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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
DECEMBER 1, 1999
SABRETECH, INC.
DANIEL GONZALEZ, WEDNESDAY - 9:00 A.M.
EUGENE FLORENCE,
Defendants.
JURY TRIAL PROCEEDINGS
BEFORE THE HONORABLE JAMES LAWRENCE KING,
SENIOR UNITED STATES DISTRICT JUDGE
DAY 11
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
TOTAL ACCESSTM COURTROOM REALTIME TRANSCRIPTION
3
INDEX
Description Page Line
CLOSING ARGUMENTS:
BY THE GOVERNMENT .....................74 1
BY DEFENSE FLORENCE ...................148 15
N PB,D LC,E B
UNITED STATES vs SABRETECH, ET. AL - 12-1-99
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MORNING SESSION
9:00 A.M.
THE COURT: I have before me the government's
jury instructions labeled "second version," which I believe
is the up-to-date, current instructions. I also have the
defendants' jury instructions. Have you had an opportunity
in this past hour and ten minutes to get together and
consolidate some of these? Mr. Moscowitz.
MR. MOSCOWITZ: We have, Your Honor, we just
haven't finished going through it. We have gone through, I
believe, most of them. We have agreement on many of the
standard instructions. We have disagreements on a number
of the offense instructions, and a number of additional
instructions we wish to give. I think we need about
another half hour or 40 minutes to complete going through
them. I think we can get together a single set. I can
tell, Your Honor, with regard to the defense case, we will
not have any further testimony this morning. All that is
left is to seek the admission of some additional exhibits
and then we will rest.
THE COURT: All right. We will defer
commencement of the charge conference with appreciation for
your efforts this morning in the last hour or two to
attempt to resolve some of the differences that you have.
We will proceed, at this time, with the jury and take
UNITED STATES vs SABRETECH, ET. AL - 12-1-99
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whatever documents or exhibits or other matters that you
wish to present. After that, we will take any rebuttal
testimony that the government may have. Then after that,
we will have a charge conference. Are we ready to bring in
the jury?
MS. MILLER: Your Honor, perhaps, if there are
contentions over the exhibits, we should deal with those
before the jury comes in. They will probably --
THE COURT: All right. Do you have any
objections?
MR. DUNLAP: Your Honor, a couple of these relate
to Ms. Moscowitz, and we are awaiting her arrival, just in
the office.
THE COURT: Let's take the ones that don't
involve her.
MS. MILLER: I don't know that there are any
disagreements on any that don't involve Ms. Moscowitz, Your
Honor.
THE COURT: So the ones, as far as you know, are
those that involve the defendant Florence?
MS. MILLER: That's correct, Your Honor.
THE COURT: We are taking up the objections to
the defendant Florence's proffered documents.
MS. MOSCOWITZ: Your Honor, we may have an
agreement on an exhibit, if you will indulge us a moment.
UNITED STATES vs SABRETECH, ET. AL - 12-1-99
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MS. MOSCOWITZ: Your Honor, the government and
the defendants have reached an agreement on ST11.
THE COURT: Let's bring in the jury and offer it
into evidence.
MS. MILLER: Your Honor, Mr. Dunlap is telling me
of additional exhibits.
THE COURT: I want to take up the ones that you
disagree with, and let's get them resolved.
MS. MOSCOWITZ: Well, we disagree, on my 23 which
is the FAA aging transport non-structural systems plan.
THE COURT: This is the one that we were talking
about last evening?
MS. MOSCOWITZ: Yes, sir.
THE COURT: I think I understand the government's
objection. How do you distinguish this from any other
document? Why is it not necessary to call somebody that
can be cross-examined on the opinions of this person?
MS. MOSCOWITZ: It's a government report, Your
Honor, that would come in under the public records
exception. It's authentic, and it is admission and a
public record.
THE COURT: Pardon me. The objection is
sustained. It will be marked for identification. Mark it.
What else do we have?
MS. MILLER: Your Honor, if I could have a
UNITED STATES vs SABRETECH, ET. AL - 12-1-99
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minute. Mr. Dunlap has some additional documents. It
might be that I could agree with them. I do need a moment
to look at them, Your Honor.
THE COURT: I think we can do all of this in
front of the jury. They can offer it and you can glance at
it, and make your objection and let's move on. There were
only two exhibits last night that we haven't talked about.
This is one of them. The other one, I don't know what it
was. It is the one, I believe, that Ms. Moscowitz referred
to as not caring if it got into evidence or not. I know
she was being facetious at the end of the day. But if we
can have that document, I'll make a ruling on it, and then,
life goes on. What is that document?
MS. MOSCOWITZ: By agreement, 27, 28, 29 --
THE COURT: Just tell me about those that you
don't agree on.
MS. MOSCOWITZ: I don't know any other ones we
don't agree with.
MR. RASKIN: We agree with everything else, Your
Honor.
THE COURT: You agree on everything else. All
right. Fine. Bring in the jury.
[The jury returns to the courtroom].
THE COURT: Thank you. Be seated, please.
Mr. Raskin?
UNITED STATES vs SABRETECH, ET. AL - 12-1-99
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MR. RASKIN: At this time, SabreTech would like
to move some exhibits into evidence. We would like to move
in SabreTech Exhibit Number 14.
THE COURT: Show it to Ms. Miller and see if she
has any objection?
MS. MILLER: No objection.
THE COURT: SabreTech Exhibit 14 is admitted into
evidence.
[Defense Exhibit 14 received in evidence].
MR. RASKIN: Thank you, Your Honor. It's a
haz-mat table.
SabreTech Exhibit 13 which is another haz-mat
table.
MS. MILLER: No objection, Your Honor.
THE COURT: SabreTech Exhibit 13 is admitted into
evidence.
[Defense Exhibit 13 received in evidence].
MR. RASKIN: SabreTech would also introduce
Defendant's Exhibits 27, 28 and 29 which are amendments to
the ValuJet contract, Your Honor.
MS. MILLER: No objection, Your Honor.
THE COURT: SabreTech Exhibit 27, 28 and 29 are
each admitted into evidence.
[Defense Exhibit 27, 28, 29 received in evidence].
MR. RASKIN: Your Honor, SabreTech would also
UNITED STATES vs SABRETECH, ET. AL - 12-1-99
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move to admit, at this time, SabreTech Exhibit Number 8,
which are the maintenance records of ValuJet plane 802.
It's extremely voluminous, and I suggest that we bring it
up at the next break.
MS. MILLER: I have no objection either to the
exhibit or to the procedure counsel proposes.
THE COURT: What was the number please?
MR. RASKIN: 8.
THE COURT: SabreTech Exhibit Number 8 is
admitted into evidence.
[Defense Exhibit 8 received in evidence].
MR. RASKIN: I would also offer for admission,
SabreTech Exhibit 9, which are the maintenance records
concerning ValuJet plane 803, and I would propose the same
procedure.
THE COURT: Without objection, admitted into
evidence.
MS. MILLER: Correct, Your Honor.
[Defense Exhibit 9 received in evidence].
MR. RASKIN: I would also propose admitting into
evidence SabreTech Exhibit Number 10, which are the
maintenance records for ValuJet plane tail 830. And I
would propose the same procedure.
MS. MILLER: No objection, Your Honor.
THE COURT: Admitted into evidence.
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[Defense Exhibit 10 received in evidence].
MR. RASKIN: I offer into evidence SabreTech
Exhibit 11 which are the maintenance records, some
maintenance records concerning ValuJet aircraft tail number
904.
MS. MILLER: Your Honor, based on my agreement
with Ms. Moscowitz and that record, we have no objection.
MR. RASKIN: We have no objection, Your Honor.
THE COURT: The number is?
MR. RASKIN: 11, Your Honor.
THE COURT: 11 is admitted into evidence.
[Defense Exhibit 11 received in evidence].
MR. RASKIN: Your Honor, I believe that's it.
THE COURT: All right. Mr. Dunlap, anything
further?
MR. DUNLAP: Could I have just one second to
confer with Ms. Miller, Your Honor?
THE COURT: Sure.
MR. DUNLAP: Your Honor, we have a composite
exhibit 12A, B and C for Mr. Gonzalez.
THE COURT: Gonzalez Exhibit 12A, B and C is
admitted into evidence.
[Defense Exhibits 12A, B, C received in evidence].
MR. DUNLAP: Thank you, Your Honor.
Your Honor, we have a stipulation also. Douglas
UNITED STATES vs SABRETECH, ET. AL - 12-1-99
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aircraft serial number 45837 is the same aircraft YV720C.
THE COURT: The stipulation is recognized.
Anything further for the defendant, Gonzalez?
MR. DUNLAP: No, Your Honor.
THE COURT: The defendant, Gonzalez, rests?
MR. DUNLAP: Yes, Your Honor.
THE COURT: And the defendant, SabreTech, rests?
MR. RASKIN: That's correct, Your Honor.
THE COURT: Ms. Moscowitz?
MS. MOSCOWITZ: Your Honor, defendant, Florence,
rests.
THE COURT: Are you in a position to either rest
for the government or call a rebuttal witness?
MS. MILLER: Your Honor, in rebuttal, I will be
presenting some documents. If you can give me a moment, I
can see if we have them in the courtroom or I need to fetch
them from downstairs.
THE COURT: That will be fine. We will take a
ten minute recess. Thank you.
[The jury leaves the courtroom].
[There was a short recess].
COURTROOM DEPUTY: All rise. Court is in
session. The Honorable Judge James Lawrence King
presiding.
THE COURT: Be seated. Does the government have
UNITED STATES vs SABRETECH, ET. AL - 12-1-99
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any rebuttal testimony?
MR. BRIGHAM: Yes, Your Honor. We do not have
any rebuttal testimony, but just some particular exhibits.
THE COURT: Have you reviewed it, Mr. Raskin?
MR. RASKIN: I have, Your Honor.
THE COURT: Have any objection to it?
MR. RASKIN: I don't. Mr. Dunlap may.
THE COURT: Mr. Dunlap?
MR. DUNLAP: No particular -- the government is
offering exhibit 114, which is a part of the composite
Aserca exhibit. I have no objection to it as long as I can
feel free, as I am, to pull documents out from the
composite exhibit to show the jury as well. If I can have
one second with Ms. Heck.
THE COURT: All right. We are going to have to
move forward. Let the government offer it. You make your
objection, and I will rule on it. Bring in the jury.
[The jury returns to the courtroom].
THE COURT: After that, I propose to excuse the
jury until after lunch so we can take up the charge
conference. Is that all right?
MS. MOSCOWITZ: Yes, sir.
MR. DUNLAP: Yes, sir.
MR. RASKIN: Yes, Judge.
THE COURT: Thank you, be seated. The
UNITED STATES vs SABRETECH, ET. AL - 12-1-99
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defendants, and each of them, have rested their case. Now,
we will ask the government if they have any rebuttal
evidence they wish to present.
MS. MILLER: Your Honor, the government offers in
evidence what we will make a Government Exhibit 113, which
is the complete maintenance records of aircraft N904VJ.
MR. RASKIN: No objection, Your Honor.
THE COURT: The document is admitted into
evidence as Government Exhibit 113.
[Government Exhibit 113 received in evidence].
MS. MILLER: It is also voluminous, Your Honor.
We will physically bring it in later.
THE COURT: All right.
MS. MILLER: We also move into evidence
Government Exhibit 114, which is a two page document from
the Aserca records.
MR. RASKIN: No objection.
MR. DUNLAP: No objection, Your Honor.
THE COURT: The exhibit is admitted into evidence
as Government Exhibit 114.
[Government Exhibit 114 received in evidence].
MS. MILLER: Your Honor, that completes the
government rebuttal presentation. The government rests.
THE COURT: All right. Ladies and gentlemen, we
have to take up the matter of the Court's instructions on
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the law with the lawyers. We do this outside of your
presence. That is to say, you need to be in the jury room
or excused until we have completed this. We anticipate
that this may take an hour or so, maybe longer. So we are
going to excuse you until after lunch.
After lunch, you will return, and we will
commence the closing arguments in the case after lunch. We
invite you to go out, relax, take a walk around or
something. You will be listening to closing arguments this
afternoon. Closing arguments.
Please remember the instruction not to discuss
the case with anybody or listen to anything or read
anything or observe anything on television.
Let me ask all of you whether or not any of you
read, saw or heard anything about the case since you left
here yesterday? When you left here yesterday until today.
I'm advised there has been some publicity about the case.
We are not going to be upset with you. We need to know.
Did any of you innocently or accidently hear anything or
read anything about the case?
[All jurors indicated negative]
THE COURT: All right, thank you. We appreciate
very much you following those instructions. We ask that
you continue to do that. Marshal, if you'll take those
going to the elevator on down. We will return this
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afternoon at 1:00 today. Thank you very much.
[The jury leaves the courtroom].
THE COURT: Mr. Moscowitz, you had indicated that
you thought if you had another half hour, you might be able
to make some headway.
MR. MOSCOWITZ: We did not speak any further with
the government after the last break.
THE COURT: I understand.
MR. MOSCOWITZ: We met from 8:00 to 9:00, but
then we had not yet finished.
THE COURT: You said, when we last visited on the
matter of instructions, that if you had another half hour,
you thought you could resolve some of the areas of dispute,
that are invited in this stack of paper. Do you think that
would be productive or not? Maybe we could go through it
quicker right here. I don't know.
MR. MOSCOWITZ: I think it would be productive if
we could come to some agreement and speak about it
together.
THE COURT: All right. It's six minutes after
ten. We will resume at 10:36 with the charge conference.
Thank you.
COURTROOM DEPUTY: All rise.
MR. DUNLAP: Your Honor, may I be heard on a
matter? It's very brief.
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THE COURT: Yes, sir.
MR. DUNLAP: With regards to today's schedule, we
are going to reconvene at 2:00. I don't know --
THE COURT: At 1:00.
MR. DUNLAP: I'm sorry, Your Honor. I don't know
how long Ms. Miller will be. I understood --
THE COURT: She said about an hour and a half to
two hours.
MS. MILLER: Yes, sir.
MR. DUNLAP: It was my understanding from
yesterday's conference at the end of the day, that we were
going to proceed with Ms. Miller and with Ms. Moscowitz. I
was working until 10:30 or 11:00 last night with jury
instructions. I got up early and came here at 8:00. I was
planning on following Ms. Moscowitz, but I have not had any
time to prepare my closing argument today.
I would ask that after Ms. Moscowitz's closing,
we could adjourn for the day so that I could have the
evening to prepare and review my notes, and if I could
close tomorrow morning, I would greatly appreciate it.
THE COURT: I wish we had known this before
because I'm cancelling hearings that I have at 1:30 to
bring them back at 1:00, so we could hopefully, get two of
these out of the way today, the opening of the government
and two of the defense.
UNITED STATES vs SABRETECH, ET. AL - 12-1-99
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On this basis, we are probably going to be -- if
we start at 1:00, even if Ms. Miller takes two hours, which
she may not, but even if she does, that would put us at
3:00. Ms. Moscowitz has an hour. That would put us to
4:00.
See, this is what Ms. Miller wanted me to do last
night was to put this off, so she could have time to
prepare. She didn't specifically put it that way. Reading
between the lines, I assume that probably that's what she
was concerned about, and that is having to stay up most of
the night preparing, and getting the instructions ready and
everything else.
I don't think it's fair on my part to make her do
that and extend a courtesy which she wanted yesterday. I
have a problem with balancing the fairness. She has been
under the same pressure all of you have, even perhaps more,
so because you are able to divide the work a little bit or
have been doing so, as I understand it. I don't know what
to tell you, Mr. Dunlap.
Am I right about my guessing about why you wanted
to do this on Thursday, Ms. Miller? Does that give you
another day?
MS. MILLER: Your Honor, I thought that witnesses
don't have to answer as to their thought process.
THE COURT: You're not a witness. You're a
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lawyer.
MS. MILLER: I won't dispute the Court.
THE COURT: Well, I was just reading between the
lines. I was guessing. Obviously, the reason she didn't
want to sit here all day long in arguments, but she wanted
another day to get ready. I required her to get ready
under that kind of pressure.
MS. MOSCOWITZ: Your Honor, I'm ready. And
that's two today and three tomorrow. It's not so, the
proportions aren't so terrible.
THE COURT: Well, what it amounts to then is
you've got two hours of defense tomorrow, and one hour of
government response.
Ms. Miller, do you have any thoughts on this, you
or Mr. Brigham?
MS. MILLER: Your Honor, I always hate to impinge
on a courtesy that another attorney asks. I am concerned
about fairness issues. That was one reason why I did not,
even though the Court has read between the lines, the lines
also were true. I didn't want to be just giving my
argument and cut off from other counsel.
THE COURT: Oh, no. We wouldn't do that.
MS. MILLER: Your Honor, I guess I'm saying this
is one in which we take no position.
THE COURT: Then we will take Ms. Moscowitz and
UNITED STATES vs SABRETECH, ET. AL - 12-1-99
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recess for the day.
COURTROOM DEPUTY: All rise.
[There was a short recess].
THE COURT: Thank you, be seated please.
Starting with the government's proposed jury instructions.
No problem with number one, I take it. No problem with
number two, I take it. Number three is standard. It seems
to be all right. Number four is standard. You tell me if
there's any objections. Number five, standard. Number six
is standard.
MR. MOSCOWITZ: Seven does not apply, Your Honor.
THE COURT: Seven is withdrawn?
MR. BRIGHAM: Yes, Your Honor.
THE COURT: All right. Seven is withdrawn.
Number eight, expert witnesses. That's fine.
Number nine.
MR. MOSCOWITZ: No objection.
THE COURT: Let's see if we need to give it. Do
you need to give it, do you think?
MR. BRIGHAM: There was a statement --
THE COURT: I remember that, but it was just a
statement given in an administrative hearing, I wouldn't
call it --
MR. BRIGHAM: If the defense doesn't care for it,
we don't care for it, Your Honor.
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MR. MOSCOWITZ: We don't want it, Your Honor.
THE COURT: I don't really think -- we have got
so many to read to them. Unless you feel it will be
helpful to them, all right. We will take it aside.
MR. MOSCOWITZ: Ten is withdrawn by the
government.
MR. BRIGHAM: Yes, Your Honor.
THE COURT: Ten is withdrawn.
MR. MOSCOWITZ: 11, without objection.
MR. BRIGHAM: Agreed.
THE COURT: Yes, I've already told them this.
THE COURT: 12, note taking.
MR. MOSCOWITZ: No objection.
THE COURT: I appreciate it, Mr. Moscowitz, but
let me kind of run through them. If somebody has an
objection, that would be easier.
13, any objection?
MR. MOSCOWITZ: Yes, Your Honor. We are going to
object to 13 and 14 and 15. This description of the
functions of the department of transportation and the FAA
are not part of the elements of any of the offenses. I
don't believe they are necessary in these instructions.
Your Honor, 14 which describes the function of
the FAA, I don't believe is accurate as of the time of this
offense. This is the admission of the FAA which has been
UNITED STATES vs SABRETECH, ET. AL - 12-1-99
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amended. So I think this is really surplusage in these
instructions.
THE COURT: Where would the jury be informed, for
example, looking at page 14, instruction 14 at the last
paragraph? How would the jury be informed that repair
stations are required to maintain records, adequate records
and so on. Where would they be advised of that?
MR. MOSCOWITZ: Your Honor, I would agree that
the third paragraph goes to the issue of jurisdiction 1001.
We simply, with regard to that paragraph, part of the 1001
instruction would have a different series of regulations
describing the scope. As to the first two paragraphs,
that's a surplusage.
THE COURT: Mr. Dunlap?
MR. DUNLAP: I just want to reiterate
Mr. Moskowitz's point. I believe a description of the
requirement for a repair station to maintain records, is
fully set out in the regulations that we were discussing
yesterday at jurisdiction. That's the law. I believe
that's the sum total of what the jury needs to and should
be informed of.
THE COURT: Well, part of the function of
instructions, of course, is to define for the jury,
language in a statute or language in something, give them
definitions that they can work with, and apply to the
UNITED STATES vs SABRETECH, ET. AL - 12-1-99
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jury's findings concerning the facts from the record.
These voluminous depositions, these voluminous regulations
that you all have been bombarding me and Magistrate Judge
Brown, I think, with through these many months, probably
need to be summarized in some fashion.
Maybe the language here can be improved upon or
not. Do you have any charges touching upon, any defense
charges touching upon any of these areas that are touched
upon in 13, 14 and 15.
MR. MOSCOWITZ: Yes, Your Honor. The issue of
the regulations describing the jurisdiction of the FAA is
part of our 1001 charge. The Court, based on your prior
rulings, may not accept that entire charge.
THE COURT: Which page?
MR. MOSCOWITZ: It's page 25. That's the 1001
charge. It's starting in the middle of page 26, it
discusses jurisdiction.
THE COURT: Well 13, that's an accurate statement
of the law.
MR. MOSCOWITZ: 13 is correct.
THE COURT: The objection is overruled. I will
give 13.
14.
MR. MOSCOWITZ: Your Honor, I think the second
paragraph is not the description of the FAA's function.
UNITED STATES vs SABRETECH, ET. AL - 12-1-99
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This may be an accurate description of it's function now,
but it's function has been amended at the time of the
crash. At the time of the crash, I don't have the
definition with me, it's functions were described as others
in addition to promotions of safe flight. It had to do
with promotions of aviation, promotions of commerce. This
is simply inaccurate, and I don't believe this paragraph is
necessary for the jury charge.
THE COURT: You say that this does not describe
all of the functions of the FAA. You do not, I take it
dispute that insofar as it goes, it is accurate. It simply
leaves the wrong impression and it doesn't describe
everything? Is that --
MR. MOSCOWITZ: Right this paragraph says, "it's
mission was to promote safe flight." In fact, the way
Congress -- it's mission now reads "safe flight is it's
primary mission."
Back in 1996, there were three other parts of
it's mission, and safety, I believe was third or fourth.
It was not this definition. I don't even think this is
necessary, Your Honor, to these instructions.
THE COURT: The objection to 14 is overruled. It
will be given.
Number 15.
MR. DUNLAP: May I make a specific objection?
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THE COURT: You've got a specific objection to
everything that everyone of you objects to.
MR. DUNLAP: May it please the Court, could I
simply add to what Mr. Moscowitz said very briefly, Judge?
THE COURT: All right. But as we go through
these, if you would please, indicate that you wanted to be
heard on a given one above and beyond what somebody else
says. But go ahead.
MR. DUNLAP: I'm sorry, Judge.
THE COURT: It's all right.
MR. DUNLAP: I simply want to make it clear that
our argument on jurisdiction is still preserved. We
believe that the only thing the jury should be informed of
is what the regs say about the jurisdiction of the FAA.
