
the hangar.
Q. The dock is the area in inside the hangar?
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A. Yes.
Q. Now I was asking you to describe a phase of a C-Check
called a pre-dock. Where does the pre-dock occur?
A. A pre-dock is accomplished outside the hangar.
Q. Approximately how long does the C-Check usually take,
on the average?
A. From 10 to 30 days, depending on the aircraft.
Q. Could you give us a general description of what work is
accomplished during a pre-dock?
A. Engine runs, operational checks, that type of stuff.
Q. Are work cards signed off on during this phase?
A. Yes.
Q. Routine work cards are completed?
A. If the job is accomplished, yes.
Q. What happens if during the completion of a routine work
card on a pre-dock, you find something wrong on the plane?
What occurs as a general course of this?
A. They generate a non-routine card.
Q. That's a different type of a card?
A. A none scheduled maintenance.
Q. You said the phases were, you run the engines?
A. That's part of it.
Q. Is that also referred to as the engine run up?
A. Yes, sir.
Q. May I approach the witness again, Your Honor?
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THE COURT: All right.
BY MR. DUNLAP:
Q. Looking back at this chart again, was there a
particular place at the SabreTech facility where the engine
run ups would occur during the pre-dock?
A. There's a blast fence on this quorum.
Q. Could you put your finger on it? Where is it? What is
a blast fence?
A. It's where you are able to take the engines to take off
power. It deflects the exhaust upward.
Q. What does the fence look like?
A. It's like a slanted wall.
Q. It deflects the exhaust from the engine?
A. Yes, sir.
Q. You mentioned that also operational checks, some
operational checks are done on the plane during the
pre-dock?
A. Yes, sir.
Q. Is an operational check the same thing as a functional
check?
A. Very similar.
Q. What is the first thing that happens to an aircraft
when it is received or arrives at SabreTech?
A. Receiving inspection.
Q. What does that mean?
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A. You have a team of inspectors inventory the aircraft
and inspecting the fuselage, and the external and interior
part of the aircraft.
Q. Do they make notes of the damage that they see at that
time?
A. Yes, sir.
Q. What happens next?
MR. BRIGHAM: Objection. This is opinion
evidence. This person is not that qualified.
MR. DUNLAP: I would submit he is qualified
because he has done --
THE COURT: Do you tender him as an expert?
MR. DUNLAP: Yes, sir, I do.
THE COURT: If you don't do that, you can't ask
--
MR. DUNLAP: I tender him as an expert.
THE COURT: You tender him as an expert. Do you
have any voir dire questions you wish to ask him.
BY MR. BRIGHAM:
Q. Sir, have you ever worked on the Aserca aircraft at the
SabreTech facility?
A. No, sir.
Q. Sir, have you ever, at any time, worked with
Mr. Gonzalez on that aircraft?
A. No, sir.
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MR. BRIGHAM: Your Honor, this witness is not
qualified to testify about the aircraft.
THE COURT: On an Aserca aircraft, but he is
being asked his opinion about C-Checks, and procedures. I
think he is qualified. The objection is overruled. We
will recognize Mr. Quintana as an expert in the field of
C-Check repairs, routine line maintenance and other
airplane maintenance on the aircraft of the type that are
involved.
BY MR. DUNLAP:
Q. Now, during the engine run ups, are certain operational
checks or functional checks done then?
A. Pardon me?
Q. Are certain operational and functional checks done
during routine, during the run ups?
A. Yes, sir.
Q. Now, Mr. Brigham asked you about Aserca Airlines?
A. Yes, sir.
Q. Were you aware that, in and around the fall of 19, the
fall or winter of 1995, SabreTech was doing a C-Check or
series of C-Checks on two Aserca DC-9 aircraft?
A. Yes, sir.
Q. Were you also aware that an individual named Chris
DiStefano for a time was in charge of supervising the
maintenance on those planes?
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A. Yes, sir.
Q. Did you become aware that at a time, he had a
disagreement with Mr. Gonzalez?
MR. BRIGHAM: Objection. Leading, Your Honor.
THE COURT: Sustained.
BY MR. DUNLAP:
Q. Did Mr. DiStefano remain the supervisor on the Aserca
project, if you know, until the end of the job?
MR. BRIGHAM: Objection. Leading.
THE COURT: Overruled. You may answer the
question.
THE WITNESS: He was moved from the position.
BY MR. DUNLAP:
Q. Were you aware of that when it occurred?
A. Yes, sir.
Q. Did there come a time in 1995, when you saw an Aserca
aircraft at the blast fence?
A. Yes, sir.
MR. DUNLAP: May I approach the witness again,
Your Honor?
THE COURT: Yes, sir.
BY MR. DUNLAP:
Q. When did you see the aircraft at the blast fence in
relation to when Mr. DiStefano was relieved of his
responsibilities as the supervisor?
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A. About three to four days approximately before he was
moved from the position.
Q. Three to four days before that, you saw the airplane?
A. Yes.
Q. Now again, where was the blast fence?
A. The far corner.
Q. Where were you so that you could observe?
A. In the hangar.
Q. Were the engines running?
A. Yes, sir.
Q. Did you observe the plane move from the blast fence?
A. It taxied to the west point.
Q. When you say it was taxied, it was driven in?
A. Yes, sir.
Q. When it got to the hangar, did you see who was at the
controls of the airplane, driving it into the hangar?
A. Danny Gonzalez was in the left seat.
Q. Danny Gonzalez. Do you see Danny Gonzalez in the
courtroom here? Would you point him out?
A. The gentleman with the tie.
Q. Mr. Gonzalez?
A. Yes.
MR. DUNLAP: May the record reflect that the
witness has identified Mr. Gonzalez.
THE COURT: All right.
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BY MR. DUNLAP:
Q. Were you able to see -- or which seat was he in, by the
way, as you look at the plane?
A. The left seat.
Q. Could you see who was in the co-pilot's seat?
A. Charles Shallenbarger.
Q. Who was Charles Shallenbarger?
A. He was an A and P mechanic that did most of the engine
runs and that type of work. He was the engine guy --
Q. You need to keep your voice up.
A. He was the engine expert for us.
MR. DUNLAP: May I approach the witness, Your
Honor?
THE COURT: Yes, sir.
Q. Mr. Quintana, let me ask, let me hand you what I have
marked as exhibits DG1(a), 1(b), 1(c), 1(d), and 1(e), and
ask you to take a look at them. Let me know when you've had
a chance to look at them.
A. They are non-routine cards.
Q. Do you know what an engine system operational check is?
A. Yes, sir.
Q. What is it?
A. It's a check of the system so that the engine
operational checks with the engine.
Q. What phase during the C-Check is that accomplished?
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A. Pre-dock phase.
Q. What phase of the pre-dock?
A. Very beginning.
Q. During the engine run up?
A. Yes, sir.
MR. DUNLAP: I would offer 1(a) through 1(e) into
evidence, Your Honor.
THE COURT: Any objection to 1(a) through 1(e)
for identification?
MR. BRIGHAM: Not for the United States, Your
Honor.
MR. RASKIN: No objection.
THE COURT: The documents are admitted into
evidence as Defendant Gonzalez Exhibits 1(a) through 1(e).
[Defense Exhibits DG1(a) through 1(e) received in evidence].
BY MR. DUNLAP:
Q. Could you take a look at 1(a) initially, please. What
is that document?
A. Engine systems operational check, left and right
engine.
Q. Is there a series of signatures there in the space
called for by the mechanic on that particular check?
A. Yes, there is.
Q. And is that -- do those signatures have along with them
a number corresponding to that mechanic's number?
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A. Yes, the employ number.
