450

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 2, 2003

)

ARMANDO FERNANDEZ-LARIOS, )

)

Defendant. )

)

--------------------------------------x

VOLUME 7

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

RICHARD A. KAUFMAN, CMRR

451

1 I N D E X

3 Direct Cross Red. Rec.

WITNESSES FOR THE PLAINTIFF:

ALDA CABELLO 455 461

6 JORGE ORTIZ AEDO (depo ) 463

ZITA CABELLA BARRUETO 479 501

7 KARIN CABELLO MORIARY 511

letters rogatory 522

9 WITNESSES FOR THE DEFENDANT:

14 EXHIBITS

15 PLAINTIFF IN EVID.

16 Plaintiffs' Exhibit 4.1...................493:17

Plaintiffs' Exhibit 12....................503:10

DEFENDANT'S

Defendant's Exhibit 1.....................503:21

RICHARD A. KAUFMAN, CMRR

452

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: All the jurors are now here. We had one

7 juror that was stuck in traffic.

8 I have begun to look at your proposed jury

9 instructions and I will need memorandums of law from each side

10 basically on three discrete issues, being known, should have

11 known, the aiding and abetting and the conspiracy.

12 I don't want you to focus, Mr. Davis, on rulings I

13 already made. I will not be reconsidering rulings I already

14 made in the motion to dismiss or the motions in limine.

15 As I see it, in review of the proposed jury

16 instructions, those are the major issues of contention as to

17 what standard should be applied, is it actual knowledge or

18 known or should have known. I will need a basis if that is the

19 plaintiffs' position that known or should have known is the

20 standard. I will need the basis and argument arising out of

21 case law that supports that or are analogous to that.

22 I know the status of the law in this area is thin as

23 to American jurisprudence and also thin as to international

24 jurisprudence, so we are charting new territory and I

25 understand that.

RICHARD A. KAUFMAN, CMRR

453

1 I will both need to know the basis for your proposed

2 jury instructions on those issues and the supporting authority

3 for the jury instructions that you propose.

4 MR. DAVIS: When would you want these?

5 THE COURT: After the weekend. Plaintiffs by Monday

6 and defendant by Wednesday or Thursday. First of all, I think

7 it will help you focus what the issues are going to be. I

8 expect we will have to spend a day or two in jury charge

9 conference. That is what I anticipate, so I want you to start

10 to focus on the issues you will be presenting to me, so I think

11 it will be helpful for you and it certainly will be helpful to

12 me to understand what your arguments are, what forms the basis

13 for your arguments and what your authority is, so I can be

14 prepared for the conference.

15 In addition, I have had Lisa start to inquire of the

16 jurors as to what their conflicts are in the next week or so.

17 I have already received one letter from one juror and we are

18 just going to have to take those up and deal with them as they

19 come.

20 Let's begin.

21 MR. DAVIS: One thing I would like to raise. In this

22 morning's session of the Herald there was a headline, something

23 to the effect -- you couldn't help but read the headline even

24 if the jurors tried to avoid --

25 THE COURT: I skimmed it. I didn't see it.

RICHARD A. KAUFMAN, CMRR

454

1 MR. DAVIS: It said something to the effect of links

2 Chilean officer to human rights. The article itself has

3 inaccuracies in it as well, but all that notwithstanding, there

4 is no way if a juror was looking at the newspaper you would

5 have to see the headline. You couldn't avoid it and I would

6 like there to be an instruction to the jury to avert and not

7 consider that, the Herald is not a reliable source of any

8 information --

9 THE COURT: You want me to put that in my instruction

10 to them? I don't think the Herald would appreciate that.

11 What I will do is this. At the first break that we

12 take, I will remind them they are not to read or discuss

13 anything outside the courtroom and they should avoid reading

14 anything touching on this matter, they should not read anything

15 touching on this matter in any way in the newspaper or on the V

16 TV.

17 MR. DAVIS: For what it is worth, it is detailed

18 pretty extensively on line.

19 THE COURT: Okay. I will mention on line as well.

20 (Jury present.)

21 THE COURT: Call your next witness.

22 MR. KERRIGAN: Plaintiff calls Aldo Cabello.

23 Thereupon - -

25 ALDO CABELLO,

RICHARD A. KAUFMAN, CMRR

455

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

2 sworn, testified as follows:

3 DIRECT EXAMINATION

4 BY MR. KERRIGAN:

5 Q. Would you give us your name?

6 A. Aldo Cabello.

7 Q. Where do you reside, Mr. Cabello?

8 A. Piedmont, California.

9 Q. Were you related to the deceased, Winston Cabello?

10 A. Yes. He was my brother.

11 Q. Could you tell us, just in general terms, the structure of

12 your family in terms of the brothers and sisters of Winston and

13 your mom and dad, give us a picture of the family prior to

14 Winston's death?

15 A. At the time, probably my parents were married already 30

16 years or 32. My older brother, he is three years older than

17 me. Winston was 11 months younger than me. Zita one of my

18 sisters, is probably two years younger than me and K A R I N

19 was the baby of the family. I was married at the time. At the

20 time I had just one daughter, Lorena, and Winston was married,

21 he had two daughters, Susan and Marcela.