In that regard, we believe the jury should be
instructed based on those regs. It is our continued
position that air station service records are only within
the jurisdiction of the FAA insofar as they pertain to
aircraft that are FAA registered. That's set forth, that
type of registration, in the language in our 1001 count. I
want to preserve that and object to any jurisdictional
language that conveys any other impression. Particularly,
I want to reiterate what Mr. Moscowitz has said. That any
admission statement of the FAA, any general language, is
really germane to jurisdiction. It's surplusage and I
UNITED STATES vs SABRETECH, ET. AL - 12-1-99
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don't think it helps illuminate the question of
jurisdiction for the jury. It only tends to reinforce the
government's broader view.
THE COURT: The objection is overruled.
The objection to defense 15 is overruled. It will
be given.
16, introductions to offense instruction.
MR. BRIGHAM: I believe we are in agreement to
that.
MR. MOSCOWITZ: Your Honor, we have one
correction. On the top of page 17. The second line should
read a destructive device and adding an "on" or "in" the
proximity. So it's "on" or "in."
THE COURT: All right, it will be added in.
Any objection to instruction 17, the general
conspiracy charge?
MR. MOSCOWITZ: Your Honor, we don't object to
the charge as given. We do have an addition to it which
the government objects to. That's on page 23 of our
instructions. We have added in, Your Honor, the names of
the unindicted co-conspirators who the government has given
pursuant to our request for a Bill of Particulars. And
also, an additional sentence regarding the liability of a
corporation charged as a co-conspirator under 11th Circuit
law.
UNITED STATES vs SABRETECH, ET. AL - 12-1-99
26
THE COURT: Mr. Brigham, do you have any
objection to the final paragraph on page 23 of defense
requested instruction?
MR. BRIGHAM: No, Your Honor. We do not.
THE COURT: All right. I am going to deny the
request to add in these names developed in discovery, but
will include --
Number 18?
MR. MOSCOWITZ: I think the government wishes to
withdraw 18.
MR. BRIGHAM: Yes, Your Honor.
THE COURT: Withdraw 18. If you wish to withdraw
something, just tell me.
19 is still requested, any objection to it?
MR. MOSCOWITZ: Your Honor, yes, we object, and
we have our own proposed instruction 19. It's instruction
15 on page 25 which tracks the standard instruction, Your
Honor, but describes the statutory basis of jurisdiction as
it relates to this count.
THE COURT: Let's see how it differs. Where does
it commence to differ?
MR. MOSCOWITZ: First of all, on the first page,
third paragraph, it says both the department of
transportation and the Federal Aviation Administration. We
would disagree with including the department of
UNITED STATES vs SABRETECH, ET. AL - 12-1-99
27
transportation on the false statement counts, since the
false statement counts only relate to the FAA. The
indictment carefully defines the jurisdiction of the
department of transportation as related to hazardous
materials and jurisdiction of the FAA as relating to
maintenance records.
THE COURT: Any objection to deleting the
department of transportation?
MR. BRIGHAM: Yes, Your Honor. The Federal
Aviation Administration is part of the department of
transportation. We have indicated that the department of
transportation had jurisdiction over --
THE COURT: But you didn't indict that way. He
says, you simply indicted the FAA.
MR. BRIGHAM: No, that's not true. We included
both, Your Honor.
THE COURT: Which one of you is telling me the
truth?
MR. MOSCOWITZ: If you look back at the
government's proposed instruction 15, the description of
department of transportation relates to hazardous
materials. That's really the definition in the indictment.
MR. BRIGHAM: Your Honor, in the indictment
itself, if I may, count II with false statements begin each
of the false statements --
UNITED STATES vs SABRETECH, ET. AL - 12-1-99
28
THE COURT: It says department of transportation
FAA. So they've tracked the language of the indictment
apparently. The objection is overruled. Where else does
it deviate?
MR. MOSCOWITZ: Your Honor --
THE COURT: You've added after a trivial detail.
You've added a whole bunch, you've added a page and a half.
Do you have objection to the page and a half commencing
with the first full paragraph on page 26 of the defense
instruction? Do you have objection?
MR. BRIGHAM: Yes, Your Honor.
THE COURT: Tell me about it.
MR. BRIGHAM: Your Honor, this returns to the
jurisdictional issue. The Court has, as a matter of law,
determined that there is jurisdiction in this particular
case. This issue was addressed to the defendants. We had
a witness waiting. They objected to the testimony of the
witnesses, for our ability to prove this factually. This
is simply another attempt to address this issue in the
contents of the instructions.
MR. MOSCOWITZ: Your Honor, this is simply a
statement of what we believe are the applicable regulations
which set out the FAA's jurisdiction with regard to
maintenance records. This is not factual argument. This
is citation to the Federal aviation regulations themselves.
UNITED STATES vs SABRETECH, ET. AL - 12-1-99
29
I don't know if counsel is arguing that these are incorrect
citations and regulations.
THE COURT: Let me hear from Mr. Dunlap.
MR. DUNLAP: With the Court's permission to
reiterate what Mr. Moscowitz said, and to address what
Mr. Brigham's comments were, the Court found jurisdiction
to the purpose of Rule 29. We argued in limine against
Mr. Weise that it was not the province of an expert to tell
the jury what he thinks jurisdiction is. We believe, of
course, it is appropriate for the Court to instruct the
jury on what the law says and what the regs say about
jurisdiction. Nonetheless, it is for the finder of fact,
the jury to take that law, the regulations, and determine
whether under the facts of this case, the documents refer
to fall within that jurisdictional framework.
THE COURT: The government's objection to defense
requested jury instruction 15 is sustained. The defense
objection to government's requested charge number 19,
dealing with false statements to a Federal agency is
overruled. The instruction will be given. It follows
substantially the pattern jury instruction, and it will be
given.
Number 20 requested charge will be given.
MR. MOSCOWITZ: Your Honor, may I state my
objection?
UNITED STATES vs SABRETECH, ET. AL - 12-1-99
30
THE COURT: To number 20?
MR. MOSCOWITZ: Yes, there's no basis in the
evidence supporting the reckless disregard charge. The
evidence does not show and we are not going to argue --
THE COURT: How about the odd number charges from
7 to 23, wasn't reckless part of it?
MR. MOSCOWITZ: No, Your Honor. There is a
separate recklessness charge. This is offered with regard
to the false statement counts, which is --
THE COURT: Whatever it is offered for, it's just
a definition. Quote, a reckless disregard of the truth
with conscious purpose to avoid learning the truth is
sufficient show that a false statement was made willfully
with knowledge of its -- it's a definition. It can apply
to anything you want to argue to.
MR. MOSCOWITZ: But, Your Honor, this specific
sentence applies to the specific intent to the making of
the false statement. With regard to the false statement
counts, there's no evidentiary basis for a reckless
disregard the truth instruction. There's no argument.
THE COURT: I'm not going to tell them, it's a
1001 charge or define it with anything. It seems to be an
accurate definition of what is a reckless disregard of the
truth. In other words, the closing of your eyes to know
what you should have known, it's a fairly standard charge.
UNITED STATES vs SABRETECH, ET. AL - 12-1-99
31
You are just worried that they are going to argue that in
reference to the false statement counts?
MR. MOSCOWITZ: Which is the way this charge is
written, Your Honor. I believe that there has to be -- to
have a reckless disregard of the truth charge, there has to
be evidence in the record showing a conscious effort to
avoid learning the truth. A mere absence of knowledge is
not the basis for evidence of a conscious disregard of the
truth. I don't believe there is a basis for this.
THE COURT: Well, look what it says, it says with
a conscious purpose to avoid learning the truth. That's in
the definition, and that's what you say they need to do.
You say there must be some evidence in the record to
support that.
MR. MOSCOWITZ: To support, to justify giving
that charge as a matter of law.
THE COURT: Your objection is overruled. It will
be given.
Number 21, hazardous waste.
MR. MOSCOWITZ: No objection, Your Honor.
THE COURT: Number 21 will be given.
Number 22?
MR. MOSCOWITZ: No objection.
THE COURT: Number 22 will be given.
Number 23?
UNITED STATES vs SABRETECH, ET. AL - 12-1-99
32
MR. MOSCOWITZ: We do object, Your Honor. We
have an alternate proposed instruction which is instruction
number 16 on page 28. I don't know if the Court wishes me
to summarize the essence of our --
THE COURT: Let me take a look at it first and
see where you deviate.
MS. MILLER: Your Honor, with the Court's
permission, I am going to step out for a few minutes.
THE COURT: I'll hear from you, Mr. Brigham, on
whether or not you have objection to the defense requested
charge number 16.
MR. BRIGHAM: I do, Your Honor. The government's
jury instruction tracks the language of the statute. The
defendants interpose their own interpretation which is
inaccurate. For example, they require knowledge of the
regulation itself. They require knowledge that the
material has been actually classified as hazardous
material. They claim that we must show that the defendant
specifically knew of the regulation. As Ms. Miller has
argued to the Court, in cases of this nature dealing with
hazardous materials, that type of requirements is not
necessary.
The government's proposed jury instruction tracks
the language of the statute. The statute simply states that
a person who willfully violates a regulation shall be fined
UNITED STATES vs SABRETECH, ET. AL - 12-1-99
33
under the Title 18. That's what we cited. We have two
elements. The defendant violated a hazardous materials
regulation, and that the defendant violated that regulation
willfully.
THE COURT: Isn't it the position of the
government that SabreTech specifically knew of all the
regulations and, indeed, had to know of them because they
put them in all of their training manuals and all the other
documentation in the evidence. So isn't it your position
that SabreTech did specifically know of the regulations in
question and the statutes' criminal prohibition against
filing them?
MR. BRIGHAM: I believe the evidence supports
that. However, --
THE COURT: Forget the evidence. Isn't it the
government's position that SabreTech specifically knew of
all of these regulations and of the statutes, criminal
prohibition against violating it, which is what they've
asked me to tell the jury? If that's going to be the
argument that they knew this because it was in all the
manuals and all the regulations, they've got all of this
hazardous waste and all of this, if that's going to be your
argument then why not tell them that's going to be a
requirement.
MR. BRIGHAM: It's not our position. Our
UNITED STATES vs SABRETECH, ET. AL - 12-1-99
34
position is that they knew that the type of conduct was the
type of conduct that might fall under regulatory
requirements because it's dealing with hazardous materials.
You can act willfully in violating regulations without
knowing the specific regulation, but knowing that, for
example, you are dealing with hazardous materials that
would be likely regulated.
THE COURT: Relying on what, Justice Douglas'
opinion in International Metals?
MR. BRIGHAM: That would be one authority, Your
Honor.
THE COURT: Basically ignorance of the law is no
excuse.
MR. BRIGHAM: Especially when you are handling
hazardous materials.
THE COURT: Mr. Moskowitz?
MR. MOSCOWITZ: Your Honor, it's my understanding
that is their possession that we heard on argument, and
that we proceed on that basis. That their position is that
we did know of these regulations, we did know these were
hazardous materials and knowing that, we willfully violate.
Moreover, Your Honor, that is the law with regard to a
specific intent statute which makes it a crime to willfully
violate an administrative regulation. That is simply black
letter law in this circuit and throughout the United
UNITED STATES vs SABRETECH, ET. AL - 12-1-99
35
States. If the crime is willful violation of a regulation,
then the evidence must show that the defendant knows of
those regulations, which he is alleged to have willfully
violated.
The case I rely on, Your Honor, which we cite
here is 11th Circuit case United States v. Frade, 709 F.2d
1387, which discusses this very issue of when you've got a
regulatory scheme where the allegations, where the crime
charges willful violation. Frade says "because the
activities are unlawful are spelled out in administrative
regulations, and include items not generally known to by
controlled by the government, it cites the earlier 5th
Circuit case, the regulatory provisions must be actually
known and intentionally violated for a crime to be
committed." Frade goes on to say, "a finding that a
defendant is aware that his conduct is generally unlawful
is insufficient to sustain a finding of guilt under a
statute requiring specific intent." The government cites
--
THE COURT: What were the facts of the Frade case
if you have them?
MR. MOSCOWITZ: Frade, Your Honor, was a Trading
With The Enemy Act case, out of this district, and it had
to do with the Mariel boatlift people violating the
regulations regarding transporting of Cuban refugees. So
UNITED STATES vs SABRETECH, ET. AL - 12-1-99
36
that's that specific case.
THE COURT: Somebody brought some refugees here
from Cuba, factually in that case, and they were charged
with what? With violating the Trading With The Enemy Act?
MR. MOSCOWITZ: Regulations under the Trading
With The Enemy Act which forbade that activity.
THE COURT: And they were convicted?
MR. MOSCOWITZ: Right.
THE COURT: And the appellate issue was?
MR. MOSCOWITZ: Was there evidence that they were
aware, since this was a willful violation that was alleged,
the evidence had to be that they were aware of those
regulations forbidding their transporting those persons
which was in violation of the Trading With The Enemy Act.
THE COURT: The case was reversed?
MR. MOSCOWITZ: Yes.
THE COURT: I have problems with that. I've sent
for the book. Do you happen to have a copy of the opinion?
MR. MOSCOWITZ: I do, Your Honor.
MR. MOSCOWITZ: Your Honor, there's a more on
point decision.
THE COURT: Which one?
MR. MOSCOWITZ: United States v. Davis, which is
maybe even more analogous. Davis is a 1978, 5th Circuit
case, which is an arms export control violation case where
UNITED STATES vs SABRETECH, ET. AL - 12-1-99
37
the defendant exported a sawed-off shotgun. Everybody
knows that a sawed-off shotgun is a weapon. Under other
statutes, you were forbidden to possess it. But there, the
issue is, he was convicted of exporting a sawed-off
shotgun, which is a violation of the Arms Export Control
Act. And a saw-off shotgun is on the admissions list, so
he would have required a license to export.
The Court of Appeals held that because this was a
willful violation of administrative regulations
specifically, that you need a license for weapons on
admissions list, the evidence had to show that he was aware
that a sawed-off shotgun was prohibited under the
admissions list. Again, this is the exactly the same
point, Your Honor. There has to be specific knowledge of
the regulations at issue. It seems to me that is analogous
of the hazardous waste. You may be aware that something is
genuinely dangerous material, but the issue is, is it a
hazardous material as defined under the regulations? There
has to be a showing that you are aware of the regulations.
THE COURT: Well, it runs contrary to Justice
Douglas' opinion in International Metals, does it not?
MR. MOSCOWITZ: No, Your Honor. Respectfully, it
is not. Because the statute in International Metals, was a
knowing violation. That was not a specific intent, willful
statute. Knowing violation, it's well said, just requires
UNITED STATES vs SABRETECH, ET. AL - 12-1-99
38
knowledge that you are engaging in the activity which is
prescribed. That's all that case stands for. We don't
disagree with that at all. But where there is a willful
requirement, that is a higher level of knowledge, and there
the requirement is that you are specifically aware of the
regulations you are alleged to have violated.
THE COURT: How can you have a knowing violation
of the statute without knowing about the statute?
MR. MOSCOWITZ: Knowing violation simply means
that you know -- that you are aware of the act you are
engaging in. That is sulfuric acid you are aware that you
are transporting sulfuric acid. If you think it's water,
then is not a known violation. You don't have to know that
transporting sulfuric acid is specifically regulated by a
regulatory scheme. If it was a willful violation that was
alleged, you would have to know that sulfuric acid was a
substance which was prohibited to be transported by that
regulatory scheme. That goes to what was intended as
required by the statute.
It's just like, Your Honor, with the firearm
statute. There's no willfulness requirement with regard to
somebody possessing a machine gun. That's because the
statute doesn't require that knowledge. If you possess a
machine gun, and you know it's a machine gun, you are
violating the statute. That's not a willful intent statute.
UNITED STATES vs SABRETECH, ET. AL - 12-1-99
39
THE COURT: Dealing first with U. S. v. Frade
F-r-a-d-e, 709 F.2d 1387, a 1983 decision by now deceased
Judge Robert Vance reversing Judge Davis, Judge Edward B.
Davis. I observe that this case arose after this Court's
en bank decision in 1982, which dealt with the Mariel boat
lift, and the allege violation of existing regulations and
laws, which is, as I remember, this Court struck down.
The Polygram v. Morris case, 496 F.Supp 1042, in
April of 1980, 10,800 Cuban citizens claiming status as
political refugees and sought sanctuary in the Peruvian
embassy in Havana on April 14, 1980. President Carter
declared that pursuant of the Refugee Act of 1980, up to
3,500 of these refugees would be admitted into the United
States. He allocated up to 4.25 million dollars for their
resettlement.
This is recorded in 45 FR. 28079, April 28, 1980.
An airlift was started, but within three days Castro
stopped the flights and announced that anyone who wanted to
leave could do so through the harbor at Mariel. Almost
immediately, small boats funded by the members of the
American community began leaving Key West.
Now, it's within that context that two priests of
Grace Church were asked by the parishioners to arrange for a
large boat to bring over a large number of refugees. The
boats name was The God's Mercy. The priests, with no
UNITED STATES vs SABRETECH, ET. AL - 12-1-99
40
understanding that of any changes in regulations went ahead
in good faith and arranged for The God's Mercy to bring a
large number of refugees to the United States.
Then, in the meantime, this Court had an en banc
decision and struck down these regulations. And then after
that, the priests were indicted. That was a well thought
out decision by somebody in U. S. Attorney's office or the
Justice office. Can you imagine trying to convince two
priests of hiring a boat to do humanitarian work like that.
In any event, somehow Judge Davis got them convicted. Judge
Davis presided. I don't know how it got pass Rule 29, but
then he was a young Judge at the time. So let's see. What
else happened?
Judge Vance uses some language here at page 1392
of his opinion at 709 F.R.2d, like proof of the requisite
knowledge and willfulness is almost impossible unless
affirmative steps are taken by the government to make the
law's requirements known, and it cites a series of cases.
Since the purpose of all law, in criminal law in particular,
is to conform conduct to the norms expressed in that law, no
useful end is served by prosecuting the violators when they
have no knowledge of the laws provisions.
Citing the constitution in Lambert v. California.
Here there was a great state of flux in regulations at page
1391, Judge Vance points out that "when used in a criminal
UNITED STATES vs SABRETECH, ET. AL - 12-1-99
41
statute, the word willfully generally connates a voluntary
intentional violation of a known legal duty," citing Bishop,
Hernandez and Davis. "The regulation under which the
priests were convicted 31 CFR, Section 515.415 was quietly
promulgated, unexpected, and unannounced on May 15, 1980,
after the list of names had been tendered to Cuba.
A criminalized behavior (traveled to, from and
within Cuba) which previously had been expressly. 1 CFR,
Section 515.560, and which, in fact, remain lawful except
when done in connection with the transportation of Cuban
nationals, an activity which is not generally criminal.
Here, we have a great deal of confusion about
what the law was, the law being changed daily and hourly.
The Southern District of Florida got involved in the act
and en banc struck down that law, parts of that regulation.
I'm just trying to remember, I could be wrong, but I think
I wrote that opinion for the en banc court. I know Judge
Marcus wrote the one on the sentencing guidelines. That
was later. He was not on the court this time. I'm not
sure.
In any event, the law was certainly in a state of
flux. I don't believe that that case factually is on point
where the regulations pertaining to hazardous waste
materials were promulgated, disseminate widely to people
that dealt with them or corporations that dealt with them,
UNITED STATES vs SABRETECH, ET. AL - 12-1-99
42
coupled with the fact that the proof in this record showing
that clearly SabreTech knew or certainly should have known
of the hazardous propensities of the oxygen generators and
their chemical content, and the handling with which these
generators were dealt with by shippers from Scott Aviation
and others, and the handling of them generally.
It seems to me that the proposed charge of the
government number 23 is the correct charge on the law. So
the objection to that by the defense is overruled. The
requested charge submitted by number 16 by the defense is
denied. The reasons expressed herein.
Moving on now to 24, is there agreement?
MR. MOSCOWITZ: No, Your Honor, we have the
disagreement on this charge on similar grounds in terms of
we think the law is clear that for the reasons just
expressed. The evidence has to show knowledge of the
regulations.
THE COURT: Okay.
MR. MOSCOWITZ: That instruction, Your Honor, is
instruction number 17 on page 30 of our instructions.
THE COURT: All right. Defense requested charge
17 is denied. Government's proposed instruction 24 will be
given.
Let's move to 25.
MR. MOSCOWITZ: No objection to 25, Your Honor.
UNITED STATES vs SABRETECH, ET. AL - 12-1-99
43
THE COURT: 25 will be given.
26?
MR. MOSCOWITZ: No objection.
THE COURT: Given. 27?
MR. MOSCOWITZ: No objection. 28, no objection.
THE COURT: Given.
MR. MOSCOWITZ: 29, no objection.
THE COURT: Given.
MR. MOSCOWITZ: 30, no objection. 31, no
objection.
THE COURT: Given.
MR. MOSCOWITZ: 32, no objection.
THE COURT: It will be given.
MR. MOSCOWITZ: On 33, we do object, and we have
our own proposed jury instruction which is instruction 18,
on page 33 of our instructions.
THE COURT: It runs along in a similar vein up
until what, page 34?
MR. MOSCOWITZ: That's right. Where we say the
elements that have to be shown.
THE COURT: For a defendant to be found guilty?
MR. MOSCOWITZ: Yes.
THE COURT: All right. All right. For the
reasons previously expressed, the requested charge of the
defense number 18 is denied on the basis that government's
UNITED STATES vs SABRETECH, ET. AL - 12-1-99
44
requested number 33, substantially covers those issues.
There is some deviation as to the elements. There is
certainly a deviation. But number 33 adequately and
properly expresses the definitions that the jury needs to
make a determination. 33 will be given.
MR. MOSCOWITZ: Your Honor, there's one
additional point in 33 which I think is an interesting
issue. 33 says that the defendant is guilty if he is a
haz-mat employer. That, of course, can include the
company, which is a haz-mat employer for willfully failing
to train it's employees. The ordinary circumstance for
corporate criminal liability is it can the janitor who
violates the statute, can hold the corporation liable. It
seems to be given in the nature of this charge that it is
an employer failing to train.
Let's say, in this case, the employee who knew of
the requirement, was the employee himself who was supposed
to be trained. That couldn't be what the statute intends
in terms of impugning to the employer liability for failure
to provide training. Clearly here, the employee who makes
the decision will plea to fail to give training has to be
somebody in management, some position responsible with
regard to making decisions over training. That's why I
think this is different than the ordinary statute where you
can prove impugn liability to the corporation since they
UNITED STATES vs SABRETECH, ET. AL - 12-1-99
45
are making the way for any of its employees.
THE COURT: All right. Number 33 will be given
over objection.
Number 34?
MR. MOSCOWITZ: Your Honor, we object, and we
have offered an instruction very similar. Our instruction
19 which is on page 35.
THE COURT: How does it differ?