Q. Could you read that number?
A. 52, either 455 or 955.
Q. Could it be an 8?
A. It could be an 8. It's not legible.
Q. We'll see if we can find another one that is legible.
MR. BRIGHAM: Your Honor, the documents speak for
itself. If the witness can't read them, the documents speak
for itself.
THE WITNESS: 52855.
BY MR. DUNLAP:
Q. 52855?
A. The last entry is a little bit more legible.
Q. I'm going to ask you to refer to a document that is
admitted into evidence as Government Exhibit 44, marked as
the employee master report. Take a look. Does that number
appear on that?
A. Charles Shallenbarger --
MR. BRIGHAM: Objection, Your Honor. The
document speaks for itself.
MR. DUNLAP: I would like him to publish it to the
jury, is that's all right, Your Honor.
THE COURT: Hand it to them, and let them read --
MR. DUNLAP: Shall I just hand it to the marshal?
THE COURT: Marshal, will you hand it to the
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161 Quintana - Direct
jury, and let them pass it along?
MR. DUNLAP: I'll just hand them the one page.
THE COURT: Yes, the one page, whatever you want.
All right. Next question.
BY MR. DUNLAP:
Q. Is DG exhibit 1(a) have any dates on it?
MR. BRIGHAM: Objection, Your Honor. The
document speaks for itself.
THE COURT: I agree. Just read him the date and
ask him your question, whatever it is.
THE COURT: Assume that it has a date of blank,
then ask him your question.
BY MR. DUNLAP:
Q. Let's refer to the other exhibits, DG1(b) through
DG1(e). Those are non-routine cards?
A. These four cards are non-routine cards.
Q. How, in any way, do they related to DG1(a)?
A. The routine card is generated. The non-routine cards
is indicated here at the bottom, it says generated by.
Q. So what does that mean they were generated by?
A. You discovered certain problems during this operational
check that required you to open non-routines to correct the
problems.
Q. What date do the non-routine cards indicate that they
were written up?
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A. 12-20, 12-20, 12-20, 12-20-95.
Q. Can you tell from looking at the routine and
non-routine cards, DG1(a), on what day the engine run ups
would have been performed on DG1(a)?
A. The card indicates it was issued on the 19th. The
non-routine is issued on the 20th. The engine run up had to
be done on the 19th and the 20th. The beginning the 20th
and the end of the 19th.
Q. With respect to operational checks that are done during
the pre-dock, what is the reason that the engine -- the
predicament you just described, the engine run is done
during the pre-dock?
A. It's done during the pre-dock to identify any problems
and before you disable the aircraft.
Q. Why couldn't it be done inside the hangar?
A. You cannot run the engines inside the hangar.
Q. Why is that?
A. It's a safety hazard.
Q. Are there certain operational checks that are done with
a system or an engine called the APU?
A. Yes, sir.
Q. What is an APU?
A. Ancillary pilot unit.
Q. Is that a part of the aircraft?
A. Yes, sir.
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Q. Please tell the jury what it is?
A. Ancillary pilot unit. It's a small turbo engine that
is used to supply nomadic or air to the aircraft system and
electrical power.
Q. Let me show you what has been marked as DG2, DG2 for
identification.
MR. DUNLAP: May I approach the witness, Your
Honor?
THE COURT: Yes.
BY MR. DUNLAP:
Q. First, do you know what a system shut down thermal
switch is?
A. Yes, sir.
Q. How is a check on that system accomplished?
A. You have to operate the air-conditioning system. You
have to check the system out to see if the switch is
stripped.
Q. Do you have to use the APU to do that?
A. You use the APU or an air start. In this case, it's
indicating APU.
MR. DUNLAP: I would move DG Exhibit 2 into
evidence, Your Honor.
MR. BRIGHAM: No objection.
THE COURT: Admitted into evidence as exhibit
number 2.
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164 Quintana - Direct
[Defense Exhibit DG2 received in evidence].
BY MR. DUNLAP:
Q. In the pre-dock phase, from time to time, do you have
to remove the fuel from the tanks of the planes?
A. When you service the tanks, yes.
Q. By servicing the tanks, what do you mean?
A. Either have inspection inside the tank that you have to
have access to or the customer is requested to clean out the
tank.
Q. Let me show you what's been marked as exhibit DG3 for
identification. Can you tell me what type of a card this
is?
A. 06 indicates a customer request card.
MR. DUNLAP: I move for the admission of DG3 into
evidence, Your Honor.
MR. BRIGHAM: No objection, Your Honor.
THE COURT: Defendant Gonzalez Exhibit 3 admitted
into evidence.
[Defense Exhibit DG3 received in evidence].
BY MR. DUNLAP:
Q. Can you tell us from looking at this card, what date
this card was issued?
A. 12-19-95.
Q. Who was it issued by?
A. Generated by Mr. Mora.
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Q. Is that the customer representative?
A. That's the customer representative.
Q. With respect to what plane, does that apply?
MR. BRIGHAM: Objection, Your Honor. The witness
is being asked to read off of a document.
THE COURT: Sustained. Is that one of the planes
involved in the case?
MR. DUNLAP: It is.
BY THE COURT:
Q. What plane is that, if you know?
A. 720.
BY MR. DUNLAP:
Q. For which airline, sir?
A. Aserca.
Q. What does that work card call for?
A. What I read in there, it says, clean the tanks. May I
look at it, please.
Q. Yes.
THE COURT: The document is in evidence. Maybe
if there's something that needs clarification.
THE WITNESS: Wash and flush the tanks.
BY MR. DUNLAP:
Q. Does it also call for an outside company to come and
work on the tanks. East Coast Tanks?
A. East Coast Tanks came in.
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Q. What does East Coast Tanks do?
A. They clean and repair tanks, fuel tanks
Q. Are there certain pre-dock tests that require
electricity to be run on the aircraft?
A. The majority of the pre-dock tests require electricity.
Q. Under the circumstances of this plane, Y. V. 720, could
electricity be run on this plane while these tanks are open
and empty?
A. After a long period of time.
Q. How long would you have to wait?
A. Three to four days.
Q. Why is that?
A. The first thing you have to do is clean out the tank.
Open the tank up and that takes time. Then you have to let
the vapors evaporate, and then you have to check the tank
for safety, and then you can go into tanks. Then, there has
to be a certain level, there's not going to be explosive
which you're in firepower on the aircraft.
Q. The fuel vapors?
A. Yes, sir.
Q. Have you had occasion to sign pre-dock package to be
worked on, a number of occasions?
A. Yes, sir.
Q. With respect to tests of the anti-ice system, is that a
test that requires the use of electricity to test the
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system?
A. Yes, sir.
Q. Under the circumstances, were the tanks that were going
to be open, when do you customarily and usually assign
anti-ice tests during the pre-dock, I mean during the
C-Check?
A. I accomplish all the pre docks items before I disable
the aircraft.
Q. Would anti-ice, under the circumstances, be one of
them?
A. That's one of them that I would issue.
Q. Why would you do that?
A. To get rid of the unknowns, which is to find any
problems with the aircraft at the beginning. To be able to
accomplish the test before you disable the aircraft, and a
lot of times it's difficult to come up with inventory or
parts to replace and deficient parts.
Q. Let me ask you to take a look at what's been admitted
into evidence as Government Exhibit 2.
Can you tell us what it is?
A. Ice protection system function check.
Q. What functions does this test check?
A. The low and high pressure switches, I believe.
Q. Why don't you take a good look at it?
A. High pressure switch and low pressure switch.
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Q. Can you tell us a little bit about the anti-ice system.
Are you familiar with a DC-9?
A. Yes, sir.
Q. What is the anti-ice system in the DC-9?
MR. BRIGHAM: Your Honor, objection.
