1

1 UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

2 MIAMI DIVISION

3 CASE NO. 99-0528-CIV-LENARD/SIMONTON

4 _________________________________

5 ESTATE OF WINSTON CABELLO, | MIAMI, FLORIDA

et al., |

6 |

Plaintiffs, | OCTOBER 10, 2003

7 |

v. |

8 |

ARMANDO FERNANDEZ-LARIOS, |

9 |

Defendant. |

10 _________________________________x

TRANSCRIPT OF JURY TRIAL PROCEEDINGS

12 BEFORE THE HONORABLE JOAN A. LENARD,

UNITED STATES DISTRICT JUDGE

14 APPEARANCES:

15 FOR THE PLAINTIFFS: LEO P. CUNNINGHAM, ESQ.

ROBERT KERRIGAN, ESQ.

16 NICOLE M. HEALY, ESQ.

Wilson Sonsini Goodrich Rosati

17 650 Page Mill Road

Palo Alto, CA 094304 - 650/493-9300

FOR THE DEFENDANT: STEVEN W. DAVIS, ESQ.

19 Boies Schiller Flexner

100 S.E. Second Street, Suite 2800

20 Miami, FL 33131 - 305/539-1307

21 REPORTED BY: LARRY HERR, RPR-CM-FCRR-AE

Official Federal Court Reporter

22 301 North Miami Avenue, Room 340

Miami, FL 33128 - 305/523-5598

1 TABLE OF CONTENTS

2 Page

3 Reporter's Certificate ................................. 131

4 SIDEBAR CONFERENCE TABLE

5 Descriptions Page Line

6 Side-bar Conference Begins ..................... 95 1

7 Proceedings In Open Court Resume ............... 96 1

8 Side-bar Conference Begins .................... 126 1

9 Proceedings In Open Court Resume .............. 128 1

1 THE CLERK: Estate of Winston Cabello, et al.,

2 vs. Armando Fernandez-Larios, Case No. 99-528.

3 Good morning once again.

4 Counsel, state your appearances, please, for the

5 record.

6 MR. CUNNINGHAM: Leo Cunningham, Bob Kerrigan and

7 Nicole Healy for the plaintiffs. Good morning, Your Honor.

8 MR. DAVIS: Good morning, Your Honor. Steve

9 Davis on behalf of Armando Fernandez, defendant.

10 THE COURT: Good morning.

11 First of all, the verdict form that I received in

12 chambers yesterday afternoon is the stipulated verdict form

13 between the parties; is that correct?

14 MR. DAVIS: Yes, Your Honor. I guess the

15 question would be, and I raised this yesterday, we have

16 multiple damage counts there, and so that would be the

17 only -- that issue, but --

18 THE COURT: So is it the stipulated form or is it

19 not the stipulated form?

20 MR. DAVIS: I would like there to be one damage

21 for the Estate on Count 2, and then one for the remaining

22 plaintiffs at the end of the verdict form. I brought the

23 disks with me, Your Honor.

24 THE COURT: That's what I have.

25 Oh, that's on punitives.

1 MR. DAVIS: That was the only thing, Your Honor,

2 in looking at the verdict form. I mean, I proposed it, the

3 one that you have in front of you.

4 Upon reflection, I think it is better if we just

5 have just one damage.

6 THE COURT: I thought the parties were going to

7 discuss that yesterday.

8 MR. DAVIS: We did discuss it, Your Honor.

9 MR. KERRIGAN: I thought we agreed. I'm not sure

10 what the disagreement is exactly.

11 THE COURT: What I have in front of me has

12 Question 1, just a liability question. Question 2: What

13 is the total amount of compensatory damages to the Estate?

14 That's A. Total amount of compensatory damages to the

15 individual plaintiffs, that's B. Then the torture claim.

16 The total amount of compensatory damages.

17 MR. DAVIS: Your Honor, the only issue I have is

18 they would be entitled to one damage award. The Estate

19 would be entitled to a damage award. The other plaintiffs

20 would be entitled to a damage award. I don't want there to

21 be a situation where there would be one, plus two, plus

22 three, plus four, plus five. That's all.

23 THE COURT: But this is the verdict form you

24 proposed?

25 MR. DAVIS: That's the only verdict form I

1 submitted.

2 THE COURT: This verdict form that was submitted,

3 does the plaintiff have any disagreement with this verdict

4 form?

5 MR. KERRIGAN: No.

6 THE COURT: You can argue, Mr. Davis, when you go

7 over the verdict form, you can indicate to them, explain to

8 them in your argument how it is separated and how they may

9 want to consider in totality if, in fact, they are going to

10 be granting damages, how much they are going to be giving

11 in totality. I don't have a problem with that.