MR. MOSCOWITZ: The main difference, Your Honor,
is that we think the evidence has to show that the
defendant is aware, since this is a willful violation, is
aware that it's a destructive device or a device that can
be destructive. If he thinks he is taking something
innocuous on an airplane, and it turns out to be a
destructive out, that can't be a violation of the statute.
We think the government's instruction does not make that
clear, and we think that one of the elements that has to be
shown.
THE COURT: Mr. Brigham, we are referring to page
35, defense requested jury instruction 19, subparagraph 1,
on page 35.
MR. BRIGHAM: Your Honor, we believe that we need
to show that the defendant corporation knew the physical
characteristics of the oxygen generators that would
constitute a destructive device. The corporation does not
UNITED STATES vs SABRETECH, ET. AL - 12-1-99
46
need to know what is that exact legal definition, and
whether, in fact, it satisfies the legal definition. I
think we have captured that adequately in our instruction.
THE COURT: How about number one? You don't say
anything about number one in your instruction.
MR. BRIGHAM: We disagree with the way it is
expressed because it says the defendant knew the object was
a destructive device or substance within the meaning of the
statute. Our position is that the defendant knew the
characteristics of the oxygen generators, which would make
up or which would fall under the definition of destructive
device.
THE COURT: Where do you say that in your
instruction?
MR. BRIGHAM: We say, in element number three,
the defendant SabreTech acted willfully. In this
particular case, you would need to know the physical
characteristics of the oxygen generator. If, in fact, --
and in fact, when we say the defendant SabreTech acted
willfully, we are tracking the language in the statute
itself. The statute itself does not say you need to know
the characteristics. It uses the word willfully, and we do
to.
THE COURT: The defense requested charge number
19, as it deviates or is different from the requested
UNITED STATES vs SABRETECH, ET. AL - 12-1-99
47
government charge number 34, is granted, and will be given
over objection of the government as follows. The language,
this is a requested defense language that's midway down the
defense requested 18, where it says, "a destructive
substance within the meaning of the statute means any
explosive substance, flammable material, internal machine
-- we are back to the happiness thermometer, or other
chemical, mechanical or radioactive device or matter of a
combustible, contempted, corrosive or explosive nature --
should be period -- to prove a violation of Section 32.
The evidence must show beyond a reasonable doubt,
one, that the defendant, and we should add in the word
SabreTech I guess, knew that the object -- should be is or
was -- is a destructive device or substance within the
meaning of the statute. Two, that the defendant SabreTech"
-- then pick up with the government's charge. That portion
will be added in as element number one on this particular
count 24 to the extent that the government objects, that
objection is overruled.
To the extent that the defense has moved for it,
that motion is granted.
MR. MOSCOWITZ: Your Honor, I have one more
specific objection to the government's charge on page 41.
THE COURT: On page 41.
We shouldn't do this in the presence of all these
UNITED STATES vs SABRETECH, ET. AL - 12-1-99
48
folks out there. Somebody may be a newspaper reporter or
TV person or radio person. They'll think that this is how
we decide the law, we cut and paste. All right. What is
your -- on page 41.
MR. MOSCOWITZ: Your Honor, the first full
paragraph which begins as noted. The last sentence of that
paragraph. We move to strike that sentence.
THE COURT: Denied.
Now we are on page 35.
MR. MOSCOWITZ: Your Honor, we object to that
instruction. That is not the standard pattern instruction
in this circuit.
THE COURT: Where, which? Do you have a pattern
instruction?
MR. MOSCOWITZ: Yes, Your Honor, it's our number
11 on page 14.
THE COURT: Page 14 is, on or about.
MR. MOSCOWITZ: Knowingly, willfully.
THE COURT: Over the government objection, the
jury instruction number 11 of the defendants will be
substituted for jury instruction number 35, as requested by
the government with the exception that recklessly, which is
not included in the defense requested charge will be added
to the charge.
MR. MOSCOWITZ: Your Honor, excuse me. We have a
UNITED STATES vs SABRETECH, ET. AL - 12-1-99
49
separate additional charge on recklessly. Recklessly is
not part of the pattern instruction. I think both the
government and we have crafted them. Our pattern
instruction on recklessly is on page 15. Jury instruction
11A.
THE COURT: Where is the government's?
MR. MOSCOWITZ: The government it's on the
bottom, the government added its, I think, on the bottom of
page 42.
THE COURT: Let me review page 15 of the defense
requested charges.
THE COURT: The Court will give the government
requested charge defining recklessly contained at the
bottom of page 42, over government requested charge number
35. That will be over objection by the defense. The
requested charge number 11 of the defense, I'm sorry, of
number 11A by the defense, page 15, entitled recklessly is
denied as adequately covered by the charge the Court
intends to give from the government's proposed charge on
recklessly.
Having said that, the Court will give the charge
requested by the defense, number 11, over objection by the
government, in lieu of and in place of, basically the third
paragraph of government's requested charge number 35.
So that should sufficiently confuse everybody.
UNITED STATES vs SABRETECH, ET. AL - 12-1-99
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Mr. Dunlap is sitting there with his eyes glazed over.
MR. DUNLAP: As always, Your Honor.
THE COURT: That may just be the glasses he is
wearing that makes him look that way. I don't know.
Let me see here. Now we move on to number 36,
deliberate ignorance.
MR. MOSCOWITZ: Your Honor, we object. I point
out, first of all, the Court has already given that
instruction which covers the same area with regards to
reckless disregard and truth. That was instruction number
20 which the Court already gave.
Moreover, deliberate ignorance, Your Honor,
there's simply no basis for giving that instruction in this
case. The law of this circuit, Your Honor, is well settled
that the Court should not give a deliberate ignorance
instruction. I'm citing, I'm quoting United States v.
Stone, 9 F.3d 934 at 937. Should not give the deliberate
ignorance instruction when the evidence only point to either
actual knowledge or to no knowledge on the part of the
defendant. Deliberate ignorance instruction is appropriate
only when there is evidence in the record showing that the
defendant purposely contrived to avoid learning the truth.
The evidence here, Your Honor, is either --
THE COURT: Excuse me, Mr. Brigham, what do you
suggest in this record establishes a need to get into
UNITED STATES vs SABRETECH, ET. AL - 12-1-99
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deliberate ignorance, beyond what is already covered with
number 20.
MR. BRIGHAM: Among other things, the deliberate
ignorance is particularly important with respect to charge
against defendant SabreTech, as well as Mr. Florence. What
we have is -- we have introduced evidence that there are
maintenance manuals which laid out in detail the dangers
associated with the oxygen generators and the steps that
had to be followed.
We indicated that there was, in fact, shipments
of new generators with the outside labels, and yet this was
ignored. The work cards were -- contained false notations
about the safety caps. They were signed in circumstances
where one employee said, I like to read the work card. But
Mr. Gonzalez said no. It was in a very time compressed
situation. Despite the warnings that were given to the
corporation and to Mr. Florence and Mr. Gonzalez in this
case, constitute an adequate factual basis to give the
deliberate ignorance instruction in this case.
THE COURT: Okay. The record should reflect that
-- I'm not sure that those folks that just left the
courtroom, the five or six that just left, were members of
the media. I don't know whether they were or not. But I
would presume that it's now 12:03, and their dinner bells
went off, so out they rush. If they were members of the
UNITED STATES vs SABRETECH, ET. AL - 12-1-99
52
media, it's explainable. If they were members of public
I'm mystified.
All right. The objection to government charge
number 36 deliberate ignorance is sustained. It will not be
given over objection by the government.
Number 37, have you all agreed on that?
MR. MOSCOWITZ: No, Your Honor.
THE COURT: Bear in mind, we are 45 minutes away
from closing argument, so let's move along.
MR. MOSCOWITZ: We have a very close instruction
which is the pattern Devitt and Blackmar instruction, on
page 18, our instruction 11B.
THE COURT: Page 18, Corporate liability. How
does it differ? If we could focus on that, we could move.
It looks like it's pretty similar at first.
MR. MOSCOWITZ: It is pretty similar, Your Honor.
The preface we believe is appropriate. The government
doesn't give that preface. I think it's important. This
again is directly out of Devitt and Blackmar. There is no
pattern 11 jury instruction.
THE COURT: Where does it differ? I don't see
any difference in the first part, legal entity, access to
it's agents, officers or directors, a little bit more
introductions in your third paragraph, your elements. They
have four elements, you have two. They say they have to
UNITED STATES vs SABRETECH, ET. AL - 12-1-99
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prove four things, you say they have to prove two.
Wouldn't you be better off with four? The more they have
got to prove, the better off you are, I think.
MR. MOSCOWITZ: Your Honor, they are really very
close.
THE COURT: Yes, they are the same thing.
Now let's move on down to, in order to establish
-- that's identical.
MR. MOSCOWITZ: Your Honor, it is identical
except we think the first two paragraphs, which we propose.
We didn't make up that standard language. It's critical to
explaining what the corporate liability is.
THE COURT: It looks to me that it reads the same
way. Do you have any serious objection, Mr. Brigham?
MR. BRIGHAM: No, Your Honor.
THE COURT: The first two paragraphs of defense
instruction 11B will be substituted for the first two
paragraphs of government's number 37. Number 38, any
objection?
MR. MOSCOWITZ: Yes, Your Honor, we object. We
filed a memo on this morning. This is the issue we argued
a few days ago.
THE COURT: Is this one of those that I've
already ruled upon about the collective knowledge? I
believe, in all fairness, I ruled on this earlier on.
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MR. MOSCOWITZ: We were hoping that, Your Honor
would reconsider based on the memorandum this morning.
THE COURT: I did review your memorandum. The
objection to 38 is overruled. 38 will be given.
39.
MR. MOSCOWITZ: Your Honor, this is the Nerenberg
defense. We don't think it's relevant in this case. No
one is alleging here that he was just following the orders.
THE COURT: 39 will be given. 40 will be given.
41, aiding and abetting, any problem with that? It has to
be defined.
MR. MOSCOWITZ: We don't. Mr. Dunlap may have an
objection. Did you?
THE COURT: They charge section 2, Mr. Dunlap and
I think, in fairness, when they charge section 2, I have to
give it.
MR. DUNLAP: You have to give it. Yes, Your
Honor.
THE COURT: 41 will be given. 42 will be given.
43 will be given. Have you reviewed the verdict forms?
MR. MOSCOWITZ: Yes, Your Honor, we have a
disagreement on the verdict forms.
THE COURT: All right. Let's go back now before
we go to the verdict forms. We have considered as we have
moved through this the defense charges. But have we not
UNITED STATES vs SABRETECH, ET. AL - 12-1-99
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considered a defense charge up to this point that you now
are requesting?
MR. MOSCOWITZ: Yes, Your Honor.
THE COURT: All right.
MR. MOSCOWITZ: Going back to -- page 7, proposed
jury instruction number 5, former perjury of a witness.
THE COURT: Page 7 of yours?
THE COURT: Haven't we -- that one is denied.
What else? I think it's adequately covered in the
instruction. What else?
MR. MOSCOWITZ: Page 8. On the obstructions of
evidence bearing on the witnesses' credibility. That's
jury instruction number 5A.
THE COURT: That is denied. Next?
MR. MOSCOWITZ: Page 9, proposed instruction
number six.
THE COURT: Denied. Next?
MR. MOSCOWITZ: Instruction Number 8, which is on
I'm sorry. 7.
THE COURT: 7 is covered.
Number 8. Accomplice?
MR. MOSCOWITZ: This is on immunity, of witnesses
who testified under immunity.
THE COURT: Is that not included in yours,
Mr. Brigham?
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MR. BRIGHAM: No. No objection, Your Honor.
THE COURT: I'm sure not, but it would normally
be included. It will be given. Let's figure out where it
fits in here. Where do you think it should fit in the
government's -- not the government's instruction, in the
basic instruction.
MR. MOSCOWITZ: Fairly early on, with the other
instructions regarding credibility of witnesses. Perhaps
right after that general instruction regarding credibility.
THE COURT: All right, I will put it in as page
number 7, page number 7. Next?
MR. MOSCOWITZ: We had instruction 11A(1).
THE COURT: I've covered that. I already ruled
on that. What's the next one?
MR. MOSCOWITZ: I know the Court overruled 11. I
can't recall if you overruled 11A(1). It's very similar.
THE COURT: 11A(1) is denied.
MR. MOSCOWITZ: Then instruction number 20, Your
Honor, which is good faith defense, which is on page number
37.
THE COURT: Mr. Brigham, they represent that this
is an 11th Circuit pattern jury instruction.
MR. MOSCOWITZ: Your Honor, the second paragraph
is modified. I apologize.
THE COURT: But the first paragraph does come
UNITED STATES vs SABRETECH, ET. AL - 12-1-99
57
from the pattern jury instructions.
MR. MOSCOWITZ: Yes, Your Honor.
THE COURT: Does the government have an objection
to the first paragraph?
MR. BRIGHAM: Your Honor, we do not have an
objection to the first paragraph, but we feel that the
entire instruction needs to come in, as modified. The
third paragraph in the --
THE COURT: The third paragraph is denied.
There's only two paragraphs.
MR. BRIGHAM: Yes, but Your Honor, the defense
has not included the third paragraph which offers a balance
presentation on the good faith defense. The pattern
instruction from the 11th Circuit has three paragraphs.
The third paragraph --
THE COURT: If it's given, you want all three
paragraphs to be given?
MR. BRIGHAM: Yes.
THE COURT: Do we have any objection by the
defense that all three paragraphs be given?
MR. MOSCOWITZ: Yes. It's simply, may I read the
third paragraph, I don't think its relevant when I read it.
The third paragraph say, "but on the other hand, an honest
belief on the part of the defendant that a particular
business venture was sound and would ultimately succeed,
UNITED STATES vs SABRETECH, ET. AL - 12-1-99
58
was not in and of itself constitute good faith as that term
is used in these instructions." So that third paragraph
really goes to mail fraud, wire fraud and securities fraud.
It doesn't related to a false statement charge. We think
the first two paragraphs relate to the issue of good faith
to the allegations of making a false statement.
THE COURT: Is the -- but now all I have before
me are two paragraphs. I'm dealing with defense
instruction number 20. The first paragraph apparently
comes from the pattern circuit 11th Circuit jury
instructions.
MR. MOSCOWITZ: Right.
THE COURT: The second paragraph has been
modified in what particular? If you will tell me.
MR. MOSCOWITZ: I think the -- just a second,
Your Honor. The second paragraph is the same.
THE COURT: Is the same. So you are only
suggesting that the third paragraph dealing with business
ventures should not be given, is that correct?
MR. MOSCOWITZ: Right. The only modification in
the second paragraph it says one who express an honestly
held opinion or a honestly formed belief is not charged
with fraudulent intent, and we changed fraudulent intent to
willful intent. Otherwise that second paragraph is the
same.
UNITED STATES vs SABRETECH, ET. AL - 12-1-99
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MR. BRIGHAM: Your Honor, we noticed, in fact,
the first paragraph is not the same as the pattern
instruction. The first paragraph talks about intent to
defraud in the pattern instructions. That's not the case
here. I think this indicates that there's a need to either
not give this instruction or modify it appropriately with
respect to this particular case. I have the following
proposal, if Your Honor would like to hear it, with respect
to the third paragraph.
THE COURT: I think what I'm going to require you
to do is submit something to me. I am going to give this
charge for the defense. It should be modified to pertain
to this case. It seems to me that the first two paragraphs
as submitted in defense charge number 20, do that or come
very close to doing that. Whether the third paragraph from
the pattern charge should be added or not, I don't have the
pattern before me, and we are running out of time, so I
don't know where we are.
MR. BRIGHAM: We do have a copy.
THE COURT: Could Mr. Brigham get together with
Mr. Dunlap, who stayed up all night working on these and
draft out something?
MR. DUNLAP: Yes, sir.
THE COURT: I'm going to give the charge. I just
need it drafted. I don't want to impact on the people
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60
making the arguments. Can you do that, Mr. Brigham?
MR. BRIGHAM: Of course, Your Honor.
THE COURT: This charge will be given as
modified. Go ahead.
MR. MOSCOWITZ: Your Honor, on page 39,
Mr. Dunlap has proposed a special instruction. Jury
instruction number 22.
THE COURT: Number 22, does the government object
to this?
MR. BRIGHAM: Yes, Your Honor, we do.
THE COURT: What is your objection?
MR. BRIGHAM: We feel that the instruction is
inappropriate. It's not one of the standard instructions.
And part because, for example, the language, we don't
believe purports with the law. If you find that persons
other than Mr. Gonzalez committed a criminal act charged in
the indictment, would be improper for you to infer, and you
must not infer that Mr. Gonzalez must have known about it.
THE COURT: Slow down.
MR. BRIGHAM: Because he was a supervisor in the
maintenance section of SabreTech's Miami repair station and
may have been variously held out as Assistant Vice
President of Maintenance.
THE COURT: How does that vary with the
inaccurate statement of law?
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MR. BRIGHAM: Your Honor, I believe that the
factor that the jurors are allowed to consider in the
evaluation of the evidence.
This instruction by the weight that it gives to
this particular element of proof, improperly suggests to the
jury that they cannot consider Mr. Gonzalez's rank, his
position in the corporation in relationship to other factor
in determining whether, in fact, the evidence supports the
charges. We submit that that can be, that that's an element
of argument by counsel. But it's a factual element that is
better left for argument and not an instruction for the
Court.
THE COURT: The Court will overall the
government's objection and give the instruction.
Mr. Moscowitz, how about 22?
MR. DUNLAP: 22A, Your Honor. May I be heard,
Your Honor, on 22A?
THE COURT: Do you want to convince me not to
give it?
MR. DUNLAP: No, I'm sorry, Your Honor. I
thought you had gone on to the next instruction.
THE COURT: You just said, "may I be heard on
22?"
MR. DUNLAP: 22A.
THE COURT: Excuse me, you are right. I didn't
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62
know you numbered them A B C. Let's find out. Is there
objection to 22A by the government?
MR. BRIGHAM: Yes, Your Honor. These are facts
that came out during the trial. Defense counsel is free to
argue it. It's appropriate to argue it, but not in
instruction. We have not agreed to those facts.
THE COURT: I understand. Mr. Dunlap, this is
getting into the Court commenting on the evidence.
MR. DUNLAP: May I be heard briefly on this?
THE COURT: Yes.
MR. DUNLAP: This instruction makes reference to
a hand-written letter by the witness, William Drechsler,
dated January 2, 19-- At the time this letter was offered
by the government, Ms. Heck knew because the witness had
previously testified in the grand jury, that the language
on page two, and I'm quoting, I've got a misquote. "We
have DynAir paperwork showing work completed and inspected
and not accomplished." At that time because of her
knowledge of what the witness said in the grand jury,
Ms. Heck knew that those literal words were -- falsely
conveyed the intent of the person who wrote this.
Mr. Drechsler testified in the grand jury and he
testified here that the plain language of these words is
not what he intended. In fact, he testified on
cross-examination that he did not mean that work was not
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63
accomplished, but just that he disagreed with the manner of
handling the paperwork. Ms. Heck, herself, conceded that
yesterday in the Rule 29 argument. She modified her
handling of this letter to argue, not that it showed that
there had been falsification of work by SabreTech, or
DynAir Tech as a result of this letter, but that the
letter, each though it was obviously facially incorrect,
should have put SabreTech on notice.
My concern, Judge, is that this document goes
back to the jury with what we know to be an absolute facial
inaccuracy, we are sending to the jury words that we know
do not, the government and the defense and had Court, know
do not reflect what the writer intended it to reflect. I
guess I'm going back to my initial argument about it's
admission, in a way, because we know now that under 403,
that this is a plainly confusing document that will mislead
the jury, if they look at this without some -- We shouldn't
have to be arguing this, is what I'm saying Judge. The
government knows and we know that Mr. Drechsler did not
intend what these plain words convey.
THE COURT: The requested charge being jury
instruction 22A is denied. The objection of the government
is sustained.
MR. DUNLAP: Your Honor, in the alternative, I
would move to strike the exhibit or redact the language
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64
with a limiting instruction to the jury because we know --
THE COURT: You all can argue this.
Mr. Moskowitz?
MR. MOSCOWITZ: Next, Your Honor, Mr. Dunlap's
theory of defense instruction. Instruction number 23.
THE COURT: What's the government's position?
MR. BRIGHAM: Your Honor, we believe that the
instructions as presented address the issues of the theory
of defense by Mr. Gonzalez. Even if the Court desire to
gives --
THE COURT: The Court has no desires except to
get this case started with argument at 1:00, if we can.
And we're moving fairly rapidly through. I have no
desires, one way or the other. Generally, a theory of
defense instruction is proper on some occasions, where it
is a complicated involved case. Do you object to giving a
theory of defense instruction at all?
MR. BRIGHAM: Your Honor, we would object because
we feel the instructions are sufficient. But if the Court
overrules our objection, I would recommend that it would be
a much shorter instruction, so it doesn't over-emphasize
the theory of the defense, and it goes to the legal
elements and not a factual summary that the defense counsel
is, of course, free to argument.
THE COURT: Where does this inaccurately state
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65
his position? Of course, you may not know his position.
This is the position of the defense. He says that this has
been his theory of defense on which he tried this case. Do
you suggest that this is some how inaccurate, in some way?
MR. BRIGHAM: I would suggest that there may be
not inaccuracies because it talks about what Mr. Gonzalez
personally believes, but it needs to be shorter. For
example, the last paragraph.
THE COURT: I can't be drafting it at this late
date. If the government wishes to set forth a proposed
instruction for the Court to consider, we have had months
to prepare for this and it could have been done. All I
have before me is one instruction. I'm not going to go
through this and change words unless there is some
inaccuracy which would mislead the jury in some fashion.
Reading this, I don't see what it is. This is his theory
of defense. The charge will be given. Number 23 will be
given.
MR. MOSCOWITZ: Your Honor, jury instruction
number 24, which I'm going to hand up, is defendant
Florence theory of defense instruction. 25 is SabreTech's
theory of defense instruction. The government has already
received copies of these.
THE COURT: I will give the theory of defense
instruction. Oh, these are different?
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MR. MOSCOWITZ: One for defendant Florence, and
one for the defendant SabreTech.
THE COURT: They are different from the packet
you gave earlier?
MR. MOSCOWITZ: Yes, Your Honor, there are some
revisions on there. I apologize.
THE COURT: There's a lot of paper up here. So
now you want me to consider number 24 and number 25
theories of defense, and eliminate 24 and 25 previously
submitted, which I will do.
Now, 24 and 25. I've announced that I will give a
theory of defense. Is there any inaccuracy that the
government sees that will be misleading in some way in
either of these instructions? Now, the issue is not whether
you will written differently, but is there something here
that is factually inaccurate or a mistake?
