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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 November 15, 1999 SABRETECH, INC. DANIEL GONZALEZ, MONDAY - 8:00 A.M. EUGENE FLORENCE, Defendants. JURY TRIAL PROCEEDINGS BEFORE THE HONORABLE JAMES LAWRENCE KING, SENIOR UNITED STATES DISTRICT JUDGE DAY 1 APPEARANCES: FOR THE GOVERNMENT: CAROLINE HECK MILLER, A.U.S.A. GEOFFREY BRIGHAM, A.U.S.A. J.L.K. FEDERAL JUSTICE BUILDING 99 N.E. 4th Street MIAMI, FL 33132 - 305/961-9432 SPECIAL AGENT JOHN LONG OFFICE OF INSPECTOR GENERAL DEPARTMENT OF TRANSPORTATION SPECIAL AGENT MIKE CLARK OFFICE OF INSPECTOR GENERAL DEPARTMENT OF TRANSPORTATION SPECIAL AGENT JACQUELINE FRUGE FEDERAL BUREAU OF INVESTIGATION 2 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 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. MARCIA SILVERS, ESQ. DUNLAP & SILVERS, P.A. 2601 S. Bayshore Drive, Suite 601 Miami, FL 33133 - 305/854-9666 FOR DEFENDANT SABRETECH: NORMAN MOSCOWITZ, ESQ. SULLIVAN RIVERO & MOSCOWITZ, P.A. Miami Center, Suite 2550 201 South Biscayne Blvd. Miami, FL 33131 - 305/371-7781 REPORTED BY: ROBIN MARIE CARBONELLO Official Federal Court Reporter J.L.K. Federal Justice Building Suite 1127 99 Northeast 4th Street Miami, FL 33132 - 305/ 523-5108 TOTAL ACCESSTM COURTROOM REALTIME TRANSCRIPTION 3 INDEX TO WITNESSES Witnesses: Direct Cross Redirect Recross INDEX TO EXHIBITS Exhibits Marked for Received Identification in Evidence Description Page Line Page Line Defense Exhibits E N PB,D LC,E B CITATION TABLE Citation Page Line UNITED STATES vs SABRETECH ET. AL. - 11-15-99 4 MORNING SESSION COURTROOM DEPUTY: All rise. Court is in session. The Honorable Judge James Lawrence King presiding. THE COURT: Thank you. Announce your appearances please. MS. MILLER: Caroline Heck Miller and Geoffrey Brigham. With us is Jackie Breshay with the FBI and Special Agent Jack Long with the Department of Transportation Office of Inspector General. THE COURT: Thank you. MR. RASKIN: Martin Raskin on behalf of SabreTech. With me is Jayne Moskowitz, Norman Moskowitz and our representative, Jonathan Kaylow (phonetic). MR. DUNLAP: Good morning. Robert Dunlap on behalf of Danny Gonzalez who is present. I'm also accompanied by my partner, Marcia Silvers. MS. MOSKOWITZ: Jayne Moskowitz on behalf of Eugene Florence. Mr. Florence is present. THE COURT: Last Friday evening there were several motions filed in this case, and then again there were more this morning brought to my office. Most of it has to do with two exhibits having to deal with pre-trial publicity in the case, marked Exhibit A and B for the defense. The motions we will take up this morning prior to jury selection. UNITED STATES vs SABRETECH ET. AL. - 11-15-99 5 One I believe that was filed first was Mr. Dunlap's motion for individual examination of the jurors. Mr. Dunlap? MR. DUNLAP: May it please the Court. Your Honor, that is a joint motion. I will request permission to have Mr. Moskowitz argue that to the Court. MR. MOSKOWITZ: Good morning, Your Honor. Your Honor, on Friday with the motion we filed two exhibits as well, Exhibits A and B which were compendium of all the publicity relating to this case. This morning we would also like to file with the Court Exhibit C, which is cassettes of all the television publicity in this case. May I hand it to the Court? THE COURT: Yes. You referred to that in your motion you filed last Friday afternoon. MR. RASKIN: As well, we have an Exhibit E, which is an article which appeared on Saturday in the business section of the Herald relating to this case that we would also like to place in evidence. THE COURT: Exhibit E is admitted into evidence. [Defense Exhibits E received in evidence]. MR. RASKIN: Your Honor, also this morning at 7:00 I pulled off the Internet there was an article in the Sun-Sentinel headline; "SabreTech argues prosecutors are trying to criminalize human error" -- UNITED STATES vs SABRETECH ET. AL. - 11-15-99 6 THE COURT: Why don't you just mark them all, any pre-trial exhibits that you have, and we'll mark them in. Let's move into the argument. The argument suggests that it is necessary to interview the jurors one by one about pre-trial publicity. Wouldn't it be far better just to take any that have been indicated in the jury questionnaires that we submitted, the questionnaire that you all agreed to with all of these questions. There were some 15 or 14 pages of questions? At page 11 there were 1, 2, 3, 4 questions that dealt specifically with the ValuJet flight 592 crash in the Everglades in 1996. Would not a simple practical approach to this to segregate any juror who had answered the question, yes. They knew about it regardless of the extent of their knowledge, and take first the jurors that had indicated that they had not heard of the crash and attempt to select the jury from those and then take the others later? Wouldn't that be simpler? I've done in a half a dozen other cases, and it's been approved by the 11th Circuit. If anybody indicates they have knowledge of the events of the case, to avoid all of that of how much do you know and how finite your knowledge is and where did you get it, then we simply pick the jurors from the people that have not heard of the crash. MR. RASKIN: Your Honor, out of 124 juror questionnaires, there are only ten left. That was at the UNITED STATES vs SABRETECH ET. AL. - 11-15-99 7 time that they filled out the questionnaires. I would suspect that having filled out the questionnaires heightened the jurors' attention to what they are involved in. THE COURT: It may very well have been. Getting to the process first of those, at least up until the time they filled out the questionnaire, have never heard of the matter, couldn't we attempt to select those jurors first? MR. RASKIN: Well, Your Honor, we are down to ten jurors. THE COURT: No, we have 300 something jurors that have been summonsed. I've asked the jury section to give us that information this morning. MR. RASKIN: Your Honor, the problem with that here is given the pervasiveness of the publicity involving this case, I would expect that any ordinary person would have heard something about this. It seems to me, if we're down to people who, in good faith, have no idea about this case, then that pool is not the type of representative pool of this case -- THE COURT: That is what you face, Mr. Moskowitz. Those are the options that you have. If you wish to exclude anybody that has heard anything about it you end up with, perhaps, a group of people that would not be as broad a group or as diversified a group as you would otherwise UNITED STATES vs SABRETECH ET. AL. - 11-15-99 8 have had. However, your exact words could have been used in the selection of the Mayor Dowd case, the mayor of Miami, Beach, the Mayor Wardlow in Key West; Mayor Lansky. Certainly everybody of your father's generation would have known who Mayor Lansky was. One juror said he knew Mayor Lansky, and we asked him who he was and he said he was mayor of Miami Beach. Even Mr. Lansky smiled at that one, and he didn't smile much during the trial. He is a stern-faced person. But even he smiled at that one. All I'm saying is, in all of these cases, certainly the two cases we picked a few months ago, U.S. v. Moya, dealing with the juror that was bribed in the case of Falcon and Magluta, the most pervasive publicity this town has ever seen on a criminal case, those we were able to pick. Taking last, it may be that we have to get into these people, and if we do, sitting here with your suggestion, it will take some time, but when we have had to do it that way we have done it three at a time so we don't affect any of the jurors. Why not take it out of the group that has never heard it before? MR. RASKIN: Our position is not that jurors should be disqualified because they have heard something about that. Given the extent of the publicity, I would UNITED STATES vs SABRETECH ET. AL. - 11-15-99 9 expect virtually everybody would have heard something about it. THE COURT: Do you think it's more extensive than the Falcon and Magluta, or the Black Tuna trial where the Attorney General of the United States at the time stood up on national T.V. and held up a big indictment himself and everybody in the world heard about it? Those cases we were able to select the jury using the same procedure. If the defense prefers not to have them in the pool then lets just take them last. Now, the government may have an objection, but I'm posing this as a practical solution; we have done in a half dozen other cases. MR. RASKIN: Your Honor, we did not intend on starting out by taking the entire venire individually. My understanding is, the way the Court generally proceeds is you seat 12, 13, and we would see, in an ordinary case, whether they were acceptable, and then if they were stricken we would fill their seats, I would suggest that we proceed the same way and only doing the voir dire on those first 12 or 13, and then proceed on filling the seats. THE COURT: Getting into publicity or not into publicity? MR. RASKIN: Getting into it individually. THE COURT: You pick 12, and after that you ask 12 if any have heard anything, and if all 12 have, you UNITED STATES vs SABRETECH ET. AL. - 11-15-99 10 start over again? That's it? MR. RASKIN: No, Your Honor, we pick the 12 and then we individually voir dire. THE COURT: And let's assume that every one of the 12 are part of the 114 that you just mentioned. MR. RASKIN: Our view would be the Court determine the nature of the exposed publicity and whether they are fair in deliberating and hearing evidence in this case. It's not our view that merely having heard it is disqualifying. We have heard the questionnaires, and the government has also. We are concerned about the type of exposure and whether jurors would have formed views that would prevent them from deliberating fairly. It may be that the well-informed jurors have heard about it and can keep an open mind, but then there are people who have formed a decision. Those are the people we are concerned about. THE COURT: We asked that question on the questionnaire; what you've heard, and if you've formed an opinion. If anybody has, I don't think you want me to put them in the box and ask them questions, would you? MR. RASKIN: Of course not. THE COURT: That would be pointless. Even if they say; "well, I put that down but now I've changed my UNITED STATES vs SABRETECH ET. AL. - 11-15-99 11 mind and now I can be fair"; there wouldn't be anybody in the courtroom that would leave them on. I would excuse them for cause. MR. RASKIN: I think people who have indicated in the questionnaire that they thought they could be fair based on some questioning, I think it might turn out that we all disagree with that. THE COURT: We don't have to get into all of that because they haven't heard about the crash, then aren't we better off? I think that the way I did it in January of this year, the U.S. v. Moya, the bribery case in the trial of Falcon/Magluta case -- the school children knew who Falcon/Magluta are, regrettably, but they do. -- We picked two Moya juries from two different groups, two months, three months a part. We picked one in the middle of the afternoon and one in the morning. The questionnaires give you a plethora of information about the jurors that you don't have in a normal criminal case, that it's not available to the government or the defense. It's all there and it's all written out. If it says, "I formed an opinion," I think we ought to leave them last. If we have to use them, we have to get into it. Ms. Miller? UNITED STATES vs SABRETECH ET. AL. - 11-15-99 12 MS. MILLER: Your Honor, we do want to be heard from. I must say, and I hope not for the last time in this trial, this is a point where we really are in agreement with the defense. Because the level of awareness is so high among the jury pool, we think to focus at first on the people who have not heard of the case, will and can result in a jury pool that is not representative of the community. In the cases like Dowd and Moya, there may be intense publicity but it's publicity of a sort that is followed by people who are interested in politics, and you will often find large parts of the community that haven't heard about that. THE COURT: How about Black Tuna? The City of Key West, however many residents there are, and the mayor of the city, and you say, "well, those are only the ones that follow the news," inundating publicity that just flooded the area for weeks and weeks. And by taking those that answered the questionnaire by saying, "we haven't heard of that, and them the taking the others last," what is the harm with that? MS. MILLER: Here, Your Honor, you would be taking smaller than ten percent of the jury pool and excluding or at least putting last more than ninety percent of the jury pool. That is we think -- THE COURT: What do the numbers have to do with UNITED STATES vs SABRETECH ET. AL. - 11-15-99 13 it, Ms. Miller? If you get 20 percent of 800 jurors and you get 395 that answered the questionnaires, and you exclude those that can't serve for the 6 to 8 weeks, now that's an exclusionary process. MS. MILLER: But that is a random exclusionary process. THE COURT: So is this. MS. MILLER: No, Your Honor, I would suggest that it is not random. Focusing only on people who haven't heard about it, you are necessarily picking people who are only extraordinarily -- I'm not suggesting there is anything denigrating about it, but extraordinarily different than the rest of the community -- THE COURT: Not anymore so than the people that lived here in the Black Tuna case or the Moya case, and everybody in this community knew about the Falcon/Magluta case. So people that don't read that are in the same group. I don't see where numbers have anything to do with it. MS. MILLER: It's proportions, Your Honor, not numbers. When you are focusing on such a small proportion of the jurors as such a presumptive group, you risk skewing the jury pool. It's not the absolute numbers. It's the fact that one is focusing on such a small slice of the jury pool based on something that is not a random factor, like UNITED STATES vs SABRETECH ET. AL. - 11-15-99 14 everybody happened to have vacation plans for that time period, but a factor that goes to the outlook and the mental make up of jurors. THE COURT: I would suggest to you that the logic you are suggesting to the Court to accept would apply equally to those who simply don't want to serve for six weeks. If we all said okay, let's let them go, fine. How about that though? Are you only getting those who want to serve for six weeks? MS. MILLER: Your Honor, I would never say that we should automatically skip over people who don't want to serve. You would be shaping the jury pool out of people who are not representative of the community. It's a factor that is not a random factor. It's a factor that has to do with something about the make-up and outlook of the jury. Those are the factors that we should not tailor the juror pool for. THE COURT: The process that you are all suggesting, you're talking about 300 jurors, and you're talking about getting into publicity. There's no sense in not getting into publicity first. All of them, as it turns out, has heard about the publicity aspect, so they're gone or probably gone. Certainly we can agree that if somebody has made up their mind, they should be excused for cause? UNITED STATES vs SABRETECH ET. AL. - 11-15-99 15 MR. RASKIN: Yes. MS. MILLER: Certainly a juror that has a fixed opinion should be excused for cause. We may disagree as to which opinions are fixed and which aren't. THE COURT: Well, it could take weeks and months to pick a jury. Well, if they formed an opinion about the guilt or innocence of this defendant, it seems to me that that person should be excused for cause. Whatever their opinion is, whether it's pro government or pro defense, it wouldn't make any difference. Mr. Moskowitz says he agrees with that. MS. MILLER: Well, Your Honor, that would streamline the process and enable us to go to the position that we are proposing, to take the jurors in random order and put them in the box, excluding the ones that have formed opinions and go on from there. THE COURT: How many of the 114 have formed opinions that you mentioned? MR. RASKIN: Your Honor, I don't know the answer to that. If you would give me a second. The estimate is around 70, 75 percent has said that they have formed opinions. MS. MILLER: Your Honor, we disagree as to that proportion. We think it's much higher. THE COURT: If you're going to go into this issue UNITED STATES vs SABRETECH ET. AL. - 11-15-99 16 at all, certainly you're going to look at the answer to question 15. If you haven't even bothered to figure how many of those 114 had cast a doubt on your analysis, that's open and shut. "Have you formed an opinion as to the innocence or guilt of the defendant." Question 15, page 11. Yes or no. If they say "yes," you say approximately 75 people out of the 124, you said 75 percent, so I guess it would be 100 people and they said yes, they've got an opinion and we're going to include those for cause, all right, fine. Then we are getting down to the number that I wanted to start working with originally which isn't that many. If you exclude 75 percent that's about 75 jurors that have not formed an opinion. That's the group we want to work with. Is that it? MR. RASKIN: Your Honor, when you have got a case where you have a very large percentage of the pool admitting that they've formed an opinion based on the pre-trial publicity, I think that requires the Court to take a serious look at the rest that say they know about it but based on the questionnaire -- THE COURT: That's one of the few motions that no one has made. That's one of the few motions that neither the government nor the defense has made to this Court. Nobody has said let's change venue, unless you filed it in the last five minutes. UNITED STATES vs SABRETECH ET. AL. - 11-15-99 17 MR. RASKIN: We did not, Your Honor. THE COURT: Right. If you suggest, as you're now doing, that approximately 75 percent are disqualified because they have already formed an opinion, you're saying that they should raise it to the next level, when do we get to the next level? After we have wasted three weeks of the depth of their finiteness of their knowledge? MR. RASKIN: The problem with this publicity, we don't think that the change of venue is the answer is because the publicity on this case has been nationwide. This has been one of the most significant airline crashes. In the summer, when the indictment came down and the arrests were made, it was nationwide. Having received the questionnaires as recently as this Friday, we want to go ahead and see if we can pick a fair jury in this venue. I think the only way we can get to that determination is by doing the type of questions where you've got admission and clear indication that the venire knows about this matter. I think it requires probing by the Court. THE COURT: What would probing by the Court do that you already haven't done in your agreed upon questions of 47 through 51? By the way, you had the opportunity of asking any question you wanted to. I don't believe I took out any of UNITED STATES vs SABRETECH ET. AL. - 11-15-99 18 your questions on your joint proposed jury questionnaire. I may have. If I did, forgive me. Because I sent out another questionnaire in a Palm Beach case at the same time I was doing this. So most of these I went ahead and let you do what you wanted to do. If there is something more that you didn't ask, why didn't you ask it in this questionnaire? MR. RASKIN: Your Honor did cut about 40 of the questions. THE COURT: Did I? I apologize. I got the two cases confused. MR. RASKIN: Your Honor did leave in questions concerning pre-trial publicity. The responses that are 3 lines are very suggestive of a great deal of knowledge and also of the possibility of having formed a bias or opinion. We are also concerned about the ones that said, "have you heard about it," and they say "yes," and they don't go on to answer further what they know. THE COURT: Why deal with that person at all if they're not intelligent enough to finish those 2 lines? Why not just move on to those who don't have that problem? That's my suggestion. Why waste time for these people who didn't fill out the questions adequately enough? "If you heard about the crash," 47, "if so, what do you know about the crash and its causes?" They say whatever they say. I UNITED STATES vs SABRETECH ET. AL. - 11-15-99 19 haven't read the questionnaires, but certainly it seems to me that you would have a basis for cause or not for cause. MR. RASKIN: Your Honor, there is an additional factor in this case. Beside the pervasive publicity about the case itself, there is the fact that one of the defendants is a fugitive, Mr. Valenzuela. And a number of the jurors indicated that their favorite programs was America's Most Wanted. The people have heard something about one of the defendants being a fugitive. I had a case ten years ago, the exact same thing, where Mr. Hogan was defense counsel. I was prosecutor. Those factors, we both agree, that individual voir dire on publicity was appropriate, and the Court engaged in that type of proceeding, and the massive publicity and the fact that the fugitive indicating in the minds of some of the jurors is almost an acknowledgment of admission of guilt in the case. It's very powerful. THE COURT: The fugitive is not on trial here. MR. RASKIN: I know. I know. If jurors know that one of the defendants is a fugitive, that suggests something again. THE COURT: Did we ask them that in the questionnaire? MR. RASKIN: No, Your Honor. THE COURT: Why didn't you? You see, why do you UNITED STATES vs SABRETECH ET. AL. - 11-15-99 20 want to get into this exhaustive oral examination when it is so simple, and maybe now we need to give a bunch of jurors another questionnaire with four or five questions on it? That would eliminate the possibility of somebody blurting out something that would affect the whole panel sitting here, and that would eliminate the necessity of going one by one. Maybe the best way to approach this is to take a look at your challenges for cause and do that right now and eliminate 70, 75 percent of the people. That may narrow it down a great deal. Would that be a practical approach to this? Ms. Miller? MS. MILLER: Your Honor, question 50 of the questionnaire which says; "the defendants in this case are on trial for matters which relate in some way to the ValuJet crash. As a result of what you have seen, read, heard or discussed about this case have you formed an opinion as to the innocence or guilt of the defendant?" That is a simple yes or no. The best way to reduce the jury pool and yet not so skew the jury pool is to eliminate all the jurors that answered yes to that question 50, and then proceed with the rest of them. THE COURT: I would think so. MR. RASKIN: We agree with that, Your Honor. UNITED STATES vs SABRETECH ET. AL. - 11-15-99 21 Once we eliminate those, we still think that, given the pervasive nature of the publicity in this case, as to the rest that said no, this type of further inquiries is really still appropriate. THE COURT: It may be, but every jury starts with a first step. We have spent 30 minutes on this issue up to this point. Why don't you just give me a list of the people that you suggest should be excused for cause because they have answered yes to question 50. Once we have that and Ms. Kramerman can take that list down to the jury pool and they can read off those names and send them home, we can then move on to the next step. Hopefully somebody has a list of those. MR. RASKIN: We are getting that right now, Your Honor. THE COURT: While they are working on that, let's move on to the next motion. Here is a motion to dismiss the indictment on Mr. Dunlap's stationary. Mr. Dunlap? MR. DUNLAP: I believe my wife is going to argue that, Your Honor. MS. SILVERS: Ms. Raskin is, Your Honor. MS. RASKIN: Good morning, Your Honor. I believe the Court is referring to not our motion to dismiss the indictment but instead the government's motion to UNITED STATES vs SABRETECH ET. AL. - 11-15-99 22 reconsider an order that was reentered by Judge Brown on October 7, which we moved to compel compliance with the government, indicated in a written letter that it did not intend to follow the instructions given by the judge in that order. We went back -- THE COURT: I know all of that. The title to Mr. Dunlap, and he signed it, is "Defendants' Joint Motion To Dismiss the Indictment." It was filed at 5:17 p.m. on November 10. It says, alternatively, you want the government to do something else. So you are not seeking dismissal of the indictment, is that it? MS. RASKIN: Your Honor, this motion was ruled upon by Judge Brown. We are satisfied with his ruling. What we are not satisfied with is the government's response to his ruling which was immediately to seek a stay which Judge Seitz denied, and then they're coming back and asking for the motion to be reopened. If the motion is to be reopened we would proceed with all of the relief we were seeking. Our position is this is not ripe for decision. This is something decided by Judge Brown. It was not appealed by the government. They did not appeal his November 7 order. They did not seek to clarify. The day the discovery obligation was due to be filed in response to Judge Brown's order, and that was last Friday, not this UNITED STATES vs SABRETECH ET. AL. - 11-15-99 23 past one, but they wrote us a letter saying they did not interpret the judge's order to mean what it said, and they were not going to provide the discovery order, we then moved to compel that order. THE COURT: That was the order that said the government should anticipate the defense that was going to be raised and supply to you by definite delineation or exactitude the documents that they intended to offer in their rebuttal case. Is that what you're talking about? MS. RASKIN: You have got the right order. That is the way the government characterized it. THE COURT: How do you characterize it? MS. RASKIN: I characterize it as follows: the defendants' motion was a motion for discovery of its own statements pursuant to Rule 16. We said, you have given us 200 boxes of documents and you have not told us which of the documents in those 200 boxes you contend are our defendant statements to which we are entitled under Rule 16. The government acknowledged that it's not made apparent what those statements are. But they said too much work; too much of a bother. We've indicted a corporation and we don't think we should be required to give you all of that. They further said that there are going to be a lot of statements in there that don't have anything to do with this case. UNITED STATES vs SABRETECH ET. AL. - 11-15-99 24 For example, the defendant might have filled out a form that said they would like to participate in SabreTech's blood drive and we shouldn't have to give you this. Rule 16's clear unmistakable requirement that all defendants' statements be provided and the governments' concern that they would be overly burdened by complying with that rule, Judge Brown entered his order. He said government, you don't have to give them all the statements. I hear what you're saying, if they don't have anything to do with this case. But ten days prior to trial, you have to identify all the statements that you intend to use in your case. That order wasn't entirely what we are looking for. THE COURT: No, but your interpretation of