 |
|
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 16, 1999 SABRETECH, INC. DANIEL GONZALEZ, DAY 2 - P.M. EUGENE FLORENCE, MAURO VELENZUELA, Defendants. JURY TRIAL PROCEEDINGS BEFORE THE HONORABLE JAMES LAWRENCE KING, SENIOR UNITED STATES DISTRICT JUDGE VOLUME 2 APPEARANCES: FOR THE GOVERNMENT: CAROLINE HECK MILLER, A.U.S.A. JEFFREY BRIGHAM, A.U.S.A. J.L.K. FEDERAL JUSTICE BUILDING 99 N.E. 4th Street Miami, FL 33132 - 305/961-9432 PETER PLOTKEY, ESQ. OFFICE OF GENERAL COUNSEL DEPARTMENT OF TRANSPORTATION WASHINGTON, D.C. SPECIAL AGENT MIKE CLARK OFFICE OF INSPECTOR GENERAL DEPARTMENT OF TRANSPORTATION SPECIAL AGENT JACQELINE BRESHAY
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 JOHN GILLICK, ESQ. WINTHROP, STIMSON, PUTMAN, ROBERTS WASHINGTON, D.C. FOR DEFENDANT FLORENCE: JANE MOSCOWITZ, ESQ. MOSCOWITZ STARKMAN & MAGOLNICK 100 S.E. 2nd Street, Suite 3700 Miami, FL 33131 - 305/379-8300 FOR DEFENDANT GONZALEZ: ROBERT DUNLAP, ESQ. DUNLAP & SILVERS, P.A. 2601 S. Bayshore Drive, Suite 601 Miami, FL 33133 - 305/854-9666 FOR DEFENDANT VALENZUELA: 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 Walton Little ................ 68 Richard Brennan .............. 80 Reporter's Certificate ................................. 118 Opening Statement - Raskin ............................. 4 Opening Statement - Dunlap ............................. 34 Opening Statement - Moscowitz .......................... 51 INDEX TO EXHIBITS Exhibits Marked for Received Identification in Evidence Description Page Line Page Line Government Exhibit 1 ........................... 79 3 Government Exhibit 32 .......................... 88 3 Government Exhibit 30F ......................... 98 5 Government Exhibit 31 ......................... 103 16 UNITED STATES vs SABRETECH ET AL - 11-16-99 4 1 AFTERNOON SESSION 2 1:30 P.M. 3 COURTROOM DEPUTY: All rise. Court is in 4 session. The Honorable Judge James Lawrence King 5 presiding. 6 THE COURT: Thank you. Be seated. 7 MR. MOSCOWITZ: Your Honor, we would like to make 8 a motion based on Ms. Heck's opening. 9 THE COURT: Let's wait until you finish yours. 10 [The jury returns to the courtroom]. 11 THE COURT: Thank you. At this time, ladies and 12 gentlemen, we will hear the opening statement from 13 Mr. Martin Raskin. 14 OPENING STATEMENTS 15 MR. RASKIN: Good afternoon, ladies and 16 gentlemen. Although this is the first time that I have had 17 an opportunity to speak with you, you have already heard a 18 lot about my client, SabreTech, and it all sounded pretty 19 bad. Everybody from the stockroom clerks to the hourly 20 mechanics, cutting corners and pencil whipping, all at the 21 expense of safety. But you know what? The evidence will 22 show that it just didn't happen. 23 SabreTech, you will hear, was in the business of 24 making planes safe for flight. At the time of the ValuJet 25 crash, SabreTech was the third largest independent repair UNITED STATES vs SABRETECH ET AL - 11-16-99 5 1 facility in the United States. It employed fifteen hundred 2 people, had facilities in three states. Six hundred workers 3 were employed in the Miami area alone, at the Miami 4 facility. It serviced hundreds of aircraft over the years, 5 for some of the biggest airlines, all accident free. 6 David Gonzalez and Eugene Florence are two of the 7 six hundred workers who were employed at the Miami facility. 8 You will hear a lot about Danny Gonzalez and Eugene 9 Florence, when their lawyers get up and address you in their 10 opening statements. Let me make one thing clear to you at 11 the very outset. The one thing that the evidence will show 12 in this case, beyond any doubt, is that these men are both 13 excellent and well-trained, well-intentioned airplane 14 mechanics. In addition, neither they, nor SabreTech are 15 criminals. 16 The government makes this case sound so easy and 17 so simple. But as you'll learn during the course of this 18 trial, there are no good guys or clear-cut bad guys in this 19 story. Real life just isn't black and white. Sometimes 20 people make mistakes. And in this case, many people 21 including my client, SabreTech, made mistakes when combined 22 with the mistakes made by others had tragic consequences. 23 But the fact that the ultimate outcome was a tragedy of 24 immense portion, doesn't change the fact that what happened 25 in this case were mistakes. Errors in judgment, not crimes. UNITED STATES vs SABRETECH ET AL - 11-16-99 6
1 Ladies and gentlemen, the story of what happened 2 with ValuJet flight 592 doesn't start with SabreTech, and 3 doesn't stop with ValuJet work card 0069. The story is not 4 confined to what the government has told you or has chosen 5 to tell you. 6 The fact that the government has not told you 7 volumes of evidence. We will fill in the blanks for you 8 during the course of this trial. You'll hear that the chain 9 of human errors that resulted in the crash of ValuJet flight 10 592 was made up of many links. SabreTech mechanics and 11 storeroom clerks, Valujet ramp workers, the FAA, DOT 12 bureaucrats, Scott Aviation, the maker of the generators, 13 and even McDonald Douglas, the maker of the plane which 14 crashed. 15 You'll see that not one of them acted with bad 16 intent or bad motive. Not one of them could have foreseen 17 the final outcome, the tragic outcome in this case. Yet, 18 they are all parts of the chain. They are all links in the 19 chain that the government will not tell you about. They 20 only tell you about SabreTech, but we will tell you about 21 the others. 22 Remember, what matters in this case is not what 23 everybody knows now about the dangers of oxygen generators 24 and training. What matters is that SabreTech, and it's 25 employees, is what they understood at the time that these UNITED STATES vs SABRETECH ET AL - 11-16-99 7 1 events transpired in May of 1996. We will have plenty to 2 tell you about May 1996, and the state of knowledge in both 3 the industry and at SabreTech. 4 Let's start with the charges. What are they 5 really? The charges can be divided into three main 6 categories. 7 First, the government says that we deliberately 8 placed a destructive device on an airplane carrying 110 9 people with the intent to endanger it. 10 Second, they accuse SabreTech and it's employees 11 of a vast conspiracy to cut corners, to put profit over 12 safety, and to falsify documents. 13 Finally, they accuse us of reckless violations of 14 complicated hazardous materials regulations. 15 Now, in considering these charges, you should know 16 the legal standards that you will use at the end of this 17 case to evaluate them. The main issue that you will be 18 considering, is the state of mind of the defendants. What 19 did they intend? What was your motive? 20 At the end of this case, Judge King will instruct 21 you on the definition of willful conduct. He will tell you 22 that in order for something to be willful, it must be done, 23 and here is the way the law reads: it must be voluntarily 24 and purposefully with a specific intent to do something that 25 the law forbids. UNITED STATES vs SABRETECH ET AL - 11-16-99 8 1 THE COURT: Mr. Raskin, I'm sorry to interrupt 2 you, but we don't read the instructions to the jury. That 3 comes at the end of the case. Let's talk about what you 4 are going to prove. 5 MR. RASKIN: His Honor is absolutely correct. 6 The only Judge of the law will be Judge King, and he will 7 instruct you at the end of this case. 8 Getting back to state of mind of the defendants, 9 another concept that you will hear about during the course 10 of this case, and that Judge King will instruct you about at 11 the end of this case, is that good faith is a defense to a 12 charge of false statement. Again, the Judge will instruct 13 you about that at the end of the case. 14 THE COURT: Let's talk about the facts. 15 MR. RASKIN: With these legal principles in mind, 16 let's start with the first charge that I mentioned, putting 17 a destructive device on a passenger aircraft. I start with 18 that charge because I think that it will be the most 19 obvious example of the prosecutor unfairly trying to turn 20 this tragedy into a crime. 21 THE COURT: Mr. Raskin, could I see you and 22 Ms. Miller, please? 23 THE COURT: I'm awfully sorry to interrupt you. 24 I hate to do it sidebar, but this is not consistent with 25 the opening statements that Ms. Heck did. This is the UNITED STATES vs SABRETECH ET AL - 11-16-99 9 1 elements, and this is this and this is that. I don't mean 2 telling them the evidence and discussing anything about 3 what you are going to show, and you're not going to hear 4 evidence about such and such, that is permissible. But the 5 elements, please raskin go through that. 6 MR. RASKIN: I will not do that. 7 [Sidebar Concluded] 8 MR. RASKIN: The government said that SabreTech 9 willfully and intentionally placed the destructive devices 10 and expired generators on ValuJet 592, and the indictment 11 says that it was with the intent that the plane be made 12 unworkable, and unusable. In other words, with the intent 13 to make it crash. 14 You heard Ms. Miller's opening statement. She 15 acknowledged that nobody at SabreTech intended for the 16 plane to crash. She is right. There will be no evidence 17 of that. 18 There will be no evidence that SabreTech's workers 19 were terrorists trying to put a bomb on an airplane, or kill 20 people. These were mechanics and stockroom clerks doing 21 their jobs. Maybe they made mistakes, but they certainly 22 didn't intend to harm anybody, and they certainly didn't 23 intend to harm that plane. 24 What about the government's conspiracy charge? 25 The indictment says that SabreTech, Eugene Florence, Danny UNITED STATES vs SABRETECH ET AL - 11-16-99 10 1 Gonzalez and others combined, conspired, confederated and 2 agreed to rush and compress repair work, and to deliberately 3 lie to the FAA about it. 4 The government claims that SabreTech workers 5 routinely bowed to management pressure to pencil whip 6 maintenance cards. But when you cut through all the fancy 7 language, listen to the evidence in this case, you will 8 discover that the government is complaining simply about 9 three work cards. 10 You will hear that one of them involved the Aserca 11 C-Check that Ms. Miller mentioned in her opening statement, 12 and that dealt with a de-icing check that took place 13 approximately five months prior to the ValuJet crash. You 14 will hear during the course of this trial that C-Check and 15 that particular step was accomplished, and it was 16 accomplished by one of the most experienced and best DC9 17 mechanics in the country, Danny Gonzalez. 18 The two other false statement charges by the 19 government involved the safety caps. Ms. Heck-Miller spent 20 a great deal of time dealing with that issue, the safety 21 caps which were supposed to be in place on the oxygen 22 generators. 23 Guess what? The evidence will show that SabreTech 24 itself provided those work cards to the NTSB just three days 25 after the crash, and explained that they were inaccurate as UNITED STATES vs SABRETECH ET AL - 11-16-99 11 1 to that particular work stop. 2 So, let's go further. The government's evidence 3 will not show a repeated pattern of false statements. It 4 will not show efforts on the part of SabreTech, or it's 5 employees to conceal or hide anything. Rather, the criminal 6 conspiracy or agreement that the government alleges will 7 show an unfortunate lack of coordination, lack of knowledge 8 and lack of understanding on the part of some SabreTech 9 employees as to what other SabreTech employees knew or were 10 doing. 11 There was no conspiracy to falsify paperwork or 12 anything else and the evidence will so show. 13 What makes the government's lack of evidence in 14 this case so glaring, is the time and the effort that it 15 spent in putting this case together. 16 You will hear that the government reviewed 17 hundreds and hundreds and thousands of documents in this 18 case. The documents concerning the 3 MD-80s aircraft alone, 19 if you were to stack it all up in this courtroom, would go 20 about 10 to 20 feet high. 21 At the end of their investigation, they have come 22 up with three pieces of paper. That is what they allege to 23 be this over arching conspiracy. 24 What about the atmosphere of pressure that 25 Ms. Miller talked about? The evidence will be that there UNITED STATES vs SABRETECH ET AL - 11-16-99 12
1 was pressure to get the job done. This was a business, 2 there were deadlines to be met, and the company wanted to 3 make a profit, like all businesses do. But you will hear 4 that it wasn't at the expense of safety. The witnesses in 5 this case, SabreTech's employees, quite simply will blow 6 this nonsense out of the water. 7 The evidence will be that SabreTech's mechanics 8 were very concerned about the safety of the planes on which 9 they worked. They will tell you that they didn't pencil 10 whip maintenance tasks, and they don't know of mechanics 11 that did. That's the part of the story that the government 12 doesn't want you to hear. 13 Now, will some SabreTech employees tell you that 14 they didn't like their boss? Yes. Will some tell you that 15 they tried to avoid signing paperwork? You will hear that 16 from some, but not because they believed that the work had 17 not been done, and not because they believed the work had 18 been done improperly. 19 Take, for example, Mauro Valenzuela. The 20 government will tell you that the evidence will be that 21 Mauro Valenzuela didn't personally accomplish the removal 22 of the old oxygen generators from plane 803, but he signed 23 the work card concerning the installation and removal any 24 way. 25 As Ms. Miller seems to concede, it is entirely UNITED STATES vs SABRETECH ET AL - 11-16-99 13 1 appropriate under FAA regulations for a mechanic to sign 2 for work that he hasn't done himself, as long as he insures 3 himself that the work has been accomplished. 4 Before he signed the ValuJet work card, you will 5 hear evidence that Mauro Valenzuela spent four hours 6 checking to make sure the generators had been properly 7 installed on the plane that had been repaired. The 8 evidence will not be that he falsified work papers. 9 You'll hear after some give and take from his 10 boss, he did the best he could to ensure himself that the 11 work was done properly, and he signed the paperwork. 12 Nothing you will hear from any of the witnesses in this 13 case will contradict that basic fact. 14 Let's talk now about the area in which the 15 government asked you to concentrate; the work-step telling 16 the mechanics to place shipping caps on the firing pins of 17 the expired generators. 18 The government would like you to view these work 19 cards in isolation. It all sounds so simple in retrospect. 20 Two simple work cards over the course of this 21 trial. We will probably spend lots of times dissecting 22 those cards through the looking glass of this tragic 23 accident. 24 You will hear that these work cards must be 25 considered in their proper context. You will hear that UNITED STATES vs SABRETECH ET AL - 11-16-99 14 1 these work cards, explained before, are part of a package 2 made up of tens of thousands of work documents related to 3 the 3 MD-80s. 4 Before the end of this trial, you will see none 5 routine work cards, routine work cards, checklists, tally 6 sheets, engineering orders, log books, checkbooks, service 7 bulletins, inspection reports, air worthiness directives, 8 inventory lists, and a whole host of other paperwork. 9 This massive paperwork, as I said before, would 10 reach the ceiling of this courtroom, if stacked up. So when 11 you are considering whether Eugene or Mauro acted with 12 critical intent, remember that unlike those of us sitting in 13 this courtroom for the next several weeks, those mechanics 14 were not focused on that one single solitary piece of 15 paperwork that the government now finds fault with. 16 Having said that, let me make a couple of things 17 clear. First of all, no one least of all SabreTech, 18 disputes the fact that there were no shipping caps at the 19 time that those work cards were signed. That was an agreed 20 fact since three days after the crash. 21 Second, no one disputes the fact that ValuJet work 22 card 0069, as signed by Florence and Valenzuela, is 23 technically inaccurate as to one of the work steps. That, 24 too, has been a matter of public record for over three and a 25 half years. UNITED STATES vs SABRETECH ET AL - 11-16-99 15 1 The important question for you to decide, is not 2 what was done, but why it was done, with what state of mind. 3 Remember, this is a criminal case to convict 4 someone of a false statement crime. It is not enough for 5 the government to prove that the statement was inaccurate. 6 It's not enough for the government to prove that the false 7 statement was played as a result of negligence or poor 8 judgment. 9 The government must prove that the statement was 10 made with bad purpose and with the specific intent to 11 deceive. 12 So, you will be asked to determine what motivated 13 Eugene Florence and Mauro Valenzuela in signing those cards. 14 What was in their minds? Did they intend, by signing those 15 cards, to deceive the FAA or ValuJet? Did they have a bad 16 purpose in mind that the government says they did, to 17 knowingly and willfully disobey the law in order to make a 18 few extra bucks for SabreTech? Or, will the evidence show 19 that they acted in good faith, and without intent to 20 deceive? 21 The evidence will show that the mechanics acted in 22 complete good faith. Their good faith is not something that 23 you will have to guess about. It's not something that 24 requires a mind reader. The good faith, with which 25 SabreTech's mechanics approached the oxygen generator UNITED STATES vs SABRETECH ET AL - 11-16-99 16 1 paperwork, will appear naturally to you throughout the 2 course of this trial, so long as you listen for it. 3 For example, you will learn that the 70 or so 4 mechanics who participated in the oxygen generator work, had 5 in front of them, as they should have, both the ValuJet work 6 cards and ValuJet engineering orders that detailed the 7 manner in which this work was supposed to be done. 8 So you have just heard a very interesting fact 9 here during the course of this trial. There were 70 10 mechanics who worked on this project. You also heard that 11 there were different kinds of paperwork associated with 12 those tasks. Let's talk about that. 13 These mechanics learned that the work cards called 14 for shipping caps, and SabreTech didn't have any in stock. 15 You heard about that. By the way, there is nothing wrong or 16 suspect with SabreTech not having those caps in stock. This 17 was a very unusual airplane part. It's not the kind of part 18 that would be in the stockroom of virtually any work repair 19 facility. 