MR. BRIGHAM: Yes, Your Honor. The way it's
couched, first of all, it suggests that these are --
MR. MOSCOWITZ: Which one?
MR. BRIGHAM: With respect to jury instruction
24, it's couched in a way that it's not as if the Court is
presenting a theory of defense, but the Court is simply
explaining the evidence. For example, "accordingly
Mr. Florence had no reason to believe that any statement he
made concerning the used oxygen generators would be a
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67
material statement." That's not couched in the language.
It is the theory of the defense. It's stated in language
that is very direct. That's one example of many.
Again the factual development here is more
extensive than the law requires for a theory of defense. I
would submit that it would be simply, "it is the theory of
defense of Florence that he acted in good faith in all the
he did on the aircraft." That is sufficient.
It allows the jury to understand the theory of
defense. The same, on the theory of defense with respect,
if I may move on to jury instruction 25. Again, this is
now, a two page summary of the facts. This is in contrast
to the Danny Gonzalez theory of defense. They are getting
longer as they are being edited. Again, we would submit
that the language has to be couched as if it is a theory of
defense, not as if the Court agrees with this language that
needs to be made clear.
We would also submit that the Court could make
clear that the United States has a completely different
theory. But again, with respect to SabreTech, the two page
factual development is unnecessary. It is sufficient if
the Court keys in the jurors the theory of defense, which
here is that SabreTech through it's employees, and agents
acted in good faith in all the work they did on the
aircraft. This will be sufficient. The facts that are
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68
laid out in these two pages, are appropriate for closing
argument which defense counsel, will no doubt, effectively
undertake.
Also, Your Honor, excuse me.
THE COURT: Just a moment. The Court will give
the theory, Eugene Florence's theory of defense instruction
in part as follows. It is granted in part and denied in
part. It will be given in the following language, "it is
the theory of the defense, Eugene Florence, that he acted
in good faith in all the work he did on aircraft 802 and
803, including his handling of oxygen generators in
carefully wrapping each lanyard around the firing mechanism
and around the generator body and then taping the ends of
the lanyard to the generator." The rest, except for the
last sentence, will be omitted and not given. This will be
given, "Mr. Florence contends that he acted without any
bad purpose, to disobey or disregard the law." Part of the
first paragraph is out. Part of the second paragraph is
out. This will be retyped and hopefully given to
Ms. Moscowitz before she has to make her closing argument,
but I think she can understand that basically, we are
talking about the first two lines and then two lines of the
middle of the paragraph, commencing with carefully wrapping
and then the last sentence. All right. That will be given
as modified.
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69
With respect to the SabreTech theory of defense,
the same modification in the first paragraph which is quite
similar or identical to defense requested number 24. Those
modifications will be made in the first paragraph. With
respect to the second paragraph, requested 25, the Court
will have to work on but the argument doesn't have to be
made until tomorrow. That's the best I can do with that. I
will rewrite that substantially along the same lines, and
the same criteria guidelines that I have made on requested
24, that is to try to factually state it as the theory of
defense, as I have watched you present it in this courtroom.
Mr. Moscowitz, 25, 26?
MR. MOSCOWITZ: No objection to 26, Your Honor.
THE COURT: All the rest of them, we have covered
them?
MR. MOSCOWITZ: Yes, our objection is the verdict
form.
THE COURT: So we finished with the requested
charges except for the modification that we need to make to
number 25. Let the record clearly reflect that any
instruction that the Court has announced that it will give,
which was objected to by any party, either government when
dealing with defense instructions, or defendants when
dealing with government's objection, is fully preserved
whether or not it was articulated item by item or
UNITED STATES vs SABRETECH, ET. AL - 12-1-99
70
instruction by instruction or not. All of the requested
instructions will be appended to the record for further
review, if necessary, by the 11th Circuit Court of Appeals.
It is not necessary for any counsel, I think to
make any further statement in order to fully protect their
right to raise the giving or the failure to give any
instruction requested by any defendant or the government. I
think that fully protects the record and your individual
clients. If you think it does not, then ahead. But I think
it does. I make this announcement every time I make a
charge conference.
MR. MOSCOWITZ: Your Honor, we still have
objection to the verdict form.
THE COURT: Let's take that up. We have got 26
minutes to go.
MR. MOSCOWITZ: The objection is very simple,
Your Honor, with regards to counts VII through XXII, which
are the haz-mat violations, in which only SabreTech is
charged, the indictment charges for each count a willful
violation and a reckless violation. Those are two
different violations in the same count. We think the
verdict form for each count should show when the jury
reaches a verdict, whether it is reaching a verdict --
THE COURT: Let's take this up at the end of the
day because we don't need it until tomorrow any way. We
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71
will go into the verdict form issue at 5:00 today.
MR. MOSCOWITZ: Your Honor, lastly we wish to
renew our Rule 29 motions now at the conclusion of all of
the evidence. Each of the defendants renews his motions
with regard to all remaining counts. I believe Mr. Dunlap
wishes to be heard briefly, with regard to additional
evidence he put on. Your Honor will recall you reserved
Mr. Dunlap's Rule 29 motions.
THE COURT: He is going to make his argument this
afternoon.
MR. DUNLAP: No, I'm going to make my argument
tomorrow with the Court's permission, but I thought --
THE COURT: Why don't we take that up at the end
of the day?
MR. DUNLAP: That's fine.
THE COURT: But the record is clear that the
defense has renewed any and all motions that they would
have made at the conclusion of all the evidence regarding
Rule 29 motions. They are timely made, properly made.
There's no waiver of bringing them up later. It's done to
accommodate the Court, so that the parties fully -- it's
the Court's intent to fully protect the parties by not
having any waiver appear accidently or innocently or
otherwise.
MR. MOSCOWITZ: Thank you, Your Honor. That's
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72
includes our pre-trial motions to dismiss as well, of
course.
THE COURT: All of your motions. All right. We
have 14 minutes to put together jury instructions.
MR. MOSCOWITZ: We have a diskette, Your Honor.
THE COURT: If it will help Vicki that's fine.
She's the one that puts them all together. Thank you.
COURTROOM DEPUTY: All rise.
[There was a recess for the noon hour].
AFTERNOON SESSION
1:15 P.M.
THE COURT: Be seated please.
MR. BRIGHAM: Your Honor, we do have one matter.
You had asked us to talk about that third paragraph on the
good faith instruction. We have talked about it. As I
understand, we both have our own proposals. We weren't
able to reach an agreement.
THE COURT: Hand me both proposals and I'll
consider them as I go along.
MR. BRIGHAM: Thank you. I've attached to my
proposal the original pattern instruction that we are
basing ours on.
THE COURT: Okay. Bring in the jury please.
[The jury returns to the courtroom].
THE COURT: Thank you, be seat please ladies and
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73
gentlemen. At this time the attorneys may speak to you in
their closing argument. It is during this phase of the
trial that they will analyze with you the evidence that
you've been receiving through the sworn testimony of the
witnesses and exhibits that have been admitted into
evidence. This is argument. This is their reasoned
interpretation of that evidence. It's intended to be
helpful to you, and I'm sure that it will be. We ask that
you listen carefully to the closing argument of counsel.
The counsel for the government, having the burden
of proof, will go first then followed by each of the
defense counsel. Then the government has an opportunity to
speak to you in closing argument with reference to anything
that the defense have discussed in their argument. They
get to close as well as open.
Some of the arguments, we will not finish all of
them today. We will take the opening statement of the
government followed by presentation of argument by Ms. Jane
Moscowitz on behalf of Mr. Eugene Florence, and then we
will recess for the evening and come back tomorrow morning
and listen to the balance of the arguments and the Court's
instructions on the law.
At this time, Ms. Caroline Heck Miller, if you are
ready to proceed with your closing argument.
MS. MILLER: Thank you, Your Honor.
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GOVERNMENT CLOSING ARGUMENT
MS. MILLER: Play it please the Court, counsel,
ladies and gentlemen of the jury. Fundamentally this is a
case about lying. One of the lies turned out to be about
something very important, something material in legal
terms, as you are going to see in the indictment.
The lie, this important lie, was that shipping
caps had been put on chemical oxygen generators. Shipping
caps, these little things, Government's Exhibit 31, that
could have kept oxygen generators from initiating if only
they had been in place. They weren't, and tragedy ensued.
Nobody foresaw or wanted that tragedy. The lie
was meant to be not such a big deal. Just pencil whipping
it's called, signing for work that hasn't been done. Just
other work card.
This is the work card, ladies and gentlemen. This
is the statement that we are talking about, work card 0069
that was done for two aircraft, 802 and 803. This is the
one for 802, signed by the defendant Eugene Florence. Item
B; "if generator has not been expended install shipping cap
on firing pin," signed by Mr. Florence 1 A through D said
that it had been done. It hadn't. That little thing, that
shipping cap, was not on dozens of oxygen generators, and
those oxygen generators went on board ValuJet flight 592.
So the lie was told. The generators were left
UNITED STATES vs SABRETECH, ET. AL - 12-1-99
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uncapped. The snare was laid and the hammer fell just like
that. Dozens of these things on ValuJet flight 592. No
safety caps. As you know from the testimony of Robert
Brennan, when the cap falls the reaction begins. That
oxygen generator begins to heat, begins to produce pure
oxygen.
Oxygen generators all in a box together, nothing
in between them, metal oxygen generators, and as one heated
it would heat its brothers and sisters surrounding. And
heat with that flimsy cardboard in an environment of pure
oxygen, a terrible fire issued.
Now, that lie is at the center of this case. But
the case goes beyond that lie. It involves more. And today
we are going to look at the entirety of the case. The case
is set forth in an indictment which you will have with you
in the jury room. The indictment is laid out in 24 counts.
That's 24 separate charges. I want to take some time today
and go through that indictment with you and explain it to
you and explain how it correlates to the evidence in this
case.
The first count, ladies and gentlemen, is a
conspiracy to make false statements. It's followed by five
counts of specific false statements. This is one of the
false statements. The crime that is charged is that
SabreTech and Mr. Florence made a false statement as to a
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material matter on a topic that was within the jurisdiction
of the FAA. This is one false statement. As I said, there
is a work card like this from the other airplane from which
oxygen generators were removed, 803. That's another false
statement. There's two of those false statements counts.
For each aircraft, in addition to the routine work
order, there was a non-routine work order. That's two more
false statements.
Mr. Florence signed two of these documents.
Another person, Mauro Valenzuela, signed two of the
documents. Mr. Florence is charged with two false
statements. SabreTech is charged with those two false
statements, and SabreTech is also charged with the two false
statements made by Mr. Valenzuela. That's four of the false
statements counts. The fifth false statement count is
charge against Danny Gonzalez, and it relates to a work card
done for Aserca Airlines.
Count I, the conspiracy, five counts of false
statements relating to these five different documents. Then
the indictment has 17 counts related to hazardous materials
regulations. Those counts are charged against SabreTech,
the corporate defendant here.
Finally, there is one count at the end of the
indictment charging SabreTech with the placing of
destructive devices on an airplane making it hazardous to
UNITED STATES vs SABRETECH, ET. AL - 12-1-99
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use.
Now, we are going to go over the counts, the
regulations, the evidence, these documents here, including
documents that were put into evidence but that you haven't
heard anything about yet. I will be endeavoring to present
the contents of some of those documents to you. I hope you
won't be daunted, and I hope that you will focus and
concentrate with the same extreme concentration that we have
seen over these past three weeks in which all the parties
are profoundly grateful, and we thank you for your
concentration and your attention.
Even though we will be presenting and explaining
documents and matters relating to regulations which the
Court will also include in its instructions, basically the
decision you have to make is going to be guided by two main
things; by the Court's instructions and by your own common
sense. Because after the smoke has cleared, after the
regulations have been explained and the documents have been
talked about, this case is going to amount to an exercise in
common sense. That's what we expect of jurors.
You'll hear from the Court, quote, "in considering
the evidence you may make deductions and reach conclusions
which reason and common sense lead you to make. And you
should not be concerned about whether the evidence is direct
or circumstantial.
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Direct evidence, you'll hear, is the testimony of
one who asserts actual knowledge of a fact such as an
eyewitness.
Circumstantial evidence is proof of a chain of
facts and circumstances tending to prove or disprove any
fact in dispute. The law makes no distinction between the
weight you may give to either direct or circumstantial
evidence," unquote. That is the law you'll be hearing from
the Court.
Examples; what is the difference between direct
and circumstantial evidence? You may recall the testimony
of mechanic of Robert Rodriguez that at one point he was
working on aircraft 830. I hope these numbers are familiar
to you. As you may remember, there were three MD-80 type
aircraft that were being worked on at ValuJet with regard to
their oxygen generators. And their numbers from 830, 803
and 802.
Mr. Rodriguez worked on some of those aircraft,
and he testified that one day he was working on aircraft
830. They were removing old oxygen generators. They were
dealing with the old expired oxygen generators that had to
be taken out. One of them went off in the airplane. Do you
remember he testified he felt the heat from it? He heard a
hissing sound. He even testified to smelling a smell. He
was testifying to something that he perceived with his own
UNITED STATES vs SABRETECH, ET. AL - 12-1-99
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senses. That is direct evidence.
Now, what is circumstantial evidence? You may
recall the testimony from Mr. Rodriguez, and we also heard
from Mr. Taber on this score, that on a certain day in May,
and Mr. Rodriguez was able to help us pinpoint it, because
he knew it was a Saturday, and he knew it was before the
crash, and we know from other evidence that the crash
occurred on Saturday, May 11; therefore, we can figure out
that this occurred on Saturday May 4, the only preceding
Saturday in that month. Mr. Rodriguez testified that on May
4, he, Mr. Taber and others in their crew, were called to
the work booth to sign documents, their lead mechanic, a man
named Jude Casamere called them, and that John Taber balked.
There was something about the signing. He didn't sign
everything. They both testified that Eugene Florence and
Danny Gonzalez were in the work booth that day.
Mr. Taber, who got further into the booth, and who
you may recall did sign one document that day, testified
that papers were spread on the counter, and they were
documentation of oxygen generators.
That documentation, ladies and gentlemen, appears
as Government Exhibit 25, and we will be talking about that
in some detail in this case, this big sheath of papers.
Mr. Taber testified to seeing documentation
relating to oxygen generators spread out on the counter that
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day. He also saw Eugene Florence at that work booth signing
papers that day with Danny Gonzalez at his side.
From Government's Exhibit 25, which is the oxygen
generators for aircraft 802, and we know it was 802 because
remember what Mr. Rodriguez said, the other aircraft had
already gone, only 802 was left; therefore all the paperwork
was done on the other aircraft. When you look at this
paperwork you'll see that the oxygen generator work card
0069 is signed by Eugene Florence, the same one that I just
showed you the blow-up of. Down on the date it says 5/4/96.
Ladies and gentlemen, when you put all of those
facts together you are able to conclude that Eugene Florence
signed work card 0069 on May 4, 1996 in that work booth.
That's circumstantial evidence, and that's a fair basis for
you to make that conclusion.
Remember what the instruction will say, as I told
you earlier. The law makes no distinction between the
weight you may give to either direct or circumstantial
evidence.
Let me turn for a moment to Count I of the
indictment. When you see Count I of the indictment you'll
see it's the longest count in the indictment. It's got
quite a bit of language that relates to some background
issue. What was SabreTech? Where was it located? What had
been DynAir Tech of Florida? Although it's laid out in some
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length, I think we are going to be able to move through
those matters very quickly, because they're really pretty
cut and dry and not anything that is in dispute in this
case.
There may even be some small deviations from some
of the things that were laid out in the indictment with
regard to perhaps an address or a title. But in the Court's
instructions, the Court is going to tell you the parts of
the indictment that you must find beyond a reasonable doubt,
the essential elements of the crime.
Count I outlines a conspiracy which is also fairly
called an agreement to commit a crime. You are going to
learn through instructions that that agreement does not have
to be expressed. The government doesn't have to show a
formal agreement. There doesn't have to be a meeting where
everyone sat down and said; "what's the plan? The plan is
this. The plan is we are going to make false statements.
You got it? Yeah, I got it." The government doesn't have
to show that. Indeed, we are not going to show that. You
didn't hear evidence like that in this case.
It's not also necessary to show that the members
planned all the details together or all the overt acts,
which are steps in the furtherance of the conspiracy, which
are also stated in the indictment.
The government doesn't even have to show that the
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agreement was successful. It just must show an agreement
and a step taken in furtherance of that agreement. It must
be an agreement, a mutual understand to accomplish a common
plan. Here, that mutual agreement and understanding was to
make false statements on behalf of SabreTech. Why? To
benefit SabreTech.
SabreTech was in the business of making money.
Not a crime. I told you that in opening statement. It's
still not a crime. What is alleged here is that SabreTech's
urge to have its business done overtook other considerations
including safety considerations.
And it even took it at the expense of making false
statements on work papers that are within the jurisdiction
of the Federal Aviation Administration. The Court will
instruct you that such work papers are within the
jurisdiction of the Federal Aviation Administration.
You're not going to hear of anyone from the
Federal Aviation Administration coming in and looking at
those papers, but you're not going to hear that that's a
requirement either. That is not what is required.
The manner and means of this conspiracy as stated
in the indictment was for SabreTech's management, and
Mr. Gonzalez, in particular, to oversee work at SabreTech so
as to rush it and compress it even if this meant skipping
work steps and falsely asserting that the work had been
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done. How do you we know that? We know that from evidence
in this case.
For instance, Danny Gonzalez made that position
known loud and clear, literally loud and clear, in a
screaming match with Chris DiStefano, screaming that could
be heard throughout the hangar, according to the testimony
of Michael Quan. When DiStefano dared to try to make the
work card arrangement more accountable in his work booth
even at the expense of limiting access to that work booth.
As a result, Chris DiStefano lost his temporary promotion to
hangar manager.
That attitude of hurrying and compressing work is
also seen in Government's Exhibit 36. We showed it to
several of the mechanics. You may recall it. That was this
document that we call the 7-day-a-week memo.
"To director, supervisors and maintenance
personnel from Danny Gonzalez; re: Heavy workload. Date,
April 26, 1996." Remember that date. It will fit in with
events later on.
"Effective immediately, due to the present work
load all maintenance personnel, including management, are
required to work 7 days including days off. We will return
to regular work schedule when the three MD-80s are
delivered."
It's not a crime, ladies and gentlemen, but it is
UNITED STATES vs SABRETECH, ET. AL - 12-1-99
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part of the circumstance of the pressure that caused
documentation like that work card to be falsified less than
ten days later.
We also heard testimony about the incident at the
booth very shortly after that memo, on May 4 of 1996. When
the mechanics were summoned to the work booth to sign those
work cards, John Taber, he wasn't too eager to do that. He
said he had to read the work cards. He said he was greasy.
He wanted to go. He read one and signed it because he had
done the work. When he was asked to sign more he said, "no,
I want to read it."
Danny Gonzalez said, "we need this paperwork
signed now." Standing at Eugene Florence's elbow with work
papers. Ladies and gentlemen, that was an invitation to do
some pencil whipping. This is an invitation from the boss,
Danny Gonzalez, and it was an invitation that was hard to
refuse.
John Taber resisted. He was greasy. He said he
wanted to read. Whether he was a hero or whether he was
sliming out of it, you can draw your own interpretation.
But the bottom line is he didn't end up putting his name on
this work card, did he? It was Mr. Florence that did that.
Mr. Taber walked out. Mr. Florence didn't. But they both
knew that those shipping caps were not on there. They knew
because they had talked about it. We'll have further
UNITED STATES vs SABRETECH, ET. AL - 12-1-99
85
discussion about that.
Ladies and gentlemen, that's why Eugene Florence
is here today because of that work card and because of the
decision that he made on May 4, 1996 to sign it. That's an
agreement, ladies and gentlemen. He doesn't have to stand
there and say to Danny Gonzalez, should I sign it even
though it's false? And Danny Gonzalez saying, yeah, sign it
each though it's false. There's no evidence like that, and
that's not what the government is required to prove. But
Eugene Florence's understanding what Mr. Gonzalez wanted and
being willing to do it, by deed, if not by word, that
evinces an understanding.
There were other instances of this sort of
situation. You may recall the testimony of mechanic Tomas
Silvers, the gentleman who testified in Spanish with an
interpreter. He testified that his lead mechanic, Ray
Serrano, had him and a man named Mauro Valenzuela working on
oxygen generators and telling Mauro Valenzuela to sign
papers even though Valenzuela said he hadn't done the work.
We had some grand jury testimony of Mr. Silvers as
to whether they inspected the work, but what Mr. Silvers
testified to was that they told Ray Serrano that they hadn't
done the work. And Ray Serrano, who was part of the
supervisory chain, it didn't phase him. They had bantered
back and forth about who was going to sign. Mauro
UNITED STATES vs SABRETECH, ET. AL - 12-1-99
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Valenzuela took the papers. Later on Silvers said, "what
did you do that for?" And Valenzuela said, "well, it's
signed now".
Ladies and gentlemen, in Exhibit 26 you are going
to see the parallel documents for aircraft 803. You are
going to see that same work card, the one that I showed you
before that Mr. Florence signed. But this time in Exhibit
26 it's signed by Mauro Valenzuela, ST0088. It's that same
false statement.
I'm sorry, I'm showing you page two. He signed
both pages. Page 1, again ST0088, at item B, "if generator
has not been expended install shipping cap on firing pin."
Mr. Valenzuela signed it for aircraft 803. It wasn't true.
Thomas Silvers told you that he and Mauro
Valenzuela were working on the oxygen generators that day,
the old ones, putting green tags on them, and they didn't
have shipping caps on them.
Robert Rodriguez told you that early in May he was
called upon to clean up the oxygen generators along with the
rest of his work crew. They cleaned up generators,
including from 803, they didn't have shipping caps. Another
false statement about this same thing.
Other instances of this common plan at SabreTech
involving falsification, you may recall the testimony of
both Robert Rodriguez and John Taber that on the day that
UNITED STATES vs SABRETECH, ET. AL - 12-1-99
87
they were sitting at a table with Eugene Florence and they
were working on oxygen generators, they were taking old ones
out of the insert units, and you remember what we are
talking about when we are talking about the insert units.
Perhaps you remember this thing, Government's
Exhibit 29, this is the PSU as it goes into the passenger
compartment, the oxygen generator fits in this heat shield,
and when the mechanics were working with these generators
swapping in and out, the heat shields were out of the unit,
they took them out of the airplane, and they had them out on
a table. And they were taking oxygen generators out of
these metal brackets, taking out the old ones and swapping
in new ones. They spent a good part of the day doing that
with lots of oxygen generators.
Eugene Florence was at the table. John Taber was
at that table. Robert Rodriguez was at that table. They
talked about what they were doing. Robert Rodriguez said;
hey, what about this shipping cap, because the shipping cap
appeared on the new generators. Remember they were swapping
in new generators. They looked like this. Obviously, this
one has no bottom on it. They had this little warning label
that no one seems to remember. People don't remember what
they don't want to remember.