that is what I want. You were telling me your interpretation of that order. Your interpretation of that order would be the government was required ten days before trial to delineate in these 200 boxes of documents the statements of your client that they intended to use both on direct case in chief and in rebuttal. Is that your position? MS. RASKIN: Correct. I would quote from the Court's order -- THE COURT: I understand. I'm not quarreling with your interpretation of it, and it's entirely probable that you're correct in what he said. What would the UNITED STATES vs SABRETECH ET. AL. - 11-15-99 25 government do to give you what they were going to use in their rebuttal case? They say they have given you and delineated the ones from their direct case. If they have not, you need to tell me that. They say they have given you all the statements. What they haven't done is delineate which specific ones they're going to use in rebuttal. They say they can't because they don't know if there is going to be a rebuttal in this case. The point is they say they can't anticipate. How could -- using the interpretation you placed on Judge Brown's words, how could they give you those statements in rebuttal? What should they have done? MS. RASKIN: Your Honor, I would suggest to the Court that they would do it the same way the government does in every single case in which it's required to identify all of the defendants' statements in Rule 16. Further, I would suggest that the judge's order is not instructing them to tell us necessarily each one that they absolutely will use. It's a rule of exclusion. He's saying the defendants are entitled to know what the universe of the defendants' statement that are out there that you might use any time during the trial. He made a very good point that we agree with wholeheartedly that these defendants are getting ready to stand up and give their opening statements. They are entitled to know what UNITED STATES vs SABRETECH ET. AL. - 11-15-99 26 statements of their's they think are out there. So we are not asking them to commit to introduce a particular statement in their rebuttal case or as impeachment. We are simply saying and what Judge Brown said is we need to tell them what the list of available statements are so they can intelligently prepare their case and make such critical decisions as to whether their client is going to take the stand. THE COURT: Maybe it boils down to the interpretation under Rule 16 of what a statement is. That may be the problem. You say in your submission that they ought to be required to do what they do in every Rule 16. If the defendant has made a statement to the investigating officers by way of a confession after a Miranda, you're dealing with one or two statements. Here, I'm not sure because I can't tell from the pleadings what the scope of this is, but I guess, and this is a guess on my part, that when you refer to 200 boxes, there must be a lot of documents that were signed by the corporate defendant. Or are we talking about individual defendants? MS. RASKIN: We are talking about all. I'll give you a perfect example. Your Honor knows that this case contains a conspiracy charge involving false statements and substantive false statement charges. That's at the heart of the government's case. The false statements are based UNITED STATES vs SABRETECH ET. AL. - 11-15-99 27 on mechanics' signatures on maintenance work cards. That's what the government says are the false statements in this case and that's going to be their evidence. Those 200 boxes of documents contains tens of thousands of pages of work cards just like that with scribbles that you can't understand and signatures that you can barely read. We don't know which, if any of those, work cards the government is willing to contend constitute statements made by the individual defendants and used them against them and used them against the corporation who is vicariously liable for the statements of the employees, and in fact, the confusion about this issue was highlighted very clearly a couple of weeks ago where the government wrote us a letter initially telling us they have identified an unindicted conspirator and then says; "oops, we are changing our mind. We were mistaken about a work card we thought he had signed and now we find out it's somebody else." It's not easy. We relied on the fact that they were going to go identify those documents in compliance with the Court's order. We didn't spend a month fly specking them because we assumed in good faith that the government would do what the Court had ordered them to do. They didn't seek clarification. The order was clear and we relied on it. If the government is permitted piecemeal to come in during the trial and introduce defendants' statements that they UNITED STATES vs SABRETECH ET. AL. - 11-15-99 28 have not identified, we are going to be horribly prejudiced, and our right to a fair trial is going to be compromised. THE COURT: All right. Mr. Brigham? MR. BRIGHAM: Thank you, Your Honor. Under Rule 16, the United States is required to disclose all defendant statements. That has been done here. The defense counsel has had full access to these documents and they have sent their attorneys to review these documents. In fact, many of these documents were supplied by SabreTech itself in response to a grand jury subpoena or were documents that were seized pursuant to a search warrant. In cooperation with SabreTech, the United States made copies of those documents shortly after the search. So, in effect, for a large portion of these documents SabreTech has had them not only for months but for years. At the time of the disclosure of these documents, the government's response to the standing discovery order, we supplied detailed indexes to these documents with descriptions and Bate numbers that could serve as an aid in reviewing these documents. In addition, many of these documents are self-evident. They have SabreTech letterhead on it. Employees, when they sign-off on maintenance records, have unique employee records which appear on the aviation maintenance documents. Effectively, what counsel is UNITED STATES vs SABRETECH ET. AL. - 11-15-99 29 suggesting is that we go and list everything that is in that room. But the bottom line is how useful is that? What we have is what we had at the beginning, an index of all the documents that were provided to the defense at the time the United States responded to the standing discovery order. In this particular case the defendants are asking for a Bill of Particulars. We understood the scope of Judge Brown's order to be different from how he ruled last Friday. At no time in written pleadings or during the oral argument was it specifically said that the production had to include any statements we might use as impeachment for any defense witnesses that we would be required to anticipate. At no time was it specifically said that the scope of that order included any statements that we might have to use a rebuttal. As we pointed out, in a complex aviation case of this type where the defenses are numerous, where we don't know who the defense witnesses are, they have not provided us a defense witness list or a comprehensive exhibit list, they have not provided us significant Jencks in this case. Yet we are required to anticipate the defenses witness for the purposes of impeachment and the defense themselves for purposes of rebuttal, and we believe that that is not a reasonable interpretation of the scope of the order as it should objectively stand in this case. We have provided the UNITED STATES vs SABRETECH ET. AL. - 11-15-99 30 statements of the defendants with respect to the government's case in chief, and we believe that that more than complies with the federal rule of procedure 16. THE COURT: Anything further, Ms. Raskin? MS. RASKIN: Your Honor, I just want to state again that what Mr. Brigham is doing, he's rearguing the motion that was heard by Judge Brown on October 7. The order was entered. We relied on it. It was clear. It was not limited. It was consistent with Rule 16. In fact, reduced the work that the government had to do under Rule 16. It did not expand it. They elected to indict a corporation. They can't now back away from it and say, "we are going to treat you like a corporation in court. We are going hold you vicariously liable for your employees' statements." In terms of discovery, that's too much work. Secondly, you heard Mr. Brigham say things -- THE COURT: You do have all of these documents. It's a question of knowing which ones they're going to use. Am I correct? At least, as far as you know, they've given you 200 boxes of material, and in those 200 boxes it is suggested that there is material that they may use, and the thrust of it is to find out precisely which of those documents are going to be used. MS. RASKIN: Your Honor, the thrust of our motion is to find out what they say are our statements. That UNITED STATES vs SABRETECH ET. AL. - 11-15-99 31 issue is not clear, what documents they even identify as a statement that they believe they can use against them. In response to the government's request that they not have to identify all of those statements, he restricted the scope of them and said you don't have to identify all of them, so at this point -- THE COURT: All right, all right. You have been very thorough. It is the ruling of the Court as follows: These matters, when a document is presented during the trial of the case that has not been furnished to counsel and that they feel that they are prejudiced by having handed it to them at that particular time or during the course of the trial, then they may object and we will excuse the jury and we will go into it, and follow the teachings of the 11th Circuit and sanctions if it was not given properly under the orders of the Court during the pre-trial discovery portion of the case, namely we have to make a determination what is the least horrendous sanction up to but including dismissal of the charges. We'll take that on a case by case basis. So if the government produces something that they haven't produced before and the defense needs one week or two weeks or three weeks to investigate it, we'll take that up at that point in time, whatever the 11th Circuit teaches. You said that these motions have been ruled on UNITED STATES vs SABRETECH ET. AL. - 11-15-99 32 and they are coming fast and furious to me at this moment. That is the ruling. The government will give to the defense those items that they intend to use the day before or evening before, the usual thing that they do in these trials. When it gets to the rebuttal case, it may be that we need to take a few days for the government to give to the defense anything in rebuttal and for the defense to re-evaluate it, whatever research they need to do, and if they can't do it in a time we have available, then move to dismiss the indictment, and we'll take it up at that time. Do I have your list of those who have answered the jurors who have an opinion? MR. RASKIN: We are almost there, Your Honor. MS. SILVERS: Marcia Silvers for Mr. Gonzalez. I don't know if the Court wants to take this time to take up a motion for a severance that we filed. THE COURT: I just assume getting the challenges out of the way so that we can excuse these people. MS. MILLER: We are ready with A through P. Shall we proceed? THE COURT: Yes. I imagine that would be the same list. So one of you can start. MR. RASKIN: Your Honor, should we read them out? THE COURT: You don't need to read them out. You can both give them to Ms. Kramerman. UNITED STATES vs SABRETECH ET. AL. - 11-15-99 33 MS. MILLER: Your Honor, we have 27 jurors as to whom we are in agreement they should be stricken for cause. Would you like me to give them to Ms. Kramerman? THE COURT: Why don't you hand the list to Ms. Kramerman and it will be appended as a court exhibit so the record will have the names and she'll instruct the jury section of those persons. They will be challenges for cause. MR. RASKIN: Your Honor, there are another 10 so far, and we are in disagreement as to whether they should be on that list. THE COURT: Let's deal with the ones that you are in agreement. MS. MILLER: It's a list of 27. Unfortunately, it's a handwritten list and it's not very legible. THE COURT: Well, hand it to Ms. Kramerman and she'll see if she can read them. THE COURT: Let the record reflect that we are sending down to the jury section the list of 27 agreed upon names that will be stricken for cause. The jury section will be notifying these 27 people that they are excused to serve on any juries or whatever the jury section deems appropriate, but they will not be brought up to jury selection this morning to this courtroom. We had 60 jurors this morning. So half of them UNITED STATES vs SABRETECH ET. AL. - 11-15-99 34 will be gone. The rest will all be sent up here. In the meantime, while that is happening I will ask you to give me the list of 10 or 12 that you disagree upon, and we will separate those out and not call them in the first group. We will not call them in the first group. We will take them last. While that is being accomplished downstairs, I believe Ms. Silvers wanted to talk about the motion on behalf of Daniel Gonzalez for a severance. MS. SILVERS: Your Honor, our motion is based upon the grand jury testimony of Robert Rodriguez who is scheduled to be a government witness. He was a mechanic at SabreTech. He testified that after the ValuJet crash, when the FAA's investigation was investigating on whether or not Eugene Florence falsely stated on a work card that there were safety caps on the oxygen generators, Mr. Florence was fired; and Mr. Florence walked into the hangar at SabreTech and Mr. Rodriguez was present, and Mr. Rodriguez asked him what happened and he said, "Danny Gonzalez set me up." Mr. Rodriguez further testified that he interpreted this to mean that Danny Gonzalez made him sign the paperwork. It's our position that obviously this incriminates Mr. Gonzalez and violates his confrontation rights in a joint trial. THE COURT: Tell me how it incriminates Mr. Gonzalez for Mr. Rodriguez to have said that he did UNITED STATES vs SABRETECH ET. AL. - 11-15-99 35 something wrong? MS. SILVERS: No, Mr. Rodriguez said that Florence said that Danny Gonzalez set me up. THE COURT: Perhaps I'm not understanding. You've got Mr. Rodriguez. Mr. Rodriguez comes in and he says to Mr. Florence? MS. SILVERS: Yes. THE COURT: He walks into the hangar and he talks to somebody. Who does he talk to? MS. SILVERS: Mr. Rodriguez testified that after the crash and after Florence was fired, he walked into the hangar. THE COURT: Florence walked into the hangar? MS. SILVERS: Yes. THE COURT: He says that he saw Florence come into the hangar and he heard him say something to the effect that Mr. Rodriguez, who was not present at this conversation, set him up? MS. SILVERS: No, Your Honor. THE COURT: I don't know how it's going to get in. It's all hearsay. If I can't figure out who the people are that are present. MS. SILVERS: Maybe I didn't make it clear enough. Mr. Rodriguez was in the hangar at SabreTech. He was a mechanic there. After Florence was fired, Florence UNITED STATES vs SABRETECH ET. AL. - 11-15-99 36 came into the hangar and Mr. Rodriguez asked Florence what happened. THE COURT: But two of them had a conversation? MS. SILVERS: Yes. THE COURT: Where was your client when this was going on? MS. SILVERS: The grand jury testimony doesn't reflect whether he was there or not. THE COURT: Then it's all hearsay anyway. I don't know how it's going to come in. These things happen. The government has to lay a predicate. They have to put Mr. Rodriguez on the stand. Say; Rodriguez, where were you on June 1st; I was in the hangar. What happened? Florence came in. Oh, what did he say to you? Oops, objection. No time place or predicate. Then they have got to lay a predicate, what was said, who participated. If they can do that, then they have got a shot at getting it in. If they can't, then you've got nothing to worry about. Ms. Miller, what's the predicate here? MS. MILLER: Your Honor, Mr. Rodriguez in grand jury did say, as Ms. Silvers said, he heard Danny Gonzalez set me up. But in debriefing him, Mr. Rodriguez has said he didn't hear that remark about Danny Gonzalez; therefore, we would not intend to introduce that. THE COURT: Then let's move on. UNITED STATES vs SABRETECH ET. AL. - 11-15-99 37 MS. SILVERS: That's fine, Your Honor. I didn't realize that. THE COURT: That's fine. That takes care of that. What else needs to be taken up before we get into jury selection? MS. MILLER: Your Honor, the government has filed a motion with regard to witness sequestration and in limine. THE COURT: The witness sequestration was handed to me as I came on the bench. It had to do simply with invoking the rule to keep all witnesses outside the courtroom. Any objection to that? MS. MOSKOWITZ: Your Honor, I got this after Your Honor got it. I just read it, and it said we shouldn't be allowed to have any experts in the courtroom. Rule 15 doesn't provide for that. The government should have the people that it really needs. But we shouldn't have the people that we need in the courtroom. We are perfectly happy to have all non expert -- THE COURT: Each of you can have one representative of your client. You can have your corporate officer and they can have their case agent. MS. MOSKOWITZ: The question is the expert. THE COURT: Why should they be permitted? UNITED STATES vs SABRETECH ET. AL. - 11-15-99 38 MS. MOSKOWITZ: Because they are often permitted. THE COURT: And often not. Tell me why they should be permitted. MS. MOSKOWITZ: Factual testimony regarding scientific and technical items and may render their opinion. THE COURT: That's why I seldom have any experts in here in any case. The difficulty in here is expert Jones gets on the stand for one side or the other and he testifies for a day or two. Expert Smith is sitting there listening to it and he gets on and he, point by point, makes a closing argument for defense or whoever, tearing apart the other guy's statement on the stand. That's just commenting on the evidence. They can't do that anyway. MS. MOSKOWITZ: That's fine. Aren't they more useful to the jury if their opinion is based on the same evidence that the jury is hearing? THE COURT: Presumably they have had the opportunity to review that and form their opinion before they were ever called upon to come in here and testify. I'll have to take this matter up when it comes up. Well, for presentation of evidence, which the way the jury selection is going, it will be about three weeks from now. I'll review your cases and study this. MS. MOSKOWITZ: I have no cases, and the UNITED STATES vs SABRETECH ET. AL. - 11-15-99 39 government has no cases. I just got this thing after you did. THE COURT: Then I'll do my own research and review it. I've had this issue come up. My general opinion is that it is a mistake for the experts to come in and regurgitate respective positions of parties in what amounts to be the closing argument for the jury. For that reason I'm disinclined to have it. We will see. I'll make a ruling on this prior to or after the opening statement. I'll have a better understanding of what it is that everybody intends to do. I made this clear to you before. Having people come in here and just say what individual mechanics did was or wasn't correct is not going to fly I think. Certainly something like what caused the crash, if that is within the experts, that may well be and probably will be good expert that the jury will need. You all have been working with the case from the pleadings. The Court is trying to make a determination in limine motions without knowing how it is going to come up. Just like the last little example we had, it goes away if we know how it comes up in the trial. We will make a determination on this later. I'll read the cases and review them myself. What's your next motion? MS. SILVERS: Your Honor, could I clarify briefly UNITED STATES vs SABRETECH ET. AL. - 11-15-99 40 our position on the issue because I didn't receive the government's letter? Now I'm understanding that Mr. Rodriguez, during debriefing, said that Florence said "they set me up" or "he set me up." THE COURT: I don't know what he said or what he didn't say. Before he testifies he will have to lay the proper predicate. What I heard Ms. Miller say, and correct me if I'm wrong, that Mr. Rodriguez is not going to say that he heard Florence say that Danny Rodriguez set him up. Am I correct? MS. MILLER: That's correct, Your Honor. THE COURT: You have to make the best of that. We are not going to play that out here. To that extent the motion in limine is denied. MS. MILLER: Your Honor, there is outstanding defense objection to the ruling of the magistrate Judge. That was made with regard to the motion to suppress. THE COURT: We'll pick that up after jury selection. THE COURT: Do I have a list of your ten that you say you are in dispute about? MS. MILLER: We are checking again to see if we can narrow that dispute. If you can give me a copy of the jury questionnaire. THE COURT: It is my understanding that the jury UNITED STATES vs SABRETECH ET. AL. - 11-15-99 41 section was going to do their best to give you all the jury questionnaires at a certain time. MS. MILLER: No, they have been trickling in, Your Honor. THE COURT: Your Honor, didn't both sides have all the questionnaires by noon of Friday? MS. MILLER: It appears that now we may not have totally matching sets. MR. RASKIN: Your Honor, we have a total of 149 questionnaires. MS. MILLER: We have not made a count of exactly how many we have. MR. RASKIN: We have 149 and an additional 244 which were returned. THE COURT: Well, it seems to me that counsel had an obligation to bring this to my attention on the 10th or the 11th of this month. MS. MILLER: Your Honor, we didn't know until we heard names from the defense that we didn't have them. We can't give notice of that which we don't know. THE COURT: Let's do this, then, let's start with the defense list and you hand me up, Mr. Moskowitz, the four, five or ten that you have, and I will read off the name, and Ms. Miller will look and see if she has got it. If she does have it, we will listen to the argument. UNITED STATES vs SABRETECH ET. AL. - 11-15-99 42 MR. RASKIN: Your Honor, I gave my list to the government agent. THE COURT: If the government agent will pick up the top one which both sides have a copy of the questionnaire. MS. MILLER: There are two more that we can agree to. Stephen Foster and Linda Embly. So we are down to 8. Your Honor, those 8 we don't have. If the defense has them, we may be able to quickly agree if they have a question that we don't have. THE COURT: Would you give Ms. Miller your 8. Yes, sir. MR. MAGERK: For the record, Your Honor, my name is James Magerk, (phonetic) I am an attorney. I represent two individuals who have been named as unindicted co-conspirators and one individual who is an immunized witness and who is going to, in all likelihood, testify in this case. I came here this morning to monitor the proceedings on behalf of my clients. I've just been notified that I, myself, may be a witness. I ask to be released from the sequestration rule so that I may attend the trial. THE COURT: Tell me everybody's position. MS. MOSKOWITZ: We don't object to releasing Mr. Magerk from that responsibility, Your Honor, because UNITED STATES vs SABRETECH ET. AL. - 11-15-99 43 otherwise he can't represent his client. THE COURT: There's a rule that says he can't be a lawyer in the same case. MS. MOSKOWITZ: He doesn't have a client in this case, just witnesses and he could do that. The rule doesn't preclude that. THE COURT: So you want Mr. Magerk to sit here when he is wearing the hat of an attorney representing unindicted co-conspirators, he needs to perform his professional responsibility, but on the other hand, if he has been called as a witness he has heard all the testimony, you have no objection to it? MS. MOSKOWITZ: No, we don't have any objection to it. THE COURT: Do you have any objection to it? MS. MILLER: No, Your Honor. THE COURT: Mr. Magerk, you can be eliminated from the sequestration issue. We have scattered the seats around the courtroom. If we eliminate 27 of them, there would be room. MS. MILLER: Your Honor, the government also has filed a motion in limine. We do not seek ruling on any of the evidentiary matters that it addresses at this point in the trial. We have raised it because we do wish to preclude argument as to the issues that are raised in the UNITED STATES vs SABRETECH ET. AL. - 11-15-99 44 motion. THE COURT: Well, the argument comes at the end of the case. MS. MILLER: I'm talking about opening statement. THE COURT: That's not argument. That's what counsel expects to prove. MS. MILLER: To the extent that counsel may expect to prove matters we think are inadmissible in this case, we have tried to pled them in the motion in limine so that inadmissible issues are injected at the statement. THE COURT: How does one determine the inadmissible issues without conducting a full scale evidentiary hearing? The better method, it seems to me, is to place the responsibility where the code of conduct, the cannons of ethics and the responsibilities of lawyers, it's on the shoulders of the lawyer making an opening statement. The penalty one pays if he stands up and says I expect to prove a, b and c, if they can't prove a, b or c is that the other side in closing argument says you heard lawyer Jones tell you that they were going to prove fact A, and you didn't hear anything around it, and you wrap it right around their neck. Counsel should not state to the jury anything they do not expect to prove in good faith. If they expect to show it in good faith, how am I to say that they are not talking to me in good faith in a UNITED STATES vs SABRETECH ET. AL. - 11-15-99 45 preliminary stage at this point? I don't know. If you tell me in good faith you expect to prove that this flight crashed in the Everglades, I have to accept it. They may think that you'll never get the evidence in and they may be right. Or conversely some other fact. That may be oversimplification of what may seem to be a complexed issue. Give me the best fact that you think they cannot prove that they're going to talk about? MS. MILLER: Your Honor, that Mr. Eugene Florence had his license suspended for a year and then got reinstated for the same conduct for which he is on trial. We think that it is inadmissible to seek to prove so administrative action that may have reinstated Mr. Florence's license, and we think it should not be alluded to in opening because that is a bell that can't be unrung. THE COURT: Why is it not admissible into evidence that his license was reinstated? MS. MILLER: Because the outcome of a collateral proceeding, I don't know if adjudicated is the right word, is not something that would be admissible in this case. It's a completely different proceeding. There's no collateral estoppel type effect. THE COURT: I presume then you would simply UNITED STATES vs SABRETECH ET. AL. - 11-15-99 46 object to it at the time, and if your legal position is correct, you would be sustained. It would never come into evidence. It would never be argued to the jury fearful that somebody would remember it. It would never be argued to the jury. If you're correct, it's not in the record. It couldn't be argued to the jury and anybody attempting to do that would face sanctions. MS. MILLER: Your Honor, that's not what we fear that