20 So, having learned that the mechanics didn't have 21 shipping caps, did the mechanics shrug their shoulders and 22 say so what? An attitude that would be consistent with bad 23 purpose or indifference? No. You will hear that they 24 brought the issue to the attention of their supervisor, who, 25 unlike what Ms. Miller told you in her opening, did not blow UNITED STATES vs SABRETECH ET AL - 11-16-99 17 1 them off. 2 You will hear that that supervisor, indeed, 3 ordered shipping caps. In the meantime, while the mechanics 4 were waiting for the caps to arrive, what did the mechanics 5 do with the generators? Did they simply throw them in a box 6 and walk away? The answer again will be, no. The mechanics 7 you will hear took great care with the generators. Some cut 8 the lanyards. Some wrapped the lanyards around the 9 generator in an attempt to render them safe. 10 They will tell you that they took the time to do 11 this because that's the way the new generators came. They 12 came with their lanyard wrapped in order to render them 13 save. 14 You will hear that the mechanics all believed that 15 they were achieving an equivalent of safety. You know what? 16 You will hear that they weren't wrong. Over the next weeks, 17 you will become very familiar with the operation of these 18 oxygen generators. You will probably know more about oxygen 19 generators than certainly most people in the aircraft 20 industry. 21 One of the things that you will learn is that 22 these things don't go off easily. In order to make one of 23 these things discharge, you have to really tug on that 24 lanyard, give it a real pull before it simply goes off. 25 Ladies and gentlemen, you will see that a McDonald UNITED STATES vs SABRETECH ET AL - 11-16-99 18 1 Douglas maintenance manual, approved by the FAA and issued 2 after the crash, actually authorized the mechanics to do 3 exactly what they did, to try to achieve a level of safety 4 in the event that they don't have shipping caps. 5 After having finished, in their minds, securing 6 the generators, the mechanics spent hours filling out and 7 placing green repairable tags on each of the generators. 8 Those tags accurately described the devices as out-of-date 9 generators, a description meant to keep them from going back 10 on any active aircraft. 11 A repairable tag is what it sounds like. It tells 12 the people in the facility that this is not a part that can 13 go back on an aircraft. It is something that has to be 14 worked on. It has to be fixed first. So these mechanics, 15 in putting those green tags on, reasonably believed that 16 they would never go back on an airplane. After taking the 17 time to carefully disarm and label the generators, the 18 mechanics carefully placed the generators in box. 19 Listen to what the witnesses tell you about the 20 care and precision with which the mechanics dealt with these 21 generators. Listen to the government's own witnesses. They 22 weren't throwing these generators around. They weren't 23 simply throwing them in boxes. Think about this. Does the 24 evidence that I just described, fit with the government's 25 charge that the mechanics were rushing through the work to UNITED STATES vs SABRETECH ET AL - 11-16-99 19 1 make more money for SabreTech? 2 The evidence will show, absolutely not. These 3 mechanics spent hours and hours working on the old 4 generators. They spent much longer working on the old 5 generators than it would have taken to simply put a shipping 6 cap on, had they been available. As Ms. Miller has told 7 you, these shipping caps really only cost pennies. There is 8 no saving to SabreTech not having put a shipping cap on, had 9 one been available. 10 What is more, the contract between ValuJet and 11 SabreTech provided that if there were these kind of peculiar 12 items, it was ValuJet's responsibility to pay for them. So 13 money, simply had nothing to do with the decision not to put 14 safety caps on. That decision was made by the fact that 15 there were no safety caps available at the time that these 16 generators came off. 17 Something else that you should pay close attention 18 to. The mechanics worked on these generators in full view 19 of anybody who cared to see what they were doing. They knew 20 that ValuJet was on the floor looking over their shoulder. 21 They knew that ValuJet's three technical managers could see 22 there were no shipping caps on the generators. They weren't 23 trying to conceal anything. They weren't acting like people 24 who thought they were doing something wrong or something 25 criminal. UNITED STATES vs SABRETECH ET AL - 11-16-99 20
1 The mechanics knew the FAA could drop in at any 2 time to do a routine inspection of the facility. So, you 3 might ask yourself then, how did these well-intentioned 4 mechanics come to sign off on a work card which contained, 5 as one of it's work steps, place a shipping cap on firing 6 pin? Good question. 7 You will hear plenty about that during this trial, 8 but nothing that you will hear will suggest a willful 9 attempt to deceive, or bad purpose to disobey the law. 10 First, you will hear that Eugene Florence and 11 Mauro Velenzuela did not sign these work cards until weeks 12 after the generators had been removed, and long after the 13 issue of shipping caps had been raised with their 14 supervisors. 15 These things, for the most part, came off in 16 February and these work cards were signed in April or May. 17 You will hear at the time the work cards were 18 signed, the boxes containing the old generators were carried 19 away from the hanger to a completely separate facility where 20 ValuJet's old airplane parts were stored. 21 The evidence will show, at the time, Eugene 22 Florence signed the work cards long after the mechanics had 23 been told that the issue of the shipping caps had been taken 24 care of by their supervisor. The evidence will show that 25 Eugene believed that the shipping caps had been ordered, and UNITED STATES vs SABRETECH ET AL - 11-16-99 21 1 had been placed, or would be placed on the expired 2 generators. 3 Now, you may conclude that that was a careless 4 summation on Eugene's part, or reflected bad judgment, but 5 that is not what is at issue here. You will not be asked to 6 decide if these ValuJet work cards were signed incorrectly, 7 or carelessly or negligently. 8 You will be asked if they were signed with 9 criminal intent, willfully or with bad purpose to disobey 10 the law. They were not, and the evidence throughout this 11 case will show that. 12 You will hear from many aviation professionals and 13 you will hear from those people that airplane mechanics, 14 like Eugene Florence, and Mauro Gonzalez, and Danny 15 Gonzalez, are trained to work on the safety of the airplanes 16 that they are getting ready to put back in the air. The 17 paperwork and the work packages that you heard about today, 18 they are mainly designed to document the air worthy 19 condition of the planes that are being repaired. 20 The work package stays with the active planes and 21 it does not and, this is important, the work package does 22 not follow the old parts removed from the planes during the 23 repair process. So these MD-80 work cards, 0069 work cards, 24 they went with the MD-80 when they flew away. That 25 paperwork did not go to the stockroom, and was not relied on UNITED STATES vs SABRETECH ET AL - 11-16-99 22 1 by stock clerks or by ValuJet flight 592 or it's crew. 2 You will hear that Eugene Florence and Mauro 3 Valenzuela knew all of that. They knew they were signing 4 paperwork that was intended to document the fact that the 5 outgoing ValuJet planes that they had been working on, were 6 air worthy and they were. 7 Listen to the charges and the evidence. The 8 government has not found fault with any of the work done on 9 the 3 MD-80s aircraft on which those men were working. In 10 fact, those planes are still flying around today. 11 More specifically, ladies and gentlemen, Eugene 12 and Mauro knew that the primary purpose of the 0069 work 13 card was to tell ValuJet and the FAA that the cabin 14 objection system on those planes had been properly installed 15 and was operating correctly. 16 It had been properly installed. It was working 17 correctly, and Eugene and Mauro knew it when they signed 18 those work cards. The evidence will show that by signing 19 those cards, Eugene and Mauro weren't trying to deceive 20 anyone into thinking there were shipping caps on the old 21 generators, and neither they nor SabreTech had any financial 22 or monetary motive to do so. 23 As a matter of fact, you will hear evidence during 24 the course of this trial that even had the FAA been told 25 that the old generators did not have a shipping cap on them, UNITED STATES vs SABRETECH ET AL - 11-16-99 23 1 that fact would not have held up the release of the service 2 of the MD-80 aircraft. 3 So the penalty clause that Ms. Miller told you 4 about that SabreTech was so concerned to not violate, would 5 not have been triggered. You will hear that this is a 6 standard clause in the airplane repair industry, but it is 7 irrelevant in this case because that plane could have gone 8 back into service whether there were caps on those 9 generators or not. 10 Let's talk a little bit about hazardous materials 11 charges. The government says that SabreTech willfully and 12 recklessly handled the packages and shipped the packaged 13 generators, in violation of the department of transportation 14 hazardous materials regulations. 15 Ms. Miller explained that these generators are on 16 a list of hazardous materials published by the department of 17 transportation, and that they contain a chemical called 18 sodium chlorate. I'm sure as this trial progresses, we will 19 learn a lot about what that is, and we'll also learn about 20 the hidden dangers that these generators actually had. 21 But, of course, in deciding whether SabreTech and 22 it's employees willfully and recklessly violated the 23 hazardous materials regulations, you must not focus on what 24 we all know now, and what we are going to learn in this 25 courtroom over the next several weeks about the dangers of UNITED STATES vs SABRETECH ET AL - 11-16-99 24 1 oxygen generators. 2 You have to focus on what SabreTech's folks knew 3 then, not what they should have known, not what we wish we 4 had known, but what we actually knew, based on the 5 information then available to them. Let me review with you 6 now, the evidence that you will hear on that issue. 7 First, you will hear that these generators were 8 not common airplane parts, and that most airplane mechanics 9 rarely, if ever, worked on them. As Ms. Miller said, most 10 planes use bottles of compressed oxygen rather than the 11 chemical oxygen. 12 Devices. You will hear that these devices were 13 first manufactured in the 1970s, and have a useful life of 14 12 years. These are only changed once every 12 years, 15 unless they are used. This means a mechanic could go an 16 entire career never having changed one or dealt with one. 17 You will hear that the mechanics' handling -- let 18 me start over again. I was going to say that they didn't 19 know, but that's not what the evidence will show. You will 20 hear that these mechanics did know that these generators can 21 get hot, and they knew that because several of them had 22 worked at other airlines like Eastern in the past and had 23 dealt with these generators. So, some of the mechanics knew 24 they got hot. Some told other mechanics that they got hot. 25 As Ms. Miller told you, work card 0069 told the mechanics UNITED STATES vs SABRETECH ET AL - 11-16-99 25 1 that these things can get very hot. 2 Ladies and gentlemen, the information that they 3 had was very limited information, because you will see that 4 ValueJet's work card is not so much as mentioned that these 5 were hazardous materials or hazardous waste under the 6 department of transportation regulations. 7 This is an extremely important distinction knowing 8 that a device gets really hot to the touch doesn't lead to 9 the conclusion that it is a hazardous material that is to be 10 shipped according to specific department of transportation 11 guidelines. Remember, the issue is not whether the 12 mechanics knew they can get hot and burn you, the issue is 13 whether they knew because of that fact they were a specific 14 hazardous material. 15 Let's talk about a light bulb, 200 watt light bulb 16 that has been burning for an hour. We all know it's hot 17 enough to sear your skin if you touch it. But the fact that 18 the light bulb gets hot doesn't tell you anything about 19 whether it's classified as a hazardous material for shipping 20 materials. As you can probably guess, a light bulb isn't. 21 Think about it, there's nothing about the 22 generators that would instinctively lead these mechanics to 23 believe they were hazardous materials. After all, you will 24 hear that these uncapped generators sit inches above 25 passengers head when they are flying around in these planes. UNITED STATES vs SABRETECH ET AL - 11-16-99 26 1 They are there during every hard landing and during heavy 2 turbulence. They don't go off. Knocking them, they don't 3 go off. 4 The mechanics knew that. So, should it have been 5 obvious that the generators were hazardous materials? Of 6 course not. The evidence won't show that. You will also 7 hear, that the mechanics had other work instructions 8 provided by ValuJet in connection with the same removal and 9 installation of generators that were both contradictory and, 10 confusing. 11 For example, we will show you an engineering order 12 for a number of these generators which would simply tell the 13 mechanics to remove them, replace them, tag them and place 14 them in storage. That document doesn't mention shipping 15 caps, doesn't mention that they get hot, and contains no 16 hazardous materials warnings of any kind. 17 One piece of paper says they got hot. The other 18 one doesn't say anything about that. One says put on a cap 19 and the other one doesn't. These mechanics were supposed to 20 know what they weren't told. Even more important was the 21 fact that the generators themselves carried absolutely no 22 warnings about their hazardous nature. Think about that 23 one. 24 The generators that the government says were 25 explosive devices that caused the ValuJet plane to crash, UNITED STATES vs SABRETECH ET AL - 11-16-99 27 1 did not so much as have a warning label on them. You heard 2 that there came a time later that the manufacturer started 3 putting warning labels on the devices. But the ones that 4 these mechanics took off, had no warnings, didn't say 5 anything. 6 A bottle of household bleach tells more about it's 7 dangers than these specialized airplane parts that are due 8 to be replaced once every 12 years. 9 What about McDonald Douglas, the manufacturer of 10 the MD-80 owned by ValuJet? Did it warn SabreTech and the 11 mechanics about the hidden dangers of the oxygen generators? 12 The evidence will be, no. You'll hear that in the late 13 1980s, McDonald Douglas sent out two, what are called, all 14 operator letters, to airlines warning them about dangers 15 associated with oxygen generators. 16 Here in the late eighties, there was a problem 17 apparently, and the manufacturer sent around a letter to 18 airlines telling them that there was a problem. You will 19 hear that that letter didn't go to repair stations like 20 SabreTech, and you will hear that that letter wasn't shared 21 by SabreTech with it's customer, ValuJet. 22 You will hear that even the department of 23 transportation and Scott Aviation, who made the generators 24 were not sure how to classify them. When they were first 25 introduced in the 1970s, you will hear that they were UNITED STATES vs SABRETECH ET AL - 11-16-99 28 1 classified as new explosives. At Scott's requests, they 2 were reclassified as flammable solids. That sounds pretty 3 bad. But later, Scott simply began calling them oxidizers. 4 The bottom line, ladies and gentlemen, is that 5 SabreTech mechanics and stock clerks were never told by 6 anyone, whether it be ValuJet, the FAA or Scott Aviation, 7 that these were hazardous materials that had to be handled 8 in a special way. 9 SabreTech wasn't alone. You will hear that the 10 ValuJet tragedy was a wake up call for the entire aviation 11 industry. Repair stations, flight crews, airplanes, 12 aircraft manufacturers are all smart now. Unfortunately, 13 nobody was smart then. 14 The government contends that the expired 15 generators caused the ValuJet crash. As I told you before, 16 it is almost impossible for these devices to self initiate 17 without somebody yanking the cord. You will also hear that 18 the plane which crashed was an old plane, over 25 years old. 19 You will hear that it had significant electrical 20 problems, and it had old and worn out wiring. 21 On the ValuJet flight leg proceeding flight 592, 22 you will hear that the auto pilot was malfunctioning and 23 that plane was porpoising, going up and down. You will hear 24 that the plane had all kinds of electrical problems, even 25 the public address system wasn't working and the flight UNITED STATES vs SABRETECH ET AL - 11-16-99 29 1 attendants had to use a bullhorn to make it's announcements 2 to the passengers. 3 Let's remember what the issue is here. You are 4 not here to determine whether SabreTech and it's employees 5 caused the crash. You are here to determine whether 6 SabreTech and it's employees willfully, recklessly, and in 7 bad faith mishandled the generators, and caused them to be 8 placed on the plane. 9 To make that determination, it will be necessary 10 to hear a little bit about how those canisters got on that 11 plane. Ms. Miller told you a little bit about that and our 12 description doesn't materially vary from hers. You already 13 heard that the generators sat next to the planes at 14 SabreTech for weeks. Our mechanics worked around them day 15 in and day out. ValueJet's people wondered around them. 16 Hardly what you would expect of people who recognize these 17 things to be hazardous explosives. 18 Eventually, you will hear that they were placed in 19 boxes and taken by mechanics to the area of the SabreTech 20 facility where ValuJet's old parts were placed. That's 21 where the mechanics' involvement with these expired 22 generators ended. 23 It's now in a different part of the facility. 24 It's now part of someone else's responsibility to properly 25 handle. You will hear that the generators were in that hold UNITED STATES vs SABRETECH ET AL - 11-16-99 30