They also had shipping caps. They are also known
as safety caps. Robert Rodriguez said; "hey, what's
UNITED STATES vs SABRETECH, ET. AL - 12-1-99
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happening with this shipping cap?" John Taber said; "we are
out of shipping caps," and said, "I told Mr. Wiles that we
were out of shipping caps, and Mr. Wiles said don't worry,
we will take care it have later."
Who was Mr. Wiles? He was a supervisor. He was
right there. He was in the area of this conversation.
Ladies and gentlemen, that is evidence from which you can
conclude that Wiles also was part of this chain of
management indifference to safety concerns.
Another person who was there that day Jude
Casamere, the lead mechanic. No not only did he hear the
same thing about there being no shipping caps, he was also
present at the work booth. The same man who was part of
SabreTech's supervisory chain, the same lead mechanic who
knew there were no shipping caps, was at the work booth the
day that he, Jude Casamere, was summoning mechanics to sign
work papers including the work paper that Eugene Florence
signed falsely stating that there were shipping caps.
So who was in this agreement, this conspiracy?
Danny Gonzalez, you heard about some role that he had in the
work booth, and you will also hear, as we discuss further,
about his falsification of a work card relating to Aserca
Airlines.
Eugene Florence signed that false work card for
0069 for aircraft 802 and also a non-routine work card and
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89
Mauro Valenzuela. In addition, the indictment says there
were other persons, unknown persons in this agreement.
For instance, ladies and gentlemen, there was a
letter that was written by a man named William Drechsler.
William Drechsler wasn't getting along well with SabreTech.
It was DynAir Tech then. He was the tech rep for Aserca.
He wrote a letter expressing his concern, and he said quote,
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, unquote.
Mr. Drechsler was here. On cross-examination he
said; "well, I was thinking more been late paperwork." But
that's not what he wrote, ladies and gentlemen. What he
wrote that we have papers signed and no work accomplished.
And that letter went to managers at SabreTech. That should
have been a red flag to them. It went to Mr. Pereyra, the
addressee, the Vice President of marketing, the man that
testified yesterday. Mr. Pereyra gave it to Danny
Gonzalez.
Danny Gonzalez and Eugene Florence, the two
individual defendants before you here today both knew that
the conspiracy and the agreement went beyond the individual
false statements they made.
Danny Gonzalez knew. He was the one who was
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urging John Taber to sign saying there was no time to read a
document with Eugene Florence at his side. Clearly an
invitation to do slipshod work and pencil whipping.
Eugene Florence must have known also that other
false statements were being made. Eugene Florence knew
there were two aircraft with old oxygen generators. He
worked on both of them. We know that from his own statement
to Mark Gentile of the FAA. Not only was it oral but it's
here in writing. It's Government Exhibit 79, Eugene
Florence's written statement to the FAA; "which ValuJet
aircraft did you perform maintenance on?" "802 and 803."
"To the best of your knowledge, how many oxygen generators
did you personally remove from each aircraft?" "From 802,
30 to 35. From 803, 30 to 35."
"After removal of the oxygen generators, did you
install a safety cap on the primer?"
"No, they weren't available. Had to keep new ones
on until final drop check." So Eugene Florence must have
known that just as he had signed work card 0069 for aircraft
802 somebody had to sign a similar work card for aircraft
803, and that that signature had to be false because there
weren't shipping caps.
Ladies and gentlemen, I've talked about
individuals, but there's another important player in this
conspiracy in these crimes. Indeed, probably the most
UNITED STATES vs SABRETECH, ET. AL - 12-1-99
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important player and that is something known as SabreTech.
In the law, SabreTech, a corporation, is considered to be an
actor that can be guilty of a crime just like a human being.
That is what has been charged in this case, that SabreTech
committed 23 of the 24 crimes charged in this indictment.
A corporation is an actor. It accomplishes
things. It accomplishes it as the sum of the individuals
that it employees and its agents. It is the sum of its
part. What those individuals do, that corporation does.
What the individuals know, the corporation knows. It is
even considered that a corporation can have a quote,
unquote, mental state. It can do things with a knowledge
and appreciation of what it is doing.
Of course, that must be so, ladies and gentlemen,
because the corporation takes actions that have legal effect
and that require volition and intent.
What is this corporation? This is something that
is alleged in the indictment. There was DynCorp. And then
DynCorp sold its stock to SabreLiner. And then SabreLiner
bought the DynCorp company including DynAir Tech of Florida.
DynAir Tech of Florida became SabreTech.
Ladies and gentlemen, this is one of those areas
where there are a few documents in evidence. We haven't
gone through them in detail. They lay out this corporate
history. I'm going to do it here briefly. You will have
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92
the documents to look at. They are somewhat dry documents.
They are business documents. But it's not really in dispute
so I don't think it is something that will give you much
pause.
One of the documents is this book, this black book
here, which is a binder that was made at the time of
purchase of DynAir Tech of Texas Inc., DynAir Tech of
Florida Inc., and from DynAir Avionics Inc. from DynCorp
Aviation Services. And it has the stock purchase agreement.
What this is about, ladies and gentlemen, is that
on June 30, 1995 SaberLiner Corporation, and there's
another documents. It's exhibit number 67A and 67B. Those
are the articles of incorporation of SabreLiner which is a
Delaware corporation. That corporation bought the stock of
these DynCorp Aviation companies including a company that
was known as DynAir Tech of Florida.
DynAir Tech of Florida had a repair station
certificate. The number is set forth in the indictment.
That number also appears on several documents in this case.
When the repair station stock was sold to SabreLiner,
SaberLiner then operated that company. It operated that
company under that name until around January when it merged
all of the DynAir companies that it had bought in June into
a new corporation which it formed call SabreTech.
In these documents, and this is Government's
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Exhibit 66, these are SabreTech's papers of incorporation
from the state of Delaware. This is in January of '96
SabreTech is incorporated. There's other documents in these
series. These are all found around 66, 67A, 67B. 69 is the
articles of merger that are merging the DynAir companies
into SabreTech. 70, another certificate of merger of DynAir
Tech companies into SabreTech. All of these documents
amount to, ladies and gentlemen, when you look at them is
expressed in this chart.
This dotted line is June 30, 1995. Before June 30
of 1995 all of these companies were owned by something
called DynCorp. DynCorp has nothing to do with SabreLiner.
June 30, 1995 DynCorp sold its stock in these companies,
lock stock and barrel to SabreLiner.
From June 30, 1995 on, up to the time of our
events, including January of 1996, these companies were
owned by SabreLiner. That's demonstrated in this chart by
the color change. The colors really tell you more about the
ownership than the actual names. The green is when it was
DynCorp companies. The reddish color is when it was
SabreLiner.
They used the same name for a while. In the
purchase agreement, you'll see there's an agreement that
they can continue using the name for a certain number of
months to allow for a transition, and then they have to
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change the name. That's what they did.
From June 30, 1995 they used the name DynAir Tech
of Florida. In January they started a new corporation in
January of 1996. It was then SabreTech and they merged
these DynAir companies. It was DynAir Tech of Florida,
DynAir Tech of Texas, DynAir Avionics Inc. They merged
those three into SabreTech.
But the point is, basically, you've got one
continuous business under one continuous set of ownership
and control from June 30, '95 all the way to the time of our
indictment although operating under two different names.
Now, there is other background material in the
indictment. You are going to hear about this in the Court's
instructions. This is background material about what is the
Department of Transportation. What is the Federal Aviation
Administration. How did there jobs relate to the documents
in this case. Again, let me touch on it briefly.
Basically, you will hear about this in the Court's
instructions.
You'll hear from the Court that the Department of
Transportation was a department of the United States.
You'll hear that, from the Court's instructions, you'll be
able to conclude that Congress enacted laws to promote the
safety of flight of civil aircraft in air commerce to create
rules and regulations and minimum standards in the interest
UNITED STATES vs SABRETECH, ET. AL - 12-1-99
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of safety, and that Congress empowered the Secretary of
Treasury to carry out those duties, these duties of the
Department of Transportation included oversight and
regulations of hazardous materials including standards for
documentation and transport of hazardous materials.
That the Federal Aviation Administration was an
agency of the United States within the Department of
Transportation, and its mission was to promote safe flight
of civil aircraft, and that it was empowered to issue repair
station certificates.
We have got SabreTech's repair station
certificate, copy of it, as an exhibit in this case. It's
Exhibit 96. It shows on it the same repair station
certificate number RD3R811L that you will also see on
documents relating to DynAir Tech of Florida. They kept the
same certificate.
Having this certificate put them under the
jurisdiction of the Federal Aviation Administration. You'll
also hear that it was a legal requirement that certificated
domestic repair stations were required to maintain adequate
records of their work, that records had to name the
certificated mechanic or repair person that performed or
supervised the work, and that at all times that Federal
Aviation had the right to inspect these repair station
records and that these records were within the jurisdiction
UNITED STATES vs SABRETECH, ET. AL - 12-1-99
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of the Federal Aviation Administration.
Now, what were they talking about when they talked
about the certificated mechanic? Those were the people who
are authorized to sign these work cards. People like Eugene
Florence, Mauro Valenzuela, Danny Gonzalez all had airframe
and power plant licenses.
Now, we did have some testimony about SabreTech.
I'm going to use the term SabreTech, and I hope you will
understand that when I say SabreTech this sometimes includes
the phase when it's DynAir Tech of Florida but beginning on
June 30, 1995. That's the shorthand, and the indictment
uses the same shorthand.
You her about how SabreTech did best in some ways.
They used lots of contract labor. Robert Rodriguez told you
about this. We also had this lady named Kay Peters who came
in and introduced one of the documents. And she explained
that SabreTech would get labor from these aviation services
such as PDS.
I believe it was Robert Rodriguez who told you
that stood for Piping Design. Robert Rodriguez worked for
PDS and was contracted to work at SabreTech. Same was true
of John Taber and Eugene Florence. They were all PDS, as
Mr. Rodriguez testified to.
Mauro Valenzuela came from STS. We know that from
Government Exhibit 44, which is a list of employees and
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their employee work numbers through Mr. Peters being
introduced in evidence.
What's important about this, ladies and gentlemen,
is that they were all supervised by SabreTech. They were
its agents. It is what the law calls a master servant
relationship. What they did in the course of their work for
SabreTech, SabreTech did also, because that's the way this
agency relationship runs.
We know that. We know that Florence and Taber
reported to lead mechanic Jude Casamere who reported to
David Wiles on up the chain eventually to Danny Gonzalez.
Tomas Silvers testified that he and Mauro Valenzuela
reported to Ray Serrano and to Danny Gonzalez.
Let's talk for a moment about Danny Gonzalez. He
was the Director of Maintenance. One of the overt acts in
the conspiracy count and one of the substantive counts
relate specifically to a work card that Danny Gonzalez
filled out. It was a work card or Aserca Airlines, 0069.
Danny Gonzalez's signature appears on some other
documents but the one that is charged in this case is a
false statement, is a work card for Aserca Airlines.
MR. DUNLAP: I hate to interrupt, but she is
referring to the wrong work card.
MS. MILLER: Thank you, Mr. Dunlap. You are
correct. I said 0069. Ladies and gentlemen, excuse me,
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that's the number associated with the ValuJet work card.
The Aserca work card has got a lengthy number.
It's Government Exhibit 2. The number appears on it. The
point is this is for the ice protection system on Aserca
Airlines aircraft number 720.
Now, the government's proof that this work card is
false and that the work was not done came from the testimony
of several individuals. We heard from Michael Quan. We
heard from Chris DiStefano, and we heard from William
Drechsler. DiStefano and Drechsler in particular testified
that the work to complete this ice protection system
functional check takes longer than the time that Danny
Gonzalez had this work card.
Both said it was a two person job. Chris
DiStefano said that it would take two people three hours to
do. Bill Drechsler said it would take two people four hours
to do.
Danny Gonzalez was gone with that paperwork for an
hour and a half, according to Christopher DiStefano. You
will recall that both Mr. Quan and Mr. DiStefano testified
about the same incident that occurred one morning in
December shortly before Christmas 1995.
Michael Quan thought that the time between the two
entrances of Danny Gonzalez was between twenty minutes to
two hours. This work had not been done previously to this
UNITED STATES vs SABRETECH, ET. AL - 12-1-99
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incident and the paperwork had not gone out previously. It
was Michael Quan and Chris DiStefano who laid out that
paperwork. This was according to Chris DiStefano, who was
the supervisor on that airplane. He testified that he was
going to lay out that paperwork the first day of work on
7/20 which would be the first day that he started handing
out the paperwork.
Michael Quan and Chris DiStefano both gave
accounts of this incident. They both remembered different
things. Ladies and gentlemen, as one of them testified,
this is in part because they have not conformed their
accounts. They have not discussed this matter with one
another since it originally occurred. But their two
accounts, although they are somewhat different, are not
irreconcilable and reflect a differing recollection of the
two people who observed the same thing.
Both recalled noisy fight. Chris DiStefano told
you what preceded that fight. He wanted to change the
system for work cards related to the next Aserca airplanes
coming in. He had worked on and supervised the Aserca
airplane 705. It had had a lot of problems with the work
cards. Too many people were coming into the work booth.
They were getting access to the work cards, and work cards
were getting lost, and the trail was being lost.
He went to a management meeting, and he explained
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to Jaime Galindo, Danny Gonzalez, and others who were
present that he was going to change the physical layout of
the work cards in the work booth to make them flow better,
make the priority work go better, and he was going to limit
access to that work booth. That's what he thought he was
going to do.
He set it up, but what happened the first day was
that Mr. Gonzalez came in and he objected obstreperously to
this arrangement. Michael Quan recalls Danny Gonzalez
coming in and saying; what the expletive is this. Both of
them remember Danny Gonzalez and Chris DiStefano arguing
about it loud. Both remember Danny Gonzalez taking a bunch
of paper and handing it out to the mechanics for work to be
done.
Chris DiStefano remembers Danny Gonzalez putting
it in his jacket and that not all the paperwork was handed
out. Michael Quan didn't remember whether all the paper was
handed out or not but he did not contradict Chris DiStefano
on that point.
Then Christopher DiStefano testified that he hung
out around the plane and he did not see Danny Gonzalez
there. He went past Danny Gonzalez's office and on the desk
he saw this document, this work card Government Exhibit 2
for the ice protection system. Both of them remember Danny
Gonzalez returning to the booth. DiStefano says an hour to
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an hour and a half later. Quan says twenty minutes to two
hours later.
DiStefano remembers Danny Gonzalez coming in and
having papers that were already signed and laying them on
the desk and saying; "see, Chris, don't worry. We'll have
that C-Check done in no time," either a reassuring statement
or not, depending on your point of view considering the
fight that he just had.
Michael Quan remembers Danny Gonzalez taking the
paper from the rack, signing it and leaving after making a
remark that he remembers similarly; "see, we'll have that
C-Check done in no time."
Michael Quan doesn't recall if Danny Gonzalez
brought anything with him. He doesn't contradict Chris
DiStefano. He just doesn't remember. Michael Quan's
recollection of signing something on the spot is more
consistent with the document that he remembers which is a
three page document.
Chris DiStefano, on the other hand, recalled that
it was this document, which is a lengthier document. Ladies
and gentlemen, you may recall that it was brought out on
cross-examination that when Chris DiStefano was in the grand
jury he couldn't remember which document he saw Danny
Gonzalez with. At that point, in the grand jury, he didn't
have any documents to look at. Later on, when he had the
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documents to look at, he was able to identify it. In the
grand jury he was asked how long was it. He said it was
about ten pages. Ladies and gentlemen, this document is
nine pages long.
Michael Quan remembered a different document being
signed on the spot. That was this fuel bio-bor card. The
government does not claim that the fuel bio-bor card was
false. In fact, the fuel bio-bor card was for work that was
not going to be done because it was N/A, not applicable.
They were going to do something else with those fuel tanks.
They were going to open them and dry them, and that was
going to eliminate the need for that work. That card is not
alleged to be a false statement. That's not what Count II
charges.
You heard that Chris DiStefano was somebody who
took a book from SabreTech in August of 1996, the turnover
log. You also heard that Chris DiStefano got use immunity.
Getting use immunity was not something that was unique to
Chris DiStefano.
We had a number of witnesses in this case who
received use immunity: Robert Rodriguez, John Taber, Tom
Silvers, Keith Ingram, Mitch Perez, Carlos Diaz.
Practically every one of the SabreTech employees who
testified had use immunity. You'll hear an instruction
about use immunity, that it means you should listen with
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caution to the testimony of those people, but they are
capable of telling the truth, and you are capable of
concluding that tell the truth just as with any other
witnesses.
Chris DiStefano paid a price for the fight that he
had with Danny Gonzalez. He lost his temporary promotion.
As he told you, he didn't have good feelings toward Danny
Gonzalez after that. He was candid about that, and he told
this jury that. He didn't conform his story to Michael
Quan, and he also told you that he took that turnover log.
Now, you also heard on cross-examination that when
he was asked if he had any criminal arrests or criminal
history he said no, and actually he had been arrested in the
1970s, but later on he told the government about that.
You're going to have to assess the credibility of
Mr. DiStefano. You're going to have to assess if his
misstatement about his arrest was a material matter or not,
and whether that effects your belief in other things he
said.
Ladies and gentlemen, consider that his testimony
is corroborated also by the account of William Drechsler.
In fact, not only did William Drechsler say that the job
would take as long to do as Chris DiStefano, William
Drechsler direct. Will Drechsler who has done that job 25
to 30 times, said he thought it would take longer. He
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thought it would take two people four hours to do.
The defense presented a witness who also testified
about that the job. Manny Quintana, and he said he thought
that job would be part of what he called the pre-dock, done
earlier. He didn't say it had to be done as part of the
pre-dock. He said it could be done inside the hangar.
He testified to seeing Dan Gonzalez in an aircraft
piloting it around. He didn't say that it was even a 720.
Ladies and gentlemen, pilotting and aircraft and driving it
on the ground, that has nothing to do with this function
driving that aircraft. That's big shot work driving that
aircraft around. Mr. Quintana did not testify that he saw
Danny Gonzalez turning wrenches or working with a little
test kit for checking valves, as was testified was necessary
for this ice function protection system.
Chris DiStefano was the supervisor of the plane.
Now, ladies and gentlemen, is it possible that Danny
Gonzalez sneaked in the middle of the night, got into that
airplane and did a two person job all by himself. That's
not the test. You're going to hear in the instruction,
quote it is not necessary that a defendant's guilt be proved
beyond all possible doubt. It is only required that the
government's proof exclude any reasonable doubt concerning
the defendant's guilt.
A reasonable doubt is a real doubt based upon
UNITED STATES vs SABRETECH, ET. AL - 12-1-99
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reason and common sense after careful and impartial
consideration of all evidence in the case, unquote. Common
sense tells you that's not what happened. Work done
surreptitiously undercover of night.
Common sense tells you and supports what the
testimony is. That this work card reflects work that was
never done at all, pencil whipping.
Ladies and gentlemen, I would like to turn now to
some of the other counts in the case. In order to do that
I'd like to run through some of the events in this case in
chronological order, because when we have a trial things
come in bits and piece. Witness A testifies about something
that happened in September and in February witness B comes
in and talks about something that happened in January and
April. During this closing argument that we have an
opportunity to try to put these things in order. So if I
may, I'd like to use a time line to do that.
I've actually got two placards as we get to the
period of May '96, as the events are closer together, I'll
use the second placard. What are the events in the case?
Let me move this back a little. June 30 of 1995, SabreLiner
buys DynAir Tech of Florida. That's when it basically
becomes the company later named SabreTech.
Summer of 1995, there is an aircraft maintenance
service agreement, and that agreement appears at Government
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Exhibit 35A. This is the document. In this document
there's a provision. Again, this is one that we haven't
gone into the details of with you. It's at section 11,
article 11 of this agreement. What is says is failure in
performance. The whole thing is here. You can read it.
The significant portion is Cellar, that's DynAir Tech of
Florida, later SabreTech, agrees to credit ValuJet the
amount of $2,500 per calendar day as liquidated damages for
each day the aircraft is delayed beyond the delivery date.
In other words, it's a penalty clause. SabreTech gets a
financial incentive to get its work done on time, because if
they don't get the work done on time, they are subject to a
penalty clause of $2,500 a day. Just part of the business
setting, not a crime. Certainly not an unusual provision,
but a factor in SabreTech's concern in getting work out
promptly.
December 1995 Aserca, airplane 720 comes to DynAir
Tech of Florida. There's the argument between Chris
DiStefano and Danny Gonzalez. Danny Gonzalez falsely signs
the ice protection work card. Government Exhibit 2, Chris
DiStefano loses his promotions.
January of 1996, not every event that I'm telling
is on this timeline, but it does fit in with the events
there. January of 1996 Chris DiStefano transferred work on
the MD-80s. The MD-80s are these three aircrafts that
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ValuJet jet had SabreTech doing C-checks on refitting for
them. They had bought them from another airline, and they
were being refurbished, made to conform the ValuJet design,
and they had their oxygen generators worked on because
oxygen generators had expired on two of the aircraft.
January 1996, the DynAir companies merging into
SabreTech and work begins on the MD-80s.
Now, the work on the MD-80s included removing an
replacing expired oxygen generators. You all remember the
testimony of Robert Brennan, the man who looked like he
needed, the red suit in advance for Christmas. The
represented from Scott Aviation. He explained that the
oxygen generators are a one time use item.
They've got a chemical in them, sodium chlorate.
It releases oxygen when heated, and that chemical is a
granular substance. And overtime as the aircraft takes off
and lands, the vibration of landing could cause that
granular substance to pack and to develop little fishers.
The concern is that overtime, if there are fishers, the
oxygen generators will not fully initiated. When the heat
reaction starts, the heat may not jump a Fisher, and oxygen
will not be fully produced.
So there is a time limit put on oxygen generators.
The time limit is 12 years. After 12 years there's no
further use for them. You can't reuse them. You can't
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refurbish them. They are a dead letter. The part of the
SabreTech was to remove expired oxygen generators from two
of the aircraft.
Eugene Florence and John Taber were deeply
involved in that work. During the period of February,
March, perhaps into April of 1996 Eugene Florence, John
Taber and others were removing old expired oxygen generators
from 802 and 803. 830, you may recall, the oxygen
generators weren't expired. They had to do some work with
oxygen generators on 830, but not much. The major work was
on 802 and 803.
During this time there were things happening that
told these mechanics, their supervisors, and SabreTech in
general, watch out these generators are dangerous. They
would go off, for one thing. They would go off easily.
Robert Rodriguez was working in 830 when one went off.