THE COURT: He may answer this question.
BY THE COURT:
Q. What is it?
It's a nomadic system that heats the leading
agents or the front of the wings or the front of the
stabilizers. It warms them up to keep the aircraft from
developing ice on the wings or the stabilizers, and also
the front of the engines.
BY MR. DUNLAP:
Q. Does the test that you just looked at, does it test the
nomadic system, the duck work or does it test the switches,
the electrical switches?
A. This specific test is for the switches.
Q. Let me show you what has been marked as exhibit DG4.
Can you tell us what this is?
A. Ice protection system functional check.
MR. DUNLAP: I move for the admission of DG4 into
evidence.
MR. BRIGHAM: No objection, Your Honor.
THE COURT: Admitted into evidence.
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169 Quintana - Direct
[Defense Exhibit DG4 received in evidence].
BY MR. DUNLAP:
Q. What portion of the de-icing system does that examine
or test?
A. The tail de-ice timer and an anti-ice delay.
Q. So, it checks electrical switches?
A. Yes, sir.
MR. DUNLAP: May I publish Exhibits 1(a) through
(e) to the jury, as well as 2, 3 and 4 at this time, Your
Honor?
THE COURT: Yes, sir.
MR. DUNLAP: Could I hand them to the marshal?
THE COURT: Yes, sir.
MR. DUNLAP: Could I have one second, Judge,
please?
THE COURT: Yes, sir.
BY MR. DUNLAP:
Q. Mr. Quintana, I'll see if I can find the exhibit here.
DG3 is a non-routine item, or was a non-routine item calling
for East Coast Tanks to, for the tanks to be opened so that
East Coast Tanks could come in and clean them?
A. Yes, sir.
Q. Let me show you what is admitted into evidence as
SabreTech Exhibit 4, and ask you what it is, or if you
recognize what it is?
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A. This is a routine card for bio-bor treatment.
Q. What is bio-bor?
A. It is a chemical used to fight fungus and microscopic
organisms.
Q. All of these work cards you just handled and put into
evidence, they are all related to aircraft 720 for Aserca?
A. Yes, sir.
Q. Which aircraft does that relate to?
A. 720.
Q. Again, DG3 called for the tanks to be opened and
emptied, is that correct?
A. Yes, sir.
Q. Given that that card exists, what does that say about
the appropriate disposition about ST4, the bio-bor card?
MR. BRIGHAM: Objection.
THE COURT: Rephrase.
BY MR. DUNLAP:
Q. Are you familiar with the concept called redundancy in
paperwork?
A. Yes, sir.
MR. BRIGHAM: Objection.
THE COURT: In paperwork, he is a mechanic. You
are limiting it to the cards that he deals with. You may
answer the question. Are you familiar with the word he
used "redundancy."
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A. Yes, sir. Frequently we have redundant --
BY MR. DUNLAP:
Q. As a project manager, one of your tasks is dealing with
paperwork in connection with various types of checks?
A. Yes, sir.
Q. Is there very much paperwork involved in a C-Check?
A. Yes, sir, a lot.
Q. Could you give is an idea of how many typically
engineering or work orders or work cards there may be in a
typical C-Check?
MR. BRIGHAM: Objection. Relevancy.
THE COURT: Well, it may be highly relevant, but
generalizations. I would have to sustain, would have no
probative value in this case. You would have to limit it
to something in this case.
BY MR. DUNLAP:
Q. Do you have enough familiarity with the C-Checks being
done on the Aserca aircraft, to give us an idea of whether
the paperwork was in the thousands of documents or hundreds
of documents?
A. I saw hundreds of documents out there.
Q. Back to the problem of redundancy, from time to time --
let me ask you, what does that mean in terms of a project
manager's obligation with respect to managing the paperwork?
A. You try to clear paperwork as best as you can.
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Q. Is that piece of paperwork a redundant piece of
paperwork given the existence of the non-routine item marked
as DG3, calling for East Coast Tanks to clean the tanks on
Y.V. 720?
MR. BRIGHAM: Objection. Leading.
THE COURT: Overruled. You may answer that
question.
THE WITNESS: Yes, sir.
BY MR. DUNLAP:
Q. What was the appropriate disposition, via supervisor of
that paperwork, under that circumstance?
A. I would innate this.
Q. What did you say?
A. Innate. None operational.
MR. DUNLAP: Could I have one second, Judge.
THE COURT: Take your time.
BY MR. DUNLAP:
Q. Let me show you what has been marked as exhibit DG8 for
identification. Can you tell us what that is?
A. An ice protection functional check.
Q. Is it the same work card that I showed you that had
been entered into evidence as Government Exhibit 2?
A. Just like it.
Q. I move for the admission of DG8?
THE COURT: It's already in evidence?
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173 Quintana - Direct
MR. DUNLAP: No, it is not in evidence yet.
THE COURT: Any objection to it?
MR. BRIGHAM: No objection.
THE COURT: Exhibit 8 is admitted into evidence.
[Defense Exhibit DG8 received in evidence].
BY MR. DUNLAP:
Q. Can you tell us what plane this test was done for?
A. 705, Aserca 705.
Q. Do you recognize the signature there to accomplish
that?
A. It looks like -- I can't tell exactly who it is.
Q. Okay. Let me see if I can help you out there?
MR. DUNLAP: The government stipulates the
signature on this document is that of Danny Gonzalez. May
I publish the document?
THE COURT: Exhibit 8 is admitted into evidence.
Defense Gonzalez Exhibit 8.
BY MR. DUNLAP:
Q. Let me show you exhibits that have been marked DG6(a),
(b) and (c) for identification?
Can you tell us what these are?
A. System shut down. They are mall switches.
MR. DUNLAP: I would move for the admission of
DG6(a), 6(b) and 6(c).
THE COURT: Exhibits 6(a), (b) and (c) are
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174 Quintana - Direct
admitted into evidence.
[Defense Exhibits DG6(a), 6(b) and 6(c) received in
evidence].
BY MR. DUNLAP:
Q. How does 6(a), 6(a), (b) and (c) interrelate?
A. Z048 is a work order number that generated both
non-routines.
Q. Okay. Could you put it in a language, none mechanic?
A. This routine work card --
Q. Are your referring to DG6(a)?
A. Has generated these two non-routine work cards.
Q. What does that mean, has generated?
A. We found problems during this test that required you to
repair something, and you write items to repair the
problems.
Q. Is this the same pre-dock test that you identified with
respect to aircraft 720?
A. Yes, sir.
Q. What aircraft is this work being done on?
A. 705 Aserca.
Q. Aserca.
MR. DUNLAP: I think the government would
stipulate, Your Honor, that the signature on DG6(a) is also
that of Danny Gonzalez.
MR. DUNLAP: To make it simpler, the number
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175 Quintana - Direct
051011 is stipulated to as the mechanic's number for Danny
Gonzalez appearing on all three documents 6(a), (b) and
(c). May I publish these documents to the jury?
THE COURT: Yes, sir.
BY MR. DUNLAP:
Q. Let me show you what I've also marked for
identification as DG5, DG7 and DG9.
THE COURT: Ladies and gentlemen, while they look
through that, why don't we take a recess at this time and
take a little break. We will take a recess at this time.
Thank you.
You may step down, Mr. Quintana. While you are
on recess, please don't talk to anybody about your
testimony. You can talk about anything else, but not your
testimony.
[There was a short recess].
COURTROOM DEPUTY: All rise. Court is in
session.
THE COURT: Let's bring in the jury.
THE COURT: Thank you. Be seated.
[The jury returns to the courtroom].
THE COURT: Mr. Dunlap.
BY MR. DUNLAP:
Q. Your Honor, I believe when we recessed, I had offered
exhibits DG5, DG7 and DG9 into evidence?