1 area for some time. That area was just about bursting at 2 the seams with the parts taken off of the MD-80 aircraft. 3 You'll hear that the SabreTech shipping clerk was 4 told to take the canisters to the airline. The evidence 5 will show that was not an unusual request because there was 6 a contract between ValuJet and SabreTech which specifically 7 says that ValuJet owns all of it's old parts. 8 The evidence will show that the storeroom clerk 9 was also unfamiliar with oxygen generators. He knew there 10 were oxygen canisters of some sort, and he also knew they 11 had to be serviced or repaired before they were installed on 12 a plane. The green tag told him that. He did not know that 13 they presented a potential danger, since he believed in good 14 faith, that they were empty. 15 So what he did, he packed the boxes containing the 16 generators, he placed bubble wrap in those boxes to make 17 sure they wouldn't moved around, and taped the boxes closed, 18 and had them labeled as "oxy canisters empty." A colmat 19 label was placed on the boxes indicating that these were 20 ValuJet's own company materials, and he returned those 21 materials to storage in Atlanta. 22 Yet another employee took the boxes to the ValuJet 23 ramp area. There you will hear that ValuJet's own employees 24 put them on a plane for transportation to their own facility 25 in Atlanta. UNITED STATES vs SABRETECH ET AL - 11-16-99 31 1 With those facts in mind, the question for you to 2 decide during the course of the trial is not whether what 3 was done, was done correctly. In 2020 hindsight, we all 4 know it wasn't. It could have and it should have been done 5 much better. But the question you have to confront, 6 whether SabreTech and it's clerks and mechanics, whether 7 what did was done recklessly and willfully, given what they 8 knew then, not what we all know now. 9 You will hear that SabreTech rarely shipped 10 hazardous materials from it's facilities. Those rare 11 exceptions would involve a situation where perhaps the 12 Phoenix facility, the part that was contained in the Miami 13 facility. 14 On those rare occasions, you'll hear that 15 SabreTech called in a hazardous materials shipping expert, a 16 company called dangerous goods consultants. They were 17 intimately familiar with the complexed department of 18 transportation regulations. Dangerous goods consultants did 19 the packaging, labeling and shipping of SabreTech's 20 hazardous materials. That's when we actually knew that 21 something has hazardous. The issue was whether given the 22 lack of hazardous materials warning, SabreTech was reckless 23 and willful in returning the generators back to their owner, 24 ValuJet. 25 Now, the government in it's charges, seems not to UNITED STATES vs SABRETECH ET AL - 11-16-99 32 1 question the clerk's good faith mistake in not recognizing 2 the generators as hazardous materials. The evidence will 3 not show that SabreTech ignored it's obligations to comply 4 with environmental training requirements and to protect 5 employees from dangers in the work place. 6 When viewed in the context of the limited 7 hazardous materials training throughout the industry, 8 including the FAA and including ValuJet, whatever short 9 comings that existed in hazardous materials training, you 10 will hear did not rise to the level of reckless or willful 11 criminal violation. 12 For example, during the course of this case, you 13 will hear that the FAA itself didn't even adequate train 14 it's own security inspectors to combat the dangers of 15 haz-mat. The FAA, the industry's own watchdog, was 16 woefully understaffed in hazardous materials oversight, and 17 never inspected aircraft repair stations for their 18 hazardous materials handling. 19 How about ValuJet? You will hear that ValuJet's 20 primary technical representative on site at SabreTech had 21 absolutely no hazardous materials training himself. 22 You will hear that ValuJet did not train 23 SabreTech, it's primary maintenance contractor. That is 24 mandated under FAA regulations. One important fact that 25 SabreTech didn't know, and didn't know because ValuJet UNITED STATES vs SABRETECH ET AL - 11-16-99 33 1 didn't tell it, was that ValuJet was not allowed to carry 2 any hazardous materials on it's planes at all. 3 Let me repeat that. ValuJet was a will not carry 4 airline concerning hazardous materials. It was not allowed 5 to carry haz-mat, but it never even told SabreTech this 6 critical information. It wasn't even allowed to carry 7 these generators empty or full. Why? 8 I submit that you will see during the course of 9 this case, it was because of confusion up and down the line 10 at ValuJet, from the airlines' president, all the way down 11 to it's own ramp agents. ValuJet's official position, even 12 after the crash, was that they could carry hazardous 13 materials as long as they were colmat. The FAA had to tell 14 them that they were wrong, that ValuJet was not authorized 15 to carry hazardous materials as could he mat or otherwise. 16 In short, ladies and gentlemen, when SabreTech's 17 state of mind is measured according to industry standards in 18 place in 1996, you will see that SabreTech is not guilty of 19 any of these hazardous materials charges. At the end of 20 this case, you will have learned that the ValuJet crash 21 resulted from systems failures and mistakes on the part of 22 countless individuals, both inside and outside the SabreTech 23 organization. 24 For the government to lay blame for this 25 catastrophe only at the feet of SabreTech, Danny Gonzalez UNITED STATES vs SABRETECH ET AL - 11-16-99 34 1 and Eugene Florence, is an unfair and unwarranted attempt to 2 make them scapegoats. The evidence will show, it's a tragic 3 accident and not a crime and at the end of this case, I will 4 ask that you set the record straight and find these men and 5 the corporation not guilty. 6 Thank you so much for your attention. 7 THE COURT: Which counsel would like to proceed 8 next? Mr. Dunlap? 9 OPENING STATEMENTS 10 MR. DUNLAP: May it please the Court? 11 Good afternoon, ladies and gentlemen. I'm Robert 12 Dunlap. I represent Danny Gonzalez. I would like to begin 13 by telling you something about my client, Dan Gonzalez, 14 what his life's work has been, what it was at SabreTech and 15 I would like to tell you a little bit about the 16 organization of SabreTech and how he fit into it. 17 Ms. Miller has told you and it's true, Danny is an 18 excellent mechanic. He is a top notch mechanic, and he has 19 been involved in aviation mechanics all of his life. He is 20 currently employed as a maintenance supervisor at American 21 Airlines' heavy aircraft maintenance facility in Tulsa, 22 Oklahoma. He is on leave from that job with pay so he can 23 work with me defending his case. 24 Danny, from July of 1995 until August of 1996, was 25 the head mechanic at SabreTech. He was the chief of hangar UNITED STATES vs SABRETECH ET AL - 11-16-99 35 1 operations. He was not the boss at SabreTech. He was not 2 the chief executive officer. That man's name was Jamie 3 Galinda. 4 Your Honor, I have got some charts I want to use. 5 May I pass them up to the Court? 6 THE COURT: Only by agreement. 7 MS. MILLER: I have no objections. 8 MR. DUNLAP: If I can pass it up to the Court. 9 THE COURT: All right. The marshal will hand it 10 to me. By agreement, the counsel is going to use this 11 document. 12 MR. DUNLAP: The first chart I would like to show 13 you is, this is a national overview of what SabreTech was 14 at the time that Danny was the chief of hangar operation. 15 These are various departments on a national level. This 16 shows you the various offices of SabreTech's repair 17 facilities. The original one that depicts Miami is one of 18 their facilities. The Vice President and general manager, 19 the head of SabreTech Miami, Danny's boss was a man named 20 Jamie Galinda. 21 The second chart I would like to show you is a 22 chart that shows the general organization of SabreTech in 23 Miami when Danny was the chief of operations there. Again, 24 that was between July of '95 through September of '96. 25 You are going to hear a lot about all of the UNITED STATES vs SABRETECH ET AL - 11-16-99 36 1 departments, and I don't want you to worry about all the 2 details right now. I would just like you to see that Danny 3 is down here and he is in charge of three different 4 departments of operation that involve different types of 5 mechanical work. 6 But the principal people that you'll hear about 7 here are the mechanics over on this right side. They are 8 the guys that go in to the plane and do the internal work on 9 the plane, replace parts and check out various systems. The 10 people here on the right, avionics deal with electronics in 11 the cabin, the people in the middle deal with the bigger 12 structure of the plane, the major components of the plane. 13 These people on the right, most of the witnesses 14 from SabreTech are going to come from these people, and 15 these people are who you are going to hear about. Danny was 16 in charge of all the mechanics. Danny was a mechanics' 17 mechanic. He was in charge of their daily operation. 18 The project manager had oversight for the whole 19 operation of the facility. It had many planes in there at 20 one time. There were two planes in there at all times. 21 Maintenance supervisors would be assigned to one or two 22 planes on a given shift and their job was to see that the 23 work went on smoothly. They had a big responsibility in 24 handling paperwork to make sure that the paperwork was 25 organized and handed out and worked on by the mechanics in UNITED STATES vs SABRETECH ET AL - 11-16-99 37 1 an efficient manner. That's called flowing the job, and 2 there's an art to you. You could be a perfectly fine 3 mechanic, but no good at supervising. 4 There was approximately 16 maintenance supervisors 5 at the time Danny was chief of the mechanics. Then, there 6 were lead mechanics. Lead mechanics are responsible for 7 crews of mechanics, who actually go on the planes and do 8 jobs on a particular shift. They may be supervising the 9 lead mechanics between five or ten mechanics at any given 10 time working on a specific project. There were about 150 or 11 160 mechanics at the time Danny was working there. 12 Danny, as you heard Ms. Miller say, was an 13 hands-on guy. He would, from time to time, work on the 14 planes, pitch in and work on projects. By and large, he 15 supervised his project managers and maintenance supervisors 16 to see that the jobs were moving along correctly and 17 officially, and that the jobs were done right and done on 18 time. 19 Now, after the crash of ValuJet flight 592 on May 20 11, 1996, the government immediately focused on SabreTech 21 because that is where the oxygen generators, the old ValuJet 22 oxygen generators that were found at the crash site had come 23 from. 24 The government initially began pursuing a 25 conspiracy theory in this case, and not an accident theory. UNITED STATES vs SABRETECH ET AL - 11-16-99 38 1 Why that was the case, is really better left for closing 2 argument. Nonetheless, the evidence will show that no fair 3 consideration of a simple accident was ever given here. 4 The government spent three years before they 5 indicted this case this past July. Thousands of man hours 6 were spent and untold money, looking for proof of a 7 conspiracy theory. I want to say this very clearly, there 8 never was any conspiracy. The evidence will show that. 9 Just as Ms. Miller agrees, no one ever intended to 10 cause the crash of ValuJet 592. No one at SabreTech ever 11 conspired or agreed to work together for any criminal 12 purpose such as falsely claiming work that had been done, 13 when it hadn't. At SabreTech, there was no proof of pattern 14 or fabric of routine lying on paperwork or of skipping 15 steps. 16 Danny and everyone else on paperwork, worked 17 together and you will see that there are hundreds and 18 hundreds of examples, if not thousands of heavy maintenance 19 repair tasks done correctly, and inspected correctly by 20 SabreTech's own in-house inspectors, their own in-house 21 watchdogs called quality control. I will tell you more 22 about them later. 23 I would also like to tell you about the indictment 24 in this case, and how it relates to Danny. You really 25 haven't heard what the indictment consists of in this case, UNITED STATES vs SABRETECH ET AL - 11-16-99 39 1 and you need to know the specifics of it because you are 2 going to be called about to render your verdict based upon 3 the indictment. That's why we are here, because of very 4 specific allegations. 5 The indictment consist of 24 separate counts. 6 Twenty-two of those counts do not related to Danny. He is 7 not charged in them. Those 22 counts all relate to, in one 8 way or the other, the old ValuJet oxygen generators. He 9 doesn't have any involvement in them. He is not charged 10 with any count that deals with the oxygen generators. 11 Why, you may ask, is he here? You heard 12 Ms. Miller say in her opening statement and I want to be 13 exact, that the evidence in this case will show that 14 SabreTech was a business that had lies woven into it's very 15 fabric. Well, that brings up Count I. Count I does charge 16 Danny and it charges him with being a member of a 17 conspiracy. 18 The government has alleged that this business, 19 SabreTech, was run on a day-to-day basis, with lies woven 20 into it's very fabric. The government investigated and 21 investigated for three years, and they couldn't find any 22 facts that showed that Danny knew there was any 23 falsification with respect to the old ValuJet oxygen 24 generators, and so he is not charged in those counts. 25 They couldn't find any facts that could suggest UNITED STATES vs SABRETECH ET AL - 11-16-99 40 1 that he was involved, in any way, of improper shipping of 2 those oxygen generators, and so he is not charged in that. 3 You heard Ms. Miller say that he was on the floor 4 at certain times when the oxygen generators were being 5 worked on and that is true. As she said, it is a business 6 and there is nothing illegal or wrong with being a manager 7 of a business. The evidence will show that he was not 8 involved in those facts. So how is he charged? How is he 9 here at all? 10 The government in pursuit of this conspiracy 11 theory looked for three years time to come up with some 12 facts that would show a pattern that would show that Danny 13 is involved with these pattern of lies. At the end of the 14 day, they have one allegation that will be brought into 15 court on this witness stand by a witness named Chris 16 DiStefano. 17 It has to do with a plane absolutely unrelated to 18 the ValuJet crash. It has to do with Aserca. A S E R C A. 19 You will hear that Mr. DiStefano told the government that he 20 believed that Mr. Gonzalez falsified one work card, and that 21 has to do with a check system called an anti-ice system. On 22 the strength of that one allegation, the government has 23 indicted Mr. Gonzalez. 24 You will see when you look at the conspiracy 25 charge, and that's the first count of the indictment, that UNITED STATES vs SABRETECH ET AL - 11-16-99 41 1 Mr. Gonzalez is charged with, in continuing overall fashion, 2 pressuring people to do work quickly and to skip work steps, 3 and to falsify paperwork to increase profits and to make 4 money. 5 You will also see there is, but one actual 6 falsification that he is charged with. That is reflected 7 also in Count I, which is simply a count, Count II, excuse 8 me, that he actually falsified a document and both of those 9 counts relate to the Aserca work card, having to do with a 10 test system, a couple of pressure tests in the system not 11 the entire system, called the anti-ice system. 12 That will be brought into court. You will hear 13 about that from Christopher DiStefano. The government has 14 told you a little bit about him. I would like to tell you a 15 little bit more. 16 First of all, you are going to find that he was 17 wrong. In fact, the test was done. The evidence will show 18 that. You are going to find also, that as the government 19 told you, he is a witness that does not like Danny. Danny 20 removed him from the Aserca project. He was trying to do a 21 different job on the Aserca project, and Danny blew up 22 because he didn't like the way he was doing that job. In 23 fact, you will hear that Chris DiStefano couldn't handle the 24 paperwork part of the supervisor's job on that plane, the 25 fact that he was overwhelmed by it, and that he had to be UNITED STATES vs SABRETECH ET AL - 11-16-99 42 1 removed. It was also one of the first times he was given 2 the opportunity to be a supervisor. 3 You are going to also hear that Chris DiStefano, 4 like everybody else, was employed at SabreTech when the 5 tragedy of the crash of 5 '92 occurred. At that time, he 6 was a supervisor on the ValuJet project. He was a 7 supervisor or had been a supervisor on the ValuJet plane 8 830. 9 Now, he was at SabreTech when the crash occurred 10 and when the authorities arrived at SabreTech after the 11 crash. As you can imagine, the SabreTech facility and that 12 facility is located on Northwest 36 street on the north 13 boarder of the airport. It's one of those big, tall two- 14 story type warehouses that you can see right from 36 street. 15 -- Shortly after the crash, that building, that facility was 16 pretty much overwhelmed with investigators. People were 17 going in and out of there on a constant basis, questioning 18 everybody as they should do, looking into the cause of the 19 crash, and Danny cooperated fully. 20 Mr. DiStefano was interviewed, and he indicated 21 at that time that he had no knowledge of the safety caps on 22 the oxygen generators. Mr. DiStefano continued to work 23 there, and you will hear, in August 1996, the Federal 24 Government sealed off SabreTech, surrounded the place with 25 police, went in with FBI agents and searched the place. UNITED STATES vs SABRETECH ET AL - 11-16-99 43 1 They took everything that wasn't nailed down that 2 related to ValuJet. They sought the assistance of people in 3 identifying ValuJet materials and carted them away. 4 You will hear after that search, Chris DiStefano 5 had in his possession a crucial piece of evidence that you 6 will not have to guide you in your deliberation. That 7 evidence was called the ValuJet turnover log. You will hear 8 that he took it home. He will tell you for safekeeping. 9 And he threw it away. He doesn't know exactly how, but he 10 threw it away. 11 Now, I'm going to explain to you a little bit 12 about SabreTech, and you will hear also what a turnover log 13 is. I'll show a chart. Again, it's got a lot of 14 information on it. You will learn about the heavy 15 maintenance business as we go through this case. This chart 16 is intended to show you how a typical plane moved through 17 SabreTech's heavy maintenance facility. 18 I don't want to go into all of this at this time, 19 but you will see that throughout this whole process, there 20 is intensive required participation in the inspections on 21 the plane and in the movement of the plane as it goes 22 through the facility with the owner of the plane. 23 That is set out in orange. You will see that it 24 moves along in a step by step order determine fashion. Down 25 here, shortly after the plane's owner on-site technical UNITED STATES vs SABRETECH ET AL - 11-16-99 44 1 representative. You will hear about they're on-site 2 approving work job by job. How do they work on a plane? 3 Well, a customer dictates exactly what is done. 4 It's not like when you and I drop off our car and say, it's 5 running funny call us back and tell us what is wrong. The 6 process runs through a standard procedure called a C-Check. 7 It is guided by a whole stack of documents called a work 8 card deck. It is a large stack of engineering documents 9 that tells the workers specifically how to do work on the 10 plane. 11 Over here, you see this color in red. That color 12 is meant to indicate the participation of that completely 13 separate part of the SabreTech's business called quality 14 control. Remember, I showed that to you on this other 15 chart, quality control. 16 Quality control and quality assurance is a 17 completely separate section of SabreTech and it is above the 18 mechanics section. It's existence is required by the 19 Federal Aviation Administration. Why is it required? It is 20 there as an in-house watchdog. They are there to check, 21 step by step, that each piece of work is done right, it is 22 accomplished properly according to the FAA required 23 paperwork. They are there day in and day out, and before 24 any piece of work can be closed, they have to approve it. 25 I can't remember the exact phrase. I will do my UNITED STATES vs SABRETECH ET AL - 11-16-99 45