someone would argue it after the Court ruled it inadmissible but rather in the openings statements. THE COURT: Who is going to argue this point? MR. RASKIN: Your Honor, respectfully we just received this motion. Can we take this up before openings and after the jury selection? THE COURT: Fine. MR. RASKIN: Your Honor, I have the jury questionnaires. THE COURT: Thank you. MS. MILLER: Your Honor, if I could look at them at the same time. THE COURT: Please look at them. Please look at them. MS. MILLER: Your Honor, looking at the questionnaires, we are able to agree with all of these names, that they should be stricken. My concern is we did UNITED STATES vs SABRETECH ET. AL. - 11-15-99 47 not have these questionnaires. That's why we didn't agree with them earlier. THE COURT: If you hand up to me, these are from your file Mr. Moskowitz; is that correct? MR. RASKIN: Yes, Your Honor. THE COURT: We will ask Ms. Kramerman to make a copy. MR. RASKIN: We have other copies of these, Your Honor. THE COURT: If you have another copy, then all we need to do is give Ms. Kramerman these names. MR. RASKIN: I have a list of the names. THE COURT: Give me the list of the names. If you've got a copy, maybe you can give Ms. Miller a copy and then we don't have to do anything else. Ms. Miller, he's going to give you a copy. For the record the names are Calvin, Chacon, Embry, Foster, Gastelando, Richardson, Rico, Rogerelies. We will include those 8 people. That then leaves, as I understand it. From the group that will be here, no one who has said they have formed an opinion about the airplane crash; is that correct? MR. RASKIN: Your Honor, Ms. Miller had additional names on her list who apparently said they have formed an opinion. We didn't have those. Those names are UNITED STATES vs SABRETECH ET. AL. - 11-15-99 48 on the list of your courtroom deputy. MS. MILLER: Your Honor, I made a list of all the names we found. We agreed to most of the names on the list, but some of them Mr. Moskowitz didn't have. So those names are still in contention. The problem is, we don't have the list anymore because Ms. Kramerman took that list. THE COURT: I thought I had instructed the two of you to look at the list that one of you had and that you would agree and you place a little check or okay by those. There were 27 names that you agreed to was my understanding. That list was given to Ms. Kramerman to phone downstairs to the jury section, to tell the jury section to excuse those 27 people for other jury service. Those people will not be up here in the courtroom, if I am correct on that. Now, then, additionally I've been handed this list of 8 names which will likewise be excused. That will mean that if they had approximately 60 there, although 60 is a little bit broader than that because these names come from an entire group, 60 were brought in at random today, we should have 30 to 35 people to be brought up. When they are brought up, we will give you those names and you can then hand up a joint agreed excusal for cause or something, and then excuse them at a break. Beyond that, we are about ready to get started. We will take just a five minute UNITED STATES vs SABRETECH ET. AL. - 11-15-99 49 recess while they bring the jurors up. Marshal, the jurors and spectators can sit anywhere they want to sit. It doesn't matter to me. We do have enough seats. We will fill up the side first. If we don't have enough spaces the spectators will have to wait outside. We will take a five minute recess. [There was a short recess]. COURTROOM DEPUTY: Court is in session. MR. RASKIN: Your Honor, we found 8 more. THE COURT: Hand them to Ms. Kramerman. [The jury returns to the courtroom]. THE COURT: Come on in here, folks. I'm going to ask you to take seats. As your names are called kindly step forward and have a seat in the jury box. COURTROOM DEPUTY: Carlos Tosca, Gloria Bouie, Jose Navarro, Anna Reilly, Norma Alverez, Ginette Yacinthe, Evilio Denis, Viola Jones, Annie Mosley, Jose Cupeiro, Jose Marin, Dorothy Alexander. THE COURT: Marshal, if you will get this microphone and get it ready. Ladies and gentlemen, we have scheduled for trial this morning, as you already know from having filled out the questionnaires, the case of United States of America v. SabreTech, Incorporated, Daniel Gonzalez and Eugene Florence. The lawyers representing the respective parties UNITED STATES vs SABRETECH ET. AL. - 11-15-99 50 are Caroline Heck Miller, and she is assisted by Geoffrey Brigham standing here. Do any of you know either of the two Assistant U.S. Attorneys? THE COURT: Ms. Miller you are assisted with? MS. MILLER: Jacqueline Breshay. THE COURT: Do any of you know Ms. Breshay? Thank you. The defense counsel is Mr. Martin Raskin, Ms. Jane Raskin and Mr. Norman Moskowitz for SabreTech, Incorporated. Do any of you know Martin Raskin, or Jayne Raskin, or Mr. Norman Moskowitz? For the defendant Daniel Gonzalez, we have Mr. Robert Dunlap standing here and Ms. Silvers standing here. The two of you represent Mr. Gonzalez. Do any of you know Mr. Dunlap or Ms. Silvers? We have Ms. Jane Moskowitz, attorney at law for Mr. Eugene Florence. This is Ms. Moskowitz standing here. Do any of you know Ms. Moskowitz or Mr. Eugene Florence? Mr. Dunlap, would you ask Mr. Gonzalez to stand? I'm sorry. Do any of you know him? All right. MS. MILLER: The parties did not file a joint summary. THE COURT: Well, this case is what is described as a criminal case. We have got civil cases and criminal UNITED STATES vs SABRETECH ET. AL. - 11-15-99 51 cases. This is a criminal case. We select 12 jurors with some alternates to listen to the evidence in a case which will come to you from this witness stand right here in front of you, this box here. The witnesses will come in and be sworn to tell the truth. They will testify on direct and cross-examination, a brief redirect. They will leave and the next witness comes. The case will proceed in that manner. The counsel will argue their respective issues to you and then you will be instructed on the law in which you will follow in reaching your decision and then the 12 of you will go out into the jury room and decide the case. You will decide the disputed issues of fact. You folks will resolve the disputed issues of fact. So your responsibility is to sit and listen with an open mind to the evidence without any bias or prejudice in any way to either side and listen to all the evidence, the examination, listen to the argument and instructions and then go out and talk about it among yourselves and resolve those issues that were material issues of fact and reach a verdict. What we ask is that you do that with an open mind, without any bias or prejudice, before you heard evidence or anything else. Do all 12 of you believe you can do that? Do any of you believe that you cannot do that? Can all of UNITED STATES vs SABRETECH ET. AL. - 11-15-99 52 you sit here for six weeks or less for that period of time and then decide the case fairly and base your verdict on the evidence that you hear in this courtroom and nothing else just in this courtroom? Can all of you do that? We appreciate you filling out the questionnaires. I know it's a chore to do that, but it will save time substantially in the jury selection process. This is just so that the lawyers can ask you a few questions and identify with that person. Marshal, would you hand the microphone to juror number one. Bear with me. Just a little bit about each of you. Stay seated, relax. Answer the questions and tell us your name. And basically what I'm going to be asking you is your name; your address; how long you've lived here; where you work and your family. And after I've gone through two or three of you, the rest of you will know the questions. VOIR DIRE BY THE COURT: Q. Sir, your name and where you live? A. Carlos Tosca. I live in Coral Gables. Q. How long have you lived in Dade County? A. All my life, 23 years. Q. How long have you lived here? A. 23 years. Q. What do you do for a living? UNITED STATES vs SABRETECH ET. AL. - 11-15-99 53 A. Mortgages. I work at a mortgage company. Q. What company do you work for? A. It's a family company. Service Mortgage. Q. How long have you worked there? A. Four years. Q. What do you specifically do? What is your job? A. I manage the office operation. Q. What does the company do? A. Mortgages, home loans. Q. Home mortgages, okay. Are you married, or do you have children? A. No. Q. Neither. Do you live with your folks or do you have your own apartment? A. I live at home. Q. Your folks work in the same business? Is your mother a housewife? A. My dad works at the Miami Herald. My mom works at the company. Q. Any brother and sisters? A. Two sisters, one brother. Q. Younger, older? A. All older. One of the sisters does mortgages. One brother does construction. The other sister works in the stock market. UNITED STATES vs SABRETECH ET. AL. - 11-15-99 54 Q. Do you believe you can be a fair and impartial juror if selected on this case? A. Yes. Q. Hand the microphone to the next juror. A. Gloria Bouie, Miami, Florida, North Miami. Q. How long have you lived in Dade County? A. About 14 years. Q. Where did you live before that? A. Oklahoma. Q. Are you employed outside the home? A. Yes, I am. Q. What do you do? A. I'm an insurance agent. Q. For what company? A. I work for County Auto Tech and Insurance in Hollywood. Q. Family? Married? Children? A. I'm married. I have four children, all grown, away from home. Q. What does your husband do? A. He owns a nursery, landscape and nursery. Q. Any of your children or your family members work for the Federal Government in any way, FBI, FAA or DEA? A. No. Q. Do you believe you can be fair and impartial? A. Yes. UNITED STATES vs SABRETECH ET. AL. - 11-15-99 55 Q. Hand the microphone over. A. Jose Antonio Navarro. I live in the Hammocks. Q. What do you do? A. I'm a Corrections officer. Q. At what facility? A. Dade. Q. Is that the state or county? A. State. Q. How long have you been there? A. Three years. Q. Married? Children? A. Married, no children. Q. Does your wife work outside the home? A. Yes, sir. Q. What does she do? A. She is a driver's license examiner with DMV. Q. How long? A. Approximately three years. Q. Do you believe you can sit here with us and render a fair and impartial decision in this case? Can you do that? A. Yes, sir. Q. Good. A. My name is Sandra Riley. I've lived here for 16 years. I live in Coral Gables. I work as a cashier. I don't speak too good English. UNITED STATES vs SABRETECH ET. AL. - 11-15-99 56 Q. Did you have someone help you fill out the questionnaire, or did you fill it out yourself? A. Somebody helped me. Q. There may be and probably will be a lot of documents in this case. Would you be more comfortable sitting on a different case where you didn't have to be too familiar with the English language? A. I don't understand what you are saying. THE COURT: We thank you, ma'am, but if there's no objection, if you'll go back downstairs to the 9th floor and tell them that you are available for another case. MR. RASKIN: No objection, Your Honor. MS. MILLER: No objection. A JUROR: I'm sorry. THE COURT: That's perfectly all right. Call the next juror. COURTROOM DEPUTY: Andrea Clayton. BY THE COURT: Q. Miss Clayton, could you hear what the lawyers said from where you were seated? A. Yes, sir. Q. Do you know any of the lawyers in the case? A. No, sir. Q. Would you tell us please where you live. A. In Carol City. UNITED STATES vs SABRETECH ET. AL. - 11-15-99 57 Q. How long have you lived in Dade County? A. Approximately 40 years. Q. Do you work outside the home? A. Yes, I do. Q. What do you do? A. I'm an assistant coordinator for Florida Power and Light. Q. How long have you worked for Florida Power and Light? A. 15 years. Q. Married, children? A. Divorced, two kids. Q. Either of your children working age? Do they work or are they in school? A. One in college and one in grade school. Q. Both in school? A. Yes. Q. All right, ma'am. Did you hear what I told the jury about their responsibility to listen with an open mind and decide the case fairly? Do you believe you can do that? A. Yes, sir. Q. Next. A. My name is Norma Alvarez. I work in Kendall. Q. Do you work outside the home? A. I'm a bookkeeper and office manager downtown in Miami. Q. What does that company do? UNITED STATES vs SABRETECH ET. AL. - 11-15-99 58 A. We are watch distributors. Q. How long have you worked there? A. 21 years. Q. Tell us about your family, married, children? A. I'm single with two sons. One in college and one in high school. Q. Do you believe you can be a fair and impartial juror if selected on this jury? A. Yes, sir. Q. Thank you. A. Ginette Yacinthe. Q. Where do you live? A. I live in the Northwest section of Miami, Biscayne Gardens area. Q. How long have you lived in Dade County? A. 23 years. Q. Do you work outside the home? A. Yes. Q. What do you do? A. Program specialist with the Federal Government, U.S. Immigration, Office of Internal Affairs. Q. How long have you worked for the immigration service? A. I have worked for the Federal Government for 20 years but I recently transferred to that section. Q. Where were you before that? UNITED STATES vs SABRETECH ET. AL. - 11-15-99 59 A. I started with the state department. I transferred to Human Health Services then to Justice Department with United States and Communication Service, and they sent me three years ago to Internal Affairs. Q. Was all of that in the local Dade County area? A. Yes, but I do travel. Q. When you worked for the Department of Justice what section? A. Community Relations Service. Q. Was that here? A. Yes. Q. In your present job would you tell us a little bit about what specifically you do? A. I do contracts for the Federal Government. We contract out for juvenile detention. Juveniles went through the country illegally and they don't go to detention so we contract with shelter care facility that provides assistance to them. I'm responsible for five contracts that I conduct site visits. Q. Many of your colleagues and friends are people that work for the government; is that right? A. Yes. Q. Would you be more comfortable sitting -- the government is sitting on one side of the case. Would you be more comfortable sitting on a different civil case that didn't UNITED STATES vs SABRETECH ET. AL. - 11-15-99 60 involve the government? A. It makes no difference. If I'm qualified to stay here I can. Q. Do you understand that it would be your responsibility and that of these other jurors to listen carefully to the evidence and then decide the case solely on the evidence and not on anything else outside the courtroom, any bias or prejudice; could you do that, ma'am? A. Yes. Q. Would you hand the microphone to the gentleman behind you. A. Jose Maria Cupeiro. I live in Kendall and I work in the accounting department. I live in Miami 22 years. My company is work freight forwarder. I speak so-so English and my understanding is sometimes understanding and sometimes not understanding. Q. Did you fill out the questionnaire, or did you get some help with the questionnaire. A. One of my daughters is 12 years old and she helped me in many questions. Q. Would you be more comfortable on a case that you didn't have so many documents to read? Do you think you would be more comfortable sitting on a different jury? A. I don't understand. THE COURT: Unless there is some objection, I UNITED STATES vs SABRETECH ET. AL. - 11-15-99 61 will excuse this gentleman for cause. Thank you, sir. You are free to go home. Call the next juror. COURTROOM DEPUTY: Elena Maria Arap. BY THE COURT: Q. Your name and where you live? A. Elena Maria Arap. I live in Miami. Q. How long have you lived here? A. 30 years. Q. Do you work outside the home? A. Yes. Q. What do you do? A. I work for Dade County Public School. Q. How long have you worked for the school system? A. Four years. Q. Family, children, married? A. Yes, I'm married and I have no children. Q. What does your husband do? A. He has a car wash. Q. You don't know any of the lawyers or any of the agents or the individual defendants? You don't know anybody connected with this case? A. No, sir. Q. Any reason you could not sit here and be a fair and impartial juror? UNITED STATES vs SABRETECH ET. AL. - 11-15-99 62 A. No. Q. Next. A. Dorothy Alexander. I'm a retired registered nurse. I've lived in Miami for 61 years. I'm a widow with three grown children. Q. What did you do -- well, you were a nurse. How about your grown children, what do they do? Are they in school? A. No, I have a son. My oldest is a correctional officer at DCI in Florida City. My daughter works for the planning department of Baptist Hospital. My son, youngest son, works for Baptist Hospital also. Q. Well, do you believe you can sit here and listen to the evidence and decide the case fairly and objectively? A. Yes. Q. Next. A. My name is Jose Marin. I live in Miami 19 years ago. I work in Broward County. Q. What do you do in Broward County? A. I work in the accounting department. Q. Married, children? A. I'm married. I have been with my wife for a long time. We don't have any children. Q. How long have you lived in Dade County? A. 19 years. Q. Do you believe that you can sit here and listen UNITED STATES vs SABRETECH ET. AL. - 11-15-99 63 carefully to the case and decide it fairly and objectively? A. I don't speak good perfect English. I don't understand some things. THE COURT: Unless there is some objection, I would be inclined, I think we are going to have a number of documents. Without objection, this gentleman is excused. Thank you. Next juror. COURTROOM DEPUTY: Edgard Mann. BY THE COURT: Q. Your name please. A. Edgard Mann. I live in Coconut Grove for 14 years and my job is a financial consultant for export financing. Q. Do you have your own business? A. Yes. Q. How long have you been doing that type of work? A. 14 years. Q. Does your wife work outside the home? A. No, she is a housewife. Q. Any children? A. No, no children. Q. Do you know any of the lawyers or the parties to this case? Do you know any of these people? A. No. Q. Do you or do any of you have any friends or relatives that work for the United States Attorneys' Office here in UNITED STATES vs SABRETECH ET. AL. - 11-15-99 64 South Florida? A. No, sir. Q. Do you believe you can be fair and impartial on this case? A. I do. Q. Thank you. The lady next to you. A. Good morning. My name is Annie Mosley. I have been in Miami for 43 years. I have four children. Q. Do you work outside the home? A. No, I don't. I'm retired. Q. What did you do before you were retired? A. I was a cook at Dade County School, and I was a cook at the airport. I also was a PBX operator at hotels. Q. Where did you work at the airport? A. In the cafeteria. Q. How long ago was that? A. That has been about 18 years. Q. Your grown children, what do they do? A. My daughter works for Dade County. She is an accountant for Dade County. I have three sons. One is a roofer, one is a cook and one is a construction worker. Q. Well, do you believe you can sit here with these other folks and talk about the case and decide the facts and decide it fairly and objectively? Can you do that? UNITED STATES vs SABRETECH ET. AL. - 11-15-99 65 A. Yes, I can. Q. Ma'am? A. Viola Jones. I'm a resident of Northwest Miami. I'm a single mother of three. I'm telemarketing for Craftmatic adjustable beds. Q. How long have you been doing that? A. A year and a half. Q. Before that what did you do? A. Burdines. Q. Your children are small children? A. Yeah, 11, 9 and 8. Q. Do you believe that you can listen to the evidence in the case and decide it fairly and objectively? A. Yes. Q. Thank you? A. My name is Denio Roman. I live in Miami for 14 years. I'm sorry, I don't speak English. When you speak to me, I don't understand. THE COURT: Unless there is some objection, I will excuse this gentleman. COURTROOM DEPUTY: Alejandro Gutierrez. THE COURT: Q. Your name please. A. Alejandro Gutierrez. I live in Miami. West Chester. I've lived here approximately 26 years. I currently work UNITED STATES vs SABRETECH ET. AL. - 11-15-99 66 for Florida Power and Light. Q. What do you do for Florida Power and Light? A. I'm involved in the bill collections. Q. How long have you worked for them? A. Approximately 11 years. Q. Married, children? A. Married. No children. Q. Does your wife work outside the home? A. Yes, she works for Dade County Public Works department. Q. What does she do there? A. Accounts payable. Q. How long has she worked there? A. I believe three years. Q. Well, do you know any of the people that I've introduced to you earlier? A. I know one of the jurors. Q. The two of you work together? A. We work for Florida Power and Light. Q. If selected on the jury panel, the two of you would be expected to exercise your own independent judgment and decide the case fairly and objectively yourself without regard to the fact that you work for the same company or happen to know each other slightly. I'm sure both of you can do that, can you not? A. Yes. UNITED STATES vs SABRETECH ET. AL. - 11-15-99 67 THE COURT: This is one question I'll ask of all of you, and we'll see if we have any excuses. If any of you have served as a juror prior to this time, first of all, hold up your hands. How many, if any, have served as jurors before this? Two ladies. All right. Were either of you foreperson of that jury? A JUROR: No. A JUROR: Yes. THE COURT: When was that, ma'am? How long ago? A JUROR: Three or four years ago. THE COURT: What court was that? Was it state or federal? A JUROR: Dade County. THE COURT: Was it a civil or criminal case? A JUROR: It was civil. THE COURT: And the jury reached a verdict without any difficulties? A JUROR: Without any difficulties. THE COURT: All right, ma'am, how long ago was it that you served, ma'am? A JUROR: It was maybe about ten years maybe. THE COURT: Was it a criminal case, a civil case? A JUROR: Civil. THE COURT: Was it over in the Dade County courthouse? UNITED STATES vs SABRETECH ET. AL. - 11-15-99 68 A JUROR: Yes. THE COURT: Did the jury reach a verdict okay? A JUROR: Yes. THE COURT: The other requested special voir dire questions, the motion is denied. Do either side have any other questions that you want me to consider before we commence the challenging process? [The attorneys confer at counsel table]. THE COURT: All right. Let's move along. MS. MILLER: Your Honor, we believe there's one matter that is to be taken up at the bench. THE COURT: Just write it down and hand it up to me. I can't have a side bar with eight lawyers and 100 people in the room. We are going to have to excuse all of these people unless you can jot it down. MS. MILLER: I can, Your Honor, if you give me one second. MR. RASKIN: Can one counsel come from each side to side bar? THE COURT: I can handle that. One from each side. (Sidebar proceedings off the record) MR. RASKIN: THE COURT: Mr. Tosca, we thank you very much. UNITED STATES vs SABRETECH ET. AL. - 11-15-99 69 You may go home, sir. Ladies and gentlemen, remember the seats you are in, the 1 of you. You folks go into the jury room and help yourself to a cup of coffee while I take up some legal matters with the attorneys. If you folks in the seats in the courtroom if you step out in a the lobby please do not talk about the case and if the jurors will all wait outside please. [The jury leaves the courtroom]. THE COURT: Are there any jurors remaining in the courtroom? Thank you, be seated please. Now, I have here a motion by Mr. Moskowitz to excuse for cause Mr. Mann, M-A-N-N. I'll hear from you Mr. Moskowitz, your motion is based upon the answers on page 11. What is the government's position? MS. MILLER: This juror has stated that he can be fair in this case. He has reflected simply having heard the case which is not an unusual matter. That does not disqualify him from sitting as a juror. It's not close to a matter for excuse for cause. We object. THE COURT: Vicki, bring Mr. Mann back in. We will start this questioning. COURTROOM DEPUTY: He is in the restroom. THE COURT: Ask Maria Arap to step in please. A-r-a-p. UNITED STATES vs SABRETECH ET. AL. - 11-15-99 70 Miss Arap, you have responded on the question that "have you heard about the crash of ValuJet flight 592;" you said yes. I'm going to let you read it or I can read it to you. You said that it was due to poor maintenance. What have you heard? A JUROR: I heard the crash was due because of lack of maintenance. THE COURT: Where did you hear that, ma'am? A JUROR: I can't remember. I think it was on T.V. THE COURT: Is that where you get most of your news from the T.V.? A JUROR: Yes. THE COURT: When was it, if you remember, that you heard about it on the T.V? A JUROR: At the beginning when it happened. THE COURT: Now, then, you will be instructed that you should let nothing come to your minds except what you hear in this courtroom. You will be instructed each day that if there is anything on the T.V., on the news or the radio that you should not read it, watch it, or listen to it. In short, you should let nothing come to your attention except what you hear in this courtroom. In your opinion, what you have heard, whenever it was, did it cause you to form an opinion at this point in UNITED STATES vs SABRETECH ET. AL. - 11-15-99 71 time as to guilt or innocence of anyone? A JUROR: No, sir. THE COURT: Did it affect your thinking in some way that you think someone is probably guilty or not guilty at this point before you hear the evidence? A JUROR: No, I cannot form an opinion yet, Judge. THE COURT: Mr. Moskowitz? MR. MOSKOWITZ: Your Honor, could you inquire whether she has heard any publicity since the time she has filled out the questionnaire. THE COURT: When is the last time you heard anything about the crash? A JUROR: Two or three years ago. It was in 1996, right? THE COURT: Fine. Thank you very much. Please don't discuss anything about the case. Would you go back into the jury room. The record should reflect that it is the ruling of the Court that the motion for dismissal of Marie Arap for cause is denied. Mr. Mann, come right on in. Have a seat. Mr. Mann, you had answered in the questionnaire that you had heard about the airplane crash of ValuJet flight 592, and you said here: "It happened in the Everglades due to an UNITED STATES vs SABRETECH ET. AL. - 11-15-99 72 explosives of gases kept in the plane and mishandled by the cargo crew." In your own words, tell us what you remember hearing or reading about the crash. A JUROR: I remember that after the crash it was argued that it was a failure of the engine first and then it was found out that it was apparently some gas which exploded. My memory was recently refreshed on Saturday when I read an article in the Miami Herald with problems that the plane had. THE COURT: Did these articles, the one on Saturday and the one that you heard about earlier, did they cause you to form an opinion as to who was responsible or what happened as to guilt or innocence? A JUROR: No, I just read it on Saturday, and I wanted to refresh my memory to see what it is all about. THE COURT: Do you have an opinion as to guilt or innocence as you sit here right now? A JUROR: I do not. THE COURT: Anything that you've heard on T.V. or read about the newspaper caused you to have any probable belief, that is to say, someone is probably guilty or probably innocent? A JUROR: Well, in thinking about it, I understand that there is one person who did not appear in the trial, apparently a fugitive. I don't know if I'm UNITED STATES vs SABRETECH ET. AL. - 11-15-99 73 correct. THE COURT: Q. Other than that person, if