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176 Quintana - Direct
THE COURT: Without objection, Gonzalez's
exhibits 5, 7 and 9.
[Defense Exhibits DG5, 7 and 9 received in evidence].
MR. BRIGHAM: Your Honor, if we could have a
stipulation that those all pertain to aircraft 705.
THE COURT: Yes, sir. If the parties agree to
that, let the record so reflect.
MR. DUNLAP: These three exhibits, Your Honor,
perhaps we can -- can I show them to the witness? I think
we can stipulate that exhibits DG1(a) through 1(e), DG2, DG
3 and DG4, all pertain to aircrafts, Aserca aircrafts 720,
and DG5, DG6(a), (b) and (c), 7, 8 and 9 all pertain to
aircraft, Aserca aircraft 705. May I proceed, Your Honor?
THE COURT: Yes.
BY MR. DUNLAP:
Q. Mr. Quintana, showing you DG5, what type of work card
is that?
A. It's a routine system operational check, left and right
engine.
Q. Is that the same work card and mechanical function that
was referred to in DG1 for Aserca 720?
A. The same card as I saw before.
Q. This is done as well during an engine run up?
A. Yes, sir.
Q. Let me show you DG7. Can you tell me what that is?
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177 Quintana - Direct
A. Customer request to remove all fuel tank covers. It's
a customer request form to accomplish the wash and flush
inside the tanks.
Q. Does it refer to calling in East Coast Tanks as well?
A. The vendor is East Coast Tanks.
Q. Is this the same type of card as you saw in 720, DG3?
A. Yes, sir.
Q. And the same concerns apply that the tanks are going to
be opened?
MR. BRIGHAM: Objection. Leading, Your Honor. A
series of leading questions.
THE COURT: All right. Rephrase the question.
BY MR. DUNLAP:
Q. In order to accomplish that non-routine work card, what
must be done in advance?
A. De-fuel the aircraft.
Q. Where do you de-fuel the aircraft?
A. On the ramp.
Q. Is that before or during the pre-dock?
A. Right after you get done with pre-dock items.
Q. Before you bring the plane into the hangar?
MR. BRIGHAM: Objection. Leading.
THE COURT: Just ask him when it's done.
BY MR. DUNLAP:
Q. When do you de-fuel the airplane?
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178 Quintana - Direct
A. Before you bring it into the hangar.
Q. Can you run tests requiring electrical power on the
plane immediately after de-fueling the tanks?
MR. BRIGHAM: Objection. Leading. Asked and
answered, also.
THE COURT: When can you do electrical tests?
When do you do electrical tests?
THE WITNESS: You have to have the tanks either
sealed or completely cleaned out or the fuel has vaporized
to the point that it passes a test that it won't be
combustible.
THE COURT: Okay.
BY MR. DUNLAP:
Q. Finally, DG9, that's the same test that we saw for 720
ice protection check of the timer switches?
A. Same test.
MR. DUNLAP: May I publish these to the jury,
Your Honor?
THE COURT: Yes, sir.
BY MR. DUNLAP:
Q. Were all these tests done as part of the pre-dock?
MR. BRIGHAM: Objection. Leading.
BY THE COURT:
Q. When were these tests all done?
A. The test were accomplished before pre-dock.
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179 QUINTANA - Cross
MR. DUNLAP: No further questions.
THE COURT: All right. Cross examination.
CROSS EXAMINATION
BY MR. BRIGHAM:
Q. Good afternoon, Mr. Quintana, I'm Jeff Brigham. I'm
one of the prosecutors on this case.
Sir, you indicated that you saw Mr. Gonzalez in a
Aserca aircraft, but you don't know what the tail number on
that aircraft was, is that correct?
A. Correct.
Q. When you saw him, you do not know what procedures he
was conducting?
A. No, sir.
Q. No, sir, you do not know?
A. I don't know the exact procedures he was conducting,
no.
Q. Now, sir, you were project manager, is that correct?
A. Yes, sir.
Q. As project manager, you are on the floor of the hangar
and the areas in general at SabreTech?
A. Yes, sir.
Q. Sir, you never saw Mr. Gonzalez working on the Aserca
aircraft except for, on that one time you saw him in the
cockpit?
A. When I saw him taxi the aircraft up to the hangar.
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180 QUINTANA - Cross
Q. And that was only for the few minutes that you saw him,
is that right?
A. Yes, for a short period of time.
Q. During the entire time you were working there, you
never again saw him working on an Aserca aircraft?
A. I saw him during the day working on the aircraft. I
saw him at different times around the aircraft, but I did
not see him physically going anywhere, no.
Q. You never saw him turn a wrench, for example?
A. No, sir.
Q. What you've been testifying with respect to certain
procedures that may take place under you as a project
manager, is that correct?
A. Yes, sir.
Q. You have been looking at the documents which have been
published to the jury, you recall testifying based on those
documents?
A. Yes, sir.
Q. But you had never seen those documents during the time
period of the end of 1995 to 1996?
MR. DUNLAP: Objection. Relevance.
THE COURT: Overruled. This is
cross-examination. Go ahead. Have you seen those
documents?
THE WITNESS: Those specific cards, no.
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181 QUINTANA - Cross
BY MR. BRIGHAM:
Q. In fact, your testimony is simply based on the
information that is in these documents?
A. Yes, sir.
Q. You are essentially reading from the documents in
obtaining the information in support of your testimony?
A. Yes, sir.
Q. Sir, you were relying on the accuracy of those
documents and the testimony that you were given?
A. Accuracy, as far as?
Q. You were assuming that those documents were accurate?
A. If they are signed off, yes.
Q. And that's because when a mechanic signs off with
respect to a particular step on these work cards, you assume
that that work has been done correctly?
MR. MOSCOWITZ: Your Honor, objection to
assumptions. This is not opinion asking for assumptions.
THE COURT: Wait a minute now. We don't team up
on Mr. Brigham here. We only get one lawyer at a time
making the objections. But in any event, this is
cross-examination. Your last question was -- just a
moment.
THE COURT: The objection is overruled.
Mr. Moscowitz's objection is overruled. The question is,
"when a mechanic signs off with respect to a particular
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182 QUINTANA - Cross
step on the work cards, do you assume that the work was
done correctly"?
MR. BRIGHAM: If I may rephrase the question,
Your Honor?
THE COURT: I would rather you didn't. We would
get another objection. We would spend another twenty
minutes on it. You can ask fifteen more. Do you want me
to repeat the question now again?
THE WITNESS: No, sir. When the job is signed
off, it is accomplished.
THE COURT: Okay. Next question. You mean you
don't want to improve on that? I'm really surprised.
MR. BRIGHAM: No, Your Honor, thank you.
BY MR. BRIGHAM:
Q. Now, the ice protection procedure, that is a procedure
which can be done inside the hangar?
A. Yes, sir.
Q. I would like to show you -- if I may have a moment,
Your Honor?
THE COURT: All right. Can we move forward?
BY MR. BRIGHAM:
Q. I would like to show you what I'm marking as Government
Exhibit 111. Do you recognize that document, Mr. Quintana?
A. Engine run up trim check.
Q. For what aircraft is that?
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183 QUINTANA - Cross
A. 705.
MR. BRIGHAM: Move to admit, Your Honor. I
believe we have a stipulation.
MR. DUNLAP: No objection.
THE COURT: Government Exhibit 111 is received
into evidence.
[Government Exhibit 111 received in evidence].
BY MR. BRIGHAM:
Q. Sir, you worked at SabreTech for quite some time as a
project manager, is that correct?