1 best that Ms. Miller used in the opening statement, but I 2 think she told you that the people that hold the keys to the 3 treasury in SabreTech are the mechanics. I believe the 4 evidence will show you, that is incorrect. 5 The people who own the keys to the treasury in 6 SabreTech, in other words, who say when the plane goes out 7 the door, are quality control. Because you see, the 8 mechanics can do the work, they can say it's done. But the 9 people who say it is done right, the plane can go, are these 10 people right here. Quality control and quality assurance. 11 If they say it has not been done right, the plane 12 doesn't leave. The mechanics have to do it over again. You 13 will find that this section of SabreTech, the evidence will 14 show, that this section of SabreTech functioned correctly, 15 inspected every day each piece of work that it was required 16 to check, step by step, and there will be no evidence that 17 any inspector was ever compromised, falsified any work 18 documents or tolerated that type of falsification. You will 19 find that the type of conspiracy, the fabric of lies that 20 Ms. Miller has described literally is impossible under this 21 type of internal check and independent examination. 22 What is the evidence again going to be of this 23 fabric of lies? What actual proof is the government going 24 to call upon you to evaluate at the end of the day? Well, 25 it is going to be one alleged falsified work card. Aserca, UNITED STATES vs SABRETECH ET AL - 11-16-99 46 1 a plane, I believe the evidence will show you that is not 2 related in any way, forms no kind of a fabric of any kind of 3 conspiracy, a work card that was, in fact, accomplished. 4 What is a turnover log? You need to know about 5 that because that is the document that the key witness 6 against Mr. Gonzalez, Chris DiStefano, that's the piece of 7 evidence that he threw away. Remember, you will hear that 8 this turnover log, and it is depicted here in black, was in 9 his possession after the FBI went through the SabreTech 10 facility searching for anything that related to ValuJet. 11 It was in his possession, and you will hear him 12 testify that he took it home for safekeeping, and then some 13 how, threw it away. Well, first of all, you will see what 14 it looks like. It is a hardbound book like accountants 15 used. The pages are sewn into it, and the pages are numbers 16 so they can't be torn away. It is a document that the FAA 17 requires to be maintained. It's a document, as the name 18 suggests, turnover log, that is literally turned over from 19 shift to shift at the SabreTech facility, and all facilities 20 of this kind in the United States. 21 It's turned over between the project manager to 22 another and one supervisor to another from shift to shift. 23 They are suppose to write in it things they think are 24 important, that they think the next shift is suppose to know 25 about, to give them a heads up as to what to look for. More UNITED STATES vs SABRETECH ET AL - 11-16-99 47 1 importantly, you are going to find out from your 2 deliberations that this is the turnover log. 3 It covered the period of time when the oxygen 4 generators were being worked on, when people were 5 considering what to do because of the absence of shipping 6 caps. It's during the very period of time that your service 7 as jurors is going to be focused on, but you won't have to 8 look at because the government's key witness has thrown it 9 away. As a matter of fact, he was able to get immunity for 10 that. 11 You will hear that he didn't mention anything 12 after the crash about any kind of falsification of documents 13 until July of 1997. Remember, I told you he stated he 14 didn't know anything about shipping cap, and had no problems 15 with the oxygen generators. He didn't say anything further 16 until he went into the grand jury and said, by the way, you 17 ought to know about Aserca. He even brought a letter that 18 he stole from Danny's office. There is a letter where a 19 technical representative complained about some work on one 20 of the Aserca planes. He wanted to save that because he 21 thought it might walk out, and he thinks it's adverse today. 22 Well it's not. He was very careful and he saved that 23 letter. 24 He couldn't quite keep his hands somehow on the 25 turnover log. Moreover, he waited until he got into the UNITED STATES vs SABRETECH ET AL - 11-16-99 48 1 grand jury, and the United States immunized him before he 2 popped it on them. You will hear from the evidence that the 3 government's key witness is the only person in this whole 4 case who destroyed evidence, and you will hear that he was 5 clever very enough to dupe the government into immunizing 6 him for it. That's what the government's case is going to 7 consist of. 8 I would like to close by telling you a little bit 9 about what a typical workday was for Danny Gonzalez at 10 SabreTech, what his contrary career has been like in a 11 little bit more detail, and a little bit about his personal 12 life. 13 He lives in Hialeah, just north of 36 street. He 14 is married, and has a wife and three daughters, and five 15 grandchildren. He has been a heavy aircraft maintenance 16 mechanic his entire career. He is an absolute ace mechanic. 17 He is considered to be a top mechanic. At ValuJet he was 18 not the big shot. He was not a CEO. He didn't get stock 19 options or bonuses or a corporate car. He worked very hard. 20 He didn't have an office in the second story two story 21 building I told you about on 36 street. He was on the 22 ground floor working on the planes and his mechanics on a 23 day-to-day basis. 24 As you heard Ms. Miller say, he was a guy who from 25 time to time, would roll his sleeves up, and work on planes UNITED STATES vs SABRETECH ET AL - 11-16-99 49 1 himself. So what was a typical day like for Danny? Danny 2 would arrive at 5:30. Very early. Usually before 6:00. He 3 would walk through the entire hangar. He would walk through 4 planes to make sure that all the major projects were moving 5 along. Obviously, not too microscopic, but to make sure 6 nothing was grossly out of order. 7 He would walk through the various work booths, and 8 you'll hear that there were work booths, which was a 9 separate area near the planes were the paperwork was worked 10 on by the supervisors, to see that the paperwork was being 11 moved along at the same time that the work was being 12 completed on the plane. You will hear that that was an 13 important part of the supervisor's as well, to make the 14 progress of the paperwork reflect actually the progress on 15 the plane. 16 Then he would meet with the supervisor of the 17 evening shift, the one at 11:00 to 7 in the morning. There 18 were three shifts, 11:00 p.m. to 7:00 a.m., approximately 19 7:00 a.m. to 3:00 or 3:30, and then, 3:00 or 3:30 to 11:00 20 a.m. He would talk to that supervisor and talk to him about 21 any problems that occurred on the shift, anything that was 22 out of the ordinary to see if he needed to know about it, as 23 the chief of all the mechanics. 24 He would then work in his office for an hour and 25 prepare for the morning meeting. He had a meeting with UNITED STATES vs SABRETECH ET AL - 11-16-99 50 1 Jamie Galinda up stairs in the general office. They would 2 have a general discussion about everything that was going 3 on, any big topics that had to be taken care of. 4 Mr. Gonzalez would then go back to his office. He would 5 work there for another couple of hours, and sometimes around 6 mid afternoon, he would go back out and walk through the 7 hangars. See what has been accomplished on his shift E. 8 Then he would meet with the new supervisors coming 9 on the next shift. The supervisors at SabreTech were 10 required to arrive a little bit earlier to be able to get 11 the paperwork ready, in shape and hand it out to the lead 12 mechanics, remember those are the guys that control and 13 direct the various crews, he talked to them about what had 14 been accomplished on the last shift and what they intended 15 to do on the next shift. He stayed and work on paperwork in 16 his office to about 6 or 6:30, walk through the hangar one 17 more time, and then go home. That was a typical day for 18 Danny. 19 Let me close by saying, I am going to do the best 20 I can to provide you with all the facts so you can learn the 21 truth. Let me respectfully suggest to you that at the close 22 of the evidence you will find that in truth, and in fact, 23 there was never any conspiracy at SabreTech, just as no one 24 ever intended to cause the crash of flight 592. 25 Please keep track of what the evidence will show. UNITED STATES vs SABRETECH ET AL - 11-16-99 51 1 There was one work card out of thousand and thousands of 2 documents. The Aserca work card and you're going to hear 3 about that based on the testimony of one witness, Chris 4 DiStefano, a witness who destroyed evidence and was 5 immunized by the government. I respectfully submit to you 6 that the evidence will show that Danny Gonzalez is not 7 guilty, and further, that Danny Gonzalez should never have 8 been charged in the first place. 9 Thank you all very much for your attention. 10 THE COURT: Ladies and gentlemen. I think we 11 will take a brief recess since it's now almost 3:00, before 12 we hear the last opening statement from Ms. Moscowitz. 13 It's 2:57. We will resume at 3:15. Thank you. 14 [There was a short recess]. 15 COURTROOM DEPUTY: All rise. Court is in 16 session. The Honorable Judge James Lawrence King 17 presiding. 18 [The jury returns to the courtroom]. 19 THE COURT: Ms. Moscowitz? 20 OPENING STATEMENTS 21 MS. MOSCOWITZ: May it please the Court. Ladies 22 and gentlemen, I'm Jayne Moscowitz. I represent Eugene 23 Florence. I only represent Eugene Florence. He doesn't 24 represent Mr. Gonzalez or the company. I have to do 25 something very difficult now in the beginning of my opening UNITED STATES vs SABRETECH ET AL - 11-16-99 52 1 presentation. They say people are very influenced by what 2 they hear at the beginning of any new matter and I'm coming 3 fourth. So, I want you to try to pretend that you're 4 hearing this opening statement first because when we come 5 to the end of the case, you will be deciding separately on 6 each person in the company and it's important to focus on 7 each one of them separately. I know it's not easy, because 8 it's been a long day. 9 Ladies and gentlemen, Eugene Florence is an 10 ordinary hard working man. He has got loving wife, and a 11 close knit family. He is raising 14 children. One is in 12 college, one's a senior applying for college, one's a 10th 13 grader already playing varsity football, and one's happily 14 in middle school and not thinking about those things yet. 15 Gene's wife is a bus driver and can't be here during the 16 trial because she works during the day. Eugene is a 17 licensed airframe and power plant aviation mechanic. He 18 took courses for three years to qualify him to take the FAA 19 test, and he took and passed that test and became an 20 airplane mechanic. He is regarded as a hard working and 21 skilled mechanic. He was always given special jobs due to 22 the skills that he showed and the dedication to the work 23 that he was doing. 24 Eugene Florence was not part of any conspiracy to 25 place SabreTech's interest above all others. He didn't even UNITED STATES vs SABRETECH ET AL - 11-16-99 53 1 work for SabreTech. He came to SabreTech as a 2 subcontractor. His employer was a company called PDS, which 3 has a staff of mechanics which places mechanics when those 4 companies need work. Eugene Florence was offered a job with 5 SabreTech on numerous occasions, but because his wife has 6 benefits with the county driving a bus, he didn't need the 7 benefits, and he could remain a contractor so he could make 8 a little bit more an hour. 9 He didn't conspire with SabreTech, nor did he make 10 any knowing or willful any false statements. On any 11 paperwork he signed, he signed work cards in good faith in 12 the belief that what he was doing, and what he had done had 13 made the generators safe, and it was okay for him to sign 14 the cards. 15 Ladies and gentlemen, you will hear that in the 16 spring of 1996, Eugene Florence was assigned with dozens of 17 other mechanics to work on the plane you have heard referred 18 to as 802. It was one of these three planes that ValuJet 19 had bought that had been in-service in Slovenia, which is 20 one of those Yugoslav Republics, which needed to be brought 21 up-to-date and reconfigured to look like the rest of the 22 ValuJet fleet. They were doing a lot of remodeling to make 23 the plane look different. The work that they were doing 24 didn't just consist of oxygen generators. Among the work 25 was reinstalling the panels, those are the things on the UNITED STATES vs SABRETECH ET AL - 11-16-99 54 1 plane that cover the working systems on the plane. They all 2 have to come down when you do one of those checks, and then 3 various systems are checked to see whether they need repair 4 work and things like that. 5 He worked on the elevator trim tabs something that 6 has to do with the tail. He worked on removing and 7 replacing the spoil, letters which have to do with keeping 8 the plane balanced when it flies. He lubricated the flight 9 controls. He helped remove and replace main tires and 10 helped change the brakes. He helped change the hydraulic 11 filters. 12 That was some of the work that he and his crew did 13 on 802. You will hear that the mechanics worked and worked 14 hard to make sure that all the work they did on 802 was done 15 well and safe, that the plane was up-to-date and trouble 16 free. The air worthiness of 802 was their goal. They were 17 not focused on what happens to used parts that come off 18 planes. They were not focused on it. In general, the work 19 cards are not focused on, what happens to parts that are 20 taken off a plane. 21 You will hear and see that the inspectors from 22 quality control, the quality assurance people that you heard 23 about from Mr. Dunlap, don't even inspect what happens with 24 parts that come off of planes. The grand finale of any 25 maintenance check is the return of air worthiness that you UNITED STATES vs SABRETECH ET AL - 11-16-99 55 1 heard about. 2 The certification of the plane that they're 3 working on is ready to go back in the sky. That is true on 4 802. I'm sure you understand that 802, the plane Eugene 5 Florence was working on, is not the plane involved in the 6 crash. And there was no question about it's maintenance. 7 Ladies and gentlemen, I don't mean to minimize that parts 8 should be -- parts that are taken off that are no longer 9 going to be used on an airplane, should be handled properly. 10 They should be properly stored and disposed of. But 11 mechanics are not trained to do this, nor should they be 12 trained to do it. Everybody in a company can't know how to 13 do everything. 14 In all businesses, we have divisions of labor. 15 There are many technical things that people need to know in 16 the modern age, and particularly when you were dealing with 17 sophisticated machines like airplanes and lots of lots of 18 regulations like OSHA and other regulations that guide us in 19 the work place in these days. 20 SabreTech had a group of people whose job it was 21 to see to the proper disposition of parts. In general, of 22 course, SabreTech, as a repair facility didn't really own 23 parts itself. It's parts belonged to the various companies 24 for which it was doing repair work. For example, the used 25 oxygen generators in this case were ValuJet property. It UNITED STATES vs SABRETECH ET AL - 11-16-99 56 1 was either ValuJet or people in the shipping and receiving 2 department of SabreTech, whose job it was, and you will see 3 their job description to make sure that if anything was 4 going to be shipped, it would be shipped properly. 5 That area of SabreTech was fenced off from the 6 mechanics. The mechanics weren't even permitted to go in 7 there because, of course, there are so many mechanics. 8 There are hundreds of mechanics at SabreTech. Lots of 9 valuable property belonging not to SabreTech, but to it's 10 customers and that area was fenced off. Only the people who 11 worked in that department went in there. 12 The removal and the replacement of the generators 13 as you heard was one of the hundreds of tasks that the 14 mechanics were working on in the spring of 1996. Along the 15 way, as you heard, they took the generators out of the plane 16 and put them in their work area which was near the plane. 17 They were there for a long time. They were there for a long 18 time because there was a lot of confusion about exactly what 19 ValuJet wanted done in the installation of the new 20 generators. 21 First, they decided they wanted four generators. 22 ValuJet wanted four generators on the three seat side. Then 23 they wanted three and then four, and then finally, they 24 decided to have four. So the mechanics did numerous other 25 tasks while the generators were sitting there. UNITED STATES vs SABRETECH ET AL - 11-16-99 57 1 Finally, these four mask generators came in and 2 they were installed, and the mechanics worked hard to make 3 sure they were installed appropriately and safely. Some of 4 the mechanics, including Eugene, cleaned up the used 5 generators from the floor of the area and from the work 6 tables. From the floor, meaning not literally the floor, 7 but the area in which they worked. They didn't have caps. 8 They asked their supervisor for them and they were told 9 ValuJet knows there are no caps and we are ordering caps. 10 They then took measures which they believed would 11 render the generators safe. We agree that the mechanics 12 thought that the generators were dangerous. Not that they 13 thought they could cause a fire in an airplane. They had no 14 idea they would cause a fire on the airplane. But they knew 15 they got hot. 16 Again, you hear about the OSHA regulations, the 17 safety in the work place, that the fact the sign said the 18 generators get hot, means watch out you could burn yourself 19 or you could damage the plane you are working on. They knew 20 they needed to take measures to make the generators safe. 21 And, they did. 22 Eugene Florence and the mechanics that he was 23 working with, worked very hard to do what they believed 24 disabled the oxygen generators. You will hear that they may 25 have done as well as the shipping caps. What they did was UNITED STATES vs SABRETECH ET AL - 11-16-99 58 1 they wrapped the lanyards. The lanyards are the strings 2 that are attached to the mask. That would be what you would 3 pull if you were sitting on a plane to activate the 4 generator. They wrapped them around the firing mechanism 5 and taped them. The idea was the lanyards would not be 6 loose, so there was nothing that could be pulled and the 7 fire mechanism would be disabled. 