there is such a person, do you have any probable feelings as to guilt or innocence in the trial of this case? A. No. Q. If I instruct you that you should base your verdict only on the evidence that you hear in this courtroom can you do that? A. Yes. Q. Are you sure that if I tell you that you have to put aside anything that you may have read last week or last Saturday and base your verdict solely on what you hear in this courtroom; can you do that? A. Yes. THE COURT: Thank you, sir. You may step out. Do not discuss anything in the jury room about this case. Marshal, we will ask you to call Ginette Yacinthe. It is the ruling of the Court that Edgard Mann will not be discharged for cause. If counsel wants to get rid of him they can peremptorily challenge him. Ma'am, wherever you are comfortable here. You have answered on your questionnaire that you have heard about this airplane crash. You say; "I'm aware that they were transporting flammable or explosive type and were not UNITED STATES vs SABRETECH ET. AL. - 11-15-99 74 officially" -- A JUROR: My handwriting is terrible. THE COURT: "-- not officially declared which may have exploded in mid air and caused the cash." And you said you probably saw it on T.V. Tell us in your own words what you remember about whatever you saw on T.V. or read or heard, whatever it was, as best you recall. A. Maybe a combination of both, maybe T.V. or newspaper. What I recall is exactly what I put down, that there was something happening. Q. Just what you put here? A. Yes. Q. Did this cause you to form any opinion in your own mind as to the probable guilt or innocence of anybody connected with the case? A. No, sir. Q. As you sit here now, do you have an open mind to listening to the evidence that comes in this case and decide it fairly on the basis of what you hear today? A. Yes, sir. Q. Can you do that? A. Yes, sir. Q. Now, if I instruct you that you should put anything out of your mind that you may have heard, by the way, when did you hear about it last? UNITED STATES vs SABRETECH ET. AL. - 11-15-99 75 A. At the time that it was making headlines, and I cannot hide the fact that I was made aware of it when I was asked a question. A. Certainly, but that's the last time you heard about it? A. Until 2 nights ago. It was too brief for me to even capture it. They were talking about the crash but I didn't hear it. Q. You read that article several days ago? A. No, I heard it on the news. It was brief. Q. Which is your principle source of news, T.V. or the newspaper? A. Both. Q. But you heard something about it very recently? A. It could be two nights ago. Q. Did that cause you to have any opinion about the probable guilt or innocence of anyone? A. No, sir. Q. Are you sure that you can be fair and objective in this case? A. I'm positive that I can be fair. Q. I will be instructing you to put out of your mind anything you heard or have seen or read except what you hear in this courtroom. I will be telling you to do that. Can you follow that instruction? A. Yes. UNITED STATES vs SABRETECH ET. AL. - 11-15-99 76 THE COURT: Don't discuss anything here in the courtroom with anybody. You can talk about anything else but not about this. MR. MOSKOWITZ: Your Honor, may I raise a matter briefly with you? THE COURT: All right. MR. MOSKOWITZ: Your Honor, with regard to Ms. Yacinthe, she is an INS employee. She is a long time United States government employee. INS is a branch of the Justice Department. We ask that that is a basis for a cause challenge as well. THE COURT: I asked her about that when we conducted the original voir dire. I went into this matter whether she would be more comfortable being on another jury. She said no, she felt qualified to serve. Both basis, both on publicity or works for INS, for cause are denied. MR. MOSKOWITZ: With regard to the request on publicity, I would make the following requests: For example, with regard to Mr. Mann, he expressed an opinion as to what caused the crash. He said it was explosive gases. Your Honor then asked if he thought he had an opinion as to guilt or innocence. He said no. The problem is these jurors may not realize that these individuals who are on trial can arguably be held responsible for causing UNITED STATES vs SABRETECH ET. AL. - 11-15-99 77 that crash, THE COURT: You see, Mr. Moskowitz, we have got a charge conference yet to go through, we have got Rule 29 motions, then instructions to the jury. The jury hasn't heard any of these instructions or been asked can you be fair. They don't know that they're going to be told that they must put out of their minds anything connected with the case that they have heard. We are asking them unfairly. We should tell them first. That's why getting into all of this. Your motion is denied. Bring Gutierrez. You don't get all of your peremptories on cause. Bring in the next juror. Take a seat, sir. This is with respect to the questionnaire you filled out. To refresh your recollection you said that you had heard about an airplane crash in the Everglades. You were asked what do you know about the crash and its causes. You said; "containers in the engine may have exploded in midair causing airplane to crash." In your own words, please, tell us what you heard or remember hearing or remember reading about the crash beyond what you just said or whatever you remember. A JUROR: I just vaguely remember that the consequences may have been these oxygen canisters or the cause not the consequence. I don't know much more detail UNITED STATES vs SABRETECH ET. AL. - 11-15-99 78 beyond that. THE COURT: Q. Did this come to you by T.V., newspaper, both, if you remember? A. Probably T.V. Q. Do you remember when it was that you heard this on T.V.? A. Originally a couple years ago when it happened. Just recently about a couple months ago in the news. Q. When is the last time that you heard or read anything about the crash as best you recall? A. Just this morning that the trial was beginning. Q. You heard that the trial was beginning but other than what we sent you in the questionnaire, other than that; newspaper or television, when is the last time from newspaper or television as best you recall? A. As best I can recall probably two months ago on T.V. Q. Have you formed any opinion as to these matters, that is we are going to have a trial. There are going to be witnesses. You are going to be instructed to base your verdict on the witnesses and not on anything that may be in the paper. You are going to be instructed not to read anything about the crash, if anything should be in T.V. or anything like that. First, can you follow those instructions and base your verdict solely on what you are UNITED STATES vs SABRETECH ET. AL. - 11-15-99 79 going to hear in the courtroom? A. Yes, I can follow the instructions. Q. Do you think that what you heard or read several months ago was so powerful in your mind that it causes you to have some opinion that you can't set aside if the evidence should be so convincing? A. No, I don't know the details. Q. As you sit here now, do you have any pre-conceived notion or present idea or opinion as to the guilt or innocence of anyone connected with the charges in this case? A. No. Q. Are you willing to rely upon the evidence as it's presented and the argument of counsel and instructions to form your opinion and base your verdict that way? Are you willing to do that? A. Yes. Q. You will be instructed that the government has to prove each and every element of this defense beyond and to the exclusion of all reasonable doubt. Can you follow that instruction? A. Yes. Q. Anything about this pre-trial publicity cause you any hesitancy to be a fair juror? A. No. THE COURT: Don't discuss your conversations. UNITED STATES vs SABRETECH ET. AL. - 11-15-99 80 [The juror leaves the courtroom]. MR. MOSKOWITZ: May Ms. Miller and I approach, Your Honor? THE COURT: Yes. MR. MOSKOWITZ: Your Honor, with regard to this juror. His answer to question 43 indicated that he personally is involved in investigations and in his answer to Your Honor earlier he said his work was bill collections and fraud. THE COURT: So. MR. MOSKOWITZ: I was hoping Your Honor could question him about that. It sounds like he is almost in private law enforcement. THE COURT: This wasn't a menu where you can cook up another -- you had plenty of time to ask all the questions you wanted on this questionnaire. What you've done now is take the questionnaire and that precludes to another 100 questions. Publicity is one thing. But you know what he does for a living. If you want to challenge him you can. The objection on cause on Alejandro Gutierrez is denied. Send in the next person. Jose Antonio Navarro. This man says his vacation starts today. He told the marshal this after he is sitting here. Anybody object too that? UNITED STATES vs SABRETECH ET. AL. - 11-15-99 81 MS. MOSKOWITZ: No, sir. MS. MILLER: Probably not. THE COURT: Your vacation starts today, sir? A. Yes, sir. Q. How long is it? A. I come back Friday. Q. So you are suppose to be off this week? A. Yes, sir. Q. Do you want to be excused? A. If I may, sir. It was hard for me to get those days off. THE COURT: Without objection, you may go home. Send in Viola Jones please. Q. Ms. Jones, wherever you are comfortable. Ms. Jones, on your questionnaire you said that you heard about this airplane crash and you said; "that it went down and killed a great deal of people. I don't know anymore." Later on you said "that it went down in thick water and killed hundreds of people." Tell us anything more, if there is anything, that you remember hearing about the crash except what you told us here today. A. That's pretty much what I know. I never really thought about it. I know it went down and they couldn't find it. That was pretty much it. I never followed it up. It was sad and I just went on. I never did dwell on it. UNITED STATES vs SABRETECH ET. AL. - 11-15-99 82 Q. And T.V. is where you heard it? A. Yeah. Q. When was it that you heard it on T.V.? A. The morning that it had happened and then it was on a couple of days, but I was like flicking the channel. I kept hearing that the plane went down and then I got sick of it really. Q. When is the last time that you heard anything else about it except for getting these papers from us. It was several years ago? A. Yeah. It was like maybe a week after it happened and then I received the papers that you guys sent me. Q. As you sit here now, do you have any notion, any opinion, any pre-conceived notion of guilt or innocence of anybody? A. No, sir. Q. If I tell you that you should listen carefully to the evidence and the argument of the lawyers and the evidence of the case can you do that? A. Yes. THE COURT: Any other questions, Mr. Moskowitz, that you an issue about? MR. MOSKOWITZ: No, Your Honor. THE COURT: Thank you. You may step back into the jury room. Send in Annie Mosley please. UNITED STATES vs SABRETECH ET. AL. - 11-15-99 83 The motion for cause on Jones is denied. Bring in Annie Mosley. Ms. Jones have a seat right there at the end. Q. Ms. Jones, tell us what you heard or read anything about the airplane crash. A. I don't really know anything about it no more than when it first happened. Q. The time that you saw that on T.V. was back in 1996? A. I guess so. Q. Have you heard anything since that then? A. Well, yes. Q. When was that? A. I believe that was this morning when they said they were going to start picking a juror for it. That's all I heard. Q. So you heard that you might be sitting on the airplane crash jury. Is that what you heard? A. No, I didn't hear that I might be sitting on it. I just heard on the T.V. that they were going to start picking a jury today. Q. That was on T.V. today so you heard that? A. Yes. Q. As you sit there, do you have any opinion about guilt or innocence of anybody before you hear the evidence from this courtroom? UNITED STATES vs SABRETECH ET. AL. - 11-15-99 84 A. No, I don't. THE COURT: Any other portion of the questionnaire that you have any question about? MR. MOSKOWITZ: Your Honor, may we approach? THE COURT: Which question? MR. MOSKOWITZ: 35, Your Honor. THE COURT: Q. 35, 11 years ago, a member of your family or someone was involved in a criminal investigation. Who was that? A. 11 years ago? Q. You said here that there was a guilty plea. The question is: "Have you or any member of your family or someone ever been a involved in a criminal investigation." You said yes. "Was there an arrest," "yes." The outcome was guilty. "When did it happen?" "11 years ago"? A. Oh, that was my son. Q. What was the nature of the charge? Was it state or federal? A. It was Federal. Q. What was the nature of the charge? A. Drugs, I believe. Q. Is that all finished and over with? Did he go to jail? A. Yes, he did. Q. Is he out now? A. Well, he is in a halfway house now. UNITED STATES vs SABRETECH ET. AL. - 11-15-99 85 Q. Does that cause you to be prejudice against the government or against the defendant? A. No. Q. Can you be fair and objective? A. Yes, I can. THE COURT: Thank you, ma'am. Send in Norma Alvarez please. The objection for cause on Annie Mosley is denied. THE COURT: Q. On the questionnaire you responded that you did hear about an airplane crash in the Everglades. "As a consequence of carrying on the cargo compartment oxygen canisters" and you say that the oxygen exploded because of the oxygen canisters and everybody died as a result of the crash. It was three or four years ago and you heard that one of the defendants is not going to be tried. You indicated that you saw this on T.V. and newspaper and talking about it with other people. Can you tell us what you heard at the time or read. A. Saturday it was on the newspaper about the defendants are going to do this and the prosecutors are going to do the other, they are going to try to prove that it's wiring. Q. And you read the article Saturday? A. Yes, sir, and I heard on the news yesterday and today in the morning. UNITED STATES vs SABRETECH ET. AL. - 11-15-99 86 Q. Do you believe that with all of this background material that you've read that it would be hard for you to put that out of your mind and base your verdict on the evidence in the courtroom? A. I have more or less an opinion in the case. THE COURT: We thank you, ma'am. I will grant the motion. We will let you go back to the jury room. Are there any others that I didn't have that are on this panel? That disposes of all the motions for cause on the panel that is now constituted. The next two or three jurors that we are going to call are in the blind random assignment of the clerk's office has sent up to this jury room the next three or four jurors are: COURTROOM DEPUTY: Antonio Garcia, Melvin Hardy and Roberta McClam. THE COURT: Do you have any suggested challenges for cause as to either of them? The first one, Garcia never heard about anything. MR. MOSKOWITZ: Your Honor, can we determine whether since the date of the questionnaire, with regard to this juror since the date of the questionnaire he has heard publicity or knows about the case? THE COURT: Well, we should have brought in ten a day for sixty days. MS. MILLER: This juror says that he does have UNITED STATES vs SABRETECH ET. AL. - 11-15-99 87 trouble. It says do you read, write and speak the English language and he says no. It's on the very first page of the questionnaire, the form part in the left hand column, question number four, "do you read write speak or understand the English language." It says no. THE COURT: He will be excused for cause. The next one is Melvin Hardy. He heard about it and puts in a question mark and didn't fill in any of the blanks. MR. MOSKOWITZ: Your Honor, we would request that Mr. Hardy will be asked about the knowledge of the crash. THE COURT: All right marshal, step out and ask the juror to come in. Mr. Hardy, step right up to the podium here. Mr. Hardy, let me ask you a couple of questions. THE COURT: Q. You said that you heard about an airplane crash but you indicated that you didn't know much about it. What do you know about it? A. Just what was on the news. That's all. Q. When was the last time you heard anything on the news? A. A long time. Q. You can't remember anything you heard; is that right? A. Anything else, that was it. Q. Do you have any opinion about guilt or innocence of any UNITED STATES vs SABRETECH ET. AL. - 11-15-99 88 of the parties based on anything you've read or heard? A. No. THE COURT: Thank you. You may step out. COURTROOM DEPUTY: Roberta McClam. THE COURT: I take it you have no motion for cause on this one? MR. MOSKOWITZ: No, Your Honor. With regard to Roberta McClam, we also would like to question on question 35. THE COURT: Miss McClam, just step up to the podium. Q. You said on your questionnaire that you had heard something about a crash but didn't know anything about it. Do you remember anything about what you heard or read or saw about the crash? A. No, Your Honor, none other than what the news brought on when the crash had occurred. Q. Was that, several years ago? A. Yes. Q. Have you heard anything recently about it except the stuff that we mailed to you? A. No. Q. You've got a fair and open mind on the case? A. Yes, I do. Q. This has to do with the family, friend, member of the UNITED STATES vs SABRETECH ET. AL. - 11-15-99 89 family that had a problem with the criminal case 25 years ago or whenever it was. No, it occurred in '92, '93. Who was that person that was charged in that case. Was that a relative? A. My brother was involved. Q. Was he sent to jail? A. No, sir. Q. He was found not guilty in the case? A. Yes. Q. Anything about that that would cause you to be prejudice against the government or the defendants or anybody in this case? A. No. MR. MOSKOWITZ: Your Honor, question 42, Your Honor. BY THE COURT: Q. What training have you had with the airline industry? A. I worked there. I do food productions, catering for LSG sky chef. Q. When was that? A. I'm employed there now. I've been there for 23 years. Q. What is your duty there? A. Cold food catering to the aircrafts, preparing the food on the planes, that's it. Q. Where is that done? UNITED STATES vs SABRETECH ET. AL. - 11-15-99 90 A. It's 25 Street, 37th Avenue. Miami International. Q. Would that affect your verdict in any way? A. No. MS. MILLER: Your Honor, question 35 of my questionnaire says that it was not an acquittal, it was a sentence. THE COURT: But her brother was involved she said. BY THE COURT: Q. Your brother was tried with some other people? A. It was two questions there. One brother was sentenced and my other brother was involved in an accident of some sort. I have no awareness of that case either. Q. The brother that was sentenced, did he plead guilty? A. He pleaded not guilty. Q. And he was found guilty in a trial? A. Well, they sentenced him, yes. Q. That happened in '92 or '93? A. Yes, sir. THE COURT: Thank you, ma'am, you are excused. THE COURT: Any for cause by either one of you on that one? MR. MOSKOWITZ: No, Your Honor. THE COURT: Who is the next juror? COURTROOM DEPUTY: Anna Teresa Meyer. UNITED STATES vs SABRETECH ET. AL. - 11-15-99 91 THE COURT: Q. Ms. Meyer, you said that you heard or read something about an airplane crash and something about an oxygen tank that caused the crash. You read this about a year ago in the newspaper. Is that the last time you heard or read anything about the crash? A. Yes. Q. Do you have any opinions now? Do you have an opinion about guilt or innocence before you hear any of the evidence based on what you've heard or read? A. The only opinion I have is that the oxygen tanks caused the crash. Q. Now, if the evidence in this case proves to your satisfaction that that did not happen, if there's no evidence that that did not happen at all, which would you base your verdict on, the newspaper story or what happened in the courtroom? A. What I hear in the courtroom. Q. Could you put aside the opinion that you formed when you read the newspaper account, and if I tell you that this is what you must do, could you put that aside and base your verdict only on what you hear in this courtroom? Could you do that? A. Yes. Q. Do you have any problem with that at all? UNITED STATES vs SABRETECH ET. AL. - 11-15-99 92 A. No. Q. You understand that a lot of things that are said in the newspaper may not ever be proved at all, but it's what the proof is in this case that you base your verdict on. Can you understand that? A. Yes. Q. Can you follow those instructions? A. Yes, sir. THE COURT: Any other questions on any other part of the questionnaire? MR. MOSKOWITZ: Your Honor, question 38 and 39. THE COURT: Q. Anybody other than your son-in-law been involved with law enforcement? A. No, sir. Q. Where is your son-in-law now? A. He is a corrections officer. Q. Where? A. I don't know. Q. Locally? A. Yes, in Miami somewhere. Q. How long has he done that type of work? A. 15 or 16 years, something like that. Q. Would that affect your verdict here? Would that cause you to be bias or prejudice, the fact that your son-in-law UNITED STATES vs SABRETECH ET. AL. - 11-15-99 93 works for the state, would that cause you to be bias or prejudice in any way? A. No, sir. MR. MOSKOWITZ: Question 38. BY THE COURT: Q. 38. Where does your daughter work? A. She is a court reporter for Braun and Vega. Q. That's a law firm? A. It's a court reporter firm. Q. Here in town? A. Yes, sir. Q. How long has she been doing that type of work? A. Maybe 15 years. Q. Would that have any bearing on your decision as a juror in this case? A. No, sir. THE COURT: Thank you, ma'am, you may step out. Any motions on this juror? MR. MOSKOWITZ: Yes, Your Honor. MS. MOSKOWITZ: Your Honor, Braun Vega are the court reporters in the civil litigation, in the personal injury litigation that are going on simultaneously and have taken all the depositions in that case. THE COURT: Given that factor, any objection to her being excused? UNITED STATES vs SABRETECH ET. AL. - 11-15-99 94 MS. MILLER: Yes, Your Honor, unless she shows some evidence that that has effected her in any way. She may not even know what her daughter works at. We object to that being a basis for a cause challenge. She doesn't even know where her son-in-law works. MS. MOSKOWITZ: As far as I understand, her daughter is where we got the information for looking in the articles. Why should we take that risk? THE COURT: She said she read it in the Miami Herald. MS. MOSKOWITZ: I think she said something about her daughter giving her the information. It's a big case in that office. I don't understand why we should want to take that risk. Some of the witnesses that are being called by the government to testify gave those depositions. Moreover, Your Honor, may recall, well, I don't know that Your Honor had any knowledge of the case at the time but there was a time when some -- THE COURT: I'll reserve ruling on this and ask her some more questions when she is called in. Let's bring all the jurors back. We now have all the causes except the one on Ms. Meyer. MR. MOSKOWITZ: Your Honor, we would move for additional peremptory challenge. THE COURT: Yes, I've considered your written UNITED STATES vs SABRETECH ET. AL. - 11-15-99 95 motion. That motion is denied. Tell the other jurors also marshal, out front to come in. All of them. [The jury returns to the courtroom]. THE COURT: As your names are called step forward and have a seat in the jury box. Just have a seat there. COURTROOM DEPUTY: Anna Meyer, Melvin Hardy, Roberta McClam. THE COURT: Miss Myers, while we are waiting on Mr. Hardy to come in, your daughter has worked as a court reporter and you told us about that -- THE COURT: Mr. Hardy is gone? MR. MARSHAL: He is not out there. THE COURT: Did you check the mens room? MR. MARSHAL: Yes, sir. THE COURT: I think he misunderstood when I said he was excused to go back out there. BY THE COURT: Q. Ma'am, how often do you see your daughter that works as a court reporter? A. Quite often, every week. Q. She is married? A. Yes, she is. Q. She doesn't live with you? A. No. UNITED STATES vs SABRETECH ET. AL. - 11-15-99 96 Q. Just answer the next couple questions yes or no. Have you talked with your daughter about anything that involves this case? A. Yes. THE COURT: The motion is granted. Miss Myers. You are excused. COURTROOM DEPUTY: Jose Bringas and Eugene Newton. THE COURT: Hand the microphone down to juror number five. COURTROOM DEPUTY: Mr. Hardy is back in the courtroom. THE COURT: Come on in, Mr. Hardy. Take seat number one. Mr. Bringas, you are excused. Ms. Newton is number 3. Please pass it to Ms. Newton. BY THE COURT: Q. Ms. Newton, just answer yes or no. I'm going to be very careful about how I ask this and don't volunteer anything. In spite of what you may have read or seen or heard on the radio, television or newspapers about the airplane crash, do you understand that it would be your duty to base your verdict only on what you heard in this UNITED STATES vs SABRETECH ET. AL. - 11-15-99 97 courtroom from the sworn testimony of the witnesses? Do you understand that? A. Yes. Q. Do you understand that although newspapers try to write stories, I will tell all of you each day that you're not to read anything in the paper, not to watch anything on the television, not to listen to anything on the radio if there should be something put on about the case. Now, the reason we do that is the newspaper people, the media do their best to try to report what they see when they come here and listen to the case, but they sometimes listen to a few witnesses and go away and write a story or maybe listen to argument of counsel and go away and write a story. This is not criticism of them, they try to do the best they can to write the news as they understand it, but their opinions as to what happened here in the courtroom are not what counts. What counts and what is important is you folks' opinions and listening to the witnesses and what you folks hear and not what you may read in the paper or see on television. So understanding that, can all of you follow that instruction that I will give you each day not to read anything or watch anything. At the end of a few days or week or two you will be able to give me that instruction back. You will know it by heart. Can all of you do that, follow my instruction on UNITED STATES vs SABRETECH ET. AL. - 11-15-99 98 that? ALL JURORS: Yes. THE COURT: Understanding the importance of not reading something that will be put on T.V. or in the newspapers after, do all of you understand not to let anything that may have been written before this or may have been on T.V. before this have any part of your decision? Obviously you cannot and should not base your verdict on any story in the paper or anything like that. It's got to be based on what comes from this witness box. All of you now seated here can all of you do that? ALL JURORS: Yes. BY THE COURT: Q. Ms. Newton, can you put out of your mind anything that you may have read back whenever it was, you indicate some time ago, and base it and follow my instruction, can you do that, ma'am. A. Yes. Q. Let me ask you, the last time, have you heard anything recently or read anything recently about the paper, just yes or no? A. Yes. Q. Did that cause you to have any opinion at all as you now sit here about the guilt or innocence of anybody in the case? UNITED STATES vs SABRETECH ET. AL. - 11-15-99 99 A. It did not. Q. Do you understand that the government must prove each and every element of the charges that they brought against each of the defendants beyond and to the exclusion of reasonable doubt in the minds of the 12 of you? That's their burden of