401

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

MIAMI DIVISION

ESTATE OF WINSTON CABELLO, ET AL., ) Docket No.

) 99-0528-CV-LENARD

Plaintiffs, )

) Miami, Fl. 33128

v. ) October 1, 2003

)

ARMANDO FERNANDEZ-LARIOS, )

)

Defendant. )

)

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VOLUME 6

TRANSCRIPT OF TRIAL

BEFORE THE HONORABLE JOAN A. LENARD

and a jury

APPEARANCES:

For the Plaintiffs: LEO P. CUNNINGHAM, ESQ.

NICOLE M. HEALY, ESQ,

JENNY L. DIXON, ESQ.

ROBERT KERRIGAN, ESQ.

For the Defendant: STEVEN W. DAVIS, ESQ.

Court Reporter: Richard A. Kaufman, CMRR

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1 I N D E X

3 Direct Cross Red.

WITNESSES FOR THE PLAINTIFF:

ENRIQUE ALFONSO VIDAL ALLER 404

6 PATRICIO FRANCISCO LAPOSTOL AMO 434

WITNESSES FOR THE DEFENDANT:

EXHIBITS

PLAINTIFF IN EVID.

Plaintiffs' Exhibit 13.................... 431:19

17 DEFENDANT'S

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1 (Open court. Jury not present.)

2 THE COURT: Estate of Winston Cabello, et al. vs.

3 Armando Fernandez-Larios, Case Number 99-0528.

4 Would counsel state their appearances.

5 (All parties present.)

6 THE COURT: Are we ready to proceed?

7 MR. DAVIS: I have a scheduling issue. On Friday

8 morning I have a 9 o'clock mandatory pretrial on a case pending

9 in Vero Beach. I was trying to attend by phone. It is before

10 Judge Hawley in state court. I only ask that I either could

11 use the telephone here --

12 THE COURT: How long is the pretrial going to be?

13 MR. DAVIS: I don't know. A half hour to 45 minutes.

14 THE COURT: Maybe we can call him and he can reset it?

15 MR. DAVIS: I have that request in to do that.

16 THE COURT: Give the number to Lisa. Maybe he could

17 change it to the afternoon or after we finish here.

18 MR. DAVIS: Okay.

19 MR. KERRIGAN: Yesterday we stayed after Court and

20 figured out what happened with this feedback problem. It

21 wasn't our fault. Inherent in the equipment --

22 THE COURT: Robert should be here today.

23 MR. KERRIGAN: We got it all straightened out.

24 Would you consider telling the jury these equipment

25 problems are problems with the equipment that have been

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404

1 corrected or something. I don't want it to appear we don't

2 know how to run the tape.

3 THE COURT: I will mention it to them.

4 Robert should be here in any event. This has been an

5 endemic problem.

6 MR. DAVIS: For the record, Mr. Kerrigan does not know

7 how to run a tape.

8 THE COURT: Anyway, here is Robert. The man of the

9 hour.

10 THE COURT: Ladies and gentlemen, as you noticed

11 yesterday we were having some problems with the evidence

12 presentation system. Unfortunately this has been a problem we

13 have had since the installation of the system. I am sure I

14 know I have your patience in dealing with it. We do have court

15 personnel here today during trial to make sure everything runs

16 smoothly.

17 You may proceed.

18 MS. HEALY: The plaintiffs are calling Enrique Vidal

19 Aller. It is another videotape deposition. It will run about

20 an hour and fifteen minutes.

21 (Videotape played.)

22 Thereupon - -

24 ENRIQUE ALFONSO VIDAL ALLER,

25 called as a witness by the Plaintiffs, having been first duly

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1 sworn, testified as follows:

2 By Mr. Kerrigan.

3 Q. Would you please state your complete name for our records?

4 A. Enrique Alfonso Vidal Aller.

5 Q. What is your current occupation or profession?

6 A. I work in mining, in Atacama, Copiapo.

7 Q. Were you in the Chilean Army in 1973?

8 A. Correct.

9 Q. The questions I am now going to ask you will deal with this

10 time period of September and October, 1973.

