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1 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 2, 1999 SABRETECH, INC. DANIEL GONZALEZ, THURSDAY - 9:00 A.M. EUGENE FLORENCE Defendants. JURY TRIAL PROCEEDINGS BEFORE THE HONORABLE JAMES LAWRENCE KING, SENIOR UNITED STATES DISTRICT JUDGE DAY 12 APPEARANCES: FOR THE GOVERNMENT: CAROLINE HECK MILLER, A.U.S.A. JEFFREY BRIGHAM, A.U.S.A. J.L.K. FEDERAL JUSTICE BUILDING 99 N.E. 4th Street Miami, FL 33132 - 305/961-9432 PETER PLOTKEY, ESQ. OFFICE OF GENERAL COUNSEL DEPARTMENT OF TRANSPORTATION WASHINGTON, D.C. SPECIAL AGENT MIKE CLARK OFFICE OF INSPECTOR GENERAL DEPARTMENT OF TRANSPORTATION 2 SPECIAL AGENT JACQELINE 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 JOHN GILLICK, ESQ. WINTHROP, STIMSON, PUTMAN, ROBERTS WASHINGTON, D.C. 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 1 Page Line 2 CLOSING ARGUMENTS 3 By: Defense Gonzalez .....................16 9 By: Defense SabreTech ....................56 11 4 By: Government Rebuttal ..................108 17 5 JURY INSTRUCTIONS.........................151 11 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 - 12- 2-99 4 1 MORNING SESSION 2 COURTROOM DEPUTY: All rise. 3 THE COURT: Mr. Moscowitz had a motion yesterday. 4 MS. MOSCOWITZ: I wanted to lodge an objection to 5 something that had been stated in closing. I think it's 6 the same one he had. 7 Ms. Miller stated, in speaking what willfully 8 meant, the way she phrased it was, in essence, the 9 definition of knowingly, which is a lesser standard of 10 proof. What she said was, you don't have to know the 11 statute. You just have to know that what you are doing is 12 wrong. I don't have the exact words, but it made a lesser 13 standard for specific intent than what the law warrants and 14 what Your Honor will instruct. 15 THE COURT: You don't think the instruction will 16 take care of it? 17 MS. MOSCOWITZ: I guess Your Honor is going to 18 give that instruction and to give it twice would be 19 peculiar, but I needed to make sure that I preserved my 20 objection. 21 THE COURT: The objection is overruled. Anything 22 else? 23 MS. MOSCOWITZ: Yes, Your Honor. We were going 24 to talk about the good faith instruction because the 25 Government proposed putting it back and Your Honor has put - 12- 2-99 5 1 back the third paragraph from the pattern instruction. I 2 have the latest set from Your Honor but they are not page 3 numbered. It's about, I don't know, 15 pages in. 4 It starts out, "Good faith is a complete 5 defense," and then it says, "One who expresses an honestly 6 held opinion or an honestly formed belief is not chargeable 7 with willful intent to falsify." 8 Then, the third paragraph states, "On the other 9 hand, an honest belief on the part of the defendant that 10 his actions were sound and would ultimately succeed would 11 not in and of itself constitute good faith as that term is 12 used in these instructions if, in carrying out these 13 actions, the defendant knowingly made a false or fraudulent 14 statement willfully and with knowledge of the falsity." 15 That paragraph, Your Honor, is meant to apply to 16 like fraud schemes, like you are three-quarters of the way 17 into a Ponzi scheme and you are hoping you will be able to 18 pull it out and you make a false statement to a new 19 investor to get his money to keep you afloat in the hope 20 that you will be able to turn it around and pay everybody. 21 But here, where it's talking about a false 22 statement inside a fraud scheme, but when we are talking 23 about an actual false statement itself, what the third 24 paragraph does is cancel the first two. 25 THE COURT: Ms. Miller? - 12- 2-99 6 1 MS. MILLER: Your Honor, Mr. Brigham will address 2 this. 3 THE COURT: Mr. Brigham? 4 MR. BRIGHAM: Your Honor, the defense has 5 proposed the instruction based on the pattern instruction, 6 which is a pattern instruction that they have adopted to 7 their particular case. 8 The third paragraph that we are proposing follows 9 in principle the language and the concept. The argument 10 that simply because Mr. Florence may have taken alternative 11 measures with respect to the oxygen generators still does 12 not negate -- does not constitute good faith with respect 13 to making a fraudulent statement willfully and with 14 knowledge of the falsity, false or fraudulent statement. 15 We specify in the instruction itself that -- 16 specifically the scienter requirement that the Court 17 instructs the jury on, and we say clearly that the 18 defendant who knowingly made a false or fraudulent 19 statement willfully with knowledge of the falsity is not 20 one who benefits from the good faith defense. That's the 21 law and that makes sense. We have clearly set out the 22 scienter requirement that we need to show. 23 It follows the concept of the pattern in the 24 third paragraph. Without the third paragraph, Your Honor, 25 the pattern instruction is an unbalanced instruction. - 12- 2-99 7 1 That's the reason why the third paragraph starts with the 2 phrase "on the other hand." It's cetera a balancing, it's 3 showing both sides of the argument. 4 THE COURT: Anything further? 5 MS. MOSCOWITZ: No, Your Honor. I would just be 6 repeating myself. 7 I have one other thing to bring up. 8 THE COURT: I'm going to sustain in part the 9 objection of the defense to the third paragraph of the good 10 faith instruction and modify it by striking the word -- in 11 the second line, striking the following words: "Sound and 12 would ultimately succeed," and inserting therein the single 13 word "proper." 14 So that it now reads, "On the other hand, an 15 honest belief on the part of the defendant that his actions 16 were proper would not in and of itself constitute good 17 faith, as that term has been used in these instructions, 18 if, in carrying out these actions, the defendant knowingly 19 made a false or fraudulent statement willfully and with 20 knowledge of the falsity." 21 What is your next objection? 22 MS. MOSCOWITZ: I'm afraid that's a be careful 23 what you ask for because now I think it's worse for 24 Mr. Florence. 25 THE COURT: It was not intended to be. It was - 12- 2-99 8 1 intended to gear it to this case, which he was dealing in a 2 good faith believe that -- on his part, that in wrapping 3 the lanyards around the mechanism or doing the actions that 4 he did as opposed to statements he made, or something like 5 that, would not constitute excuse or justification under 6 the instruction. 7 If you wish to withdraw the entire instruction, 8 you may do so. That was your instruction that the defense 9 had asked for. If you don't want to give it, that's fine 10 with me. 11 MS. MOSCOWITZ: No. I want the instruction, but 12 I think I'll withdraw my objection to the third paragraph 13 and leave it the way it was. 14 THE COURT: If you have no objection to the third 15 paragraph, then I accept it. I think it's a little 16 confusing the way -- it was drafted for, as you say, a 17 Ponzi scheme or a business deal and it wasn't applied 18 specifically to this case. But if you wish to withdraw 19 your objection, fine, then so be it. The instructions are 20 complete. We will leave it alone. 21 MS. MOSCOWITZ: One other thing. Now that I've 22 looked at what remains of my theory of defense instruction 23 and I've looked at defendant Daniel Gonzalez's, I realize 24 that, first of all, it just looks too skimpy next to 25 Mr. Gonzalez's, but I would like to add a sentence that - 12- 2-99 9 1 says it is his position that he did not willfully join any 2 conspiracy, because I realize I omitted the conspiracy. 3 THE COURT: We spent four or five hours on these 4 instructions. I'm sure we could all reread them ten days 5 from now and change a word here or change a word there to 6 improve them. What is it you wish to add? 7 MS. MOSCOWITZ: Simply at the end, he contends -- 8 it already says, "He contends he acted without any purpose 9 to disobey or disregard the law." Mr. Florence also 10 contends he did not willfully join any conspiracy to break 11 the law. 12 THE COURT: Or become a member of any conspiracy. 13 MS. MOSCOWITZ: That's fine. 14 THE COURT: All right. We will add that to that 15 particular page. 16 MS. MOSCOWITZ: Thank you, sir. 17 THE COURT: Or become a member of any conspiracy. 18 MS. MOSCOWITZ: That's fine. Thank you. 19 THE COURT: Yes, Mr. Dunlap? 20 MR. DUNLAP: I would just like to lodge two 21 objections to the Government's opening statement, please, 22 Your Honor. 23 THE COURT: All right. 24 MR. DUNLAP: In my motion for judgment of 25 acquittal I pointed out that in opening statement the - 12- 2-99 10 1 Government had promised the jury that Mr. DiStefano will 2 testify that the work on work card R 45904 had not been 3 done previously and the work was not done. I also pointed 4 out -- 5 THE COURT: Your objection is to something she 6 said. Let me find out what she said and focus on that. 7 Then you can come back. 8 MR. DUNLAP: Absolutely, Your Honor. In closing 9 argument, Ms. Heck repeated that -- or she stated that 10 Mr. DiStefano testified that the work on work card R 5904 11 had not been done previously and that the work was not 12 done. 13 The case against Mr. Gonzalez is a circumstantial 14 one, depending on the testimony of Mr. DiStefano. 15 Mr. DiStefano did not testify that the work was not done 16 previously or prior to the flight and that the work had not 17 been done. So, that is a misstatement of the record. 18 THE COURT: You can correct that in your argument 19 to the jury. You go say that you heard Ms. Miller say X, 20 Y, Z, and my memory of the evidence is, however you want to 21 phrase it, it was otherwise. I don't know anything I can 22 do at this point. What are you asking me to do? 23 MR. DUNLAP: I would just ask in the future that 24 things that are not true in the record not be represented 25 by counsel. I think she may have been trying to say that - 12- 2-99 11 1 you can infer from the circumstances that that's what, in 2 fact, the case is. But the statement that's what the 3 witness testified to when he did not I believe is improper 4 argument. So I would request an instruction that the 5 Government not do that in rebuttal. 6 Similarly, if I may -- 7 THE COURT: I'll instruct all lawyers on both 8 sides to refrain from misstating the record. I assume that 9 you do not do it intentionally. I know all of you to be 10 professional people and I don't assume that anything is 11 said or has been said to this jury that would be an 12 intentional misstatement. 13 But if you can find your opponent making a 14 statement that you do not believe is consistent with what a 15 witness has said, I suggest to you in a most friendly 16 manner that you should only hope they do that two or three 17 times. You sure can have fun with your argument if they 18 do. 19 MR. DUNLAP: I would agree, Your Honor. The only 20 other point I would make -- and I agree, I don't believe 21 Ms. Heck intentionally made that misstatement. 22 One other misstatement occurred with respect to 23 the scene in the work booth, and there was Danny Gonzalez 24 saying there was no time to read the document, with Eugene 25 Florence at his side. That was not the testimony of - 12- 2-99 12 1 Mr. Taber. Mr. Taber did not say that Danny said there was 2 no time to read the document. 3 THE COURT: What did he say? 4 MR. DUNLAP: He simply said that the mechanic 5 said, we are leaving. Mr. Gonzalez said, no, we need these 6 papers signed. On cross-examination, he acknowledged that 7 nobody said, we don't have time for you to read these 8 papers. He acknowledged that signing papers was part of 9 the work process, wrapping up the work, and the environment 10 was not one to coerce them into signing papers falsely, 11 just to get the work wrapped up. 12 THE COURT: I think that's proper subject for 13 counsel in their argument which has not yet been made to 14 the jury. But insofar as you are asking me to instruct the 15 lawyers to stick to the record, I grant that motion and so 16 instruct the lawyers. 17 Anything else before we -- 18 COURTROOM DEPUTY: The verdict form. 19 THE COURT: The verdict forms. Thank you. 20 What is your objection -- does anyone have any 21 objection to the verdict forms, the proposed tentative
22 verdict forms? 23 MR. MOSCOWITZ: Yes, Your Honor. With regard to 24 Counts VIII through XXII, which are the haz-mat violations, 25 each of those counts charge two different violations. - 12- 2-99 13 1 One is, under Paragraph A, a willful violation, 2 which is willfully delivering or causing to be delivered 3 property containing hazardous materials. And the second 4 violation in each count is a reckless violation, which is 5 recklessly causing the transportation in air commerce. 6 Now, the verdict form which the Government 7 proposed for those counts only provides for guilty or not 8 guilty. I think it's appropriate, since there are two 9 separate offenses charged there, one of which is a lesser 10 included, that there be a separate verdict which the jury 11 has to reach on each of those since the verdict needs to be 12 unanimous. 13 THE COURT: Do you have a proposed verdict form? 14 MR. MOSCOWITZ: I apologize, Your Honor. We can 15 get one made up, but I did not prepare one. 16 THE COURT: Would you write something out on a 17 yellow pad and show it to Mr. Brigham and Ms. Miller and 18 see if they can agree on it? 19 MR. MOSCOWITZ: Yes, Your Honor. 20 MR. BRIGHAM: Your Honor, if I may be heard, I 21 believe we would have an objection. 22 THE COURT: We haven't even seen it yet. You are 23 objecting to the anticipated verdict form that they are 24 going to hand you in a few minutes. Tell me your 25 anticipated objection. - 12- 2-99 14 1 MR. BRIGHAM: In Your Honor's proposed 2 instructions the Court has made clear that the jury must 3 agree unanimously with respect to which means is 4 applicable. The Court will state, "It is not necessary for 5 the Government to prove that defendant SabreTech actually 6 violated this section by both of these ways. It will be 7 sufficient that the Government proves beyond a reasonable 8 doubt the defendant violated it in only one of these ways. 9 "In that event, however, in order to return a 10 verdict of guilty you must unanimously agree upon which of 11 these two ways SabreTech violated that provision." 12 In addition, the Court will -- 13 THE COURT: Why don't we just simply give them an 14 interrogatory and say: Do you unanimously find that 15 SabreTech recklessly did so, violate the regulation, yes or 16 no; and then give them another one, do you find that they 17 did something, yes or no, and which ever one they check 18 off, they can check off whatever they want, or do you find 19 they did not? Give them three interrogatories or whatever. 20 Special interrogatories to the jury are quite 21 common. If there's any question about what the jury had in 22 their mind, why not eliminate it at this point rather than 23 letting an Appellate Court guess what they had in their 24 mind and say, well, we're not sure whether it was reckless 25 or willful or wanton or abusive or whatever. - 12- 2-99 15 1 Wouldn't it make sense to have some sort of 2 interrogatory? And then, whatever they check, we can apply 3 the law to that. If they check either one of them yes, 4 then there's a guilty verdict. If they check both of them 5 no, then there's a not guilty verdict. We know what to do 6 once we get the interrogatory answered. 7 Why don't you all discuss it. Take a look at 8 whatever -- I presume Mr. Moscowitz is drafting up a 9 special interrogatory on this issue. Is that what you had 10 in mind? 11 MR. MOSCOWITZ: I think it's a very good idea. I 12 will do that. 13 THE COURT: I don't know any other way to do it. 14 To just say guilty or not guilty, that wouldn't answer it. 15 If they answer yes to either question, then a guilty 16 verdict would follow. If they answer no to both, then a 17 not guilty verdict would follow. 18 Why don't you all draft that up and take a look at 19 it and see with respect to those eight counts, and you can 20 write it out on a yellow pad and we'll get it typed. See if 21 you can agree on it. If you can't agree on it, then I 22 will -- 23 COURTROOM DEPUTY: All rise. 24 [There was a short recess]. 25 COURTROOM DEPUTY: All rise. Court is now in - 12- 2-99 16 1 session. The Honorable Judge James Lawrence King 2 presiding. 3 THE COURT: Thank you. Bring in the jury. 4 [The jury returns to the courtroom]. 5 THE COURT: Thank you. Be seated, please. 6 All right. At this time we will hear from 7 Mr. Robert Dunlap on behalf of Mr. Gonzalez. 8 MR. DUNLAP: Thank you, Your Honor. 9 Ladies and gentlemen of the jury, counsel, I'm 10 going to use my time this morning to talk to you about the 11 job that lays ahead of you. You all have worked hard with 12 us listening to the facts of the case. That's the evidence 13 in the form of the testimony and the exhibits as they have 14 been admitted in this trial through the rulings of Judge 15 King. 16 It is now your duties to apply the law, and Judge 17 King will give you the law, to the evidence, to the facts 18 that have come before you. What I'm going to attempt to do 19 is to review the law with you a little bit, review the 20 specific facts. I'm not going to get terribly specific and 21 read all the transcripts. Obviously we can't do that. 22 I'm going to try to quote where I think it is 23 important for you from the transcripts. I'm going to 24 actually handle some of the documents, because there's been 25 a lot of documents in this case, and try to show you how - 12- 2-99 17 1 they interrelate. 2 I hope that will be helpful to you as kind of an 3 example of how to work through the law and apply it to the 4 facts, which is what you are going to be called upon to do 5 very shortly to arrive at your verdict, which is why we have 6 asked you to come here and why we are depending on you. 7 Now, in discharging your duty here you have to 8 answer questions and fundamentally the question that is 9 posed to you is, has the Government proven its case beyond 10 all reasonable doubt. The Judge is going to give you the 11 law, as I said, to help make that decision. 12 Let me try to -- before I go on to tell you some 13 of the law the Judge will give you in helping you make that 14 decision, let me tell you what the questions specifically 15 will be that you will have to answer with respect to the 16 Government's case against my client, Danny Gonzalez. 17 Remember, Danny is charged in the first two counts 18 of the Indictment. Remember, if you will, that those counts 19 are very much interrelated. They both deal with the 20 accusation of making false statements on aircraft 21 maintenance records. In fact, Danny is charged with making 22 one false statement in this case. One statement. Remember 23 I discussed that with you during my opening to you. 24 That statement is the Aserca work card. That's 25 the work card regarding the anti-icing system. He's charged - 12- 2-99 18 1 with making that false statement in Count II. 2 Now, that false statement is picked up again in 3 the other count he is charged with, which is Count I, the 4 conspiracy count. How is it picked up there? Well, that is 5 the first overt act in Count I. As you will hear when the 6 Judge gives you the law, in a conspiracy count an overt act 7 is something that the Government alleges was done to move 8 forward the conspiracy. It is the only overt act in which 9 Danny Gonzalez is charged. 10 Again, the Aserca work card, the allegation that 11 the work was not done on that card is the only allegation of 12 falsehood that is being leveled at Danny. 13 Now, what are of the questions that you are going 14 to have to revolve working together, using your common sense 15 and reason, when you go into the jury room? First, has the 16 Government proven beyond a reasonable doubt that Danny 17 Gonzalez did not perform the work called for on work card R 18 45904? That's the Aserca aircraft's YV 720C card. 19 Second, has the Government proven beyond a 20 reasonable doubt that Danny Gonzalez conspired and agreed, 21 as charged in the Indictment, to falsify aircraft records at 22 SabreTech? 23 Beyond a reasonable doubt. To we who labor in the 24 law it's probably the fundamental instruction, the 25 fundamental cornerstone of our practice. - 12- 2-99 19 1 Now, the Judge is going to tell you what it means, 2 this term, "beyond a reasonable doubt." Among other things, 3 he will tell you that it's the Government's burden, that 4 they must prove each and every element of the offense 5 charged against a defendant to the exclusion of all 6 reasonable doubt. 7 What is a reasonable doubt? Well, it's not an 8 imaginary doubt. It's not a doubt in the unreal sense. 9 That is to say, if the Government's case depended had on a 10 witness and someone were to say, gee, that witness reminds 11 me of a character from the X Files so I'm not going to rely 12 on that witness, that's not a real doubt. That doesn't have 13 any rational bearing to why you might not accept that 14 witness's testimony. 15 On the other hand -- and the Judge will instruct 16 you with respect to how to evaluate the credibility of 17 witnesses, and a lot of it is a restatement of what we know 18 from common sense and experience and the law is grounded on 19 that. 20 If you were to determine that there is something 21 about the way a witness testified, the witness's demeanor, 22 that conveys to you that the witness is not being candid, is 23 not being direct, is being deceptive, then you are entitled, 24 as the sole finders of the fact, to reject that witness's 25 testimony in whole or in part. So that's a real doubt. - 12- 2-99 20 1 The Judge will also tell you that proof beyond a 2 reasonable doubt -- I believe Ms. Moscowitz showed you, this 3 is a section of the reasonable doubt instruction. He's 4 going to tell you what it is. I told you what it is not. 5 It's not an imaginary doubt. But proof beyond a reasonable 6 doubt is proof of such a convincing character that you would 7 be willing to rely and act upon it without hesitation in the 8 most important of your own affairs. 9 How do we evaluate the meaning of those words? 10 Well, let's say you were selecting someone to perform some 11 sort of a medical procedure and you were interviewing 12 doctors, and you went to talk to a doctor and you wanted to 13 ask the doctor questions about the procedure, about the 14 outcome, what he thought the prognosis was. 15 In talking to the doctor, the doctor seemed to be 16 focusing on something else, wouldn't look you in the eye, 17 wouldn't directly answer your questions. You might take 18 that to be a real reason to hesitate and to decide not to 19 rely on this doctor because that's an important matter, and 20 it's similar here. 21 Now, other law that the Judge will tell you about 22 is the distinction between direct and circumstantial 23 evidence. They're of both equal weight. Ms. Heck told you 24 that. They're both equally valuable to you. 25 Circumstantial evidence, as Ms. Heck said, is - 12- 2-99 21 1 basically a conclusion that you could reach through fair 2 inference and sound reason from facts that you know 3 directly. The classic example is you drive home, you go to 4 bed. It's a moonlit clear night, no clouds in the sky. You 5 wake up in the morning, you go out. It's a dark cloudy sky. 6 Water is dripping from the trees and you have to slosh 7 through a foot of water to get to your car. It's a fair 8 inference that it rained during the night. 9 The reliability of circumstantial evidence, 10 therefore, depends on you doing the analysis. You have to 11 have the foundation in fact to be able to draw the 12 conclusions correctly as circumstantial evidence. 13 So there's nothing between circumstantial evidence 14 and direct evidence that distinguishes them in terms of 15 value, but you have to be careful with circumstantial 16 evidence in that you have to pay attention to the details. 17 You've got to do the math. You have got to say, what are 18 the underlying facts? You can't jump to a conclusion, oh, I 19 think that's what he meant, or that's what she meant. You 20 have to know what all the facts are. 21 Now, I'd like to start my discussion with you 22 today by reviewing the evidence the Government has presented 23 against Danny Gonzalez in Count II. That's the allegation 24 that Danny Gonzalez did not do the work on Aserca airline YV 25 720, that's the second plane, called for on R 45904. That's - 12- 2-99 22 1 the anti-ice card. 2 I would like to begin my discussion with talking 3 chronologically about what we have come to know about Danny 4 Gonzalez and the Aserca Airline aircrafts. Before I do 5 that, I would just like to say that the evidence, I submit 6 to you, has established that Danny Gonzalez was a very hard 7 worker; that he was a hands-on supervisor of mechanics; that 8 he worked right here on the floor of SabreTech, right here 9 among the planes with the other mechanics. 10 You heard from a number of witnesses, including 11 Michael Quan, that Danny Gonzalez was the type of supervisor 12 that would roll up his sleeves and get involved in work 13 himself from time to time. 14 We heard from a witness -- and again, I'm trying 15 to go a little bit chronologically through this. We heard 16 from a witness named William Drechsler. I think you all 17 remember him. He was the person who was the technical 18 representative for Aserca Airlines. 19 He testified that he saw Danny Gonzalez at the 20 controls of Aserca Airlines 705 doing a run-up. You may 21 remember that a run-up is part of the pre-dock package that 22 occurs with a plane to do operational or functional checks 23 before it comes in. 24 You remember some of the reasons for doing those 25 checks early is to be able to detect problems with the - 12- 2-99 23 1 plane, broken components that need to be sent out 2 immediately for repair so the plane can be released in a 3 timely fashion. 4 Admitted into evidence in this case are a pack of 5 documents that relate to the run-on or the pre-dock 6 procedures on aircraft 705. You have to look sometimes for 7 the dates on them. 8 The first one, which is Danny's Exhibit 5, is the 9 engine system run. That's the run-up itself where you go 10 out to the blast fence and run the engines. The date on it 11 is November 29, '95. All of these documents one way or 12 another -- some of them are interrelated to show the dates. 13 Remember, some of them have a non-routine work card which 14 shows when the work was performed on the first card -- were 15 done on or about November of '95. 16 This work card here, which is marked as Gonzalez 17 Exhibit 8, is signed by Danny Gonzalez. It is not dated. 18 It is a work card that calls for the inspection of the ice 19 protection system, the pressure switches. This is the same 20 work, the same type of work card that Danny Gonzalez is 21 accused of falsifying on the second Aserca aircraft. 22 Recall that this task is one of the tasks that 23 Mr. Drechsler said we like to get done in the pre-dock. We 24 would like to get it done early so we can determine if there 25 are any problems with the switches on the plane. That same - 12- 2-99 24 1 testimony was given to you by Manny Quintana, the former 2 project manager at Aserca. 3 So we know right away that Danny was involved in 4 the run-up on 705. We know that the same test that he is 5 alleged to have falsified on 720 was performed on 705. 6 If I may have one minute of your time, ladies and 7 gentlemen, shuffling through these documents can be a little 8 laborious. 9 We also know that Danny himself worked on another 10 card on this run-up and you will find the same card in the 11 packet for 720, and this is a test of the thermal system. 12 You see where Danny signed. 13 Now, do you remember what the term means 14 "generated"? Non-routine work cards get generated by a 15 routine work card when the routine work done reveals some 16 defect or problem. You'll find if you look at this packet 17 that there are two non-routine work cards generated on 18 November 29, '95, the date of this packet, as a result of 19 the work performed here by Danny. 20 Now, Ms. Heck, in referring to the testimony of 21 Manny Quintana, that he saw Danny at the controls of YV 720, 22 said there was no evidence that Danny -- you remember he saw 23 him down here by the blast fence, saw him taxi in -- that 24 Danny did anything on the plane, that he was just driving 25 the plane. - 12- 2-99 25 1 Well, you heard Mr. Drechsler say he saw him doing 2 the run-ups. I think Ms. Miller said he was just doing the 3 big shot's job. He didn't turn a wrench. Well, as I said, 4 there's evidence, of course, that he worked on the planes 5 himself, got involved in the work. 6 But if you take a look at R 45904, and I'm not 7 going to read it to you, but if you read it when you are in 8 there or designate one unfortunate member of your group to 9 have to read the thing, you'll see that it calls for 10 somebody to run the plane. You have to have somebody in the 11 cockpit looking at the controls when you do the test. It 12 involves the use of a system called the pressure test set. 13 One person plugs that into the switches and the other person 14 sees what happens with the switches on the plane. 15 You'll also see when you look at this packet that 16 Danny, in fact, as I said, was working on the plane himself. 17 Not a big shot. I told you Danny was not a big shot in the 18 company. He was a mechanic's mechanic. He worked on a 19 day-to-day basis in the hangar with his men. That's been 20 borne out by the testimony. 21 Now, you may remember the testimony of 22 Mr. Drechsler. I asked him also about 705, and he 23 acknowledged that a pre-dock is the first thing that happens 24 to a plane while work is done. This is on Page 99 of the 25 testimony of November 18th. I think that was Thursday two - 12- 2-99 26 1 weeks ago. 2 "Question: Can you tell us what a pre-dock is? 3 "Answer: A pre-dock is the first portion of the 4 aircraft inspection. That is where the airplane is brought 5 into service. It is partially opened to prepare the 6 airplane for a check and allow it to be washed, areas that 7 are oily and dirty, greasy to be washed so the inspection of 8 those areas can be accomplished, and during that same period 9 of time functional checks are accomplished. 10 "You remember functional checks mean the same 11 thing as operational checks, to run the engine to see if 12 there are oil leaks so they will be inspected during that 13 period of time and to test some of the systems, because once 14 the airplane is inside the dock or inside the hangar those 15 functions are no longer available to you." 16 THE COURT: A little bit slower, please. When 17 you read it goes very fast. 18 MR. DUNLAP: I'm sorry. 19 THE COURT: You may want to go back. I didn't 20 mean to interrupt you. 21 MR. DUNLAP: I don't know how long I was reading 22 that fast, but I'll go back over it again. 23 "Run the engine so if there are oil leaks they 24 will be detected during that period of time and a test of 25 some of the systems, because once the airplane is inside - 12- 2-99 27 1 the dock or inside the hangar those functions are no longer 2 available to you and they are done in advance." 3 Part of the testimony, you may remember, and I'll 4 get to it in a little more detail later on, about the order 5 of these tests is that if you are speaking to this comment 6 by Mr. Drechsler that some of these systems aren't available 7 to you once you get in the hangar, but if you've got a test 8 that involves emptying the fuel tanks and having them 9 examined, it creates a fire hazard because of the aircraft 10 fumes and for a number of days after that you can't operate 11 electricity on that plane. 12 Of course, R 4594 requires the operation of 13 electricity on the plane. That's another reason that it's 14 done in advance on the pre-dock. 15 Now, what do we know next? We know from 16 Mr. Quintana, Manny Quintana, that approximately three or 17 four days before the time Chris DiStefano was relieved of 18 his position as the project manager for the Aserca aircraft, 19 three or four days before the fight, he saw Danny at the 20 controls of another Aserca aircraft. He doesn't remember 21 the tail number. 22 He does remember that he taxied it into the hangar 23 area, and he remembers that setting next to him was a man he 24 knew well, another mechanic, Charlie Schnallenberger. You 25 may recall that I had to fumble around with that list of - 12- 2-99 28 1 names, Government Exhibit 44, and numbers for all the 2 mechanics. Mr. Quintana had to search carefully to find one 3 of the numbers here that he could read. 4 Eventually he found the number 52855 that shows 5 that the signature here on the engine run-up form for 720 is 6 that of Charlie Schnallenberger, thus confirming to you that 7 the plane that Mr. Quintana saw was indeed 720, and not 705. 