568

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 3, 2003

)

ARMANDO FERNANDEZ-LARIOS, )

)

Defendant. )

)

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VOLUME 8

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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569

1 I N D E X

3 Direct Cross Red. Rec.

WITNESSES FOR THE PLAINTIFF:

JUAN CHIMINELLI FULLERTON(depo) 581

6 ARMANDO FERNANDEZ LARIOS 620

WITNESSES FOR THE DEFENDANT:

EXHIBITS

PLAINTIFF IN EVID.

17 DEFENDANT'S

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570

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: First of all, I need someone from the

7 plaintiffs' side to explain to me how this pleading got filed

8 yesterday in the night box and you totally neglected to inform

9 me about it and when it is filed in the night box, that means I

10 didn't get it. It didn't come up to my chambers until 3

11 o'clock in the afternoon. The first I hear there are issues is

12 at 3 o'clock yesterday afternoon.

13 Why would you have not flagged this issue for in the

14 morning saying, Judge, here is a courtesy copy, or, Judge, we

15 filed it downstairs, do you want us to give you a copy, this is

16 coming up? Are you trying to sandbag me? Is this the way you

17 practice law in San Francisco?

18 MR. KERRIGAN: No, Your Honor. We presented it to

19 Mr. Davis in the morning.

20 THE COURT: It doesn't have a certificate of service

21 on it.

22 MR. KERRIGAN: At the time it was filed it had not

23 been served. We gave it to Mr. Davis in the morning. We

24 should have filed a certificate thereafter sometime during the

25 day. We were on the fly going through letters rogatory with

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1 counsel. Mr. Davis had not an opportunity to even read the

2 motion.

3 THE COURT: That is fine. All you have to say this is

4 coming up, Judge.

5 MR. KERRIGAN: We should have done it, Judge. We

6 clearly dropped the ball. There was no intent on our part to

7 do anything that is compromising our professional

8 responsibilities here and we have worked with Mr. Davis from

9 the beginning of the case with that understanding and have

10 never breached that. This was not a breach of that.

11 THE COURT: I am glad to hear that. I was very

12 concerned it was coming up without a certificate of service.

13 Why wouldn't you have let me know sometime during the day to

14 expect this so I could be on the lookout rather than it

15 appearing in my chambers 3 o'clock in the afternoon on issues

16 ostensibly coming up today. I am not prepared to deal with it

17 today.

18 MR. KERRIGAN: We understand that. We are not asking

19 the Court to deal with it today. We anticipated this testimony

20 would last into next week and Mr. Davis would have an

21 opportunity to address it. We can do it in a timely way at the

22 beginning of Court next week. That was our Court, our

23 intentions.

24 THE COURT: All you have to do is flag it for me, say

25 Judge, this is coming up. We filed a memorandum this morning,

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1 do you want a copy now or do you want to wait for copy for

2 Judge. We could discuss it. I will say to Mr. Davis when are

3 you going to respond and it isn't something I am dealing with

4 at 3, 4 o'clock in the afternoon for witnesses appearing the

5 next day. It is not fair to him and not appropriate for the

6 Court to have to deal with it that way.

7 MR. KERRIGAN: We agree 100 percent. On the night box

8 issue, not understanding the local procedure, the proceeding

9 was taken by one of our lawyers to the Court and they said do

10 you want this in the night box and the lawyer said yes. We

11 didn't understand the significance of it.

12 THE COURT: What happens is, the normal process is it

13 goes into the night box. Because of that process it takes a

14 number of hours for it to come into chambers so it ends up

15 slowing down the process for the copy of Judge to come up. It

16 did not arrive in my chambers until 3 o'clock in the afternoon.

17 MR. KERRIGAN: We don't expect the Court to look at it

18 on that basis. If we lose as a result of that, we apologize.

19 THE COURT: Do you intend to file a response?

20 MR. DAVIS: I have not filed a response. I didn't get

21 a chance to look at it until after I spoke to your office. It

22 wasn't until 6 o'clock that I had a chance to read it. I need

23 someone to help me with this back in the office.

24 THE COURT: When are you going to file a response?

25 MR. DAVIS: The end of business on Monday, if that is

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1 okay, Your Honor. I know we will be dark on Monday.

2 THE COURT: That is true.

3 MR. DAVIS: If you want me to file it earlier --

4 THE COURT: If it is not filed by this afternoon,

5 there is no way I will be able to look at it until Tuesday

6 because I am observing my holiday on Monday and that does not

7 include sitting in synagogue and reading pleadings.

8 MR. DAVIS: I understand. They filed it. I have to

9 respond.

10 THE COURT: Let's see how far we get.

11 Would you also make sure that Lisa has your phone

12 numbers. We had a devil of a time getting in touch with any of

13 you yesterday afternoon. In fact some of the offices didn't

14 even have a number for you, they had to call travel agents. If

15 you have hotel numbers and cellphones, we need to have that so

16 my staff isn't spending an hour and a half trying to track you

17 down if there is some issue my chambers needs to speak to you

18 about.