11 What was your rank and responsibilities in the Chilean

12 Army in September of 1973?

13 A. I was a lieutenant, no, not lieutenant, I had two stars.

14 Lieutenant.

15 Q. You were a lieutenant. And what was your responsibility in

16 the Army? Where were you working in September of 1973?

17 A. I was assigned to the engineering regiment number one,

18 whose headquarters was in Copiapo. At that time I was the

19 assistant to the regiment.

20 Q. Who was the Commander of the regiment?

21 A. It was Colonel Oscar Haag B A S C H K E.

22 Q. Could you give us an idea of what you did as the assistant

23 to Oscar Haag? What were your job responsibilities?

24 A. Basically, my job was to coordinate activities between the

25 commander and the rest of the officers in the regiment.

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1 Q. Did you have that responsibility in October of 1973?

2 A. Yes. I was assistant to the commander and I was in charge

3 of the guards in the regiment.

4 Q. Do you recall the events in October 1973 when General

5 Arellano and other men arrived at Copiapo?

6 A. Yes, correct, I do.

7 Q. Would you tell us what you recall about the arrival of

8 General Arellano and the men that were with him?

9 A. It was the 16th of October. Since it was summer, the sun

10 is out until late. It must have been between 6 o'clock and 7

11 o'clock in the evening.

12 Q. Did you see the helicopter land?

13 A. Yes.

14 Q. Was anybody else standing with you when the helicopter

15 landed?

16 A. Well, as I was the assistant to the commander and I didn't

17 know why the helicopter was coming, I was there to receive it.

18 Q. Would you tell us what you saw after the helicopter landed?

19 Who got out of the helicopter?

20 A. The first one to come out of the helicopter was Lieutenant

21 Armando Fernandez Larios, accompanied by a second lieutenant

22 called Hugo Julio and then after that, General Arellano came

23 out of the helicopter.

24 Q. Did anybody else come out of the helicopter?

25 A. There were three or four other officers of higher rank and

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1 Arellano asked me where is the commander of the regiment. I

2 immediately said, yes, I will go fetch him, because I saw it

3 was a general who had come out of that helicopter.

4 Q. Did you know Armando Fernandez Larios before this time when

5 the helicopter landed?

6 A. Yes.

7 Q. How did you know him?

8 A. Because we both entered the military academy the same day.

9 Q. Did Fernandez Larios say anything to you when he came out

10 of the helicopter?

11 A. Yes, we greeted each other. I don't recall the exact words

12 he said.

13 Q. What conversation did you have with him or did you ask him

14 what his purpose was being there?

15 A. Yes. At that time I went to fetch the commander of the

16 regiment because Arellano asked me to bring him over. At the

17 moment when Haag approached Arellano, then I took Armando

18 Fernandez Larios aside and I asked him the question.

19 Q. What did he say?

20 A. What did I speak to him? Oh, he asked me how many

21 prisoners were there here in the garrison in Copiapo, yes?

22 Q. No. Who asked you the question how many prisoners are

23 there in Copiapo, who was that person?

24 A. Armando Fernandez Larios asked me personally.

25 Q. What did you say to him?

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1 A. I told him that there were many, but the exact number of

2 prisoners, that information was in the hands of the military

3 prosecutor, Carlos Brito. Because there were some prisoners

4 held in the regiment and others were in the public jail, and I

5 didn't have that information.

6 Q. How were these men dressed, General Arellano and Fernandez

7 Larios and the other men that got out of the helicopter?

8 A. All in green clothes, war, for wartime.

9 Q. Did they have arms?

10 A. Yes.

11 Q. What else, what other kinds of weapons did they have or

12 what were the kinds of weapons that they had?

13 A. Pistols, a submachine gun and then Arellano told the

14 commander of the regiment off because the commander was wearing

15 the gray uniform that is used for days off for the military.

16 He told him, "in this country we are in a state of war and here

17 you are with clothes that we use when we are off duty."

18 Q. Were the other people, the other officers at Copiapo, the

19 Army officers, were they also dressed in combat uniform or were

20 they dressed in non-combat uniforms?