8 It was coming in, just like 705 had come in for the pre-dock 9 check, and Danny Gonzalez was working on it again. 10 Once again, this was an aircraft -- I'm referring 11 now to Exhibit DG 3 -- that required the fuel tanks to be 12 emptied. Aserca wanted it done on both aircraft, wanted to 13 call that company, East Coast Tanks, to come in, scrub out 14 the tanks and make sure there weren't any leaks. 15 You remember what Mr. Quintana testified that 16 means. That means danger. That means fumes in the fuel 17 tanks. That means you can't run electricity on the plane 18 for a number of days. That means you need to do tests that 19 require the use of electricity in advance of that, unless 20 you want to wait way into the check where you may find a 21 defect too late to get the part back in time to send the 22 plane out. 23 So, he says that's why he always orders the 24 anti-ice test, including R 45904, to be done during the 25 pre-dock. - 12- 2-99 29 1 Now, I think you remember, but just to make sure, 2 because sometimes the terminology eludes me, but the 3 pre-dock -- this is the dock. The hangar is the dock. You 4 may remember, I'll tell you again when we get to it, that 5 Chris DiStefano testified also that the pre-dock is what 6 happens when the plane first arrived. 7 He said you do as many ops, O-P-S, operational 8 checks as you possibly can. Those are functional checks. 9 That is what we are talking about here. He said at the time 10 of this fight with Danny Gonzalez the plane was right 11 here -- this is south, this is northwest -- in the southwest 12 corner of the hangar already in the dock. 13 That's a good example of circumstantial evidence, 14 if you had nothing else, that tests -- work orders already 15 had been performed on that plane before the day that Danny 16 Gonzalez had his fight with Chris DiStefano. I respectfully 17 submit to you with all the evidence it certainly shows 18 strong circumstantial evidence that the normal pre-dock pack 19 that Danny Gonzalez had worked on before on 704 was 20 accomplished. 21 Let me also show you as part of this pre-dock pack 22 on 720 document DG 4. I got the wrong one. They all begin 23 to look alike to me after a while. 24 This is also an anti-ice test. You are going to 25 see two anti-ice tests -- bear with me, I know it's a lot of - 12- 2-99 30 1 terminology -- two anti-ice tests in both of these packs. 2 One test, R 45904, the one in Count II, calls for the 3 inspection of some switches, pressure switches in the 4 anti-ice system that requires use of electricity. 5 This test here, which is work card number R 44406, 6 calls for the test of another switch. It's called a timer 7 switch. So you can see in this pack -- this one, by the 8 way, is dated. You can see an inspection date of December 9 20th, just like the other work cards reflect, for the 10 inspection of this other anti-ice test. 11 Showing you that, in fact, the anti-ice system is 12 being worked on and showing you that although Government's 13 Exhibit 2, which is the fundamental document in this case, 14 which is R 45904, through circumstantial evidence, strong 15 evidence, also an anti-ice test, was part of that package 16 being worked on that day. 17 Now, let's talk, if we could, please, about the 18 next event that we heard about in testimony, and that was an 19 argument, a very loud argument between two men working on 20 aircrafts. Now, what do we know about that argument? What 21 was the argument about? What has the evidence shown us? 22 Not what we may want to conclude, not that there's anything 23 to conclude. 24 The only thing we know is that Chris DiStefano 25 wanted to reorganize the paperwork on the board. Do you all - 12- 2-99 31 1 remember what the board is? The board is a large series of 2 racks where they stack paperwork to be worked on on incoming 3 aircraft. 4 They call the room that the board is in the booth. 5 That's where the supervisors and project managers try to 6 deal with the overwhelming paperwork that is involved in 7 working on aircraft. We have got an array here for you, 8 some of the paperwork -- I may be wrong. Is this all the 9 paperwork that we have marked? 10 This appears to be all the paperwork that has been 11 admitted in this case, and it's for three, if I am not 12 mistaken, ValuJet aircraft, and here and here, these two 13 shelves, are for the Aserca aircraft. All of this paperwork 14 gets arrayed out on a board and organized in terms of 15 sections of the aircraft to be worked on and time to be 16 worked. Again, you heard the pre-dock is the first package 17 that's worked. 18 Now, the argument was about how to organize this 19 paperwork. Mr. DiStefano testified, we had real problems 20 with the paperwork on aircraft 705. A lot of it was lost. 21 I couldn't control it. I wanted to reorganize it. I wanted 22 to control access to the paperwork. 23 You heard that on a date, and Chris DiStefano 24 pegged that date as one or two days before Christmas, 1995, 25 December 23rd or 24th, Danny Gonzalez came into his booth - 12- 2-99 32 1 and said, what is this? I can't read it. 2 Now, you heard about another witness -- you saw 3 him, rather, Michael Quan. I want to talk to you later on 4 about the contrast between Michael Quan and Chris DiStefano. 5 But for now, before we talk about how you, as jurors, can 6 apply the law and evaluate their credibility, let's just 7 talk about what their differing recollections were and where 8 their recollections are similar. 9 First of all, let me say that we have no dispute 10 but that there was a loud fight. There sure was. We have 11 no dispute but that Danny Gonzalez told Chris DiStefano, I'm 12 the boss and we are going to organize the paperwork the way 13 I want to. 14 You may recall Chris DiStefano said, well, you can 15 do that, but I refuse to participate in any meetings on the 16 plane if you do that, leaving Danny Gonzalez with no choice, 17 I submit. He said, then you're going to be off this project 18 as the person solely in control. He didn't fire him. He 19 didn't even get a cut in pay. He transferred him to a 20 different project where he came under the supervision of 21 Manny Quintana. 22 At any rate, the testimony is there was a loud 23 argument. Essentially, it was a disagreement over the 24 organization of paperwork. Quan remembers the argument 25 beginning, and I won't repeat the word, with what was some - 12- 2-99 33 1 profanity. What what the blank is this, Mr. Quan remembers 2 Mr. DiStefano had said. Change the board back, eventually 3 he says Danny said. 4 Now, later on, after this fight, Mr. DiStefano and 5 Mr. Quan later observed Danny again. Mr. Quan says that 6 Mr. DiStefano directly went out of the booth with a pack of 7 work cards and began handing them out to the mechanics. The 8 mechanics took the work cards and went out and began doing 9 the work. Of course, he testified there was nothing unusual 10 or wrong about that. 11 Mr. DiStefano said, after the initial fight he 12 left very upset and he came back and he gave us two 13 versions, actually, of what happened. That's important to 14 remember because one of the issues in evaluating the 15 credibility of a witness is, is he consistent in his 16 testimony? 17 Consistency is one of the questions I'm going to 18 go over with you that you can ask yourself when evaluating 19 the testimony of any witness and it makes it rather simple. 20 You check these questions off and it gives you a good basis 21 for objectively evaluating whether you can rely on a witness 22 or not. 23 Mr. DiStefano initially testified that when he 24 came back to the work booth he saw Danny Gonzalez. Do you 25 all remember that he asked permission to stand up and - 12- 2-99 34 1 demonstrate what he saw at that point? He stood up and he 2 turned his back to you from the witness stand here and he 3 said, Danny Gonzalez was taking the paperwork out and it was 4 like he was doing the backstroke, throwing it out and not 5 evening looking at anybody. Do you all recall that? 6 Now, later on, under cross-examination by 7 Mr. Moscowitz -- you all may remember I didn't cross-examine 8 him very much after Mr. Moscowitz's examination. 9 Mr. Moscowitz asked him, he said, "Question" -- this is at 10 Page 26 in the testimony of November 18th. 11 "Sir, you testified yesterday, when Mr. Gonzalez 12 came into the booth and you had a few minutes of argument, 13 then you saw him. You left the booth for a while and you 14 came back and you saw him outside the booth handing work 15 cards out to the mechanics, correct?" 16 He said yes. You may remember that Mr. DiStefano 17 testified that he saw Mr. Gonzalez in the booth at the board 18 handing the work cards out over his back. 19 On cross-examination, he testified that 20 Mr. DiStefano, like Mr. Quan had testified, was outside the 21 booth simply handing out the work cards to the mechanics. 22 This is simply an instance to show you in a small 23 way as an example how inconsistencies in any witness's 24 testimony can be something you need to evaluate in assessing 25 their credibility. I'll go over the instruction with you a - 12- 2-99 35 1 little bit later on, but there are minor inconsistencies and 2 there are major inconsistencies. 3 The decision as to whether they are minor or major 4 and worthy of your concern and evaluation in terms of 5 accepting a witness's testimony are solely for your 6 determination. 7 Now, there came a time, and this is crucial, 8 ladies and gentlemen, there came a time when Mr. DiStefano 9 testified that Mr. Gonzalez came back into the work booth 10 after that initial phase of the fight. 11 Now, you remember in the intervening time he said 12 that he had gone by Mr. Gonzalez's office and looked in the 13 window and he had seen this document through the glass on 14 Mr. Gonzalez's desk. He testified that that was the first 15 time he had seen the document. 16 From time to time, the Government has stated, 17 whether in opening or closing argument, that the evidence 18 will show or the evidence did show that Mr. DiStefano 19 testified that the work on the plane was not done and that 20 none of the work cards had been done. Respectfully, that is 21 not the evidence. 22 The Government may be arguing that that's the 23 inference you should draw from the implications that 24 Mr. DiStefano is trying to convey through his testimony. 25 Mr. DiStefano never said, I know the work wasn't done on - 12- 2-99 36 1 this work card. In fact, Mr. DiStefano didn't say, I know 2 Mr. Gonzalez took this work card out of the work booth with 3 him. Didn't say that. 4 Mr. DiStefano testified he first saw this work 5 card after the fight on Mr. Gonzalez's desk. Mr. DiStefano 6 testified he did not see Mr. Gonzalez sign this work card. 7 In fact, Mr. DiStefano did not testify that all the work 8 cards were blank and unworked on that date. He did say, 9 however, that is it was his intention -- this is what he 10 addressed at that morning meeting where he told everybody of 11 his new plan -- to organize his new plan and to hand out the 12 work cards on the first day he began working on the plane. 13 He also testified that in a pre-dock work is done 14 on the plane, cards are filled out technically pre-dock, 15 which I submit to you the evidence has shown R 4590 is 16 routinely part of, prior to the plane coming in the hangar 17 and prior to the work being organized out of the booth. 18 Again, we hit a real crucial point in the 19 testimony, I would like you to really focus on it with me 20 for a moment. It happens when Danny Gonzalez comes back in 21 the work booth. Mr. DiStefano says Danny Gonzalez comes 22 back in the work booth and he has this in his hand. Let me 23 back up for just a second. 24 He testified again when he was doing the 25 backstroke up there, that Mr. DiStefano, from time to time, - 12- 2-99 37 1 would stick the document under his jacket. That was on 2 direct examination. This goes to consistency as well. 3 Then, on examination by Mr. Moscowitz, he 4 testified that he wasn't sticking it under his jacket, he 5 was putting it under his arm so he could hold it and there 6 was nothing unusual about that. 7 Mr. DiStefano testified that Danny comes in the 8 office after the fight and he takes this document already 9 signed, doesn't see him sign on it, and he puts it down on 10 the desk and he says, you see, Chris, we will have this 11 C-Check done in no time, or something to that effect. 12 Now, 45904, allegation of falsehood, allegation of 13 a crime. The Government says this is wrong, this 14 constitutes a violation of the law as stated in Count II. 15 Michael Quan, also a Government witness, testified 16 that Danny came back in the work booth but he didn't see him 17 with anything in his hand. He said he saw him go to the 18 rack in the booth and then he pulled out a card. He wrote 19 on it and he came over and he put that card, this card, down 20 on the desk, and he said something similar. There, you see, 21 Chris, we are going to take care of the C-Check in no time, 22 conciliatory tone. 23 Indeed, Mr. Quan said that Mr. Gonzalez came in 24 and addressed him in a calm way. Not screaming, not 25 berating, not ridiculing; in a calm, professional way. You - 12- 2-99 38 1 may also recall Mr. Gonzalez, when the fight erupted, asked 2 Mr. Quan in a calm way, he said, would you please leave the 3 booth and close the door, because, although it was a heated 4 dispute, it was not personal. It was a business matter. 5 Now, what's the significance of this? You may 6 remember that this came in through Mr. Quan. Sometimes I 7 say Quam, but it's Quan, Q-U-A-N, and Mr. Moscowitz offered 8 it and it was admitted into evidence. Mr. Quan first 9 testified about this on direct examination. 10 We establish, we brought out -- I shouldn't say 11 "we," Mr. Moscowitz did, or I think maybe it was me, one of 12 us did -- that there's nothing wrong with this. In 13 testimony in this case Mr. Quintana testify that this is the 14 right thing to do with this card. Why? Because there was a 15 non-routine card signed by the customer saying, please call 16 in East Coast Tanks. Please empty the fuel out of the tanks 17 so they can crawl in there, poor devils, clean the thing out 18 and make sure it's not leaking. 19 He said, you don't put an anti-fungus agent in a 20 fuel tank when you are going to dump the fuel out on the 21 ground. It's a waste of money. It's not applicable. 22 That's exactly what Mr. Gonzalez wrote, not applicable. 23 Ms. Heck now concedes that this is totally applicable, not 24 false in any way. 25 So, in evaluating the question of has the - 12- 2-99 39 1 Government proved beyond a reasonable doubt that Danny 2 Gonzalez did not perform the work called for on work card R 3 45904, you've got to first make a decision who are you going 4 to believe. 5 Ms. Heck didn't tell you how to deal with that 6 issue, but you've got to address it because it's out there. 7 It's two different witnesses, they both identified two 8 documents. One document, perfectly professional, it's 9 clearing up redundant paperwork. Remember that testimony. 10 Another document, it's an implication by Mr. DiStefano and 11 he thought it was a little fishy, him coming in after a 12 fight saying, you see, Chris, we are going to have the 13 C-Check done in no time. 14 I'm going to, in a few minutes, as I said, address 15 the credibility question, go over that instruction with you, 16 how you handle that. But in any event, if you conclude that 17 the evidence substantially suggests that it's this card, or 18 if you think they're balanced, you must, under the law, 19 enter a verdict of not guilty because that is not proof 20 beyond a reasonable doubt. Not at all. 21 In the event you get past that and you want to 22 work through these facts, that is to say, regarding R 45904, 23 we have already discussed in detail how this work card was 24 not observed being signed by Chris DiStefano, was not 25 observed being taken blank from the office by Danny - 12- 2-99 40 1 Gonzalez, and that work was definitely done on this plane 2 even by the testimony of the Government's own witness, Chris 3 DiStefano, before Chris started his new procedures of 4 C-Check. So he cannot say work was done on this work card. 5 Again, Ms. Heck, both in opening and in closing, 6 said, Chris DiStefano told you the work was not done. No, 7 ladies and gentlemen, he didn't. He was in no position to 8 say that. He couldn't say that. Had that been available 9 testimony you surely would have heard it and you would have 10 been looking at it blown up right now. It didn't happen. 11 Nor did he say that no work was done on these work 12 cards. Not at all. 13 Let's talk about the credibility of witnesses for 14 just a minute, ladies and gentlemen. This is something we 15 are all pretty well acquainted with because a large part of 16 our common sense is reading people; who is telling us the 17 truth, who is not. Who is reliable, who isn't. That's an 18 essential human skill that you all possess in great 19 abundance and you are going to collectively put it together 20 and use it to analyze the evidence in this case. 21 But the Judge, Judge King, and the law provide you 22 with some guidance on exactly what to focus in on in that 23 regard. 24 The Judge is going to tell you that in deciding 25 whether you believe or don't believe a witness you can - 12- 2-99 41 1 consider several things. Did the witness impress you as one 2 who was telling the truth? Did the witness have any 3 particular reason not to tell the truth? Did the witness 4 have a personal interest in the outcome of the case? Did 5 the witness seem to have a good memory? Did the witness 6 have the opportunity and ability to observe accurately the 7 things he or she testified about? Did the witness appear to 8 understand the questions clearly and answer them directly? 9 Did the witness's testimony differ from other testimony or 10 other evidence? 11 Now, I'm reading to you from the Court's jury 12 instruction. This will be your guide. These are the 13 Court's instructions for you. There are a lot of 14 instructions in here about jurisdiction and the various 15 elements of the offense and those are all the technical 16 aspect of this charge package. 17 But the fundamental forms of guidance that really 18 incorporate some of the essential elements of human common 19 sense and experience have been boiled down and put in these 20 instructions. And they are wonderful and they will really 21 stand you in good stead when you go into your deliberations. 22 You'll have them available to you. 23 Let's talk a minute, if we can, about the 24 witnesses in this case. Now, particularly let's talk about 25 Chris DiStefano, not to call him names, not to in any way - 12- 2-99 42 1 ridicule him, but to try to analyze him, which is your 2 function. 3 If you have a gut level reaction to a witness, 4 that's something you need to pay attention to, but you need 5 to, as I said, try to work back from that, because that's a 6 conclusion, and try to analyze what are the components of 7 that equation that leads you to believe there's something a 8 little shaky about this or that witness, should you feel 9 that way. That's called analyzing circumstantial evidence. 10 One way you can ask these questions or analyze a 11 witness's testimony may be to ask the following questions. 12 I respectfully submit them to you for your consideration. 13 What is the evidence? Will this witness lie? 14 What about this? Will this witness conceal facts or not 15 live up to his or her oath? You remember that oath, swear 16 to tell the whole truth, nothing but the truth, the whole 17 truth, so help you God. 18 Will the witness tell the whole story? Will the 19 witness provide the whole truth or will he conceal or hide 20 facts? Is their recollection poor? Is their manner or 21 demeanor questionable? Are they consistent in their 22 testimony? Are they supported or contradicted by other 23 witnesses? These are just a variation on the instruction 24 you are going to hear, a set of questions that you are going 25 to ask yourself. Let's try to work through them with - 12- 2-99 43 1 Mr. DiStefano. 2 You need to ask yourself, will Chris DiStefano 3 lie? I respectfully submit from the evidence in this case 4 the answer is, yes, he will lie. Will he lie under oath? 5 Yes, he will. 6 "Question: Mr. DiStefano, when you testified 7 before the Grand Jury you were under oath? 8 "Answer: Yes. 9 "Question: The same you took here in court today? 10 "Answer: Yes, sir. 11 "Question: Do you recall sir, toward the end of 12 questioning on the second occasion, July 29, 1997, 13 Mr. Brigham asked you whether you had any criminal history, 14 any arrest or anything, and you answered no? Do you recall 15 that? 16 "Answer: I don't recall it. 17 "Question: Would you like me to show you it, sir? 18 "Answer: Sure. 19 "Question: I will read it to you. The question 20 was, Question: Any criminal history, any arrest or 21 anything? Answer: No. Question: That would include DUI, 22 anything along those lines. Answer: No, no. 23 "Were those answers true? 24 "Answer: No. 25 "Question: In fact, you've been arrested, - 12- 2-99 44 1 correct? 2 "Answer: Right. 3 "Question: In fact, you've been convicted in the 4 military. So, under oath you gave an untrue answer about 5 your criminal record, right? 6 "Answer: Correct. 7 Question one, the answer is, yes, Mr. DiStefano 8 will lie. 9 Number two, would Mr. DiStefano conceal facts, 10 hide evidence, not provide the whole truth? 11 "Question: The day following the FBI search what, 12 if anything, did you observe? 13 "Answer: That there was a ValuJet logbook on a 14 file cabinet in my office." 15 Do you all remember the log book? That's an FAA 16 mandated document. The United States of America says you 17 have to create and maintain this document so we know what's 18 going on from shift to shift, supervisor to supervisor, so 19 nothing falls through the cracks, so people can see what's 20 happening. This book was the ValuJet book. 21 "Question: Can you describe what the book looked 22 like? 23 "Answer: I believe it is approximately 11 x 8, 24 probably an inch thick including the cover. 25 "Question: What did you do with that book? - 12- 2-99 45 1 "Answer: I took it with me. 2 "Question: Where did you take it? 3 "Answer: I took it to my home." 4 THE COURT: Excuse me. I'm trying to ask the 5 Marshal to look around the courtroom and get the people to 6 sit down. I'm sorry. 7 MR. DUNLAP: "Question: What did you do with the 8 book? 9 "Answer: I took it with me. 10 "Question: Where did you take it? 11 "Answer: I took it to my home. 12 "Question: Where did you put it in your home? 13 "Answer: In my garage, on top of my tool 14 cabinet, on top of some other aircraft books. 15 "Question: What happened to it? 16 "Answer: I was cleaning out the closet, I think 17 in November, 1996, and I had a stack of aircraft books, 18 familiarization books, on top of the logbook. I did not 19 look at each book individually; rather, I looked at the 20 whole stack of them and assumed they were all aircraft 21 familiarization books and I picked up the whole stack of 22 them and put them in a plastic garbage bag and took them 23 out to my garbage." 24 Here's a perfect example of how you can apply 25 circumstantial evidence to the facts. We didn't have a - 12- 2-99 46 1 video camera outside or inside Chris DiStefano's house. We 2 don't know what he did with the turn-over log except what he 3 told us. You have to evaluate whether that is credible or 4 believable or not. How do you do that? You use your common 5 sense and reason. 6 What do we know? Well, we know Chris DiStefano 7 understands questions when you ask him questions. He may 8 take a while to answer. You may remember the Judge had to 9 direct him to look up and look at you, and he took quite a 10 long time between the answers from time to time, but he 11 understands what you're saying. 12 He's a mechanic. He's been a mechanic for years, 13 and he knows the importance of this logbook. Moreover, he 14 was at SabreTech, the evidence shows, when the FBI, after 15 the crash of the ValuJet plane, took the place over. They 16 executed a search warrant trying to seize everything that 17 had anything to do with ValuJet. 18 He knew that the Federal Government, these people 19 here, wanted that book. He knew it. He knew how important 20 it was, vitally important. This is a book that the FBI and 21 other law enforcement agencies thought enough of to get a 22 search warrant to come down, take over the place to look for 23 it, along with a lot of other documents. Notwithstanding 24 that, he takes it home. 25 Mr. Moscowitz asked him, don't you think that's a - 12- 2-99 47 1 little bizarre? He acknowledged it, he said it was bizarre. 2 However, he takes it home and then he testifies that he put 3 it in his closet. This is a vital piece of evidence that he 4 knows he shouldn't have taken out there. Then he somehow 5 loses track of it and throws it out. Oops, forgot. 6 What are you going to do with this testimony? If 7 you believe him, what does that tell you about this guy's 8 ability to remember facts? You will recall that he 9 testified that he went into the Grand Jury and they asked 10 him about this information that Danny had put some document 11 down on the table. That was a year and a half after that 12 occurred. 13 Not only couldn't he identify the document when 14 presented with documents, you remember those ValuJet 15 documents, he couldn't even tell them what it involved. He 16 couldn't tell them anything about it except that it was a 17 work card. 18 You remember this witness, Chris DiStefano, was 19 one of the witnesses, along with William Drechsler, who was 20 qualified as an expert to render an opinion on how long it 21 would take to do this test. He said, I'm familiar with this 22 test. I've been a mechanic for years and this is an 23 integral part of my job. 24 Apparently it didn't make much of an impression on 25 his mind when he saw it at the time because a year and a - 12- 2-99 48 1 half later all he could say was that it was a work card. At 2 some later date, after 20 hours of meetings with the FBI, he 3 recalled it was this work card, the same man who forgot that 4 he had an incredibly crucial piece of evidence and threw it 5 out. His credibility? Was it this work card or was it 6 merely the bio-bor card? Strictly for your evaluation 7 whether you accept or reject his testimony in whole or in 8 part. 9 The next question was, what about the demeanor of 10 the witness, how did he testify, strike you as being 11 truthful, strike you as being evasive? As I said before, 12 you will recall that he sat here and on several occasions 13 had to be directed by the Court to look up and look you in 14 the eye. Do you all remember that? He had to be told to 15 keep his voice up. 16 There were long periods of time when you would ask 17 him a question he would just sort of look out to the nether 18 distance and you had to try to flag him in. You can take 19 that into consideration in evaluating whether to believe 20 him, consider his testimony or not. 21 Is his testimony contradicted or supported by 22 other witnesses? Ms. Heck, in her opening, told you his 23 testimony is corroborated by three witnesses. We disagree. 24 Mr. Quan corroborates there was a fight. We don't dispute 25 that. There was absolutely a fight, a big dispute over the - 12- 2-99 49 1 organization of the paperwork, and Danny Gonzalez said, I'm 2 the boss here and we are going to do it the way I want to do 3 it, and it was done that way. 4 But Michael Quan testifies it's the bio-bor card. 5 On direct examination he said, I'm not real sure, but he was 6 sure enough to swear it looked enough like that card for 7 Judge King to admit it into evidence. 8 Mr. DiStefano, on the other hand, who was unable 9 even to say what kind of a work card it was a year and a 10 half after he saw it put on the table, in response to 11 Mr. Moscowitz's questioning, he asked, are you sure it was 12 that card, he said, sure I am. You can take his word for 13 that or you can reject it as being not worthy of belief. 14 It's up to you. 15 Mr. Quan, what type of witness was he? You recall 16 he was a younger looking man, very quiet, answered the 17 questions directly, didn't seem to have an ax to grind. You 18 remember that Mr. DiStefano was pretty angry at Danny 19 Gonzalez. He testified that, I was angry then, but I'm not 20 angry now. Thank God. 21 Mr. Quan testified directly, straightforward, 22 answered the questions crisply. You evaluate whether his 23 demeanor, his testimony was more worthy of belief than 24 Mr. DiStefano's. That's your essential function. I 25 respectfully submit that if you go through those simple - 12- 2-99 50 1 questions or just use the questions that are already 2 outlined there in the credibility of witnesses chart, it's 3 an easy, objective way to do it. 4 I respectfully submit that if you do that, the 5 evidence will show that Mr. DiStefano was not worthy of your 6 belief, and that the only evidence in this record that's 7 worthy of your belief with respect to what happened when 8 Danny Gonzalez came back in the booth after the fight is 9 that he put down the bio-bor card and said, we are going to 10 get through this C-Check in no time. Don't get up-tight. 11 He put an NA on it, which the Government concedes was the 12 perfectly appropriate and proper thing to do. 13 Ms. Heck spoke for some period of time talking 14 about the environment of SabreTech, the environment of 15 pressure. Oooh, the environment of pressure is continuing 16 on. Well, you all are adults. You've live in the real 17 world. There's pressure in every business. Ms. Heck 18 conceded to that. Pressure is a part of business. It's all 19 how you react to it. 20 Danny Gonzalez is charged with a conspiracy, with 21 conspiring with other people at SabreTech to make false 22 statements on work cards. Let me suggest to you, if you 23 address Count II first, you decide whether that's worthy of 24 belief, then you can move on to Count I. 25 When you look at Count I, you'll see that it just - 12- 2-99 51 1 has that overt act thing. That's the only specific 2 allegation of false statement against Danny Gonzalez. So, 3 then what do you have to do? You have to use your ability 4 to evaluate circumstantial evidence again, because the 5 evidence against Danny Gonzalez is, again, circumstantial. 6 What is the key event beyond the Aserca work booth 7 fight that Ms. Heck has presented to you to show that Danny 8 Gonzalez conspired and agreed with anyone to commit false 9 statements? Well, it was a time when documents were being 10 signed in a ValuJet work booth. I think the date was May 11 4th or 5th, but in early May. 12 Ms. Heck, if I recall correctly, stated that there 13 came a time when John Taber, Mr. Rodriguez and other 14 mechanics were summoned to the booth by their lead mechanic, 15 Luke Casamere. Mr. Casamere said, we need to get this 16 paperwork signed. He said Mr. Taber and Mr. Rodriguez 17 signed some documents an they began to walk out with the 18 other mechanics when Mr. Gonzalez said, no, we need these 19 documents signed. 20 Now, Ms. Heck has stated in opening and stated 21 again that Mr. Taber testified or would testify that 22 Mr. Gonzalez said, no, you can't read those work papers. 23 There's no time to read them. Just sign them now. If that 24 were the testimony, if that were the evidence, you would be 25 seeing it all on these big charts here. Not the evidence. - 12- 2-99 52 1 Ms. Heck is asking you to draw an inference. She 2 is saying, well, if you consider what happened in the Aserca 3 work booth -- and I would suggest to you that has absolutely 4 no relationship, whatever happened there, with what happened 5 five or six months later in the ValuJet work booth. Nobody 6 involved in the signing of the ValuJet work booth was even 7 there on Aserca. No evidence of it. 8 Putting that aside, she is going to ask you to 9 infer that Danny Gonzalez, when he said, no, we need these 10 documents signed, knew that there was a document there, work 11 card 0069, that could not be signed accurately at that time. 12 The problem is, there is no foundation, foundation for that 13 conclusion. 14 Remember I told you to process and to consider 15 circumstantial evidence you've got to do the math. You 16 can't just say, oh, there's the conclusion. You have got to 17 back up and say, what are the factual points that I know of 18 that reasonably and fairly lead me to this conclusion. 19 Ms. Heck made a conclusory comment. She said, 20 when Danny said, no, we need this work signed, that that 21 was -- I think I've got it right -- an invitation to do some 22 pencil whipping. That's what she said in closing argument. 