712

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 7, 2003

)

ARMANDO FERNANDEZ-LARIOS, )

)

Defendant. )

)

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VOLUME 9

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

713

1 I N D E X

3 Direct Cross Red. Rec.

WITNESSES FOR THE PLAINTIFF:

ARMANDO FERNANDEZ LARIOS 720 758

WITNESSES FOR THE DEFENDANT:

EXHIBITS

PLAINTIFF IN EVID.

17 DEFENDANT'S

RICHARD A. KAUFMAN, CMRR

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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: Juror number 6 has indicated he is not

7 feeling well today. He is here. He doesn't think he can stay

8 all day. He is here. Lisa has talked to him and if he starts

9 feeling badly, he will let her know and we will deal with it.

10 I have read over the brief by the plaintiff and the

11 response by the defendant as to the two areas on cross

12 examination. I am prepared to give you my ruling on one and an

13 initial ruling on the second area. I just want to read over my

14 prior orders before I give you a final ruling on the second

15 area.

16 As to the first area, which would be the cross

17 examination concerning the defendant's membership in or

18 connection with DINA, I do find this was excluded under the

19 motion in limine. I do not find any additional nexus based

20 upon the plaintiffs' submission. I do not find it relevant or

21 probative of issues that are pending before this jury.

22 As to the second issue, which is the cross examination

23 of the defendant in regard to his having provided false

24 testimony to the Chilean Supreme Court as evidenced by the Rule

25 11 hearing before Judge Parker in the Letelier case, I just

RICHARD A. KAUFMAN, CMRR

715

1 want to review the orders on the motions in limine, but my

2 initial ruling -- what I think the ruling is going to be, but I

3 do want to check the orders; is that cross examination on his

4 failure to tell the truth before the Chilean Supreme Court,

5 would be an area that would come under Rule 608B. This would

6 be a specific instance of conduct of the witness for the

7 purpose of attacking his credibility, other than a conviction

8 of a crime. 608B provides it may not be proved by extrinsic

9 evidence. However, if it is probative of truthfulness or

10 untruthfulness, the Court in its discretion may grant the

11 party, grant inquiry into an area on cross examination

12 concerning the witness' character for truthfulness or

13 untruthfulness.

14 I do want to review the orders on the motions in

15 limine to be sure it is within the ambit of that order. My

16 recollection is that order precluded the introduction of the

17 subject area of the Letelier assassination or the defendant's

18 involvement in it.

19 The plaintiff, would therefore, be allowed to ask the

20 defendant whether he indeed lied under oath to the Chilean

21 Supreme Court, and that would be the extent of the inquiry.

22 Extrinsic evidence would not be introduced and it is not

23 introduced, it is not introducible under 608B.

24 It would not be introduced as part of the Letelier

25 case, but simply would be referred to as a judicial proceeding

RICHARD A. KAUFMAN, CMRR

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1 or another proceeding, and there would be no further inquiry

2 whatsoever into the subject area as previously ruled on by the

3 Court, concerning the Letelier assassination.

4 I have just looked at the order on the motion in

5 limine and my order covers the subject area. His conviction

6 and his role in assisting with the preparation of the car

7 bombing.

8 This does not directly relate to the subject area of

9 the car bombing of the Letelier assassination, but only relates

10 to a perjury -- the failure to be forthright before the Chilean

11 Supreme Court as to answering questions concerning -- the fact

12 he was untruthful in a judicial proceeding, would be the extent

13 of the cross examination.

14 In support of this ruling, I cite Walder versus United

15 States, 347 U.S. 62, a 1954 decision by the United States

16 Supreme Court. I do not find this is a violation of Rule 403

17 as constructed by the Court in that no mention will be made of

18 the subject area, but only concerning the fact that the

19 defendant was previously not truthful.

20 In addition, I cite United States versus

21 D E L A T O R R E, 639 F.2nd 245, a 1981 decision by the Fifth

22 Circuit in which the Fifth Circuit found, clearly crimes

23 involving dishonesty such as perjury are extremely probative of

24 a witness' credibility and H Y N E S versus C O U G H L I N, 79

25 F.3rd, 285, a 1996 decision by the Second Circuit.

RICHARD A. KAUFMAN, CMRR

717

1 In addition, the committee notes under 608B

2 specifically reference exactly the circumstance here, which is,

3 the principal witness testified and an inquiry into his

4 character for truthfulness.

5 Is my ruling clear to the plaintiff, you may inquire

6 into the fact he was not truthful and no further? You may not

7 mention the subject area and no extrinsic evidence may be

8 introduced. You may only make inquiry whether or not he was

9 truthful in another proceeding.

10 MR. KERRIGAN: I understand, Your Honor.

11 MR. DAVIS: Your Honor, just to take this out a little

12 bit, to look at the import of the Court's ruling.

13 Mr. Fernandez would testify if he were asked the question he

14 was ordered to lie by a superior. That was always his

15 testimony. We have the plea colloquy. That would be his

16 testimony and he also ultimately as you also know from the plea

17 colloquy from the Letelier case, he came forward and corrected

18 that lie, albeit nine years later.

19 THE COURT: You can go into all those matters. He can

20 explain and you can go into all those matters on your

21 questioning of him.