8 So they thought that they had done what they could 9 do in the absence of caps to make the generators safe, an 10 equivalent alternative safety measure. They also took steps 11 to make sure that the used generator wouldn't be used on the 12 plane. They put a green tag on them, and the green tag 13 meant to the mechanics at SabreTech that that part could not 14 be reinstalled on an airplane without some work being done 15 on it. 16 The prosecutors say it is the heart of their 17 conspiracy charge that the mechanics were rushed through 18 their work to get the plane out, to get the plane back in 19 the air, 802. But you will hear that the work that Eugene 20 and the mechanics on his crew did, the work of wrapping the 21 lanyards and putting them around the body of the generator 22 and taping them probably took five times as long as it would 23 have taken them to put a safety cap or shipping cap. It's 24 called different things in different places, but to put that 25 on a generator, it took them five times as long to do what UNITED STATES vs SABRETECH ET AL - 11-16-99 59 1 they did to fix those generators and disable them the best 2 they could. They did not rush to do it. They took their 3 time. They spent hours doing it. Those methods that they 4 undertook are sufficient. Shows Gene's good faith in the 5 work that he did and that is a total defense to these 6 charges. 7 You will hear more. You will hear, in fact, some 8 of this you have heard already. You will hear that at the 9 very same time that the mechanics were working from a work 10 card, that had this whole list of instructions which 11 included as one of them, install shipping cap on firing pin, 12 that the mechanics were also working off of a set of 13 instructions which was entirely inconsistent and 14 contradictory. That was called the engineering order. 15 We assume it will be in evidence, and you will see 16 it and the engineering order which was generated by ValuJet. 17 ValuJet hired an engineer to write that order when they 18 decided to make that change to the floor mask generators. 19 That engineering order contained the same task that the work 20 order 0069 does. It covers the task of removing the old 21 generators and installing the new once. 22 When it says how to take out the generator, how to 23 take out the passenger service unit and retain the removed 24 hardware for future installation, it says remove the oxygen 25 mask and retain them. It says from the passenger unitized UNITED STATES vs SABRETECH ET AL - 11-16-99 60 1 oxygen insert assembly unit, remove the existing insert 2 bracket assembly and the oxygen generator, and then it says 3 tag and return to stores. Tag and return to stores. Where 4 is the notation about the shipping caps? Nothing. Nothing 5 about shipping caps at all on the alternate set of 6 instructions that the mechanics were using at the very same 7 time they were using the 69 work card. 8 You could, Eugene did, follow that card 9 completely. Never put on caps. Sign it off and there would 10 be nothing wrong with it at all. That card didn't call for 11 caps at all. You will also learn that the warnings that 12 were given the mechanics were completely inadequate. The 13 generators that they took off the planes had no warning on 14 them at all. They said oxygen generators on them. The work 15 card said this unit gets hot. The new generator said this 16 gets hot. The maintenance manual had no instructions about 17 disposal of generators in any section that was referenced on 18 the work cards that the mechanics were using. 19 So, the information that they had, didn't signal 20 to them what they needed to know. But perhaps most 21 significant, ladies and gentlemen, you will hear and see 22 that McDonald Douglas issued in 1998 a maintenance manual 23 two years after the crash, a year before the government 24 decided to indict Eugene Florence, a maintenance manual 25 which said you don't have to have shipping caps. UNITED STATES vs SABRETECH ET AL - 11-16-99 61 1 It said if shipping caps aren't available, use 2 special handling procedures until you can either put 3 shipping caps on or disable the generator by alternative 4 method. 5 If they could use alternative method by a FAA 6 manual in 1998, after all the things we have learned since 7 this crash. 8 So that you will see that in 1998, the FAA and 9 McDonald Douglas said it was okay to do exactly what Eugene 10 Florence did, and the other mechanics did, in wrapping and 11 taping these lanyards. 12 The other things the mechanic did, is that they 13 also labeled those tags. There are charges in here about 14 mislabeling and mishandling all sorts of things, you will 15 hear about at the end of the case. But you will hear that 16 the mechanics tagged the generators entirely accurately. 17 There is one left. You will see the photograph of 18 it. There was one left behind and you will see the tag. It 19 says 02 generator out-of-date. That is the only information 20 that was on those generators when they went over to the 21 ValuJet hold area. 22 The government concedes that when the shipping 23 clerk made out the shipping ticket that said "oxy" canisters 24 empty," he didn't have any information from Eugene Florence, 25 other than the accurate information that the generators were UNITED STATES vs SABRETECH ET AL - 11-16-99 62 1 02 generators, and they were empty. He didn't rely on 2 anything that Eugene Florence did. In fact, as the 3 government told you, Eugene Florence could never have 4 foreseen that those generators would end up on an airplane. 5 The prosecutors tell you that the accident shows 6 that the work card was material. We think that is wrong 7 because we think that the question was what was in Eugene's 8 mind when he signed the work card on May 4, 1996, and not 9 after the accident. You will hear what that was. That the 10 caps were being ordered. That they weren't even important 11 enough to be required on the engineering order, and most 12 important, that the work he had done together with his crew 13 on the generators had rendered them safe. 14 He didn't lie or make a false statement. He acted 15 very conscientiously you will hear. You will hear more 16 things. These things don't relate to Eugene Florence, but 17 they are very important. You will hear that the government 18 can't prove to you beyond a reasonable doubt that the oxygen 19 generators caused flight 592 to crash. 20 You will hear that the fire started in the 21 electrical wiring and not the oxygen generators. You will 22 hear that the plane that crashed into the Everglades was 23 twenty-seven years old, and it was in terrible condition. 24 It was old, and it had month after month electrical 25 problems. UNITED STATES vs SABRETECH ET AL - 11-16-99 63 1 You will hear in the cockpit voice recorder that 2 when the problem is first noticed, what the pilot and the 3 co-pilot are saying is, we have an electrical problem. 4 There's an electrical problem, we have lost a bus. That is 5 a piece of electrical equipment. You will also hear that 6 oxygen generators really can't start a fire like this. 7 They can be set on fire, if the temperature gets hot 8 enough. 9 You will hear that the FAA conducted a whole 10 series of tests and at the end, the oxygen generator fire 11 is not a "statistically reproducible event." That is, 12 government language for the fact that they couldn't do it. 13 It couldn't be. In their tests, they had to trigger the 14 fire of the generators themselves. They had to pull the 15 lanyards. The FAA, you will hear is not neutral here. 16 In the late eighties, the NTSB, the national 17 transportation safety board told the FAA that they should 18 require passenger planes to have fire compression systems in 19 these fire compartments that you heard about. Something 20 should tell the pilot that there is smoke in those 21 compartments and moreover, maybe a sprinkler or something 22 that puts out the fire. But the FAA, you will hear, bowed 23 to industry pressure, pressure from the airlines and did not 24 make the systems mandatory. And they could have because 25 since the accident, they have. Since the accident, they UNITED STATES vs SABRETECH ET AL - 11-16-99 64 1 have made those systems mandatory. It is part of a lot of 2 changes that have happened. If it had been beforehand, 3 perhaps this accident wouldn't have happened. 4 Ladies and gentlemen, this is Eugene Florence's 5 own trial even though he is on trial together with the 6 company and Danny Gonzalez. You are going to be asked to 7 reach separate verdicts on a number of charges and with 8 respect to each different defendant. Because of the way the 9 evidence comes in sometimes, it's difficult to keep track of 10 what pertains to a particular person. It's a difficult task 11 but we have to ask you to did it because that's what our 12 system depends upon. Your being able to make individualized 13 determinations. Claims about Aserca, claims about 14 destructive devices have nothing with Eugene Florence. And 15 the things that have nothing to do with him, are not 16 evidence against him. It's a difficult task ahead for you. 17 Finally, ladies and gentlemen, there is a much 18 more difficult task ahead of you. That is to consider the 19 evidence without being overwhelmed by the tragedy of this 20 accident. It was a terrible, terrible tragedy. The 21 government doesn't have to prove that to you. We all know 22 it. We agree with it. We know mistakes were made. We know 23 what a calamity it was. We are not asking you to forget it. 24 No one ever could. 25 But what we are asking is that when you hear and UNITED STATES vs SABRETECH ET AL - 11-16-99 65
1 consider the evidence in this case, you hear and see it from 2 the point of view of Eugene Florence at the time he was 3 working in the best of faith as a licensed airplane 4 mechanic, the licensed airplane mechanic that he is at 5 SabreTech, and not let this tragedy sweep you away and over 6 shadow the trial evidence in this case. 7 You will hear evidence that Eugene Florence acted 8 only in the best of faith. After you consider the evidence, 9 I am confident that you will render the right verdict and 10 that is, that Eugene Florence is not guilty. 11 Thank you. 12 THE COURT: Ladies and gentlemen, at this point 13 we would normally commence and will commence the taking of 14 testimony through sworn witnesses. It may be that the 15 lawyers need to rearrange some of the things in the 16 courtroom. Do you, Ms. Miller? 17 MS. MILLER: I will need to move the podium. 18 There is a matter that we need to discuss with you, Your 19 Honor. 20 THE COURT: We will take a five minute recess. 21 Before we do, let me advise the jury that it may be, given 22 the length of the trial that we are about to embark on that 23 some of you would -- I'm sorry, Ms. Moscowitz, do you have 24 a chance to talk to your colleagues? 25 MS. MOSCOWITZ: I didn't, Your Honor. It won't UNITED STATES vs SABRETECH ET AL - 11-16-99 66 1 take more than a moment to do so. 2 THE COURT: Could you do so now? 3 MS. MOSCOWITZ: Yes, sir. 4 MS. MOSCOWITZ: Your Honor, I was mistaken. It 5 will take us a minute or two. I apologize. 6 THE COURT: Ladies and gentlemen. If you will 7 step into the jury room, please. Thank you very much. 8 [The jury leaves the courtroom]. 9 THE COURT: I have asked the jury if there was 10 any objection to the standard instruction to be given with 11 their ability to take notes. The standard instruction 12 tells them that they make take notes if they wish. We have 13 explained the pros and cons, that there are down sides to 14 it and up sides to it. Notes don't take any special 15 priority over anybody else's memory and so on. I have a 16 copy of the charge here if you would like to read it. 17 Sometimes some of them generally, in a long 18 trial, some of them feel more comfortable jotting down 19 dates or numbers or notes or that sort of thing so. My 20 inquiry of you, I recommend it in this case which is 21 suppose to take about six weeks to try, it would seem that 22 it would be appropriate to let them do that. No one has 23 requested it yet. Frequently, this request comes about the 24 third day, but there it is. What is your position? I 25 think Ms. Miller has no objection. UNITED STATES vs SABRETECH ET AL - 11-16-99 67 1 THE COURT: For the defense? 2 MS. MOSCOWITZ: We have conferred and we are 3 opposed to it. 4 THE COURT: They have not asked for it at this 5 point, but if they do, I am inclined to accede to their 6 request and grant it. That request usually comes at about 7 the second or third day of the trial. It has happened in 8 almost every trial we have had in the last year, and I have 9 tried 50 trials. In the jury trials that I have had, 10 somebody must have seen it on television or something 11 because all of a sudden, we have got it in every case. 12 Since they have not asked for it, we will not be a 13 self-starter on it. But there may be advantages or 14 disadvantages to doing it a day or two into the trial for 15 both sides. Let's bring in the jury. 16 MR. MOSCOWITZ: Your Honor, I have indicated 17 before that we have a motion based on Ms. Heck's opening 18 statement. 19 THE COURT: We will take it up at tomorrow 20 morning at 8:00. You all can stay as long as you want. I 21 have indicated in the record that you indicated a time and 22 place in the order. So you are fully protected in the 23 record. Bring in the jury please. 24 [The jury returns to the courtroom]. 25 THE COURT: Thank you. Be seat. The government UNITED STATES vs SABRETECH ET AL - 11-16-99 68 LITTLE - Direct 1 will call it's first witness. 2 WALTON LITTLE, PLAINTIFF'S WITNESS, SWORN. 3 DIRECT EXAMINATION 4 COURTROOM DEPUTY: State your name, please, and 5 spell your last name for the record. 6 THE WITNESS: Walton S. Little Junior, 7 L-i-t-t-l-e. 8 BY MS. HECK MILLER: 9 Q. Mr. Little, by whom are you employed? 10 A. Compact Computer Corporation in Houston Texas. 11 Q. What is your title? 12 A. I am the manager of advanced technology support for the 13 disc storage division. 14 Q. In May of 1996, where were you living and working? 15 A. In Margate, Florida, and I was working for Concurrent 16 Computer Systems formerly known as Harrison Computer 17 Systems. 18 Q. What, if any, background do you have in aviation? 19 A. When I was finished in college in 1978, I enrolled in 20 an aeronautical engineering course and got my pilots 21 license. 22 Q. What, if any, background or experience do you have with 23 regard to aerobatics courses in aircrafts? 24 A. While I was doing my flight training at Pompano Air 25 Center, I enrolled in some of the aerobatics training UNITED STATES vs SABRETECH ET AL - 11-16-99 69 LITTLE - Direct 1 courses that they had, and did some site maneuvers. 2 Q. What, if any, personal interests or hobbies do you have 3 relating to observation aircraft? 4 A. I had followed aviation and aircraft identification 5 much as a lot of people might get into something like 6 identifying different models of cars. 7 Q. Mr. Little, where were you on the afternoon of May 11, 8 1996? 9 A. I was in canal L 67 A of Everglades Holiday Park, 10 approximately 13 miles southwest of the landing ramp. 11 Q. What were you doing there? 12 A. I was bass fishing. 13 Q. Is that something you do frequently? 14 A. That is something I've done since about age five. 15 Q. Are you familiar with this area of Everglades Holiday 16 Park, and with that canal in particular? 17 A. I have fished in that canal since, between 1979 and 18 1997, when I moved to Houston. 19 Q. Do you know if you were in Dade or Broward county? 20 A. I'm not sure, but I know I was very close to the county 21 line. I'm not sure which side I was on. 22 Q. What kind of vessel were you on? 23 A. I was in a fiberglass bass boat, 18 and a half foot, 24 high performance style. 25 Q. Did you have any communication equipment with you? UNITED STATES vs SABRETECH ET AL - 11-16-99 70 LITTLE - Direct 1 A. I had a standard cellular phone. 2 Q. Did you have any mechanical locating equipment with 3 you? 4 A. I had a piece of electronic equipment known as a GPS 5 receiver. 6 Q. What is a GPS receiver? 7 A. It is a piece of electronic equipment that can receive 8 signals from multiple satellites that are in position around 9 the world, and by doing some calculations, it can tell you 10 where you are anywhere in the world within about 50 meters 11 or 55 yards. 12 Q. Did there come a time that afternoon when you observed 13 something unusual? 14 A. Yes, I did. Actually, my observation was first to hear 15 something that was different from what I normally experience 16 there. 17 Q. What time did this occur? 18 A. The approximate time was 2:20 p.m. 19 Q. Where were you physically? 20 A. I was standing on the front deck of my bass boat. The 21 boat was pointing northeast, which is the canal runs 22 northeast, southwest. It was pointed in a north easterly 23 direction. I was facing a little bit below east, so not 24 quite straight east. 25 Q. What was it that you first observed? UNITED STATES vs SABRETECH ET AL - 11-16-99 71 LITTLE - Direct 1 A. I heard a loud sound of jet engines, much as I would 2 expect to hear when a jet fighter flies over at a low 3 altitude. 4 Q. What did you do? 5 A. I instinctively looked toward the direction that I 6 heard the sound coming from. 7 Q. Why did you look? 8 A. Because the sound seemed abnormally low. Normally in 9 that area, there is a lot of air traffic going into and out 10 of Fort Lauderdale, but it's usually at an altitude of 11 several thousand feet. This seems very close to the ground 12 and that was strange, so I turned my head to my left 13 shoulder to look and see what the source of the sound was. 14 Q. What did you see? 15 A. I saw an aircraft larger than I expected, since I was 16 aware that an air show was being held at the beach that day. 17 I was expecting to see one of the fighter jets that might 18 have been participating. Rather, I saw a much larger 19 aircraft very low to the ground in a nose level pitch that 20 is it's fuselage was parallel to the ground, but it's wings 21 were tilted at a higher than normal angle. 22 Q. Were you able to estimate approximately how far this 23 aircraft seemed from you? 24 A. Somewhere between three quarters of a mile and a mile. 25 Q. Could you describe the airplane that you saw? UNITED STATES vs SABRETECH ET AL - 11-16-99 72 LITTLE - Direct 1 A. The airplane that I saw was what pilots refer to as a 2 heavy. That is, a large heavy aircraft, high performance 3 jet aircraft with swept back wings. There was no engines on 4 the wings. There were two engines on the rear and the 5 aircraft had a tea tail, that is, the elevator was at the 6 top of the tail instead at the bottom. The aircraft was 7 mostly white with blue trim. 8 Q. Did you recognize the model of the airplane? 9 A. I suspected that it was a DC9. 10 Q. Did you see any other markings on it, besides white 11 with blue trim? 12 A. Yes. On the front portion of the fuselage, I saw what 13 I could only refer to as squiggly lines. They didn't have 14 significance to me. 15 MS. MILLER: May I approach the witness with an 16 exhibit? 17 THE COURT: Yes. 18 BY MS. MILLER: 19 Q. I'm handing you what is marked for demonstrative 20 exhibits, government 1A, and I would ask if you recognize 21 that object? 22 A. Yes, this appears to be a model of a DC9. 23 Q. What relationship does that model bear to what you saw? 24 A. It has the general shape and profile of the engines and 25 the same configuration of the tail. UNITED STATES vs SABRETECH ET AL - 11-16-99 73 LITTLE - Direct 1 Q. Now, you have told us of the pitch and the banging of 2 the aircraft that you saw. Mr. Little, can you take that 3 airplane off that mount and physically hold it and show us 4 what the position of that aircraft was, and describe for us 5 please, what you are showing us? 6 A. When I initially spotted the aircraft, the pitch was 7 level, meaning that the nose was not pointed up or down, but 8 the angle was to the right. A normal bank angle that an 9 aircraft would use would be about 30 degrees. I estimated 10 that the bank angle of the aircraft at the time I spot it, 11 was certainly greater than 45 degrees. But not as much as 12 60 degrees. Part of the reason I estimated that, is because 13 I could see the second engine on the other side of the 14 aircraft at the time. 15 Q. Mr. Little, why don't you put the model down in front 16 of you for one moment, please. 