23 THE COURT: You've just got a few minutes left. 24 Your time is up, but go ahead and finish. 25 MR. DUNLAP: What is the evidence of what really - 12- 2-99 53 1 happened in that booth? You all remember John Taber. He 2 was the big man with the mustache, a nice sport coat. He 3 was asked specifically about that question. 4 "Question: Mr. Taber, you talked about the 5 paperwork, the signing of paperwork in your testimony? 6 "Answer: Yes, sir. 7 "Question: That's part of the overall job of 8 doing mechanical work on the aircraft? 9 "Answer: Yes, sir. 10 "Question: And finishing the paperwork is one of 11 the last steps so that it can be closed out, so that it can 12 be inspected? 13 "Answer: There are certain parts of the 14 paperwork that you have to have inspected to do the work. 15 It goes all through the paperwork inspections. 16 "Question: Certainly completing the paperwork, 17 whether inspected or not, is an integral part of your job? 18 "Answer: Yes. 19 "Question: Now, you described the time when 20 people were signing paperwork in the booth? 21 "Answer: Yes. 22 "Question: Now, Danny Gonzalez did not ask you 23 to sign paperwork without reading it, did he? 24 "Answer: No, sir. 25 "Question: He was just saying it's time to get - 12- 2-99 54 1 the job done, to wrap up the paperwork? 2 "Answer: That's what I believe, yes." 3 He didn't say, no, I felt like it was an 4 invitation to participate in some pencil whipping. It was 5 an open question. Because that's not what was going on. It 6 was a normal business environment. It was time to get the 7 paperwork wrapped up. 8 I want to finish with you very quickly, but I want 9 you to remember something that didn't happen. I can't go 10 through the whole record, every page and show you this, but 11 there is no evidence that Danny Gonzalez was ever told about 12 the problem of shipping caps or ever knew about it. There 13 is no evidence that he was there when it was discussed 14 whatsoever. 15 You remember the chart. He's got 300, 400 people 16 under him in the mechanics department. You've seen the 17 paperwork. It's unbelievable. You've seen that little tiny 18 part. There's no evidence to suggest that he knew about 19 that. 20 Mr. Taber testified that there were some oxygen 21 documents, PSU documents on the work booth. But he was 22 careful to point out that he couldn't see the documents that 23 Mr. Florence and Mr. Gonzalez were looking at. They were on 24 the other end of the work booth, so we don't know what those 25 documents were. There's no evidence that he was told about - 12- 2-99 55 1 them. 2 One instruction that you will hear is that you 3 can't infer anything merely by the fact that Danny Gonzalez 4 was a supervisor. That's not proof of anything. It doesn't 5 show that he was guilty. It doesn't show that he should 6 have known. Not evidence whatsoever. 7 I want to thank you you all very much for your 8 time today. I know I went a little bit long. Please 9 forgive me and indulge me that. I'm sorry. There's an 10 awful lot of background we have to cover. 11 We all know how emotional this case has been, and 12 we believe in you. We believe you wanted to be here, that 13 you wanted to serve in this important case, and we believe 14 that you want to see that justice is done. 15 You are now called upon to render your verdict. 16 "Verdict" comes from an old French word, verdict. It means 17 to speak the truth. I respectfully submit to you that an 18 impartial, fair consideration of all the evidence and the 19 application of the law to that evidence will reveal to you 20 in your wisdom that Danny Gonzalez is not guilty. Please 21 let your verdict speak the truth. 22 Thank you very much. 23 THE COURT: All right. Do you need a few minutes 24 to arrange anything before starting or are you ready? 25 Ladies and gentlemen, we'll take a five-minute - 12- 2-99 56 1 recess. Step into the jury room. Don't discuss the case. 2 Thank you. 3 [There was a short recess]. 4 COURTROOM DEPUTY: All rise. Court is in 5 session. 6 THE COURT: All right. Bring in the jury, 7 please. 8 [The jury returns to the courtroom]. 9 THE COURT: Thank you, be seated please. All 10 right, Ms. Raskin. 11 DEFENSE SABRETECH CLOSING ARGUMENT 12 MS. RASKIN: Thank you, Your Honor. Fellow 13 counsel, members of the jury. 14 The Government told you in opening argument that 15 it was going to prove a tragedy in the air and crimes on 16 the ground. Well, it did prove a tragedy in the air, but 17 it didn't prove that SabreTech or any of its employees 18 committed crimes. 19 The Government hasn't proved that SabreTech 20 engaged in a criminal conspiracy, a fabric of lies to 21 elevate profit over safety. Instead, what the evidence 22 shows is that SabreTech was a business, a business in the 23 aviation industry where hard work and long hours and 24 pressure to get work done was standard. 25 The evidence has shown that SabreTech was a - 12- 2-99 57 1 business like all businesses, where employees don't always 2 get along with their bosses and where, from time to time, 3 human beings make mistakes. 4 The Government hasn't proved that SabreTech 5 mechanics knowingly and willfully pencil whipped the oxygen 6 generator work cards to cut corners and to save time. 7 To the contrary, the evidence shows that the 8 mechanics, all of them, took great care, spent an enormous 9 amount of time and worked professionally in removing an 10 reinstalling the oxygen generators, always focusing on the 11 safety of the planes they were working on and that they knew 12 would be going back into service. 13 The Government hasn't proved that SabreTech's 14 employees knew that the old oxygen generators that they took 15 off the plane fell under the definition of a hazardous 16 material or a hazardous waste under the DOT, Department of 17 Transportation, guidelines. And they certainly haven't 18 proved that they knowingly and willfully and recklessly 19 shipped them, in violation of those regulations. 20 To the contrary, the evidence showed that prior to 21 the ValuJet accident, SabreTech, like ValuJet, and even like 22 the FAA, lacked knowledge as to what the oxygen generators 23 were and what their hidden dangers were. 24 Finally, the Government hasn't proved that 25 SabreTech violated the Aircraft Sabotage Act by placing what - 12- 2-99 58 1 it knew to be a destructive device onboard the ValuJet 2 plane. In fact, the Government hasn't even proved to you 3 what role those generators played in that crash, a crash 4 that was obviously started by a fire, but a fire on a 5 27-year-old plane with a long history of electrical 6 problems. 7 Regardless of what caused the fire, the crash of 8 that plane and the tragedy of all the lives lost looms large 9 in this courtroom. The Government has encouraged you to 10 view the evidence from the perspective of someone who 11 already knows the tragic end to the story. 12 They started their case with Walton Little, the 13 fisherman in the Everglades who watched the plane fall from 14 the sky. I don't think there was anybody in this courtroom 15 that wasn't gripped by his testimony. We are not asking you 16 to forget about this crash. As we said in the beginning of 17 this case, nobody could ask you to do that. 18 But what I'm asking you to do is to view the 19 evidence from a different perspective, not from the 20 perspective of somebody that knows the end of the story. 21 But from the perspective of the mechanics that worked at 22 SabreTech day in and day out, what they were doing and what 23 they were thinking during the course of a normal workday 24 before anyone knew what the end of the story was. 25 These men and this company are charged with - 12- 2-99 59 1 crimes. Not negligence, not carelessness, not oversight, 2 not bad judgment, they are charged with intentional criminal 3 acts. Your decision as to whether they committed those acts 4 must be based on their knowledge and their intent at the 5 time and not on the extent of the tragedy of what happened 6 on flight 592. 7 So, what was going on in SabreTech during the 8 early spring of 1996? First of all, you've heard that the 9 aircraft repair station that ultimately became known as 10 SabreTech had been in operation for a number of years. It 11 was part of a series of companies called DynAir. They had 12 aircraft repair stations in Phoenix, in Miami and in 13 Amarillo, Texas. 14 A company called SabreLiner bought these repair 15 stations in the middle of 1995, and eventually merged them 16 together renamed them SabreTech in January of 1996. The 17 President of the company was a man named Steve Towns. He 18 worked out of the Phoenix facility. That was the main 19 facility of SabreTech. 20 You've heard that the Miami repair station was an 21 ongoing business when SabreLiner bought. It had hundreds of 22 employees. It already had an FAA repair station 23 certificate. That document is in evidence. You can look at 24 it. What that means is that the FAA had come in, inspected 25 the facility and decided that it was certified and qualified - 12- 2-99 60 1 to do repair on aircraft. 2 The company had employed a number of mechanics, a 3 number of A and P mechanics, and you've heard that that 4 means that they held a certificate from the FAA qualifying 5 them to perform mechanic's work on airplanes, airframe and 6 power plant. 7 You've also heard that SabreTech had an ongoing 8 relationship with a number of contract companies. It would 9 make requests of these companies for qualified mechanics and 10 they would send them to SabreTech. In fact, that's how John 11 Taber and Robert Rodriguez and Eugene Florence and a number 12 of the other mechanics you've heard about came to be at 13 SabreTech during 1995 and 1996. These were all experienced, 14 qualified mechanics, all of them held FAA A and P 15 certificates. 16 Now, the evidence shows that SabreTech was a busy 17 place during late 1995 and early 1996. It was doing, among 18 other things, C-Checks on the two Aserca planes. You've 19 heard about that from Mr. Dunlap this morning. You've also 20 heard that during this period of time SabreTech was doing 21 substantial modification, C-Checks on three MD80s of 22 ValuJet. 23 I think John Taber gave the best definition of 24 what a C-Check is. He said that means heavy maintenance, 25 completely torn apart and overhauled. - 12- 2-99 61 1 Can see here, and you'll have with you in the jury 2 room, all the paperwork that documented the work they did on 3 those planes. The extent of that paperwork gives you some 4 sense of the magnitude of the job. The customers, in this 5 case Aserca and ValuJet, provided that paperwork to 6 SabreTech. They told them exactly what they needed done and 7 they told them specifically how to do it. 8 They placed their own people on the sites, their 9 technical representatives, tech represents as they called 10 them, to watch as the work was being done and to make sure 11 that all the paperwork was filled out. 12 You heard from one of ValuJet's tech reps, 13 Mr. Ramos. He explained that throughout the MD80 project 14 ValuJet had three tech reps on site. Mr. Ramos was there 15 full time, his job was the paper. There was enough paper to 16 make that a full-time job for him, just keeping track of it, 17 making sure it was completed. 18 Mr. Simons was there as well, he was the lead tech 19 rep, and Mr. Ramos described what his job was. He said, 20 Simons would basically walk around the aircraft, observe 21 mechanics, observe the supervisors. He would try to help 22 solve problems, questions that may occur. That was Bill 23 Simons full-time job. 24 You heard that there was yet another ValuJet tech 25 rep there, a man by the name of Darcee, but that wasn't it. - 12- 2-99 62 1 Ramos told you that there were frequently other ValuJet 2 people on site during the project. He said there were 3 various people from the quality assurance group at ValuJet 4 that would come down and spend days, sometimes weeks 5 assisting us. 6 And then, toward the delivery of the MD80, there 7 were about seven different representatives from ValuJet in 8 that April to May time frame, including an FAA D.A.R. who 9 was supposed to issue certificates of airworthiness. 10 So, picture the environment. A huge aircraft 11 hangar the lots of planes undergoing C-Checks. The planes 12 are torn apart, the interior is basically gutted. Remember 13 the picture that Mr. Taber showed you during his 14 examination? It's an MD80 with all the seats taken out of 15 it, a lot of the components removed. That's what the inside 16 of the planes looked like. 17 Outside the planes you had work tables surrounding 18 the planes with a lot of the parts and components that came 19 off that plane. That's where the mechanics were working. 20 They were working on the tables and inside the plane. We 21 know that there were at least five of those going on during 22 this time period. 23 They were doing a complete overhaul and the 24 ValuJet tech reps are always there with quality assurance 25 folks and an FAA D.A.R. walking around the floor observing - 12- 2-99 63 1 their actions. SabreTech's own inspectors were there, too. 2 Remember that? The goal of all of these people was to put 3 the MD80s back together, to make sure that all of their 4 parts and components were working properly so that they 5 could return those airplanes to ValuJet in a safe condition. 6 Part of that process on these planes and on any 7 planes undergoing maintenance is completing the paperwork. 8 As John Taber told you, that's part of the job. And as you 9 can see, it was a big part of the job. It might not have 10 been the most interesting or enjoyable part of the job for 11 the mechanics, but it had to get done and they understood 12 that. 13 Now, there's three work cards out of all of these 14 volumes that the Government has identified as the heart of a 15 criminal conspiracy, a criminal conspiracy which they say 16 includes SabreTech, the corporation, Danny Gonzalez, Eugene 17 Florence and Mauro Valenzuela, conspiracy to falsify work 18 cards. 19 The Judge will instruct you at the end of the case 20 that in order to find SabreTech guilty of that conspiracy 21 you must find beyond a reasonable doubt that two or more of 22 its employees or agents willfully joined that conspiracy, 23 and that's because a corporation can only act through its 24 employees, through people. 25 So, who are the people the Government says - 12- 2-99 64 1 willfully entered into such a criminal conspiracy and what 2 is the evidence of this criminal conspiracy to elevate 3 SabreTech's profits over safety? Well, Ms. Miller pointed 4 to three things in her closing yesterday. 5 First she talk about pressure. She acknowledged 6 that pressure itself wasn't a crime. She suggested that the 7 pressure at SabreTech was way out of line. It was out of 8 control. She suggested that the pressure was such that it 9 caused this criminal conspiracy to thrive. 10 She talked about this memo, the memo saying, 11 effective immediately, due to the present workload all 12 maintenance personal, including management, are required to 13 work seven days including days off. We will return to 14 regular work schedule when the 3 MD80s are delivered. 15 Do you remember who she put this in through? It 16 was a man named Robert Rodriguez. He told you he had seen 17 this thing posted somewhere in the hangar. Then she asked 18 him, did you work seven days a week? He said, well, I did 19 the first week, but after that, I went back to taking my 20 days off. 21 You also heard a little bit about pressure in the 22 airline maintenance business from Al Ramos, the ValuJet tech 23 rep. I asked him a little bit about his work schedule. He 24 said, well, I've been working seven days a week extra long 25 hours throughout the MD80 process and so did Mr. Simons. - 12- 2-99 65 1 And I said to him, in your experience in the 2 aviation industry, Mr. Ramos, that's not unusual, is it? 3 And he answered, no, ma'am, not at all. So, sure there was 4 pressure, but it was normal pressure, and this document 5 shouldn't be taken out of context to suggest something like 6 a criminal conspiracy. 7 From there, the Government went to another letter. 8 This was a letter that they told you about that was sent 9 from Mr. Towns, the President of SabreTech out in Phoenix, 10 president of a whole organization, and it was sent from 11 Mr. Towns to a man named David Gentry, the vice president of 12 maintenance and engineering of ValuJet Airlines in Atlanta. 13 What this letter essentially says is, we are going 14 to be late delivering your plane, and because we are going 15 to be late, we agree to pay you up to $20,000 so that you 16 can rent a substitute aircraft to use until we get back the 17 plane that we are repairing for you. 18 Now think about it. Is this what a company does 19 that's engaged in a routine practice of cutting corners, 20 cutting short work steps, rushing through it's work, pencil 21 whipping whether or not the plane is done? It is not, 22 ladies and gentlemen,. They took too much time with the 23 work. They were late. They didn't spend too little time. 24 They spent too much time. 25 They also are indicating that they did what they - 12- 2-99 66 1 could do to satisfy their customer. They valued this client 2 and they wanted to make it right. There's one sentence here 3 that wasn't read to you yesterday and I want to share it 4 with you. It says, the $3,000 daily late penalty on 802 is 5 waived. That's the clause in the original contract that 6 Ms. Miller conceded yesterday was not an unusual clause at 7 all. 8 It goes on and says, the $20,000 dollar or 9 whatever lesser amount the actual cost amount due for 10 ValuJet will be credited to ValuJet by SabreTech spread 11 equally over the next three airplane projects that SabreTech 12 works on for ValuJet. 13 So this wasn't even an out-of-pocket payment of up 14 to $20,000. What SabreTech and ValuJet were agreeing to do 15 was to apply the late penalty payment to future work. This 16 document doesn't help the Government's case; it hurts it. 17 Now, what else did the Government point to in 18 support of this conspiracy charge? The Government evidence 19 says there is evidence that shows that Eugene Florence and 20 Mauro Valenzuela signed the 0069 work cards in the presence 21 of managers and supervisors, Danny Gonzalez, Luke Casamere 22 and a man named Ray Serano. 23 They say -- the Indictment says that they bowed to 24 managerial pressure in signing them. They say that Eugene 25 and Mauro knew that they were lying about something - 12- 2-99 67 1 material, something important on those work cards, and that 2 they did it anyway. They deliberately lied on those work 3 cards as part of a criminal agreement that they enter into 4 with Gonzalez, Serano, Casamere and maybe others to make 5 money for SabreTech at the expense of safety. 6 First of all, who is the Government talking about 7 when they say managerial pressure? You heard the Government 8 during opening statement and again yesterday refer several 9 times to management. Management did this, management did 10 that. 11 Well, there's nobody at SabreTech called 12 Mr. Management. As we know, corporations act through 13 people. So, let's talk a little bit about who it is they 14 mean when they talk about management and managerial 15 pressure. 16 I've got a chart here which shows the 17 organizational structure of the SabreTech Miami facility. 18 You won't have this chart with you in the jury room, but 19 will have a smaller version of this in the repair station 20 manual. 21 First of all, they talk about the floor mechanics, 22 men like Eugene Florence and Robert Rodriguez and John 23 Taber. That's where they are, they're in that last blue box 24 on the bottom. Then they talked from time to time about a 25 man named Luke Casamere, who is described as a lead - 12- 2-99 68 1 mechanic. That's where Luke fits in. 2 That's also where this fellow Ray Serano fits in 3 they described him as the lead mechanic on 803, the plane 4 that Mauro Valenzuela worked on. 5 Then there are supervisors. You've heard mention 6 of a man named Dave Wiles. He was the supervisor on 802 and 7 he was right above the lead mechanics who were above the 8 floor mechanics. 9 Now, over here, director of hangar operations, we 10 know that that's Danny Gonzalez. So those are the people 11 they're talking about. It starts here. Danny Gonzalez, who 12 we know well from Mr. Dunlap is a mechanic's mechanic, he's 13 on the floor. He's not on the second floor in an office 14 pushing paper. He's the top end of the management they're 15 talking about. Then they skip down to the supervisors, the 16 leads and the mechanics. 17 This takes you to the top of the structure in 18 SabreTech Miami. Then, if you go over here, you can follow 19 this yellow chart. It belongs there and all of this leads 20 up to the top, Sabretech, Inc. That's where Mr. Towns sits 21 in Phoenix. 22 So, that's who we are talking about, the employees 23 and the managers that the Government said they bowed to. 24 Now, let me tell you something important about 25 some of these guys. Remember Eugene and Mauro, Eugene - 12- 2-99 69 1 Florence and Mauro Valenzuela, weren't direct employees of 2 SabreTech. They were contract employees. You've heard a 3 lot about that. 4 You'll also see, if you look at this document, the 5 employees list, that Ray Serano was also a contract 6 employee. It's on Page 15. He worked for PDS, too. He's 7 one of the people they say was one of the managers that 8 pressured Mauro Valenzuela into signing the work card. 9 These guys were all contract employees, and this 10 is important not because it means that they're not 11 associated with SabreTech or they don't have the ability to 12 bind the corporation, but it's important because it tells 13 you that these men had absolutely no motive to commit crimes 14 in order to improve SabreTech's bottom line. 15 They were temporary employees. They had nothing 16 to gain by joining a conspiracy whose stated goal, according 17 to the Government, was to increase the profits of SabreTech. 18 It wasn't going to affect their paycheck. 19 On the other hand, they had everything to lose by 20 doing something like that. They had A an P certificates, 21 they worked hard for them. They had absolutely no motive to 22 enter into the kind of conspiracy that the Government 23 suggested they did. So that's who the supposed conspirators 24 are. 25 Now, what was the pressure they supposedly - 12- 2-99 70 1 succumbed to. With respect to Eugene Florence and the work 2 card on 802, it all comes down to one Saturday morning 3 toward the end of the MD80 project. You've heard about this 4 a little bit from the Government and Mr. from Mr. Dunlap. 5 The work on this plane was almost finished and it was time 6 to complete the paperwork. 7 The mechanics that worked on 802 were called into 8 the booth by Luke Casamere, their lead mechanic. Casamere 9 and Danny Gonzalez each said, we have to get these papers 10 signed, we need the paperwork signed now. 11 Ms. Miller suggested to you yesterday that those 12 words were an invitation from the boss to pencil whip, to 13 sign for work that hadn't been done. She said it was an 14 invitation that was hard to turn down. 15 I submit to you that that's an example of the 16 Government hearing what it wants to hear and not hearing 17 what it doesn't want to hear, because that's not what the 18 evidence is. That's not what the testimony shows. 19 Robert Rodriguez said he went into the booth with 20 the rest of the crew and hung around for a few minutes. He 21 saw Eugene Florence, who we know and who you will know from 22 some of this paperwork, had done a lot of work on the oxygen 23 generator system on 802, he saw Eugene reading paperwork. 24 After a few minutes, Rodriguez turned around, walked out of 25 the booth and went back to work. - 12- 2-99 71 1 He told us that most of the rest of the men did 2 the same thing. That's how much pressure those men felt. 3 Nobody told them they couldn't leave. Nobody kept them in 4 there. There weren't any repercussions. They went into the 5 booth, they walked out and they went back to work. 6 What John Taber? The Government says he balked 7 and he refused to sign for work he hadn't done, but that's 8 not what the testimony was. You heard Mr. Dunlap go through 9 that. He said that Casamere had asked him to sign a 10 particular work card for work that Casamere knew Taber had 11 done. Taber said, I'm kind of greasy right now and I want 12 to read what I'm signing if I did. He did read it, he 13 signed it and he left the booth and he went back to work. 14 You may recall that Mr. Dunlap asked Mr. Taber 15 specifically what he had understood Danny Gonzalez to mean 16 when he said, we need this paperwork to be signed now. 17 Mr. Dunlap said, now, Danny Gonzalez didn't ask you to sign 18 paperwork without reading it, did he? No, sir. He was just 19 saying it's time to get the job done to wrap up the 20 paperwork. That's what I believe, yes. 21 Mr. Taber went on to say that no one at SabreTech 22 had ever asked him to falsify paperwork and that he didn't 23 know of anyone at SabreTech that had done so. 24 That testimony, I'm sure you recall, was echoed by 25 virtually all the mechanics that testified. I have that on - 12- 2-99 72 1 a chart somewhere if I can find it. Well, I can't. But you 2 heard it a number of times. You heard that question asked 3 of virtually every mechanic that took the stand. Did 4 SabreTech ever ask you to lie, anybody at SabreTech ask you 5 to lie on paperwork? Do you know of anybody that did? The 6 answers were all uniformly no. 7 Remember, these were the Government's witnesses. 8 These were men that they immunized. They couldn't be 9 prosecuted for what they said. They didn't have any motive 10 to lie. These are the people that the Government is asking 11 you to believe. You know what? You should. These were men 12 that had worked for months overhauling these three planes. 13 The work was done, they knew it, they understood it, and 14 they knew it was time to sign the paperwork. You remember 15 that question. I think the jury got that point. 16 So, in any event, there wasn't the kind of 17 pressure in that work booth that signals a criminal 18 conspiracy. Gonzalez didn't pressure these men. He didn't 19 prevent them from reading the paperwork. He didn't tell 20 them they couldn't leave. 21 What about Mauro Valenzuela? He's the other 22 supposed member of this criminal conspiracy. He's the guy 23 that the Government says knowingly and willfully falsified 24 paperwork on 802. You heard almost nothing about Mauro 25 Valenzuela during this trial. You did see the paperwork, - 12- 2-99 73 1 the 0069 work card from 803. The Government showed you that 2 that has his employee number. I think it was 0088. 3 We know that that's not enough. It's not enough 4 that he signed off on that paperwork. After all, he's 5 charged with willful intentional conduct and SabreTech can 6 only be guilty for what he did if he had the right state of 7 mind. So what was the evidence that the Government 8 presented to you as to his state of mind, what was going on 9 in Mauro's head when he signed whatever paperwork he signed? 10 The only evidence was Tommy Silvers. I'm sure you 11 remember Tommy. He is the fellow that came in and testified 12 through an interpreter. He said that he had been at 13 SabreTech for only two months. He was a contract employee 14 as well. He said that he worked with Mauro Valenzuela one 15 day. 16 The essence of his testimony was that when Ray 17 Serano asked Mauro to sign a work card he and Valenzuela 18 first spent four hours inspecting the installation of the 19 oxygen generators to make sure that everything had been done 20 properly. They found a few minor things wrong, a few dirty 21 masks, some hoses that had been crinkled a little bit. They 22 straightened them out. They fixed it. That's it. 23 That's what the Government has presented to you to 24 prove beyond a reasonable doubt that Mauro Valenzuela and 25 Ray Serano, both contract employees, were part of a criminal - 12- 2-99 74 1 conspiracy to cut corners, compress work steps and falsify 2 paperwork so that SabreTech could make money at the expense 3 of safety. 4 You know, the Government hasn't even proven what 5 plane they were working on or what paperwork they signed. 6 Remember both Serano and Valenzuela were contractors. They 7 had no motive to cut corners on behalf of SabreTech's bottom 8 line. There's no evidence that any of them had any 9 interaction with Danny Gonzalez or Eugene Florence, the 10 other people that were supposedly a part of this big 11 conspiracy, this agreement among all of them to cut corners 12 and compress paperwork and pencil whip. 13 Ladies and gentlemen, the Government has not 14 proven a criminal conspiracy because there wasn't one. They 15 haven't proven a fabric of lies. They haven't even proven a 16 strand. They also haven't proven that particular false 17 statement count, that Mauro Valenzuela and Eugene Florence 18 in fact willfully and knowingly falsified the 0069 work 19 card. 20 The removal of the generators was one of many jobs 21 these men did on these aircraft. You heard that. They 22 didn't rush through the job. No one asked them to. They 23 wrapped and tied the lanyards. They did it in full view of 24 ValuJet's tech reps who were constantly around. 25 You heard Mr. Rodriguez testify to that. He said - 12- 2-99 75 1 they were always around. Bill Simons was around looking at 2 us when we were doing the lanyards. They weren't trying to 3 deceive ValuJet. I think Ms. Miller said yesterday that 4 that is what this is about, they tried to deceive ValuJet 5 and they did. They didn't try to deceive ValuJet. ValuJet 6 knew what they were doing. They were around the whole time. 7 These generators sat there in open boxes for weeks. ValuJet 8 knew what was happening. 9 Mr. Rodriguez told you exactly how they wrapped 10 these lanyards, how carefully they had done it. He went on 11 to say that after they had done it, he actually tested it. 12 He wrapped it around and he tried to pull it to see if the 13 firing pin would come out and it didn't. 14 Ms. Miller told you yesterday that that didn't 15 matter. That's not a safety mechanism. The only safety 16 mechanism on these generators are shipping caps. Think 17 about what she said. I wrote it down because I thought it 18 was pretty interesting. She said, what's with these 19 lanyards? She said, all they do is they keep the hammer 20 from falling. 21 Isn't that just the point? If the way they had 22 wrapped the lanyards and secured the firing pin kept the 23 hammer from falling it wasn't going to hit the percussion 24 cap and the generators weren't going to go off. That was 25 the point. It was an alternative safety mechanism. You - 12- 2-99 76 1 know what; the evidence suggests that it worked pretty well. 2 Do you remember Agent Gentile? He came in and he 3 showed you pictures of all the generators that he recovered 4 from the crash. He looked at them and studied them. The 5 Government asked him to point out a couple of the generators 6 that looked like the percussion caps had been pushed in 7 showing it had been expended. 8 Then, on cross-examination I said to him, Agent 9 Gentile, how many did you look at? I think he said, I 10 looked at 19. How many of those showed the percussion cap 11 pushed in? Seven. 12 didn't. 12 of those generators that 12 had been through that crash were still sitting there with 13 the firing pin intact. The lanyards were still intact. 14 One more thing. He also said -- we also know from 15 the evidence that some of the generators that were in that 16 box had already been expended before they left SabreTech. 17 The Government has talked a lot about the fact that these 18 generators had gone off in the facility and those were put 19 in the boxes, too. So we know that some of the generators 20 that went on that plane already had been expended. 21 And Mr. Gentile was very forthright in telling 22 you, I can't tell when these things were expended. He 23 doesn't know whether they were the ones that had already 24 been expended, whether they went off during the flight or 25 whether they went the plane impacted. We just don't know. - 12- 2-99 77 1 In any event, what you can see from that, the care 2 with which they wrapped these and the fact that they 3 obviously served a purpose is that at the time the mechanics 4 were working on the generators they were being very careful. 5 They were focusing on safety. 