A. Yes, sir.
Q. And you got to know Mr. Gonzalez well, is that right?
A. As a co-worker, yes.
Q. And you worked with him on a regular basis, is that
right?
A. Yes, sir.
Q. There came a time that you left SabreTech, is that
right?
A. Yes, sir.
Q. And the reason you left is because --
MR. MOSCOWITZ: Objection, Your Honor. This is
beyond the scope of direct.
THE COURT: Doesn't impeachment figure into it?
It usually does when you are cross-examining. I suppose
this is for impeachment purposes.
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184 QUINTANA - Cross
MR. MOSCOWITZ: I don't see how this would be
impeachment, Your Honor, the circumstance of his leaving.
THE COURT: Before telling me why he left, I have
to ask -- ask him if he left under any circumstance that
caused anybody, that he has any bad feeling to anybody in
this case. You are trying to show impeachment, I guess.
If that's the purpose, it's relevant. The objection is
overruled. Ask your question. We will see if there's
another objection.
BY MR. BRIGHAM:
Q. Sir, is it not a fact that you left because you were
not able to obtain enough work to work on your aircraft?
A. I wasn't able to obtain enough electricians and sheet
metal mechanics to work on the aircraft.
MR. BRIGHAM: No further questions.
THE COURT: Redirect examination, Mr. Dunlap?
MR. DUNLAP: No questions.
THE COURT: Your next witness.
MS. MOSCOWITZ: Your Honor, at this point we have
a matter that we need to bring up with Your Honor.
THE COURT: Fine. If you'll step into the jury
room, ladies and gentlemen.
[The jury leaves the courtroom].
MS. MOSCOWITZ: Your Honor, at this point, I have
proposed to put on two witnesses that the government has
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185 QUINTANA - Cross
informed me they wish to move in limine about. And we
agreed and there's also an issue that counsel for one of
the witnesses wants to bring up, and we thought we should
address it before, Your Honor, without the jury present
before putting the witnesses on the stand.
THE COURT: All right. It just doesn't float
down out of the ceiling of the courtroom, somebody has to
move for something.
MS. MOSCOWITZ: It's not my motion.
THE COURT: I understand it's not your motion,
but we are all just sitting here looking at each other,
aren't we. Does anybody have a motion? If not, we'll
bring the jury in and move on.
MR. BRIGHAM: The United States does have a
motion, Your Honor. We would like to move in limine for
the exclusion of the testimony of the following two
witnesses. Our understanding is that the defense intends
to call Ms. Kathleen Wheaton.
She is apparently a phone operator who, we
understand that the testimony would be along the lines that
on May 21, she was asked to set up a conference call with
various ValuJet employees and lawyers representing ValuJet.
During this conference call, one of the individual
participants, who would be, I understand a proposed
witness, made statements during the conversation along the
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186 QUINTANA - Cross
lines of, I hope the public or the FAA does not find out
that we are not following certain recommendations to keep
these doors closed. She is going to testify about that
conversation.
THE COURT: Tell me that now? Keep a door
closed?
MR. BRIGHAM: Your Honor, it's hard for me to
anticipate from the Jencks that I received. My
understanding is that this witness would say, and I'm
quoting, "I hope the public or the FAA does not find out
that we do not follow McDonnell Douglas' recommendations to
keep those doors closed. If the doors were closed, it
would contain the fire." We submit that this is hearsay.
It is not permissible testimony.
THE COURT: Here's a lady saying what she said.
MR. BRIGHAM: No, what she overheard someone else
saying.
THE COURT: If we have the predicate then we
know. We need to know who was there, what was said and
when it was said. Who, what, where, why. Simple, we do
that every time when we know what is hearsay. You can't
have hearsay in the abstract. The room may have been filled
with SabreTech employees. It may have been filled with
government agents. I don't know. Either one of those
would take it out of hearsay.
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187 QUINTANA - Cross
Was this on a telephone conference call?
MR. BRIGHAM: Yes, Your Honor. The "when" is May
21, 1996.
THE COURT: This is after the crash. This lady
is one of the participants. Who are the others?
MR. BRIGHAM: She is not a participant. She is a
telephone operator.
THE COURT: She heard it. That made her a
participant.
MR. BRIGHAM: Yes. The "who" at the meeting with
other ValuJet employees and lawyers.
THE COURT: Does she know who made the remarks?
MR. BRIGHAM: I assume so. She's not my witness,
Your Honor.
THE COURT: Does she know, Ms. Moscowitz, who
made --
MS. MOSCOWITZ: Yes, Your Honor. By virtue of
the method that's used to setup the call, she knows exactly
who is speaking because she's monitoring the call.
THE COURT: Who made the call?
MS. MOSCOWITZ: One of the ValuJet executives,
Your Honor. His name is Gil Morgan. He was the Vice
President at that point.
THE COURT: Of ValuJet.
MS. MOSCOWITZ: Yes, sir.
TOTAL ACCESSTM COURTROOM REALTIME TRANSCRIPTION
188 QUINTANA - Cross
THE COURT: And so, Mr. Gil Morgan, this lady
would testified if she were permitted to give her
statement, that that ValuJet employee made that statement.
Why can't we call Mr. Gil Morgan?
MS. MOSCOWITZ: He is here too, Your Honor. He
is under subpoena. I met with him and his lawyer before
hand, and he tells me he has no recollection of such a
call.
THE COURT: I suppose you could impeach him and I
suppose you could ask him about it.
MS. MOSCOWITZ: That's exactly our plan, Your
Honor.
THE COURT: Well, aren't we getting way ahead of
the game. The first witness is Mr. Gil Morgan, not
Ms. Kathleen, whatever.
MS. MOSCOWITZ: Correct.
THE COURT: All right. Do we have a motion in
limine about Gil Morgan?
MR. BRIGHAM: Yes, Your Honor. It would be based
on same grounds. It would be hearsay grounds.
THE COURT: His own statement? His own words?
MR. BRIGHAM: Right, because he is not a party
opponent in this case, Your Honor.
THE COURT: Doesn't have to be. Anybody can come
in here and say on a certain day I said, close the door or
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189 QUINTANA - Cross
whatever I said. And then you can cross-examine him.
That's perfectly proper. It's not hearsay.
MR. BRIGHAM: Your Honor, though, in that
circumstance, you would have to show a connection of some
personal knowledge on the part of that witness. Someone
can't come in and say --
THE COURT: He said I said it. That can't get
any more personal. It's even more personal than saying my
wife said it. I said, close the door. Then you can
cross-examine me all afternoon on whether I said it or not.
MR. BRIGHAM: But then what becomes relevant is
-- that type of statement would be relevant if, for example
one of the party opponents made it. But to have a witness
called in simply for the purpose of impeaching that
witness, setting up a strawman who will fall to be
impeached by another witness is, we submit improper in this
case, especially since --
THE COURT: That's not setting up a strawman.
That is simply, you are hopeful, that he will make the
statement which the lawyer offering it in good faith
believes to be the truth, that it is hopeful, that he will
say, yes, while on that conversation I did say close the
door.
Now, if in good faith you hope and you expect
that he is going to tell the truth about the matter, then
TOTAL ACCESSTM COURTROOM REALTIME TRANSCRIPTION
190 QUINTANA - Cross
you can offer it. Then if he does not, and that comes then
as a surprise to you, you can declare him a hostile witness
and impeach him until the cows come home.
The fact that you all are so chummy with each
other and gotten together in the hall and somebody says, we
are going to assert the Fifth Amendment or whatever we're
going to do, it doesn't change it, that the reason for
calling Mr. Gil Morgan, by the defense, in the first
instance, is to ask him whether or not, I take it, I guess
he's sitting here listening to all of this.
MS. MOSCOWITZ: No, he is not.