proof. They must carry that burden. If they do not prove each and every element beyond and to the exclusion of reasonable doubt then it would be your duty to find that defendant or defendants not guilty. If they do prove it, it is your duty, if they carry that burden, it is your duty to find them guilty. Do you understand the burden of proof and that it is upon the government, and can you follow my instructions on the burden of proof at the end of this case? Can all of you do that? ALL JURORS: Yes. THE COURT: It is very important that you follow the instructions on the law. Sometimes you may not agree with what the Judge is telling you. You may say I think the law ought to be different. I think it should be something else. But you must follow the instructions I give you because everyone is relying on the fact that you folks are going to follow the law. We are counting on that. Can all of you do that? Can you follow the instructions each though you may disagree with some of the UNITED STATES vs SABRETECH ET. AL. - 11-15-99 100 instructions? Can all of you do that? ALL JURORS: Yes. THE COURT: Any other questions that you wish to call to my attention? MR. MOSKOWITZ: Number 42 as well as the matter of military service. BY THE COURT: Q. Ms. Newton, just very briefly, has what is your experience or what is your work? A. I am director of quality management at Baskin Palmer Eye Institute. Q. In that regard you have had some training in the disposal of medical supplies or hazardous materials, is that right? A. Medical waste, yes. Q. With respect to the traveling industry, no, I'm sorry. You are are you familiar with those regulations? A. As it pertains to hospitals. Q. That's been an area of responsibility for several years? A. Yes. Q. How many, a lot? A. A long time. THE COURT: All right, at this point in time we will inquire first of the government and then after the UNITED STATES vs SABRETECH ET. AL. - 11-15-99 101 government has tendered of the defense of any challenges they may have preempt to recall for any of the 12. MS. MILLER: Judge, could I have a moment? I was missing a page of the last questionnaire. THE COURT: Ms. Newton's you mean? MS. MILLER: Yes. THE COURT: Here is Ms. Newton's. MS. MILLER: Thank you. MR. MOSKOWITZ: Your Honor, with regard to an extension could we have a short recess to confer about that? THE COURT: We can just sit here. MS. MILLER: Your Honor, with the government's thanks we would excuse Ms. Jones, Ms. Mosley and Ms. McClam. THE COURT: Thank you ladies. If you folks would step down. We thank you very much for being with us. Call the next three jurors. COURTROOM DEPUTY: Cynthia Battle, Thomas Galiana, Marilyn Herskowitz. BY THE COURT: Q. Ms. Battle, which family member or friend had the problem? A. I have a brother. Q. How long ago was that, 1991 you said. Is that about UNITED STATES vs SABRETECH ET. AL. - 11-15-99 102 right? A. Yes. Q. Has that matter been resolved? A. Yes. Q. Is there anything about that that causes you to have any feeling or prejudice or bias toward anybody in the courtroom, the government or the defense? A. No. Q. Do you understand and you've heard what we have said this morning about needing to be fair and impartial? Do you believe you can do that? A. Yes. Q. What is your work now? A. I'm a correction officer. Q. How long have you been doing that? A. About 11 years. Q. And the training you had was at the academy for correction officers? A. Yes. Q. Where do you work? A. I work for Miami Dade correction. Q. Anything about that that would cause you to have any feeling of bias or prejudice that you're aware of? A. No. Q. Just answer yes or no please. With respect to what you UNITED STATES vs SABRETECH ET. AL. - 11-15-99 103 have read or heard and you indicate that T.V. is where you may have heard something about the case, with respect to what you heard on T.V. or saw on T.V. several years ago, did you form any opinions that would carry over and effect your verdict in this case? A. No, I did not. Q. Have you heard anything since the first floury of news about it? A. No. Q. You've heard nothing recently about it as far as you know, is that right? A. That's correct. Q. As you sit here now, do you have any opinion about the guilt or innocence of anybody involved in this case? A. No, I don't. Q. Can you listen to the evidence as you heard me explain to these other folks and base your verdict solely on the evidence that you heard in the case? A. Yes. THE COURT: Any other questions you wish me to inquire into by number? MS. MILLER: No, Your Honor. THE COURT: Let's hand the microphone to Thomas Galiana. Q. And Mr. Galiana, what do you do now, sir? UNITED STATES vs SABRETECH ET. AL. - 11-15-99 104 A. I am a property manager. Right now I'm working with my father. He is an accountant. Q. Other than your courses in college you've not had any other formal training in law enforcement? A. No. Q. When is the last time that you heard anything -- other than what we mailed to you, but other than that in the newspaper or television about the case? A. When it originally took place. Q. Do you understand and I'm sure you do, that the government has the burden of proving their allegations about what happened, and they must have the burden of proof beyond a reasonable doubt. Can you put aside anything you've read or heard or seen? A. Yes. Q. When you have heard all of that do you have any opinions about guilt or begins or who is responsible or anything like that understanding as you now know that you are suppose to base it on what you hear in this courtroom, do you have any opinion? A. No. Q. As you sit here now do you understand that you are suppose to have an open mind any matter? Do you have an open mind? A. Yes. UNITED STATES vs SABRETECH ET. AL. - 11-15-99 105 Q. Can you be fair and impartial? A. Yes. THE COURT: Any other questions? MR. MOSKOWITZ: Your Honor, THE COURT: Which number? MR. MOSKOWITZ: Your Honor, in view of this gentleman's response to question number 47 we would ask Your Honor to inquire further as you have with regard to other jurors and also question 57. BY THE COURT: Q. Which Judge did you work with when you were a judicial intern? A. Judge Salmon. Q. How long ago was that? A. Around 5 years ago, 1994. Q. And you have some, familiarity then with the Assistant United States Attorney court procedures. Were these civil or criminal cases? A. In the beginning they were criminal and at the end of the semester there was one civil. Q. You were with him for one semester? A. Yes. Q. Anything about your internship with the Judge that would carry over and prejudice you in any way in this case as far as you know? UNITED STATES vs SABRETECH ET. AL. - 11-15-99 106 A. No. Q. Do you understand that if you learn something about the law when you were a judicial intern that is different from what I instruct you on the law that you must follow at the end of this case that you be obliged to follow my instructions even though it might be slightly different from something you may have already learned. Could you do that? A. Yes. Q. Do you understand that the government will have to prove in this case any matters, whatever elements go to these prospective charges they brought and will have to bring it to your satisfaction, the 12 of you beyond a reasonable doubt, the charges do you understand that? A. Yes. Q. Irrespective of what you read, do you have any opinion that would cause you to not be able to accept the evidence you hear in this courtroom as being the binding evidence that you have to follow? Do you have any opinions that are so firmly fixed that you could not be fair? A. No. THE COURT: All right, the third person. Miss Herskowitz. Q. Would you tell us what you do? A. I'm retired first grade teacher. I'm married to a neurologist. I live in Kendall and I have three adult UNITED STATES vs SABRETECH ET. AL. - 11-15-99 107 children. Q. You've told us what you read in the newspaper and may have seen on television. As you sit here now, what is your opinion as to what you should do? What is your responsibility? Should you base it upon what you may have read several years ago or whenever it was or should you base it on what you hear in the courtroom? What do you think? A. Definitely what I hear in the courtroom. Q. Was there anything that you read in the newspaper when this occurred or you saw on tell investigation that made such an impression in your mind that you cannot set it aside if I tell you to do that? A. No, sir. Q. Will you hold the government to their burden of proving this case beyond and to the exclusion of all reasonable doubt if I tell you that's what you've got to do? A. Yes, sir. Q. Can you be fair and impartial? A. Yes. THE COURT: Any challenge by anybody of any of these three. MS. MILLER: Your Honor, the government tenders the jury. THE COURT: If the defense counsel would like to confer perhaps over here is as good a place as any I UNITED STATES vs SABRETECH ET. AL. - 11-15-99 108 suppose. MR. MOSKOWITZ: Your Honor, may I approach the bench with Ms. Miller? THE COURT: You can't just give me your challenges? MR. MOSKOWITZ: It's another matter besides that. (Sidebar proceedings off the record) MR. MOSKOWITZ: Your Honor, we wish to thank and excuse the following jurors: Ms. Bouie, Ms. Newton, Ginette Yacinthe, Mr. Gutierrez, Mr. Galiana, Ms. Herskowitz and Mr. Mann. THE COURT: Thank you, folks. We appreciate you being with us and you folks are excused. You are free to go. Thank you very much. THE COURT: Call the next seven jurors, please. COURTROOM DEPUTY: Bonnie Hepburn, Ruth Baal, Juanita Tyre, Leonardo Castells, Jinnie Cooper, Frank Tilton, Hattie Hayden, BY THE COURT: Q. Ms. Hepburn, tell us what you do. A. I work with the Dade County Florida schools for 30 years now. Q. Did you teach? A. Yes, I teach. Q. Going directly to your questionnaire, you have read UNITED STATES vs SABRETECH ET. AL. - 11-15-99 109 something or heard something on the news or television about the airplane crash. Do you remember when it was that you heard that? A. I don't remember anything. I remember I heard it but that's all I remember. Q. Do you have any opinion as to what caused the crash as you sit here right now without having heard the evidence? A. No. Q. Do you understand, and all of you, do understand that the government has the burden of proving these matters and you must base your verdict only on what you hear in this courtroom? Can you do that, ma'am? A. Yes. Q. Can you put it out of your mind what you may have heard several years ago? A. Yes. Q. Let's go to Ruth Eleanor Baal. A. For the past 22 years I am the recruiting coordinator for Sterns Weaver Miller. Q. And you have contact with a number of lawyers in the civil field primarily? A. Approximately 60 in our office. Q. Okay, that should have either instilled in you, maybe patience or hostility either way. Hopefully patience? Do you know whether or not your law firm has had UNITED STATES vs SABRETECH ET. AL. - 11-15-99 110 any involvement of any kind with this airplane crash case? A. As far as I know, I don't think so. Q. You've indicated that you saw whatever was on the newspaper and television at the time. Do you have any fixed opinions about guilt or innocence or anything that would affect your verdict in this case? A. No, I don't. Q. You believe you have heard something recently about it. Would that cause you to have any feeling of probable guilt in this case? A. No, I mean, as recently as Saturday, but it would not sway me one way or the other. Q. Do you understand that you have to base your verdict on what the government proves or does not prove in this courtroom? A. I understand. Q. Could you do that, ma'am? A. Yes. Q. Now, you mentioned the problem about your mother. Would that cause you to be unable to give this your full attention? A. Attention, no. I would have to devote the entire weekend and probably evenings to maintaining the other home. Q. Would you be able to do that and still be able to function as a fair juror in this case? You know the hours UNITED STATES vs SABRETECH ET. AL. - 11-15-99 111 we work. A. Probably. Q. You see, it would be very difficult for us to do anything about that situation if in the middle of the trial something happened, we try to accommodate you, but all 12 of us have to be here every day promptly and listen to the evidence and go home at a reasonable time and come back the next day. If one person is missing we can't go forward. A. I understand that. Q. With that in mind, you are the best one to tell us, could you handle that all right? A. I believe so, yes. Q. We thank you. THE COURT: Any other questions of this particular juror? MS. MILLER: No, Your Honor. MR. MOSKOWITZ: Question number 55, Your Honor. BY THE COURT: Q. Is there anything about your daughter's work that would carry over and have any bearing on this case, your daughter that is an account exec? A. I only want the Court to know what she did and that the airline was one of her accounts in Atlanta. Q. Any discussions with her to cause you to have any private knowledge about anything about the airline? UNITED STATES vs SABRETECH ET. AL. - 11-15-99 112 A. No, other than I didn't know it until recently and she happened to mention it to me, and that was the only way I knew that. Q. Do you believe any of those discussions would cause you to be prejudice against the airline? A. No. THE COURT: Let's take Ms. Tyre, Juanita Tyre. BY THE COURT: Q. You indicated that you have read something or heard something about the case, the crash. Have you formed any opinions that you believe would cause you to be unable to sit here and fairly decide this case? Just yes or no. A. No. Q. You indicated the last such time was probably in 1997. Have you heard anything more recently? A. No, sir. Q. You've heard what I have said to those other folks about the responsibility to base it only on what you hear. Can you do that? A. Yes. THE COURT: Any other questions of this juror? MS. MILLER: No, Your Honor. MR. MOSKOWITZ: Your Honor, with regard to her service on grand jury. THE COURT: What number? UNITED STATES vs SABRETECH ET. AL. - 11-15-99 113 MR. MOSKOWITZ: I don't have it numbered. She indicates that she was the foreperson of a grand jury. THE COURT: Where does she indicate that? What page? BY THE COURT: Q. Have you been on a grand jury, ma'am? A. Yes. Q. When was it? A. Several years ago. Q. State or Federal? A. State. Q. You understand that the grand jury's responsibility is to pass matters on over to petit jurors who decide based on the evidence in a court of law, their verdict, and it is a different burden of proof? A. Yes. Q. You will follow the burden of proof I give you, will you not? A. Yes. Q. Anything about your grand jury experience cause you to have any prejudice in this case? A. No, sir. THE COURT: Mr. Moskowitz? MR. MOSKOWITZ: Question number 42 as well, Your Honor. UNITED STATES vs SABRETECH ET. AL. - 11-15-99 114 BY THE COURT: Q. What experience and training have you had in hazardous waste disposal? A. My husband owns an automobile repair facility. Q. At the hospital? A. No, it's an automobile repair facility, oil and chemicals and stuff that has to be disposed of. Q. There are certain regulations there as to that? A. Yes. Q. And you have some knowledge of that? A. No, I just know that we have to put them in a can and pay to ship them off. Q. You have indicated that you heard something back at the time of this crash on T.V., radio and newspaper and then perhaps again on the crash's anniversary. Anything that you've heard or read, does that carry over or cause you to have any opinions to that? A. No. Q. Do you believe that you could put aside anything that you may have read in the paper or heard on T.V. or listened in the radio three years ago and base your verdict solely on what you hear in this courtroom? Can you do that? A. Yes. Q. Are you sure about that? A. Yes. UNITED STATES vs SABRETECH ET. AL. - 11-15-99 115 Q. Now, you've heard something about the defendant SabreTech, who did you hear that from if you remember? Was that the same news story? A. Most likely it was the local papers. Q. What? A. Local papers and media. Q. Did that cause you to have any firm opinions about guilt or innocence in this case? A. No. Q. Are you prejudiced against anybody that you know? A. No bias. Q. You don't know anybody in the case? A. No, I do not. THE COURT: Any other questions? MR. MOSKOWITZ: Your Honor, 42 and particularly question 57, Your Honor. THE COURT: 42 he hasn't had any specialized training with anything. MR. MOSKOWITZ: I'm sorry. THE COURT: We are talking about Leonardo Castells. MR. MOSKOWITZ: I apologize, Mr. Castells. THE COURT: Let's move onto Cooper. BY THE COURT: Q. What do you do? UNITED STATES vs SABRETECH ET. AL. - 11-15-99 116 A. I work for Dade County School. Q. You never heard anything about this case up until today? A. No. Q. Do you know of any reason at all that you could not be fair and impartial in the case and base your verdict on what you hear in this courtroom? A. No. Q. Mr. Tilton, you're a flight engineer with? A. Florida Western International Airways. Q. You've been flying for how long? A. About 12 years now. Q. Your brother is an attorney? A. Yes. Q. You have had a lot of experience and training in the airline industry? A. Yes, sir. Q. Including disposal of hazardous material? A. I'm not sure about the actual disposal, but I'm a licensed mechanic and I've had some training but not with disposal per se. Q. You heard about the crash at the time? A. At the time I heard very little because I left the country at the time that it happened. Q. Well, you have extensive background and training in UNITED STATES vs SABRETECH ET. AL. - 11-15-99 117 this field of air transportation. What do you think? Do you think that you can, given your background and training and experience and what you knew or may have discussed with others, do you think that you would be a good juror on this case? It's sort of up to you? A. Well, as far as weighing the evidence and stuff, yes. I could probably be unbiased but, of course, being in the industry you have heard things about it. Q. Don't tell us what you heard about it. I don't mean to be rude to you, but if you have you tell us we have all heard it. Do you think that anything you've heard about the crash would carry over and possibly affect your verdict in this case prior to listening to the evidence. A. Well, I could listen to the evidence. There's always all kinds of rumors and things going around. I know the basic story. Q. Do you think that those would influence your verdict in this case, anything that you've heard? A. No, sir, not really. I could probably waive the information. THE COURT: What number? MR. MOSKOWITZ: Number 57, Your Honor. BY THE COURT: Q. You apparently have worked at DynAir Tech? UNITED STATES vs SABRETECH ET. AL. - 11-15-99 118 A. Yes, sir, DynAir Tech which is a predecessor of SabreTech if I'm not mistaken, but I'm not sure on that. Q. And you worked there for four months? A. Yes, sir, just four months. Q. What was your job there? A. I worked in the stock room. Q. Do you think that experience would have any effect or bearing on your fairness and impartiality in this case? A. As far as impartiality, it shouldn't effect that. I don't know if I would know any of the people that were involved with this. That was two years before this happened, and I had already been flying for a year. THE COURT: As far as you know, are there going to be any witnesses from DynAir going back two years ago? MS. MILLER: Yes, Your Honor. I'm just trying to remember all of the work history of all of the witnesses, and there may be mention of people who have been there as well including in the stock room. THE COURT: Would you and Mr. Moskowitz discuss this and let me know your position. MS. MILLER: I think we both agree he should be excused. THE COURT: Thank you very much. We will let you step down. Call the next juror. UNITED STATES vs SABRETECH ET. AL. - 11-15-99 119 COURTROOM DEPUTY: Edmond Chin. THE COURT: We will talk to Ms. Hayden. BY THE COURT: Q. Ms. Hayden, at this time you are a housewife, is that it? A. Right. Q. Are you retired? Have you always been a housewife looking after your grand kids? A. Always have been, but I have done maid work. Q. All right, you have never heard anything about this case before today, have you? A. No, I haven't. THE COURT: Any other questions you want me to look into? MR. MOSKOWITZ: Your Honor, we don't have the questionnaire for this juror. THE COURT: You don't have the questionnaire? We will come back to her in a moment. We will go to Mr. Chin. MS. MILLER: Your Honor, we don't have the questionnaire for Mr. Chin. The defense can take a look at our questionnaire for Ms. Hayden. MR. MOSKOWITZ: We found that. We have no additional questions for Ms. Hayden. THE COURT: How about Mr. Chin? MR. MOSKOWITZ: We do not have that UNITED STATES vs SABRETECH ET. AL. - 11-15-99 120 questionnaire. BY THE COURT: Q. Mr. Chin, what do you do? A. I'm the leader for the payment processing center of Florida Power and Light. I've been there for approximately seven years. Q. Tell us about family. Married? Children? A. I'm married. Three children. Two are married. One is a senior in high school. My first is married to an ATF officer and the second is married to a computer engineer. My wife works at the bank as a loan officer. She just changed jobs. She was with First Union and now is with NationsBank. Q. Does your wife work outside the home? A. Yes, sir, at NationsBank. Q. What does she do there? A. She is a loan officer. Q. Have you heard anything about this case from the radio television or newspaper before today? A. When it first broke out, sir. Q. From anything you've read have you formed any opinions about the ultimate fact, the guilt or innocence of anyone? Did that cause you to have any opinions or prejudice one way or the other? A. Opinions, yes, I saw where -- UNITED STATES vs SABRETECH ET. AL. - 11-15-99 121 Q. I don't want you to tell me what your opinions were. Would those opinions carry over and affect your verdict in this case in any way? Just yes or no. A. Yes, sir. THE COURT: Without objection, we will excuse Mr. Chin. Thank you, sir. You may step down. Thank you. The next one will be Jannette Gonzalez. BY THE COURT: Q. Miss Gonsalez, tell us what you do please. You're a secretary? A. Yes, I work for a dental office in Miami. I was born here. I'm a secretary there. I'm single with two kids. Very small. Q. You did hear something about an airplane crash, but you don't recall anything from the newspapers? A. No, I don't. Q. Anything at all about what you may have read but you don't recall what you read in this case, is that fair? A. Yes, I don't know much about it. Q. You've heard what I said about basing your verdict on the evidence that is presented in this courtroom, can you do that, ma'am? A. Yes. Q. Any other questions from the questionnaire from the government? UNITED STATES vs SABRETECH ET. AL. - 11-15-99 122 MS. MILLER: No, sir. THE COURT: For the defense? MR. MOSKOWITZ: No, Your Honor. THE COURT: I'll ask Mr. Moskowitz and Ms. Miller to step forward and assert any cause challenges they may have as to these 7 jurors. (Sidebar proceedings off the record) THE COURT: Juror number 3, we are going to let you step down. We thank you very much, Ms. Baal. Thank you very much. Call the next juror. COURTROOM DEPUTY: Melba Campbell. BY THE COURT: Q. Ms. Campbell, you live in the Homestead area? A. Yes. Q. And you work for Florida Power and Light? A. Yes. Q. Tell us about your duties. A. I work in the drawing update department, drawings when something changes in the plan. Q. Do you have a background as architect draftsman? A. No, not really. Q. Just learned it on the job? A. Yes. Q. Okay. You have indicated that you did hear something UNITED STATES vs SABRETECH ET. AL. - 11-15-99 123 back in May of '96 on T.V. and radio and conversations. Don't tell us what you heard or read or talked about, but is there anything about any of those sources of news or whatever that cause you to have any opinions that would affect your ability to be fair in this case? A. No. Q. Do you understand you've got to listen to the evidence as it comes in this courtroom? A. Yes. Q. Base your verdict solely on that conversation with your fellow jurors and the argument on the law. You can do that? A. Yes. THE COURT: Any other questions? MS. MILLER: No, Your Honor. MR. MOSKOWITZ: No, Your Honor. THE COURT: I presume, Mr. Moskowitz, your position and Ms. Miller's would be the same on this last juror for cause? MR. MOSCOWITZ: Correct, Your Honor, no cause. THE COURT: For the government, no cause? MS. MILLER: That's correct, Your Honor. THE COURT: Now, we are with the defense. For the defense any challenge of the seven that have just joined the panel? MR. MOSKOWITZ: Can we confer again, Your Honor? UNITED STATES vs SABRETECH ET. AL. - 11-15-99 124 THE COURT: Certainly. The 15 jurors that remain that have not been called up you folks please remain out here in the outer lobby. Do not talk to anyone or let anybody involved talk to you. You can talk among yourselves but not about the case. The marshal will call you in about five minutes. Thank you. The 12 that are in the box we will let you step into the jury room in case anybody wishes to use the rest rooms. Take the same seats. Those of you that have been spectators, please do not talk to any of the jurors. Please do not have conversations where a juror can overhear anything you may be saying, however innocent it might be, it could affect the juror's ability to serve. We are going to take a five minute recess at this time. Thank you. COURTROOM DEPUTY: All rise. [There was a short recess]. COURTROOM DEPUTY: All rise. THE COURT: Bring the jury back in. MS. MOSKOWITZ: Your Honor, I would like to make a motion. As the Court knows, Mr. Florence is black. The only three peremptories that the government has exercised was to strike three Blacks; Ms. Mosley, Ms. Jones and Ms. McClam from the jury. I think that at a minimum Mr. Florence has a right to hear some neutral reason if the UNITED STATES vs SABRETECH ET. AL. - 11-15-99 125 government can put forward any as to why the only strikes they make are as to the Blacks. THE COURT: The difficulty is that they've already been dismissed. The time for the objection to be made is before they are excused. But I believe the government has some neutral reason for the challenges. MS. MILLER: Yes, we do. I think the record should reflect that the government has tendered a panel that has numerous African Americans on it including Mr. Hardy, Ms. Andrea Clayton, Ms. Cynthis Battle, Ms. Alexander. With regard to the three jurors who were struck, Your Honor, Ms. Viola Jones told us she is currently working at a telemarketing firm. Telemarketing firms, I don't mean to cast any dispersion on any firms, but that is an area that has frequently that has negative contact with the Unite States Attorneys' Office. With regard to Ms. Mosley, I believe her son had a federal conviction. Obviously, this is the same prosecutorial office. I know it is the Justice Department, and with regard to Ms. McClam she also had not only a conviction with a close family member, but in referring to it she makes some inconsistent remarks. She described it as an acquittal and it was actually a conviction and that gave us some concerning. THE COURT: The Court finds there has been no UNITED STATES vs SABRETECH ET. AL. - 11-15-99 126 violation of Babson and that the panel is composed of certainty a cross representation of the community. Any peremptory challenge