17 What, if anything, that was unusual, did you 18 notice about the airplane, other than it's level and bank? 19 A. The fact that such an aircraft would be close to the 20 ground, in that vicinity, was just not a normal kind of 21 thing that someone would do. A professional pilot of an 22 aircraft such as this would not be doing that type maneuver. 23 Q. What, if any, smoke did you observe? 24 A. I did not see any smoke. 25 Q. What, if any, debris in the air did you observe? UNITED STATES vs SABRETECH ET AL - 11-16-99 74 LITTLE - Direct 1 A. I did not see any debris. 2 Q. What, if any, strange engine noises did you observe? 3 A. The engine sounded very healthy, then just sounded 4 louder because the aircraft was close and low to the ground. 5 Q. What, if any, dangling materials did you observe? 6 A. None. 7 Q. What, if any, defamation of the airplane or missing 8 panels did you observe? 9 A. None. 10 Q. Could you tell us, please, what you proceeded to do 11 after your initial sighting of the plane? If you would like 12 to show it, please feel free to show us with the model. 13 A. The entire time that I saw the aircraft, it was always 14 in a turn to the right. As the aircraft proceeded forward, 15 the wings slowly tilted or the bank angle increased to a 16 point where it was virtually 90 degrees. That is, the wings 17 were pointing straight up and down. At that point, an 18 aircraft has a lot of trouble in maintaining lift. I 19 witnessed that the nose pitched abruptly from a level to 20 pointing down. As that happened, the sound of the engines 21 increased and the speed of the aircraft began to increase, 22 and that became somewhat more dramatic and the nose began to 23 point more toward the ground, and the tilting kept slowly 24 going such that the aircraft was past the point of being 25 straight up and down and going more close to being up side UNITED STATES vs SABRETECH ET AL - 11-16-99 75 LITTLE - Direct 1 down, and it impacted the Everglades at something greater 2 than a 45 degree angle. 3 Q. Were you able to observe any gear associated with 4 landing or breaking on this aircraft? 5 A. No. I was never able to see the underside, because the 6 aircraft was always titled towards me. 7 Q. Why don't you put the model down for a minute, 8 Mr. Little. You mentioned impact. Did you see impact? 9 A. The impact that I saw was what was visually available 10 to me when looking from a standing position on the front of 11 my boat across the Everglades grass, which is approximately 12 8 feet tall. So there's not very much between me and where 13 the airplane hit the ground. 14 Q. What did you observe as the plane moved behind the 15 sawgrass between you and the view of the plane? 16 As the nose of the plane moved below the 17 sawgrass, I knew because the grass was very short that, in 18 fact, the aircraft was beginning to hit the ground. The 19 position of the aircraft did not change. It did not begin 20 to tilt or cartwheel or shift about, it sort of moved as 21 though the earth really weren't there, other than it did 22 begin to slow down. 23 Q. Did you hear anything? 24 A. At the first instant that I felt that the aircraft was 25 hitting the ground, I didn't because of the sound delay for UNITED STATES vs SABRETECH ET AL - 11-16-99 76 LITTLE - Direct 1 the sound to reach me. I heard a sound that I really can't 2 remember well enough to describe. It wasn't very loud but 3 it was followed by a tremendous sound. 4 Q. Before hearing the tremendous sound, did you see 5 anything? 6 A. Yes. I did. As the aircraft disappeared below the 7 grass line on the horizon, I saw a tremendous wave of water 8 rise up from the horizon. That wave reminded me of 9 something like the waves that the surfers ride in Hawaii, 10 except that the wave was going away from me rather than 11 towards me. 12 Q. Did you see any vegetation in the wave? 13 A. Yes. Initially I thought this might actually be -- 14 Q. Let me ask you not to tell us what you were thinking. 15 Just tell us if you did see any vegetation? 16 A. Yes. I saw what appeared to be clumps of sawgrass 17 through the water. 18 Q. Approximately how high was the wave? 19 A. I estimated 150 feet. 20 Q. Did this wave proceed or follow this second sound that 21 you told us of? 22 A. Preceded. 23 Q. Did you then hear the second sound? 24 A. Yes. The second sound was a combination thud and boom. 25 Q. How loud was it? UNITED STATES vs SABRETECH ET AL - 11-16-99 77 LITTLE - Direct 1 A. I felt that it was the loudest sound that I ever heard. 2 Q. Did you feel anything? 3 A. My boat sitting on the water vibrated under my feet and 4 I felt a shock wave hit my body. 5 Q. Did you hear any engine noise? 6 Yes. It seemed eerie to hear the engine do what 7 pilots refer to as spool bound. When a turbo engine is 8 shut off, it's R p.m. decreases, and it makes a whining 9 sound. I actually heard that sound. 10 Q. Following that, did you physically observe anything 11 more about the aircraft? 12 A. No. 13 Q. From the first time you heard the sound of the aircraft 14 until the moment you no longer observed anything, could you 15 estimate how long the time was? 16 A. My best guess would be ten seconds. 17 Q. What did you do following this event? 18 A. Paused for a moment. 19 Q. Please don't tell us about any mental processes? 20 A. I turned to the rear of my boat to the storage 21 compartment and retrieved my cell phone, and placed a call 22 to 911. 23 Q. Were you able to get through? 24 A. Yes. 25 Q. Did you have a conversation? UNITED STATES vs SABRETECH ET AL - 11-16-99 78 LITTLE - Direct 1 A. Yes. 2 Q. Approximately how long was the conversation? 3 A. Five minutes or more. 4 Q. What caused the conversation to end? 5 A. The battery on my cell phone died. 6 Q. What did you do after that? 7 A. I returned in my boat to the landing ramp. 8 Q. Did you meet anyone there? 9 A. I met law enforcement officers and fire rescue people. 10 Q. Mr. Little, I'm handing you what has been marked as 11 Government Exhibit 1, and I would ask you to look at that 12 and tell us if you recognize that? 13 A. Yes, this appears to be a ValuJet. It looks like a 14 DC9. I can't identify the series. I'm not quite that good. 15 Q. What, if any, resemblance does that bear to the one you 16 saw in the crash? 17 A. This one has the same engine configuration and the tail 18 marking and the color marking with the tail being blue, and 19 the engine being white. I also see what I can only describe 20 as the squiggly lines on the front, which I considered 21 insignificant at that point and time, and I can now see that 22 it's actually like a cartoon airplane. 23 MS. MILLER: Government offers Exhibit One into 24 evidence. 25 MR. DUNLAP: No objection. UNITED STATES vs SABRETECH ET AL - 11-16-99 79 LITTLE - Direct 1 THE COURT: Government Exhibit 1 is admitted into 2 evidence. 3 [Government Exhibit 1 received in evidence]. 4 MS. MILLER: No further questions from this 5 witness. 6 THE COURT: Mr. Raskin, any cross-examination? 7 MR. RASKIN: None, Your Honor. 8 THE COURT: Mr. Dunlap? 9 MR. DUNLAP: None, Your Honor. 10 THE COURT: All right. Your next witness. 11 MS. MILLER: We will have to move the equipment, 12 Your Honor. 13 THE COURT: We will take a short recess. 14 [There was a short recess]. 15 COURTROOM DEPUTY: All rise. Court is in 16 session. The Honorable Judge James Lawrence King 17 presiding. 18 THE COURT: Are we ready to proceed? 19 MS. MILLER: Your Honor, if I might mention that 20 the defense has agreed to the motion I made this morning. 21 I believe I provided a copy to the Court for the Court to 22 take judicial notice of materials. I had excerpted some 23 pages from the hazardous materials tables. The defense 24 agrees that they wish to have the entire table judicially 25 noticed. I don't have objection to that. The defense UNITED STATES vs SABRETECH ET AL - 11-16-99 80 BRENNAN - Direct 1 agreed that I may use these selected tables. 2 THE COURT: Let the record reflect that upon 3 agreement of all parties, the Court takes judicial notice 4 of the table entitled hazardous materials table published 5 at 49 CFR section 17 2.1 01 of the October 1, 1995 edition 6 and 49 CFR section 17 2. 01, the October 1, 1996 edition. 7 The Court takes judicial notice of that table. The parties 8 may utilize the entire table or any parts thereof in their 9 examination of witnesses or argument to the jury. 10 Bring in the jury. 11 [The jury returns to the courtroom]. 12 THE COURT: Thank you. Be seated, please. Ms. 13 Miller, would you please call your next witness? 14 MS. MILLER: Government calls Robert Brennan. 15 COURTROOM DEPUTY: Please raise your right hand. 16 Do you solemnly swear the testimony you are about to give 17 will be the truth, the whole truth and nothing but the 18 truth so help you God? 19 THE WITNESS: I do. 20 COURTROOM DEPUTY: Please state your name and 21 spell your last name for the record. 22 THE WITNESS: Robert Brennan, B-r-e-n-n-a-n. 23 RICHARD BRENNAN, GOVERNMENT'S WITNESS, SWORN. 24 DIRECT EXAMINATION 25 BY MS. MILLER: UNITED STATES vs SABRETECH ET AL - 11-16-99 81 BRENNAN - Direct 1 Q. Mr. Brennan, what is your occupation? 2 A. I am manager of regulatory affairs for Scott Aviation. 3 Q. What is Scott Aviation? 4 A. Scott Aviation is a company headquartered in Lancaster, 5 New York. It manufacturers respirators and respiratory 6 equipment that fireman wear to go inside burning buildings, 7 and we also manufacturer a line of oxygen equipment for use 8 in aviation. 9 Q. How long have you been with either Scott Aviation, or a 10 predecessor that it had when it had different names? 11 A. I am in my 34 year. 12 Q. What, if any, responsibility do you have with regard to 13 chemical oxygen generators at Scott Aviation? 14 A. Prime airline, I'm responsible for making sure the 15 company complies with regulations, and I also am called upon 16 to exam any accidents or unusual occurrences that happen 17 with our products. 18 Q. How long have you had job responsibilities associated 19 with chemical oxygen generators? 20 A. Approximately ten years, ma'am. 21 Q. Now, now you have told us that Scott Aviation 22 manufacturers certain equipment for oxygen for use in 23 aviation. Can you tell us what type of equipment Scott 24 makes in that regard? 25 A. Well, we make boast gases and solid state equipment. UNITED STATES vs SABRETECH ET AL - 11-16-99 82 BRENNAN - Direct 1 We make the oxygen equipment for the pilot and for the 2 passengers. We manufacturer the little yellow masks that 3 come down. We manufacturer the pilots' masks and 4 regulators. These are all aircraft components that are used 5 in aircraft's oxygen systems. 6 Q. What is the purpose of an aircraft's oxygen system? 7 A. Well, primarily as you get higher over the earth, the 8 air gets thinner. Although it's got the same percent oxygen 9 in it there, is just plain less air. At high altitudes, 10 people have trouble staying awake. They go unconscious. It 11 is even possible to die at high altitudes unless you have a 12 supply with supplemental oxygen. That is what the mask and 13 everything are all for. 14 Q. What is supplemental about it? 15 A. Well, you are breathing the air that is up there. This 16 equipment supplies you with extra oxygen with each breath or 17 supplies you with extra oxygen on a constant basis, but 18 either way, you are breathing an enriched atmosphere. 19 Q. Is this happening during every flight? 20 A. No, no. Normally, they pressurize the cabin to 10,000 21 feet and you breath normal air. This will only happen if 22 they lose pressure in the airplane, they get a hole in the 23 cabin or lose a window, and they are above 10,000 feet. 24 Then the little midst will come down and the pilot and 25 co-pilot will have to use supplemental oxygen. UNITED STATES vs SABRETECH ET AL - 11-16-99 83 BRENNAN - Direct 1 Q. How is oxygen stored in airplanes? 2 A. There are two basic ways in civil aviation. You can 3 store it as pressurized gas in tanks or you can store it as 4 solid state oxygen, you can store it as a powder in a 5 generator. 6 Q. Now you have mentioned the term generator. Are you 7 familiar with the term chemical oxygen generator? 8 A. Yes, ma'am. 9 Q. Which of the two systems you have described includes 10 chemical oxygen generator? 11 A. That is the systems that stores the oxygen as a solid 12 granulated powder until it is ready to be used. 13 Q. Does a chemical oxygen generator have anything to do 14 with compressed oxygen? 15 A. No, that is two separate systems. The crew is always 16 on compressed oxygen because they can turn it on and off 17 whenever they need it. Sometimes the little yellow masks in 18 the cabin are supplied with compressed oxygen and sometimes 19 they are supplied with oxygen stored as solid state oxygen 20 in oxygen generators. 21 Q. Mr. Brennan, would you tell us please, what is a 22 chemical oxygen generator? 23 A. Well, it is an aircraft part that is used to store 24 oxygen until it is needed. That's what it is. 25 Q. In what form is the oxygen stored? UNITED STATES vs SABRETECH ET AL - 11-16-99 84 BRENNAN - Direct 1 A. Well, it is stored as a salt. It is actually a 2 chemical compound called sodium chlorate. It is basically 3 table salt with three extra oxygen atoms attached to each 4 sodium chlorate molecule. It is a salt that will decompose 5 using table salt, oxygen and heat. 6 Q. There is a term that describes the kind of reaction 7 that generates heat? 8 A. Yes. It's called exothermic. 9 Q. What is does exothermic mean? 10 A. Technically, it means, the reaction when it happens 11 gives up more heat than it uses to react. Some chemical 12 reactions you have to constantly put heat in to keep it from 13 going. Some will give off a little heat when they go. 14 Q. Mr. Brennan, how does the mechanical aspect of an 15 oxygen generator work? You have told us about the 16 chemistry, let me can you about the mechanical aspect of the 17 machine? 18 A. Well, mechanically, it just sits there until it is 19 initiated. 20 Q. What do you mean by initiated? 21 A. The chemical sodium chlorate is stable by itself until 22 you put heat into it. Once you heat it up, it will start 23 decomposing, giving off the oxygen. What you have to do is 24 arrange when you want this oxygen. You've got to arrange 25 for a way to put heat into the sodium chlorate to make it UNITED STATES vs SABRETECH ET AL - 11-16-99 85 BRENNAN - Direct 1 start. That's called initiation. In oxygen generators, it 2 can be done either by percussion cap or by an electric 3 impulse cap. 4 Q. What do you mean by percussion cap? 5 MS. MOSCOWITZ: Your Honor, I need to object. I 6 think we need to be qualifying Mr. Brennan as an expert. 7 THE COURT: All right. 8 MS. MILLER: Your Honor, I'm not offering any 9 opinions. I'm offering only factual, descriptive matters 10 with regard to this witness. 11 THE COURT: It seems to me, he is giving us his 12 opinion as to what happens. If he's talking about facts, 13 he would say the container has salt and whatever the other 14 chemicals is. As to how it works and the process is 15 getting into his opinion. Obviously, he is knowledgeable 16 about these things and maybe you can bring out his 17 background. But I think you will need to do that if you 18 are going to ask him opinions. 19 MS. MILLER: Your Honor, I didn't intend to, but 20 if the Court feels it is getting close to opinions. 21 THE COURT: You ask the question, and we will see 22 if there is an objection. 23 BY MS. MILLER: 24 Q. Mr. Brennan, I am handing you what has been marked as 25 Government Exhibit 32 and I would ask if you recognize that? UNITED STATES vs SABRETECH ET AL - 11-16-99 86 BRENNAN - Direct 1 A. Yes, I do. 2 Q. Could you tell us, please what, you recognize that to 3 be? 4 A. It is a skematic type drawing of a McDonald Douglas 5 type oxygen generator. 6 Q. Is it a true and accurate skematic drawing of a 7 McDonald Douglas type oxygen generator? 8 A. It appears to be, yes. 9 Q. Is this particular type of McDonald Douglas type oxygen 10 generator one that is associated with your company? 11 A. Yes. 12 MS. MILLER: Government offers exhibit 32 in 13 evidence. 14 THE COURT: Without objection, it is admitted. 15 MS. MOSCOWITZ: No, Your Honor. I think we need 16 a predicate for this man's specialized knowledge. 17 THE COURT: You object to it on the base of what? 18 MS. MOSCOWITZ: Foundation. 19 THE COURT: You wish to voir dire him on this 20 particular document? 21 MS. MOSCOWITZ: Yes, on his background and 22 training to be offering and testifying about it. Yes, sir. 23 THE COURT: Would you like to establish where the 24 document came from as a further predicate. 25 BY THE COURT: UNITED STATES vs SABRETECH ET AL - 11-16-99 87 BRENNAN - Direct 1 Q. Have you ever seen a document like that before? 2 A. Yes, Your Honor. 3 Q. Where? 4 A. A document like that was circulated in FAA notice after 5 the ValuJet air crash. 6 Q. Where did it originate from? Who drew it? 7 A. I don't know who drew the original skematic. It is a 8 pretty fair representation of a generator. 9 BY MS. MILLER: 10 Q. If I may. Mr. Brennan, have you reviewed drafts of 11 this document at the United States Attorneys Office? 12 A. Yes, ma'am. 13 Q. Have you spoken with the United States Attorneys 14 Office's graphics person who used a computer to make this 15 drawing? 16 A. Yes, I did. 17 Q. Did you work with this person until the drawing was 18 accurate based on your knowledge of oxygen generators? 19 A. Yes, ma'am. 20 THE COURT: Are you going to offer it into 21 evidence? 22 MS. MILLER: Yes, sir. 23 THE COURT: Any objection? 24 MS. MOSCOWITZ: The objection is, what is the 25 basis of Mr. Brennan's knowledge that it's accurate? UNITED STATES vs SABRETECH ET AL - 11-16-99 88 BRENNAN - Direct 1 THE COURT: Overruled. The document is admitted 2 into evidence as Exhibit 32. 3 [Government Exhibit 32 received in evidence]. 4 MS. MILLER: Your Honor, I would like to put a 5 larger version on the easel where the jury can see it. 6 THE COURT: All right. Show the larger version 7 to counsel to see if there is any objection. 8 MS. MILLER: Your Honor, may I ask the witness to 9 step down to where the chart is? 10 THE COURT: Yes, you may. Take this pointer and 11 take this microphone so you can speak into it. 12 BY MS. MILLER: 13 Q. Would you please describe the oxygen generator using 14 the chart and the pointer to indicate the parts you were 15 discussing? 16 A. An oxygen generator has got a core which is light gray, 17 and it is shaped like a stubby funnel. That is primarily 18 sodium chlorate with some iron powder mixed into it. On the 19 top part -- that is actually where the oxygen is being 20 stored. On the top part of this area, is an area called 21 flash. That is primarily, instead of iron powder there, is 22 titanium powder there, and that is to get the core hot, so 23 that the reaction will start. In order to get the reaction 24 to start, there is a percussion cap mounted on the outside 25 of the top and connected by a hollow tube from the bottom of UNITED STATES vs SABRETECH ET AL - 11-16-99 89 BRENNAN - Direct 1 the percussion cap to the top of the flash. The percussion 2 cap is a pill shaped thing here, and it is a little round 3 aspirin and when it is hit it makes a snap and a tongue of 4 alumnus gas or a flame comes out of it, and down this tube 5 and touches the flash on top. The flash starts reacting to 6 produce heat. It heats up the top of the sodium chlorate. 