THE COURT: Mr. Gil Morgan present or his counsel
present?
ATTORNEY: Counsel is present, Your Honor.
THE COURT: Counsel, but not Mr. Gil Morgan? I
suppose he is going to be asked, he's not going to be asked
about a phone conversation. He's going to be asked whether
ValuJet closed the doors or secured them or locked them or
whatever this issue is.
I don't know what he is going to say. I think
that Ms. Moscowitz, hopes that he is going to tell the
truth and say no, we didn't do that all the time. Well,
did you ever express the view that - well, if he says that
she doesn't go any further, I guess. If he says, no, we
didn't do that; we always close the door so the fire
TOTAL ACCESSTM COURTROOM REALTIME TRANSCRIPTION
191 QUINTANA - Cross
wouldn't get out, then she would say, what about this
statement on this conversation.
That's how the conversation comes into effect. I
don't know of any way to exclude it in advance. I mean,
first of all, I would have to assume that somebody is not
going to -- now we have got lawyers standing up. Come up
here, and tell me who you are and your objection.
MR. SALTSMAN: My name is Richard Saltsman. I'm
here on behalf of Mr. Morgan.
MR. BERRUTH: Robert Berruth on behalf of ValuJet,
AirTran, and their attorneys, and other participants in the
phone call.
THE COURT: I did not mean to mispronounce your
client's name. I just never heard it before.
MR. SALTSMAN: I understand. I just want to make
sure it got corrected in the record, Your Honor.
THE COURT: If you would please, spell it for the
record.
MR. SALTSMAN: Yes, its S-a-l-t-s-m-a-n.
Mr. Morgan is M-o-r-g-a-n.
THE COURT: Gil Morgan. G-i-l M-o-r-g-a-n, all
right, thank you.
MR. SALTSMAN: If I could, for a second, go back
to the first issue on our minds, which is attorney/client
privilege. As I understand it from having spoken to
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192 QUINTANA - Cross
Ms. Moscowitz, the conversation in question that has been
represented was on May 21, 1996, and the participants, in
addition to Mr. Morgan, were four counsel, four lawyers,
one inside counsel for ValuJet, CEO a Mr. Pretty, and a
representative from their insurer.
The question has been put to Mr. Morgan as to
whether or not he recalls this conversation. He does not
recall this conversation. He does not recall having
participated in this conversation.
THE COURT: They're going to ask them first if
they always close the fire doors and whether he told his
lawyers, yeah, or nay on that, wouldn't relieve him from
the obligation of responding to a subpoena, and answering
truthfully questions about whether he is an executive of
ValuJet, knew that they followed the regulations of closing
the fire doors, or he didn't.
MR. SALTSMAN: I think that is a slightly
different question than the one that had been posed,
however. What has been posed, Your Honor --
THE COURT: Let's deal with the ones that are
going to be asked, not the ones that may never be posed.
MR. SALTSMAN: The ones that are going to be
asked as has been represented is -- are questions that
occurred, or comments that occurred during the course of
this specific telephone conference, which was between
TOTAL ACCESSTM COURTROOM REALTIME TRANSCRIPTION
193 QUINTANA - Cross
counsel --
THE COURT: Let me interrupt you and ask
Ms. Moscowitz, do you intend to ask him whether or not he
had a practice of violating the FAA regulations?
MS. MOSCOWITZ: I'm going to ask, "in your job,
did you learn that certain doors on flight 592 have been
opened in violation of McDonnell Douglas' safety
recommendations and FAA rules"?
THE COURT: You're not going to ask him, do you
know, you're going to ask him did he learn?
MS. MOSCOWITZ: Did he know.
THE COURT: So what fire doors are we talking
about, cargo fire doors or passenger doors or what?
MS. MOSCOWITZ: Any doors. Doors.
THE COURT: Doors on the airplane.
MS. MOSCOWITZ: Doors that would have contained
the fire.
THE COURT: Doors that would have contained the
fire.
MS. MOSCOWITZ: And we have heard of such doors,
Your Honor, in Mr. Fogg's testimony.
THE COURT: You are going to ask him if he knew
that on ValuJet airplanes, personnel on ValuJet opened
doors to compartments that were designed to contain fires.
MS. MOSCOWITZ: Yes, sir.
TOTAL ACCESSTM COURTROOM REALTIME TRANSCRIPTION
194 QUINTANA - Cross
THE COURT: And I assume he will say, yes or no,
whatever truthfully he knows about that. And after that, I
suppose you are going to ask him if he ever said that he
knew that these doors were thrown open. And he will say,
yes or no, or I don't know.
At that point in time, there's the question of --
I don't know where it goes from there. You see, you can't
anticipate everything. These motions in limine --
MR. SALTSMAN: However, Your Honor, in this case,
the supposed statement from Mr. Morgan is one which was
supposedly made during the course of a conversation between
attorneys and their clients.
THE COURT: Which we'll never get to. Right now,
we are dealing with a witness subpoenaed, who is an officer
of ValuJet, as I understand it or was at the time, to be
asked about his personnel of his company opening fire
doors. That's all that we were talking about at this
point.
MR. SALTSMAN: I realize the problem of jumping
ahead, but --
THE COURT: Let's don't jump ahead. We will take
it that far, and then Ms. Moscowitz, before you get into --
well, she has to ask him if he has ever made a statement.
MR. SALTSMAN: And he will say, no.
THE COURT: Then fine. He says, no, in front of
TOTAL ACCESSTM COURTROOM REALTIME TRANSCRIPTION
195 QUINTANA - Cross
the jury. Then we will excuse the jury and determine
whether or not he has any other attorney/client privilege.
Were there any other people, other than attorneys on this
call?
MR. SALTSMAN: The other people, as I understand
it, Your Honor, were the CEO of the company, Mr. Morgan,
himself, and then a representative from their insurer,
which was U.S.A.I.G.
THE COURT: Were they all lawyers for Mr. Morgan?
MR. SALTSMAN: No. For the company, Your Honor.
THE COURT: Everybody on this call was a lawyer?
MR. SALTSMAN: No, Sir. Mr. Morgan was not a
lawyer. He was Vice President of Contracts.
THE COURT: Anyone else?
MR. SALTSMAN: Mr. Pretty was not a lawyer. He
was CEO of the company, and I understand there was another
participant in this call, who was a representative from the
company's insurer, U.S.A.I.G.
THE COURT: So if the statement was made in the
presence of the several people, even if one of them is your
own lawyer, doesn't that remove it from the attorney/client
privilege?
MR. SALTSMAN: No, sir. I think that in this
context, the client, who is the company, and, perhaps, its
executives, but certainly the company -- and we don't know
TOTAL ACCESSTM COURTROOM REALTIME TRANSCRIPTION
196 QUINTANA - Cross
anything more about what was said during the course of this
conversation. But it was obviously a conversation in which
company counsel were conferring with their client. Now
what has been represented to the Court is that the
impeachment evidence will be from a telephone operator.
THE COURT: Let me interrupt you. What we are
going to do is have an evidentiary hearing outside the
presence of the jury and proffer the testimony briefly,
very briefly, and then at the end of that, I will listen to
your objections.
Let's see, it's 3:57. Let's call in Mr. Morgan
and put him on the stand under oath, and ask him whatever
questions you are going to ask him.
MR. DUNLAP: Thank you, Your Honor. May I bring
one more thing to the attention of the Court.
THE COURT: Excuse me, just a minute. Sir, if
you all want to -- is there room? What did you say, I
didn't hear you Mr. Dunlap? You want to give him room or
chairs or what? You want to give him your chair so he can
be up front?