of any of the seven that remain? MR. MOSKOWITZ: We move to strike Ms. Tyre and Mr. Castells. COURTROOM DEPUTY: Juanita Tyre and Leonardo Castells. THE COURT: All right. Bring in the jury please. [The jury returns to the courtroom]. THE COURT: Two folks are excused with our thanks. Juanita Tyre and Leonardo Castells. Thank you very much. We appreciate it. You are excused. COURTROOM DEPUTY: Hebe Abreu and Mr. Lazarus Arguelles. THE COURT: Mr. Hebe Abreu, A-b-r-e-u, going once, going twice, any objection to passing on to the next one? MS. MOSKOWITZ: No, Your Honor. COURTROOM DEPUTY: Barbara Brown. BY THE COURT: Q. Ms. Brown, tell us about yourself. A. My name is Barbara Brown. I live here for 34 years. I have two daughters. One works at the school and the other at Walgreens. I've been on the job for like 28 years. UNITED STATES vs SABRETECH ET. AL. - 11-15-99 127 Q. You have to take your grand baby to day care every day? A. Yes. Q. What time do you do that? A. I leave Miramar at about quarter to 7 because I have to take him to day care and then take my daughter to work, and then I go to work. Q. So you are tied up going every day to day care for your grandchildren? A. Yes. Q. Would that be a problem for you if you were selected on this jury? A. Yes, it would. THE COURT: Any objection to excusing this lady? MR. MOSKOWITZ: No, Your Honor. MS. MILLER: No, Your Honor. THE COURT: Call the next juror. COURTROOM DEPUTY: Kelly Moore. BY THE COURT: Q. Sir, tell us your name and what you do. A. Lazarus Arguelles. I'm currently unemployed. Q. What did you do in your last job? A. Office clerk. Q. What type of office did you work in? A. Anchorman and Sutterfield. Q. How long ago was that? UNITED STATES vs SABRETECH ET. AL. - 11-15-99 128 A. About a year ago. Q. You've been unemployed for the past year? A. Yes. Q. What did you do as office clerk there at that law firm? A. Faxes, copies, filing. Q. How long did you work there? A. About a year. Q. Does that firm -- do you know anything about this crash? Have you read anything or heard anything about it? A. No, sir. Q. Does the law firm have anything to do with the airplane crashing, as far as you know? A. No, sir. Q. Do you know any of the people involved in this case? You heard me introduce them earlier. A. No, sir. Q. Any reason you could not be a fair and impartial juror in this case? A. No, sir. THE COURT: Any other questions from the questionnaire on Mr. Arguelles? No. We will take Mr. Moore. BY THE COURT: Q. Mr. Moore, what do you do for a living? A. I live in Miami Beach for seven years. I'm a flight UNITED STATES vs SABRETECH ET. AL. - 11-15-99 129 attendant for American Airlines for the last 15 years. Q. Have you read anything about this case or heard anything before today? A. Only the initial accident. Q. Would those conversations that you have had in the airline business carry over in any way or affect your verdict in this case? A. No, sir. Q. You indicated on your questionnaire a little bit about what you had heard on T.V. Do you understand that that's not suppose to have anything to do with your verdict in this case? A. Yes, sir. Q. And do you think that you can put that out of your mind and base it solely on what you hear in this courtroom? A. Yes. Q. Which airline do you work for? A. American Airlines. Q. How many years? A. 15 years. Q. Is that the only airline you've worked with? A. Yes, sir. Q. Do you know anybody at ValuJet or SabreTech or any of these companies? A. No. UNITED STATES vs SABRETECH ET. AL. - 11-15-99 130 Q. Is there anything at all in your background that would prevent you from being fair and impartial? A. No, sir. THE COURT: Any questions? MS. MILLER: No, sir. MR. MOSKOWITZ: Your Honor, can we approach? (Sidebar proceedings off the record) THE COURT: No challenges for cause of these two. MR. MOSKOWITZ: Your Honor, can we approach one moment with Ms. Miller? THE COURT: All right. (Sidebar proceedings off the record) BY THE COURT: Q. Let me go back to the gentleman from American Airlines. There may be some testimony forthcoming with one of the defendants. Mr. Gonzalez also works for American Airlines involved with service and maintenance at American Airlines. Since you work at American Airlines, we tell you this because American Airlines is one of our larger employers in Dade County. With that information, do you know him or have you seen him around? A. No, sir. Q. Does the fact that he is involved with maintenance of aircraft every day with American Airlines have any bearing at all on your ability to be impartial in rendering your UNITED STATES vs SABRETECH ET. AL. - 11-15-99 131 verdict? A. No, sir. THE COURT: Any questions or challenges at all of the juror by the defense? MR. MOSKOWITZ: May we have a moment, Your Honor? THE COURT: Yes. MR. MOSKOWITZ: Your Honor, we wish to thank and excuse Mr. Moore. THE COURT: Call the next juror. COURTROOM DEPUTY: Antonio Antelo. THE COURT: I'll ask you to take a look at the questionnaire of Ms. Cindy Becerra. I'll be inclined to excuse her for cause. A JUROR: My name is Antonio Antelo. BY THE COURT: Q. You did read something about this at the time or saw it on T.V. but you don't recall a whole lot of it? A. I recall some of the circumstances. Q. You heard all of the discussions that were going on here today. Can you base your verdict on solely on what you hear in this courtroom and put aside anything you may have heard or seen or read? A. Yes, I can. Q. As far as you know, is there any reason you could not sit here and be a fair and impartial verdict in this case? UNITED STATES vs SABRETECH ET. AL. - 11-15-99 132 A. No, I cannot. THE COURT: Any cause for challenge for the defense or government? MR. MOSKOWITZ: Your Honor, could you inquire as to question 42? BY THE COURT: Q. What is your special training, if any, in disposable hazardous waste? A. Basically, factors in the warehouse, in a warehouse you have to know about the disposable factors of OSHA. Q. And you do that? A. In case someone was in an accident I take responsibility for that. Q. That is that happened while you were working? A. It has not happened yet. THE COURT: Hearing nothing for cause, we will go to the government. Any peremptory challenge by any of the seven jurors who just joined us? MS. MILLER: With our thanks we excuse Mr. Arguelles. THE COURT: Thank you very much. Call the next juror. COURTROOM DEPUTY: Cindy Becerra. THE COURT: Yes, ma'am. Come right on up. Without objection, she is excused. UNITED STATES vs SABRETECH ET. AL. - 11-15-99 133 COURTROOM DEPUTY: Barbara Mills. BY THE COURT: Q. Ms. Mills, do you work outside the home? A. No, I do not. Q. Are you retired or are you unemployed? A. I stopped working quite some years ago because I started having children again, and I just stayed home with the kids. Q. And you don't know anything about this case before today? A. I've heard of it, but I don't know anything about it, no, sir. Q. Now, tell me about your son. How old is he, the one that is sick? A. My son is 29 years old. Q. Your answer is that he may need you. A. Well, he is at home with me now and he may need me because his health is really pretty bad. It is pretty bad. Q. So it is likely that you may have to go and help him out? A. Well, he needs help from me, but I have an older daughter and older son, and I also have a friend of 17 years who will also help me also. Q. If you are selected on the jury what is the chance that you're going to have to stop to help him? Tell us that. If UNITED STATES vs SABRETECH ET. AL. - 11-15-99 134 you are selected we need you here every day. Would you have to go and take care of your son? A. I don't think so because most of the time he is in the house anyway. There's really not anything he can do because I don't have any training. All I can do is support him and give him my love. Q. Do you think you can be impartial in this case? A. Yes, I can. THE COURT: For the government, any cause? MS. MILLER: Yes, Your Honor, we would excuse Ms. Mills. THE COURT: Any other question, Ms. Moskowitz? MS. MOSKOWITZ: I would like to ask to approach the bench. THE COURT: We will have Ms. Miller and Ms. Moskowitz approach the bench please. Robin, as best you can, try to take this down. (Sidebar proceedings on the record) THE COURT: Would you state your neutral reason. MS. MILLER: I don't know how long this trial is going to last, but not withstanding her statement that she can not be distracted by that, I think that there is a serious potential distraction. THE COURT: Okay. MS. MOSKOWITZ: I have no follow up to that. UNITED STATES vs SABRETECH ET. AL. - 11-15-99 135 THE COURT: Fine. She is peremptorily excused. The Court finds that there is neutral reason. Thank you, ma'am. You are excused. THE COURT: Call the next juror. COURTROOM DEPUTY: Carmen Martinez. MR. MOSKOWITZ: Your Honor, we don't have a questionnaire for this juror. THE COURT: I don't either. Does the government have a questionnaire for this juror? MS. MILLER: No, sir. BY THE COURT: Q. Ma'am, your name? A. Carmen Martinez, and I live in Coral Gables. Q. How long have you lived in Dade County? A. 24 years. Q. Tell us about your family. Married? Children? A. I'm married. I have no children. Q. Do you work outside the home? A. Yes, I do. Q. What do you do? A. I work for a certified public accountant. Q. What is your responsibility there? A. Actually, for the past 3 and a half years he has been involved in a lawsuit, and he really doesn't practice accounting. He just dedicates his time to the lawsuit and UNITED STATES vs SABRETECH ET. AL. - 11-15-99 136 my responsibilities are pretty much preparing whatever documents that need to be done for the attorneys. Q. Which attorneys? A. The attorneys that he has is Zuckerman Spader (phonetic). He has Goldwin and Tower, and he has got Brodrick, Casell, (phonetic). Q. Is this a civil case? A. It is an estate planning. Q. Other than your work on this case, do you have any legal training or legal background? A. No. Q. Is there anything about that case that you think has any bearing on your ability to be a fair juror in this case? A. No. Q. Just yes or no on the next couple of questions. Have you read or heard anything on this case before today? A. Yes. Q. When was the last time that you recall hearing or reading? A. Last night on the news. Q. What you heard on the news or what you've read or seen on the news up until now, understanding everything that I have talked about in regards to burden of proof, do you believe that those stories would have prejudiced you in any way so that you could not be a fair juror? Just yes or no. UNITED STATES vs SABRETECH ET. AL. - 11-15-99 137 A. I guess not. Q. Do you understand that if you are selected it would be your responsibility to listen to the evidence very carefully and insist that the government meet its burden of proof. If they fail to do that your, verdict should be for the defendant. If they fail to do that, your verdict would be for the defendant? A. Correct. Q. If there is a dispute about a material fact, some fact that is material to the case, one witness says, Oh, I'll make up something totally inane, but if one witness says the airplane was painted blue, and the other witness says the airplane is painted red, and if that was material to something you would have to decide whether was it was blue or red. You folks decide the issues of fact, not the law but the issues of fact. And you do that by hearing the testimony of witnesses, which ones answer correctly, appear to know what they're talking about, doesn't appear to be evasive, those things. That's what jurors do. They decide disputed issues of fact. They decide within the framework of the law. And you talk about it among yourselves. That's what it is all about. So it's not whether you came to the jury thinking that air travel is good or bad or you had good experience or a bad experience. It is a question of what does the UNITED STATES vs SABRETECH ET. AL. - 11-15-99 138 evidence show and which witnesses do you believe. Generally, I give that explanation to everybody at the beginning of the case, but because you had filled out the questionnaires we cut through some of that. But do all 12 of the understand what I just said about your job what is expected of you? ALL JURORS: Yes. BY THE COURT: Q. Ma'am, do you believe you could listen to the case with an open mind? A. Yes, but I would like to be excused. Q. Do you have a personal reason for being excused? A. Yes, I do. THE COURT: Would you kindly step up here. (Sidebar proceedings off the record) THE COURT: Thank you. You may step down. You are excused. Call the next juror. COURTROOM DEPUTY: Ngoc-Xuan Tran. BY THE COURT: Q. Ma'am, will you tell us where you live and what you do? A. Ngoc-Xuan Tran. I live in south Miami Dade. Q. You presently work for who? A. I work for a health insurance company. Q. What do you do there? A. Assistant support. UNITED STATES vs SABRETECH ET. AL. - 11-15-99 139 Q. Tell us a little bit about that please. A. I'm involved with claims testing and network fee schedule load to the system for repricing purposes. Q. At the time this incident occurred you heard something on T.V. and conversations, heard people talking about it? A. Yes, sir. Q. Do you think that any of that would carry over and affect your verdict in any way? A. I don't think so. Q. Do you believe you can be fair and impartial in this case? A. Yes, sir. THE COURT: I assume there are no challenges for cause. Any peremptory challenge from the government? MS. MILLER: Your Honor, the government tenders the panel. THE COURT: I presume the defense accepts. MR. MOSKOWITZ: We do, Your Honor. THE COURT: We are going to have to select some alternate jurors. We will take the noon recess at this time. We have Jessy Cephus and Clara Larsen. We have you two folks in the audience. You four, the 12 here, would all that are jurors hold up your hands please. It is 1:29. We are going to recess for one hour for lunch hour. We are going to ask the 12 of you in the UNITED STATES vs SABRETECH ET. AL. - 11-15-99 140 box and all of you in the audience that are jurors not to discuss the case with anyone or permit anybody to talk to you about the case. If anyone comes up to you and tries to talk to you about the case walk away from them. That's a serious offense. They should not be doing that. Tell the marshals when you get back and we will take care of it. Now, with the jurors -- could all of you please have a seat back there. For the other jurors we have apparently 7 of you there. Same instruction, don't have any conversations with anybody about the trial. Don't let anybody talk to you. Be careful where you stand in the hallway. If you are seated out there make sure that you don't innocently overhear a conversation. Sometimes lawyers don't realize that you're a juror and you innocently hear something that would disqualify you. When the 12 of you come back in one hour go into the jury room. The other 7 of you please just come up and be in the outer lobby. The 7 of you, would you please file up forward and give your names to Ms. Kramerman. The rest of you now will be in recess 2 until 230. We will be in recess. [There was a recess for the noon hour]. AFTERNOON SESSION - 2:30 P.M. COURTROOM DEPUTY: Court is in session. The Honorable Judge James Lawrence King presiding. UNITED STATES vs SABRETECH ET. AL. - 11-15-99 141 THE COURT: Thank you. Be seated, please. Do we have any jurors in the courtroom? MR. MARSHAL: No, sir. THE COURT: You all were advised or at least representatives from each side were advised prior to leaving that Ms. Tran, the last juror seated, wished to be excused for the reason she expressed to Ms. Moskowitz and Ms. Miller. What is your position respecting letting her be excused? MS. MILLER: Your Honor, I think she is expressing concern, but it seems equivocal to her being excused. So I would like to hear that. MS. MOSKOWITZ: I didn't hear any equivocation. She said she would lose her whole semester of school. THE COURT: Let's bring her in and ask her. It will just take a second, if anybody has got a doubt about it. Have a seat right there at the end, ma'am. Tell us about your school. A JUROR: I go to school part-time Mondays and Thursdays, part-time Mondays and Thursdays. Mondays and Wednesdays are 4:45 in the afternoon, and Tuesday and Thursday at 5:15. THE COURT: What are you asking the Court to do? UNITED STATES vs SABRETECH ET. AL. - 11-15-99 142 Are you asking to be excused? A JUROR: Yes, sir, if possible. THE COURT: We thank you very much. If you would step out, please. All right, the lady is back in the jury room. What is your position? MS. MILLER: We are not asking that she be excused for cause. I understand the Court's position however, THE COURT: The lady has asked to be excused. The defense has no objection to this, even though, I presume, they would like to have her as a juror. Does the government have any objection to her being excused? MS. MILLER: Yes, we do, Your Honor. THE COURT: You would like for her to stay here. MS. MILLER: Yes, sir. What is your position? MS. MOSKOWITZ: Your Honor, I think she should be able to go to school. THE COURT: I do, too, but that's not the answer to the question. MS. MOSKOWITZ: I don't think -- we move for cause to have her struck, Your Honor. She was very clear about what she wanted. The fact that she said, if possible, was just because she had respect for the Court and the proceedings, not because she was asking sincerely to be excused. We move for cause. UNITED STATES vs SABRETECH ET. AL. - 11-15-99 143 THE COURT: The Court will excuse her for cause. You can tell the lady that she is excused. Tell the others to come back in and have a seat. Bring the others out in the lobby all in. We will proceed with the next two jurors being Clara Larsen and Jesse Cephus. COURTROOM DEPUTY: Jesse Cephus. THE COURT: Step up, please. Thank you. Mr. Cephus, step up. All right. Mr. Cephus, we have read your questionnaire. We thank you for taking the time to fill it out. We note that you work for the postal service and -- A JUROR: Sorry. Metro-Dade. BY THE COURT: Q. What do you do for Metro-Dade? A. Assistant Superintendent for Solid Waste Management. Q. How long have you worked there? A. 28 years. Q. What is your specific -- you are the Superintendent? A. Assistant Superintendent for the Transfer Division. I supervise 17 drivers that pick up waste and haul it to the landfill. Q. Okay. Now, then you indicated that although you never heard about the airplane crash, ValuJet back in May of '96, that presently, you don't recall whatever you may have heard on T.V. or the radio or have seen in the newspaper. Is that UNITED STATES vs SABRETECH ET. AL. - 11-15-99 144 a fair statement? A. Correct. Q. So, if you did see something, you don't, at this point, recall or tell us what it was? A. I don't know anything about it. Q. Were you here this morning when we selected the jury? A. Yes. Q. All right. Well, you know all the questions I asked earlier about whether people can be fair and impartial. Do you believe you can be fair and impartial in this case? A. Yes, sir. THE COURT: By number, any other questions of counsel? MR. MOSKOWITZ: No, Your Honor. MS. MILLER: No, Your Honor. THE COURT: Any peremptory challenge? MS. MILLER: The government tenders the jury, Your Honor. MR. MOSKOWITZ: We accept, Your Honor. THE COURT: Let us call -- I propose to seat four alternates, that satisfactory to everybody? MS. MOSKOWITZ: Yes, Your Honor. THE COURT: And each side would have two challenges. Let's call four jurors. COURTROOM DEPUTY: Clara Larsen, Carmen Thornton, UNITED STATES vs SABRETECH ET. AL. - 11-15-99 145 Maria Muniz, and Pedro Vazquez. THE COURT: Mr. Moskowitz, do you have a copy of the questionnaire of Ms. Larsen? MR. MOSKOWITZ: Yes, Your Honor. THE COURT: Does the government? MS. MILLER: We do, Your Honor. BY THE COURT: Q. Miss Larsen, tell us about yourself, please. Where you live, and your name, and how long you lived there? A. My name a Clara Larsen. I live in southwest Miami. I have lived in Dade County since 1952. I work for the postal service. I've worked there for 25 years. I'm divorced. I have two grown children. My son lives in Gainesville, and he works in air-conditioning. My daughter lives in Dade County, and she works for National Tool in Broward County. Q. You indicated that you saw some material on the television about this case, but you don't recall the specifics. Don't tell us what you saw, but let me ask you this question. From what you saw or heard at the time, has that brought with you or carried over anything that would cause you to be prejudice in this case before you listen to the testimony in the trial? A. No, not really. I don't remember enough about it. Q. If I instruct you, as I will, to listen carefully to UNITED STATES vs SABRETECH ET. AL. - 11-15-99 146 the evidence, and together with your fellow jurors decide the disputed issues of fact, could you do that fairly and objectively? A. Yes, I could. Q. If I told you, and I will, to put out of your mind anything you may have read or heard or seen or discussed about this case before today and just concentrate on what you've learned in the case here in the courtroom, could you do that? A. Yes. Q. I'm not going to go into this in any detail or anything, but you didn't answer one question involving a situation where you were the victim of a crime. Is there anything about that situation -- first of all, how long ago was that? A. It was in November of 1996. Q. Is that matter something that carries over to bear on your mind in a way that would divert your attention in this case or divert your ability to be fair and impartial? A. No, it's two separate incidents. Q. Although you evidenced some general feeling of not being satisfied, which I certainly understand, but would you carry that over, and would that cause you to be prejudice against, for example, the government or the defendant in the case? UNITED STATES vs SABRETECH ET. AL. - 11-15-99 147 A. I think it would make me try that much harder to be fair. THE COURT: Any other question that you want me to ask her about? MS. MILLER: No, Your Honor. MR. MOSKOWITZ: Your Honor, directing your attention to her answer to question 47. THE COURT: Yes, I asked her about that. She replied she doesn't recall anything about it at this time. BY THE COURT: Q. You recall very little about anything you have read at this time, is that true? A. That's true. THE COURT: I asked her that question. Any suggestion of cause? Hearing none, we will move onto the next juror. COURTROOM DEPUTY: We don't have her questionnaire. MS. MILLER: We do, Your Honor. THE COURT: Could I borrow somebody's questionnaire? COURTROOM DEPUTY: Here it is. Never mind. I've got it. THE COURT: Thank you. BY THE COURT: UNITED STATES vs SABRETECH ET. AL. - 11-15-99 148 Q. Tell us your name, and where you live? A. Carmen Thornton, and I live in Sweetwater. I have lived in Dade County for 24 years. At the present time, I am an expecting mother. My first child. Q. I guess this is a personal question, but it is a very happy one. When is the baby due? A. In January. Q. Would that be a problem for you to serve on a jury, for perhaps, up to the next six weeks? A. Yes, I think it will, because my feet get swollen if I sit too much. THE COURT: I would be inclined to excuse this lady for cause unless someone has an objection. MS. MILLER: No objection, Your Honor. MR. MOSKOWITZ: No objection, Your Honor. THE COURT: Thank you. We will go to the next juror. BY THE COURT: Q. Would you tell is your name please, and where you work? A. Muniz, Maria. I've been in Dade County since 1968. I worked in Community Health South Dade. I have two children, 18 and 21. Q. What does your husband do? A. I am recently divorced. Q. Do you have grown children? UNITED STATES vs SABRETECH ET. AL. - 11-15-99 149 A. They are 21 and 17. I said 18, it should be 17. Q. Are they both in school? A. One is in school, and the other one graduated two years ago. Q. What does the other one do? A. He works full-time for his dad. Q. What type of work does he do? A. They own a company, a trucking company. Q. Now, you did hear some stories about this crash of ValuJet flight 592 from the T.V., radio, newspapers and conversations. I don't want you to tell us what you heard or read please. Do not do that. Do you recall anything about those articles in the paper that would carry over and prejudice you, in any way, in this trial in deciding this case fairly and objectively? Do you have any prejudices or any opinions that would prejudice you in this case? A. No. Q. Do you understand that you would be required to sit and listen to the evidence in the case, and talk with your fellow jurors and reach a decision, can you do that fairly and objectively? A. Yes, I could. Q. Regardless of anything you may have heard before today, can you do that? UNITED STATES vs SABRETECH ET. AL. - 11-15-99 150 A. Yes, I could. THE COURT: Any other questions from the questionnaire? MS. MILLER: No, Your Honor. MR. MOSKOWITZ: One moment, Your Honor. Your Honor, I direct the Court's attention to question 50. BY THE COURT: Q. Let me ask you now. If I instruct you that the government has the burden of proving this case beyond and to the exclusion of reasonable doubt, and that you must consult with your fellow jurors in arriving at the evidence, and you must except that which is truthful and reject that which you do not believe, if you are told that is your job or duty, do you think that there is anything in your past about reading about this, that would prevent you from doing what you believe your job to do? A. No. Q. Do you have any opinion, that regardless of what is presented in the courtroom, your mind is made up? Do you have anything like that in your mind? A. No. Q. Can you listen fairly and objectively right now, knowing what the case is about and knowing what we are talking about? Can you sit here and listen to the case UNITED STATES vs SABRETECH ET. AL. - 11-15-99 151 fairly and objectively without regard to what was in the paper three years ago? A. Yes. MR. MOSKOWITZ: Your Honor, it turns out, we don't have the questionnaire. Can we look at the government's questionnaire? THE COURT: Certainly. MR. MOSKOWITZ: Thank you, Your Honor. We have no additional questions. THE COURT: Thank you. Hand the microphone to Mr. Vazquez. MS. MILLER: Your Honor, I believe that counsel and I have an agreement to Mr. Vazquez that he should be excused. THE COURT: Mr. Vazquez, thank you for being here. You are excused. You can go home. COURTROOM DEPUTY: Armando Guerra and Mary Aldana-Chiles. BY THE COURT: Q. Tell us your name, and where you live? A. Armando Guerra, Jr. I work with a company by the name of Norrell Services. I've been a resident of Miami Dade since 1973. Q. Family? Married? Children? A. I'm currently married, and in the process of being UNITED STATES vs SABRETECH ET. AL. - 11-15-99 152 divorced. Q. Any children? A. No. Q. What do you do at your work? A. Basically, what I do is, job placement for individuals for different companies. Staffing, permanent placement, temporary, in which I assess the skills, interview, test, place individuals and try to acquire different business of different clients. Q. In your questionnaire, you did indicate that you did hear on the T.V. and radio and newspaper about this case, and the airplane crash. You have outlined pretty much in detail. Do you believe that your detailed memory of the case, as it occurred -- first of all, when is the last time you have read anything or heard anything about it? Was it years ago or more recently? A. I had