6 Now, by the time they got to the paperwork weeks 7 and months later they weren't thinking about those old 8 generators any more. Those they had taken care of. They 9 put them in the boxed. They had been told they were going 10 to be thrown out by ValuJet. They're now focusing on the 11 three MD-80s that are getting ready to go out the door. 12 They are worried about the safety of those planes, 13 getting the job done and filling out the paperwork that is 14 going to tell ValuJet and the FAA that the installation of 15 the generators and the installation and the repairs and 16 everything else that they had done on those planes was done 17 properly and completely. 18 You know what, they weren't the only ones that 19 were focused on that aspect of the paperwork, the safety of 20 the planes. Mr. Ramos told it to you as clearly as anybody 21 could. Ms. Miller, I think it was, it meet have been on 22 cross-examination, but I think it was she who asked a 23 question about whether they had audited the paperwork on the 24 old generators, and Mr. Ramos explained that they hadn't. 25 He said, we are only concerned about the new - 12- 2-99 78 1 oxygen generators being put into the system because these 2 are the ones that the FAA is going to ask about during an 3 inspection. That's what everybody was focused on at that 4 point in time, the mechanics, ValuJet and the FAA. 5 So the Government hasn't proven either Florence or 6 Valenzuela made a knowing willful false statement. The 7 evidence is that they acted in good faith. Since they're 8 not guilty, SabreTech is not guilty of those charges either, 9 because as Judge King will instruct you at the end of this 10 case, a corporation only acts through its employees and 11 agents. 12 SabreTech is charged in this count because the law 13 says that it can be held criminally responsible for the acts 14 of its employees. If those employees are not guilty, 15 neither is SabreTech. 16 The last series of charges I would like to talk to 17 you about are the ones ones that accuse SabreTech of 18 willfully and recklessly violating the hazardous materials 19 regs in the handling of the old generators. Related to 20 this, I guess, is the final charge, that SabreTech knowingly 21 and willfully put a destructive device on the ValuJet plane. 22 In reviewing the evidence on these charges I want 23 to come back to something I said at the beginning, and 24 that's the fact that it is so important that you focus on 25 what SabreTech knew then about the oxygen generators, not - 12- 2-99 79 1 what we all know now, because that's what is really at the 2 heart of those charges, what was known before the ValuJet 3 accident, before everyone became focused on this aircraft 4 part called a chemical oxygen generator. 5 What did SabreTech know then about the generators 6 and what did it know then about the complicated federal 7 regulations that tell you how to ship them and how to 8 package them. 9 The logical place to start, of course, is with the 10 testimony of Mr. Brennan, the expert from Scott Aviation. 11 He told you that he worked for Scott his entire life and he 12 gave us quite a lesson with how these things work. You 13 remember that he showed you this chart. It's a nice 14 detailed chart of a generator. 15 It shows you all the components, the spring 16 actuated hammer, the pull pin, the lanyards, the percussion 17 cap. It shows you what's inside, a nice cross section, 18 sodium chlorate, the core, the housing, the relief valve. 19 You know what, SabreTech didn't have this chart when they 20 were working on the generators. They didn't even have a 21 little chart like this. 22 You might remember, in fact, that when Mr. Brennan 23 first started talking about that chart Judge King asked him 24 if he had ever seen a document like that before. 25 Mr. Brennan answered, yes, Your Honor. The Judge said, - 12- 2-99 80 1 where? Mr. Brennan said, a document like that was 2 circulated in an FAA notice after the ValuJet crash. Not 3 before the crash; after the crash. 4 Mr. Brennan also explained to you that oxygen 5 generators fall within the definition of a hazardous 6 material under the DOT shipping regs. He showed you few 7 tables from the haz-mat -- or a few entries from the haz-mat 8 table that list the items that are covered by those 9 regulations. 10 We have since put in evidence the entire table. 11 This is what it looks like. That's the haz-mat table. 12 You'll have it with you in the jury room. I would ask that 13 you look at it. It's pretty complicated stuff. 14 Mr. Brennan told you that before the crash in that 15 hazardous materials table there wasn't even a listing that 16 said oxygen generators. He said that oxygen generators were 17 classified according to the chemical that was contained in 18 their core. The sodium chlorate that you saw in the diagram 19 was in the center of the oxygen generator. You can't see it 20 from the outside, but it's in there. 21 Ms. Miller asked him, how is the oxygen generator 22 referred to in that haz-mat table? Now, he says. No, in 23 the period of March through May, 1996. Mr. Brennen said, it 24 wasn't specifically named oxygen generator. It was sodium 25 chlorate and sodium chlorate was listed in the hazardous - 12- 2-99 81 1 material table. 2 He also told you, by the way, that sodium chlorate 3 is basically table salt with a few extra addeds attached. 4 So I guess, assuming you knew it was in there, you would 5 hardly instinctively think that that was something 6 inherently dangerous. 7 So, any way, before the crash, if you knew that an 8 oxygen generator like this contained sodium chlorate in its 9 core, you could then go to this table and you could go 10 through it and you try to find sodium chlorate and you could 11 find it, and then it would tell you what rules you are 12 supposed to follow in packing and shipping it. 13 Mr. Brennan told us a little bit about that, too. 14 He said that he had gone there and looked and the listing 15 for sodium chlorate gives a hazardous class of 5.1, a UN 16 identification number of 1495, packing group 2, labels 17 require oxidizer. And it gives special provisions A9, N34 18 and T8, package authorizations give it exceptions of 152, 19 non-bolt packing is 211, bolt packing is 240, and on and on. 20 Hardly a user friendly document. 21 What else did Mr. Brennan tell us? Well, he told 22 us that for the first 18 years that Scott made these 23 generators, from 1970 until 1988, it didn't put any warning 24 labels on them. They were shipped in plane stainless steel 25 canisters just like this, no warning label whatsoever. This - 12- 2-99 82 1 is what they looked like. This is what the generators that 2 came off of 802 and 803 looked like. 3 They were the old ones. They dated back to the 4 years before Scott put any warning label on them. This is 5 what the generators looked like that sat in the box that 6 Andy Salis picked up and reshipped to ValuJet, like this. 7 No labels. 8 Mr. Brennan did testify that when Scott shipped 9 out its new generators it puts the diamond shaped oxidizer 10 label on the boxes. You heard some conflicting testimony 11 from the witnesses as to whether or not the new generators 12 that came into SabreTech in fact had those labels on them or 13 what condition they were in. 14 You heard from Keith Ingram, the lead storeroom 15 clerk. He said that he saw those stickers on the boxes. He 16 did say, however, that he didn't remember seeing the candy 17 stripe shipper's declaration. He said he had seen something 18 like that in the past, but he does not remember seeing one 19 with these generators. 20 Carlos Diaz, on the other hand, another fellow in 21 the shipping and receiving department, said he saw the new 22 boxes, but he didn't see any yellow oxidizer labels on them. 23 John Taber, the mechanic, said, I saw a box that 24 had something like that on it. Remember he said it was all 25 obstructed by tape? You could kind of see the top of the - 12- 2-99 83 1 diamond and the bottom of the diamond. 2 Ladies and gentlemen, there is no evidence that 3 Andy Salis even saw them in books, let alone that he saw the 4 yellow oxidizer labels on them. 5 So let's turn to the ValuJet maintenance 6 paperwork. What did it tell the mechanics about the hazards 7 of these things, about whether they were listed in a 8 hazardous material table as a hazardous material or a 9 hazardous waste? Remember, those are the documents that the 10 mechanics were working from. That is what ValuJet had given 11 them, the detailed instructions telling them what to do. 12 Not the ValuJet maintenance manual that was found 13 in SabreTech on the second floor three months after the 14 crash and about six months after the work was being done. 15 There's no evidence here that any of the mechanics saw that 16 manual. Even more importantly, ladies and gentlemen, there 17 is no evidence that any of them deliberately ignored it. 18 Let's look at the ValuJet work documents, because 19 that's what is really important. That's what they had and 20 that's what they knew. Do those documents say anything 21 about being hazardous materials? No. They don't say they 22 have sodium chlorate in them. They don't say you've got to 23 ship these carefully. They don't say they are explosive. 24 What they do say quite clearly and what the 25 mechanics clearly knew is that these things got very hot. - 12- 2-99 84 1 The mechanics understood that danger and they dealt with it 2 in a way that they believed would render the generators safe 3 until ValuJet disposed of them. 4 The point is, ladies and gentlemen, that knowing 5 that the generators get hot is simply not the same as 6 knowing that they were among the hazardous materials that 7 are listed on that table. That's the point. Not do they 8 get hot, not are they generally dangerous, but are they 9 listed on this table. 10 They didn't know that. None of the documents told 11 them that. There's nothing about those documents that 12 instinctively would have told them that they had sodium 13 chlorate in them, which is listed on that table. 14 Let's fast forward to the end of the Government's 15 case when they put on the man from the EPA, John Lang. He 16 was a hazardous waste expert, he had done it most of his 17 life, I think. He told you that he studied the composition 18 of oxygen generators and determined that the expended 19 generators contained some left over barium, 4 percent I 20 think is what he said to be exact. 21 He did some pretty hefty calculations. He said he 22 couldn't even repeat them in the courtroom. But he said he 23 had done it and after doing those calculations, he 24 determined that that percentage of barium in the expended 25 generators was sufficient to classify them on to the table - 12- 2-99 85 1 as a hazardous waste. 2 But here's what's important. When did he do that? 3 He was first asked to do it after the crash. He got a call 4 after the ValuJet crash asking him to evaluate these things 5 and decide whether or not they had enough barium in them to 6 classify them as an oxygen generator. He told you that the 7 EPA hadn't identified oxygen generators as a hazardous waste 8 until the crash focused attention on them. 9 Here is what he said. He said, in my research on 10 them after the crash I did not find specific references to 11 oxygen generators. I did find references to oxidizers in a 12 general way. There's millions of different wastes out there 13 and EPA hasn't addressed each one of them. 14 So, before the crash EPA hadn't identified oxygen 15 generators as as hazardous waste. The haz-mat regulations 16 referred to oxygen generators only by reference to the 17 chemical sodium chlorate. The ValuJet work cards and the 18 generators themselves said nothing about the generators 19 being a hazardous material or a hazardous waste. 20 Keep something else in mind. Whatever limited 21 knowledge the mechanics had as to the heat dangers 22 associated with these things, they didn't know and they 23 couldn't have foreseen that the generators were going to 24 make their way on to a ValuJet plane. They thought they 25 were going to be thrown out. They didn't know and they - 12- 2-99 86 1 couldn't foresee that they would eventually be repacked by 2 Andy Salis and sent out. 3 That, of course, takes us to Andy Salis, the man 4 who did repack them and sent them to the ValuJet ramp area. 5 He wasn't a mechanic. He hadn't been up on the floor. He 6 didn't see the 0060 work cards. He didn't see the new 7 generators. There is no evidence that he saw them coming in 8 in the boxes. And the old generators didn't have any 9 warning stickers on them. 10 He was looking at a box of plain stainless steel 11 canisters placed on the shelves along with all the other 12 ValuJet old aircraft parts that had been removed from the 13 plane. That's what he saw. 14 You heard that Andy Salis talked to Agent Gentile 15 a few days after the crash. He told Agent Gentile that he 16 believed that the generators were empty oxygen canisters. 17 Ms. Miller suggested to you yesterday that when 18 Agent Gentile was talking to Mr. Salis and asked him what 19 was meant by five box oxy canisters empty, he immediately 20 rushed out and came back with the candy striped declaration 21 saying, this is what it is, thereby suggesting that he knew 22 exactly what they were all along and deliberately mislabeled 23 them. 24 Well, that's not exactly what Agent Gentile said. 25 What Agent Gentile said was, he asked Mr. Salis, what did - 12- 2-99 87 1 you mean by five boxes oxy canisters empty, and Mr. Salis 2 said that he didn't know but he thought he could find out. 3 So, Mr. Salis left and he came back with another lady and 4 they had with them a thick stack of paperwork. 5 The two of them sat there and they went through 6 the paperwork until they found the shipper's declaration for 7 oxygen generators. That's what really happened. He didn't 8 know what these things were. He made a decision to pack 9 these things up under the misguided belief that they were 10 empty oxygen canisters. It was a mistake. Turns out it was 11 a very bad mistake. But it was a mistake none the less. 12 He didn't willfully and intentionally put a 13 destructive device on an airplane. And if he didn't, then 14 neither did SabreTech. 15 Now, toward the end of the Indictment SabreTech is 16 charged with willfully failing to give its employees 17 training, specifically training that the Government says 18 would have taught them how to handle oxygen generators as 19 hazardous material or hazardous waste. 20 Well, there's no question that the SabreTech 21 employees didn't get that training. That's not in dispute. 22 But there is no indication that SabreTech made the decision 23 not to train in bad faith. That's what's required. 24 The kind of evidence that would support that kind 25 of a charge is a showing that SabreTech executives sat down - 12- 2-99 88 1 and talked about it and said, well, we really should give 2 this training but it costs too much money or we don't want 3 to take the time. There's nothing remotely like that in 4 this case. As a matter of fact, there's no evidence that 5 anybody made any decision not to train. All the Government 6 has shown you is that the mechanics weren't trained. 7 Remember, corporations act only through people. 8 Who is it that the Government wants you to believe made that 9 kind of a decision in bad faith? There just isn't any 10 evidence. In fact, the only evidence that gives any insight 11 into why SabreTech didn't train came from the testimony of 12 non SabreTech employees, other people who could have -- who 13 should have been trained in how to handle oxygen generators 14 but hadn't received such training either. 15 Remember the question that was asked of almost 16 every witness in this case? The Government asked all the 17 SabreTech employees, have you had oxygen generator training, 18 and they all said, no, we haven't. We asked the same 19 question of the other witnesses, and what did they say? 20 Al Ramos, the ValuJet tech rep, he had been in the 21 aviation industry for 20 years, he had an A and P 22 certificate, had a four year degree from an aviation 23 college, and he said he had never received training in 24 hazardous materials or oxygen generators. 25 Ramkissoon and Segura, the two ValuJet ramp - 12- 2-99 89 1 agents, remember they testified they received some training 2 in recognizing labels, but they had not been trained in 3 oxygen generators. I guess the fact is that if they had 4 been faced with the same box that Andy Salis was faced with 5 the indications are that they wouldn't have been able to 6 identify those oxygen generators well enough to decide how 7 to label them or pack them either. 8 Of course, there was Agent Gentile, the FAA 9 security agent who investigated this case and whose 10 expertise is enforcing the hazardous materials regulations. 11 He told us that he had learned a lot about oxygen generators 12 during the course of his investigation, but he said that 13 before the crash he didn't know what they were either. He 14 wasn't familiar with them. The FAA had never trained him. 15 And he also said that the FAA hadn't offered such 16 training to any of its agents. That failure to train even 17 by the FAA was unfortunate, but there's no reason to think 18 it was willful or that it was criminal any more than 19 SabreTech's failure to train was willful or criminal. 20 As we told you at the beginning of this case and 21 as the evidence has shown, the ValuJet accident was a 22 wake-up call for the whole industry, including the FAA. 23 Neither SabreTech nor ValuJet nor the FAA had the benefit of 24 Mr. Brennan's tutorial on the oxygen generators. They 25 didn't have the benefit of the EPA identification of these - 12- 2-99 90 1 things as a waste stream. 2 If we had it all to do over again we would all do 3 better. We now know we should have done better. Yesterday 4 Ms. Miller told you all that the mechanics trying to do the 5 best they could just wasn't good enough. You know, maybe it 6 wasn't, but it wasn't a crime. It wasn't a crime. 7 The simple fact is that whatever role those 8 generators played in the ValuJet accident, the Government 9 has not proven to you beyond a reasonable doubt that it was 10 the result of criminal, intentional, willful conduct on the 11 part of SabreTech or any of its employees. 12 What role did the generators play in the accident? 13 The answer is, I suspect, that we don't know and we may 14 never know, but I'll tell you one thing. The Government 15 didn't prove to you beyond a reasonable doubt that it was 16 caused by those generators. 17 They paid a handsome fee to Mr. Fogg to come in 18 here and tell you that they did cause the crash. Mr. Fogg, 19 a man worked most of his adult life at McDonnell Douglas, he 20 told you that he spent weeks out in the Everglades looking 21 at the wiring and looking at the other wreckage from the 22 crash, but he didn't even take the time to look at the 23 maintenance records from the aircraft that his company had 24 designed and built. He didn't even look. 25 You heard more from Ms. Hettinger and Mr. Forman - 12- 2-99 91 1 about the condition of that plane than Mr. Fogg knew at the 2 time he came in here and told you what had caused the crash. 3 That should tell you all you need to know about the fairness 4 of his opinion, an opinion that the Government has asked you 5 to rely on. 6 Let me end with one more thought that I hope 7 you'll take with you when you go into the jury room to 8 deliberate and it has to do with the nature of my client, a 9 corporation. It's kind of hard to represent a client like a 10 corporation in a case like this because we don't have a 11 particular face for you to identify with. 12 You see the individual defendants sitting here 13 every day, Mr. Gonzalez and Mr. Florence, you feel like you 14 get to know them in a certain sense, but it's different for 15 a corporation. You hear about certificates of incorporation 16 and seals and you see big black books like this, mergers and 17 acquisition documents. 18 But I hope you understand that this book is not my 19 client. This isn't SabreTech. SabreTech is the men and 20 women that went to work at the aircraft repair stations in 21 Miami, in Phoenix, in Amarillo every day. It's the men and 22 the women that you heard testify during this trial, those 23 people and the people they told you about, and it's 24 Mr. Gonzalez and Mr. Florence. 25 We didn't put very many witnesses on during our - 12- 2-99 92 1 case. We didn't have to. Our side of the story came out 2 through SabreTech people who testified during the 3 Government's case and the other people that they told you 4 about. Those people who you heard from and the many many 5 more that you haven't heard from or heard about, they are 6 SabreTech. 7 They were involved in promoting air safety, too. 8 That's what they did day in and day out. The FAA doesn't 9 have a monopoly on that. 10 So, I would like to ask you, please, when you go 11 back to the jury room give SabreTech a fair shake. Treat it 12 the same way you would treat the individuals in this case. 13 The Judge will instruct you that you must. If you conclude, 14 as I think you must, that the Government has not met its 15 burden of proving beyond a reasonable doubt that any of 16 SabreTech's employees committed the criminal acts that are 17 charged, then you must acquit SabreTech as well. 18 Thank you very much for your time. 19 THE COURT: All right. Ladies and gentlemen, we 20 are going to recess at this time for the noon recess before 21 we listen to the final closing rebuttal argument. 22 We ask that you remember very carefully the 23 instruction we have given you each time you have left the 24 courtroom not to discuss the case with anyone or permit 25 anyone to talk with you about the case. If there should be - 12- 2-99 93 1 anything in the newspaper or television or radio, don't 2 read it, watch it or listen to it. Please don't have any 3 contact with anybody connected with the trial or any of the 4 spectators. 5 It is 12:30. We will resume at 1:30 this 6 afternoon. You'll have an hour for lunch and if you'll be 7 back here a few minutes before 1:30. 8 Marshal, will you see that they get to the 9 elevator. Thank you. 10 [The jury leaves the courtroom]. 11 THE COURT: If everyone will be seated, please. 12 We have some legal matters to take up very briefly. Those 13 of you who wish to leave, you may do so, but if you stay, 14 please be seated. 15 Turning to this matter of the verdict forms that 16 we left this morning, I have concluded that -- the two 17 versions are very similar and I have elected to grant the 18 motion of the defense to give the language that they have 19 suggested. 20 I believe that it pertains to and is appropriate 21 to give that instruction with respect to Counts VIII, X, 22 XII, XIV, XVI, XVIII, XX and XXII. It may be that some of 23 those are not -- does not pertain to some of those counts. 24 It seems to me that it probably does. 25 But for discussion purposes or inviting your - 12- 2-99 94 1 comment, I have had my secretary and courtroom deputy 2 prepare a revised verdict form. I advise that you look at 3 them carefully and I invite your comments. 4 MR. MOSCOWITZ: You were, I believe they are 5 correct. 6 THE COURT: I'm sorry? 7 MR. MOSCOWITZ: Your Honor, I believe they do 8 apply to those counts. 9 THE COURT: Now, you will note that some of these 10 counts -- well, each of these counts includes the reckless 11 language as well as the willful language. Some of them 12 deal with -- some of them deal with mixing together items. 13 No, that's Count 15. Packaging, Count 19. Those are 14 straightforward guilty, not guilty spaces in my judgment. 15 You all look at them carefully. It's your case. 16 It seems to be appropriate to me. If you all see any 17 flaws, let me know. It is not necessary for you to repeat 18 your objections. Those are already in the record. 19 Is the Government satisfied? 20 MS. MILLER: The form seems to be correct, yes, 21 sir. 22 THE COURT: All right. Now, it is my suggestion 23 that in order to submit these special interrogatories to 24 the jury on the even numbered Counts VIII through XXII, 25 that we have an agreement that after the verdicts are - 12- 2-99 95 1 returned, depending on what the verdicts are, of course, 2 that then the Court will enter -- or cause to be entered 3 some sort of judgment or verdict that reflects their 4 decision. 5 As you see on those Counts VIII through XXII, it 6 simply asks them to answer questions. There is no place on 7 there for them to write in guilty or not guilty as there 8 are on the other counts. The reason that is so is because 9 it's an alternative thing, as I understand it. 10 Mr. Moscowitz, was that the thrust of your motion 11 originally when you asked that this be done this way? 12 MR. MOSCOWITZ: Yes, Your Honor, it is. I 13 believe that it would be appropriate, that based on a yes 14 answer -- if the interrogatories are answered yes, it would 15 be appropriate for the Court to enter a judgment of guilty. 16 If the interrogatories are answered no, then the Court 17 would enter a judgment of not guilty on those counts. 18 THE COURT: What if it's yes on one and no on one 19 on the same count? 20 MR. MOSCOWITZ: If it's yes on A, then the 21 judgment of guilty would be under that -- 22 THE COURT: It would be a judgment of guilty? 23 MR. MOSCOWITZ: Yes. 24 THE COURT: We understand that if they answer yes 25 to both questions, then the judgment would be guilty on - 12- 2-99 96 1 that particular count. If it is no, the judgment would be 2 not guilty on that particular count. 3 Now, what happens if the jury, because they 4 misunderstand or whatever, come back with a yes on one part 5 and no on one part on the same count? That's what I'm 6 trying to clarify. 7 MR. MOSCOWITZ: Your Honor, I'm sorry, part A is 8 the willfulness crime under the Court. Part B is the 9 reckless crime on that count. The jury could find 10 SabreTech guilty on one and not guilty on the other, or 11 guilty on both or not guilty on both. 12 Our view of the recklessness defense, Your Honor, 13 is that it is a lesser included of the willfulness 14 violation. So if in fact, let's say, the jury found 15 SabreTech guilty of the willful violation, then if they 16 were also to find them guilty of recklessly, then that 17 would be a version of the willfulness violation. 18 A yes would mean guilty and a no would mean that 19 the jury found SabreTech not guilty. 20 THE COURT: So you're saying if there's a no in 21 either space, then it would be not guilty. Is that it? 22 MR. MOSCOWITZ: It would depend on -- let's say 23 if there was a no on subparagraph A, that would mean not 24 guilty of willfully violating. If there was a yes on B of 25 recklessly causing, then it would be guilty of the reckless - 12- 2-99 97 1 violation. 2 THE COURT: So, if there is a yes anyplace, on 3 either of the two questions, the verdict on that count 4 would be guilty? 5 MR. MOSCOWITZ: Yes, Your Honor. 6 THE COURT: If both questions are answered no, 7 then there would be a not guilty on that particular count. 8 Is that your analysis? 9 MR. MOSCOWITZ: Yes, Your Honor. 10 THE COURT: Does the Government agree on that? 11 MR. BRIGHAM: Your Honor, first for 12 clarification, if, in fact, it's yes on A but no on B, I 13 assume that that's acceptable to the defense as a guilty. 14 If it's yes on A and yes on B, that would be guilty on both 15 of them for each of those individual means. But we want to 16 ensure that there cannot be a combination that the defense 17 would later claim would be an inconsistent verdict. 18 THE COURT: That's why we are talking about it 19 now. They just said if it is yes on either one of these it 20 is a guilty verdict. If it is no on both of them, it's a 21 not guilty verdict. 22 MR. BRIGHAM: That's correct. 23 THE COURT: I want a stipulation to this effect 24 before we submit this verdict form to the jury. 25 MR. MOSCOWITZ: Your Honor, I'm sorry, there is - 12- 2-99 98 1 one variation that I need to consult with co-counsel on. 2 Your Honor, let me break it down like this. If 3 on these counts -- and it's the same for each count. If 4 the jury, with regard to question A, says -- if they answer 5 A yes and they answer B yes, then it's simply a verdict of 6 guilty. If they answer A no and B yes, then it's a verdict 7 of guilty for recklessly causing the transportation. 8 It seems to me if the jury answered A yes and B 9 no, then that would be an inconsistent verdict because 10 recklessly is the lesser -- is a lower standard. If the 11 jury were to find that SabreTech is not guilty of 12 recklessly causing transportation, then they could not be 13 guilty of willfully causing the transportation. 14 So, in that case, I think the Court would have to 15 enter a verdict of not guilty on those counts. 16 THE COURT: Well, you have to look at the count. 17 I happen to have Count X in front of me. Count X charges 18 between March of 1996 and May 11, 1996, SabreTech did 19 willfully deliver and cause to be delivered to an air 20 carrier, ValuJet and so on, for transportation in air 21 commerce property containing hazardous material, that is, 22 oxygen generators, so on, in violation of 49 CFR, Section 23 171.3(a) as set forth in Paragraph 35 in Count IX, which 24 paragraph is re-alleged and incorporated herein except for 25 the word "willfully" -- except for the word "willful." - 12- 2-99 99 1 And the defendants, SabreTech, Florence and 2 Valenzuela, did recklessly cause the transportation in air 3 commerce of property containing hazardous materials, and it 4 goes on, except for the word "willfully." 5 So, as you read Count X, it would appear that 6 SabreTech is charge with willfully delivering or causing to 7 be delivered in the first part of Count X. In the second 8 part of Count X it is charged with recklessly causing the 9 transportation in air commerce. 10 So, we have agreed, I think, in our earlier hours 11 of discussion in Rule 29 and in charge conference that if 12 SabreTech recklessly caused it to be transported in air 13 commerce, or willfully, that if the jury so finds, then 14 that's a guilty verdict. 15 Now, if the jury were to find that they were not 16 willful in delivering or causing to be delivered property 17 to an air carrier, in violation of the regulations, but 18 they, yes, recklessly caused the transportation, then that 19 seems to be guilty of recklessly causing the 20 transportation, but not guilty of willfully delivering. 21 Now, would that then indicate that a judgment of 22 guilty should be entered on Count X or not? 23 MR. MOSCOWITZ: Willful, no; reckless, yes? 24 THE COURT: Willful, no and reckless, yes. 25 MR. MOSCOWITZ: Then they are guilty of Count X. - 12- 2-99 100 1 THE COURT: Now, obviously if they are found 2 guilty of willful and guilty of reckless, then they are 3 guilty on Count X. 4 What happens if it's yes on willful and no on 5 reckless? 6 MR. MOSCOWITZ: We believe, Your Honor, that 7 would have to be a verdict of not guilty. 8 THE COURT: What is the Government's position on 9 this? The Government is the one that indicted this in this 10 convoluted fashion. How do we extricate ourselves from 11 this morass and get back on track here. 12 MR. BRIGHAM: Your Honor, we were following the 13 language of the statute and I think the solution is maybe, 14 given the defense position now that a yes on willful and a 15 no on reckless is an inconsistent verdict, we should rely 16 on the Court's jury instructions without a special verdict 17 because those jury instructions instruct the jury clearly 18 that they have to be unanimous on one or the other. 19 A special jury form should not be a trap for the 20 jurors. These type of combinations do set a trap and the 21 jurors could very easily believe with respect to both A and 22 B the way it's written, but simply say yes on B because 23 willfully was a decision they chose chose to make. 24 We should not, I don't think, create traps where 25 inconsistent verdicts can be created. We would propose - 12- 2-99 101 1 that we go with the Court's jury instructions as originally 2 proposed. 3 Our position, though, is, if we maintain the 4 special verdict forms, is that these two means would not 5 constitute an inconsistent verdict if there was a yes on A 6 and a no on B. That's because B is not a lesser included 7 offense of A. A talks about willfully delivering or 8 causing to be delivered property. B talks about recklessly 9 causing the transportation in air commerce. The elements 10 of B are not necessarily the elements of A or vice versa. 11 But again, we believe there is a possibility of a 12 morass here after receiving the jury's verdict. We believe 13 that the jury instructions, as the Court has drafted them, 14 are sufficient, directly instructing the jury that they 15 must agree unanimously on one or the other and that should 16 be sufficient. 