907

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 9, 2003

)

ARMANDO FERNANDEZ-LARIOS, )

)

Defendant. )

)

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VOLUME 11

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

908

1 I N D E X

3 Direct Cross Red. Rec.

WITNESSES FOR THE PLAINTIFF:

CHARGE CONFERENCE

WITNESSES FOR THE DEFENDANT:

EXHIBITS

PLAINTIFF IN EVID.

17 DEFENDANT'S

RICHARD A. KAUFMAN, CMRR

909

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: In regard to the Rule 50 motions made

7 yesterday, beginning with the defendant's motion for a directed

8 verdict, that motion is denied for the following reasons.

9 As to the statute of limitations portion of that

10 motion, in my prior order of June 5, 2002, which is Cabello

11 versus Larios, 205 F. Supp. 2nd. 1325, I found that the ten

12 year limitation period did not begin to accrue until 1990.

13 This action was filed in I believe February of 1999. So it was

14 within the ten-year period.

15 As far as the evidence that was adduced at trial

16 regarding the limitation period beginning in 1990, there was

17 testimony by Dr. Miranda that the excavation of the remains

18 began in July of 1990, and in fact, the autopsy report that has

19 been introduced into evidence of Winston Cabello was actually

20 dated January 1991.

21 Based upon my prior rulings and the authority cited by

22 the Court in both the orders issued by the Court, in addition

23 to the June 5 order, would be the August 10, 2001 order of

24 Cabello versus Fernandez Larios -- the Court finds there is

25 sufficient evidence in the record upon the excavation of the

RICHARD A. KAUFMAN, CMRR

910

1 remains and the findings of the autopsy report that this action

2 was filed within the ten year period that began to accrue, did

3 not begin to accrue until 1990. Therefore, on that basis the

4 Rule 50 motion is denied.

5 MS. HEALY: That would be Plaintiffs' Exhibit 23, Your

6 Honor.

7 THE COURT: Thank you.

8 In regard to the remaining bases for the defendant's

9 motion, the Court finds when considering the evidence in a

10 light most favorable to the plaintiff, which would be the

11 standard employed for the Rule 50 motion at the close of the

12 plaintiffs' case, the Court finds a reasonable jury could find

13 the defendant liable for the claims as alleged in the

14 complaint. This is based upon the testimony at trial including

15 those persons specifically Enrique Vidal, who saw the defendant

16 with a corvo, the findings of Dr. Miranda of the manner in

17 which Winston Cabello, the injuries that Winston Cabello may

18 have suffered, the fact there was no gun powder found on his

19 clothing; the testimony as to how a corvo could be used by

20 Patricio Lapostol, and the description by Victor Bravo

21 describing the manner in which Winston Cabello had been killed.

22 In addition, there was testimony by other witnesses

23 presented by the plaintiffs of the involvement of the defendant

24 in violent activities, both before and after the violent

25 activities that occurred at Copiapo.

RICHARD A. KAUFMAN, CMRR

911

1 The admissions by the defendant that he was present

2 and the evidence that he was part of the collection of persons

3 that traveled throughout the North and South of Chile in what

4 has been termed the Caravan of Death. The testimony of Colonel

5 Arredondo, that in La Serena and Antofagasta and Calama, the

6 killings were committed by local people with directions from

7 the death squad, including Mr. Fernandez, the manner in which

8 the 13 persons in Copiapo were taken out of the jail and the

9 involvement of the defendant as testified by Juan Morales that

10 the involvement of the defendant in the process of

11 interrogating and selecting the prisoners were eventually put

12 on the truck and subsequently killed.

13 In addition, there is testimony from Ruben Herrera,

14 who testified directly about the involvement of the defendant

15 in violent acts against him and the testimony of Jaime Sierra,

16 in addition, as to the involvement of the defendant in violent

17 acts against his person.

18 While there is no direct testimony -- and the

19 defendant is correct -- there is no direct testimony as to the

20 direct involvement of the defendant in the killing of Winston

21 Cabello at Copiapo; based upon the circumstantial evidence of

22 his involvement both before and after Copiapo, his involvement

23 in totality in the Caravan of Death, his involvement in the

24 choosing of the prisoners at Copiapo who were interrogated and

25 subsequently placed into the truck and killed, I find there is

RICHARD A. KAUFMAN, CMRR

912

1 sufficient circumstantial evidence upon which a reasonable jury

2 could find the defendant liable for the claims as alleged in

3 the complaint.

4 I will also deny the plaintiffs' Rule 50 motion made

5 at the end of the defendant's case. The defendant has

6 presented sufficient evidence in the presentation of his case

7 upon which a reasonable jury could find that the defendant had

8 no involvement in the killing of Winston Cabello and,

9 therefore, would not be responsible for the causes of action

10 alleged in the complaint.

11 The defendant presented evidence from many of the

12 military officers from Chile who were the persons who admitted

13 to being involved in the Caravan of Death and the killings at

14 Copiapo, and while there is some credibility decisions to be

15 made by the jury on both sides as to whether or not the

16 defendant was involved, there is evidence in the record to show

17 that the defendant was not involved in the killings, that he

18 was the lowest ranking officer, that he was not present at the

19 area at the time that the killings took place, therefore, I am

20 going to deny the plaintiffs' Rule 50 motion.

21 Obviously, this is a case of credibility

22 determinations of decisions that the fact finder is going to

23 have to make, which facts and which testimony and which

24 evidence to accept or reject, and it is rightfully placed

25 before this jury upon the conclusion of closing arguments and

RICHARD A. KAUFMAN, CMRR

913

1 instructions on the law.