Chris DiStefano, remember after he got pushed out
of Aserca, he worked in aircraft 830, and he had two of them
go off.
John Taber told you that as he and Florence and
the others were working at the table, they were taking
generators out of boxes, and he could see, John Taber could
see that some of the generators had gone off in the box and
had melted that plastic heat shield.
As they were working at the table, they noted the
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absence of shipping caps. They discussed among themselves,
and they discussed with David Wiles. David Wiles said don't
worry about it. So what the mechanics did instead they
thought it would be a good idea, John Taber testified to,
was they wrapped the lanyards.
What is this business of wrapping lanyards?
Mr. Brennan testified and told us that when the oxygen
generators are shipped out, they have the lanyards wrapped
around them this fashion. He said they secured with a
rubber bands or the mechanics were securing them with tape.
Guess what ladies and gentlemen, this is not a safety
measure. On cross-examination the defense tried over and
over again to get Mr. Brennan to agree that this had some
safety role. He kept saying no, it is not a safety measure.
It does not protect this generator from initiating. What it
protects is keeping that hammer from falling mechanically.
And when the hammer falls and that safety cap is placed,
it's a pain in the neck. You got to reset the hammer. As
you saw, it's springloaded. It's hard to do.
In fact, these generators are only meant to be
used one time. Do you remember we had testimony from
Mr. Brennan that the first generator that we got didn't work
out so well that we got for this case. We had to go back
and make what he calls a ruggedized one, that was because he
testified that somebody, I testified that it was me, had
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leaned their hand on the generator top and had broken that
too, and he said, "I put a little drop of SuperGlue on it."
The SuperGlue has not been so super, and you can see on this
one that it happened again. They are meant for one time
use. They are not meant to be used over and over again.
When that lanyard and that pin pulls out it's a
pain in the neck to replace it. That's the purpose of
wrapping lanyards. It's not a safety mechanism. All that
this wrapping does is, hopefully, it keeps that hammer from
dropping. But if the hammer drops, and there's no safety
cap, this thing is going to go off. If the hammer drops and
there's a safety cap, there's no problem. That's the safety
measure, ladies and gentlemen.
But the mechanics were wrapping lanyards. They
knew there were no shipping caps. You may hear that this
was the best they could do and, therefore, they were acting
in good faith. Ladies and gentlemen, that best wasn't good
enough. When you're dealing with hazardous substances, it's
just not enough to say "hey, I did my best."
What if they had been chewing gum and decided that
that was a good idea. Would that have been sufficient?
That's not the definition of good faith, ladies and
gentlemen. It certainly has nothing do to do with telling a
lie. There's no good faith against making this statement
saying that you put a shipping cap on when you haven't.
UNITED STATES vs SABRETECH, ET. AL - 12-1-99
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It's not good faith to say well, I didn't put a shipping cap
on, but I wrapped the lanyard. So it's okay to lie. That's
not good faith.
Now, another thing as they were working with these
generators, remember, they are taking new generators. They
are swapping out old generators and putting in new ones.
Remember what's on the new generators? None of the
mechanics wanted to remember. And remember what I said a
few moments ago? It's painful to remember some things.
Nobody is suggesting that the people who were
involved in the series of events don't feel very very bad
about what happened. But it did happen, ladies and
gentlemen, and the law requires us to look at them.
The new generators that they were working with had
warning labels on them. "Warning this unit gets hot. When
removing unit install safety cap over primer. Do not pull
lanyard. If activated place on surface that won't burn."
It didn't appear on the old generators because the old
generators predated 1988. That's the year that Mr. Brennan
said this label start to be affixed. But the new generators
had this label on them. They were coming in 1996, and the
same people that were working with the old generators are
working with the new generators.
In addition ladies and gentlemen, they were
working with the boxes that the new generators came in. At
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that table where Eugene Florence, and John Taber, and Robert
Rodriguez were, they were working with boxes like these.
This photograph was taken by agent Gentile. You remember
Mark Gentile testified during the end of the trial. He was
an FAA agent who went out to SabreTech after the crash and
documented much of what he saw. Among the things he saw
were these boxes, which Mr. Brennan identified were the
boxes that the new generators are shipped in. These boxes
which the mechanics worked with also put them and SabreTech
on notice that they were working with the new oxygen
generators. It's got the numbers and description on it.
Most of all, it's got the yellow thing on it.
In this picture it's covered partially with tape,
but not all of it. We have got a sample of it. It's
Government Exhibit 38, excuse me, 30E. It's the oxidizer
label. We showed it to Mr. Brennan. This is the same label
that appears on this box. It's a hazard label, but people
don't see what they don't want to see.
April of 1996, more work on oxygen generators.
Tommy Silvers, and Mauro Valenzuela work on oxygen
generators. Ray Serrano, their lead mechanic, asks them to
sign papers. They say they haven't done the work.
Valenzuela takes the paper and letter on he tells Silvers,
"now it's signed." They spend the rest of the day putting
tags on generators which have no shipping caps.
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Now, for the documents that Mr. Valenzuela signed,
we look to Government's Exhibit 26. Government's Exhibit 26
shows the routine work card 0069 signed by Mauro Valenzuela
ST0088 and also the non-routine work card signed by Mauro
Valenzuela in which the task was remove and replace all
cabin oxygen generators per ValuJet card 0069 attached. And
Mr. Valenzuela signs as work completed by. That was false.
The generators had not been removed and replaced
per ValuJet card 0069, because 0069 contained an untruth in
it. Mr. Valenzuela knew it, because he was the one who
signed 0069. Both documents are false statements. Both
false statements by Mauro Valenzuela, and therefore, by
SabreTech. Ladies and gentlemen, this is Count III of the
indictment, work card 0069 for 803. This document is Count
IV of the indictment, non-routine work card saying that
everything had been done per work card 0069. Exhibit 26
contains the documents that are the false statements in
Counts III and IV.
April 26, 1996, we have that memo that I showed
you earlier. The 7-day-a-week memo from Danny Gonzalez.
This isn't just an admonition to work 7 days a week. It is
because of the MD-80s. "When the three MD-80s are delivered
we will return to a regular work schedule." So there was a
press on to get those MD-80s out, and you will understand
why even more, ladies and gentlemen, when I go into a
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document that was received in evidence but that we did not
discuss during the trial, but I will discuss with you now,
and that is Government's Exhibit 95.
This document was admitted, ladies and gentlemen,
and as the Court told you, this document can be considered
by you only in relationship to the defendant SabreTech, not
the individual defendants. But with regard to SabreTech, it
is a very significant document.
It's a letter to a Vice President of ValuJet,
dated May 1st, 1996. And the letter is sent by Steve Towns,
the President of SabreTech. In this letter, which was
copied to the Miami facility, and you can see it's got the
little post-it fax notes to Jaime Galindo from S. Towns.
It's got a note on it to Fernando. Remember Fernando
Pereyra that we heard from yesterday, FYI and ValuJet.
In this letter, Mr. Towns, he is basically tried
to mollify his customer. You'll read it yourself. You can
see that ValuJet is unhappy because the MD-80s are late.
"ValuJet is a strategic customer, we intend to
materially help you continue your aggressive growth
path. For a number of reasons, schedule slippages
occurred in the MD-80 program in our Miami branch." In
other words, the planes are late. "I have committed to
you that we will do the right thing so you can meet
your objective today and so that we can preserve and
UNITED STATES vs SABRETECH, ET. AL - 12-1-99
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grow our relationship with you."
"Accordingly, we have agreed today that SabreTech
would cover your potential single day cost of securing
substitute airline service on May 1, 1996 for today's
late delivering MD-80 from Miami. This coverage will
not exceed $20,000. It will be less than $20,000 if
the MD-80, parenthesis number 803, becomes available to
you today for revenue service, or if you do not utilize
the replacement airliner for a full flight day ValuJet
will provide courtesy copies of invoices" --
THE COURT: A little slower please. She has got
to take it down.
MS. MILLER: "ValuJet will provide courtesy copies
of invoices and or flight summaries on the replacement
airliner on May 1, 1996 so that SabreTech account
records are complete."
There's a little bit more. And then it says:
"As you know we are soon going to put substantial
capacity and management resources on line on ValuJet's
behalf. I welcome the personal meeting with you and
Luis Jordan so that can present first hand the many
improvements that will be embodied in this old
strategic chain."
In other words, SabreTech has been under financial
pressure because those planes were late. They had promised
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to provide a credit against ValuJet's costs for 803, up to
$20,000 per day costs.
That atmosphere, that pressure, made itself felt
on the floor of the hangar even. On May 4, 1996 Jude
Casamere summoned the crew to the booth telling them to sign
papers. John Taber didn't quite want to do it. He said he
wanted to read the paper first. He read one paper, and he
signed it for work that he did.
Other papers that he saw in the booth related to
oxygen generators. He said he was greasy and he wanted to
read them. Danny Gonzalez said quote, "we need this
paperwork signed now." Taber declined to sign. Eugene
Florence didn't. He signed 0069 and the non-routine work
card for 802.
Ladies and gentlemen, those documents appear at
Government's Exhibit 25, and they are Counts V and VI of the
indictment. False statements, work card 0069 by Eugene
Florence is Count V. The non-routine work card signed by
Mr. Florence is Count VI. In that non-routine card
Mr. Florence has signed and written right next to it in
handwriting says; "remove and replace all cabin oxygen
generators per ValuJet card 0069, E. Florence."
Ladies and gentlemen, that wasn't true. It hadn't
been done per 0069, because 0069 included the false
statement about the shipping caps having been put on.
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Ladies and gentlemen, this is not good faith to
make a false statement like this. In fact, this document
was intended to mislead ValuJet into believing that the work
had been done as accomplished. There's an intent to mislead
and to deceive. You know what, it worked.
Do you remember the testimony of Al Ramos,
ValuJet's technical representative whose job it was to audit
paperwork. He was an auditor by gosh. He had that
personality. He testified that way. He sat there and read
papers and checked signatures. He said that one of the
things he checked for was to make sure every item was
signed.
In this work card it says "E. Florence" on top.
That's not all. Immediately to the left it says "1 A
through D" in handwriting. That's what indicated to
Mr. Ramos that each of these items were being acknowledged
and being signed for, 1A through D. Mr. Ramos believed that
all the steps had been done, including of course step D, and
he was misled.
Now, also in this package, ladies and gentlemen,
there's another document that Eugene Florence signed.
There's several other documents actually that he signed.
One of them is a non-routine work order for the removal of
safety caps from oxygen generators.
Remember the testimony that the new oxygen
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generators came with safety caps on. In that discussion
with Robert Rodriguez and John Taber, "hey, what's happening
with these shipping caps or safety caps." The two terms are
used interchangeably. It was stated that the caps have to
remain on the new generators until the drop test is done.
You recall that the drop test is when the new
generators are back installed in the airplane they have to
make sure they work properly. So they go through the test
where the door is open, and they check if the equipment is
going to drop properly. But they have to keep the safety
caps on when they do it because they don't want the oxygen
generators to go off during the test. It's a one time used
item. So the shipping caps have to stay on until the drop
test is done. The drop test has to be done and then the
shipping caps have to be removed, because it would not be a
good thing to send the airplane off with these oxygen
generators with caps on them, because then they're not going
to work when you want them to work.
Ladies and gentlemen, an oxygen generator is a
funny thing in one way. You really want it to work when its
suppose to work. And you really want it not to work when
its not suppose to work. You want it to work when its
suppose to, obviously, because you need oxygen in that cabin
in the event of depressurization. You don't want it to work
in other circumstance because it can be hazardous because of
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the generation of heat in the presence of pure oxygen is a
big fire hazard.
After that final drop check part of the step is to
remove the safety cap. In this work card, non-rountine work
card signed by Eugene Florence and dated May 5, 1996, Eugene
Florence certifies he signed it twice, both as having taken
the corrective action and completing the work. "Removed all
safety caps from 02 generators after final drop check, E.
Florence."
Isn't that the ultimate irony, ladies and
gentlemen? The same man who, on May 4, is lying that there
are shipping caps on the old generators, the next days takes
safety caps off of the new generators. But that next step
is not taken. The shipping caps are not put on the old
generators.
The same man who told this lie, took the new
generators' shipping caps off the following day. Nothing
was done that stopped that terrible chain of circumstances
where the old generators were moving forward without safety
caps.
Robert Rodriguez told you what happened to those
generators next in that week of May 1996. They were
hustling that week. They wanted to get the aircraft out and
they wanted to clean up for a customer audit. There was a
push on to clean up. Jude Casamere came to Robert Rodriguez
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and John Taber and said, let's clean up all these old
generators as part of that clean up process.
They gathered old generators, and remember, that's
when Mr. Rodriguez testified and I told you about what I
call the 803 side of the house and the 802 side of the
house. I see that I've gone past the first chart. I'm
going to put up the second chart, because this contains some
of the other chronological events we've been talking about.
Tom Silvers and Mauro Valenzuela working with
their generators in April. The 7-day-a-week memo, April 26;
the Steve Towns' letters May 1, 1996; the work booth
incident May 4, 1996; Eugene Florence signing off on the
drop test May 6, 1996, and right now we are here the week
between May 4 and May 11, 1996.
The mechanics were told to clean up the old
generators from 802 and 803. They did so. And when they
did it Robert Rodriquez said what happened. Guess what?
Every time they touch these generators they're going off.
Duh. No, the bell does not ring. It doesn't compute. Duh,
they just went off, what should we do with them? Put them
in a box and send them out of here. Out of sight. Out of
the mind. That's what they did with them. Three boxes were
brought to storage. There were no shipping caps on them.
May 9, May 10, Al Ramos and Bill Simons took a
tour of the stores area. Remember the both worked for
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ValuJet. Ramos thought that he saw a box of what he later
concluded were new generators. He didn't know what they
were when he saw them. They had a talk with Bill Heral, the
director of logistics, about moving forward to do an
inventory of ValuJet property. Mr. Ramos testified that he
tells Bill Heral, "don't move anything out yet. We are
going to be doing inventory."
At the same time, ladies and gentlemen, the scene
now does shift to that stores area. We are now at the end
of the week of May 11 and May 10. We heard from Carlos
Diaz, the assistant to Andy Salis. He testified they were
trying to do this clean up. Andy Salis told Carlos Diaz to
make a shipping ticket for quote, "five boxes oxy canisters
empty."
Now we come to another critical document in this
case, the shipping ticket. Carlos Diaz told you he wrote
many of the words on it. He wrote these critical words:
"five boxes oxy canisters empty" at the direction of Andy
Salis. Andy Salis wrote a few things on it. His signature
appears. He wrote in this information about ValuJet,
"received 5/10." Remember, Salis wanted it to go out on the
10th but it didn't go out until the 11th.
And then there's Christopher Ramkissoon, the ramp
agent, who eventually received it.
Carlos Diaz saw the box. He saw that it had
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bubble wrap on top. It certainly had no haz-mat lables on
it. It had no stickers or nothing that announced any
hazardous nature.
Andy Salis asked Mitch Perez to take those boxes
out to the ValuJet ramp. Perez didn't do it right away, but
the next day Perez drove them to the ramp where ValuJet 592
was waiting.
Now we are at the critical day, May 11, 1996. As
per the shipping ticket, SabreTech wanted to ship them to
ValuJet Airlines concourse such and such, Atlanta, Georgia.
The flight was going interstate commerce. SabreTech was
shipping them to ValuJet. Perez got to the ramp.
Ramkissoon was there. They had a discussion as to whether
they would get on this flight or the next flight, and Perez
indicated that it was okay to go on the next flight as well.
Such things are destiny made, ladies and
gentlemen. Christopher Ramkissoon took this ticket, and he
showed it to his first officer. They didn't look in the box
further. Why would they, ladies and gentlemen? Of course,
in retrospect, everybody wishes that they had, but why would
they when their own repair station was telling them here's
something. It's no big deal. It's co-mat. It's five boxes
oxy canisters empty. Certainly had nothing on it that
indicated dangerous goods, hazardous class, UN label
numbers, any of the requirements. Didn't have any haz-mat
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sticker like the one that we saw.
The boxes got loaded into the plane.
Mr. Ramkissoon told you about it, and we picked up the
account from Dennis Segurra. Even Dennis Segurra knows what
a haz-mat label looked like. But there weren't any on these
boxes. He testified that it had no lables. The boxes had
no lables.
He also told you, as he was loading them, he could
hear metal touching metal in those boxes, clink, clink
clink. That's not the way that oxygen generators are
suppose to be shipped. Mr. Brennan told you that, and we
have these photographs. Remember earlier I showed you this
photograph which showed you boxes as Mark Gentile
photographed.
This is the same boxes opened, and you can see the
inserts and the set up of the way that Scott Aviation
shipped out its oxygen generators at this time period. They
were in these individual cardboard tubes. More to the
point, they weren't just lose in the tubes, and I don't know
if you could visualize it well from what Mr. Brennan was
saying, but he explained how they put the generator on the
piece of cardboard and they shrink wrapped the whole thing
to the cardboard. It's immobilized on that plastic shrink
wrap onto that cardboard, and then that cardboard is folded
into a rectangle, and they are shipped twelve to a box.
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There's only twelve to a box because otherwise they can be
over the allowed weight.
You've got in evidence, as Government's Exhibit 30
F, the section of the hazardous materials table which tells
you how much hazardous materials of that time of this type,
sodium chlorate was permitted to be shipped on a passenger
aircraft. It was five kilograms.
The generators that were in those boxes had way
more than five kilograms of sodium chlorate. We know that
because Mr. Brennan told us how much sodium chlorate is in
oxygen generators. If it's a two person generator, let me
give you the exact figure, Mr. Brennan testified that it was
between a half pound and something about .85 pounds,
depending on how big the generator was.
Certainly, you may recall the testimony of Robert
Rodriguez, that they had about 40 generators per box in the
three boxes that they brought to stores that day. Eugene
Florence testified to taking 30 to 35 off of each of the
aircraft. There were dozens of oxygen generators that went
on the airplane that day, and there was more than five
kilograms of this sodium chlorate.
It wasn't packed like this. They weren't
isolated. They were all rubbing up against one another.
What was that metal sound? Nobody has x-ray vision
hindsight to look into that box. You heard Mr. Fogg's
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opinion, remember they had no safety caps initiated, and
that the heat from that oxygen generator was sufficient.
If you think about it, ladies and gentlemen, would
be sufficient to ignite the cardboard that it was sitting in
and the bubble wrap that was covering it. And those flames
can be enough to cause the other generators to actuate.
Remember what Mr. Brennan told you. An oxygen
generator can go off from having that percussion cap be
struck. And that can start the heat reaction. But
remember, it's a heat reaction. If there's another heat
source, that heat reaction can start even without that
percussion cap being struck. Ladies and gentlemen, that is
exactly what could have happened with those oxygen
generators. One goes off, the box starts to go on fire and
heats others.
Remember this isn't a Class D cargo hold. The
whole point of a Class D cargo hold, its fire safety
feature, is twofold. Number one, it's airtight. Number
two, it has got cargo liners around the outside of it. The
idea of being airtight is oxygen feeds a fire. No oxygen or
less oxygen, less fire. Sounds like a great area.
You take atmospheric oxygen, and I believe it was
Mr. Fogg who testified it's about a 20 percent
concentration, and in that sealed cargo hold, if there's a
fire, it will use up the oxygen level until you get up to a
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concentration level of about 10 percent at which point the
fire is rendered to a smoldering state and doesn't pose a
danger to the rest of the aircraft.
You don't want a fire in an aircraft under any
circumstances, but obviously there was some forethought as
to this area of the airplane as to how to make it least
dangerous in a fair. It might be a good concept. The
problem is that concept is destroyed if you introduce into
this cargo hold several dozen little machines that make
their own oxygen. You're not talking anymore about a 10
percent or 20 percent oxygen level. You are talking about
machines that are producing pure oxygen.
Fire in the presence of pure oxygen is a bad, bad
idea, ladies and gentlemen. An that is what can lead to,
and what Mr. Fogg opined did lead to, the raging inferno
that was inside that cargo hold. I call it an inferno
because of the speed of which the fire occurred, 11 minutes.
The temperatures that were reached, Mr. Fogg told us about
pieces of wreckage which he brought in such as the aluminum
seat track. And it displayed this broomstrawing.
Remember he told us about this extrusion of
aluminum when it melts and then when it makes impact and
quickly pulls, it pulls into this weird shape. This shows
that this aluminum was at melting point. He tells us that
was between 1,100 and 1,200 degrees Fahrenheit. That's a
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hot fire to get to in 11 minutes.
Mr. Fogg told us about and showed us he called
embrittled control cable. The steel cable that physically
steer the plane. They had been embrittled to the point
where they lost their ductile quality and their flexibility.
Stainless steel melts at an even higher temperature, well
over 2,000 degrees. That was a hot, hot fire.
So the plane took off. It crashed. Walton Little
saw it and you heard his testimony. There were no survivors
of the 110 persons on board. After that crash Andrew Salis
wondered to Mitch Perez. He said to him, "I wonder, did
that shipment get on board that flight." Was Mr. Salis
worried about something?
A few days after the crash, Mark Gentile came to
speak to Andrew Salis. By then this shipping ticket had
come to Mr. Gentile's attention. On May 14 he went to
Andrew Salis and said; "what is this? What are these oxy
canisters?" As far as Andrew Salis knew, these were the old
oxygen generators that he packed. But what did he do? He
immediately called for a file. What was in that file?
Government's Exhibit 49B.
Ladies and gentlemen, Government's Exhibit 49B is
a shippers declaration for dangerous goods. It was a
shipping paper that accompanied new oxygen generators. You
may recall Mr. Brennan testified that when they shipped out
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new generators they use a form like this with red stripes.
This has got on it all the indicia that hazardous materials
is suppose to be shipped with. Andrew Salis knew
immediately the connection between what he had sent out the
old generators and the shippers declaration of dangerous
goods just three days after the crash.
This has got on it all the things that were so
tragically lacking from these shipping ticket. It's got the
proper shipping name, sodium chlorate. It's got the class
or division of the hazard, 5.1. It's got the UN or ID
number. Remember Mr. Brennan told us about all these. This
is an international number where there are unique numbers
associated with each hazardous material. It's got the
packing group. It's got warning labels on them:
"Failure to comply with all respects to the
applicable dangerous goods regulations may be in breach
of the applicable law subject to legal penalties."
SabreTech knew that what it had was hazardous
material. This document was in its own file. Its shipping
clerk knew to obtain this document immediately when the FAA
asked him about the old generators.
Finally, in this chronology, ladies and gentlemen,
after the events of the crash we know what happened. There
was a reconstruction that was made of the wreckage. We
heard testimony from Mr. Fogg. I'm not going to go over it
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with you in detail because it was presented in a very
detailed fashion with lots of photographs in evidence, but
it led to one conclusion. The massive majority of the
evidence of fire and heat damage of ValuJet 592 was found in
that front forward cargo hold where the oxygen generators
were.