not heard anything about it until, I think they had a memorial for the anniversary, I think. That was the last time I heard anything about the case. Q. You heard me tell the jurors that their responsibility is to listen to the case, with an open mind to the evidence and put out of your mind, the articles in the newspapers and what has been on the T.V. Can you do that? A. I believe I can do that. I always try to keep an open mind, and not make a judgment until I hear all of the facts. UNITED STATES vs SABRETECH ET. AL. - 11-15-99 153 Q. Whatever it is that you have read or heard several years ago, whatever it was that it turns out, that there was some different story or different sequence of events which would you rely on, your memory, or what you heard, or what is presented here in court? A. Obviously, what is presented in court. Q. Do you believe you have any prejudice for the government, or against the defense, or for or against them? Do you have any prejudice, in your mind, for or against anyone? A. I don't believe I do. Q. Do you feel comfortable that you can be fair and impartial in this case? A. I believe I can be fair and impartial. THE COURT: Any other questions? MR. MOSKOWITZ: Question 42, Your Honor. BY THE COURT: Q. What specialized training do you have in hazard waste disposal? A. I was the on-site manager for Dade Bearing, in which they dealt with diagnostic, and I had to touch on certain training for hazardous materials, in which I had to train the employees, and they had to wear the safety protection equipment, and they had to adhere to rules and regulations. Q. When was that? UNITED STATES vs SABRETECH ET. AL. - 11-15-99 154 A. That was an ongoing process from '93 to 98. Q. What was the name of the company? A. The name of the company was Dade Bearing, formerly Dade International, and I think prior to that Baxter. Q. Did you actually have anything to do with hazard waste disposal? A. No, I did not. Q. What about training in the travel industry? What training do you have in the travel industry? A. I was a reservation agent, many years ago, with a cruise line. Basically, that is the gambit of my training. THE COURT: Any suggestion of cause by either side? MS. MILLER: No, Your Honor. MR. MOSKOWITZ: Basis on his question to 47, Your Honor. THE COURT: The motion is denied. We will take up challenges in a moment. BY THE COURT: Q. Next juror, would you tell us your name? A. My name is Mary Aldana-Chiles. I live in Kendall. I was born and raised here, 28 years. I work for a market research center in Coral Gables. I'm married for five and a half years. BY THE COURT: UNITED STATES vs SABRETECH ET. AL. - 11-15-99 155 Q. What does your husband do? A. He is a teacher for Dade County Public Schools. Q. You have indicated in your questionnaire that you did hear some televised news story, radio and newspaper, and so on about the crash of this flight. The question is simply, whether or not you can listen objectively to the evidence as it is presented in this courtroom, excluding therefrom any consideration of any article that you may have read, or any news story you may have seen, and decide the case based on the evidence in the courtroom? Could you do that? A. I believe I can. Q. Do you have any opinions or prejudices against or for anyone connected with the trial, as you sit here today? A. No, I don't. Q. Could you tell me please, your children are how old? A. I do not have children. Q. Excuse me. I talked to so many folks today. I thought I heard you say you had young children. Do you work outside the home? A. Yes, I do. I work for a market research company. Q. Any particular question on the questionnaire? MR. MOSKOWITZ: Your Honor, I direct your attention to questions 54, 55 and 56. BY THE COURT: MS. MILLER: The government and the defense are UNITED STATES vs SABRETECH ET. AL. - 11-15-99 156 in agreement with regards to this juror. THE COURT: Let me inquire without going into the details of it. BY THE COURT: Q. Do you think that this would be a distraction for you if you were to be required to sit here for six weeks? A. Yes, it would. THE COURT: All right, then, thank you. You are excused. You may step down. COURTROOM DEPUTY: Patrick Gillyard. BY THE COURT: Q. Mr. Gillyard. Your name, and what you do? A. Patrick H. Gillyard. I'm 28 years old. I work for Metro Dade County Clerk of Courts. I'm a mail clerk. I was born and raised here in Miami for 28 years. Q. Is this the Circuit Court or the County Court? A. Circuit. 73 West Flagler. Q. How long have you worked there? A. For seven years. Q. Do you have any involvement with trials and cases that go on in that courthouse? A. I am a mail center clerk, so I deliver documents to district courts. Q. Would that, in any way, cause you to have any bias or prejudice, in any way, in this case? UNITED STATES vs SABRETECH ET. AL. - 11-15-99 157 A. No. Q. You indicated that you did see some T.V. broadcast about this case. You've heard what I said about what you would do if called upon to be a juror. Do you think that what you heard about the case on T.V., would, in any way, carry over and cause you to have any feeling of bias or prejudice, before you hear any witnesses or before you listen to the argument? A. No. Q. Could you be fair and impartial, and listen with an open mind to the case? A. Yes. THE COURT: Any other question? MS. MILLER: No, Your Honor. MR. MOSKOWITZ: No other questions, Your Honor. Your Honor, we would point to questions 47 and 48. THE COURT: I don't know much more we can ask him about that. MR. MOSKOWITZ: I understand. THE COURT: I would have to excuse everybody in the courtroom to go further into this. That's the only way to do it. We can't ask him anymore about it in the presence of anybody else. BY THE COURT: Q. When is the last time you heard anything or read UNITED STATES vs SABRETECH ET. AL. - 11-15-99 158 anything about the case in the newspaper or television? A. A month ago. Q. Have you formed an opinion about guilt or innocence in this case of anyone? A. No. Q. From what you read in the newspaper, do you have any sort of opinion that somebody is probably innocent or probably guilty of something or what? Let me phrase it better. As you sit there, right now, do you have any probability, feeling that somebody has probably done something wrong or probably not done something wrong? A. I don't know. Q. Are you willing to listen to the evidence and then make up your mind? A. Yes. Q. If the government doesn't prove the case to your satisfaction beyond and to the exclusion of reasonable doubt, you would have no trouble voting a not guilty verdict, is that right, if they don't prove the case? A. Right. Q. If they prove the case, then you would vote to find somebody guilty of something, is that a fair statement? The question is, the government has the burden of proving the case. If they don't prove the case, you have to vote not guilty. If they do prove the case, you are supposed to vote UNITED STATES vs SABRETECH ET. AL. - 11-15-99 159 guilty. Do you understand that? A. Yes. Q. Can you do that? A. Yes. THE COURT: That's all I can do. Anything for cause? MS. MILLER: No, sir. MR. MOSKOWITZ: Nothing else, Your Honor, except based on the same responses. THE COURT: The motion is denied. Do we have any peremptory challenges by the government? MS. MILLER: Your Honor, with our thanks, the government moves to dismiss Miss Larsen. THE COURT: Any others? MS. MILLER: No, sir. No, Your Honor. COURTROOM DEPUTY: Anthony Reus. BY THE COURT: Q. Tell us your name. A. Anthony Reus. I live at southwest Miami. Q. What do you do for a living? A. Mechanic. Q. Where are you a mechanic? Q. What company? A. Cedar Corporation. Q. How long have you worked there? UNITED STATES vs SABRETECH ET. AL. - 11-15-99 160 A. 16 years. Q. Now, I notice that you got your son to help you fill this form out, because of your English and Spanish language, is that right? A. No, I don't understand much of that. THE COURT: I understand. I would be inclined to excuse this gentleman unless there is some objection based on his answer to number 55. MS. MILLER: No objection, Your Honor. MR. MOSKOWITZ: No objection, Your Honor. THE COURT: Thank you, you can go home. Next juror. COURTROOM DEPUTY: Barry Canada. BY THE COURT: Q. Tell us about yourself. A. Barry Canada. Currently, I'm a student at FIU, 22 years old, and I reside in Dade County. Q. Married? Children? A. Single. No children. Q. What are you studying? A. English Education. Q. You indicated on the questionnaire that you have heard of this airplane crash, but that you don't recall very much about what you have read. Don't tell us what you did read or hear, but do you recall enough that it has carried over UNITED STATES vs SABRETECH ET. AL. - 11-15-99 161 and caused you to have some feeling of prejudice in this case in any way? A. No. Q. The last time you heard anything about the case was 6 or 8 months ago? A. Correct. Q. Did that cause you to form any opinions that you think would cause you to be for or against the government, or for or against any defendant? A. No. Q. Do you believe you can sit here, and listen fairly and objectively to the evidence, and decide the case based on what you hear in the courtroom, and disregard anything that you may have heard or seen before coming here today? A. Yes. THE COURT: Any other questions? MR. MOSKOWITZ: Would you please look at his response to question 54. BY THE COURT: Q. If you are called upon to sit here, you wouldn't be able to graduate, is that right? A. Yes. THE COURT: I would be inclined to excuse him. Hearing no objection, you may step down. COURTROOM DEPUTY: Debra Williams. UNITED STATES vs SABRETECH ET. AL. - 11-15-99 162 BY THE COURT: Q. Miss Williams, before you get too comfortable, it appears that you might have some real financial problems and might lose your job, is that right? A. Yes, I am a single parent. I have a young child. THE COURT: Any objections to her being excused? MR. MOSKOWITZ: No, sir. MS. MILLER: No, sir. THE COURT: You may step down. COURTROOM DEPUTY: Grace Castro. BY THE COURT: Q. Given what you have set forth in your questionnaire about your finals coming up in your school, do you believe that it would be difficult for you to sit? A. Definitely. Q. I'm inclined to excuse her unless there is some objection? MR. MOSKOWITZ: No objection, Your Honor. MS. MILLER: No, sir. THE COURT: You may step down. Call the next juror. COURTROOM DEPUTY: Tracy Tomeny. BY THE COURT: Q. Miss Tomeny, will this interfere with your graduation if you sit as a juror? UNITED STATES vs SABRETECH ET. AL. - 11-15-99 163 A. Yes. THE COURT: Do you ask to be excused? A. Yes. THE COURT: Unless there is some objection, we will excuse the young lady. COURTROOM DEPUTY: Carolyn Collins. MS. MILLER: Your Honor, we are in agreement that this juror should be excused. THE COURT: Thank you, Miss Collins. You are excused. Next juror. COURTROOM DEPUTY: Ricardo Bays. BY THE COURT: Q. Yes, sir. Would you tell us your name, and where you live? A. Ricardo Bays. I am a resident of Florida for the last 29 years. Divorced, seven years. I have one child, a 15 year old son currently living in Orlando in school. Q. Your work is interesting. Tell us about it? A. I am retired from Dade County Department of Human Resources. I currently work at WalMart in loss prevention. Q. You do some ring judging? A. I've been doing that since 1982. Q. That's the part that I said was interesting. Is that wrestling or boxing? UNITED STATES vs SABRETECH ET. AL. - 11-15-99 164 A. Professional boxing. Q. According to your questionnaire, and again, we don't want you to tell us what you've read or seen, but you have seen some articles or have read something about this airplane crash? A. Yes, Your Honor. Q. Do you believe that what you've read and what you've seen about the crash has carried over and had an effect on you, so that you have formed an opinion about guilt or innocence at this point? A. No, Your Honor. Q. Do you believe that anything you may have seen or read would carry over and cause you to have any prejudice for or against anyone? A. No, sir. Q. Do you understand that you would be expected to listen carefully and decide the case based on the evidence in the courtroom, and not on anything outside of the courtroom? A. Yes. Q. Could you be fair and impartial? A. Yes, sir. THE COURT: Any other questions? MS. MILLER: Your Honor, question 38. BY THE COURT: Q. Do you have a brother-in-law that is a lawyer? UNITED STATES vs SABRETECH ET. AL. - 11-15-99 165 A. Yes, sir. I do. Q. Where does he practice? A. Dade County. Q. Is he with a firm? A. He is a senior partner in the firm. Q. Which firm is he with, or what is his name? A. Alvin Goodman. Q. So your sister is? A. My sister is his wife. Q. I know that, but what is her name? A. Dorian Goodman. Q. What does he? A. Rusty. Q. They have been married for 20 years or so? A. Exactly, yes. Q. Mr. Goodman has a single practice. You all may know him. Do you know what type of practice? A. It is a general practice, as far as I know. Q. How often do you see your brother? A. Once a week. Q. He is involved with the boxing commission also? A. Not any longer. He was. THE COURT: Anything for cause by either side? MS. MILLER: No, sir. MR. MOSKOWITZ: Your Honor, based on responses to UNITED STATES vs SABRETECH ET. AL. - 11-15-99 166 questions 53. THE COURT: Well, do you want to go into more questions outside the presence of everybody? The only way I know to do it, is to excuse everybody. If you want to do that we can do that. MR. MOSKOWITZ: Your Honor, unfortunately, that is our position. THE COURT: Anybody besides this gentleman that you want to do that with? Give me a list of everybody. There are four of them there. Before we get to that. Ms. Miller, you had challenged one. We have filled the box with this one. Do you have any other peremptories? MS. MILLER: Is there going to be any additional questioning of these jurors? THE COURT: I was going to do that one by one. MS. MILLER: We would like the hear the questioning before we state our position. THE COURT: You all know the drill. It's like the fireman's ball. The bell rings and all the jurors go out into the hall. Don't talk to anybody about the case. Don't listen to any conversations. Take the same seats when you come back. Don't talk about the case. [The jury leaves the courtroom]. THE COURT: Would all of those jurors seated in the courtroom, please step out in the hallway, and don't UNITED STATES vs SABRETECH ET. AL. - 11-15-99 167 talk to anybody else about the case. Everybody be seated. Tell me in your own words, do you have any opinion, at all, in this case before you listen to the evidence about who is right and who is wrong. A. I have no opinion, Your Honor. BY THE COURT: Q. What did you hear, if you remember, back when this came out? A. I don't remember the exact details of the case. All I can really recall is the issue involved. Q. Yes, whatever you happened to hear, see or read. A. The only thing that I can recall right now is the issue of the canisters being involved as the cause of the crash of the plane. Q. As you sit here now, knowing that you are supposed to listen to the evidence, and based it on that, is there anything about the earlier news story based on the canisters that would prejudice you, so you could not be fair and impartial? A. No, Your Honor. Q. If it turns out that they were carrying ping-pong balls instead of canisters, what would you believe? A. The information from the court, Your Honor. Q. Silly question. THE COURT: Mr. Moskowitz, do you want to ask him UNITED STATES vs SABRETECH ET. AL. - 11-15-99 168 any questions? BY MR. MOSKOWITZ: Q. Sir, you stated that you've heard of SabreTech, is that correct? A. From the newspaper. Q. Your answer is that you understand that SabreTech is responsible for the maintenance of the aircraft? A. That's what I believe I have read. Q. What aircraft do you understand that was for, for the aircraft that crashed? A. That specific plane. Q. What is your understanding of the cause of the crash? A. My understanding is, of the cause of the crash is, I don't recall exactly, but I think that the canisters have caught on fire. Q. Do you have any recollection as to what SabreTech's role was with regard to the canisters? A. Specifically, no. Q. Is it your view that the canisters were part of SabreTech's responsibility in regards to maintenance? A. At the time, that was my understanding. Q. As you sit here, is it your view that SabreTech is responsible for that crash? A. No, sir. That was just based on what I read in the newspaper, certainly after it happened. UNITED STATES vs SABRETECH ET. AL. - 11-15-99 169 Q. At the time you read that in the newspaper, was that your understanding based on that report? A. At that time. Q. That SabreTech was responsible? A. At that time. Q. What has changed your view since you read that? MS. MILLER: Objection, Your Honor, that assumes a statement that the juror did not make. THE COURT: Let me put it this way. I can answer it for him, and I hesitate to cut everybody off, he now understands his job which is to listen to the evidence in this case and decide it fairly and objectively. Nobody told him that before. The question is, can he do that? He is the only one that can tell us that. BY THE COURT: Q. When you read the article, you had an opinion and you wrote this down on the questionnaire, is that right? A. Yes, Your Honor. I tried to be as honest as I could. Q. I understand that. When you wrote down, I understand that the crash was due to the oxygen canisters. I do not recall all that I have heard or read and then, later on, same as above, also heard about memorial in the Everglades. Last night on the news, the trial starts today involving SabreTech and other defendants. Then over here on the other page, you said something about SabreTech being UNITED STATES vs SABRETECH ET. AL. - 11-15-99 170 responsible for the maintenance of the aircraft. Have you heard of any of these defendants? Yes. Which ones? SabreTech responsible for maintenance of the aircraft. Now, that's what you know about this case, is that correct. A. That's what I understood at the time. Q. Now, what are you going to base your verdict on, what you heard here or what you heard three years ago? A. Based on the information that came out in court. THE COURT: I think it's quite clear, and I think he has answered the questions quite clearly. So the motion is denied. You may step outside. Don't talk about any of this outside the courtroom. Which do you want to ask more questions on? MR. MOSKOWITZ: Mr. Guerra, Your Honor. BY THE COURT: Q. Mr. Guerra, tell us in your own words what you heard or what you think you heard or read about the crash when you heard about it. First of all, you indicated it was T.V., radio and newspapers, and you heard people discussing the case. Was that back at the time that it happened? A. That's correct. Q. Since that time, has there been other occasions? A. The only thing I've heard since originally back then, was I think, that I had heard once before that one of the UNITED STATES vs SABRETECH ET. AL. - 11-15-99 171 people that were accused from SabreTech had fled. Then after that, I didn't hear anything else about it until the anniversary, when I think they did a memorial out there in the Everglades. After that I did not hear anything else. THE COURT: Mr. Moskowitz? MR. MOSKOWITZ: Mr. Guerra, in your answers in the questionnaire that you did for the Court, you were asked what you had heard about the crash. You said that apparently there's a fire in the passenger area that seems to be caused by the air canisters that weren't properly discharged. A. That's what I recall originally when I read the articles. Q. As you sit here, is that your understanding of what caused the crash? A. Originally, that's what I read. That's originally what I was led to believe. Q. Is that what you believe? A. I have no other recourse than to believe what was written. Q. As you sit here, sir, it is your view that it was the air canisters not being properly secured that led to this crash? A. From what I recall, there was an investigation and supposedly there was suppose to be other issues, but that is UNITED STATES vs SABRETECH ET. AL. - 11-15-99 172 one of the ones that originally was indicated on there. That's what I stated. Q. Are you suggesting that under this investigation, there were other possible causes which were investigated? A. I think that's what I recall from the investigation, that there was a list of things. That's one of the ones that I recall. Q. And you recall the investigation concluded that this was one of the possible causes? A. I don't recall that there was a conclusion. I think it was still being investigated, but that's the original report, that was given out. Q. Sir, if it turned out that one of the defendants in this case had involvement with those air canisters that was part of his responsibility, would it be your view that that defendant had some role or responsibility for causing the crash? A. Could you please clarify your question? MS. MILLER: Your Honor, I believe now we are questioning the juror about things that might emerge at trial. That's not an appropriate question. BY THE COURT: Q. Do you believe everything you read in the newspaper? A. I read information and I know that they have to go ahead and write certain stuff. Do I believe everything that UNITED STATES vs SABRETECH ET. AL. - 11-15-99 173 I read? No, I usually find out that there is more than one side to every story, so I go ahead and take all the information in, and I try to make a decision afterward. From what I recall from the case, they were gathering all the information, there was an investigation and that was one of the original findings. Q. If, after you read a newspaper article and you had the opportunity of listening to a full trial and listening to all of the witnesses that were there and knew what happened, and that differed, in any way, from what you heard in the newspaper, which would you base your verdict on? Would you base it on the newspaper story, or on the full trial you've listened to? A. What I would do in this case is, the trial supposedly is coming up with all the information and the final findings of the investigation, I believe. I may be wrong. Q. Once your mind has read an article or accepted the facts that were in a newspaper, if those facts were different from what you heard in a trial, how would you feel about that? Would you feel obliged to stick to the first reading in the article, or would you base it on the sworn evidence in the court? A. I would base it on the evidence in court. Q. Could you reject the other article if it was untrue or incorrect in your mind? UNITED STATES vs SABRETECH ET. AL. - 11-15-99 174 A. I believe I can. Q. As you sit here today, do you believe that any of the defendants are guilty of anything? A. I haven't acquired the information. I don't think I can make a decision. Q. As you sit there today, right now, do you have some conviction in your mind that they are guilty of something? A. I don't know what they are possibly guilty of. THE COURT: Thank you, sir. You may step down. A JUROR: Your Honor, if I could ask you a question, please. I'm sorry. I have no problem with my employment during the day. However, I am seeking employment during the evening part-time. In fact, I have a job interview to go to that I have planned. I can make arrangements if I am selected as a juror. How long are the cases supposed to usually last? THE COURT: We put that in the letter sent to all of you. We start at about 9:00 in the morning with an hour for lunch and go until 5:00 or 5:30. We do that five days a week. We acknowledge all official holidays and all religious holidays. We don't do it half days or alternate Tuesdays or every Monday, Wednesday or Friday, and when I haven't got a golf game or something like that. A JUROR: I have no issues with that, but I did have a job interview set for tomorrow morning. UNITED STATES vs SABRETECH ET. AL. - 11-15-99 175 THE COURT: We will keep that in mind. Thank you. If you will step out now. Mr. Moskowitz, your motion? MR. MOSKOWITZ: Your Honor, I know he was quite clear saying that he believes he could be fair, and I don't doubt that is his view of himself, but we heard enough about the initial opinions he formed that this crash was caused by the canisters put on this plane, and he has apparently some sense that, as a result of the investigation as he put it, that was one of the findings. He is aware of the original investigation that that finding was made. I believe that the Court has been very careful with the questioning and trying to pick a juror. He has sufficient views on this matter, which I think is prejudicial. I think that is sufficient to strike him for cause. THE COURT: Thank you. MS. MILLER: Your Honor, we don't think he need be stricken for cause. Although the questioning went on more lengthy than anybody else, he did not change his opinion that he could be fair. THE COURT: It's quite clear that he said that. I think Mr. Moskowitz could take any one of these people seated out there and ask them a series of questions that would lead to the conclusion that a basis had been made UNITED STATES vs SABRETECH ET. AL. - 11-15-99 176 that the person is strikeable for cause. I think he has done that in this case. The motion is granted. He is stricken. That one a granted and the other one for cause is denied. Vicki, now, have we got three alternates? COURTROOM DEPUTY: Yes. THE COURT: Marshal, go out and call Tabitha Caldwell. Have you all read pages 13, 14 and 15? MS. MILLER: Just a moment, Your Honor. THE COURT: I'm inclined to grant her request to be excused. MR. MOSKOWITZ: No objection, Your Honor. THE COURT: Without hearing an objection, you may be excused, ma'am. Before we bring Mr. Tracy Tomeny, we have the same problem with the next person. He is a full-time student set to graduate in April. COURTROOM DEPUTY: We already took care of that one. THE COURT: Who is the next one. COURTROOM DEPUTY: Antonio Garcia. He is not on the list. THE COURT: Does anybody have Antonio Garcia's questionnaire? MR. MOSKOWITZ: We have it, Your Honor. THE COURT: Could we borrow it, please? UNITED STATES vs SABRETECH ET. AL. - 11-15-99 177 MS. MILLER: I think we excused him, Your Honor. MR. MOSKOWITZ: Your Honor, apparently this juror has a language problem. We would not object to excusing him on that basis. THE COURT: All right. What does Ms. Miller say? MS. MILLER: Your Honor, we have no objection if the gentleman doesn't feel comfortable in English. THE COURT: Do we have any other jurors? COURTROOM DEPUTY: No, sir, that is it. THE COURT: We can get some more in the morning? COURTROOM DEPUTY: Yes. THE COURT: I will let you go out and excuse those that are in the foyer. COURTROOM DEPUTY: I think there is only that one gentleman. THE COURT: Marshal, bring the other jurors in that we have here. Then go out and excuse him and tell him he can leave. [The jury returns to the courtroom]. THE COURT: All right, does the government have any peremptory challenges of any of the three alternates? Mr. Guerra, you are excused. Thank you very much. Of the three alternates, any challenges by the government? MS. MILLER: No, Your Honor. UNITED STATES vs SABRETECH ET. AL. - 11-15-99 178 THE COURT: By the defense? MR. MOSKOWITZ: One moment, Your Honor. THE COURT: Yes, sir. MR. MOSKOWITZ: Your Honor, we wish to thank you and excuse juror Bays, I apologize if I'm not pronouncing his name correctly, and Ms. Muniz. THE COURT: All right. The two of you may step down. You