17 THE COURT: Let me pause to reflect briefly upon 18 the philosophy of special interrogatories to juries and the 19 history and genesis of it. 20 Chief Judge Brown of the old Fifth Circuit used 21 to lecture his whole professional career to new trial 22 judges about the great and wonderful advantage to special 23 interrogatories to the jury, and he put it in a number of 24 opinions and it is firmly embedded in the Fifth Circuit 25 law, which has been adopted in this circuit. - 12- 2-99 102 1 So, it has the imprint of some powerful scholars 2 to the effect that we should do this instead of leaving it 3 up to guesswork later on as to what the jury meant by a 4 bland guilty, not guilty blank space. So there's a great 5 deal of law on this subject. 6 We, as trial judges, are encouraged and I believe 7 Judge Brown even mandated it in a case that is -- where 8 there are a number of issues, a number of legal issues like 9 this one that we have here. There are 24 counts. These 10 particular counts seem to be -- it's been the position of 11 the Government, I think, throughout that as long as they 12 establish beyond and to the exclusion a reasonable doubt 13 the elements of these counts, that the jury could find 14 SabreTech guilty of either recklessness or willfulness, and 15 that would be -- either way would be a guilty verdict. 16 MR. MOSCOWITZ: Your Honor, Mr. Brigham said we 17 shouldn't get involved in the morass and the confusion of 18 this. The morass and confusion is the way these counts 19 were charged. The issue is they are confusing, which is 20 why we think there does need to be special verdicts. 21 And what Mr. Brigham has just said as to why it 22 does not need to be a special verdict is escaping that 23 these counts are defective, that they charge two different 24 offenses. If they charge two different offenses then they 25 are duplicitous. - 12- 2-99 103 1 They appear to us -- we didn't allege they were a 2 single offense and the only difference between the first 3 leg and the second leg is the intent requirement. Clearly, 4 the second leg, recklessly, is the lesser intent than the 5 first leg. If Mr. Brigham says there is another 6 difference, then there are two separate crimes charged and 7 that's another problem. 8 THE COURT: Well, at Page 32 of the jury 9 instructions we are to tell the jury that SabreTech can be 10 found guilty of violating Title 49 U.S.C., section number, 11 only if all of the following facts are proved beyond a 12 reasonable doubt: 13 One, that SabreTech either, A, willfully 14 delivered; or, B, recklessly caused the transportation. 15 Second, that such action was in violation of the 16 regulations. 17 So it's been the Government's position 18 throughout, and we, after extensive argument from all 19 parties, have concluded that that is the instruction. 20 That's why I wanted to find out what we are to do here 21 depending on the answer that is filled into these blanks. 22 The Government's position, and we are going to 23 instruct the jury that if they find SabreTech guilty of 24 either willfully delivering or recklessly causing, then 25 they are guilty of that particular count. If they find - 12- 2-99 104 1 neither of those elements proven, then they are not guilty. 2 I was simply anticipating a problem that might 3 arise if the jury came back with a no on one question and 4 answered yes to the other. I suppose we could just wait to 5 see what the jury does and let it go at that. That may 6 solve the whole problem one way or the other. 7 Under the instructions, they are asked to make 8 two determinations. They are asked to make one 9 determination, but they can go either route they want to. 10 We have at least this agreement, and that is that 11 if the answer to any one of these counts that we have been 12 discussing, that is, the even numbered Counts VIII through 13 XXII, is yes to willfully, to part A(1), or that -- the 14 verdict would be then entered by the Court as guilty on 15 that count. 16 We have further the stipulation -- I'm suggesting 17 this as your stipulation. At the end you say, yes, I 18 agree, or no, I don't, whatever you want to. 19 If it is no, the verdict would be not guilty on 20 that particular count, if it is no on A(1). I think it has 21 to be no on both counts to be consistent with the 22 instruction for it to be a not guilty. I think if it is 23 yes as to either one, then it results in a guilty verdict. 24 What is the Government's position? Do you agree 25 with that or not? - 12- 2-99 105 1 MR. BRIGHAM: We agree, Your Honor. 2 THE COURT: And the defense does not? 3 MR. MOSCOWITZ: We do not, Your Honor. May I 4 state what our proposition would be? 5 THE COURT: Well, I think you already have. Go 6 ahead. 7 MR. MOSCOWITZ: If there is a yes on part one and 8 a no on part two, it's a guilty verdict, which would mean 9 -- I am sorry. I take it back. 10 If it's yes on part 1 as to willfulness and a yes 11 on part 2 as to recklessness, then it is a guilty verdict. 12 If there is a no as to willfulness and a yes as to 13 recklessness, that is a guilty verdict. 14 If there is a yes -- I'm sorry. If there is a 15 yes as to willfulness and a no as to recklessness, then 16 that has to be a not guilty verdict because the only 17 difference between the two offenses is in the mental state 18 required and recklessness is a lower level of intent than 19 willfulness. 20 It's just a problem with the way the Government 21 has charged this. They could have charged this in separate 22 counts, but they chose to charge it together. I think it's 23 important that we know that it's a unanimous verdict as to 24 whether it's willfully or recklessly. 25 MR. BRIGHAM: Your Honor, if I may, we charged - 12- 2-99 106 1 separate means as ways of committing the same crime. Those 2 were the means that are tracked in the statute itself which 3 set out those two separate means clearly. I point out in 4 defense jury instruction No. 17 as proposed to the Court 5 they use that language, either/or. 6 There's no language about a lesser included 7 offense because it's not. They are two separate means by 8 which one may commit the same crime. 9 THE COURT: All right. To bring this to 10 finality, it is the ruling of the Court that if the jury 11 comes back with an answer to any of these particular 12 charges, that they find unanimously that there was either 13 willful or reckless, that then that is a guilty verdict on 14 that particular count. 15 It is only if they come back with a no answer to 16 both questions, that is, finding that they have a doubt, 17 reasonable doubt, on the willfulness and the recklessness, 18 then the Court would enter a not guilty verdict on that 19 particular count. That ruling is made, of course, over the 20 objection of all counsel for the defense and their right to 21 raise that as error is fully preserved in the record. 22 All right. We have the jury instructions and we 23 have the verdict forms. We will resume in about 30 minutes 24 for the final closing argument. 25 COURTROOM DEPUTY: All rise. - 12- 2-99 107 1 [There was a luncheon recess.] 2 AFTERNOON SESSION 3 1:40 P.M. 4 COURTROOM DEPUTY: All rise. Court is now in 5 session. The Honorable Judge James Lawrence King 6 presiding. 7 THE COURT: Thank you. Have the jurors arrived 8 back? 9 MR. MARSHAL: Not yet. 10 THE COURT: Not yet. All right. Be seated, 11 please. Maybe you can wait there, and as soon as they come 12 in, you can bring them in. 13 MR. MARSHAL: They are going to knock on the 14 door. 15 THE COURT: All right. 16 We are missing two jurors. Do you want to start 17 without them and start with the alternates? They are 18 twenty minutes overdue? 19 MS. MOSCOWITZ: No. 20 MR. MOSCOWITZ: No. 21 THE COURT: Do you want to confer or talk about 22 it? 23 MR. MOSCOWITZ: We want to wait for the jurors. 24 THE COURT: How long? What would you say, an 25 hour, two hours, three hours, how long do you want to wait? - 12- 2-99 108 1 We will set a time limit, and then we will go. I'm not 2 going to sit here for three days. 3 MR. MOSCOWITZ: Another half hour. 4 THE COURT: All right. The government satisfied 5 with that? 6 MS. MILLER: Yes, Your Honor. 7 THE COURT: That would be twenty minutes after 8 two. If they are not here by then, whoever they are, we 9 will start without them. Let me know immediately when they 10 come, marshal. 11 COURTROOM DEPUTY: All rise. 12 [There was a short recess]. 13 COURTROOM DEPUTY: All rise. 14 THE COURT: Please be seated. This time, we will 15 hear from the government in their rebuttal closing 16 argument. Ms. Miller. 17 GOVERNMENT REBUTTAL CLOSING ARGUMENT 18 MS. MILLER: Thank you, Your Honor. Ladies and 19 gentlemen of the jury. Yesterday when I spoke to you, I 20 said that common sense would drive your decision in this 21 case, and that's where we are, ladies and gentlemen, back 22 to common sense. Does it make sense to you that only the 23 careful are subject to our laws? 24 You heard that SabreTech didn't know, didn't 25 understand anything about hazardous materials regulations, - 12- 2-99 109 1 so how can they be guilty? That is not the test, ladies 2 and gentlemen. We don't live in a world where the only 3 person that can prosecuted for violating, willfully 4 violating, haz-mat regulations was poor Mr. Brennan, 5 because he knows the regulations inside and out. That's 6 not what you're going to hear. Ladies and gentlemen, 7 SabreTech is in denial about what happened here. Maybe 8 that's understandable, because it's hard to face up to what 9 happened here. But your job is to tell the truth about 10 what happened here and to reach a truthful verdict. 11 What happened here is that this company knew what 12 it was handling. Knew it was handling hazardous materials. 13 Knew very well that there were requirements that had to be 14 met. We talked yesterday about how they knew. One way 15 they knew was through this document. This was their 16 document. All of these minutia that are supposedly so 17 technical and look at this haz-mat table, and it's so big 18 how could they know? Right in their files, it told them. 19 Class or division: 5.1. Proper shipping name: Sodium 20 chloride. UN or I.D. Number: UN1495. I'm not saying 21 Andrew Salis had this memorized, but this is a case against 22 a corporate defendant, and this corporate defendant cannot 23 run and hide from the materials it had on it's premises, in 24 it's own records. It's own files and materials. It cannot 25 run and hide, ladies and gentlemen, from it's own - 12- 2-99 110 1 maintenance manuals. Government Exhibit 104B. We have 2 never seen a chart of an oxygen generator. What's that, 3 ladies and gentlemen? You know that shape. You can 4 probably see that shape in your sleep. It's right in their 5 own maintenance manual at page 2. 6 Eugene Florence. He didn't know what he was 7 dealing with? Ladies and gentlemen, Eugene Florence worked 8 on these oxygen generators for days. He knew they could 9 ignite because of what had happened in the boxes. The whole 10 point that's made of, well these mechanics are so busy doing 11 other work, working on other things, this aircraft, look at 12 all these other books. Yes, do look at these books. You'll 13 find things in there like this. Through oxygen system. 14 Guess who did the work on this? Eugene Florence. No, this 15 is not an oxygen generator, this is compressed oxygen. He 16 worked on this work card. It's got his signature on it. 17 Through oxygen system. E. Florence. And on the 18 second page, what have we got? Warning, open cylinder shut 19 off valve slowly to avoid possibility of fire, if oxygen is 20 to be used for testing. Whose name is on there? E. 21 Florence, signing off items A through H. This is item C. 22 Later in this same document, page 4 of 9. Warning, open 23 cylinder shut off valve slowly to avoid possibility of fire, 24 if oxygen is to be used for testing. No, it's not a 25 chemical oxygen generator. But ladies and gentlemen, the - 12- 2-99 111 1 notion that Eugene Florence didn't have a clue of what he 2 was dealing with is a fantasy. This wasn't a kindergarten. 3 This was a domestic, certificated repair station for 4 aircraft. It was populated with airframe and power plant 5 mechanics. This was not the first time they ever heard of 6 oxygen. They knew what oxygen can do. Let's use some 7 common sense. 8 Training, every single witness from SabreTech, who 9 was asked that question, had had no hazardous materials 10 training with regard to oxygen generators. But that's not a 11 problem because, you see, at SabreTech we just didn't know 12 about that. We couldn't be responsible. You've got to show 13 that somebody at SabreTech should have been responsible. 14 Ladies and gentlemen, the law is not limited to 15 people like Mr. Brennan. It applies to everybody. And 16 SabreTech, ladies and gentlemen, right in it's own repair 17 station inspection procedures manual, which is Government 18 Exhibit 40, you'll find out that they provided for a manager 19 of maintenance training. Directly responsible to the 20 director of quality control for maintenance training. 21 Duties and responsibilities one, two, three, four, five. 22 Develop and conduct safety training classes. Seven, 23 coordinate with environmental step to monitor facility 24 compliance with all Federal, State and County environmental 25 regulations. How much clearer does it have to be before - 12- 2-99 112 1 there's accountability. Ms. Moscowitz used that word and 2 I'll use that same word. Accountability. 3 Exhibit 25. You probably know it by heart by now, 4 and the work card with the warning on it. But counsel for 5 Eugene Florence suggests that that doesn't count because on 6 the engineering order, they didn't repeat that same warning. 7 Mommy, on Monday you told me not to do it. Mommy, on 8 Tuesday you told me not to do it, but mommy, you didn't tell 9 me on Wednesday not to do it. You told me not to do it on 10 Thursday, but on Wednesday, you didn't tell me not to do it. 11 So it's okay. That's an excuse we would not accept from a 12 child, much less somebody that signs a document like this. 13 The maintenance manuals were there at SabreTech 14 before the accident. Government Exhibit 102A, the actual 15 fiche, on it you'll see February 16, 96. ValuJet 16 maintenance manual. This was found in SabreTech's offices. 17 Aircraft 801 through 803. That maintenance manual was 18 there. SabreTech as a corporation is responsible and 19 accountable for the contents of that maintenance manual. 20 Mechanics are responsible and accountable for the portions 21 of the maintenance manual that they acknowledge having 22 responsibility for. Just as Eugene Florence acknowledged on 23 that engineering order that I just showed you, that it was 24 done per chapter 3520. 25 You know these documents are full of references to - 12- 2-99 113 1 the maintenance manual. I don't know if you recall when 2 Mr. Ramos had finished his testimony and I got up to do 3 redirect, I said, excuse me, I have one question, it's not 4 really redirect, I want to reopen my direct and I asked him 5 just one question. The question was "what does I.A.W. stand 6 for because it appears all over these documents"? And he 7 told us that I.A.W. stands for, in accord with. You'll see 8 it in these documents continually associated with 9 maintenance manual chapters. Work done IAW35 - such and 10 such and such and such. The mechanics referenced the 11 maintenance manuals in their papers. 12 Speaking of Mr. Ramos and this point about how he 13 didn't care about old oxygen generators, I hope you remember 14 the full context of that examination. Because what he was 15 being asked about were records that appear in exhibits, I 16 think it's only in one of them. I think it's 26. In 17 exhibit 26, he was asked about the fact that there is a 18 detailed accounting and listing of the expiration dates of 19 oxygen generators. You will see it in here. I don't want 20 to fumble looking for it now. What it is, is a listing of 21 expiration dates of the oxygen generators, and they are for 22 the new oxygen generators. The question was asked, "what 23 was the reason for tracking expiration dates of new oxygen 24 generators and not old ones"? This was in the context of 25 explaining life limiting parts. And Mr. Ramos made the - 12- 2-99 114 1 point, which is totally logical and makes sense, but with 2 regard to a life limited part, what the FAA wants to know 3 is, that the parts you are using are within their life 4 limit. That's why they were concerned about the new oxygen 5 generators because those were the parts that they were 6 using. The old oxygen generators were off the airplane. 7 They weren't going to be used anymore, so that was not what 8 they were tracking the expiration dates for. 9 Mr. Ramos put it in terms of, "we tracked the 10 expiration dates for the new oxygen generators because 11 that's what the FAA is looking for, and that's what they're 12 going to be inspecting for." Ladies and gentlemen, he was 13 not saying he doesn't care about the old oxygen generators. 14 He was explaining why they track the expiration dates on the 15 new oxygen generators because the FAA is going to be on them 16 about that. That's not a bad thing, ladies and gentlemen, 17 being concerned about what the FAA is looking for. 18 But for SabreTech, no amount of notice is enough 19 for them to be on notice as they would argue it. Not the 20 fact that it's in their maintenance manuals. Not the fact 21 that they got the diagram. Not the fact that the shipper's 22 declaration, even the crash wasn't enough for them, ladies 23 and gentlemen. This photograph, Government's Exhibit 53C is 24 the oxygen generators that Mark Gentile found at SabreTech 25 days after the crash without safety caps. - 12- 2-99 115 1 Now, you heard that SabreTech can be convicted of 2 a conspiracy count only if two or more employees willfully 3 joined in. Who are those two or more employees? Obvious 4 candidates include Eugene Florence, Danny Gonzalez, but 5 they're not the only ones. When you get the indictment, 6 you're going to see that it says that the conspirators 7 included persons known and unknown. Some of the known 8 persons that could fit into that category, David Wiles, the 9 man, the supervisor who stood there when Rodriguez and Taber 10 were discussing in front of Florence, we have got no 11 shipping caps, and Wiles said, don't worry with about it. 12 There you have got somebody in a conspiracy. Jude Casamere 13 who was there at the same time. Ray Serrano who told Mauro 14 Valenzuela to sign papers when Mauro Valenzuela was saying 15 he hasn't done the work. And Persons unknown. 16 Remember, ladies and gentlemen, this chart that 17 you were shown of SabreTech and the point was made, oh they 18 were just talking about the people down here, it doesn't 19 really reach up here. Ladies and gentlemen, it was thus 20 ever so in a corporation, isn't it? There's certain people 21 who do the dirty work, who sign those work cards. And the 22 reality of life is that sometimes those people are on the 23 hook. 24 Mr. Florence is in that situation. It sad, but 25 it's a problem of his own making. But that's not to say - 12- 2-99 116 1 that that didn't go up further into the corporation. 2 Casamere, a lead mechanic. Wiles, a maintenance 3 supervisor. Director of hangar operations, a term that fit 4 Mr. Gonzalez. 5 Now the requirement of two individuals for the 6 corporation to be could be convicted, only applies to Count 7 I, because Count I is a conspiracy. That requirement of two 8 individuals does not hold true for any other count. In 9 fact, ladies and gentlemen, with regard to the other counts, 10 you can look to the knowledge of individuals within that 11 corporation as comprising the corporation's knowledge. 12 Andrew Salis does not have to know that what he's causing to 13 be put on that aircraft is a hazardous oxygen generator in 14 order for SabreTech to be guilty of willfully causing the 15 delivery and the transportation of that hazardous material. 16 Because SabreTech isn't just isolated to Andrew Salis. 17 SabreTech is accountable for the knowledge of all 18 of it's employees. What John Taber knew, SabreTech knew. 19 What Eugene Florence, knew SabreTech knew. What was in 20 their maintenance manual, SabreTech knew, plus what Andrew 21 Salis knew, plus Mitch Perez, plus all of those people 22 equals willful delivery to that ValuJet ramp of oxygen 23 generators when SabreTech appreciated through all the 24 information that it had, the nature of those oxygen 25 generators. - 12- 2-99 117 1 A corporation, you'll hear, is deemed to act 2 willfully if one or more of it's agents in the scope of 3 their authorization acted willfully. Or if, as an 4 organization that corporation consciously avoided learning 5 and observing a pertinent legal requirement or acted with a 6 flagrant organizational indifference to such a legal 7 requirement. 8 Flagrant organizational indifference. David Wiles 9 being told by mechanics, hey boss, we don't have any 10 shipping caps and saying, that's no big deal. That sounds 11 like flagrant organizational indifference. Mechanics going 12 to supervisors saying, hey, look these generators went off. 13 How do you like that? That sounds like flagrant 14 organizational indifference. Packing them up and putting 15 them in boxes even though some of them are going off, 16 flagrant organizational indifference. 17 Further, you will hear in the instructions, that a 18 reckless disregard of the truth with a conscious purpose to 19 avoid learning the truth, is sufficient show that a false 20 statement was made willfully and with knowledge of its 21 falsity. You can't just put your head in the sand. You 22 can't just say, well we didn't have a training director. 23 You haven't shown that a responsible person caused us not to 24 have training. 25 Ladies and gentlemen, Dennis Segurra, the guy in - 12- 2-99 118 1 the belly of the ramp, who could barely speak English, and 2 testified with a translator, had been trained by ValuJet. 3 Was it with regard to oxygen generators? No, he didn't say 4 that. He said he was trained to recognize labels. When you 5 hear the instruction and hear the nature of the regulations, 6 you'll see that it refers to training, function specific 7 training. If you work on a ramp and you're bringing in 8 boxes, you've got to recognize what's on the boxes. If you 9 are a shipping clerk like Mr. Salis, you have to be trained 10 to understand what you are handling. He wasn't. That was 11 willful on the part of SabreTech, because that shipping and 12 receiving department was receiving and handling oxygen 13 generators. And they knew it. Keith Ingram received oxygen 14 generators. He wasn't trained in them. That's Count XXXIII 15 of the indictment. 16 Now we heard from SabreTech that there was no 17 atmosphere of haste. There was no undue pressure. Ladies 18 and gentlemen, SabreTech was a new company. It had started 19 out as DynAir Tech. They had bought that company. They had 20 changed the name, and they were looking to make a hit and 21 looking to make business. They were squeezing as much as 22 work as they could and the resources were skimpy. They were 23 resorting to contract labor continually. 24 Manny Quintana, just yesterday, testified that he 25 left SabreTech because he could not get enough electricians - 12- 2-99 119 1 and sheet metal workers on his job. We know about the seven 2 day a week memo. We heard from two counsel now that Al 3 Ramos said it's typical to work seven days in a week in the 4 aviation business. He didn't say it was typical to have the 5 director of maintenance require everybody who worked there 6 to be there seven days a week. Yeah, Mr. Rodriguez, Robert 7 Rodriguez didn't comply. He had another full-time job. Do 8 you remember that? He worked for, I'm not going to try to 9 remember the name of the outfit. I believe it was in Fort 10 Lauderdale. He had a full-time job, and he worked at 11 SabreTech part-time. He was in a, position where he already 12 had other full-time work. 13 Pressure, yes, there's pressure in any line of 14 work. That doesn't give a pass to people for giving into 15 that pressure and doing something that's wrong, like lying 16 on maintenance records. 17 Danny Gonzalez in that work booth. In my argument 18 yesterday, I called it, an invitation to pencil whipping. 19 And John Taber, counsel says, well he didn't say it was an 20 invitation to pencil whipping. He said in 21 cross-examination, answering proposition put to him by 22 defense counsel as they are entitled to do, he said, if I 23 may use the defense chart, "Now Danny Gonzalez did not ask 24 you to sign paperwork without reading it, did he? No, sir. 25 He was just saying it's time to get the job done to wrap up - 12- 2-99 120 1 the paperwork. That's what I believe, yes." 2 Ladies and gentlemen, what matters in this case is 3 what you believe and what you conclude. John Taber, Robert 4 Rodriguez, all the witnesses from SabreTech, do you think 5 they were happy to be here? Do you think that they are 6 eager to remember the details that would put them in a bad 7 light? They can't even remember this thing, being on the 8 oxygen generators that they handled. But we know that it 9 was. This warning went on all the new oxygen generators. 10 They were here under use immunity. Their testimony was 11 presented to you by the government, and they answered 12 questions, and you are entitled to rely on their account and 13 on their testimony. You must consider also, ladies and 14 gentlemen, the government takes its witnesses as it finds 15 them. These were SabreTech's mechanics, and they came in 16 here and their view of what they think Danny Gonzalez meant, 17 does not define what your conclusion is. 18 Further, ladies and gentlemen, that was the view 19 of John Taber. If Danny Gonzalez was issuing an invitation 20 to pencil whip that day when all the mechanics were in 21 there, they clearly wanted him to sign papers and they were 22 backing off and Danny Gonzalez said, let me get the words 23 exactly right which is as it should be, "John Taber, I said 24 I was a little greasy right now, I wanted to read what I was 25 signing, if I did it." This was after he had already - 12- 2-99 121 1 signed. In argument. You heard that after he said this, he 2 signed something. No, he had already signed that paper for 3 Jude Casamere. Casamere called me over and said Johnny 4 could you please sign these items off because I know you did 5 this. I took the time to read it. It was to install the 6 right hand side PSUs. Taber sign those three off. Eugene 7 Florence signed the papers. I said, I was a little greasy 8 right now. I wanted to read what I was signing, if I did 9 it. Danny Gonzalez stood up and said we need this paperwork 10 signed now. 11 If that was an invitation to pencil whip, John 12 Taber didn't accept it. Whether you think he was a hero or 13 just kind of slimed out of there saying, look, I hear my 14 mother calling or whatever, that's not really what's 15 significant. What's significant is, he didn't sign papers 16 for work he didn't do. If that was an invitation to pencil 17 whip, then we know who accepted that invitation to pencil 18 whip. Mr. Florence. Mr. Florence signed the work card. 19 One thing we have not heard too much about in argument 20 because what can you say, ladies and gentlemen, is this was 21 obviously and clearly a false statement. 22 "If generator has not been expended install 23 shipping cap on firing pin." I know you are familiar with 24 that sentence. I'm sorry to harangue you with it, but after 25 all, that is what this case is about, isn't it? That - 12- 2-99 122 1 statement was false. Eugene Florence knew it was false. He 2 acknowledged it's falsity. In Government Exhibit 79, which 3 is the written statement that was given to the FAA on June 4 6, 1996. "After removal of the oxygen generator, did you 5 install a safety cap on the primer? No, they weren't 6 available. Had to keep new ones on until final drop check." 7 But Mr. Florence was still in denial, ladies and 8 gentlemen, because guess who performed the final drop check 9 on 802? It was Eugene Florence, and it was the day after he 10 signed that work card. 11 The government hasn't shown that SabreTech 12 employees knew that generators were hazardous materials? 13 I'm not even going to go over that again. It has been shown 14 over and over again. The government didn't show that 15 SabreTech employees knew that oxygen generators were 16 hazardous waste? What about the maintenance manual chapter, 17 Government Exhibit 104A? I'll not going to pull it out now, 18 but when you're back in the jury room, please take a look at 19 it. Look at the section where it discusses barium oxide and 20 disposal of generators. Look at the sentence where it says 21 "Talk with local safety department or authorities for the 22 procedures to discard this hazardous agent." How much 23 plainer does it have to be? Oh but mommy, you didn't tell 24 me not to write on this wall, you only told me not to write 25 on that wall. Ladies and gentlemen, the excuses have to - 12- 2-99 123 1 stop at a certain point. 2 Now the point has been made that these defendants 3 are charged with crimes. Crimes are serious. This is not 4 just a civil case. No one will dispute that with you. The 5 government, least of all. We understand the significance of 6 charging the crime. Ladies and gentlemen, take a look at 7 what the counts in this case are. They are conservative 8 charges. This is not somebody running amuck. What are they 9 charged with? They're charged with making false statements. 10 How can anybody quibble with that in light of this document? 11 They're charged with making false statements in the matter 12 of the jurisdiction of the FAA. They're charged with 13 agreeing to make false statements and for SabreTech, the 14 corporation, it is additionally charged with willful 15 violation of hazardous materials regulations, and with 16 willfully causing the delivery of property in violation of 17 hazardous materials regulations to an aircraft in air 18 commerce. And finally, they are charged with placing 19 destructive devices, that is, oxygen generators willfully on 20 an airplane, thereby making it hazardous to use. 21 Those are conservative charges, ladies and 22 gentlemen, and they fit the facts here. You know something? 23 Those charges exist and are provable, even if there had 24 never been a crash. It's a crime to make a false statement 25 on a matter within the jurisdiction of the FAA, even if the - 12- 2-99 124 1 airplane doesn't crash. It's a crime to put a destructive, 2 willfully put a destructive device on an aircraft in the 3 language of this statute, even if the airplane doesn't 4 crash. 5 Now here the crash and the fire are relevant for 6 your consideration, because they show the materiality of the 7 false statement that was made. The shipping cap on the 8 oxygen generators was an important thing, and we know that 9 because of what happened. It also shows it because the last 10 count charges that it made the aircraft hazardous and 11 unworkable to use, and let me get the language right, and 12 that these acts were likely to endanger the safety of the 13 aircraft. And because of what happened to the aircraft, you 14 know that that's true. But the creation of the risk itself, 15 is sufficient for the crime. 16 The motivation for SabreTech, it was money. You 17 saw the letter from Steve Towns. There was pressure. Now 18 Ms. Moscowitz said there wasn't so much pressure. The 19 aircraft didn't even go out until May 9, so what was the big 20 deal of pressure on May 4 and 5 when Eugene Florence was 21 working on it. Ladies and gentlemen, all of these records 22 from 802 are now in evidence. I know it's a tedious exercise 23 because these particular records are not marked, but if you 24 go through those records and you look at the time period and 25 find out what was happening with 802 between May 4 and May - 12- 2-99 125 1 9, 1996, you'll see it had problems. They were working on 2 the problems. Mid cargo and right server door, and door 3 warning lights stay on. They had to fix that. That was May 4 5th. I'm not going to read them all. May 6, control wheel 5 hangs in left turn with spoilers deployed. So they had to 6 fix that. Another one on May 6, they were busy those days, 7 they were trying to get the aircraft out. May 8, inspection 8 date. That's when they are finally getting to inspect the 9 airplane, trying to get it out the door. Then finally, May 10 9, overnight inspection. Between May 4 when Eugene Florence 11 signed that work card, and May 5 when he was doing the drop 12 test and removing the safety caps, which he did not then go 13 and put on the old generators, between then and May 9th when 14 the airplane went out, SabreTech was hustling, trying to get 15 that airplane out and it was in their financial interest to 16 do so. 17 Mauro Valenzuela. The government hasn't shown 18 anything on Mauro Valenzuela. Ladies and gentlemen, that's 19 not correct. The government has shown on Mauro Valenzuela, 20 number one, he signed the work card for 803. It says it's 21 03. He signed both the non-routine work card, and the 22 routine work card. The government has shown that. It was 23 untrue item B that same sentence if generator has not been 24 expended install cap on firing pin, he knew it was untrue. 