7 As it gets hot, it starts to break down to sodium chloride 8 and give off oxygen. 9 Q. You mentioned iron in the sodium chlorate? 10 A. It's powder. It really won't keep going by itself. 11 So, what we do is mix a little iron powder in with the 12 sodium chlorate. As the sodium chlorate breaks down, and 13 yields oxygen, and it's got to be hot to do this. Some of 14 that oxygen combines with the iron powder to make rust. But 15 the point is, it gives off more heat. So it keeps the 16 temperature of the core where the reaction is occurring. It 17 keeps it up so the reaction will keep going. When somebody 18 needs the oxygen, you got to get it out fast and it's got to 19 keep going until you don't need it anymore, and that's the 20 purpose of the iron powder, is to make sure the core stays 21 hot enough to keep giving off oxygen. 22 Q. How hot does the core get? 23 A. The reaction is between 700 degrees C and 800 degrees 24 C. 25 Q. What do you mean by C? UNITED STATES vs SABRETECH ET AL - 11-16-99 90 BRENNAN - Direct 1 A. Centigrade. 2 Q. Is there a reason for the shape of that core? 3 A. Yes. These are only used for the little yellow masks 4 that fall down for the passengers. The design is such that 5 he presumes that they are flying at the maximum altitude the 6 plane can. We have to supply enough oxygen for the maximum 7 altitude, but he knows where he's going to fly at the 8 descent. He gives us a descent profile. As the plane 9 comes, down you have to supply less and less oxygen. 10 Q. Why is that? 11 A. First of all, you need less. And as to why they want 12 to do it that way, gas systems have regulators, too. This 13 is what they tell us. They give us an altitude profile. As 14 time goes on, this canister is to generate less and less 15 oxygen until in 15 minutes, it stops. 16 Q. Where does the oxygen come out, if you can show us? 17 A. It starts up here and it comes out down here. There is 18 insulation on both sides of this. It is little granules of 19 emiculite (phonetic). It is like a brown powder, the kind 20 of thing you stick plants in. It is a very good insulator 21 and oxygen can get through that. The oxygen travels through 22 the emiculite (phonetic) and these outlets attach to little 23 plastic tubes that attach to the masks. 24 Q. How many outlets are there on an oxygen generator? 25 A. It depends. There are one man oxygen generator, two UNITED STATES vs SABRETECH ET AL - 11-16-99 91 BRENNAN - Direct 1 man, three man and four man, at least of the McDonald 2 Douglas type. 3 Q. What do you mean by a three man or two man? 4 A. That is the number of oxygen masks it is meant to 5 supply. In a two man oxygen generator, there will be two 6 men and two masks, and a four man oxygen generator, four 7 person oxygen generator, there will be four outlets and 8 there will be four plastic tubes. 9 Q. You mentioned plastic tubes and masks. What is the 10 arrangement of a plastic tube and mask with regard to the 11 oxygen outlets? 12 A. When it gets in the airplane the yellow masks and 13 oxygen generator, will be packed in a panel typically 14 overhead, but it can be put in a seat back that will be put 15 in a wall, and the oxygen masks are attached by tubes, 16 plastic tubes to these outlets so the oxygen can flow. And 17 they are also attached by a white cord called a lanyard. It 18 goes from the mask to this pull tab up here. The lanyard is 19 on here because it is supplied with the generator. 20 Q. Before we move on with the lanyard, you have told us 21 about the core. Can you tell us what physical object the 22 core sits in? 23 A. The whole core as I said is encased in the emiculite 24 (phonetic) has a jacket around it. And it is inside a 25 stainless steel with a dome shape on top and a flat issue UNITED STATES vs SABRETECH ET AL - 11-16-99 92 BRENNAN - Direct 1 round bottom. 2 Q. What is the main content of the oxygen generator? 3 A. It is mostly sodium chlorate. 4 Q. Approximately how much sodium chlorate is there in a 5 two man oxygen generator? 6 A. It would be a little more than a half pound, less than 7 three quarts of a pound. 8 Q. How much can a three man oxygen generator? 9 A. Three quarts of a pound. 10 Q. How much in a four man? 11 A. A little less than a pound. About .8 or .85, something 12 like that. 13 Q. You have told us about iron powder. Is there any other 14 substance that exists in that sodium chlorate core? 15 Yes, ma'am. There are several. There are iron 16 peroxide, there is sodium dioxide, ground up sand. This is 17 basically sodium chloride, iron powder, iron peroxide and 18 silva codoxide (phonetic). 19 Q. Does Scott manufacturer the percussion cap? 20 A. No, ma'am. 21 Q. Does Scott manufacturer the oxygen generator? 22 A. Yes. 23 Q. What does it do with regards to obtaining and utilizing 24 the percussion cap? 25 A. I'm sorry, I don't understand. UNITED STATES vs SABRETECH ET AL - 11-16-99 93 BRENNAN - Direct 1 Q. Does it get a percussion cap from some place? 2 A. No, we purchase percussion caps, and as part of the 3 assembly step, we press them into the top of the generator. 4 Q. Does that percussion cap have a name or part number 5 associated with it? 6 A. Yes. It is Olan Winchester divisions. They have got a 7 big long name and a number. 8 Q. Would looking at a document refresh your recollection 9 in that regard? 10 A. It may. 11 Q. Are you familiar with something called the hazardous 12 materials table. 13 A. Yes, ma'am. If you are referring to the document in 49 14 CFR. 15 THE COURT: If you are through with this exhibit, 16 move it so counsel can see the witness and let them be 17 seated. 18 MS. MILLER: Yes, sir. I will return to it but I 19 will put it down right now. 20 THE COURT: The difficulty is, I don't like all 21 the confusion in the courtroom. The lawyers need to stand 22 where they can see the document. I don't mind that but 23 after that then, I would like for everyone to be seated. 24 It is not criticism of them standing at all. Maybe now, we 25 can get back to the normal witness on the witness stand UNITED STATES vs SABRETECH ET AL - 11-16-99 94 BRENNAN - Direct 1 situation. 2 BY MS. MILLER: 3 Q. What, if any, relationship does an oxygen generator 4 have and, if I could focus your attention specifically in 5 the time period of March through May of 1996? What, if any, 6 relationship did the Scott Aviation chemical oxygen 7 generator have to the hazardous materials table that appears 8 at 49 CFR. 9 A. An oxygen generator is a hazardous material for 10 shipment under 49 CFR, and it was in the time frame you 11 stated also. 12 Q. What about in the period from October 1, 1996 through 13 October 1, 1999? 14 A. Yes. It's a hazardous material according to the 49 15 CFR. 16 Q. How is the oxygen generator referred to in that 17 hazardous materials table? 18 A. Now? 19 Q. In the period March through May, 1996? 20 A. It wasn't specifically named oxygen generator. It was 21 sodium chlorate rate. And sodium chlorate is listed in the 22 hazardous material table. 23 Q. Is there any other listing in the hazardous materials 24 table that also was used with regard to description of an 25 oxygen generator during the time period March through May UNITED STATES vs SABRETECH ET AL - 11-16-99 95 BRENNAN - Direct 1 1996? 2 A. Sodium chlorate is a solid oxidizer. It could also be 3 shipped under solid oxidizer. 4 Q. Mr. Brennan, I'm handing you four pages and, if I may 5 state that these pages have been pages from the hazardous 6 materials table, pages A and B being from the October 1, 7 1995 edition, and pages C and D from the October 1, 1996 8 edition. I would ask do those pages list any of the 9 substances that you have been referring to, that is, sodium 10 chlorate or oxidizing solid? 11 A. Yes, ma'am, two pages list sodium chlorate. Two pages 12 list oxidizing salt. 13 Q. Is that because each page refers to the two years? 14 A. Yes. 15 Turning your attention first to page B, listing 16 sodium chlorate for the October 1, 1995 edition, is the 17 hazard class or addition that is related with regard to 18 that substance? 19 MS. MOSCOWITZ: Objection, foundation. 20 MS. MILLER: I believe this is the material that 21 has been judicially noticed. 22 THE COURT: Are your asking him to read from the 23 table? 24 MS. MILLER: Certain items of it, yes. 25 THE COURT: The last question asked you to read UNITED STATES vs SABRETECH ET AL - 11-16-99 96 BRENNAN - Direct 1 from the table and to tell the jury what it says you may do 2 that. 3 THE WITNESS: The listing for sodium chlorate 4 gives a hazard class of 5.1. a U.N. identification number 5 of 1495. Packing group two- labels require oxidizer, and 6 it gives special provisions A9, N34 and T8. Package 7 authorizations gives exceptions as 152, none bulk packing 8 as 212, bulk packing is 240 and it gives quantity 9 limitations for passenger aircraft derail cars is 5 10 kilograms and for cargo aircraft is 25 kilograms, and for 11 vessel storage requirement is storage requirement A and 12 other storage requirements 56, 58 and 106. 13 THE COURT: 56, 58 and what. 14 THE WITNESS: 106. 15 THE COURT: Thank you. 16 BY MS. MILLER: 17 Q. Mr. Brennan, you mentioned something called an 18 identification number and told us U.N. 1495, what does that 19 U N stand for? 20 A. United Nations. 21 Q. What is a U N identification number? 22 A. For all the hazardous materials in 49 CFR, there is a 23 world recognized U.N. number. They have an agreement with 24 some U.N. body and the Federal Government publishes these 25 numbers, and they tell you what the hazard is if you have UNITED STATES vs SABRETECH ET AL - 11-16-99 97 BRENNAN - Direct 1 one of these. 2 Q. You also mentioned a hazard class or division? 3 A. Yes, ma'am. 4 Q. This is 5.1? 5 A. Yes. 6 Q. What is hazard class division 5.1? 7 A. In the same CFR, they divide up the hazards into 8 various divisions, and they make regulations based on which 9 division it is, and you go to this table to see which 10 division it is. In this case, it is division 5.1. 11 Q. What are the items that are grouped in 5.1? 12 A. Basically, oxidizers are things that can release 13 oxygen. 14 Q. What is an oxidizer? 15 A. Well, an oxidizer is something that can supply oxygen 16 or cause oxidization. As an example, all compressed oxygen 17 is an oxidizer. Certain compounds are considered oxidizers. 18 Q. What is the effect of oxidizers on combustion of 19 materials? 20 A. Combustion is something burning. Burning is what is 21 called rapid oxidization. It is the combination of a fuel 22 with oxygen. 23 MS. MILLER: Your Honor, the government offers in 24 evidence pages A, B, C, D, and offers them in evidence as 25 Government Exhibit 30 F. UNITED STATES vs SABRETECH ET AL - 11-16-99 98 BRENNAN - Direct 1 THE COURT: I believe that counsel could read 2 that these tables may be admitted into evidence. The Court 3 takes judicial notice of it. Government Exhibit 30 F is 4 admitted or the documents are admitted into evidence. 5 [Government Exhibit 30F received in evidence]. 6 MS. MILLER: And if I might return to the chart 7 at this point? 8 THE COURT: I think we should recess at 5:30. So 9 when you have an intelligent break in your examination, but 10 go right ahead. 11 BY MS. MILLER: 12 Q. Mr. Brennan, could you step down please, again? 13 THE COURT: Counsel may remove themselves to a 14 point where they can see the chart if they wish. 15 BY MS. MILLER: 16 Q. I would like to refer your attention to the upper 17 portion of the chart. The portion that appears above the 18 percussion cap. Could you please tell us what the various 19 marked parts on the oxygen generator are, and what their 20 function is? 21 A. Well, the marked parts are pull pin, spring activated 22 hammer and lanyard. This basically is used when you want to 23 initiate the operation of the generator. This hammer is the 24 thing that is going to hit on the percussion cap to start 25 the generator. It is backed by a spring. This is a coiled UNITED STATES vs SABRETECH ET AL - 11-16-99 99 BRENNAN - Direct 1 spring here with two arms on it, one of them pressing on the 2 hammer. So the hammer is spring loaded to come down. It is 3 held in place by a steel pull pin that comes across in front 4 of it so it can't come down. The lanyards are attached to 5 the masks. The other end to the steel pull pin, when you 6 are in an airplane that has one of these. The stewardess 7 says reach for the yellow mask and pull it towards you. To 8 pull it towards you is intended to tension the lanyards and 9 cause the pull pin to pull out. Once the pull pin is out, 10 nothing is holding the hammer back. The spring drives it 11 down and this little round ball type thing hits in the 12 percussion cap which lights the flame that comes down to 13 start the flash. 14 MS. MILLER: Thank you. I believe I am finished 15 with the chart, Your Honor. 16 BY MS. MILLER: 17 Q. When that oxygen generator initiates -- did you use the 18 term actuate? 19 A. Yes, ma'am. 20 Q. Are those terms used? 21 A. Yes. 22 Q. When the oxygen generator initiates or actuates, does 23 it make a sound? 24 A. Yes. It pops down from the percussion cap and then 25 after it starts to run, you sometimes hear the check valve UNITED STATES vs SABRETECH ET AL - 11-16-99 100 BRENNAN - Direct 1 which is not shown in the drawing, but it is a thing in the 2 outlet, and you sometimes hear the humming. Those are the 3 only sounds it makes. 4 Q. What hoses are not attached to the oxygen generator? 5 A. Then what you have got is the check valve is right down 6 on the bottom where the outlets are. If the hoses aren't 7 attached, you can almost always hear the generator singing. 8 It is the vibration from the spring. 9 Q. Mr. Brennan, with regards to terms you have told us 10 about a percussion cap. Are there any other terms 11 associated with that piece? 12 A. With the oxygen generator? 13 Q. Yes, sir. 14 A. Well, you have got in the chart the mounting studs. 15 Q. Is the percussion cap ever referred to by any other 16 term than percussion cap? 17 A. It may be. I refer to it as a percussion cap. 18 Q. Are you familiar with the term primer? 19 A. Yes. I believe we use primer cap from time to time. 20 Q. As meaning the same thing? 21 A. Yes. It would be like actuate and initiate. Primer 22 would be the same thing, interchangeable words. 23 Q. Mr. Brennan, you have testified that the oxygen 24 generator, when in use, generates heat and you've told us 25 about temperature inside the generator. What, if any, UNITED STATES vs SABRETECH ET AL - 11-16-99 101 BRENNAN - Direct 1 generator is at the surface, the temperature when it is in 2 use? 3 A. Well, it is different for different generators. But 4 the specifications on all the series is 545 degrees F. 5 Q. F meaning? 6 A. Farenheit. 7 Q. How is the oxygen generator designed to be held when in 8 place in the aircraft? 9 A. There is three mounting studs and they fit what is 10 called the drop out box. We don't make that. They fit into 11 the drop out box. They are held in place typically by a 12 heat shield. 13 Q. And does that type of placement have any relationship 14 to the temperature that the exterior of an oxygen generator 15 may reach? 16 A. Well, yes. The specification is valid when it is in 17 that kind of environment. That environment is meant to 18 allow air to convect over to the generator, to carry off 19 some of the heat and the max temperature specification is 20 valid when that generator is mounted so air can flow over 21 it. 22 Q. What if the oxygen generator is not so mounted? 23 A. Well, if it were rolled up so that air couldn't get at, 24 it I would expect the skin temperature to be higher than 25 normal. UNITED STATES vs SABRETECH ET AL - 11-16-99 102 BRENNAN - Direct 1 BY MS Moscowitz: Objection. This is calling for 2 expert opinion. 3 THE COURT: Sustained. Next question. 4 BY MS. MILLER: 5 Q. What is the rate of heating of an oxygen generator? 6 A. I don't know whether I could tell it to you in B. T. U. 7 On this type of generator, you can safely hold the generator 8 in your hand for about a minute. About the time, you get to 9 three minutes, you've got to drop it or you are going to 10 burn your hand. 11 Q. How many times can an oxygen generator be used? 12 A. Once and once only. 13 Q. You have told us about the percussion cap on the oxygen 14 generator. Are you familiar with the term cap as applied to 15 any other part of the oxygen generator. 16 A. Well, it is not a part of the oxygen generator. These 17 oxygen generators are supplied with a little yellow plastic 18 cap called a safety cap or shipping cap. 19 Q. What is the purpose of this little cap? 20 A. It covers the primer to prevent the primer from being 21 struck accidently. Percussion cap, whichever you want to 22 call it. 23 Q. Mr. Brennan, I am handing you what has been marked as 24 Government Exhibit 31 and I ask if you recognize Government 25 Exhibit 31? UNITED STATES vs SABRETECH ET AL - 11-16-99 103 BRENNAN - Direct 1 A. I think so. Can I take it out of the bag? 2 Q. Yes, sir. 3 A. It looks like a little safety cap from the McDonald 4 Douglas generator. 5 Q. Are you familiar with the safety cap used on the 6 McDonald Douglas generator on? 7 A. Yes. 8 Q. Are you familiar with the shipping caps that were used 9 on Scott Aviation chemical oxygen generators prior to 1996? 10 A. As far as back as I can remember, that was it. 11 MS. MILLER: Government offers exhibit 31 in 12 evidence. 13 MR. RASKIN: No objection. 14 THE COURT: Government Exhibit 31 is admitted 15 into evidence. 16 [Government Exhibit 31 received in evidence]. 17 BY MS. MILLER: 18 Q. What is the correct name for that piece, Mr. Brennan? 19 A. I think the drawing title is tap, shipping. We refer 20 to it as a safety cap. 21 Q. Either term is used to refer to the same object? 22 A. Yes, ma'am. 23 Q. Is this the same thing as the percussion cap? 24 A. No, that is the primer which we referred to, the little 25 pill shape on the generator. That is the percussion cap. UNITED STATES vs SABRETECH ET AL - 11-16-99 104 BRENNAN - Direct 1 Q. At what point is a shipping cap present on a Scott 2 Aviation oxygen generator? 3 A. We put them on at assembly as soon as we got the 4 percussion cap in place and the pivot station is welded on. 5 We put the cap on and it stays on. 6 Q. Why do you do that? 7 A. So nobody accidently hits one of these percussion caps. 8 Q. Why is that a concern? 9 A. Well, if before you put the core in the generator you 10 have to throw the top away, if somebody hit the percussion 11 cap. Once you put the core in the generator if the hammer 12 accidently fell or somebody hit the percussion cap, the 13 generator would start producing oxygen and get hot. You 14 would have to throw it out because it can only be once. You 15 put the cap on so it doesn't happen. 16 MS. MILLER: Your Honor, this might be an 17 appropriate place to break for this witness. 