are excused. Ladies and gentlemen, we have now gone through approximately 65 or 66 jurors today. We have exhausted the supply downstairs, and we will resume tomorrow morning at 9:00. We ask that when you return tomorrow morning that you be careful to observe the instruction not to innocently overhear anything in the hallway or in the elevator or have any conversation with anybody connected with the trial or anybody at all about the case. The lawyers will not even be able to say good morning or good afternoon to you. They are not being rude. They simply can't talk to you. We want to avoid any contact however innocent it would be. We just don't want to have problems that we have to go into spending a half of the day sorting out. So, just don't have any conversation with anybody connected with the trial or anybody at all. If there should be anything in the newspaper, on UNITED STATES vs SABRETECH ET. AL. - 11-15-99 179 television or the radio, please, very important, do not read it, watch it or listen to it. As I explained to you earlier no matter how well intended, sometimes the news articles and news stories are not the full account of everything you saw in the trial and it creates problems and confusion, so don't read it, watch it or listen to it. Also, we are going to ask you, during the pendency of the trial, not to discuss the trial with your family or friends. You say, gee, why can't I? Well, quite innocently again, a spouse or friend might say something to you about the facts of the case not intending to influence you at all, but that it might influence your thinking. The lawyers wouldn't know that the conversations had been held with your spouse or friend. If they did know, and they knew whatever your concern was, whatever the conversation was, they could put on a witness or two and probably clear it up in a heartbeat, but they don't know about it so they can't answer. And there is no way for them to know about it, because they are not having any conversation with you. So, please, do your best. Just don't discuss anything about the facts of the evidence. Wait until the end, and then you can talk to them. Lastly, in the morning, please be prompt. We will endeavor to be prompt with you. We will start promptly at 9:00. If one person is not here or tied up, if I permit UNITED STATES vs SABRETECH ET. AL. - 11-15-99 180 myself to get tied up with Chief Judge Davis or somebody that holds all of you up, and that is not fair to you. So I'm going to do my best to be prompt with you. If one of you is missing, we have to wait for everybody. There is coffee and tea for you to help yourselves and arrive a few minutes before nine, and we will start at nine. We thank you very much. We will start tomorrow morning at nine in the jury room on the 11th floor. Don't hang around on the front steps because that is a place where the lawyers have to talk to their clients. Thank you very much. You are excused until 9:00 tomorrow morning. [The jury leaves the courtroom]. THE COURT: We are going to get into motions now. So, anybody that wants to leave, this is your time to leave. Do we have consents on how many challenges are permitted on alternates? The rule is very specific. It seems to me that it was three to a side. MR. MOSKOWITZ: It says, between two and four alternates, I believe, it is two peremptories. We certainly are in favor of three, if the Court is inclined to give us three. MS. MILLER: Your Honor, we think that the rule should govern here. THE COURT: Whatever the rule says, we will take UNITED STATES vs SABRETECH ET. AL. - 11-15-99 181 a look at it. We don't need to bother with it now. That will be the number. If it is two, it's two. MS. MILLER: Yes, Your Honor, 24C. THE COURT: So, as to how many jurors we will need, we have one more challenge, but then we are running into schools and language. COURTROOM DEPUTY: Maybe 30, just to be safe. THE COURT: Okay. This is the time we take up whenever motions are pending. Who would like to start? MR. MOSKOWITZ: Your Honor, just to finish up on the issue of jury selection. You may recall that after the initial group of twelve jurors, where you questioned them individually, the Court began seating additional jurors. At that point, the Court was not questioning them individually on the issue of publicity. We came up at some point, and there were several jurors who had been seated, and we had cause challenges on publicity and, Your Honor, said we could come back on the record. THE COURT: Dictated into the record. MR. MOSKOWITZ: There were two jurors specifically who we believe there was sufficient basis to question individually, and they were jurors, Galiana and Herskowitz, and another juror we would want to have individually questioned is Eugene Newton. These were all UNITED STATES vs SABRETECH ET. AL. - 11-15-99 182 jurors on whom, Your Honor, we exercised our peremptories. Also, Antonio Antelo, we believe further questioning on the issue of pre-trial publicity. We, in fact, did not preempt him. He is on that jury. Thank you, Your Honor. THE COURT: Let the record reflect these objections were made at sidebar, where we do not have the opportunity or the ability to get the arguments recorded, and so we did not have it recorded, but I did give Mr. Moskowitz the right, both counsel, the right to supplement the record with what did occur at sidebar. I'll ask Ms. Miller if she agrees, and if there's anything further that she wishes to add in this supplemental record. MS. MILLER: As Mr. Moskowitz acknowledges, there was not a motion to have Ms. Newton questioned individually, and I don't believe there was a request with regards to Mr. Antelo. THE COURT: The rulings are what the rulings are. MR. MOSKOWITZ: Your Honor, at the end, of course, Your Honor did revert with regard to the alternates to individual questioning, and we believe that was the appropriate manner in which to proceed, and we would have, of course, preferred to have proceeded with that same method in between the time that Your Honor was doing that. THE COURT: All right. That's an accurate reflection of what took place at sidebar and should be part UNITED STATES vs SABRETECH ET. AL. - 11-15-99 183 of the record. MR. MOSKOWITZ: Your Honor said this morning that by tomorrow, we would supplement the record with additional exhibits that would be put in, in support of that record. THE COURT: No, whatever you want to hand me up here when you are at sidebar, and what I have before me that's one thing. You had asked for leave to supplement the record, your motion that was filed last night or some time by adding a T.V., that I granted, and you walk up tomorrow and hand it in. That's fine. There was something about a newspaper article in, I believe, the Orlando paper which I referred to in your motion, that's granted. Don't come up and hand me stuff that you can think up tonight when I've already ruled on. MR. MOSKOWITZ: Of course, Your Honor. Didn't mean that. THE COURT: I misunderstood. MR. MOSKOWITZ: I'm referring to exhibit D, which is the juror questions themselves. THE COURT: One copy of the juror questionnaires will be sealed and placed in the record and in a sealed document. All other copies will be destroyed. They won't be floating around all over this community. That is still the ruling of the court. There will be one complete set that will be available for examination by The Court of UNITED STATES vs SABRETECH ET. AL. - 11-15-99 184 Appeals or anybody else, that is a legitimate authority that has need to go into them. I don't want everybody to have copies floating around their briefcase and everything else. This is a critical point for many other reasons having nothing to do with the type of litigation here. I'm not concerned about this case. I think you all understand what I'm talking about with the Moya case and others. Those juror questionnaires floating around can be a problem. Not in this case. I don't anticipate any problem at all. Let's follow that same procedure. We will seal up one copy. Let's take up motions. Whoever wants to start, this is the time. MS. MILLER: Your Honor, we had earlier filed our motion in limine. That is one of the motions pending before the Court. In addition -- THE COURT: Let us take them one at a time. This is the government's motion in limine that excludes argument and evidence. I thought we touched on that, but maybe we didn't. Would you tell me what it is you are moving for Mr. Brigham? MR. BRIGHAM: Your Honor, we are not necessarily asking for a ruling right now, but simply ask that counsel refrain from argument in their opening statement that would UNITED STATES vs SABRETECH ET. AL. - 11-15-99 185 fall into these areas. Our first concern, as the Court knows, there is a number of civil -- THE COURT: Excuse me. If you are not asking for a ruling, then I don't need to hear about it. If it's just advising me of problems in the trial, doesn't really work. I'm sympathetic to whatever problems you've got. But you have got to move for something, and then the other side responds, and then I get the last guess. If you are not asking for anything, then I don't need to be involved. You anticipate that a problem is going to come about a statement that they are intending to prove. It's not closing argument, if somebody gets up and says we intend to prove that plane was painted red, and you know that they can't prove that because it was painted green. Well, if in good faith Ms. Moskowitz says we are going to prove red, I accept her word. The only other thing I can do is have an evidentiary hearing, and I say well, Jayne, it doesn't look like you are going to prove that. So it's pointless. If the defense thinks, in good faith, that they are going to prove something, they state it to the jury. If you think you are going to prove something, you state it to the jury. They are only talking facts. They're not talking about how a green plane moves faster than the red plane. It's facts. UNITED STATES vs SABRETECH ET. AL. - 11-15-99 186 MR. BRIGHAM: I appreciate that, Your Honor. I'm afraid that we may have counsel that comes before the jury, and says we are going to prove that the NTSB has found that there was probable cause which contributed to the FAA and ValuJet and SabreTech. My point is, you can't make that argument to the jury because it's for the Court to decide, for the jury to decide and not to take the conclusions of another entity which is outside this courtroom. That would be our first point. We would suggest that counsel not be able to do that. THE COURT: Wouldn't this properly come up in charge conference that says exhibit 43, being the property report of the transportation board or FAA or whoever, it is not properly binding on this jury and has no bearing on this case, and is not proper evidence of this case, and if you are right, I give that instruction and that's the end of it? They are not arguing it now. They are just giving an opening statement of what everybody is expected to prove. BY MR. BRIGHAM: And if, in fact, that's what counsel does, limit itself to the evidence in this particular case, without reference to the NTSB, we would say we have no problems with that, Your Honor. THE COURT: Why can't they offer any document UNITED STATES vs SABRETECH ET. AL. - 11-15-99 187 they have in their briefcase that has something to do with this accident? MR. BRIGHAM: Because it's this Court, not the NTSB which rules on criminal action. We suggest that this Court needs to be the decision-maker on those particular decisions. What the NTSB may have ruled is not relevant because it's this Court that has that authority, either through the Judge or through the members of the jury. We suggest that it would be improper to the contrary, to the jury. Another one of our points, Your Honor, is that what the FAA might have done, for example, with Mr. Florence's or what they may intend to do with Mr. Gonzalez's license is irrelevant. It's outside this courtroom. This proceeding is a criminal proceeding, determining guilt or innocence. We suggest that other administrative action is not appropriate. If counsel is to tell the Court that they won't make those arguments in front of the jury, then I will sit down and I have nothing further to say. My concern is that they, very well, may do that. We see, for example, in the press this weekend, that there has been statements to the press suggesting that a criminal prosecution is inappropriate for resolving an issue of this nature. We feel it's completely to the contrary, where you UNITED STATES vs SABRETECH ET. AL. - 11-15-99 188 have falsification of aviation maintenance records, but it doesn't really matter because it's not an issue for the jury. As a matter of fact, it's outside argument which doesn't really go to the issues that are before the Court. We say it simply should not be made to the Court in opening statement. I have no doubt this Court not only has the power, but the keen ability, through instructions, to control it's courtroom. At the same time, why wait until then. Why can't we say those arguments are not appropriate now, and there won't be need at the end of the trial to instruct and to tell the jury to forget the elephant that defense counsel has just released in the courtroom. For that reason, Your Honor, we request that counsel not make the argument in these particular areas when the rule, and that the Court so rule. THE COURT: Ms. Moskowitz? MS. MOSKOWITZ: Thank you, Your Honor. Your Honor, the FAA is the client agency, an executive branch agency of the executive branch which is prosecuting this case. The FAA was found liable by the NTSB as one of the probable causes of this accident because Mr. Brigham doesn't want to hear, it doesn't make it irrelevant. THE COURT: What case does make it proper evidence? What authority do you have? MS. MOSKOWITZ: I got the motion in limine, Your UNITED STATES vs SABRETECH ET. AL. - 11-15-99 189 Honor, after court opened this morning. My legal research ability were somewhat curtailed. THE COURT: All right. I don't have any problem with that. This is something that counsel is suggesting is going to be offered in evidence because he is concerned you are going to talk about it being offered in evidence. So obviously, I know you are not going to talk about something you are not going to offer into evidence. Therefore, since it is something you are going to offer into evidence, then the issue is whether or not it is admissible into evidence. The initial burden falls upon the person or entity offering the evidence. Therefore, at the right time, you are going to tell me why this document being, I presume, some sort of report from the NTSB, you are going to tell me why that is admissible evidence, and somebody is going to object to it or not. If it is admitted into evidence, I don't even have to think about it, by agreement. Then, if it is objected to, I have to rule on it, and that ruling will be predicated on whatever his authority is and yours. So what we need to do on these motions of limine, which you understand that I don't care for at all, because I cannot anticipate every possible method on which a piece of paper or witness may be admissible. You just can't anticipate. UNITED STATES vs SABRETECH ET. AL. - 11-15-99 190 Generally, when somebody is objecting in limine, I can think of two or three ways that it might come. You did that, it would be admissible. So in limine, the Court has to say that there is no possible way this document will ever come into evidence, no set of circumstances. I'm asked to look at it in a crystal ball five, six, seven weeks down the road, when that problem comes up and rule on it now. I don't think that is the best way to rule on it. I think the best way is to wait for it to come up. So much for that. So I'm having to look, if we go into this matter at all prior to opening statement, I'm having to look and what basis, it is admissible. I presume you have a basis. You do think it is admissible, right? MS. MOSKOWITZ: It is admissible. It is a public record, Your Honor, made by a government agency pursuant to it's duty, admissible against the government in a criminal case. THE COURT: His argument is materiality. I know you are not ready today. His argument is not the hearsay argument. It is materiality. So we better be prepared to talk about that and find out what the materiality is. He is saying that, if my son out there in the county judges court ruled that your husband speeding home last night after working all night on the case -- I'm making up what I hope at the end of the day is a humorous UNITED STATES vs SABRETECH ET. AL. - 11-15-99 191 example. You do have a husband that sometimes works late at night, and I do have a son that works traffic cases. If he should decide that Mr. Moskowitz accidently ran the red light that wouldn't necessarily make it so in the case here -- it's a bad example, Norman. Excuse me. What he is saying is an administrative determination or a determination of the Court doesn't make it so, and doesn't even make it admissible because it's confusing. So it is materiality that he is arguing. So, we will take a look at whatever your cases are and I'm sure there is an answer readily available to all of us. If we can't get that before opening statement, then I am going to rely on the good faith of the appearance of the attorneys in this case. If they tell me that they have a good faith reason to tell me that something is going to come into evidence, then I could not wish to substitute my judgment to that and rule that there is no possible way it can come in. That's all I can tell you on that and that spreads across all the other motions in limine. I think you all heard me go through this enough. Let's reserve ruling on this until you have a chance to look at whatever your authority is. MS. MOSKOWITZ: Understanding quite well about the limine, despite that I have to push forward on one of UNITED STATES vs SABRETECH ET. AL. - 11-15-99 192 my own with some trepidation, but I think the record requires that I do that. Your Honor, we received in discovery from the government on Friday, the government's intention to introduce what are called the National Transportation Safety Board's fire test videos. This is also something that I don't think we should hear about in opening statement. Let me tell, Your Honor, briefly what those are. MS. MILLER: Excuse me, Your Honor. I don't intend to refer to the videos in my opening statement. MS. MOSKOWITZ: Then we will cross it later. If we are not going to hear it in opening, we will do it whenever you prefer. THE COURT: If there is a series of objections, then, indeed, I'll listen to both sides and maybe, several witnesses, and I will rule. MR. MOSKOWITZ: Your Honor, two matters that I want to raise. We have now received the government's Jencks which is quite extensive, and I spent the weekend reading it. We have concerns based on Jencks about how they intend to go proving the case and, more specifically, what they propose to argue in evidence, I'm sorry, in opening, how they would prove that case. Let me square my position briefly. This is, of course, a false statement UNITED STATES vs SABRETECH ET. AL. - 11-15-99 193 case. As Ms. Miller said two months ago, it is a simple false statement case. The charge is conspiracy to commit false statements against the government. As Your Honor well knows, false statements, whether against the government or mail fraud or wire fraud, have to be alleged with specifics and have to be proven with specifics. We certainly understand that the government has alleged at least three specific false statements in the indictment. We understand that we are going to have to meet the evidence against that. Based on reading the Jencks, Your Honor, our concern is this: Throughout the Jencks material, throughout the questioning of the witnesses in the grand jury, the questions are intended to elicit answers that there was this whole atmosphere or environment of falsity of misrepresentation without specific regard to who said what, who made what false statements on a particular occasion, but just, in general, people having a reputation for making false statements, people for doing it all the time. It seems to me when it gets to the proof of whatever false statements the government seeks to make, that would be objectionable and inadmissible. A brief example -- I was reading the grand jury testimony of Mr. Stefano, who will be one of the government's first witnesses, and the question is about his UNITED STATES vs SABRETECH ET. AL. - 11-15-99 194 knowledge of the defendant making, what is called, pencil whipping false statements. His answer was, and I'll read the last part of it -- "I say, like I say, I can't tell you. You are talking about something so common that I can't name a particular instance. I'm talking about, you know, all the time." That is the answer, which was it happened, there was so much of this pencil whipping going on all the time, I can't even tell you a specific instance. This will be admissible evidence. They'll have to prove it with specifics. If they intend to present it in opening statement, I believe it will be quite objectionable. How do we respond to the atmosphere where the allegations are going to be false statements. The second area where, based on just reading Jencks, we have concern is, again, the conspiracy alleged here is the conspiracy to commit false statements. This is not an airline safety prosecution where the defendants are being prosecuted for running an unsafe repair facility, for violating the regulations on how they are supposed to repair the airplanes that come in there. Again, throughout the grand jury testimony, there is a lot of questioning about unsafe practices in doing repair work which have nothing to do with what they are charged with. UNITED STATES vs SABRETECH ET. AL. - 11-15-99 195 For example, in the same questioning of the same witness, they talk about an instance where apparently they tried to mount an engine using tools used for automotive bolts. This goes throughout the grand jury testimony, proof of unsafe job or labor practices, which I don't think have anything to do with -- THE COURT: You think they are going to say this to this jury? MR. MOSKOWITZ: That is my concern, because that is what they have eliciting from their witnesses. THE COURT: Now the defense is doing to the government what the government did to the defense, and that is saying that you are concerned with what lawyers, good lawyers, in good faith, are going to tell the jury what they expect to prove, and you are asking me to tell them not to say that to the jury. Well, how can I do that if, short of some sort of evidentiary hearing and a finding or ruling, that there is no way on earth that they are going to get that evidence in? I don't know how it is going to come up. I personally can think of a couple ways, depending on who is on the witness stand and how the direct goes and how the cross goes, where some of this stuff very well might be splattered across this courtroom by the end of the day of the first week. UNITED STATES vs SABRETECH ET. AL. - 11-15-99 196 On the other hand, I can see objections to a lot of this. But to make these rulings and of necessity find that there's no way in the world that Jayne Moskowitz can introduce the document that the government doesn't want her to talk about or there is no way in the world that Mr. Brigham is going to be able to get into talking about the hobby horse bolts for the go-cart that the kids ride at the go-cart place instead of the super strength steel bolts. Mr. Brigham says, in good faith, that he is going to get that in, and Ms. Moskowitz says, in good faith, I have a tendency to accept and believe that, and let the lawyers go forward in their opening statement. As the panel all knows, at the end of the case, if somebody told the jury something in opening statement, an astute opposing counsel will wrap that right around their necks and hammer it home in closing arguments. Up to now, in the last 36 years, I have left that up to experienced lawyers. If you get inexperienced lawyers or somebody that has watched too much T.V., it may be well that you have to explore that with the lawyers before you get into it. How am I going to -- you think there is no way -- first of all, are you going to try to prove that they used tinker-toy bolts to put the engine on? MS. MILLER: Your Honor, that is not something I UNITED STATES vs SABRETECH ET. AL. - 11-15-99 197 can allude to in my opening statement. THE COURT: For me to understand what is being alluded to, I have to have specifics. I have to have specific reference to something, not just a generalized, she is going to talk about atmosphere. I can't do that. If you tell me that she is going to say to the jury that the NTSB report, defense exhibit 36, is not going to be admitted, then I can deal with that. I don't know how to put it. I know you've been working on this just yesterday. Maybe you need to do this, and we can come in here early in the morning and listen to it. MR. MOSKOWITZ: Your Honor, I understand the dilemma. With regard to this first issue, I mentioned where they would be seeking to prove false statements, not specifically by reference to a particular statement, but as they say, atmosphere of false statements. There is testimony that Mr. Gonzalez had a reputation for being what is called a pencil whipper. If they try to get in testimony about his reputation for being a pencil whipper, someone who coerces mechanics to sign documents improperly, that would not be admissible. THE COURT: Again, we are getting into the language that is going to be used. I presume that if Ms. Miller says to the jury that we intend to prove that once a week, Mr. Rodriguez or someone, Mr. Jones, had a UNITED STATES vs SABRETECH ET. AL. - 11-15-99 198 meeting with all the mechanics and said I'm going to pistol whip you to death, and they are going to prove that, then she can tell them. If she, in her analysis suggests that that creates atmosphere, then that is proper in opening statement. An opening statement should be specific to what is proven, i.e. the general meetings with mechanics to get the work out. Whatever it is. I think you all are asking me to dip down in the swirling fish bowl and come up with a goldfish. I don't know that I can do that right now. My courtroom deputy reminded me that I misspoke. I have an emergency hearing by a television station, Telemundo. We had it scheduled for 5:00 today and we moved it up to 4:00, thinking that whatever happened with the jurors, we thought we would run out of them. Are the lawyers here? ATTORNEY: Yes, the other side is outside. THE COURT: The parties suggest this is an important emergency hearing. It has got to be resolved by midnight tonight. That doesn't leave me much time to write an opinion. My court reporter is wearing out. Perhaps the best thing to do is take these things up tomorrow morning at 8:00. We will take a five minute recess, gentlemen, and then we will take up the next case. MR. MARSHAL: All rise. UNITED STATES vs SABRETECH ET. AL. - 11-15-99 199 (Proceedings concluded at 4:30 p.m.) C E R T I F I C A T E I hereby certify that the foregoing is an accurate transcription of proceedings in the above-entitled matter. ______________ _______________________________________ DATE FILED ROBIN CARBONELLO Official Federal Court Reporter Federal Justice Building, Ste. 1127 99 Northeast 4th Street Miami, FL 33132 - 305/523-5108 Quality Assurance by Proximity Linguibase Technologies
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