12 As to the jury instructions, you've now received

13 -- at least, I have two packets. Are they both the same?

14 There was an original package that was given to

15 me by Lisa. There were some changes made, including

16 because we are numbering. You should have gotten a second

17 packet. Did both sides get a second packet from her this

18 morning?

19 MR. DAVIS: Yes, Your Honor.

20 MR. KERRIGAN: Yes, Your Honor.

21 THE COURT: There were two issues that I wanted

22 to bring up with you. One is in looking at the model that

23 I was working off of yesterday's charge conference, the

24 crimes against humanity did not reference the aiding and

25 abetting and conspiracy theories. I put them into the

1 crimes against humanity. I thought that was an oversight

2 based upon my rulings concerning the other claims; is that

3 correct?

4 MS. HEALY: I believe that's correct, Your Honor,

5 that it would mirror the other claims.

6 THE COURT: Do you agree with that, Mr. Davis? I

7 know you don't agree with the instructions, but that it

8 mirrors the other claims?

9 MR. DAVIS: I believe that what the Court is

10 saying is that you have advised us that you have the

11 cautionary language.

12 THE COURT: In the model that I had, it was not

13 in the crimes against humanity. I instructed Lisa to

14 insert it.

15 MR. DAVIS: I understand, Your Honor.

16 THE COURT: On the conspiracy charge, I was

17 concerned about the second element, knowing at least one of

18 the goals of the conspiracy. From where does that come

19 from as far as conspiracy law?

20 It's my understanding that the person who joins a

21 conspiracy has to know the unlawful purpose of the plan.

22 That's based upon criminal conspiracy law.

23 But where does knowing of at least one of the

24 goals of the conspiracy come from?

25 MS. HEALY: I think that also is based on

1 relatively standard criminal conspiracy law in the sense

2 that a conspiracy can have multiple objectives and a

3 defendant can agree to join a conspiracy to further at

4 least one of those objectives, but doesn't necessarily have

5 to agree to further every single one of the objectives.

6 So, for example, in this case, the defendant

7 agrees to kill the prisoners in the various cities, he

8 doesn't necessarily have to agree that the purpose is to

9 remove opponents of the Pinochet regime or to cause the

10 local commanders to become more involved in the coup. He

11 can agree merely to kill the prisoners and that would be

12 sufficient.

13 THE COURT: Do you agree with that, Mr. Davis?

14 MR. DAVIS: I have all sorts of problems with

15 conspiracy, as you know, Your Honor.

16 THE COURT: Well, you didn't object to this

17 particular provision yesterday.

18 MR. DAVIS: I thought I objected to everything

19 about conspiracy.

20 THE COURT: You generally objected to the

21 instruction, but not when we went through the elements.

22 MR. DAVIS: The standard instruction of knowing

23 the unlawful purpose of the conspiracy, I would prefer

24 that.

25 THE COURT: The Eleventh Circuit pattern for the

1 general conspiracy charge for a criminal conspiracy charge

2 under Title 18, United States Code, 371, the second element

3 is that the defendant, knowing the unlawful purpose of the

4 plan, willfully joined in it.

5 MS. HEALY: That would be fine, Your Honor.

6 THE COURT: You agree with that?

7 MR. DAVIS: Yes, Your Honor.

8 THE COURT: So, Lisa.

9 MS. HEALY: Your Honor, we have a few points we

10 would like to raise with respect to the instructions.

11 THE COURT: That's fine. That second element on

12 number 18 on page 19, that would mirror the second element

13 of page 126 out of the criminal charge.

14 Yes. What are your points?

15 MS. HEALY: Again, we recognize and very much

16 appreciate all the Court's very hard work yesterday in

17 helping the parties.

18 THE COURT: You are not going to revisit my

19 rulings from yesterday, please.

20 MS. HEALY: I do at least want to put on the

21 record our objection with respect to element 1 of the

22 killing, torture and cruel and inhuman treatment

23 instructions, which is also element 3 of the crimes against

24 humanity instruction.

25 We are doing this primarily because I understand

1 we don't want to, or the Court doesn't want us to revisit

2 the rulings of yesterday. But we feel we need to do this

3 to preserve this issue for appeal.

4 We are very concerned that the formulation as

5 currently drafted elevates one theory of liability, which

6 is primary liability, above the other two theories of

7 liability that the plaintiffs acceded and are permitted to

8 prove.

9 What we would like to do, and we would like to

10 suggest the Court would do, is reformulate the instructions

11 so that it would say, for example, killing the defendant or

12 some other person deliberately killed Winston Cabello,

13 which would include in the element both the primary and

14 secondary liability theories.