22 MR. DAVIS: Again, I am not trying to open the door on

23 that matter. I am seeking guidance in light of your previous

24 ruling. It puts the defendant in an unfair disadvantage. I

25 understand your ruling but I am trying to gauge what I can do

RICHARD A. KAUFMAN, CMRR

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1 and not do in regard to opening doors which I thought was

2 already shut by Your Honor's pretrial order.

3 THE COURT: This inquiry need not be made as far as

4 the subject area. The subject area of the inquiry by the

5 Chilean Supreme Court, nor does the defendant need to go into

6 the subject area when saying he was ordered by superiors to

7 lie; and that would be the extent of it. They would inquire

8 whether he was truthful in another judicial proceeding, not

9 even mentioning the Chilean Supreme Court; another proceeding,

10 and the rebuttal by the defendant would be that he was ordered.

11 MR. DAVIS: I just want to put it out there before

12 they come in and hear something and we do run afoul of your

13 order or I run afoul of what I think is a favorable order for

14 me. If he were to say I was ordered to lie in another

15 proceeding. Then I would ask him, did you attempt to correct

16 that and he would say, yes, I resigned from the Army and came

17 here trying to correct it.

18 Are you now saying I have opened the door to the

19 entire Letelier proceeding because that is what I am trying to

20 avoid and you are putting him in the unfair position,

21 respectfully, Your Honor, that he asked to defend the statement

22 with one arm tied behind his black.

23 THE COURT: I don't think what you said is violative

24 of the order. They are entitled to bring out he lied, you are

25 entitled to bring out he was ordered to lie and corrected it.

RICHARD A. KAUFMAN, CMRR

719

1 Neither side need go into the subject area surrounding these

2 events which is the scope of my motion in limine.

3 MR. DAVIS: It can be made clear in the questioning

4 this is a proceeding unrelated to anything with regard to the

5 plaintiffs' allegations in this case.

6 THE COURT: The question should be unrelated to this

7 case.

8 MR. KERRIGAN: There is one other matter if you have

9 concluded, Your Honor?

10 THE COURT: Yes.

11 MR. KERRIGAN: In the examination on Friday Your

12 Honor, I counted, and I am happy to read this from the

13 transcript if the Court would care for me to do that, six times

14 in which Mr. Davis made a speaking objection. These were not

15 lightly presented. These were very forceful speaking

16 objections asserting affirmative testimony in the form of an

17 objection.

18 Here is the problem I have with it, Your Honor, I

19 don't know how I should respond. We have not responded in kind

20 because you issued an order we should not do that.

21 THE COURT: I would remind both sides I do not allow

22 speaking objections and I expect the parties to comply with

23 that.

24 There were one or two times you indicated it was a

25 speaking objection which I did not think it was but there was a

RICHARD A. KAUFMAN, CMRR

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1 violation of my ruling by Mr. Davis and I expect both sides to

2 comply with my rulings.

3 MR. DAVIS: Your Honor, it was just a question of

4 Mr. Kerrigan asking for the witness to comment on the testimony

5 of other witnesses is totally outside --

6 THE COURT: I don't find that was a speaking

7 objection. That was one of the times you said he was asking

8 for comment of other testimony and I didn't find that was a

9 speaking objection.

10 Bring in the jury.

11 (Jury present.)

12 THE COURT: You are still under oath, sir.

13 Thereupon --

15 ARMANDO FERNANDEZ LARIOS,

16 called as a witness herein, having been previously duly sworn,

17 was examined and testified further as follows:

18 THE COURT: You may proceed, Mr. Kerrigan.

19 DIRECT EXAMINATION

20 BY MR. KERRIGAN: (Continuing.)

21 Q. Mr. Fernandez, continuing the questioning we were involved

22 with last week. When you traveled to each one of these cities

23 in Chile and arrived at the regiment, did you ever go out on

24 any detail with any members of the helicopter group into the

25 surrounding area outside of the regiment, for any reason?

RICHARD A. KAUFMAN, CMRR

721

1 A. That I remember, no, sir.

2 MR. DAVIS: Your Honor, the interpreter is

3 translating. If he could face the other way.

4 THE COURT: Who is he translating for?

5 MR. DAVIS: The family.

6 BY MR. KERRIGAN:

7 Q. You never sought in any of these regiments to go outside

8 the regiment and establish, for example, a perimeter zone, a

9 protection zone around the regiment?

10 A. As I remember, I never go outside the regiment.

11 THE COURT: I didn't hear you.

12 BY THE WITNESS:

13 A. I never remember going out of the regiments.

14 BY MR. KERRIGAN:

15 Q. And you never made any arrests of people outside the

16 regiment?

17 A. When you say arrest.

18 Q. Did you apprehend people outside of the regiment in

19 connection with your helicopter group?

20 A. No, sir.

21 Q. And you took no prisoners?

22 A. No, sir.

23 Q. And you received no fire, no one fired at you or engaged

24 you in any kind of combat activity?

25 A. No, sir.

RICHARD A. KAUFMAN, CMRR

722

1 Q. And your sole function in going to the regiment was to do

2 what?

3 A. Excuse me.

4 MR. DAVIS: The witness is distracted. I am sure

5 Frank is doing the best he can.

6 THE COURT: Maybe you can move back into that hallway,

7 sir.

8 BY MR. KERRIGAN:

9 Q. What was the purpose of going to the regiments with the

10 helicopter group?