25 How do we know that? Because Tommy Silvers said that the - 12- 2-99 126 1 day after they spent that time in the airplane, then 2 Mr. Serrano told them to work on old oxygen generators 3 putting green tags on them. They did and Tommy Silvers told 4 you, those generators had no shipping caps on them. Mauro 5 Valenzuela was right there with them. They both were 6 working with the generators. They had no shipping caps. 7 Mauro Valenzuela knew that. 8 Nobody was trying to deceive ValuJet. After all, 9 ValuJet was walking all around. Ladies and gentlemen, were 10 they trying to deceive ValuJet and, in fact, did deceive 11 ValuJet was in this work card. And they deceived them by 12 checking off item B. Now, I'm not saying that this was the 13 big goal of their lives. Hey, let's fool ValuJet. They 14 just wanted to get the work done, and this was something 15 that needed to be done. It needed to be whipped out of the 16 way with that signature. So they signed it. Mr. Florence 17 signed it, Mr. Valenzuela signed it, and off that paperwork 18 went, and ValuJet was deceived. Al Ramos told you that. He 19 told you, he checked, he's meticulous, he's careful. He 20 checked to see that every item had been indicated, it was 21 one empty. The paperwork was done. The company was 22 deceived because the paperwork was done, they were led to 23 believe that the work had been done. The fact that people 24 were walking around on the floor, doesn't mean that those 25 people are thereby on notice of everything that's in all of - 12- 2-99 127 1 these books and all those certifications. That's why 2 there's paperwork. That's why we have all of this elaborate 3 documents. Because this is not the kind of job that you 4 just do casually, that you just walk-in one day and say, hey 5 guys let's fix an airplane. Okay, let's fix that airplane. 6 Is it fixed? It's fixed. Great. See you around. That's 7 not how it's done. It's done through a very deliberate 8 process of documentation. A process that was thwarted in 9 this case because of SabreTech's approach to this paperwork. 10 The lanyards. Oh, SabreTech and those workers 11 were so careful they went out of their way to put those 12 lanyards on. That shows how safety concerned they were. 13 Ladies and gentlemen, they were working on the lanyards. 14 Guess what? They were required to work on the lanyards by 15 the work card. Maybe at SabreTech it was amazing that 16 somebody actually followed the work card, but the reality 17 is, they did follow the work card. There was nothing of 18 special virtue to them in securing these lanyards. 19 This is page two of work card 0069. Item one on 20 page one is for removal installation procedure. One, remove 21 generators, and then one goes all the way through page one 22 and over to page two and step G in item one for the removal 23 of oxygen generators is, coil firing pin lanyards and secure 24 to generator body. So what's the big deal that they were 25 going out of their way to do these lanyards as their safety - 12- 2-99 128 1 precaution? They were doing what they were required to do 2 in the work card. This was not some extraordinary measure 3 that they were undertaking. 4 The notion that this was a safety measure is just 5 refuted by the evidence. Mr. Brennan would not agree with 6 that proposition. Counsel sought to get him to agree to it 7 and he wouldn't. Counsel presents it to you as their 8 argument. Well, they can make that argument. Now, it's 9 true, ladies and gentlemen, if you can keep that hammer from 10 falling, that helps. It's also true, ladies and gentlemen, 11 that if you never put the generator on the airplane, that 12 would help too. But those are not really the safety 13 measures. The safety measure is the shipping cap. The cap 14 is what prevents the generator from initiating. Dealing 15 with those lanyards, just wasn't good enough. 16 And you know, ladies and gentlemen, that's not 17 what good faith is about. You're going to hear an 18 instruction from the Court about good faith and how good 19 faith in certain circumstances can be a defense. But 20 remember what this case is. This is a false statement case. 21 Good faith in a mechanic thinking mistakenly that wrapping a 22 lanyard around a generator is enough to make it safe, that 23 might address a situation where that mechanic was charged 24 with the crime of not putting a shipping cap on. But that 25 is not what the crime here is. The crime is making a false - 12- 2-99 129 1 statement. Saying something that was untrue. No amount of 2 your personal belief about lanyards, turns this untruth into 3 a truth. It doesn't matter what you think about lanyards. 4 You can't say that it's true, that you installed shipping 5 caps on the oxygen generator. That's not good faith. It 6 gets to an issue that is really central to understanding and 7 analyzing some of the points that the defense made, which is 8 they are talking about their intent, and they didn't have 9 bad intent, and they didn't have bad purpose, but what 10 they're really talking about, ladies and gentlemen, is not 11 intent, but motive. And intent and motive are two different 12 things. They shouldn't be confused because what you have to 13 focus on is intent. Intent means, knowing what you're 14 doing, foreseeing the result and being willing for that 15 result to occur. Your motive is not relevant it that. 16 Motive is what prompts a person to act, while intent refers 17 to the state of mind with which the act is done. 18 If somebody embezzles money from a business say 19 $1,000, two people embezzled money. They both embezzle 20 $1,000, and one does it to pay for an operation for his 21 mother, and the other does it to pay for a weekend out on 22 the town in New York City. They have different motives for 23 committing that act. One of them has what you may consider 24 a good motive, and the other does not have a good motive. 25 But their intent is the same. Because they are both - 12- 2-99 130 1 embezzling the money, understanding that it's not theirs, 2 intending to keep it, intending to take it away from 3 somebody else. That is intent, and it is not, in legal 4 terms, it's not relevant to their intent that one of them 5 did it for a good motive and the other did it for a bad 6 motive. Because, ladies and gentlemen, you are going to be 7 given a hard task, which is to deliberate in this case. You 8 are here to determine the facts. You are not here to judge 9 who is a good person and who is a bad person. And who had 10 good motivation and who had bad motivation. 11 You heard from one of the defense counsel that her 12 client was a good person. Ladies and gentlemen, I don't 13 want to say this in a way that sounds callus, but that's not 14 relevant to your determination because the law looks at 15 people equally. It looks at their acts and it looks at 16 their mental states with which they committed acts. That is 17 the only fair way in which factual determinations can be 18 made. 19 Judgments on motive and how that fits in with what 20 should happen to somebody, those are for the Court. You've 21 got to do your job and you've got to trust that the Court 22 will do it's. And you're going to hear an instruction in 23 this regard. You're going to hear an instruction that the 24 question of punishment should never be considered by the 25 jury in any way in deciding the case. If a defendant is - 12- 2-99 131 1 convicted, the matter of punishment is for the Judge alone 2 to determine later. We are counting on you, ladies and 3 gentlemen, to judge the facts. And as I said yesterday to 4 judge them in an atmosphere devoid of emotion. Again, not 5 because emotion is bad, but because it is so natural and it 6 can be an unfair factor in these determinations. We know 7 you want to be fair. Please, stick to the facts and to the 8 logic of the situation. 9 Back to the lanyards because it's a little mind 10 boggling this idea that, hey, it worked pretty well. It did 11 not work well enough. Three out of four times, isn't good 12 enough. The fact that some of the generators didn't have 13 indented caps, that's just not good enough. Hey, you know 14 those oxygen generators that we shipped onto that airplane, 15 quite a few of them didn't have their hammers fall. Well 16 isn't that great? Ladies and gentlemen, it wasn't good 17 enough. 18 Remember the testimony, both of Mr. Brennan and of 19 Mr. Fogg. Oxygen generators can initiate without the hammer 20 falling. Once they get hot enough. And, ladies and 21 gentlemen, you heard from Mr. Fogg his analysis of that 22 wreckage, and you are just as able as anyone to reach the 23 conclusion that that's exactly what happened in that cargo 24 hold in that day. That there was a fire. Oxygen generators 25 just from heat go off, pure oxygen is produced. Remember - 12- 2-99 132 1 that warning that we just read in that work card that 2 Mr. Florence signed? Oxygen plus fire, bad combination. 3 Now, you heard argument that the government has 4 not proved beyond a reasonable doubt what the cause of the 5 fire was. Ladies and gentlemen, listen carefully to the -- 6 Judge's instructions. The government is not required to 7 prove beyond a reasonable doubt that the oxygen generators 8 caused the fire. For one thing, whether the oxygen 9 generators caused the fire or not, they surely contributed 10 to the fire. The presence of mechanisms for delivering pure 11 oxygen into that cargo hold and the presence of a fire, no 12 matter how it was created, was part of the recipe for 13 catastrophe in that aircraft. 14 Now, we heard testimony concerning that. We had 15 testimony from passengers on flight 591, and we had argument 16 yesterday from Ms. Moscowitz focusing on electrical problems 17 on aircraft 904. Ladies and gentlemen, I am not here to 18 make apologies or carry water from ValuJet. I don't want to 19 be flying in an airplane that has got duct tape holding a 20 seat together. But the reality is, there was no evidence of 21 an electrical fire in that aircraft. With regard to the 22 electrical problems that are reflected in this exhibit which 23 the defense put in, please don't just take the position, 24 hey, there were lots of electrical problems. Therefore, the 25 fire must have been caused by electricity. When you look - 12- 2-99 133 1 through this exhibit in detail, you will see that it will 2 show an electrical problem, a maintenance effort. Sometimes 3 the maintenance effort worked the first time. Sometimes it 4 took several times. But many of the issues that are 5 recounted in this document were ultimately resolved, and 6 were resolved before May 11 of 1996. 7 For instance, the left alternating current A C bus 8 circuit breaker had persistent problems as reflected in this 9 document, defendant's exhibit 6. But the problems were 10 confined to the time period, February 15 to March 17, 1996, 11 when the unit was reset by a mechanic, serviced, and then on 12 March 17, 1996 removed and replaced left A B and C circuit 13 breakers. The problem was solved at that point. There was 14 no recurrence of it. 15 You heard that six times, there were auto pilot 16 problems, five in the last week of ValuJet 904's existence. 17 The problem was auto pilot porpoising in level flight. They 18 checked it, but it recurred. But finally, on May 10, 1996, 19 they repaired and replaced the auto pilot pitch computer. I 20 don't hold myself out as a mechanic in any way, but these 21 documents when you look at them, reflect problems and 22 corrective action, and the reality is that, there is no 23 evidence of electrical problems causing the fire on ValuJet 24 flight 592. Even the issue that was alluded to by 25 Ms. Moscowitz where Mr. Fogg was asked, "Well, isn't it true - 12- 2-99 134 1 on the CVR they said we are losing a bus"? Mr. Fogg 2 responded that it was within seconds of that remark on the 3 CVR, that there are cries of fire heard from the passenger 4 cabin. Those seconds are not enough for a problem, an 5 electrical problem perceived by the pilots which would be 6 perceived as it was occurring because of the their 7 instrumentation, to result in a fire that would in seconds 8 could have penetrated the passenger cabin that way. 9 The haz-mat table is hardly a user-friendly 10 document. Ladies and gentlemen, again this was an aircraft 11 maintenance facility. It was full of mechanics. To you and 12 to me perhaps, none of these are user-friendly documents. 13 This was their daily routine. This is what they worked 14 with. They worked with oxygen. Not just for oxygen 15 generators, they worked for oxygen systems in aircraft 16 continuously. 17 Let me talk for a few moments about Mr. Dunlap and 18 his argument with regard to Danny Gonzalez. In Mr. Dunlap's 19 argument, the great villain of the piece is Chris DiStefano. 20 You know, ladies and gentlemen, you can't have it both ways. 21 You can't have Chris DiStefano being the master liar and 22 also the big fumbler, who couldn't even square his story 23 with Michael Quan. Mr. Dunlap is right. Credibility is a 24 classic issue for the jury, and you must make your own 25 determination. Chris DiStefano came in here. He was an - 12- 2-99 135 1 extraordinary inarticulate person in terms of speaking and 2 speaking quickly. He came in here and he was responsive to 3 questions. He answered. He did not embellish. If he was 4 such a big liar, if he was such a good liar, don't you think 5 he would have said, "Yeah, I saw Danny Gonzalez sign the 6 paper." Why would he balk at that if he was such a good 7 liar? The reality is, ladies and gentlemen, of all of the 8 bosses and the managers that we heard about at SabreTech, he 9 was the only one we heard of who was trying to improve the 10 system, who was concerned about the paperwork flow, who was 11 trying to limit access to it, trying to keep paperwork from 12 getting out of control. The very thing that Mr. Drechsler 13 was complaining about. It was David Wiles who was blowing 14 off mechanics, who didn't have shipping caps. It was Chris 15 DiStefano who was trying to improve the paperwork system 16 there. Danny Gonzalez cut him down because of it. 17 Mr. DiStefano made mistakes, he made bad mistakes. 18 Taking that turn over log was a terrible mistake. He was, 19 at best, an inattentive and at worst, worst than that in the 20 grand jury when he was asked whether he had any arrests. But 21 the reality is, he did tell the government about his 22 arrests. He had use immunity, so did very many other of the 23 mechanics from SabreTech. 24 The notion that his story is inconsistent with 25 Michael Quan, first of all, ladies and gentlemen, one of - 12- 2-99 136 1 them testified, I forget which one. They weren't both asked 2 this, but one was, I think it was Mr. DiStefano, testified 3 that he had not with consulted with Mr. Quan. They had not 4 squared their stories together. They had talked about this 5 instance when it happened, but not recently. Two people 6 remembering the same incident, remember different things. 7 But were they inconsistent? No, they weren't inconsistent. 8 Because Michael Quan acknowledged that when Danny Gonzalez 9 came back into the work group, Michael Quan didn't remember 10 if he had anything else in his hands. He didn't say, no he 11 didn't have anything in his hands. He said no, I don't 12 remember. Even the fuel bio-bor card which Mr. Quan 13 remembered, he qualified it. He said, it wasn't a firm 14 recollection. His recollection of seeing Danny Gonzalez 15 coming into the work booth, take a card off the wall and 16 sign it in his presence, is not inconsistent with what Chris 17 DiStefano remembers, which was that Mr. Gonzalez had taken 18 work cards out of the booth, had handed some out to 19 mechanics, Michael Quan remembered Danny Gonzalez handing 20 papers out to mechanics, and that he had come back in, and 21 he had this one work card that was already signed, and put 22 it on the desk and said, see this C-Check will be done in no 23 time. 24 Chris DiStefano was the supervisor on that job. He 25 testified that it was his plan to put it in to operation, to - 12- 2-99 137 1 lay out the paperwork when the work was to be done. 2 We had lots of testimony and lots of argument 3 about whether it was done during pre-dock or not done during 4 pre-dock. Bill Drechsler did not say that job was only done 5 during pre-dock. 6 Even Manny Quintana who said that would have been 7 his practice acknowledged that that work on the ice function 8 system, could also be done indoors. Chris DiStefano was the 9 supervisor on that project. The job could not have been 10 done in the time that that incident took on that morning. 11 We had testimony on that, not only from DiStefano, but also 12 from Drechsler. Indeed, DiStefano's estimate of the time 13 that it would take, was even shorter than Drechsler's. He 14 wasn't puffing and exaggerating. You may think he is, he is 15 a bit spacey, but that is not the same as concluding that he 16 lied. 17 Finally, we have the issue of Danny Gonzalez's 18 role apart from that work card, because the indictment, 19 ladies and gentlemen, states it this way. "It was part of 20 the manner and means of the conspiracy that Daniel Gonzalez 21 would and did oversee SabreTech's maintenance and repair 22 work including it's documentation so as to rush and compress 23 it, even if this meant skipping prescribed work steps and 24 falsely asserting that the work had been done." 25 Ladies and gentlemen, that's exactly what was - 12- 2-99 138 1 proved. That day in December in his fight with Chris 2 DiStefano, not only did he bring back that work card for 3 work which had not been done, but also he broadcast to 4 everybody on that hangar floor not just to Chris DiStefano, 5 but everybody, because of how loud, and I don't want to say 6 brutal, but raw that argument was that the price for 7 fooling around with the system and trying to rearrange that 8 work flow is the ire of Danny Gonzalez. Remember what 9 Chris DiStefano said before that plan was put into place? 10 There had been a meeting. He had gone to a management 11 meeting with Jaime Galindo, Danny Gonzalez was there, Bill 12 Heral and he had laid out this plan and explained the 13 reasons for it, and it was to improve the paperwork system. 14 He got congratulations. Days later when he tried to put it 15 into place, he was undercut by Danny Gonzalez. 16 The incident in the booth. Danny Gonzalez's words 17 standing up, saying, "no, we have to get this paperwork done 18 now." Let me make sure again, that I get those exact words. 19 Now I've lost my quote. Danny Gonzalez stood up and said, 20 "we need this paperwork signed now." Ladies and gentlemen, 21 Danny Gonzalez was not a little nobody. He wasn't a 22 mechanic standing there whining. He was the boss. When the 23 boss is there breathing down your neck, we need this done 24 now, that is a statement that this jury is free to draw an 25 inference from. The government submits that it's a very - 12- 2-99 139 1 obvious inference. He wanted the paperwork signed now. 2 Remember what this was in response to. It was in response 3 to a subordinate saying, I want to take time to read this 4 and Danny Gonzalez says, we need it signed now. Taber 5 wouldn't do it, but somebody else would. 6 THE COURT: You have about five minutes 7 Ms. Miller. 8 MS. MILLER: Thank you, Your Honor. 9 Was Chris DiStefano evasive in the grand jury? He 10 was shown documents. They were from the wrong airplane, the 11 wrong airline. He was shown ValuJet documents. Later on, 12 when he was shown Aserca documents, he identified the work 13 card. In the grand jury, he knew how long it was, he said it 14 was ten pages. That card is nine pages long, ladies and 15 gentlemen. 16 Finally, let me say a few words about Eugene 17 Florence. The false statement has to be material, yes but 18 the materiality isn't what exists in the defendant's mind. 19 It's an objective fact. You are going to hear from the 20 Court the instruction on materiality. That Eugene Florence 21 might have harbored a focus on the lanyard, does not make 22 his false statement true. 23 He thought that the generators were going to be 24 thrown away. He had no reason to understand that there was 25 going to be any shipment involved. Ladies and gentlemen, - 12- 2-99 140 1 why is the generators being thrown away inconsistent with 2 their being shipped someplace? If his big concern was to 3 protect himself and the fellow workers, why didn't that end 4 once those things were in the boxes? Wasn't he concerned 5 about the people in shipping and handling? Now we have got 6 closed box. Now, we got people holding a box they don't 7 even know what's in it. He wasn't concerned about them. 8 Furthermore, ladies and gentlemen, what does the 9 work card say? Install shipping cap on firing pin. It's 10 called a shipping cap. The card alone is enough to alert 11 somebody to the prospect of shipping. 12 Ladies and gentlemen, we have come to the end of 13 what has been a compressed trial, where you have been asked 14 to assimilate a lot of information. As I said at the 15 beginning, it's a case about lies. Your verdict as 16 Mr. Dunlap said, is one that speaks the truth. These 17 defendants, it's hard for them to face the truth because the 18 false statements that they made are in a context that's very 19 difficult for anyone to face. 20 Ladies and gentlemen, you have a duty. You swore 21 to do it. The evidence is there. The evidence is more than 22 ample. It is more than beyond a reasonable doubt. It is 23 overwhelming as to the false statements that were made and 24 the regulations that were violated. 25 The government is confident that you will do your - 12- 2-99 141 1 duty. You will return to deliberate. You will come back 2 and tell us all what the truth is, which is that these 3 offenses were committed and proved beyond a reasonable 4 doubt, and that the just verdict is guilty. 5 Thank you. 6 THE COURT: All right. Ladies and gentlemen, 7 just hold up your hand, would any of you like a brief 8 recess? We have 30, 45 minutes more to go while I instruct 9 you on the law. Anybody want to brief recess at this 10 point? 11 (Sidebar proceedings off the record) 12 THE COURT: All right. Ladies and gentlemen, 13 step out. Don't discuss the case. 14 [The jury leaves the courtroom]. 15 THE COURT: Be seated. Mr. Moskowitz? 16 MR. MOSCOWITZ: Your Honor, on behalf of 17 SabreTech, the number of objections to Ms. Heck's closing 18 that I want to make for the Court. I'm not moving for a 19 mistrial but I want to bring the objections up, and ask for 20 the Court's instructions. 21 THE COURT: Ask me to do what? Tell the jury to 22 disregard something? 23 MR. MOSCOWITZ: Well, perhaps in, the course of 24 your instructions, Your Honor, there are certain things you 25 might -- well, I can go through, Your Honor. - 12- 2-99 142 1 THE COURT: I have to have the motion first. You 2 are not moving for a mistrial, you are moving for me to 3 instruct the jury on something. I'm about to read them 58 4 instructions so another half page won't make any 5 difference. 6 MR. MOSCOWITZ: There are a number of separate 7 objections, Your Honor. At one point when Ms. Heck was 8 talking about the generators, the fact that defendants 9 argue that they had taken care with them and made them 10 careful to make them safe. She held up the photograph of 11 the generators retrieved after the fire, and showed it to 12 the jury and made the comment regarding those generators 13 quote "even in the crash is not enough for them" referring 14 to the defendants, which I believe, Your Honor, is a very 15 prejudicial statement and it's arguing in effect 16 callousness and suggesting somehow on behalf of these 17 defendants callousness with regard to what happened in the 18 crash. 19 THE COURT: Next item. 20 MR. MOSCOWITZ: The second issue, Your Honor, 21 goes to the conspiracy instruction. Ms. Heck was referring 22 to the Court's instruction that SabreTech is going to be 23 found guilty of a conspiracy if two or more of it's 24 employees are found to be members of that conspiracy. She 25 mentioned that the conspiracy can be composed of known and - 12- 2-99 143 1 unknown conspirators, and she mentioned who the known were, 2 which are these defendants and those who have been 3 identified by the government, but then went on to suggest 4 that the jury could find SabreTech responsible in a 5 conspiracy for unknown conspirators. 6 Now the way it was phrased, that's, I believe, a 7 very confusing issue, was inviting the jury to speculate 8 that there are unknown persons who could have been members 9 of this conspiracy. There is no evidence or no allegations 10 of unknown persons being members of this conspiracy. When 11 a conspiracy where you inform the jury that is made of 12 known and unknown, means there's evidence, in fact, of 13 other specific persons and, perhaps, we just don't know 14 their names. But to suggest that they can find unknown 15 persons in the conspiracy, is asking that phrase "unknown" 16 to be used in the means of speculating who those persons 17 are. I would ask that the Court in it's instruction on 18 conspiracy makes reference to known and unknown, so that we 19 emphasize that the conspirators can be unknown by identity, 20 but there must be evidence that there are such unknown 21 persons. 22 Next, Your Honor, with regard to the definition of 23 materiality, Ms. Miller made the argument that the issue of 24 the shipping caps are material in this case because of the 25 crash, because of the absence of the shipping caps somehow - 12- 2-99 144 1 led to the crash. 2 THE COURT: What did she say specifically? 3 MR. MOSCOWITZ: She said that they are shown to 4 be material because of the crash. The fact that the 5 shipping caps were not on there. 6 THE COURT: You don't -- you didn't jot down her 7 words she used. 8 MR. MOSCOWITZ: What I wrote down is, the shows, 9 the crash shows that, the fact of the crash shows that they 10 were material. That's all I wrote down. 11 THE COURT: All right. 12 MR. MOSCOWITZ: Materiality, Your Honor, with 13 regard to Mr. Florence and Mr. Valenzuela, and even with 14 regard to SabreTech, materiality is a legal issue only 15 comes up in the false statement counts. As Your Honor 16 knows, the instruction, the false statement on material 17 insofar as they are material to the agency, the FAA, which 18 includes jurisdiction they occur material to the FAA. 19 The legal issue of materiality to the crash, 20 that's not a legal issue in this case, and that really is 21 an improper legal argument. They may be causal, but the 22 only materiality issue with regard to the jurisdiction of 23 the agency reviewing the false statements. I believe 24 that's a very misleading argument. I simply ask that when 25 the Court defines issue of materiality, simply emphasizing - 12- 2-99 145 1 that materiality in this case only refers to the 2 jurisdiction of the agency who was reviewing them. Not 3 with regard to the crash or the other causal issues. 4 The next issue, Your Honor, and this goes to the 5 question of arguing beyond the evidence. Ms. Miller says, 6 that the evidence shows that Mauro Valenzuela knew that 7 there was no shipping caps. We believe there is no such 8 evidence on that issue. The only evidence in the case of 9 Mauro Valenzuela, comes from Tommy Silvers who said that he 10 and Mauro Valenzuela took pains to make sure the work was 11 done. Silvers testified he saw the shipping caps. He did 12 not testify as to what Valenzuela saw. That argument is 13 without basis of the record, and I am not sure what your 14 instruction would be, but that is arguing beyond the facts. 15 The final issue is, goes with regard to the 16 evidence that the generators contributed to the fire or 17 caused the fire, which is an issue in Count XXIV. The Court 18 instruction of the elements on Count XXIV, which is the 19 destructive device is that the defendant SabreTech, one, the 20 jury can find liability. This is my final objection. 21 THE COURT: That's all right. Take your time. 22 MR. MOSCOWITZ: Your Honor, the elements of Count 23 XXIV are either that SabreTech placed or caused to be 24 placed a destructive device on the aircraft. That's one 25 way of proving it, or the second way, element is, made the - 12- 2-99 146 1 aircraft or caused the aircraft to be made unworkable, 2 unusable or hazardous to work or use. To prove that 3 element of making the aircraft or cause the aircraft to be 4 made unworkable, unusable or hazardous to be work or use, 5 seems to be there, the evidence has to show that the 6 generators caused the fire. They made the aircraft 7 unworkable and unusable. 8 THE COURT: That is what you told me she said. 9 MR. MOSCOWITZ: No, she did not say that, on that 10 issue. 11 THE COURT: I just wrote down what you said. I 12 didn't write down what she said. I thought you just said 13 to me, just thirty seconds ago, Ms. Miller in her closing 14 arguments said "the generators caused the fire." This is 15 in reference to Count XXIV. What did she say that you 16 object to? 17 MR. MOSCOWITZ: What she said, Your Honor, is 18 that the evidence shows -- she is already argued, her 19 summary of evidence is less then what is required under 20 this one leg. She said that they contributed, they are 21 part of a recipe for catastrophe. She did not make the 22 necessary argument that the evidence shows that these 23 generators are the cause of making this aircraft -- 24 THE COURT: But she didn't say that. Well, then 25 what are you objecting to? Are you objecting to what she - 12- 2-99 147 1 did not say? I can't do anything about that. 2 MR. MOSCOWITZ: Your Honor, please, let me just 3 say. What I am saying is, her own characterization of the 4 evidence with regard to this leg, is that the evidence 5 doesn't show that the generators caused the aircraft to be 6 unworkable or unusable or hazardous to work with. What I 7 am arguing, therefore, Your Honor, is based on the 8 government's own characterization of evidence, the Court 9 should strike B as a basis upon which the jury may find 10 that SabreTech committed that crime. And simply proceed 11 under A, that SabreTech, they have to show placed or caused 12 to be placed a destructive device or substance in or upon 13 the proximity of the aircraft. The government's argument 14 shows that there is not sufficient evidence to justify the 15 instruction of finding liability on the grounds that 16 SabreTech made the aircraft or caused the aircraft to be 17 made unworkable or unusable, hazardous to be worked or 18 used. 19 THE COURT: Ms. Miller, your response to the one, 20 two, three, four, five objections to your closing argument, 21 starting with the position of the defense that even the 22 crash was not enough for them. Or start with any one you 23 want to. 24 MS. MILLER: Your Honor, the government certainly 25 feels that all of the objections are not well taken. The - 12- 2-99 148 1 argument was carefully couched in terms of the facts in 2 this case. The comment about the crash was not enough for 3 them, was focused on the fact, which is evidence in this 4 case, and is exemplified by a photograph that oxygen 5 generators were discovered at the site following the crash 6 that did not have safety caps on them. The issue here is 7 the willfulness of SabreTech in not having safety caps, and 8 the argument illustrates that willfulness. 9 THE COURT: Tell me why it was necessary to say, 10 each the crash wasn't enough for them. What purpose was 11 that? 12 MS. MILLER: Because this occurred after the 13 crash. It further shows the -- 14 THE COURT: I'm sorry. What -- you are talking 15 about the -- you are linking the defendants apparently in 16 that statement, at least that your contention to this 17 horrible tragedy, and you're saying that even the crash 18 wasn't enough for them. I don't know, what is that in 19 relation to what elements you have to prove or anything 20 else? As you said to the jury, it wasn't even necessary to 21 prove there was a crash. 22 MS. MILLER: That's correct, Your Honor, but we 23 do have to show willfulness, and the facts that there were 24 so many indicia they had of the hazards of these generators 25 that they ignored, and this was one further indicia which - 12- 2-99 149 1 was also ignored. 