21 A. They were all in combat fatigues.

22 Q. Did the Army officers that were at Copiapo before General

23 Arellano came, were they dressed in the same kind of clothes as

24 those men that came with General Arellano?

25 A. Yes.

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1 Q. You had this conversation with Fernandez Larios. Did you

2 observe him do anything else in the area where the helicopter

3 landed? Did you observe him engage in any other conduct there?

4 A. What I really noticed was, he seemed very nervous. He was

5 like looking for prisoners.

6 Q. Did you have occasion to see him interrogate anybody?

7 A. Directly him, no.

8 Q. What did you do after the helicopter landed, you are

9 talking to Fernandez Larios; what happened next?

10 A. He went in company of the military prosecutor, the officers

11 and the task force to see the men under arrest.

12 Q. Did you go with them?

13 A. No.

14 Q. When did you next see Fernandez Larios?

15 A. When he came back with the prisoners, and in his hand I

16 paid special attention to the fact that in his hand was a kind

17 of chain with a ball at the end of it and a spike.

18 Q. In whose hands?

19 A. In the hands of Lieutenant Fernandez.

20 Q. So we are sure of names, this is Fernandez Larios?

21 A. Yes, correct.

22 Q. Describe this thing that he had in his hands for us?

23 A. It was a chain with a wooden handle to hold on to it with a

24 steel ball with spikes.

25 Q. Is this something that you had seen before that he had with

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1 him, or is this something you had not seen before?

2 A. No, never, and neither is it an object used by the Army.

3 Q. At the moment you were having this conversation with

4 Mr. Brito, had some of the prisoners been interrogated before

5 this time?

6 A. Yes, it was late.

7 Q. Who was with Fernandez Larios when you saw him with this

8 instrument that you described, this device you described; who

9 was present with him?

10 A. He was with the officers who belonged to the task force who

11 came with General Arellano.

12 Q. Did you see prisoners with them at that time?

13 A. No, no. They were coming back after having been with the

14 prisoners and I was at the Commander's headquarters.

15 Q. About what time was that?

16 A. It must have been between 10:30 p.m. and 11 o'clock p.m.,

17 about between 10:30 p.m. and 11 p.m. in the evening.

18 Q. What were you doing from the time the helicopter arrived

19 until you saw them at 10:30 or 11?

20 A. I was preparing the orders to be issued for the next day,

21 the orders to be issued to the men in the garrison.

22 Q. Had you worked late in the evening on previous days?

23 A. Yes, because the commander of the regiment was also the

24 region's intendant, so we had to work both in the regiment and

25 at the intendancy.

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1 Q. What did you next observe after you saw General Arellano's

2 men together and you had this conversation with Mr. Brito?

3 What happened next?

4 A. What Brito said to me?

5 Q. What was the condition of Fernandez Larios when you saw him

6 at about 10:30 in the evening, did he appear to be in a normal

7 condition?

8 A. No.

9 Q. What was his condition?

10 A. He seemed to be on a kind of high. He was kind of nervous.

11 No, he wasn't normal, let's say.

12 Q. What was the condition of the other men that were with

13 Fernandez Larios?

14 A. They were calm. There was a vast difference between him

15 and the other officers.

16 Q. Could you describe with more detail Fernandez Larios than

17 you have given us now? Could you tell us in greater detail

18 what you observed?

19 A. I saw him very kind of upset and very nervous. Something

20 had upset him.

21 Q. Where did you see this? Was it in a courtyard, or where

22 exactly did you see General Arellano's men and Fernandez

23 Larios?

24 A. Yes, in the Court beyond a reasonable doubt by the -- or in

25 front of the Commander's headquarters.

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1 Q. How long did you --

2 A. Because the prisoners were held about 200 meters from the

3 Commander's headquarters, in the mechanics workshops.

4 Q. Where did Fernandez Larios and the men that were with him

5 go after you saw them out there?

6 A. I can't really remember where they went.

7 Q. Did you see them again that evening?

8 A. Yes, in the officer's club, the dinner we had.

9 Q. What time was the dinner?

10 A. About 12. 12 midnight, zero hours.

11 Q. What did you observe Fernandez doing at the dinner, if you

12 recall?