22 Q. What was Winston's wife name?

23 A. Veronica.

24 Q. Is Veronica still living today?

25 A. Yes, she is.

RICHARD A. KAUFMAN, CMRR

456

1 Q. And his daughters?

2 A. Both of them.

3 Q. And your brother, Manuel --

4 A. Manuel is married and he doesn't have any children.

5 Q. Going back to 1973, can you tell us where you were in Chile

6 at the time and what you were doing?

7 A. 1973, I was working at the University of Chile at the

8 school of engineering, teaching.

9 Q. Would you say that again?

10 A. I was a teacher at the school of engineering.

11 Q. What was your background, what were you trained to do prior

12 to becoming a teacher?

13 A. I was a civil engineer.

14 Q. When did you first learn of the events that we have been

15 talking about here that occurred in Chile in October of 1973,

16 particularly the death of your brother; when did you first

17 learn of it?

18 A. That was probably about 10 o'clock on the 17th of October,

19 1973.

20 Q. When did you go to Copiapo?

21 A. The next day.

22 Q. How far away were you from Copiapo from where you were

23 living in Chile?

24 A. About 600 miles.

25 Q. Tell us what you did after you learned about your brother's

RICHARD A. KAUFMAN, CMRR

457

1 death in terms of going to Copiapo or your family going to

2 Copiapo?

3 A. The next day, I drove or began driving from Santiago to

4 Copiapo and I was able to drive probably about 300 miles only,

5 because I began at 3 o'clock in the afternoon and there was a

6 curfew. Around nine or ten o'clock. We couldn't drive. I

7 stop at a small town, I think La Serena. I slept there and I

8 began the trip the next day. I arrived at Copiapo probably

9 about 1 o'clock in the afternoon the next day.

10 Q. Had your wife gone to Copiapo prior to the time you were

11 there?

12 A. She was in Copiapo at the time of my brother's death.

13 Q. Did you have occasion when you arrived in Copiapo to talk

14 with Veronica, Winston's wife?

15 A. Yes.

16 Q. Can you tell us, just briefly, understanding she would be

17 upset, of course, but what was her mental state, her emotional

18 state upon your arriving in Copiapo?

19 A. She was still in disbelief. She was never shown the body.

20 It was so unusual, so crazy there, my brother had been killed.

21 Nobody believed it. It was like a dream.

22 Q. What was Winston's occupation or profession?

23 A. He was an economic engineer. He graduated from the school

24 of economics at the University of Chile.

25 Q. Do you recall when he graduated?

RICHARD A. KAUFMAN, CMRR

458

1 A. Probably 1968 -- 1969.

2 Q. Who was the President of Chile in 1969?

3 A. Eduardo Frei, a Christian democrat I can --

4 Q. President Frei?

5 A. Yes.

6 Q. Did Winston go to work for President Frei's government as a

7 government worker?

8 A. Yes.

9 Q. Had Winston been involved or done any other professional

10 kind of work prior to the time he became an economist and went

11 to work for the government?

12 A. Yes. He was trained before to become an economic engineer,

13 he was a teacher.

14 Q. What did he teach?

15 A. Small children from like K-1 to sixth grade.

16 Q. Going back, you are in Copiapo. Do you know the date that

17 you arrived? It would be after the 17th?

18 A. It was probably the 19th.

19 Q. Did you happen to see or talk with other families of people

20 who have been killed in this incident at Copiapo?

21 A. Many of them, yes.

22 Q. Was there an official government publication that appeared

23 in the local newspaper explaining the deaths and how these

24 deaths had occurred?

25 MR. DAVIS: Objection, leading.

RICHARD A. KAUFMAN, CMRR

459

1 THE COURT: Sustained.

2 Rephrase your question.

3 BY MR. KERRIGAN:

4 Q. What explanation did you receive that would have explained

5 how Winston was killed?

6 MR. DAVIS: Objection. Calls for hearsay, Your Honor.

7 THE COURT: Sustained.

8 Rephrase your question.

9 BY MR. KERRIGAN:

10 Q. What is a bando?

11 A. It is a military order, or news. Sometimes it was written

12 on paper, the newspaper or given through the radio.

13 Q. Was there a bando issued that related to the killings in

14 Copiapo where Winston was killed?

15 A. Yes.

16 Q. What was that bando?

17 MR. DAVIS: It is still asking for hearsay.

18 THE COURT: Overruled.

19 BY MR. KERRIGAN:

20 Q. What was that bando, what did it say?

21 A. It was printed the day before I arrived on the 18th of

22 October. It said 13 prisoners were transferred from Copiapo to

23 La Serena and while being transported, the truck that was

24 taking them had a mechanical problem on the outside of Copiapo,

25 then the prisoners tried to escape and they were all shot

RICHARD A. KAUFMAN, CMRR

460

1 because they didn't stop, they keep running. That was the

2 explanation.

3 Q. Was there ever any other bando that was released that

4 corrected that and stated something different than what you

5 have just told us?

6 A. Not that I know of.

7 Q. Are your parents both alive today?