817

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 8, 2003

)

ARMANDO FERNANDEZ-LARIOS, )

)

Defendant. )

)

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

VOLUME 10

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

818

1 I N D E X

3 Direct Cross Red. Rec.

WITNESSES FOR THE PLAINTIFF:

WITNESSES FOR THE DEFENDANT:

EXHIBITS

PLAINTIFF IN EVID.

17 DEFENDANT'S

RICHARD A. KAUFMAN, CMRR

819

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. CUNNINGHAM: We have some cross designations of

8 Mr. Diaz and we have information we would like to present. If

9 we present that Mr. Davis would like to present other

10 statements in front of Judge Guzman. We would have no

11 objection to the limited comments of those substantive

12 statements being read but we have not seen what the excerpts

13 are going to be.

14 THE COURT: Is that a fair representation, Mr. Davis?

15 MR. DAVIS: Yes.

16 THE COURT: Neither side has any objection to the

17 original Guzman statement and you are going to read some

18 statements from a subsequent Guzman statement?

19 MR. DAVIS: Yes, in 1998 he said no and before that he

20 said I did it, I did it, I did it.

21 THE COURT: Then we are ready to proceed?

22 MR. CUNNINGHAM: I believe we are. We would like to

23 see the statements, the actual statements.

24 THE COURT: Do you have the statements for him?

25 MR. DAVIS: Yes.

RICHARD A. KAUFMAN, CMRR

820

1 Do you have a copy, Your Honor?

2 THE COURT: No, I don't.

3 MR. CUNNINGHAM: On the next issue, I believe there

4 are some unresolved objections with respect to two of the

5 letters rogatory Mr. Davis proposes to read next.

6 THE COURT: Okay.

7 To whom do they relate?

8 MR. CUNNINGHAM: They relate to a witness named De La

9 Mahotiere and Mr. Moren Brito.

10 MR. DAVIS: I have decided not to call Mr. Mahotiere.

11 THE COURT: As to Mr. Brito?

12 MR. DAVIS: I will hand up the letter rogatory.

13 MS. HEALY: Your Honor, the plaintiffs object to the

14 reading of 36D in Mr. Brito's letter rogatory.

15 THE COURT: Why were they taken from the garrison?

16 MS. HEALY: 36D, were any prisoners killed before they

17 left the garrison and was Fernandez Larios involved in killing

18 the prisoners.

19 THE COURT: What page?

20 MS. HEALY: C018452.

21 MR. DAVIS: I gave you the wrong pages, Your Honor.

22 THE COURT: Were any prisoners killed before they left

23 the garrison? No.

24 MS. HEALY: Was Fernandez Larios involved in killing

25 these prisoners. The answer is, no, but as to parts A through

RICHARD A. KAUFMAN, CMRR

821

1 C indicates the witness lacked personal knowledge.

2 MR. DAVIS: If they wanted to read and argue he

3 doesn't have personal knowledge they can but the witness gave a

4 direct answer to a direct question and we believe it should go

5 into evidence. The same Rules of Evidence applies, that would

6 be his testimony if he was on the stand and on cross

7 examination they could bring out you don't know this, you don't

8 know that. This was the answer he gave under oath. In the

9 letters rogatory propounded to him.

10 THE COURT: Is there another question that indicates

11 he has no personal knowledge?

12 MS. HEALY: If you look at the answer to E, what did

13 he do? He did not participate. It indicates he lacks personal

14 knowledge whether or not Mr. Fernandez was involved.

15 THE COURT: The objection is overruled. I do not find

16 it is indicative of a lack of knowledge. You can make argument

17 as to that. I am not precluding argument, but it is a direct

18 answer and there is no indication of lack of knowledge.

19 Are we ready?

20 MR. DAVIS: On their cross examination, Your Honor, to

21 Mr. Bravo, page 11 on the letters rogatory, question number 31.

22 MS. HEALY: I believe we actually resolved this. We

23 would terminate the answer after "I cannot confirm."