2 THE COURT: All right. Anything else on the rest 3 of your summation on the unknown and known conspirators, 4 the caps and "the fact of the crash showed they were 5 material" and Valenzuela knew there were no safety caps and 6 that the argument about the generators causing the fire? 7 MS. MILLER: No, Your Honor, I think that the 8 objections themselves are insufficient and do not require 9 further elaboration. 10 THE COURT: Yes, ma'am? 11 MS. MOSCOWITZ: Your Honor, I want to make my 12 objection to, again, what I believe is wrong statements of 13 specific intent. There were two of them. Ms. Miller 14 started her argument by saying, does it make sense to you 15 that only the careful are subject to our laws, inviting the 16 jury to believe that being careless could be the same thing 17 as being guilty of a willful intent crime, which is the 18 only sorts of the charges against Mr. Florence, and, again, 19 stating exactly what I objected to before, that intent 20 means knowing what you are doing and voluntarily doing it. 21 These are specific -- 22 THE COURT: What is your next one please? 23 MS. MOSCOWITZ: That's it. 24 THE COURT: Any others? 25 All right. The Court will grant the motion which - 12- 2-99 150 1 is to instruct the jury to disregard the statement "even the 2 crash is not enough for them." Secondly, with respect to 3 the other motions, they are motions to modify the 4 instructions which we have worked on, all of us for many 5 hours, and is contained in, whatever it is here, 53 pages of 6 instructions. The Court makes the following findings, that 7 the general conspiracy instruction that I will give the jury 8 is sufficient to adequately make clear to the jury that the 9 government has to prove that there are two people that were 10 involved if this thing that worked for SabreTech that they 11 must prove beyond exclusion of a reasonable doubt, there 12 were two people in order for the liability to attach. But I 13 think that the instruction as drafted covers it. And we 14 will not modify it further. 15 With respect to the objection to the statement or 16 words to the effect that the fact of the crash showed that 17 the safety caps were material, that objection is overruled 18 for any modification of any instructions or further 19 elaboration to the jury. 20 With respect to the objection to the statement 21 allegedly made by Ms. Miller that Valenzuela knew there were 22 no safety caps, the objection is that that argues beyond the 23 facts. The jury is just going to have to recollect these 24 six hours of argument and sort out the facts as best they 25 can. I'm not going to go back and comment on anybody's - 12- 2-99 151 1 closing arguments and say any lawyer went beyond the fact 2 unless that is abundantly clear that that happened. I 3 cannot make that determination. I did not make that finding 4 with respect to this objection. It is, therefore, 5 overruled. 6 The objection to the fact that Ms. Miller did not 7 say that the generators caused the fire with reference to 8 Count XXIV, that objection is overruled and the motion is 9 denied. Bring in the jury. 10 [The jury returns to the courtroom]. 11 JURY INSTRUCTIONS 12 THE COURT: Thank you, be seated, ladies and 13 gentlemen, when we complete these instructions, you will be 14 given two copies to take with you into the jury room, so do 15 not feel compelled, although if you wish to do so you may. 16 Do not feel compelled to make notes. You will have two 17 copies of all the instructions with you in the jury room. 18 It's now my duty to instruct you on the rules of 19 law that you must follow in reaching your verdict in this 20 case. When I finish you will go into the jury room and 21 begin your discussions, your deliberation. It will be your 22 duty to decide whether the government has proven beyond a 23 reasonable doubt the specific facts necessary to find the 24 charged defendants guilty of the crimes charged in the 25 indictment. - 12- 2-99 152 1 You must make that decision only on the basis of 2 the testimony and other evidence that you have heard during 3 this trial and not be influenced in any way by either 4 sympathy or prejudice for or against the defendants or the 5 government. 6 You must also follow the law as I explain it to 7 you whether you agree with that law or not; and you must 8 follow all of my instructions as a whole. You may not 9 single out or disregard any of the Court's instructions to 10 you on the law. The indictment or formal charge against any 11 defendant is not evidence of guilt. Indeed every defendant 12 is presumed be law to be innocent. The law does not require 13 a defendant to prove his innocence or to produce any 14 evidence at all. The government has the burden of proving a 15 defendant guilty beyond a reasonable doubt, and if it fails 16 to do so, you must find that defendant not guilty. 17 Thus while the government's burden of proof is a 18 strict or heavy burden, it is not necessary that the 19 defendants' guilt be proven beyond all possible doubt. It 20 is only required that the government's proof exclude any 21 reasonable doubt concerning the defendants' guilt. 22 A reasonable doubt is a real doubt based upon 23 reason and common sense after a careful and impartial 24 consideration of all the evidence in the case. Proof beyond 25 a reasonable doubt therefore is proof of such convincing - 12- 2-99 153 1 character that you would be willing to rely and act upon it 2 without hesitation in the most important of the your own 3 affairs. If you are convinced that a defendant has been 4 proven guilty beyond a reasonable doubt, say so. If you are 5 not convinced, say so. 6 As I stated earlier, you must consider only the 7 evidence that I have admitted into the case. The term 8 evidence includes the testimony of the witnesses and the 9 exhibits admitted into the record. Anything that the 10 lawyers say to you in argument or during their statements or 11 objections throughout the trial is not evidence. 12 It is your own recollection and interpretation of 13 the evidence that controls. What the lawyers say is not 14 binding upon you. Also do not assume from anything that I 15 may have said during the trial of this case that I have any 16 opinion concerning the facts of this case. Except for the 17 instructions I'm giving to you on the law, you should 18 disregard anything I may have said that would indicate any 19 believe or feeling about any fact in this case. You folks 20 are the sole judges of the facts and the credibility of the 21 witnesses. 22 In considering the evidence may make deductions or 23 reach conclusions which reason and common sense lead you to 24 make, and not be concerned about whether the evidence is 25 direct or circumstantial. Direct evidence is testimony of - 12- 2-99 154 1 one who asserts actual knowledge of a fact such as an 2 eyewitness. Circumstantial evidence is proof of a chain of 3 facts and circumstances tending to prove or disprove any 4 fact in dispute. The law makes no distinction between the 5 weight you give to either direct or circumstantial evidence. 6 In saying you must consider all the evidence, I 7 don't mean you must accept all the evidence as true or 8 accurate. You should decide whether you believe what each 9 witness had to say and how important that testimony was in 10 making that decision you may believe or disbelieve any 11 witness in whole or in part. The number of witnesses 12 testifying concerning any particular fact in dispute is not 13 controlling. In deciding whether you believe or do not 14 believe any witnesses I suggest you ask yourself a few 15 questions. Did the witness impress you as one who was 16 telling the truth? Did the witness have any particular 17 reason not to tell the truth? Did the witness have personal 18 interest in the outcome of the case? Did the witness have a 19 good memory? Did the witness have the opportunity and 20 ability to observe accurately the things he or she testified 21 about? Did the witness appear to understand the questions 22 and answer them clearly and directly? Did the witness's 23 testimony differ from other testimony of other witnesses on 24 the same matter? 25 You should also ask yourself whether there's - 12- 2-99 155 1 evidence tending to prove that the witness testified falsely 2 concerning some important fact; or whether there was 3 evidence that at some other time the witnesses said or did 4 something or failed to say or do something different than 5 the testimony the witness gave before you during the trial. 6 Keep in mind, of course, that a simple mistake by a witness 7 does not necessarily mean the witness was not telling the 8 truth as he or she remembers it, because people naturally 9 tend to forget some things and remember other things 10 inaccurately. So, if a witness has made a misstatement, 11 you need to consider whether it was simply an innocent lapse 12 of memory or an intentional falsehood, and the significance 13 of that may depend on whether it has to do with an important 14 fact or with only an unimportant detail. 15 The testimony of some witnesses must be considered 16 with more caution than the testimony of other witnesses. 17 For example, a paid informer, or a witness who has been 18 promised that he or she will not be charged or prosecuted or 19 a witness who hopes to gain some more favorable treatment in 20 his or her own case may have a reason to make a false 21 statement because he wants to strike a good bargain with the 22 government. So, while a witness of that kind may be 23 entirely truthful in testifying, you should consider that 24 testimony with more caution than the testimony of other 25 witnesses. - 12- 2-99 156 1 The knowledge of a technical subject matter might 2 be helpful to the jury. You remember the happiness 3 thermometer, you know when there's a fact that they are 4 talking about that's a fact. When you get into opinions 5 now, the technical subject matter somebody is going to tell 6 you about a chemical formula or something like that, then a 7 person who has special training or expertise in a technical 8 field is permitted to state an opinion about a technical 9 matter. Merely because such a witness expresses an opinion, 10 however, does not mean you must accept the opinion. Same as 11 with any other witness, it's up to you to decide whether you 12 rely upon it or do not rely upon it. 13 The parties have agreed to certain facts that have 14 been stated to you as what we call stipulations. I've 15 already explained that you should treat those facts as 16 proven. You don't need to have the person come in here and 17 tell you about it. If they have stipulated to that fact, 18 you can accept it and you should accept it. 19 We talked to you about taking notes in the trial. 20 Some of you have taken some notes as it goes along. You 21 will have your notes available during your deliberations, 22 but should make use of them only as an aid to your memory. 23 In other words, you should not give your notes any 24 precedence over your independent recollection of the 25 evidence or the lack of evidence and neither should be - 12- 2-99 157 1 unduly influenced by the notes of other jurors. I emphasize 2 that notes are not entitled to any greater weight than the 3 memory of each juror of what the testimony was. 4 At all times material to the indictment, the 5 department of transportation is and was an executive 6 department of the United States Government. 7 At all times material to the indictment the United 8 States Congress enacted laws to provide and promote the 9 safety of flight of civil aircraft in air commerce and to 10 create rules, regulations and minimum standards in the 11 interest of safety. Congress empowered and directed the 12 secretary of transportation to carry out these duties. The 13 Federal Aviation Administration was an agency of the United 14 States within the department of transportation whose mission 15 was to promote safe flight of civil aircraft in air commerce 16 including by prescribing and enforcing minimum safety 17 standards for and oversight of enterprise and individuals 18 engaged in business of repairing and maintaining commercial 19 aircraft; and at all times material to the indictment, the 20 Federal Aviation Administration was empowered to issue 21 repair station certificates to qualifying business entities, 22 and mechanic certificates to qualifying individuals. 23 Certificated domestic repair stations were 24 required to maintain adequate records of their work, naming 25 the certificated mechanic or repair person who performed or - 12- 2-99 158 1 supervised the work, and at all times material to the 2 indictment, the Federal Aviation Administration had the 3 right and duty to inspect repair stations and repair station 4 records to assess and determine repair station compliance 5 with standards for aircraft maintenance and repair 6 operations. 7 At all times material to the indictment, among the 8 duties and responsibilities of the department of 9 transportation was the oversight for and regulation of the 10 transportation of hazardous materials, including prescribing 11 and enforcing standards for the documentation of records of 12 transportation of hazardous materials. The secretary of 13 transportation could authorize an officer, employee or agent 14 to inspect records related to the transportation of 15 hazardous materials in commerce. Congress provided for the 16 department of transportation to regulate and enforce the 17 permitted means by which hazardous materials may be 18 transported in commerce so as to provide adequate protection 19 against the risks of life and property inherent in such 20 transport. 21 I'm now going to explain to the indictment in this 22 case and you will have copies of the indictment. They are 23 in the jury room and you can refer to it. There are 24 24 counts and it's lengthy. You will have that with you to 25 look at if you wish. In summary, though Counts 1 through 6 - 12- 2-99 159 1 of the indictment charge offenses relating to false 2 statements in documents including aviation maintenance 3 records. Count 1 charges that SabreTech, Daniel Gonzalez 4 and Eugene Florence, knowingly and willfully conspired 5 together to commit offenses against the United States. That 6 is to make and cause to be made materially false and 7 fraudulent statements and representations in matters within 8 the jurisdiction of the United States, namely documents 9 including aviation maintenance records. 10 Counts 2 through 6 charge the commission of what 11 are referred to as substantive offenses, namely that the 12 charged defendants made false statements with respect to 13 aviation records specified in each count. Shortly, I will 14 explain the law governing these substantive offenses, but 15 you will note that the defendants are not charged in Count 1 16 with committing a substantive offense; rather they are 17 charged with having conspired to do so. 18 Counts 7 through 23 of the indictment charge 19 various crimes relating to violations of the Federal 20 hazardous materials regulations. SabreTech is charged with 21 the violation of Title 49 U.S.C. Section 5124, in the odd 22 numbered Counts 7 through 23. That is specifically 7, 9, 23 11, 13, 15, 17, 19, 21, 23. SabreTech is also charged with 24 a different violation of Title 29, Title 49, U.S.C. Section 25 46312 in the even numbered counts from VIII to XXII. These - 12- 2-99 160 1 Counts are 8, 10, 12, 14, 16, 18, 20 and 22. I will explain 2 these hazardous materials provisions to you shortly. 3 Finally, Count 24 of the indictment charges the 4 defendant SabreTech with willful placement of a destructive 5 device on or in the proximity of an aircraft in violation 6 of Title 18, U.S.C. Section 32. 7 As indicated Counts 1 through 6 of the indictment 8 charge offenses dealing with false statement in aviation 9 maintenance records specifically, Count 1 charges 10 conspiracy to violate Title 18, Section 371, and Counts 2 11 through 6 charge violations of Title 18, U.S.C. Section 12 1001 and Section 2. 13 Now with respect to Count 1, Title 18, U.S.C. 14 Section 371 makes it a separate Federal crime or offense for 15 anyone to conspire or agree with someone else to do 16 something which if actually carried out would amount to 17 another Federal crime or offense. So under this law a 18 conspiracies and agreement or a kind of partnership in 19 criminal purpose in which each member becomes the agent or 20 partner of every other member. In order to establish a 21 conspiracy offense, it is not necessary for the government 22 to prove all the people named in the indictment were members 23 of the scheme or that those who were members had entered 24 into any formal or written type of agreement or that the 25 members planned together all the details of the scheme or - 12- 2-99 161 1 the overt acts that the indictment charges would be carried 2 out in and effort to commit the intended crime. Also, 3 because the essence of conspiracy offense is the making of 4 the agreement itself followed by the commission of any overt 5 act, it is not necessary for the government to prove the 6 conspiracy is actually succeeded in accomplishing their 7 unlawful plan. What the evidence in the case must show 8 beyond a reasonable doubt is 1) that two or more persons in 9 some way or manner came to a mutual understanding to try to 10 accomplish a common and unlawful plan as charged in the 11 indictment, 2) that the defendant, knowing the unlawful 12 purpose of the plan, willfully joined in the plan. 3) that 13 one of the conspirators during the existence of the 14 conspiracy knowingly committed at least one of the methods 15 or overt acts described in the indictment and 4) that such 16 overt act was knowingly committed at or about the time 17 alleged in an effort to carry out or accomplish some object 18 of the conspiracy. 19 And overt act is any transaction or event even 20 one which may be entirely innocent when considered alone, 21 but which is knowingly committed by a conspirator in an 22 effort to accomplish some object of the conspiracy. A 23 person may become a member of a conspiracy without knowing 24 all the details of the unlawful scheme, and without knowing 25 who all the other members are. So if a defendant has a - 12- 2-99 162 1 general understand of the unlawful purpose of the plan and 2 knowingly and willfully joined in that plan on one 3 occasion, that is sufficient to convict that defendant of a 4 conspiracy even though the defendant did not participate 5 before and even though the defendant played only a minor 6 part. 7 Of course, mere presence at the scene of and 8 a transaction or event, or the mere fact that certain 9 persons may have associated with each other, and may have 10 assembled together and discussed common aims and interests, 11 does not necessarily establish proof of a conspiracy. 12 Also, a person who has no knowledge of a conspiracy, but 13 who happens to act in a way which advances some purpose of 14 one, does not thereby become a conspirator. Finally 15 SabreTech, Inc. is alleged to be a member of the charged 16 conspiracy. You may find SabreTech guilty of that 17 conspiracy only if you if you determine beyond a reasonable 18 doubt that two or more of its employees or agents willfully 19 joined that conspiracy. 20 You are instructed that the fact that Daniel 21 Gonzalez was a supervisor in the maintenance section of 22 SabreTech's Miami repair station and may have been 23 vicariously held out as Assistant Vice President of 24 Maintenance and Director of Maintenance at SabreTech's 25 Miami repair station, does not make Mr. Gonzalez criminally - 12- 2-99 163 1 responsible for any acts of those SabreTech employees 2 directly or did directly under the supervision of 3 SabreTech's Miami station. The mere fact of a status and 4 the possession of SabreTech's Miami repair shop should not 5 be considered by you in evaluating the government's case 6 against Mr. Gonzalez thus if you find that persons other 7 than Gonzalez commit the criminal act charged in the 8 indictment it would be improper for you to infer, you must 9 not infer, that Mr. Gonzalez must have known about it 10 because he was the supervisor in the SabreTech maintenance 11 section of SabreTech's repair station and may have been 12 variously held out as Assistant V.P. of Maintenance and 13 Director of Maintenance all at the SabreTech Miami station. 14 Finally, SabreTech, Incorporated is allege to be 15 a member of the charged conspiracy. I've already told you 16 this, you may find SabreTech guilty of that only if you 17 find, beyond a reasonable doubt that two or more of it's 18 employees or agents willfully joined the conspiracy. 19 All right, now, then ladies and gentlemen, if 20 anybody needs prodding with the happiness thermometer or are 21 you all awake still? Good, this is a lot of stuff. You 22 will have this when you go back to the jury room. If 23 anybody wants a recess just hold up your hands. No problem. 24 We are about a third of the way through of this book. 25 Counts 2 through 6 of the indictment charges - 12- 2-99 164 1 violation of Title 18, U.S.C. Section 1001. That provision 2 makes it a Federal crime or offense for anyone to willfully 3 make a false or fraudulent statement to department or agency 4 of the United States. A defendant can be found guilty of 5 this offense only if all the following facts are proven 6 beyond a reasonable doubt. 1) that the defendant knowingly 7 made a false statement or made or used a false document in 8 relation to a matter within the jurisdiction of a department 9 or an agency of the United States as charged; 2), that the 10 false statement or document related to a material matter; 3) 11 that the defendant act willfully and with knowledge of the 12 falsity. A statement or document is false when made or used 13 if it is untrue, and it is then known to be untrue by the 14 person making it. It is not necessary, however, to show 15 that the government agency was, in fact, deceived or misled. 16 Both the department of transportation and the FAA are 17 agencies of the United States and the completion of aviation 18 maintenance records to record work relating to an aircraft 19 or aircraft parts, such as those charged in counts 2 through 20 6 is a matter within the jurisdiction of those agencies, 21 department of transportation and Federal Aviation 22 Administration. The making of false statement or the use of 23 a false document is not an offense unless a falsity related 24 to a material fact. A misrepresentation is material if it 25 has a natural tendency to effect or influence or is capable - 12- 2-99 165 1 of effecting or influencing the exercise of a governmental 2 function. 3 The test of whether a false statement has the 4 capacity to impair or pervert the functioning of a 5 government agency, in other words, a misrepresentation is 6 material if it relates to an important fact as distinguished 7 from some unimportant or trivial detail. 8 Good faith is a complete defense in charges 1 9 through 6 of the indictment which allege that a false 10 statement was made by the defendants in regard to a matter 11 within the jurisdiction of a U. S. government department or 12 agency in violation of Section 1001 of Title 18. Good faith 13 on the part of the defendant is inconsistent with the 14 requirement of willfulness which is an essential part of 15 these charges. The burden of proof is not on the defendants 16 to prove their good faith. Of course, since the defendant 17 has no burden to prove anything, the government must 18 establish beyond a reasonable doubt that the defendant acted 19 with specific intent as charged in the indictment. 20 One who expresses an honestly held opinion or 21 honestly formed belief is not chargeable with willful intent 22 to falsify even though the opinion is erroneous or the 23 belief is mistaken and, similarly, evidence which 24 establishes only that the person made a mistake in judgment 25 or an error in management, or was careless, does not - 12- 2-99 166 1 establish a willful intent to falsity. On the other hand an 2 honest belief on the part of the defendant that his actions 3 were sound and would ultimately succeed would not in and of 4 itself constitute good faith as used in these instructions 5 if in caring out these actions, the defendant knowingly made 6 a false or fraudulent statement willfully and with knowledge 7 of the falsity. 8 It is the theory of the defense of Eugene Florence 9 that he acted in good faith in all the work that he did on 10 aircraft N802VV and N803VV, including his handling of oxygen 11 generators in carefully wrapping each lanyard around the 12 firing mechanism, around the generator body and then taping 13 the ends of the lanyard to a generator. Mr. Florence 14 contends that he acted without any bad purpose to disobey or 15 disregard the law or become a member of any conspiracy. 16 You are instruct that it is the position and 17 defense of Daniel Gonzalez, that he is not guilty of the 18 conspiracy charged in Count 1, and he is not guilty of 19 making false statements as charged in count 2. It is his 20 position that the government has failed to carry a strict 21 and heavy burden of proving the charges against him beyond 22 and to the exclusion of every reasonable doubt. It is Danny 23 Gonzalez's position, that the government witness, 24 Christopher DiStefano, falsely testified for reasons of his 25 own such as anger, resentment and to secure immunity from - 12- 2-99 167 1 prosecution for destruction of evidence from the government 2 by providing a target for prosecution other than himself. 3 It is further Daniel Gonzalez's theory of the defense that 4 he was, at all times, acting in an honest and lawful manner 5 as supervisor of SabreTech's maintenance department to 6 ensure the aircraft maintenance repair involved in an 7 aircraft maintenance repair were completed correctly and in 8 a timely manner. 9 It is Mr. Gonzalez's possession that at no time 10 did he conspire or agree with anyone to violate the law nor 11 did he, in any way, urge or direct anyone any law including 12 the making of false statements regarding a maintenance 13 repair of aircraft. 14 It is SabreTech's theory of defense that it's 15 employees and agents acted in good faith in all the work 16 they did on the two aircraft, 802VV and 803VV, including the 17 handling of oxygen generators in carefully wrapping as I've 18 told you lanyards around the firing mechanism, around the 19 generator body and taping the ends of the lanyard to the 20 generator. SabreTech contends that it's employees and 21 agency acted without any bad purpose to disobey or disregard 22 the law. 23 Concerning Count 24 and the charge in Count 24 24 that SabreTech knowingly and willfully caused a destructive 25 device or substance to be placed on a commercial aircraft, - 12- 2-99 168 1 it is SabreTech's theory of defense, that no agent or 2 employee of SabreTech, willfully placed what he knew to be a 3 destructive device on ValuJet plan, thereby endangering the 4 safety of the plane. 5 A reckless disregard of the -- we are going now 6 back -- moving from the theories of the defenses, of the 7 defense's position on to my general instructions. They all 8 get the same weight, but I'm now about to move into a 9 different area. You should consider all of these 10 instructions when you take up your decision on your verdict, 11 giving no undue weight to one over the other. 12 A reckless disregard of the truth, with a 13 conscious purpose to avoid learning the truth is sufficient 14 to show a false statement was made willingly and with 15 knowledge of its falsity. 16 Moving to Counts 7 to 23, they charge certain 17 crimes relating to violations of the Federal Hazardous 18 Material Regulations. At all times material to the 19 indictment, the hazardous materials regulations period at 49 20 CFR, Code of Federal Regulations, Parts 171 - 180, and 21 specified requirements for the safe transportation of 22 hazardous materials in commerce. 23 These regulations applied to each person who 24 performed or caused to be performed functions relating to 25 the transportation of hazardous materials, including - 12- 2-99 169 1 determination of compliance with, and basic conditions for 2 offering hazardous materials for transport, filling 3 packages, marking and labeling packages, preparing shipping 4 papers, handling, loading, securing and segregating packages 5 within a transport vehicle or cargo hold, transporting 6 hazardous materials and, generally prescribing requirements 7 for classification, packaging hazardous communication, 8 including reporting, handling and transportation of 9 hazardous materials. 10 THE COURT: With respect to Counts 7 through 23, 11 I will be providing you instructions on certain statutes 12 and regulations making reference to hazardous materials and 13 hazardous waste. At all times material to the indictment, 14 the term "hazardous material" is meant a substance or 15 material which has been determined by the secretary of 16 transportation to be capable of posing an unreasonable risk 17 to health, safety, and property when transported in 18 commerce, and has been so designated. 19 Hazardous materials were set forth in a table in 20 the code of Federal regulations at 49 CFR 172.101 by the 21 chemical name or hazardous characteristic categories such as 22 corrosive, toxic, flammable and oxidizing materials. The 23 secretary of transportation has designated sodium chlorate 24 as a hazardous material and had designated oxidizing solids 25 as a hazardous material. Oxidizer means material that may - 12- 2-99 170 1 generally, by yielding oxygen cause or enhance the 2 combustion of other materials. 3 At all times material to the indictment, the term 4 "hazardous waste" included a solid waste that exhibited the 5 characteristic of ignitibility. 6 In the indictment, you'll note that Counts 7 7 through 22, the counts are matched into pairs. The first 8 count of the pair charges the defendant SabreTech with 9 willful violation of a particular regulation in violation of 10 Title 29, U.S.C. Section 5124. The second count of the pair 11 charges in violation of Title 49, U.S.C. Section 46312, 12 based on the regulatory violation described in the first 13 count of the pair. You all are still with me right? Good. 14 I'm glad you are nodding your head. Bear with me, but you 15 can go study this later if you want to. You'll have it with 16 you. 17 Let me simplify it a little bit, the odd numbered 18 Counts 7 through 21 all charge violations of Section 5124 of 19 Title 49. The even numbered Counts 8 through 22, charge 20 violation of Section 46312 of Title 49. Count 23 also 21 charges the defendant SabreTech with a willful violation of 22 another Section Title 49, U.S.C. Section 5124. 23 Now, then the elements of these offenses. The odd 24 numbered ones, Counts 7 through 23, odd numbers, 7, 9, 11 25 and so on right through 23, charge the defendant SabreTech, - 12- 2-99 171 1 Inc. with willfully violating Section 5124. Now that 2 Section 5124 of Title 49, makes it a Federal crime for 3 anyone to willfully violate a Federal hazardous materials 4 regulation. A defendant can be found guilty of this offense 5 only if all the following facts are proven beyond a 6 reasonable doubt: 1) that the defendant violated a Federal 7 hazardous materials regulation as alleged in the indictment, 8 and that the defendant violated that regulation willfully. 9 I instruct you as a matter of law that the regulations set 10 out in the counts charging violation of Section 5124 are 11 Federal hazardous materials regulations that fall within the 12 scope of Section 514124. I will explain those regulations 13 to you shortly. 14 Now the even numbered Counts 8 through 22, 8, 10 15 12, you know, charge the defendant SabreTech with violating 16 Title 49 U.S.C. Section 46312. That provision of the law 17 makes it a Federal crime for anyone in violation of a 18 regulation relating to the transportation of hazardous 19 material to willfully deliver or cause to be delivered 20 property containing hazardous material to an operator of a 21 civil aircraft for transportation in air commerce or 22 recklessly cause the transportation in air commerce of such 23 property. 24 Specifically, as stated is in the indictment, the 25 defendant SabreTech is alleged to have violated this - 12- 2-99 172 1 statute in two different ways. That is, the indictment 2 charges the defendant violated Section 46312 of Title 49, 3 1) by willfully delivering or causing to be delivered 4 property containing hazardous material to an carrier or an 5 operator of the civil aircraft for transportation in air 6 commerce in violation of Federal regulation relating to the 7 transportation of hazardous material and 2), by recklessly 8 causing the transportation in air commerce of property 9 containing hazardous material in violation of Federal 10 regulations relating to transportation of hazardous 11 material. 