There was other fire damage found elsewhere, for
instance, in the passenger cabin immediately above the cargo
hold, which is totally consistent with what Mr. Fogg also
saw, which is that the fire in that cargo hold had been so
intense that it actually burned out the resin in the
fiberglass panels, the liners that are part of the fire
resistant capacity of that cargo hold.
The fire started in the cargo hold. That's where
it was most intense. It marred the tire. Remember that
these goods were shipped with a tire. The oxygen generators
were clearly implicated in this fire.
We had some questions of Mr. Fogg. There are some
documents in evidence. We also heard testimony from some
passengers on ValuJet 591 with regard to the issue of
electrical problems on ValuJet 591.
Ladies and gentlemen, I'm not telling that I'm
flying ValuJet any time soon. Those passengers were upset.
Who wouldn't be upset with a flight like that with all those
problems on a plane that a few hours later crashed. But the
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evidence does not show any evidence of an electrical origin
to that fire.
Mr. Fogg examined ninety percent of the under
floor wiring of that aircraft. It was almost all recovered.
There was no evidence of arcing. There could be no arcing
within the cargo hold because there is no wiring in the
cargo hold. The cargo hold has some electrical fixtures, a
light bulb and a switch, but it does not intrude into that
cargo hold.
In all of that wire that he examined, Mr. Fogg
found one wire that had a possible copper melt which can be
a sign of arcing. It was in the area outside of the cargo
hold. It was a grounding wire. It was not near something
that it could have arced to. I'm not going to pretend to be
able to describe it the way he did with regard to the
potential, the electric potential, but he addressed why that
did not reflect an electrical origin to the fire.
It was a fire hot enough to burn the casings of
the oxygen generators, the stainless steel casings. Ladies
and gentlemen, even if by some unknown and unfathomable
theory, the fire started some other way than the oxygen
generators, who can doubt that the oxygen generators
contributed to that fire? There's no question that the fire
was centered in the cargo hold. There's no question that
the fire implicated the oxygen generators. There were
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burned oxygen generators.
Ladies and gentlemen, they were made of stainless
steel. They don't burn easily. But they burned in this
case. The flammable substance inside them contributed to
that. So those oxygen generators once they burn, they are
generating pure oxygen. That would contribute to and
exacerbate any fire, thereby partially explaining the
intensity of the fire how it reached into that cabin and
melted aluminum seat track in the course of 11 minutes.
Ladies and gentlemen, I've now discussed Count I
of the indictment, the conspiracy count. I've discussed the
five false statement counts, the one with Aserca Airlines
and the four relating to ValuJet paperwork. I've also
basically discussed the last count of the indictment.
The last count in the indictment Count XXIV
charges SabreTech with placing destructive devices on board
an aircraft knowingly and willfully and making and causing
at that aircraft to be made unworkable and unusable and
hazardous to work with and use so that such placing and
making were likely to endanger the safety of ValuJet
aircraft 904VJ.
We know that the oxygen generators are destructive
devices. Part of the maintenance manual that SabreTech had
on its own premises speaks of the explosive nature of the
contents.
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Larry Fogg told you that oxygen can be flammable.
The definition that you are going to hear of a destructive
device in the Court's instructions includes the term
infernal machine. It makes it sound sort of quaint. But
what is an infernal machine? An inferno is another word for
a fire. A machine that creates an inferno. Ladies and
gentlemen, that is what an oxygen generator, when used
improperly, can be. It is an infernal machine.
In order to establish this count, and indeed many
of the counts in this indictment, the government is required
to prove that the defendant in this case SabreTech acted
willfully. What does it mean to act willfully? You're
going to hear that the word willfully means that the act was
committed voluntarily and purposely with a specific intent
to do something the law forbids. That is to say with bad
purpose either to disobey or to disregard the law.
Ladies and gentlemen, that is amply shown here.
It is not shown that in order to act willfully you've got to
have a statute book in front of you and be reading the law
and saying here's a law. I think I'm going to disobey it.
That is not required. What is instead required is to act
willfully, the person or entity had to commit the act
voluntarily and purposely with a specific intent to do
something the law forbids.
The law forbids you to send hazardous materials
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with this kind of labeling. The law requires you to send
hazardous materials with this kind of labeling. SabreTech
didn't do it. They acted purposely because they knew these
were hazardous materials.
Remember, it's a corporation. They know what
their employees know. The mechanics knew of the dangers of
these oxygen generators. Mr. Salis knew they were being
shipped out. The two employees, or the various employees in
this chain can be aggregated together to tell you what
SabreTech knew. SabreTech knew of the dangers of these
oxygen generators in another way, ladies and gentlemen.
They knew because of the maintenance manuals.
We put in evidence maintenance manuals that were
found in SabreTech's files. They were found in August of
1996. Ladies and gentlemen, it's a fair implication for you
to make that they had these maintenance manuals all along.
ValuJet maintenance manuals are in evidence. These are the
standard McDonnell Douglas maintenance manuals. These
maintenance manuals, you heard the lady FBI agent testify.
She took the microfiche. She printed out chapters relating
to oxygen generators. She compared them to ValuJet
maintenance manuals. They were the same. They are in
evidence. They all begin with 104, there's 104A, 104B, 104C
and 104D and 104E.
I would invite you to look through these chapters
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because they contain in them many explicit warnings as to
oxygen generators. Government Exhibit 104A, for instance,
which is chapter 350000, it says that these are sodium
chlorate oxygen generators of sufficient capacity to supply
oxygen for a period of 15 minutes. Warning be very careful
when you remove oxygen generators to prevent accidental
removal of firing pin. Live oxygen generators contain
explosive when solid chemicals. When generator is fired
case temperature can become 500 degrees. If generator
fires, immediately put generator on surface that will not
burn. Serious injuries can occur if case is touched.
Warning, oxygen canisters contains barium oxide. Prior to
removal of expended oxygen canister make sure all persons
obey all precautions when barium oxide is used.
Then there's more about the dangers of barium
oxide, and it says; talk with the local safety department or
authorities for the procedures to discard this hazardous
agents. This is in SabreTech's own files.
Ladies and gentlemen, that relates to something
that you will see in one of the regulatory counts which is
hazardous waste. Remember we had testimony from a gentlemen
from the EPA. His name is John Lank. He testified that
oxygen generators that have outlived their useful life are
hazardous waste. That is true whether they are unexpended
and in this state where they can initiate or even if they
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are expended because of the barium, and their shipment
without following the regulations that require you to give
notice is unlawful. Right here in this maintenance manual
SabreTech was being told the same thing, this is hazardous
waste.
Another maintenance manual chapter is Government
Exhibit 104B. One thing particularly significant about 104B
is that Eugene Florence acknowledged this provision, this
chapter himself, because among the documents that Eugene
Florence signed an engineering order that's also part of
Government Exhibit 25. The engineering order has to do with
the reconfiguration of the mask from a three person to four
person or two person. They were doing this reconfiguration
work.
One of the items is signed E. Florence, and that's
his number. It matches the number in Government Exhibit 44.
His number OT3898 perform operational check out per
maintenance manual chapter 35-20. So let's consider chapter
35-20. It's Government Exhibit 104E. What does it say in
that chapter that Eugene Florence is acknowledging he's done
the work according to that chapter. Quote: Upon initiation
the generator supplies pure oxygen. Quote: 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
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oxygen is generated and forced through the filter and into
the outlets. Quote; pure oxygen flows through the oxygen
mask reservoir bag within seconds. Quote; warning, oxygen
generators contain live ignition trains and when ignited
generate housing temperatures up to 500. Exercise extreme
caution to prevent inadvertent removal of firing pin. If
generator should become activated immediately place on
noncombustible surface.
So Eugene Florence acknowledged that chapter which
tells one, and certainly told SabreTech, that these
generators, in case they couldn't figure it out earlier,
generate pure oxygen. That fire danger of a pure oxygen
source in the presence of extreme heat is and should have
been obvious, especially to somebody who is as licensed
airplane and power mechanic.
Another chapter in SabreTech's files, Government
Exhibit 104C: "Warning, oxygen generators contain live
ignition trains." I'm not going to repeat the whole
warning. You've heard it will several times. "If generator
has not been expended install shipping cap on firing pin."
Ladies and gentlemen, we had some testimony, and
during agent Gentile's testimony it was gone into that the
firing pin is the part attached to the lanyard that extends
over the hammer. The shipping cap really goes over the
percussion cap not the firing pin. What is a poor A and P
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mechanic to do when he sees an instruction that says install
shipping caps on firing pins. Because if you install the
shipping cap on the firing pin it would fall off.
Ladies and gentlemen, Eugene Florence said he had
installed the shipping cap on this oxygen generator, and it
wasn't true. It was obvious, ladies and gentlemen, that the
shipping cap went on the percussion cap. The mechanics knew
it. They were sitting there with the new oxygen generators
that came packaged in exactly this fashion. There was no
confusion. In any event, Eugene Florence did not express
confusion. He didn't say, hey, what is this? Maybe I
better not sign it. He signed it. He said he had put a
shipping cap on that oxygen generator. It wasn't true.
Another chapter of the maintenance manual -- well,
returning to Government Exhibit 104C it also puts on notice
SabreTech that disposal of oxygen generator -- this is where
SabreTech was told by the maintenance manual the proper way
to dispose of oxygen generators. No oxygen generator is to
be disposed of until it is initiated and chemical core is
fully expended. It tells how to expend. It says; during
the initiation the exterior will reach temperatures in
excess of 450 degrees Fahrenheit. Quote, area and adjacent
surrounding must be free of oil and other combustible
substances --
THE COURT: A little bit slower.
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MS. MILLER: Area and adjacent surrounding must be
free of oil or other combustible substances that may be
hazardous in an oxygen enriched atmosphere, unquote.
It goes on to say; "that an expended oxygen
generator contains both barium oxide and asbestos fibers and
must be disposed in accordance with local regulatory
compliances in using authorized procedures. In an event
oxygen generator cannot be ignited and expended through
normal means or if user has additional questions, they are
directed to contact manufacturer for information."
Ladies and gentlemen, how long can a company put
its head in the sand? A company that was dealing with these
things for months; a company whose mechanics were saying
boss, we don't have any shipping caps. A company that was
saying to the mechanics, don't worry about it. Sign this
paper. Don't take the time to read it. Just do it.
In their own files they have got warning after
warning as to what these generators are, what they can do
and how should be disposed of. They did not follow those
instructions. This was willful, ladies and gentlemen. This
is an expression of that willfulness, and the result was the
placement of those oxygen generators on that airplane.
Finally, ladies and gentlemen, other counts in
this indictment, Counts VII through XXIII, charge SabreTech
in connection with violations of the hazardous materials
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regulations. The indictment charges nine different
hazardous materials regulations that are violated. The
counts are matched in appears. Counts VII and VIII
reference one regulation. Counts IX and X reference another
regulation. Similarly with XI and XII. There's always an
odd and an even.
The odd numbers, ladies and gentlemen, charge that
the actual regulation, haz-mat regulation, was violated
willfully. I've told you already what willfully means.
The even numbered count in that pair charges that
SabreTech willfully delivered hazardous materials into an
air carrier for transportation in air commerce in violation
of that regulation, or that it recklessly caused the
transportation in air commerce of property in violation of
that regulation.
It's a somewhat different crime, but both of the
creams in each pair relate to particular hazardous materials
regulations that are violated. That section of the
indictment also has background about what is the hazardous
material oversight. What does the department of
transportation do. What is an oxidizer. What is an haz-mat
employer.
Judge King will give you instructions that will
cover all of those. I'm not going to go over them again in
my remarks.
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Let me briefly tell you what the regulatory
offense are that you are going to hear about because they
are easily made out by the evidence. In Counts VII and VIII
the regulation at issue is that SabreTech did willfully
offer hazardous material that is oxygen generators
containing sodium chlorate for transportation in commerce
when the hazardous material was not properly classed,
packaged, marked, labeled, and in condition for shipping as
required and authorized by the hazardous materials
regulations.
We know that's true. All you got to do is compare
this piece of paper. This little scrap with nothing on it
that relates to the hazardous materials requirements and
compare it with the shippers declaration of dangerous goods
that Scott used when shipping new oxygen generators, and you
will easily see how that regulation was violated. You know
it was violated willfully because of SabreTech's clear
notice of the hazardous nature of the substance they were
dealing with.
Counts IX and X involve a regulation that
SabreTech did willfully offer hazardous waste, that is
oxygen generators containing sodium chlorate which had been
removed from ValuJet Aircraft 802 and 803 for transportation
in interstate commerce when the hazardous waste was not in
accordance of the requirements for the transportation of
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hazardous waste as provided.
You recall the testimony of John Lank, and what we
just went over about how the generators are also hazardous
waste once they have lived past their, I don't want to say
shelf life, life limit in the correct term.
Counts XI and XII relate to regulations and the
violation that SabreTech did willfully describe and cause to
be described hazardous material, that is oxygen generators
containing sodium chlorate on a shipping paper without
including the hazardous materials proper shipping name,
described hazard class or division, identification number,
packing group --
THE COURT: You're going awfully fast if you want
it in the record. Slow it down.
MS. MILLER: Sorry, Your Honor.
THE COURT: Go ahead.
MS. MILLER: That is established not only by
comparison with the shipping ticket, but it is also
established, you can reference we put into evidence at
Government Exhibit 30F, selections from the hazardous
materials table, and this table has the proper shipping
name and description for two ways that both fit oxygen
generators.
One is sodium chlorate, which Mr. Brennan told
you was the main component of the generators. And the
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other is oxidizing solid, N period, O period, S, which
Mr. Brennan told you stands for "not otherwise specified."
There's four pages because there is one for sodium chlorate
and one for oxidizing solid. We have got it for two
different years. One is the addition of October 1, 1995.
The other is the addition of October 1, 1996, because the
indictment refers to the 1996 table. So it spans two
years. It doesn't really matter, the data is the same for
both years. We just gave you two. All the descriptions
are all the things that were missing from SabreTech's
shipment.
Counts XIII and XIV, that SabreTech did willfully
offer for transportation hazardous materials, that is oxygen
generators containing sodium chlorate without marking each
package containing and hazardous material with the proper
shipping name and identification number preceded by UN.
Ladies and gentlemen, now we are not talking about
the shipping ticket, we are talking about the actual
package. You can see on the Scott Aviation boxes, the other
one you can see the haz-mat yellow label. Here, you can see
the white labels that have got that other information. This
obviously was lacking from the packages that SabreTech sent.
All the witnesses that testified who saw those boxes said
they had no such lables. They had one that says co-mat
which means company material.
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Counts XV and XVI, SabreTech did willfully offer
for transportation hazardous material, that is oxygen
generators containing sodium chlorate which hazardous
materials packed and mixed together in the same outer
packaging with other materials which were capable of
reacting dangerously with each other and causing combustion
and dangerous evolution of heat.
Ladies and gentlemen, putting uncapped oxygen
generators right next to other uncapped oxygen generators
obviously created a danger where they were capable of
reacting with each other around because they were unpacked
and when one goes off it can cause others to go off and also
can ignite the cardboard they're packed in.
XVII and XVIII, SabreTech did willfully offer for
transportation hazardous material, that is oxygen generators
containing sodium chlorate in five packages which were not
designed, constructed, maintained, filled and their contents
so limited and closed that under conditions normally
incident to transportation the effectiveness of the packages
would not be substantially reduced.
The witnesses told you they just put them in
there. They didn't have any cardboard inserts. They were
rubbing against each other. This was not suitable
packaging.
Count XVIII and XX, SabreTech did willfully offer
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for transportation hazardous material, that is oxygen
generators containing sodium chlorate in packagings who
cushioning material was capable of reacting dangerously with
the contents of the inner packaging.
Remember Carlos Diaz said they were packed with
bubble wrap, and Andrew Salis said the same thing to Mark
Gentile a few days later. That is not a suitable packaging
for oxygen generators, because it can be heated and promote
the heat reaction and ignite.
Now, the new generators came with plastic shrink
wrap on them but they had safety caps. Of course, that is a
critical feature of their packing. The generators that
SabreTech shipped out had no safety caps, and that in
conjunction with the bubble wrap was a disastrous
combination.
Counts XXI and XXII, SabreTech did willfully offer
for transportation by air hazardous material, that is oxygen
generators containing sodium chlorate when the quantity of
sodium chlorate in each of the five packages offered for
transportation aboard a passenger carrying aircraft exceeded
the maximum quantity prescribed for sodium chlorate in
column 9A of the table.
Again, you can look back to Government Exhibit
30F. There's the table. It shows you the quantity. Five
kilograms.
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Mr. Brennan testified, and here's where I can
reference those numbers for you. In the two man generator
you've got between one half and three quarters of a pound of
sodium chlorate per generator. In the three man you've got
between three quarters of a pound of sodium chlorate. In
the four man you've got eight tenths to .85 pounds of sodium
chlorate per generator.
Ladies and gentlemen, I hate to do this to you,
about the table is in terms of kilograms. Mr. Brennan
testified in terms of pounds. You may remember we did have
a stipulation that one kilogram is equivalent to 2.2 pounds
approximately. When you do the math you can easily see that
there was easily more than five kilograms of sodium chlorate
in that shipment.
Finally, the last count charges a willful
violation of the haz-mat regulation, Count XXIII. It
charges that SabreTech, being a haz-mat employer, did
willfully fail to ensure that each of its haz-mat employees
was trained in accordance with the requirements prescribed
in the training subpart to the hazardous materials
regulations including the requirement that each haz-mat
employee be provided function specific training on the
requirements of the haz-mat regulations specifically
applicable got functions the employee performed.
Ladies and gentlemen, we know that the witnesses
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who appeared here testified that they had not been trained
with regard to handling hazardous materials or oxygen
generators specifically by SabreTech. You'll hear from the
Judge what is the definition of a haz-mat employer.
Basically, it's somebody who employees people who are
handling hazardous materials and shipping hazardous
materials. That certainly fits SabreTech, and the violation
here is clear and is willful.
Ladies and gentlemen, thank you for your patience.
I know that I've talked at you a lot, and I know I've talked
too fast at time. I'm sure you understand all the attorneys
earnestness in presenting their cases.
I would leave you just with one last remark as to
something you are going to hear in the Court's instructions
and that is the need to make your decision based on logic
and not driven by emotion.
You will be instructed quote, you must make your
decision only on the basis of the testimony and other
evidence presented here during the trial, and you must not
be influenced in any way by either sympathy or prejudice for
or against the defendant or the government.
Now, that's a standard part of any jury
instruction, ladies and gentlemen, but it is so important
here. And the reason for this is it's not that sympathy and
emotions are bad things. They are very natural things.
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Indeed, it's precisely because there is such an urge for
emotion in a case like this that you must set it aside.
There are emotions all over this case. Those are
not a proper basis for your decision. We are asking you to
do a hard thing, but it's the only right thing. Base your
decision on logic, base your decision on facts and the
evidence that has been presented to you, and we are
confident that you will find, on that basis, the defendants
in this case guilty on all counts as charged.
Thank you.
THE COURT: Ladies and gentlemen, at this time we
will take a brief recess before we listen to Ms. Moscowitz
on behalf of the defendant Mr. Florence. Please remember
the instruction not to commence discussing the case until
you've heard all of the argument and the instructions on
the law.
Marshal, if you will take them into the jury room
we will be in brief recess.
[There was a short recess].
THE COURT: I intend to instruct the jury in the
third paragraph, on the other hand, an honest belief on the
part of the defendant that his actions were sound, and so
on. It's basically the government's paraphrase standard
11th Circuit jury instruction. The one you all objected
to. Not exactly, but show it to them, and let them read
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it.
MS. MOSCOWITZ: Given that it's out of context
because that's for a fraudulent case of fraud, Your Honor,
it completely cancels the good faith instruction because
it's talking about something else in a different context.
I don't plan to refer to it now.
THE COURT: If you don't plan to get into it now,
we'll take it up at the end of the day.
MS. MOSCOWITZ: Let's do that, thank you.
THE COURT: Bring in the jury, please.
[The jury returns to the courtroom].
THE COURT: Thank you. Be seated, please. All
right, Ms. Moscowitz.
DEFENSE FLORENCE CLOSING ARGUMENT
MS. MOSCOWITZ: May it please the Court.
Counsel, Mr. Florence, ladies and gentlemen. The fact as
proof to the government's witnesses show only that Eugene
Florence acted in good faith in all the work he did on
these airplanes, and particularly with respect to the
oxygen generators.
You will hear that it's a total defense to these
charges. You can find him not guilty based on the fact
that he acted only in good faith. What shows Eugene
Florence's good faith? Together with the other mechanics
the government's witnesses, the witnesses that were granted
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immunity, the mechanics including John Taber and Robert
Rodriguez, Eugene Florence worked to make the generators
that he had taken off the planes safe.
He had been told they were going to be thrown
away. He had thought and had been told and he had spoken
to the other mechanics that the purpose of the caps on the
generators was to protect the mechanics as they worked on
the generators. Once that was accomplished and the
generators were going to be thrown away, the use of the
caps paled in significance.
There was no need to do -- to have them. It was
not a material matter as the mechanics saw it at that
point. It didn't seem important. Well, it seems in
retrospect, that the mechanics were wrong. They may have
been tragically wrong, although there is certainly a lot of
doubt about what happened on flight 592. But being wrong
and making a mistake, is not a crime in our system.
There were acts by numerous people, a chain of
tragic mistakes, but that is not a crime, ladies and
gentlemen. It may have caused -- it may have played a part
of what happened, but that's not a crime. A mistake is not
a crime. That's fundamental in our system. We don't
convict people of felonies and threaten their liberty for
making mistakes.
To convict Eugene Florence, you must believe that
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the government has proved beyond a reasonable doubt that he
meant to commit a criminal act, that he meant to commit a
crime, that he acted with bad purpose to disobey or
disregard the law. There is no evidence of that.
Even apart from seeking to turn a mistake into a
crime, this is a different case from the ordinary case
because we agree on so many of the events. This is not the
sort of case where three people come in and say the light
was red, and three people say the light was green, and then
you have to decide who was right.
We agree on a lot of the events, but the issue is
not what happened, but why it happened. You did not hear
during the trial a lot of witnesses giving their opinions on
that because that's not suppose to be part of the evidence.
But it will be for you to determine what you believe the
reason is that certain things were done.
You will have to focus on those why questions.
Why do you have to focus on why? Because the crimes charged
against Eugene Florence are crimes that require you to find
his intent; require the government to prove a bad intent,
what was going on inside his head on May 4, 1996.
Each of the three charges, the conspiracy and the
two false statement charges requires the government to prove
that bad intent beyond a reasonable doubt. It's not enough
for the government to have proof that Eugene Florence signed
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the card numbered 0069, and there were no shipping caps.