24 MR. DAVIS: That is fine.

25 The last one, Your Honor, question 83, which is

RICHARD A. KAUFMAN, CMRR

822

1 similar to a ruling you gave yesterday. Page 26, excuse me,

2 question number 83. Again, it would be improper impeachment.

3 He admits he was charged at the preliminary stage and there is

4 no termination. There is no conviction of any sort, therefore

5 I submit it would be improper impeachment under, I think it is

6 Rule 609.

7 THE COURT: What is your response?

8 MS. HEALY: He has not in fact been convicted but it

9 certainly goes to his credibility. Under 607 we believe the

10 statement should come in.

11 THE COURT: 607 being?

12 MS. HEALY: The credibility of witnesses. The fact he

13 has been charged with offenses relating to the same action out

14 of which this case arises is certainly relevant to Mr. Bravo's

15 credibility.

16 THE COURT: What is the probative value of his

17 answers, since I have just been given the letters rogatory?

18 MR. DAVIS: The substantive testimony is, he was on a

19 trip, he didn't see Mr. Fernandez do anything. In fact he

20 actually says he saw Mr. Fernandez on the night in Copiapo.

21 The substance of what he says is similar to what a number of

22 the witnesses said by letters rogatory, they did not see

23 Mr. Fernandez take any actions against anyone and in Copiapo

24 saw Mr. Fernandez in a hotel and that is what he testified to.

25 THE COURT: What is Bravo's involvement?

RICHARD A. KAUFMAN, CMRR

823

1 MR. DAVIS: He was on the helicopter. He was a

2 military officer but in civilian clothes.

3 THE COURT: What does he say is his involvement?

4 MR. DAVIS: He had his own mission. He is not exactly

5 specific. He makes it clear he is not working for General

6 Arellano on that. He has civilian duties throughout that.

7 MS. HEALY: Although --

8 MR. DAVIS: Not civilian, military duties but not

9 under General Arellano.

10 MS. HEALY: In fact he admits to being an intelligence

11 officer and although this evidence has been excluded from the

12 jury's hearing, he was in fact a DINA member and fellow DINA

13 officer with Mr. Fernandez involved in a number of post caravan

14 DINA activities. The fact he has been charged with the same

15 acts for which the defendant is now being sued is relevant to

16 whether or not he might give a false alibi.

17 THE COURT: I will overrule the objection and allow

18 the introduction of this question and answer as it may go to

19 bias the witness has in presenting a specific version of the

20 events which may be to his benefit as he has criminal charges

21 as he states pending in Chile. There may be interest or bias

22 he has. On that basis I will overrule the objection.

23 Anything else?

24 MS. HEALY: I believe that resolves the objections.

25 MR. DAVIS: They asked for what portion of the

RICHARD A. KAUFMAN, CMRR

824

1 substantive statement of Mr. Diaz I would be reading. I have

2 my own highlighted copy I could show them briefly or

3 extensively, just so they know where I am reading. It is

4 basically discussing, I did it, I did it, I did it.

5 THE COURT: Why don't you do that.

6 (Interruption.)

7 MR. DAVIS: We submitted an electronic filing this

8 morning on the jury instructions. I have an extra copy of the

9 submission. We filed it about 8:35, 8:40 this morning.

10 Whatever your pleasure is.

11 THE COURT: That is fine. How does that work with the

12 electronic filing; how does the copy for Judge come up?

13 THE CLERK: We make it downstairs.

14 THE COURT: Where are we in your case?

15 MR. DAVIS: I will be finished this morning. We have

16 a statement Colonel Haag gave in Chile and a few other things

17 and I believe we will be finished 12:30.

18 THE COURT: Is the plaintiff presenting a rebuttal

19 case?

20 MR. CUNNINGHAM: A rebuttal of two questions from

21 General Arellano's letters rogatory.

22 MR. DAVIS: Will we then have a charge conference

23 tomorrow with closing Friday?

24 THE COURT: That is what I anticipate. I have just

25 begun to look at this, the plaintiffs' memorandum. I haven't

RICHARD A. KAUFMAN, CMRR

825

1 looked at yours. I don't know how many contested issues there

2 are in the charge conference but I am hopeful we can get

3 through it in one day. We have one juror conflict for Friday.