MR. DUNLAP: Your Honor, I want to bring to the
attention of the Court that I neglected to ask Mr. Quintana
about five minutes worth of questions. If I could please
have the indulgence of the Court. He's coming back after
we get through with this. If I could just put him on for
TOTAL ACCESSTM COURTROOM REALTIME TRANSCRIPTION
197 MORGAN - Direct
five minutes?
THE COURT: I have no problem with that.
THE COURT: All right, sir. If you step up here,
take a seat in the witness box. The attorneys, if you
would please. Why don't you come up here, if you would
please, and sit in the jury box. At least, you can see and
hear a little better.
COURTROOM DEPUTY: Please be seated. State your
full name, spelling your last name for the record. THE
WITNESS: Andrew Gilbert Morgan, Junior. M-o-r-g-a-n.
Gil Morgan, DEFENDANT'S WITNESS, SWORN.
DIRECT EXAMINATION
MS. MOSCOWITZ: Mr. Morgan, were you employed by
ValuJet in May 1996?
A. Yes, I was.
Q. In what capacity?
A. Vice President, contracts.
Q. In May of 1996, after the time of the ValuJet accident
regarding flight 592, did you participate in any activities
related to the crash?
A. Yes, I was in Miami for approximately two weeks with
the family.
THE COURT: Pull the microphone to you. Pull it
right up there and speak into it. You are here with your
family, yes.
TOTAL ACCESSTM COURTROOM REALTIME TRANSCRIPTION
198 MORGAN - Direct
THE WITNESS: I'm sorry, Your Honor. If I could
repeat that.
THE COURT: Certainly.
THE WITNESS: The company sent me with other
employees to Miami to be with the families of those who
lost loved ones of flight 592 for about a two week period.
And then I was involved with management discussions and
coordination, et cetera.
BY MS. MOSCOWITZ:
Q. In your job, sir, did you know that certain doors on
ValuJet 592 had been opened on that flight, in violation of
McDonnell Douglas' recommendations and FAA rules?
THE COURT: That's a compound question. You will
have to break that down into several parts. Break it down.
BY MS. MOSCOWITZ:
Q. In your job, did you know that certain doors had been
opened on ValuJet flight 592?
A. No.
Q. Did you ever tell anybody, express to anyone that you
hope no one ever learned that various doors on the ValuJet
flight 592 had been opened?
A. No.
Q. Did you ever express to anyone that you hope that no
one learned that this was a violation of McDonnell Douglas'
recommendations?
TOTAL ACCESSTM COURTROOM REALTIME TRANSCRIPTION
199 MORGAN - Direct
A. No.
Q. Did you ever express a view that had those doors been
closed as they should have been, the fire would have been
contained?
A. No.
Q. Are you stating, sir, that you never had this
conversation or you don't remember having such a
conversation?
A. I never said things like you asked.
Q. Did you have occasion to participate in a conference
call, arranged by a Sprint conference operator, in May 1996?
A. I participated in many conference calls that were
arranged through Sprint. I do not recall if I was involved
in any conference calls in May. I do know from June
forward, that I was.
Q. On the calls that you arranged through -- that you
participated on that were arranged through Sprint, were the
bills sent to your attention?
A. I don't recall if I saw and approved the bills or not.
Q. Did you yourself arrange those conference calls?
A. I do remember that as of June, I had responsibility to
set up conference calls and they were very frequent. I
don't remember if they were daily or not, but they were very
frequent. I don't know for sure, one way or the other,
whether I was doing that in the month of May.
TOTAL ACCESSTM COURTROOM REALTIME TRANSCRIPTION
200 MORGAN - Cross
Q. Did you participate in a conference call arranged by a
Sprint operator on May 21, 1996, together with John Innis,
Mike Murlow, Steve Markoff, Russ Miratile, M-i-r-a-t-i-l-e,
Robert Pretty, P-r-e-t-t-y, and Alan Maine?
A. I don't recall being in a conference call in May, one
way or the other.
Q. Was your telephone number at that time, 770-907-2591?
A. Yes, it was.
Q. Was that your personal telephone number?
A. Yes, it was.
MS. MOSCOWITZ: Nothing further, Your Honor.
THE COURT: Anything further you wish to bring
out from your client?
MR. SALTSMAN: Not at this time.
THE COURT: Any other questions from anybody?
MR. BERRUTH: May I address the Court?
THE COURT: Do you have any questions?
MR. BERRUTH: No.
MR. BRIGHAM: I do, Your Honor.
THE COURT: All right. Go ahead.
CROSS EXAMINATION
BY MR. BRIGHAM:
Q. Mr. Morgan, as part of your responsibilities, did you
at any time, have personal knowledge of the operations of
ValuJet planes, the operations?
TOTAL ACCESSTM COURTROOM REALTIME TRANSCRIPTION
201 MORGAN - Cross
A. I don't have personal knowledge of the operation of the
aircraft.
Q. Do you have personal knowledge with respect to the
requirements of the maintenance manuals with respect to
whether doors would be opened or closed?
A. No.
Q. Did you, at any time up through May 21 of 1996, have
such personal knowledge?
A. No.
MR. BRIGHAM: No further questions.
BY THE COURT:
Q. Anything you knew or might have known, in June or July
or whatever, about what was occurring on that airplane? Am
I correct in assuming that that information would have come
to you from someone else?
A. Yes, sir. I coordinated an effort on getting the
company started again and on getting attorneys together to,
you know, provide counsel and advise to different people in
the company.
But it was a coordination effort where I would set
up meetings. It was not an effort where I got into any of
the details from a technical standpoint or operational
procedure standpoint. It was administrative role.
Q. If anyone in the course of those administrative
responsibilities had volunteered information to you
TOTAL ACCESSTM COURTROOM REALTIME TRANSCRIPTION
202 MORGAN - Cross
concerning how the crash occurred, or what happened on the
flight, that would necessarily, would it not, have come from
someone else? It doesn't come from your personal knowledge?
A. Yes, sir, that's correct.
THE COURT: Thank you, sir, you may step down and
have a seat outside. We will get to you as quickly as we
can.
THE WITNESS: Thank you, Your Honor.
THE COURT: Question.
MR. BERRUTH: Robert Berruth on behalf of
ValuJet, Your Honor, and their insurers.
Your Honor, this may be in an abundance of
caution, but because there is ongoing litigation involving
ValuJet and, it's successor, AirTran, and because we have
questionings which are posed by counsel for the defendants
here, relating to this conference call, by and between
ValuJet, some of it's corporate officers and its counsel
inside and outside and it's insurer, we wish to assert the
attorney/client privilege as to these conversation taken
placed, and not be considered to have waived any such
privilege which exists or acquiesce in this questioning of
this witness, or any of the other participants to the phone
call.
And additionally, I may be putting the cart in
front of the horse here, for the next proposed witness,
TOTAL ACCESSTM COURTROOM REALTIME TRANSCRIPTION
203 MORGAN - Cross
Ms. Wheaton, who claims to be an invitee to the phone call,
which we do not agree to, accept, or conceive, such that
any privilege would have been destroyed. Any of her
testimony, we assert, would constitute an unwarranted
invasion into the attorney/client work product privilege
and defendant, its insurer, U.S.A.I.G., and all of the
individuals who are participants in the phone call.
THE COURT: Who would like to respond to that,
Ms. Moscowitz?
MS. MOSCOWITZ: First of all, Your Honor, with
respect to the attorney/client privilege, Ms. Wheaton, will
testify that it is Sprint's regular practice, and was in
this case, that they offer the special service of staying
on the line for you, so that if anybody has a problem, gets
dropped off, the operator can get them back on the line.
So, she was indeed invited to be on the call.