18 THE COURT: Let me instruct Mr. Brennan that you 19 were in the middle of your testimony now so you will not be 20 able to discuss your testimony during the night recess with 21 anyone connected with the trial, the lawyers agents or 22 anyone else. So we will ask you be here tomorrow morning, 23 a few minutes before 9:00, and we will resume with your 24 examination at that time. We thank you and you may step 25 down and be excused at this time. UNITED STATES vs SABRETECH ET AL - 11-16-99 105 BRENNAN - Direct 1 Ladies and gentlemen, we are about to recess for 2 the evening recess. It is 5:27. You have been very patient 3 today, and listened to a lot of opening statements and we 4 have covered two witnesses. 5 We thank you for your patience and I wish to 6 particularly thank you for being prompt this morning. You 7 were here on time. I am not sure that we were able to get 8 right to you, but that was not because we had an early 9 morning round of golf and we were here this morning at 8:00. 10 We will do better tomorrow morning. If you will be here a 11 few minutes before nine. 12 Thank you very much for your attention and 13 patience. Remember the instruction and after about three 14 days, I'm going to get you to tell me. Don't read anything 15 in the newspaper. Don't watch anything on television. 16 Don't listen to the radio. If there should be anything in 17 the news media, don't let anything come to your attention 18 accept what you hear in this courtroom. 19 Marshal, if you will see that they get down to the 20 elevator. 21 [The jury returns to the courtroom]. 22 THE COURT: All right, we will ask that everybody 23 be seated and I will hear from MR. MOSCOWITZ on a motion 24 that he referred to earlier on at the conclusion of the 25 opening statement by the government. He indicated he had a UNITED STATES vs SABRETECH ET AL - 11-16-99 106 BRENNAN - Direct 1 motion at that time. The Court asked him to wait until 2 this point to make the motion. He agreed. So the motion 3 is timely made. 4 BY MR. MOSCOWITZ: Thank you, Your Honor. I make 5 this on behalf of SabreTech and on behalf of Eugene 6 Florence. I don't think this relates to Mr. Gonzalez. 7 Mr. Dunlap, can correct me if I'm wrong. 8 I would like to argue the motion now briefly. 9 Since it relates to things that Ms. Miller said in her 10 opening, we are going to have the transcript some time 11 tomorrow so it may make sense to consider the motion 12 carefully tomorrow. 13 But the thrust of the motion is, based on the 14 concession that Ms. Miller made in her opening, we think it 15 is appropriate for the Court to grant a Rule 29 on count 24 16 which is the last count which is the antiterrorism count 17 which alleges that SabreTech knowingly and willfully placed 18 an explosive device on the aircraft, willfully intending to 19 disable it, which is to make it crash. 20 Also, we think based on concession made in opening 21 that a Rule 29 at this point is appropriate with regard to 22 the hazardous material violation counts which are counts 8 23 through 23, which allege that SabreTech willfully violated 24 those regulations and allege that SabreTech and Eugene 25 Florence recklessly violated the hazardous material UNITED STATES vs SABRETECH ET AL - 11-16-99 107 BRENNAN - Direct 1 regulations. 2 Let me just briefly state, what we think the 3 concessions are. Your Honor, well knows far better than me, 4 that after the government makes it's opening where it 5 predicts or tells a jury what the evidence is, that it 6 expects to prove in support of the allegations in the 7 indictment, if listening to those predictions, taking them 8 all as correct that that is the full extent of what we have 9 proven, if that doesn't constitutes on it's face a showing 10 of proof of each of the elements, it is appropriate for the 11 Court to enter a Rule 29 at that point without even hearing 12 the evidence further. The critical statements that 13 Ms. Miller made and the transcript will bear this out that 14 she started out conceded that nobody, not even the 15 defendants, not SabreTech, not Eugene Florence intended to 16 do any harm to that aircraft, that they did not intend that 17 the aircraft would crash. That they did not foresee what 18 would happen. That they bore no ill will towards ValuJet or 19 towards that aircraft. 20 I think that is absolutely correct. That was an 21 accurate concession that there will be evidence that anybody 22 had any idea that what happened would lead to destruction of 23 an aircraft. Now, the point is that, however, that is 24 precisely what is required to be proven by count 24 by the 25 government. UNITED STATES vs SABRETECH ET AL - 11-16-99 108 BRENNAN - Direct 1 In count 24, the government alleges that on May 2 11, 1996 which was the date of the crash that SabreTech 3 knowingly and willfully placed and caused to be placed 4 destructive devices, the generators on that flight, and that 5 more specifically, knowingly and willfully made and caused 6 that aircraft to be made unworkable and unusable, and hazard 7 to work with and use in order to endanger the safety of that 8 aircraft. That is what required that SabreTech specifically 9 intended with a bad purpose to violate the law to put those 10 generators on that flight to cause the terrible crash that 11 took place. 12 The government has conceded, it cannot meet that 13 burden and will not produce such evidence. Based on the 14 fact that it already concedes that it can not make a showing 15 of willfully endangering that aircraft which is the 16 requirement, we move for a Rule 29 that at this point, the 17 Court rule that it not be able to prove that violation and 18 we move for judgment of acquittal on that count. 19 With regard to the hazardous materials count, do 20 want to have a chance to look at the transcript tomorrow? 21 But, my recollection is that again, Ms. Miller made the 22 following concession. 23 First of all, she conceded that there was a 24 separation within SabreTech between the mechanics, the 25 people who were working with these generators, and the UNITED STATES vs SABRETECH ET AL - 11-16-99 109 BRENNAN - Direct 1 government alleges they were charged with knowing that they 2 were dangerous, that they got hot and unsafe, the separation 3 between the mechanics and the people in shipping, the people 4 who actually took the generators and put them on the plane. 5 There was, I believe, a concession or a prediction 6 that there was no indication that the people involved in 7 shipping related to the ValuJet aircraft had any idea as to 8 the potential danger or risk or any knowledge that these 9 generators could be classified as hazardous materials. The 10 people with whom the government is alleging charged with 11 hazardous materials are Mr. Florence and the mechanics who 12 worked with them. 13 As Your Honor heard, Ms. Miller said quite 14 correctly that SabreTech is in effect vicariously liable for 15 the acts and for the knowledge and state of mind of it's 16 employees. Conceding that the employees in shipping had no 17 such knowledge, did not act willfully in loading those 18 generators on to the plane again is really a concession that 19 the government is unable to prove that SabreTech, and also 20 Eugene Florence, knowingly and willfully violated those 21 haz-mat regulations and caused those generators to be put on 22 the plane. There was no indication to the contrary that 23 Mr. Florence had any reason to know that these were going to 24 be transported. 25 I want to look more closely at what was, in fact, UNITED STATES vs SABRETECH ET AL - 11-16-99 110 BRENNAN - Direct 1 said. It is my recollection that Ms. Miller may have gone 2 so far as to say that SabreTech, that Mr. Florence could not 3 have foreseen that these generators would wind up on that 4 plane. If she made that concession, that would be the basis 5 for Rule 29. Even if there is no concession, the separation 6 between Mr. Florence and the mechanics were charged with 7 knowing and the people in shipping, who were not alleged to 8 have any knowledge, would certainly show that they cannot 9 demonstrate that SabreTech willfully caused these hazardous 10 materials to be transported. 11 THE COURT: All right. Does the government wish 12 to respond? 13 MS. MILLER: Your Honor, the motion should not be 14 granted certainly. It basically is an attempt to jump 15 ahead to the charge conference and will legal elements of 16 these defense. Counsel is flat wrong in his statement that 17 intent to destroy the aircraft is an element of count 24. 18 It appears in one of our pleadings. 19 This statute was amended of certain points some 20 years ago expressly to be brought into conformity with the 21 Montreal convention. There was an explicit statement by 22 Congress that such intent was not an element of this 23 offense, precisely so that the statute would be brought in 24 conformity with the Montreal convention. That is cited in 25 our motion pleading before the Magistrate Judge. UNITED STATES vs SABRETECH ET AL - 11-16-99 111 BRENNAN - Direct 1 It was the motion where counsel was making the 2 point that the government would be proving that they 3 committed terrorism and sabotage, and we said, of course, 4 we are not proving that. 5 With regard to the hazardous materials counts, 6 again, counsel is leaping ahead to what I think we will 7 certainly be having disputes about in the charge conference. 8 Knowledge of risk is not an element of those defenses. 9 Knowledge of the haz-mat violation is not an element of that 10 offense. It is the reckless delivery of the material that 11 causes the transportation of the violative substance that is 12 the defense. 13 The government does not concede any actual 14 innocence on the part of the SabreTech's shipping department 15 and did not so argue, and did not argue or concede that 16 Mr. Florence could not have foreseen that the generators 17 wouldn't go on the plane. 18 I think we made the point that the very thing 19 Mr. Florence made a false statement about, was with regard 20 to parts designated explicitly shipping caps. The motion, 21 Your Honor, should be denied. 22 THE COURT: I suppose it would be important to 23 move the opening statement which as MR. MOSCOWITZ has 24 indicated, it will be available tomorrow. Let's all take a 25 look at the precise opening statements. It is within the UNITED STATES vs SABRETECH ET AL - 11-16-99 112 BRENNAN - Direct 1 procedures and rules for the Court to consider a motion for 2 directed verdict of acquittal as to counts of the 3 defendants at the conclusion of the opening statement by 4 the prosecution. 5 It is extremely rare that it comes up or is 6 asserted and even more rare that it is granted without 7 giving the parties an opportunity to present whatever 8 evidence they may have consistent with the burden that is 9 upon the government to establish each element of the 10 offense beyond and to the exclusion of all reasonable 11 doubt. The motion has been timely made. We will all read 12 and review, and/or I will listen to your submissions about 13 the appropriate portions of the transcript that counsel for 14 the defense suggests are material to this motion, and we 15 will come back to this issue at a subsequent time. I don't 16 know whether the transcript will be available at 8:00 in 17 the morning. I don't know the details. When will it be 18 available? 19 MR. MOSCOWITZ: We would be content to argue this 20 after court tomorrow. 21 THE COURT: All right. We will revisit the issue 22 after court tomorrow. Are there any other motions for the 23 early morning traveler's check that you are making to the 24 courthouse? 25 MR. MOSCOWITZ: We have nothing further at this UNITED STATES vs SABRETECH ET AL - 11-16-99 113 BRENNAN - Direct 1 time. 2 THE COURT: Does the government have anything 3 further in the morning? 4 MS. MILLER: No, Your Honor. 5 MR. MOSCOWITZ: Your Honor, I want to be very 6 careful when I say this. During Ms. Miller's opening 7 toward the very end when she came back to the subject of 8 the crash itself. Your Honor recalls the structure of the 9 opening is, she started with the crash and she came back to 10 what actually happened in the crash at the very end. We 11 were seated behind her. We did not see her face when she 12 was talking. 13 THE COURT: You did not see her face. 14 MR. MOSCOWITZ: The defense says we heard her 15 voice and it sounded to all of us that she became really 16 overcome for a few seconds and it sounded like her voice 17 was cracking, and she was on the verge of tears. I don't 18 for a minute suggest that Ms. Miller did anything 19 intentionally. She is a prosecutor of the highest 20 integrity. I don't think she would attempt to do that, but 21 none the less it is our impression that that was expressed. 22 And that's what we all heard. I think that in opening from 23 the prosecutor is extremely prejudicial. Given what 24 subjects we are talking about. 25 I raise this because I think it should be on the UNITED STATES vs SABRETECH ET AL - 11-16-99 114 BRENNAN - Direct 1 record. We talked about is this as a basis for a mistrial. 2 I don't expect the Court to grant a mistrial over that at 3 this point. Our concern is that the whole issue of the 4 crash and what happened is a very overwhelming fashion that 5 booms large in this case and could well overwhelm it. There 6 may be a number of things that are going to happen in this 7 trial that related to that crash which would be the basis 8 for the Court to consider a mistrial. 9 THE COURT: Are you moving for a mistrial? 10 MR. MOSCOWITZ: I move for a mistrial on behalf 11 of the defense. 12 THE COURT: On the basis that there was 13 prejudicial emotion expressed by the prosecutor in her 14 opening statement, is that it? 15 MR. MOSCOWITZ: Yes, Your Honor. 16 THE COURT: What is the prejudice to indicate 17 that she personally felt sympathy for the people who 18 tragically perished in this? What is prejudice to the 19 defendant? 20 MR. MOSCOWITZ: I'm not saying she expressed it 21 intentionally. But if that is how the jury perceived it, 22 that if this prosecutor has strong personal feeling which 23 go beyond the government's presentation of the evidence 24 about what happened to the victims in the crash. 25 THE COURT: Was not the same sentiment expressed UNITED STATES vs SABRETECH ET AL - 11-16-99 115 BRENNAN - Direct 1 in the opening statements for the defense who very 2 diplomatically, and I submit very properly indicated a 3 similar concern and indeed sympathy for the tragic victims 4 of this accident. That same sentiment, seems to me, was 5 expressed by all counsel. All of them are very decent 6 human beings, and it didn't come as a shock to me that that 7 sort of statement would be made by any of you or indeed, 8 all of you. 9 Given that that sentiment was expressed coming as 10 it does from a very decent feeling by all of you, what 11 would be the overwhelming prejudice to SabreTech for 12 example? Isn't it the same expression being expressed by 13 all of you? If it is, why would it be grounds for first of 14 all, any prejudice, and secondly, to rise to the level of a 15 mistrial if the government also expresses a similar 16 sentiment or perhaps the same sentiment that counsel for 17 the defense does? Where is the prejudice? 18 MR. MOSCOWITZ: Your Honor, for example, let me 19 answer this way. Clearly, if a lawyer for the prosecutor 20 during the argument to the jury were to breakdown in tears 21 about what had happened and it didn't happen here, in terms 22 of making the argument, that type of display of emotion, 23 feeling, would be clearly inappropriate and it would be 24 sanctionable, and clearly prejudicial. 25 THE COURT: Do you have some authority for that? UNITED STATES vs SABRETECH ET AL - 11-16-99 116 BRENNAN - Direct 1 You see, that may be something you want to look into over 2 the evening. There are a number of very emotional cases 3 frequently in the civil context. But I suppose that we 4 could recall or think back and remember some in the 5 criminal case context. 6 Certainly tragic events occur in domestic 7 litigation. There is a lot of litigation that is highly 8 emotionally charged. If the sentiment that comes out at a 9 given time in a very emotional case is genuine, that is 10 opposed to something that appears to be contrived or 11 simulated just for effect or something of that sort, is 12 that, a friendly question, is it sanctionable? 13 I have observed lawyers that had to, in closing 14 argument, actually leave the courtroom and the marshal 15 would tell me one of them just cried in the lobby. Not 16 that the jury heard or not that it was part. But those 17 things do occur. I've seen grown men that normally are 18 pretty tough litigators with tears in their eyes. If it is 19 a sincere motion, I have never felt obliged, I have never 20 had it raised that it is something sanctionable or 21 improper. I have never had that problem. 22 MR. MOSCOWITZ: I want to make clear that none of 23 us are insinuating that any sanctions at all against 24 Ms. Miller for anything that happened during opening -- 25 THE COURT: Well, it's a mistrial. That is the UNITED STATES vs SABRETECH ET AL - 11-16-99 117 1 most devastating sanction you can impose. 2 MR. MOSCOWITZ: I don't think that this alone, 3 the prejudice that it would cause, rises to that level. 4 Although I felt we need to put it on the record. 5 THE COURT: I don't look, in a very friendly 6 manner, upon what one might call a specious motion. If you 7 are sincere about your motion, I treat all of your motions 8 as being made sincerely until you establish a track record 9 otherwise. Certainly I have treated all of your motions 10 seriously. I assume they were made seriously, and I don't 11 really expect counsel to make motions for mistrial for 12 purposes of putting something on the record. 13 Let's try to refrain from doing that. If you 14 have a serious motion and you believe you should make it 15 for your client, do so with great fortitude, and I will 16 treat it seriously and listen to it seriously. 17 If you think the case ought to be thrown out 18 because of the conduct of the prosecutor, you are going to 19 have to say so. Just bringing me a problem is not 20 something that I am going to be spending any time on. 21 There has got to be a motion. You make it. She makes it. 22 The other side responds. We will look at the transcript 23 tomorrow afternoon. 24 COURTROOM DEPUTY: All rise. 25 (Proceedings were concluded at 5:50 p.m.) 118 1 C E R T I F I C A T E 2 I hereby certify that the foregoing is an accurate 3 transcription of proceedings in the above-entitled matter. 4 5 6 7 8 ______________ _______________________________________ DATE FILED ROBIN CARBONELLO 9 Official Federal Court Reporter Federal Justice Building, Ste. 1127 10 99 Northeast 4th Street Miami, FL 33132 - 305/523-5108 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Quality Assurance by Proximity Linguibase Technologies
enter here |
| HOME | UPDATES | Airworthiness Implemented | Maintenance Program | Aeronautical Bulletin 7E | CHALLENGES TO AIRWORTHINESS | ValuJet Flight 592 - SabreTech Trial Transcript Day 1 | VJ Flight 592 - ST Trial Day 2 - a.m. | VJ Flight 592 - ST Trial Day 2 - p.m. | VJ Flight 592 - ST Trial Day 3 | VJ Flight 592 - ST Trial Day 4 | VJ Flight 592 - ST Trial Day 5 | VJ Flight 592 - ST Trial Day 6 | VJ Flight 592 - ST Trial Day 7 - a.m. | VJ Flight 592 - ST Trial Day 7 - p.m. | VJ Flight 592 - ST Trail Day 8 | VJ Flight 592 - ST Trial Day 9 | VJ Flight 592 - ST Trial Day 10 | VJ Fligth 592 - ST Trial Day 11 | VJ Flight 592 - ST Trial Day 12 | VJ Flight 592 - ST Trial Day 13 - VERDICT |