12 I'm just waiting for her to catch with me. I've 13 been going a little fast. But she's very good. 14 Now in such a case, when we are talking about the 15 elements of proof now, in such a case, it's not necessary 16 for the government to prove, let me go back. This is again 17 with reference to even numbered ones, 8 through 22, In such 18 a case, it is not necessary for the government to prove that 19 the defendant SabreTech actually violated Title 49, U.S.C. 20 Section 46312 by both of these ways. It would be sufficient 21 if the government proves beyond a reasonable doubt that the 22 defendant SabreTech violated this section of the code in one 23 of these ways. That event, however, in order to return a 24 verdict of guilty, you must unanimously agree upon which of 25 these two ways the defendant SabreTech violated this section - 12- 2-99 173 1 of the code. 2 Therefore, SabreTech can be found guilty of 3 violating Title 49 of Section 46312, only if all the 4 following facts are proven beyond a reasonable doubt: 1) 5 that SabreTech either willfully delivered or caused to be 6 delivered property containing hazardous material, to an air 7 carrier or an operator of a civil aircraft for 8 transportation in air commerce as agreed to unanimously by 9 you the jury, or recklessly caused the transportation in air 10 commerce of property containing hazardous material as agreed 11 to you unanimously by the jury and, 2) that the action was 12 in violation of regulations or regulations related to the 13 transportation of hazardous material as alleged in the 14 indictment. I instruct you, as a matter of law, that the 15 regulations set out in the counts of this section that we 16 have been talking about, 46312, are regulations related to 17 the transportation of hazardous material that fall within 18 the scope of this section of the law. I'll explain the 19 regulation to you shortly. 20 As part of the charges under Title 49, U.S.C. 21 Section 5124 and Section 46312, which I've just have 22 explained to you, Counts 7 and 8 of the indictment, 23 reference a violation of Title 49, Code of Federal 24 Regulations, Section 171.2(a). Now that section provides 25 that no person may offer or accept hazardous material for - 12- 2-99 174 1 transportation in commerce, unless a hazardous material is 2 properly classed, described, packaged, marked, labeled, and 3 in a condition for shipment as required or authorized by the 4 hazardous materials regulations. 5 Now, the regulations mentioned in Section 171.2(a) 6 include those found in Title 49, Code of Federal 7 Regulations, Section 172.202(a)(1) through (5). Sections 8 172.300(a) and 172.301(a), Section 173.24(e)(4), Section 9 173.24(b)(2) and Section 173.24(a)(3) will be explained to 10 you shortly. I bet you can't weight, can you? 11 As part of the charges under Title 49, Section 12 5124 and Section 46312, Counts 9 and 10 of the indictment, 13 reference a violation of Title 49 Section 171.3(a), which 14 states that no person may offer for transportation 15 interstate commerce, a hazardous waste except in accordance 16 with the requirement of subchapter C of the hazardous waste 17 regulations. That subchapter C includes the regulations and 18 here we go again, Title 49 Section 172.20(a)(1) through (5), 19 172.300 and 172.301(a), Section 173.24(e)(4), -- sounds like 20 that movie whatever it was -- Section 173 -- obviously, 21 you're just going to know the actual numbers you're going to 22 have to come back and read this. It's pointless to even try 23 to tell you what they are. I've got to get into the English 24 language at some point and tell you what this is. 25 All right. Counts 11 and 12 are alleged to be a - 12- 2-99 175 1 violation of Section 172.200(a)(1) through (5), that's a 2 hazardous materials regulations within the scope of the 3 regulations reference had in Count 7, 8, 9 and 10. 4 172.201(a)(1) through (5) states that the person who offers 5 a hazardous material for transportation shall include a 6 shipping description of the hazardous material on the 7 shipping paper. Under this regulation, that shipping paper 8 must include the following, and there are five things: 1) 9 the proper shipping name as prescribed under the 10 regulations, 2) the hazardous class or division prescribed 11 for the material under the regulations, 3) the 12 identification number prescribed for the material in the 13 regulations, 4) the packing group, in Roman numerals, 14 prescribed for the material under the regulations, and, 5) 15 the total quantity of hazardous material covered by the 16 description. 17 With reference to the allege violations of these 18 Section of the law, Title 49, and 13 and 14 of the 19 indictment, that reference is Code of Federal Regulations 20 Section 172.300 and 172.310(a), each of these regulations 21 are part of the hazardous material regulations that fall 22 within the scope of regulations referenced in Count 7, 8, 9, 23 and 10. 24 Now these two sections, 172.300 and 172.301 state 25 that the person who offers hazardous material for - 12- 2-99 176 1 transportation in none-bulk packaging is required to mark 2 that package with a proper name and identification number 3 set out in Title 49, Code of Regulations, Section 172.101. 4 Now that section states that the proper name and 5 identification number for sodium chlorate is UN1495. And 6 that the proper name and identification for oxidizing solids 7 not otherwised specified as UN1479. 8 Counts 15 and 16 of Title 49, reference the Code 9 of Regulations again, and talks about Section 173.24(e)(4). 10 That Section falls within the scope of regulations for 11 referenced in Counts 7, 8, 9 and 10. 173.24(e)(4) states 12 that these hazardous materials may not be packed or mixed 13 together in the same outgoing package with other hazardous 14 or none-hazardous materials, if such materials are capable 15 of reacting dangerously with each other and causing 16 combustion or dangerous evolution of heat. 17 Now, Counts 17 and 18, and we are almost halfway 18 through folks. Count 17 and 18 of the indictment again 19 talks about Title 49. The regulations Section 173.24(b)(2) 20 which is a hazardous material regulations that falls within 21 the scope of the regulation referenced in Counts 7, 8, 9 22 and 10. 173.24(b)(2) states each package used for shipping 23 of hazardous materials shall be designed, constructed, 24 maintained, filled, it's contents so limited and closed, so 25 that under conditions normally incident to transportation, - 12- 2-99 177 1 the effectiveness of the package will not be substantially 2 reduced. The court instructs the juries normally incident 3 to transportation the effectiveness of the package will not 4 be substantially reduced. 5 Now with respect to Counts 19 and 20, we move on 6 to, we are still in Title 49, Section 5124 and 4632, but 7 this talks about the Code of Federal Regulations, Section 8 173.24a(a)(3), which is a hazardous material regulation. It 9 falls within the scopes of regulations referenced in Counts 10 7, 8, 9 and 10. 11 This Section 173.24a(a)(3) which discusses 12 packaging requirements for the transportation or hazardous 13 materials states that the cushioning material must not be 14 capable of reacting dangerously with the contents of the 15 inner packaging. 16 Now with reference to Counts 21 and 22, the 17 indictment -- we are still talking about Title 49 Section 18 5124 and 46312. Section 173.27(b)(3) is a hazardous 19 material regulations which falls within the scope of 20 regulations referenced in Counts 7, 8, 9 and 10. 21 Now 173.27(3)(b) states that the maximum quantity 22 of a hazardous material and a package that may be offered 23 for transportation on board a passenger carrying aircraft, 24 may not exceed that quantity prescribed for that material in 25 the hazardous materials regulations. Under these - 12- 2-99 178 1 regulations sodium chlorate is a hazardous material and the 2 maximum quantity of sodium chlorate that may be offered for 3 transportation aboard a passenger carrying aircraft may not 4 exceed five kilograms. 5 As part of the charges under Title 29, Count 23 6 of the indictment, we have a reference to Title 49 Code of 7 Regulations, Sections 172.702(a) and 172.704(a)(2). Those 8 sections state that a haz-mat, h-a-z-m-a-t, employer shall 9 ensure that each of it's haz-mat employees is trained in 10 accordance with the requirement of the regulation. One of 11 those requirements is that each haz-mat employee shall be 12 provided function specific training concerning requirements 13 of the hazardous materials regulations which are 14 specifically applicable to the functions that the employee 15 performs. A haz-mat employer means a person including a 16 corporation who uses one or more of it's employees in 17 connection with transporting hazardous material in commerce 18 and causing hazardous materials to be transported and 19 shipped in commerce. A Haz-mat employee means a person who 20 is employed by a haz-mat employer, and a person who 21 directly affects hazardous materials transportation safety. 22 This terms includes an individual employer who, during the 23 course of employment, 1) loads, unloads, or handles 24 hazardous materials, 2) manufactures, tests, reconditions, 25 repairs, modifies, marks or otherwise represents containers - 12- 2-99 179 1 drums, packaging as qualified for use in the transportation 2 of hazardous materials, 3) prepares hazardous materials for 3 transporting, 4) is responsible for safety of transporting 4 hazardous materials, or 5) operates vehicles used to 5 transport hazardous material. 6 The training must constitute a systematic program 7 that ensures the haz-mat employee has familiarity with the 8 general provisions of the hazardous materials regulations; 9 is able to recognize and identify hazardous materials; has 10 knowledge of the specific requirements of the hazardous 11 materials regulations application to functions performed by 12 the employee, and has knowledge of emergency response 13 information, self-protection measures and accident 14 prevention methods and procedures. 15 Now Title 24 of the indictment charges SabreTech 16 with a willful violation of Title 18, U.S.C. Section 32. 17 That section of the code makes it a Federal crime for any 18 person to willfully place or cause to be placed a 19 destructive device or substance in, or in proximity to, or 20 otherwise make or cause to be made unworkable or unusable, 21 or hazardous to work or use, any civil aircraft used, 22 operated or employed in interstate air commerce, if such 23 placing or causing to be placed or such making or causing to 24 be made is likely to endanger the safety of any such 25 aircraft. The defendant SabreTech can be found guilt of - 12- 2-99 180 1 this offense only if all the following can be proved beyond 2 a reasonable doubt: 1) a destructive substance within the 3 meaning of this statute -- I think you all are following, I 4 should jump to the next page and come back to this -- the 5 following facts have to be proved: 1) that the defendant 6 SabreTech knew that the object is a destructive device or 7 substance within the meaning of the statute, 2) that 8 SabreTech either placed or caused to be placed, a 9 destructive device or substance in, upon or in proximity to 10 an aircraft or made the aircraft or caused the aircraft to 11 be made unworkable, unstable or hazardous to work or use, 3) 12 that these acts were likely to endanger the safety of the 13 aircraft, 4) that the defendant SabreTech acted willfully 14 and, 5) that the aircraft was used, operated or employed in 15 interstate commerce. 16 Now I'm going to go back to the bottom of the page 17 and read a definition of destructive device or substance. A 18 destructive substance within the meaning of this statute 19 means any explosive substance, flammable material, infernal 20 machine or other chemical, mechanical or radioactive device 21 or matter of combustible, contaminative, corrosive, or 22 explosive nature -- then is when I got into the elements-- 23 To prove violation of Section 32, the evidence must show 24 beyond a reasonable doubt those five things that I just read 25 to you. - 12- 2-99 181 1 Now as I instruct you, the government must show 2 that the defendant SabreTech either (A) placed or caused to 3 be placed a destructive device or substance in, upon or in 4 proximity to or (B) caused the aircraft to be made 5 unworkable, unstable or hazardous to work or use. It's not 6 necessary for the government to prove that the defendant 7 SabreTech actually violated Title 18, U.S.C. Section 32 by 8 both of these ways. 9 It is sufficient if the government proves beyond a 10 reasonable doubt the defendant SabreTech violated that 11 statute in one of the these ways. In that event, however, 12 in order to return a verdict of guilty, you must unanimously 13 agree upon which of the two ways the defendant SabreTech 14 violated Title 18, United States Code, Section 32. -- This 15 becomes clearer when you read the verdict form, at least we 16 certainly hope it does -- As noted before, SabreTech can be 17 found guilty of this offense, let me back up. As noted 18 before, before SabreTech can be found guilty of this 19 offense, the government must prove that the corporation 20 acted willfully in placing or causing to be placed a 21 destructive device in, upon or in the proximity of an 22 aircraft, or otherwise making the aircraft or causing the 23 aircraft to be made unworkable, unusable or hazardous to 24 work or use. The government is not required to prove that 25 the defendant SabreTech acted with an intent or motive to - 12- 2-99 182 1 damage, destroy or disable the aircraft. 2 I've already given you this definition. A 3 destructive substance means explosive, flammable, infernal 4 machine, or other chemical or mechanical device or matter of 5 a combustible, contaminative, corrosive, or explosive 6 nature. The term interstate commerce includes commerce 7 between one state and another state. 8 You'll note the indictment charges the offenses 9 were committed on or about a certain date. The government 10 doesn't have to prove with certainty the exact date of the 11 alleged offense. It is sufficient if the government proves 12 beyond a reasonable doubt that the offense was committed on 13 a date reasonably near the date alleged. 14 The term "knowingly" as that term is used from 15 time to time in these instructions, means that the act was 16 done voluntarily and intentionally and not because of 17 mistake or accident. "Willfully," as that term has been 18 used, means that the act was committed voluntarily and 19 purposely, with specific intent to do something the law 20 forbids. That is, with bad purpose to disobey or disregard 21 the law. The term "reckless" as that terms is used in the 22 indictment, means that the act was committed with conscious 23 disregard of a known substantial risk that the act was 24 unlawful. 25 Now, a corporation is a legal entity that may only - 12- 2-99 183 1 act through its agent. Agents of the corporation are 2 officers, directors, employees and certain others. A 3 corporate defendant is entitled the same individual and 4 impartial consideration of the evidence that the jury gives 5 to a personal defendant. A corporation may be found guilty 6 of the offenses charged or found not guilty of the offenses 7 charged under the same instructions that apply to a personal 8 defendant. To find the corporate defendant guilty, you must 9 find beyond a reasonable doubt three things: 1) that each 10 essential element of the crime charged against the 11 corporation is committed by one or more of it's agents, 2) 12 that in committing those acts the agent or agents intended 13 or at least in part, to benefit the corporation and, 3) that 14 each act was within the scope of employment of the agent who 15 committed it. 16 To be within the scope of an agent's employment, 17 it must relate directly upon the performance of the agent's 18 general duties of the corporation. It is not necessary that 19 the act itself had been authorized by the corporation. If 20 an agent was acting within the scope of the employment, the 21 fact that the agent's act was illegal contrary to his 22 employers instructions or against the corporation's policy, 23 will not relieve the corporation for responsibility for it. 24 You may, however, consider the existence of 25 corporate policies and instructions with the diligence of - 12- 2-99 184 1 efforts to enforce them in determining whether the agent was 2 acting with the intent to benefit the corporation, or within 3 the scope of his employment. If you find that an act of an 4 agent was not committed within the scope of the agent's 5 employment or the intent to benefit the corporation, then 6 you must consider whether the corporation later approved the 7 act. An act is approved if, after it is performed, another 8 agent or the corporation, having full knowledge of the act 9 and acting within the scope of his employment and with the 10 intent to benefit the corporation, approves the act by his 11 words or conduct. A corporation is responsible for any act 12 or omission approved by its agents. 13 The knowledge of a corporation constitutes the 14 collective knowledge of it's agents. The corporation is 15 deemed to know about a legal requirement if it's agents knew 16 as a part of that requirement, and if the sum of the agent's 17 knowledge amounted to knowledge that such a legal 18 requirement existed. A corporation is deemed to act 19 willfully, if one or more of its agents in the scope of 20 their authorization acted willfully, or if, as an 21 organization, that corporation consciously avoided learning 22 and observing a pertinent legal requirement or acted with a 23 flagrant or organizational indifference to such a legal 24 requirement. 25 A person is responsible for acts which he performs - 12- 2-99 185 1 or causes to be performed on behalf of a corporation, just 2 as he is responsible for the acts performed on his own 3 behalf. This is so each even if he acted upon the 4 instructions of his superior. 5 A separate crime or offense is charged against one 6 or more of the defendants in each count of the indictment. 7 Each charge, and there are 24 of them, and the evidence 8 pertaining to it, should be considered by you separately. 9 Also, the case of each defendant should be considered 10 separately and individually. The fact that you may find one 11 or more of the defendants guilty or not guilty of any of the 12 offenses charges should not effect your verdict as to any 13 other offense or any other defendant. I caution you, 14 members of the jury, that you are here to determine from the 15 evidence in this case whether each defendant is guilty or 16 not guilty. Each defendant is on trial only for the 17 specific offense alleged against that particular defendant 18 in the indictment. Also, the question of punishment should 19 never be considered by the jury in any way in deciding the 20 case. If a defendant is convicted, the matter of punishment 21 is solely up to the Judge. 22 The guilt of a defendant in a criminal case may be 23 proven without evidence that the defendant personally did 24 every act involved in the commission of the crime charged. 25 The law recognizes that, ordinarily, anything a person can - 12- 2-99 186 1 be for one's self may be accomplished through direction of 2 another person as an agent, or by acting together with, or 3 under the direction of, another person or persons in a joint 4 effort. So, the acts or conduct of an agent, employee or 5 other associate of the defendant are willfully directed or 6 authorized by the defendant, or if the defendant aids and 7 abets another person by willfully joining together with that 8 person in the commission of a crime, then the law holds the 9 defendant responsible for the conduct of that other person 10 just a though the defendant had personally engaged in such 11 conduct. 12 However, before any defendant can be held 13 criminally responsible for the conduct of others, it is 14 necessary that the defendant willfully associate himself in 15 some way with the crime, and willfully participate in it. 16 Mere presence at the scene of a crime and even knowledge 17 that a crime is being committed are not sufficient to 18 establish that a defendant either directed or aided and 19 abetted the crime. You must find beyond a reasonable doubt 20 that the defendant was a willful participant, not merely a 21 knowing spectator. 22 Any verdict you reach in the jury room, whether 23 guilty or not guilty must be unanimous. In other words, to 24 return a verdict, you all must agree. Your deliberations 25 will be secret. You'll never have to explain your verdict - 12- 2-99 187 1 to anyone. 2 It is your duty as jurors to discuss the evidence 3 in the case with one another in an effort to reach an 4 agreement, if you can do so. Each of you must decide the 5 case for yourself, but only after full consideration of the 6 evidence with the other members of the jury. While you are 7 discussing the case, do not hesitate to reexamine your own 8 opinion and change your mind if you become convinced that 9 you were wrong. But do not give up your honest beliefs, 10 solely because the others think differently or merely to get 11 the case over with. Remember that in a very real way, you 12 are the judges, you are judges of the facts. Your only 13 interest is to seek the truth from the evidence in the case. 14 When you go into the jury room, the first thing 15 you do is select one of your number as foreperson, to 16 preside over your deliberations and to date and sign your 17 verdict. 18 We have prepared a verdict form for you. I'm 19 going to ask counselors' indulgence to, normally I would 20 read this to you. But it's 24 counts and you will have it 21 with you in the jury room. Do you believe given the fact 22 that we have gone through this that there is a need to read 23 through this? I will, if anybody wants me to. 24 MS. MOSCOWITZ: No, Your Honor. 25 MR. DUNLAP: No, Your Honor. - 12- 2-99 188 1 MR. BRIGHAM: No, Your Honor. 2 THE COURT: I don't see anything wrong with not 3 reading this to you. You will have it there. Basically, 4 it specifies blanks on here. Take Count 1, for example. 5 Count 1, all three defendants are charged in Count 1. So, 6 there's a blank. SabreTech, Inc. there's a blank -- two 7 blanks. One that says not guilty, one that says guilty. 8 For Gonzalez, one not guilty, one guilty. Just have your 9 foreperson fill in the appropriate unanimous verdict on all 10 24 counts on all three defendants. Not all defendants are 11 charged in all counts, but we have spelled all of that out 12 for you. This is just a check sheet that you can go right 13 through and answer these questions after you've discussed 14 the evidence. 15 There's a point here where we get to the odd 16 numbered and even numbered, you know, those pairing that I 17 told you about. And I'm going to read to you Count 7 and 18 I'm going to tell you this pertains to certain ones. It's 19 a little bit different. These are the hazardous materials 20 counts. Count 7, for example, "With regard to Count 7 and 21 the hazardous material regulations alleged therein, do you 22 find unanimously and beyond a reasonable doubt that the 23 defendant SabreTech, Inc. A (1) willfully delivered or 24 caused to be delivered property containing hazardous 25 material to an air carrier or to an operator of a civil - 12- 2-99 189 1 aircraft for transportation in air commerce, and (2) that 2 such action was in violation of the referenced 3 regulations"? The place there, yes or no, depending on 4 your unanimous decision. B (1), I just read you A (1). B 5 (1), we ask you with regard to Count 7 B (1), do you find 6 unanimously and beyond a reasonable doubt that the 7 defendant SabreTech recklessly caused the transportation of 8 air commerce of property containing hazardous material, and 9 (2) that such action was in violation of the requisite 10 regulations, yes or no. Your unanimous decision. That one 11 deviates. The others say guilty and not guilty. This one 12 says, yes or no. Don't worry about it. Just fill in the 13 blanks as you reach your unanimous decision. 14 This verdict form is eight pages long, and a place 15 for your foreperson to sign and date it, when you reach your 16 unanimous verdict. I will give that to you and you will 17 have that with you in the jury room. Now, if it's necessary 18 for you to ask a question or send out a question or 19 communicate with me in any way, write it down on a yellow 20 pad or piece of paper. Your foreperson writes it down. 21 Sends it out with the marshal, who will be waiting outside 22 the door. The marshal brings it to me, I call the lawyers 23 who may be standing by or may not be, just depending on the 24 situation. I show them the question or, whatever it may be, 25 a statement from you all. This is not your verdict now, - 12- 2-99 190 1 this is if you have a question or you say it's midnight and 2 we want to go home, can we go home. Nobody smiled at that. 3 I'm sorry. I hope you don't stay here past 6:00 because it 4 gets dark around here and we urge you to go home around 6, 5 and you can always come back tomorrow and continue your 6 deliberations. 7 You can go when you want to and come when you want 8 to. If you want it stay here longer from now on, you set 9 your schedule as to when you come and when you go. 10 Everybody must be in the jury room at all times when you are 11 discussing the facts of the case. If somebody steps in the 12 rest room or something of the sort, you've got to wait 13 because everybody has to hear what everybody else says. 14 Getting back to the message you may send out or 15 question. Don't hesitate, we'll help you any way we can. 16 Send it out. I read it to the lawyers. We formulate an 17 answer, and I'll send it back in. 18 We will give you one copy of the verdict form. 19 Two copies of this book I just read you, this 55 page jury 20 instruction book, two copies of the indictment. The 21 indictment is 24 pages. So you have two copies of the 22 indictment. So that's what you have to take in to the jury 23 room. 24 As soon as the lawyers have gone through each of 25 the exhibits with the courtroom deputy to make sure that - 12- 2-99 191 1 only the exhibits actually admitted into evidence come in, 2 then we will send them in so we will be sending them in as 3 they go through the exhibits carefully. We don't want to 4 send in anything to you, anything that was not admitted into 5 evidence. You remember during the trial unless I said the 6 magic words it is admitted into evidence. If I didn't say 7 that, it's not there. If it's just marked for 8 identification, it stays out. With all the exhibits, we 9 want to be very careful, and of course, we do this for every 10 case, I make the lawyers go through and agree on this so 11 that I don't have a problem on this later on. 36 years of 12 doing this and I've learn something about making life easier 13 for myself. But I haven't learned anything about 14 instructions to make that easier. I think that is 15 everything. 16 I will say to the alternates that your function 17 here was to serve if somebody got sick or wasn't able to 18 come in. You all were very faithful and were here every day 19 and we thank you very, very much. I have your names and 20 addresses because I write and give to jurors a letter or 21 certificate of appreciation because you folks work as you 22 all work. We are going to mail that to the jurors. I am 23 going to ask the four of you to continue not to listen to 24 anything on the radio or television or reading anything 25 about the case until Ms. Kramerman calls you, which we will - 12- 2-99 192 1 do, we will call you and tell you that the jury has finished 2 it's work. 3 That may be today or tomorrow or it could be next 4 week. I don't know. It's totally up to the jury. We will 5 call you and tell you when they have reached a verdict. We 6 will also tell you what the verdict was. At that point, I 7 will also mail to you whatever has come to my attention 8 whatever clippings or anything like that. We have copies 9 for everybody. I remember the vividly the United States 10 versus -- anyway, the black tuna trial which was a case and 11 I only tell it to you briefly so that you will know the 12 importance of it. In that particular case -- in any event 13 in that particular case, one of the 12 jurors became ill 14 during deliberations. A wonderful gentleman. And he had 15 had a history of heart problems and literally the marshals 16 in their prompt action was credited with saving his life. 17 They took him right away to the hospital. He was fine but 18 he really couldn't go on. That trial had lasted a little 19 less than six months. So, we didn't want to start over 20 again and try it again for another six months before 21 another jury, so contrary to all the then existing law, I 22 called up the first alternate and had the first alternate 23 come back. We did some legal things about instructions and 24 so on. Sent the jury and then the alternate actually 25 became a member of the jury, the panel started a square - 12- 2-99 193 1 one, and we started deliberation over again. And we got 2 the case completed and concluded. 3 So it may be that we would have a need for the 4 alternates. That why I ask you not to let anything 5 interfere with your thinking even though your part is over 6 with right now. Don't let anything interfere with your 7 thinking because if somebody gets sick, seriously ill and 8 they can't continue for any reason, then we might have to 9 use you. And by the way, the rules of criminal procedure, 10 the committee of the conference of the United States, did 11 all the testimony and got all my records, and changed the 12 rule. So now the rule provides for the seating of an 13 alternate juror. At that time, it did not. Kind of 14 interesting. But in any event, be that as it may -- 15 That's why it's important. So Ms. Kramerman will 16 call you when they have reached a verdict and we will mail 17 you a lot of stuff and you will get all of that. In the 18 meantime, just bear with us. It's going to be hard, but 19 bear with us for however, long it takes you to decide the 20 case. 21 You four are now excused. Marshal, I'll -- With 22 this instruction I instruct you not to discuss the case with 23 any reporter, news person or anybody connected with the 24 trial. They would love to talk to you, I'm sure, but I 25 instruct you not to do so. Obviously, that would disqualify - 12- 2-99 194 1 you from, you know, if I needed you. I couldn't use you 2 then. So, please don't talk to anybody or let anybody talk 3 to you. The four of you are excused. You can go to the 4 marshal. Take the four to the elevator and make sure they 5 got on it and don't get bothered by anybody. The four 6 alternates. 7 Now, then, the 12 of you may now retire to 8 consider your verdict and Ms. Kramerman, if you will give 9 this packet of materials to them we will send in the 10 exhibits as soon as we have gotten them. All right, ladies 11 and gentlemen, you may now retire to consider your verdict. 12 Thank you very much for your patience. 13 [The jury leaves the courtroom]. 14 THE COURT: All right. At this point then, 15 unless there is something further, I will ask one 16 representative or anybody who wishes -- shut the door, 17 thank you -- somebody here to go through with Ms. Kramerman 18 the exhibits so that we can have them taken into the jury. 19 Other than that, it's 4:20. I would ask you to remain this 20 afternoon until I presume at some point in time they will 21 probably send out a note saying they want to go home. In 22 any event, I ask you to remain this afternoon with respect 23 to jury deliberation. If any of you need to be elsewhere 24 for any other hearings or whatever you need to be doing, as 25 long as we have the ability to contact you immediately and - 12- 2-99 195 1 as long as you can return to the courthouse within 15 2 minutes from wherever you are, so we don't hold the jury up 3 on answering any questions they may have, then as far as 4 I'm concerned we will be very flexible about the necessity 5 for you just to sit. That's up to you. If you do wish to 6 go or whatever, be sure we have means of contacting you. 7 MR. RASKIN: Your Honor, I'm sorry. You were 8 going to give a curative instruction concerning 9 Ms. Miller's statement concerning the crash. 10 THE COURT: All right. I forgot about it. Do 11 you want me to bring them back and do it now. 12 MR. RASKIN: Yes, sir. 13 THE COURT: You want it? You don't think that 14 will underscore and emphasize it? 15 MR. RASKIN: Well, let me talk with my 16 colleagues. 17 THE COURT: I suggest to you in all 18 reasonableness that it may have that effect of just 19 underscoring somethin
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