That waives the privilege. It was our position also, Your
Honor, that this call reflects an attempt to cover up
knowledge regarding the cause of this accident, which was
under active investigation by law enforcement agencies at
the time, and would certainly fall within the crime-fraud
exception to the attorney/client privilege.
With respect to the hearsay issues, there are two
levels of statements against interest, whoever was reporting
to Mr. Morgan was reporting a cause -- they are both --
TOTAL ACCESSTM COURTROOM REALTIME TRANSCRIPTION
204 MORGAN - Cross
whoever reported to him was an agent of ValuJet reporting
the cause of the crash.
THE COURT: How do you know that?
MS. MOSCOWITZ: Because it has to be somebody
with knowledge of the operation of that plane.
THE COURT: It could have been national
transportation safety board hoonshaw, whoever he was,
chairman of that board, could have told him, we
investigated this and it's our opinion, such and such, or I
found out doors -- we don't know who. He said that
whatever he learned, he would have learned from somebody
else. That, we know, then would be hearsay. Now we are
looking for an exception, whether or not there is an
exception.
MS. MOSCOWITZ: Certainly his statement is a
statement against the interest of ValuJet. He is inviting
a cover up. He says, we can't let the public know that we
violated the FAA rules in the McDonnell Douglas' safety
recommendations, and if we had done what we were supposed
to do, the fire would have been contained.
THE COURT: Well, I have a lot of difficulty with
that as being offered for the truth of the fact. That is,
that that event actually happened or may have happened on
the flight. It all depends on how he knows that
information. If, for example, his next door neighbor
TOTAL ACCESSTM COURTROOM REALTIME TRANSCRIPTION
205 MORGAN - Cross
leaned across the fence and said hey, did you know the
first officer went back and threw open the cargo door, and
squirted the fire with the fire extinguishers. And he says
no, how did you find that out. And he says, I heard that
it's all over the airport; everybody is talking about that
or whatever.
So he goes in the next day and he is on a
conference call and he says, I sure hope they don't find
out about that rumor that I've heard. That wouldn't make
the rumor truthful you see. It would be akin to somebody
coming in to -- I don't want to pick on you -- Mr. Dunlap's
office and saying Mr. Dunlap, I heard that in the murder
case last week, that John was the trigger man.
Mr. Dunlap gets on the phone and calls Mr. Raskin
and says, boy I hope they don't find out about your client,
John. I just heard he was the trigger man and then you
call Mr. Dunlap to -- the government does, to prove in the
murder case that John is the trigger man that killed his
wife.
So you see, the evidence that you wish to assert
for the truthfulness of the matter has to have some degree
of genuineness. We have to have some showing that, in
fact, it happened and is truthful --
MS. MOSCOWITZ: Your Honor.
THE COURT: because he could say, and indeed,
TOTAL ACCESSTM COURTROOM REALTIME TRANSCRIPTION
206 MORGAN - Cross
anyone could say anything. All you got to have is someone
that has made a statement that somebody went down the steps
of the courthouse this afternoon and said, did you know
that the first officer opened up the doors and squirted it
with a fire extinguisher, and tried to put the fire out.
How do you know at that? Well I heard the Judge say it.
Well, my goodness. So you call the guy to
establish that that is a truthful statement there. Herein
lies the problem with it. That it's the genuineness of the
statement, it's not that normally the person will say that
I said that they didn't keep the doors closed and the fire
got into the cabin.
MS. MOSCOWITZ: Your Honor, the context supplies
the guarantees of trustworthiness. The context is people
in what they wrongly believe was a private conversation
saying, I hope the public or the FAA does not find out that
we did not follow McDonnell Douglas' recommendations to
keep those doors closed. If the doors were closed, it
would contain the fires.
THE COURT: How does he know that? Does he know
that because his neighbor told him? Because the chairman
of the board told him or because somebody that had just
flown on the flight two weeks before and saw them throw
open the doors and had a normal procedure.
MS. MOSCOWITZ: They don't say it's a rumor, Your
TOTAL ACCESSTM COURTROOM REALTIME TRANSCRIPTION
207 MORGAN - Cross
Honor. They're trying to keep it quiet. You don't have to
keep it quiet, if it isn't true.
THE COURT: That's a quantum leap.
MS. MOSCOWITZ: That's what a statement against
interest is supposed to be. If you say something that's so
adverse to yourself, with any qualification, the
presumption is, it's true because otherwise, why would you
say something like that.
THE COURT: No presumption is true. It makes it
admissible, if it's otherwise genuine, a person then says
-- makes a statement to again, the person goes to
Mr. Dunlap and says, I shot my wife. Well, he wouldn't say
that if he actually didn't do it. Here, if you had a
person who survived the flight, the tragic flight that is
the bearer of that bit of evidence about the doors being
open, for example, hypothetically if the first officer
survived and he tells Mr. Morgan that we threw open the
doors, and I tried to put out the fire, and Mr. Morgan then
makes this admission against interest when he's talking
about the cooperate executives, then you've got the case of
probable genuineness of the statement of a legitimate
source and somebody who would know.
But for this man to repeat this, it's shocking.
It's attention grabbing, probably headline grabbing and
otherwise. But there's, without some showing that he was
TOTAL ACCESSTM COURTROOM REALTIME TRANSCRIPTION
208 MORGAN - Cross
doing anymore than repeating one, a rumor that he heard or
one of a dozen rumors he heard, saying that I hope they
don't find out about that, I hope they don't find out about
the duct tape inside, I hope they don't find out about the
dimming of the lights. But you have to proof the dimming
of the lights that were on the flight from Atlanta to
Miami.
But here, you don't have any proof of this being
something that came from -- the objection of the motion of
the limine is sustained, absent of showing that there's
something more genuine to the underlying fact that you
attempt to prove, which is someone on that flight threw
open the doors and attempted to put out the flames.
MS. MOSCOWITZ: Actually, I don't think that's
what it shows. I think it shows --
THE COURT: I've ruled on that. If you get some
other evidence, bring it in, fine. If you wish to call in
the lady, I will permit you to bring her in so you will
have a complete proffer.
MS. MOSCOWITZ: I think I should do that.
THE COURT: All right, call the lady.
THE COURT: By the way, I agree with you and make
this a finding that this is a crime-fraud exception to the
hearsay rule, quite clearly. I was just wondering when
somebody was going to bring it up, and you did it at your
TOTAL ACCESSTM COURTROOM REALTIME TRANSCRIPTION
209 WHEATON - Direct
earliest opportunity. I think, quite clearly, you can't
talk about the commission of a crime and have any degree of
attorney/client privilege, but that's for another matter.
Yes, ma'am. Would you kindly step up here? The court
reporter will show you where to sit.
KATHLEEN WHEATON, DEFENDANT'S WITNESS, SWORN.
DIRECT EXAMINATION
COURT REPORTER: State your full name, spelling
your last name for the record.
THE WITNESS: Kathleen Wheaton, W-h-e-a-t-o-n.
THE COURT: Could you repeat your name please?
THE WITNESS: Kathleen Wheaton, W-h-e-a-t-o-n.
BY MS. MOSCOWITZ:
Q. Mrs. Wheaton, where do you live?
A. Jacksonville, Florida.
Q. In 1996, where were you employed?
A. Sprint conference center.
Q. What did you do there?
A. I was a Sprint conference agent. I put up conference
calls and announced people into their conference and
monitored for any breaks or background noises.
Q. In arranging conference calls, would you know which
person was the speaker during a particular conversation?
A. Yes.
Q. How would you know that?
TOTAL ACCESSTM COURTROOM REALTIME TRANSCRIPTION
210 WHEATON - Direct
A. When someone called in, I would ask what conference
they were calling for. They would tell me. I would type
their name. Ask them how to spell it for our records, and I
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