19 MR. KERRIGAN: We will take care of that today, Your

20 Honor.

21 THE COURT: Are we ready to proceed?

22 MR. DAVIS: One issue with respect to the second

23 letter rogatory. Yesterday I expressed to you I wanted to have

24 what I call -- the statement of Mr. Arredondo and last night

25 Francis gave me a translation. I have a copy for the Court.

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1 THE COURT: How do you expect to utilize this, in your

2 case?

3 MR. DAVIS: What I would like to do is read it after

4 the witness testifies much in the sense --

5 THE COURT: On an impeachment basis?

6 MR. DAVIS: Yes.

7 THE COURT: Based upon the representation of the

8 plaintiffs yesterday, you have no objection?

9 MS. HEALY: We have no objection.

10 THE COURT: Are you introducing the letters rogatory,

11 the documents themselves into the record or only relying on the

12 reading of them?

13 MR. CUNNINGHAM: We are relying on the reading.

14 THE COURT: And you are going to do the same with the

15 statement?

16 MR. DAVIS: Yes, Your Honor.

17 MR. CUNNINGHAM: With respect to the reading, is it

18 possible to get a limiting instruction to clarify that is being

19 offered only for impeachment and it is not substantive

20 evidence?

21 THE COURT: What is your position on that?

22 MR. DAVIS: It is clearly being offered as impeachment

23 evidence. It is the witness' version four years prior.

24 THE COURT: Let me propose this. Once you have

25 finished with the designated areas that you are going to

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1 proceed on, is there redirect on the designations or not?

2 MR. DAVIS: There will not be.

3 THE COURT: Then you will go into this particular

4 statement; correct?

5 MR. DAVIS: Yes, Your Honor. They will read theirs.

6 I have cross designations and I would actually like to read the

7 impeachment before I get into the cross designations; my own

8 preference of presentation to the jury then go through the

9 cross designations of this witness.

10 THE COURT: After the letters rogatory are completed,

11 I will instruct the jury as follows. Mr. Davis on behalf of

12 the defendant is now going to read to you a statement given by

13 Sergio Arredondo Gonzalez on August 14, 1998. This statement

14 is offered by the defendant to impeach the witness' credibility

15 under the Rules of Evidence.

16 Any objection?

17 MR. DAVIS: For the record, Your Honor, according to

18 Commentary Rule 613 I have in the Federal Evidence 2004

19 Courtroom Manual, I am reading from the commentary; where prior

20 inconsistent statement is offered for the purpose of

21 impeachment, the jury may only consider the prior statement as

22 substantive evidence where the prior statement is admissible

23 hearsay, and I believe that would be admissible hearsay and I

24 can give you a copy of the book --

25 THE COURT: Is that from the commentary, the advisory

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1 committee notes?

2 MR. DAVIS: Weisenberger On Federal Evidence.

3 THE COURT: That is Mr. Weisenberger's take on it;

4 correct?

5 MR. DAVIS: I don't believe so.

6 THE COURT: Is there case authority?

7 MR. DAVIS: Not with that particular quote. It is

8 referencing the committee notes.

9 THE COURT: On what basis would this statement come in

10 as substantive evidence?

11 MR. DAVIS: Only to the extent it came in as

12 admissible hearsay.

13 THE COURT: How is it admissible hearsay?

14 MR. DAVIS: Perhaps under 807 because it is a sworn

15 statement given at another time, that is what it is, a sworn

16 statement given by the witness in front of the Chilean judicial

17 system, so it would come in under 807.

18 MR. CUNNINGHAM: As a little bit of background. The

19 statement is one of many that was made in the proceedings we

20 heard a little bit about before Judge Guzman in Chile and many

21 of the witnesses have made many statements to Judge Guzman and

22 the decision he may be asking Your Honor to make here may open

23 the door to a great many statements no one has considered

24 putting into evidence in this case.

25 I respectfully submit these statements do not meet the

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1 807 exception and it is also the case neither side has not

2 given the other side notice they intend to rely on that

3 exception.

4 THE COURT: At this juncture you are not offering it

5 as substantive evidence?

6 MR. DAVIS: That is correct.

7 THE COURT: Is there any objection to the proposed

8 instruction by the Court?

9 MR. CUNNINGHAM: I would ask you add the word "only,"

10 "it is only being used to impeach and not being offered as

11 substantive evidence," and I would be amazed if the jury has

12 any idea what we are talking about.

13 THE COURT: What is your position on the proposed

14 amendment?

15 MR. DAVIS: We agree.

16 THE COURT: The instruction will be, Mr. Davis on

17 behalf of the defendant is now going to read to you a statement

18 given by Sergio Arredondo Gonzalez on August 14, 1998. This

19 statement is offered by the defendant only to impeach the

20 witness' credibility under the Rules of Evidence and is not

21 being offered as substantive evidence.

22 MR. CUNNINGHAM: Thank you, Your Honor.

23 THE COURT: Mr. Davis?

24 MR. DAVIS: That is fine, Your Honor, although I am

25 advised there is a correction on the date. It is the 4th of

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1 August.

2 THE COURT: You are correct, it says the 4th.

3 MR. CUNNINGHAM: One other issue?

4 THE COUR