2 In this ruling, I also find that the defendant's

3 argument that there is a different standard for military

4 orders, for a person who indicates they are following orders as

5 the defendant indicated he is following orders; the case cited

6 by the plaintiffs, U.S. versus Kinder at 14 CMR, 742, a 1954

7 decision from the U.S. Air Force Board of Review, sets out the

8 standard that I find applies here. In that case they dealt

9 with the defense of justification or following orders and at

10 page 770, the Air Force Board of Review quoted from the Manual

11 for Courts Martial, U.S. 1951; pertinent to the defense of

12 justification for a homicide, and that quotation in part is as

13 follows. A homicide committed in the proper performance of a

14 legal duty is justifiable. The general rule is that the acts

15 of a subordinate done in good faith and in compliance with his

16 supposed duty or orders are justifiable. This justification

17 does not exist, however, when those acts are manifestly beyond

18 the scope of his authority, or the order is such that a man of

19 ordinary sense and understanding would know it to be illegal,

20 and the military Court goes on to apply the reasonable person

21 standard. A person of ordinary sense and understanding knowing

22 the order to be illegal, that that order cannot then be used as

23 a cloak of immunity to render justifiable an act but for such

24 order would be unlawful.

25 That is page 773.

RICHARD A. KAUFMAN, CMRR

914

1 MR. DAVIS: Your Honor, I don't know if you are still

2 pronouncing the rulings so I will sit down if you tell me.

3 There are things I want to point out to the Court.

4 THE COURT: I am not finished yet.

5 Where the acts ordered are manifestly behind the scope

6 of the specific officer's authority and the order is so

7 palpably unlawful as to admit of no reasonable doubt on the

8 part of a man of ordinary sense and understanding; that would

9 not justify a homicide resulting from such an order.

10 While the defendant claims he was following orders, it

11 then becomes a determination for the jury to make as to whether

12 or not this was an order such that a man of ordinary sense and

13 understanding would know it to be illegal or improper. Here

14 the evidence in the record supports the fact these were unarmed

15 civilians, this was not an act of combat, and that the

16 decedent, Winston Cabello, as well as the other persons at

17 Copiapo and other places along the Caravan of Death, were taken

18 from their areas of confinement without due process of law and

19 killed.

20 On that basis, the Rule 50 motion is also denied.

21 Yes, Mr. Davis.

22 MR. DAVIS: The Kinder case was cited for the first

23 time yesterday afternoon and I didn't have a chance to read it

24 until last night and I didn't have a chance to address it to

25 the Court.

RICHARD A. KAUFMAN, CMRR

915

1 Kinder cites a case, they talk about U.S. versus

2 Saglietto, 41 F. Supp. 21, which I would like to at least hand

3 up to the Court. I brought a highlighted copy of it.

4 THE COURT: You may.

5 MR. DAVIS: The two things that are difficult to deal

6 with respect to plaintiffs' position, Armando Fernandez does

7 not assert a justification defense in this proceeding. It has

8 never been part of this. This is not what this case is about.

9 Mr. Fernandez' position, as stated, and I think it is

10 uncontested in this record now that we have a complete factual

11 record of what the plaintiffs' claim is, has never been given

12 an illegal order in reference to anything at Copiapo. There is

13 no testimony anywhere in this record that Armando Fernandez was

14 given an order to do anything to Winston Cabello or any of the

15 other prisoners at Copiapo.

16 There is no testimony that Mr. Fernandez did anything

17 to any of the prisoners at Copiapo.

18 Mr. Fernandez, if you will, was given a lawful order

19 from his superiors to report to a helicopter, which he did. He

20 was on that helicopter from place to place --

21 THE COURT: My finding is there is sufficient

22 circumstantial evidence that raises an inference that he was

23 involved, that a reasonable jury could find based upon the

24 testimony of his involvement before and after Copiapo, the fact

25 he was on the helicopter as it traveled throughout Chile; that

RICHARD A. KAUFMAN, CMRR

916

1 he was chosen for this assignment. That there was testimony

2 that he was involved in violent acts involving other persons,

3 that he was seen possessing a corvo and another type of weapon

4 in Copiapo; that all of those facts are sufficient to raise an

5 inference and be supportive of circumstantial evidence that he

6 indeed was involved in the killings at Copiapo, including the

7 killing of Winston Cabello; and on that basis I have denied the

8 motion.

9 If you want to bring up this case when we discuss

10 conspiracy in the jury charge, that would be the appropriate

11 time to do so.

12 MR. DAVIS: I am not trying to quarrel with your

13 rulings --

14 THE COURT: Then don't.

15 MR. DAVIS: I am not. I am just trying to make a

16 record.

17 THE COURT: You have made your record. Now it is time

18 to sit down and go on to the jury charge.

19 I haven't really read this case, but skimming it there

20 are some issues and I have thought about some issues concerning

21 the conspiracy instruction and I think it would be best to

22 consider this particular case and your argument at that time.

23 We are going to move on now.

24 In my experience the best way to proceed is to begin

25 with one pack of the instructions, and we will begin with the

RICHARD A. KAUFMAN, CMRR

917

1 plaintiffs and just to go through them. Then we can take up

2 the issues and make sure we cover all the instructions.

3 First we have plaintiffs proposed jury instruction 1,

4 consideration of the evidence, duties to follow instructions,

5 no corporate party involved, the pattern jury instruction 2.1.

6 Any objection?

7 MR. DAVIS: No objection, Your Honor.

8 THE COURT: Credibility of witnesses, plaintiffs

9 proposed jury instruction 2, pattern jury instruction number 3.

10 Any objection?

11 MR. DAVIS: No objection. First, I have italicized