You will be instructed that by the Court. You must find
beyond a reasonable doubt that bad intent. And you can't
find it.
As you know, there are many counts in this
indictment. One of the important things is that you
remember that, it is as though Mr. Florence was here on
trial by himself, and you must evaluate the evidence that
pertains to him in deciding his fate, and each count and
each defendant must be considered separately. Because some
of them charge different things and have different elements.
Count I charges Eugene and the others with
conspiring to put SabreTech's financial interest ahead of
all others and to rush and compress work and those things.
Counts V and VI charge him with willfully making a
material false statement. I think if you go back and look,
you'll see that V and VI are actually the same false
statement, because the same charge of false statement,
because one is the card that talks about shipping caps, and
the other one says performing the work on the attached card.
It's just the cover sheet of it. That's what Mr. Ramos, the
ValuJet tech rep, told you. But there are two charges out
of that same statement.
Strict rules require the government to prove what
are called the essential elements, each and every essential
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element beyond a reasonable doubt.
I think I should stop and let you see what the
essential part of the reasonable doubt instruction is.
Proof beyond a reasonable doubt, ladies and gentlemen, is
proof of such a convincing character that you would rely on
it without hesitation -- I don't know if I can look over
this -- in the most important of your own affairs, in things
like picking a surgeon to do brain surgery, the really
important things. If you hesitate, you have a reasonable
doubt. Remember it's all of the elements. It is not just,
was the work card signed.
I don't want to spend a lot of time on the
conspiracy charge because no matter how you stretch it or
how you view it, whether you want to see everything in a
sinister connotation, there's no evidence of Eugene Florence
willfully joining a conspiracy to put SabreTech's financial
interest ahead of everything including his own, and he
didn't have anything to do with Aserca. He didn't have
anything to do with Mauro Valenzuela. He did his job. He
worked on the air worthiness of the plane that he worked on,
802. No one has challenged that work. He did not rush and
compress his work.
You heard from both Mr. Taber and Mr. Rodriguez of
the time the mechanics took doing what they thought was
making those oxygen generators safe. It took them multiple
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times longer to wrap around the firing pin, and wrap around
the cylinder and tape them, than it would have taken them to
put a cap on, if they had had the cap. They did that out on
the floor of SabreTech, where the FAA is privileged to come
in whenever it wants to, where the ValuJet tech reps, the
technical representatives of ValuJet were. They weren't
hiding. They didn't sneak off to wrap and tie and tape.
They were working in the open doing the best they could and
doing what they thought was going to make those generators
safe.
Now, the whole idea was they had to get the planes
out on the 4th, and that's why they were racing that day.
You will see this is, for example, the paperwork of one of
the planes, just one of the planes.
I don't know if you can see it with all the podium
and all the things, but there are twelve fat notebooks
there. Those are the maintenance records for 830. You'll
have them for 802 and 803 and 830. Actually, you'll also
have them for the two Aserca planes, and the plane that
crashed, 904. We figured in a week, you'll be able to do
your own bio-bor testing.
But the important thing is that the government
says there was pressure to get that plane out on May 4, but
when you look in the records of 802, you will learn that the
plane didn't even leave until May 9. So that argument
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really doesn't hold water.
But I want to spend more of the time on the false
statement charges. As a preface, I thought it was
remarkable that Ms. Miller would discuss the government's
witness, Christopher DiStefano, the man who threw away
critical evidence at a time when he knew the FBI, the NTSB
and the FAA were investigating the causes of the accident,
who then contrived to get himself immunized for that, got
his immunity, and then told the government that he had
thrown away this critical evidence. Then he was given
another letter of immunity.
Then as you heard, he knowingly lied in the grand
jury, and said he had never been arrested when he had. Yet,
when the government, when the prosecutor refers to
Mr. DiStefano, telling the grand jury that he was never
arrested when he did, that's a mistake. But Mr. Florence is
a liar. It all depends on who is looking at it, ladies and
gentlemen.
To look at what the government must have proved in
this case, let me tell you what the elements are of the
false statement charge. The government must have proved to
your satisfaction, beyond a reasonable doubt, that
Mr. Florence made a knowingly -- knowingly made a false
statement, that it was related to a material matter, and
that he acted willfully with knowledge of the falsity. Each
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of those things must be proved to that high and exacting
standard.
The definition of willfully requires the
government to have proved that he really meant it, that he
meant to violate the law, that he meant to commit a crime.
Not just that he made a statement that is wrong. It has to
have been voluntarily and purposely with the specific intent
to do something that the law forbids with bad purpose to
disobey or disregard the law. That didn't happen here.
It doesn't mean recklessly. If you hear words
like recklessly in this case, they do not pertain to
Mr. Florence.
What you must ask yourselves, ladies and
gentlemen, is not what Mr. Florence should have done, could
have done, would have done. What you have to ask is what he
intended, what he meant on May 4, 1996. In order to analyze
that, to think about that, not what we know today, because
we are all so much smarter about oxygen generators today
than we were before this accident. You must know what
everyone knew about and understood about oxygen generators
in January, February, March, April and before May 11, 1996,
when the mechanics were working on these airplanes at
SabreTech.
Let me tell you what you've heard. First let me
tell you that the generators because of the trial, because
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the trial can only talk about a certain number of things, we
can't relive life, you've only heard about oxygen generator
work. But during this period of time, the mechanics were
working many hours a day, many days a week on many parts of
the plane.
So you see this sheaf of about twenty sheets of
oxygen generator paperwork, and it may seem to you that
during those four or five months the mechanics were there
working on oxygen generators, but really it was a small
portion of their work. Because of what's happened since,
it's assumed a much greater significance than it did at the
time. That's one of the reasons we wanted you to see what
goes into doing one of these checks on a plane. These
twelve notebooks are the rest of the story. There was a lot
more stuff going on. That's why we want you to see those
records.
Second, nobody knew very much about oxygen
generators back then. Not like we know about them now. How
do you know that from what you heard? Well, for example
Special Agent Mark Gentile, the FAA agent who testified
here, who is charged with enforcing the Federal hazardous
materials regulations, stated that he had no experience
before this accident with oxygen generators.
Al Ramos, the ValuJet tech rep, the master of
paperwork, the auditor, he had no haz-mat training. He
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didn't know anything about oxygen generators.
Mr. Lang, the EPA expert, that nice man who
testified for a few moments at the end of the trial, he
learned about oxygen generators after the accident.
Mr. Taber, fourteen years an A and P mechanic, no
oxygen generator experience, didn't know of the dangers of
an oxygen generator.
The government makes a big point that generators
were going off, going off, going off. But you know what?
They went off several times. Nothing really happened. The
only thing that happened, according to Mr. Taber, were that
these plastic heat shields melted, and he went out of his
way to say, a little bit. That's what happened. They were
in a box for weeks and they didn't explode. They didn't
give off anything. Rodriguez said some heat. Somebody else
said they got hot. Even Mr. Brennan, the Scott Aviation
expert said, you could hold them for three minutes before
they would get too hot to hold. They didn't seem as
dangerous then, as they seem now. Maybe that was wrong.
But remember, we can't look in hindsight when we are looking
to see what people knew and understood on the going in,
rather than afterward.
Taber and Florence, you heard, discussed what the
shipping caps were for. They were to protect them and the
generators, while they were working on them. That's when
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and why they needed to have the shipping caps, and I think
if I've got the right one, this is, in some point in time,
the oxygen generators got a warning label on them. The old
ones that were coming off, didn't have it. But the new ones
that were being put on, had a warning label. And the
warning was, "This unit gets hot." It doesn't say
"hazardous material" by the way. Everything says it gets
hot. Hot is not really a defining term. But it says, "When
removing unit, install safety cap over primer."
It's the same implication. You're supposed to do
it while you're moving around with it. Once it's off, if
you know it's going to be thrown away, you make it as safe
as you can make it, in the absence of caps until ValuJet
gets ready to throw it away. That's what happened. That's
what was done.
Now also, from the mechanics point of view, when
they were working, they were working both off the work card
numbered 0069 and they were also working off a document
called an engineering order. This is a part of the
engineering order. The government has moved the whole one
in, and you will have it back in the jury room. It's in
there, exhibit 25, which is all the oxygen generators
paperwork.
But at some point, I think you heard that ValuJet
was changing the number of masks each generator would
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service on the right hand side of the plane. So they
commissioned had an outside engineer to draft an engineering
order, and it covered exactly the same work that the 69 work
card covered, the removal and installation, removal and
installation of oxygen generators on exactly the same plane.
We highlighted, but obviously the one you have in
the jury room won't have it highlighted, but I wanted you to
see this. It says it describes the removal and the
installation process, and the critical part says, "from the
passenger units unitized," whatever that is, "oxygen, insert
assembly unit, remove the existing insert bracket assembly
and the oxygen generator, tag and return to stores".
This card describes exactly the same work. If it
were so important, so material, so critical that there be
shipping caps, how come somebody could do exactly the same
work, like Mr. Casamere who signed here, and actually we
know that Mr. Florence worked on this card also, because he
signed down there, and not have the requirement to put a
shipping cap on a generator? I mean, doesn't this cancel
out that card?
It applies actually only to the right side of the
plane, if you want to get technical. But how could it be
that you could do all of the same work on the right side as
Mr. Taber explains to you. He only worked on the right side
of the plane because he knows this is the card that covers
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that. He didn't do anything on the left side of the plane.
He just worked on the right side of the plane. He's not --
he's immunized. He worked on the right side. He got a card
that said "tag and return to stores." That's all he had to
do, he says. Those cover exactly the same work.
You know, if the instruction were so important, so
important as it turns out in retrospect, it may well have
been at the time, then why is it that you can't do it? Why
is it that when you install -- let's see, where is it -- if
generator has not been expended, install shipping cap on
firing pin, right? That's a thing where you do it and it
falls right off.
Now, I know what Mrs. Miller said, but if it were
so important that this be put on there, don't you think they
could have taken the time to do it right, to do an
instruction that would actually protect people?
You know, if you look later on and you have all
the pages, you'll have them all in the jury room, on the
back page of that instruction, it has a different set of
terminology. They couldn't even get the terminology right,
and the reason was, it was not so important then, as it is
now in retrospect. It is that wonderful thing of Monday
morning quarterbacking or 2020 hindsight. Name the cliche,
but it is unfair to judge the actions of Mr. Florence on
May 4, 1996, by how smart we are now.
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They thought they were going to be thrown away,
but you also heard the care that these men took, the hours
that they took. You heard that they were all working
together. Robert Rodriguez told you how he tested what they
had done, could not get the release pin to pull out. How
they tagged the generators, and I don't know where that is
now, but you'll have the exhibit in there. Tagged them
entirely accurately. They put a green tag on them, because
they were told that they couldn't condemn ValuJet property
and described them as oxygen generators 02, the chemical
thing, 02 generators out-of-date, strictly accurately,
completely accurately. Nor did they rush the work, nor did
they hide the work, nor did the company rush them in doing
that work, nor was anything done to them for taking the
extra days to do this work. There was nothing hidden or
concealed.
Then the generators sat around on the parts cart
by the plane for weeks. Further confirming that they really
weren't anything that anybody cared about.
Ms. Miller reports that Eugene took the caps from
the new generators, and you can see that on the May 5 cart,
and you can see that on the May 5 cart. But, you heard that
his last activity with respect to seeing the generators, was
weeks before that. Both Mr. Taber told you that and Agent
Gentile told you that. So, by the time he's taking the caps
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off the new generators, he figures that as Wiles had told
him, those generators had been taken care of.
Finally, with respect to what the mechanics were
thinking at those times. The mechanics focus on the plane
they are working on. You heard that from Mr. Taber. When
they were going to sign the cards, they weren't thinking
about shipping caps. They were thinking about whether the
work they had done on 802, which was the plane they were
working on, and that the maintenance records pertain to, was
going to return to service in an air worthy condition. "At
the time you signed that engineering order," this was to
Taber, "were you focused on anything having to do with
shipping caps at the time you were signing? No. You were
concerned with the air worthiness of the plane you were
working on, correct? Yes, ma'am."
More telling I suppose, is Al Ramos, Valujet's
technical representative because Ms. Miller asked him, did
he audit paperwork having to do with used parts. You know
what he told you? He said, "no" he said, "we're only
concerned about the new oxygen generators being put into the
system because these are the ones that the FAA is going to
ask about during an inspection. We don't care about used
parts." Now somebody has to. We know that.
We know now about the hazardous materials and all.
But that's not the point of view of the mechanics. That's
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exactly what Mr. Ramos explained to you. "We're only
concerned about the new generators being put into the
system. These are the ones the FAA is going to ask about
during an inspection."
In fact, Mr. Taber was more concerned about the
air worthiness. Mr. Ramos only seems to be concerned about
whether he can pass an inspection.
The used parts that came off the planes were not
part of the province of the mechanics. It is not part of
their responsibility. Companies have divisions of labor.
All companies have divisions of labor. That was not the
part that they were supposed to work on. Robert Rodriguez
told you that when he was told by Casamere to take the boxes
of the old generators over to the ValuJet hold area, that
that was the first and only time he ever did that. The only
time.
They focused on the air worthiness of 802. That
was the plane that they were concerned with. They were
concerned with returning it safely to the air. That was
their concern. They did not focus on parts.
802 was made air worthy. But the air worthiness
of 904, what's 904, that's the accident aircraft. That's
the plane that crashed. That's flight 592. That's a
different question, ladies and gentlemen.
Even though Eugene Florence is not charged with
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causing the transportation of the used generators, we
thought it was important to show that the government's proof
that the oxygen generators caused the fire on flight 592, is
riddled with substantial doubt.
You know, I know that the government knows that is
so, because you could hear Ms. Miller say, they could have,
they might have, they contributed, and I think they may have
contributed to the fire, too. I think we all know that
once, as Mr. Brennan testified, if the temperature gets to
500 degrees, a generator will go off, capped or not. I'm
not saying it was a good thing for those generators to be on
the plane, but I don't think the proof shows they started
the fire. I don't think they started the fire. Fogg is the
only guy that told you about that. He's the guy from
McDonnell Douglas.
McDonnell Douglas is the manufacturer and designer
of the plane. It's McDonnell Douglas that did not install
fire suppression or smoke detection systems in the cargo
holds of the plane, even though the NTSB had recommended it
a decade before.
Ladies and gentlemen, you know tons more about
that plane than Mr. Fogg decided to find out before he gave
his opinion that oxygen generators started the fire. He
didn't want to consider anything that might contradict his
opinion. He didn't each look at the plane's maintenance
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records. Remember this plane was 27 years old. It was
wired with miles of wire that McDonnell Douglas doesn't use
anymore in it's new planes.
The plane had a serious, a history of serious,
serious maintenance problems. You heard a hint of them when
we were examining Mr. Fogg. But we have moved into
evidence, and you will have a package of the flight logs
from that plane, starting from January 96 forward through
May. You will see, you'll be able to read the actual
details, sort of. We summarized them because there's lots
of them, and there wouldn't be time, but you will see that
during that period of time, there were twenty two times that
there were serious electrical problems.
The auxiliary hydraulic pump failed six times.
The intercom failed two times. The pressurization went out
once. The auto pilot went out six times. Five of them, the
week of the accident. Which means the pilots have to be
what's called "hand flying" the plane. The week of the
crash, for several days in a row, there was a strong fuel
odor in the passenger cabin. The electrical problems were
never really fixed.
You heard Mr. Fogg testify that if a circuit
breaker pops, you can reset it, but at some point you have
to go down and actually correct what's causing the circuit
breaker to pop. That doesn't happen. The problems were
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not corrected. They festered in that plane. It was an
accident waiting to happen.
You heard about the flight, just before flight
592, from the two passengers, Ms. Hettinger and Mr. Forman.
Three times the plane left of the gate, the jet way thing,
powered up, taxied out. Three times, the electricity went
out, the engines went off and they went back in. Finally,
they took off and they took off, the last thing Mr. Forman
saw before the cockpit door closed, was the no go light on
in the cockpit. They get into the air and all of a sudden,
they have no lights, no air condition, no P.A. system. The
flight attendants are talking to them and giving them
instructions through a bull horn.
You know the air-conditioning pressurization
system, is not a trivial thing. It doesn't just mean, it
was hot on that plane, it was uncomfortable, because
Mr. Fogg told you that it was the air-conditioning system
that you have to have working to take the smoke out of a
plane. If you get smoke in the cabin, it's the
air-conditioning pressurization system that takes it away.
You heard that after the crash, the evidence was that, at
least part of that system wasn't working on flight 592.
Mr. Fogg was very careful also on other things.
He was asked about the cockpit. He described what was
recovered, what he noted what was recovered. He didn't tell
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you how much wasn't recovered. He said he didn't remember
finding any of the electrical light fixtures that work
inside that cargo -- that Class D cargo compartment. As
Ms. Miller said, people don't remember what they don't want
to remember.
Finally, he says that somehow rubbing against each
other must have started one of these generators. Ladies and
gentlemen, you saw pictures during Mr. Gentile's testimony
-- Agent Gentile's testimony, the FAA agent, of generators
that survived the impact of the crash without even going
off. That's as it should be. You know, these things are
riding right above your head when you are in an airplane.
They are not suppose to go off when they are jostled.
But really finally on this, Mr. Fogg told you that
the major damage in the cargo compartment was on the left
side of the plane. That's the part Ms. Miller just told you
about where the resin burned through. What that means is,
the whole liner burned through. He says, outside in or from
the inside to the outside. You know, it doesn't really
matter. Here's what really matters. The oxygen generators
were not on the left side of that compartment. There is no
question about that.
This is the government's picture. It's small, I
don't know whether you can see it, but this is the DC-9.
This is the sister to the plane that crashed. This is 903.
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168
It was 904. You can see from it, and it was elicited in the
testimony also, that the door to the cargo compartment is on
the right side.
You also heard, both from Mr. Ramkissoon and
Mr. Segurra, that those boxes of generators were the last
thing loaded into the cargo hold. The cargo hold was filled
with luggage and other things. Those were the things that
had priority, one of them explained to you. So they put
those on first. The packing list is in. The government
moved it into evidence, and there were sixty-seven pieces
luggage and some other things, it was full. The last thing
that was put on were the tires and the boxes of the
generators and then as you heard, the belt loader backed
away and the door was closed. That door is on the right
side. There is no reason for the major damage to be on the
left side, if the generators were on the right side.
Now, what is on the left side? Well, the left
generator feeder wire. That's not the same generator where
it's the oxygen generators. It has to do with the
electrical system. That's the big fat wire that Mr. Fogg
was so reluctant to confirm that was gone. That's over
there. That's right by, he said the seat track that was
burned up. That wire is gone. It burned up. It took
everything along with it.
What else is around there is, the left A C bus.
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You'll see, he told you about it, it's some sort of thing
that puts together a bunch of circuit breakers. That,
you'll see in the 904 maintenance records, that was
something that was going out time, after time, after time
over the spring of '96.
You know that's what you heard that is on when the
pilots first detect the problem. They say "we have lost a
bus." That is more than a reasonable doubt, ladies and
gentlemen, about what caused this fire. A lot more.
I want to end where I began again, where I began
and ended in opening statement. This is a tragedy of
immense proportion. All of us are parents, are children, we
can't even imagine the loss that happened here. Humanly, we
want accountability. But the desire for accountability
cannot take you away from what our system demands. It will
not be disrespect to the people who had a loss for you to
follow the Court's instructions and to determine, as the
evidence shows, that Mr. Florence did not act with criminal
intent. It is what our system demands in protection for all
of us. The fact that something is wrong, doesn't make it a
crime.
The fact that this happened, doesn't mean that a
crime happened, a tragedy happened. We are counting on you.
We are counting on the attention that you have paid
throughout, the patience that you've shown us, the concern,
UNITED STATES vs SABRETECH, ET. AL - 12-1-99
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the consideration. We are counting on your good sense,
you're real world experience, what it's like to go to work
every day. What it's really like out in the real world. I
think when you evaluate the evidence, you will find that the
government has not shown that Eugene Florence intended to
commit any crime. The government will go last. You'll be
hearing hours more of things.
I just want you to remember the critical, critical
message from us. This good man did not mean to break any
laws. He did not mean harm to anyone. He did not intend to
commit a crime. He is not guilty. Thank you.
THE COURT: Ladies and gentlemen, as I indicated
to you earlier, we will be recessing at this time. You
have yet to hear from Mr. Dunlap and from counsel for
SabreTech, either Mr. Raskin or Mr. Moskowitz, and then in
concluding argument from the United States from Ms. Miller
and Mr. Brigham.
It is very, very important now that you continue
to follow the instruction that you not permit anyone to
talk to you about the case or have any contact with
anybody, however, directly or indirectly, with anybody
involved in the case. Don't read anything in the
newspaper, watch anything on television or listen to
anything on the radio, if anything should be about this
case during the night recess.
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Because of the commitment with one of the jurors
in the morning which is unavoidable, which we have attempted
to work with and resolve, that is, take care of, we will not
be able to start at our usual 9:00 starting time. We will
resume tomorrow morning at 9:30. We ask that you be here a
few minutes before 9:30. Marshal, if you will escort them
down to the elevator. Don't have any contact with anybody.
Thank you.
[The jury leaves the courtroom].
THE COURT: Be seated, please. One of the jurors
had a personal matter that involved an appointment that
could not be changed. We were able to help somewhat in
that her appointment has been moved back a little bit to
8:00 or 8:30, whatever it is. She may not be able to get
here by 9:30. We are gambling a little bit on that.
It may be that she may be a little bit late.
Ms. Kramerman has told her not to worry about that.
Hopefully, we will start at 9:30. If we were not, it will
be when she arrives. It wouldn't be more than 10 or 15
minutes after that, given the distance she has to travel.
So, given that as the situation of a long day, I think that
we will take up these matters of instructions in the
morning at 9:00.
Unless you see some need for it, we will take up
any objections to the government's opening statement. I
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prefer to do that in the morning. I will carefully protect
all counsel and make sure that the record is clear that it
is being timely made, so you have no concern about that.
Any problem with doing it at 9:00 in the morning?
MR. MOSCOWITZ: No, Your Honor.
MR. BRIGHAM: No, Your Honor.
MS. MOSCOWITZ: No, Your Honor.
THE COURT: I'll be with the lawyers at 9:00. We
will resume the argument at 9:30, or as soon as the juror
arrives.
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C E R T I F I C A T E
I hereby certify that the foregoing is an accurate
transcription of proceedings in the above-entitled matter.
______________ _______________________________________
DATE FILED ROBIN CARBONELLO
Official Federal Court Reporter
Federal Justice Building, Ste. 1127
99 Northeast 4th Street
Miami, FL 33132 - 305/523-5108
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