4 One of the jurors has a class and she is also unavailable on

5 Tuesday.

6 MR. DAVIS: Would that mean we would start late on

7 Friday or not go?

8 THE COURT: Why don't we take this up at the end of

9 the day before they leave. The one juror next week indicated

10 it is a critical business trip and another juror going on a

11 prepaid vacation Wednesday through Sunday. It looks like we

12 end up losing one person. It is a question of my deciding when

13 we are going to go forward. My preference, probably, is to

14 keep going.

15 MR. CUNNINGHAM: With respect to the additional

16 statements of Mr. Diaz, it is the case there is a January 28,

17 2002 statement in which Captain Diaz expressly repudiates the

18 statement that I want to use, and I have no objection to that

19 being read. However, what Mr. Davis wants to then do is read

20 subsequent statements where Mr. Diaz reiterates and elaborates

21 on the substantive testimony in his letter rogatory and I

22 believe that is cumulative, time wasting and prejudicial.

23 THE COURT: Do I have it?

24 MR. DAVIS: I gave you the statement. I didn't give

25 you what I had marked. This is for Captain Diaz. Essentially

RICHARD A. KAUFMAN, CMRR

826

1 there is one statement --

2 THE COURT: Give me a page. There are fax pages on

3 the top.

4 MR. DAVIS: Fax page 21, for example.

5 THE COURT: I go from 19 to 28 -- here it is, 21.

6 MR. DAVIS: I would read the initial part about the

7 date when he is giving the statement then the first paragraph

8 and from there I would read the fourth and 5th paragraphs where

9 he describes in detail what he did, and that would be following

10 a similar pattern in the subsequent statements, he reaffirms

11 the testimony he gave --

12 THE COURT: Is there additional information? I think

13 I probably need to see all three of the statements.

14 MR. DAVIS: I think you have them all there.

15 THE COURT: You have to flag them for me.

16 MR. DAVIS: The first one is dated January 28, 2002,

17 fax pages 21 and 22.

18 THE COURT: I need to start. Initially where is the

19 testimony concerning this area you are going to read?

20 MR. CUNNINGHAM: Your Honor, I believe the substance

21 of this was in the letters rogatory that were read yesterday.

22 THE COURT: Right, I remember that.

23 Where is the cross designation, then?

24 MR. CUNNINGHAM: The cross designation is not what we

25 are quibbling about at this point.

RICHARD A. KAUFMAN, CMRR

827

1 MR. DAVIS: They have one question which I have no

2 objection to on the cross designation.

3 MR. CUNNINGHAM: I intend to read a prior statement I

4 handed up yesterday where Diaz says I don't remember anything

5 in Copiapo. Mr. Davis now has a number of statements where he

6 wants --

7 THE COURT: He will come back on a redirect.

8 MR. CUNNINGHAM: Right.

9 THE COURT: This is one, fax page 21 which is Court of

10 Appeals Santiago 002989 and 02881 at the top; correct, on

11 October 16, 1973?

12 MR. DAVIS: Yes.

13 THE COURT: I will overrule the objection as

14 cumulative and I will allow the redirect.

15 MR. DAVIS: I will be as brief as possible.

16 THE COURT: Have we parsed through all of that?

17 (Jury present.)

18 THE COURT: Call your next witness.

19 MR. CUNNINGHAM: The plaintiffs are going to do some

20 reading from Captain Diaz' letters rogatory.

21 Question 30 I will start with.

22 The answer is typographically mixed up. Read it as it

23 is.

24 Q. After the prisoners were buried, what happened next?

25 A. Me, personnel under my command. The military personnel

RICHARD A. KAUFMAN, CMRR

828

1 under my command. I do not remember precisely. I witnessed

2 the event. I was the one responsible for the burial of the

3 people. I know that the regiment Commander announced the death

4 of those persons in communique although the announcement states

5 they died while attempting to escape.

6 Q. Who provided the notice to the newspaper?

7 A. I know the regiment commander had the notice published in

8 the newspaper.

9 Q. Question 34. Who determined what information would be

10 placed on the death certificates?

11 A.