15 As an alternative, we would propose that the

16 Court insert after the element as it's currently drafted

17 the phrase "actively participated means by aiding and

18 abetting a deliberate killing or conspiring to commit a

19 deliberate killing." So with that we don't want to revisit

20 these --

21 THE COURT: Well, you are revisiting it.

22 You can state your objections for the record. I

23 will overrule these objections. I ruled on this yesterday.

24 The cautionary instructions on each one of these

25 claims as to instruction 17 and 18, each instruction

1 relates to 17 and 18, which is the secondary aiding and

2 betting conspiracy theories. And, in addition, I granted

3 over the defendant's objection the initial introductory

4 claims. There are now two introductory instructions

5 concerning the claims. That is instruction number 9 and

6 instruction number 10. And the second paragraph, which is

7 at the request of the plaintiffs over objections of the

8 defendant, was that plaintiffs allege that Mr. Fernandez is

9 liable for each of the four -- it says difference, it

10 should be different violations -- I am just going to take

11 that as a typo -- and I will instruct the jurors to make

12 that a T. I am not going to have her reprint everything.

13 Different violations because (1) he personally

14 committed the violations; or (2) he aided and abetted some

15 person or persons who committed the violations; or (3) he

16 entered into a conspiracy with persons to commit the

17 violations. Strike "with persons." "He entered into a

18 conspiracy to commit the violations."

19 And that instruction was given at the request of

20 the plaintiff to further explain the first element and the

21 cautionary instructions. So I am not going to revisit it.

22 MS. HEALY: Thank you, Your Honor.

23 THE COURT: You can preserve your objection for

24 the record.

25 MS. HEALY: Thank you.

1 One more. This is a minor note. There is

2 actually a typo on the instruction with respect to crimes

3 against humanity.

4 THE COURT: What number is that, please?

5 MS. HEALY: That one is now number -- I believe

6 it's 16. I'm sorry. It's number 14. The fourth element.

7 References widespread and --

8 THE COURT: That's right. That should be "or."

9 I had changed that to or. Maybe it didn't get changed on

10 all of them. Yes, on the fourth element. You are correct.

11 MS. HEALY: And then with respect to the torture

12 claim, there was a great deal of discussion yesterday about

13 constructive versus actual custody. And I recognize we

14 didn't pick that up again after lunch, but I know the Court

15 was leaning toward a discussion as to constructive custody.

16 So we would like, if possible, to include some

17 language in the instruction that would explain to the jury

18 that this affair didn't have to be in Mr. Fernandez'

19 personal custody at the time.

20 So I would propose replacing --

21 THE COURT: What instruction number are you

22 talking about?

23 MS. HEALY: Torture is now in instruction number

24 12. With respect to the second element, I would propose

25 "Winston Cabello was in the custody or physical control of

1 the person or persons who intentionally inflicted severe

2 pain or suffering, whether physical or mental, on him."

3 THE COURT: Mr. Davis?

4 MR. DAVIS: Yesterday we were looking at the

5 statute and tracking the language of the statute. So I

6 would object to any change in this instruction off what

7 Your Honor had determined yesterday. I thought you

8 determined yesterday, based upon our reading of the

9 statute, and this is directly taken from the statute.

10 I mean, you still have the cautionary subject to

11 aiding and abetting and conspiracy.

12 THE COURT: I'm going to deny the request. Leave

13 the instruction as is. It does have the cautionary

14 instruction as to aiding and abetting and conspiracy.

15 If it comes back as a question from the jury, we

16 can take it up then. But it is tracked from the statute,

17 and I did rule that based upon the statute that the second

18 element was a correct rendition of the statute and as

19 alleged in the complaint.

20 So we are ready to proceed, I take it?

21 Who is proceeding with the closing?

22 Mr. Cunningham?

23 MR. CUNNINGHAM: I would begin, Your Honor.

24 THE COURT: Do you want any warnings?

25 MR. CUNNINGHAM: You mean time warnings?

1 THE COURT: How long is your initial closing?

2 MR. CUNNINGHAM: I suspect a little over an hour.

3 Not a lot more.

4 THE COURT: Do you want any warnings or not?

5 MR. CUNNINGHAM: No.

6 THE COURT: Okay.

7 MR. DAVIS: Your Honor, just for scheduling

8 purposes, I have probably an hour and 15, an hour and 20

9 minutes, maybe an hour-and-a-half, I don't know, but do you

10 want me to start my closing when we break for lunch?

11 THE COURT: Probably what we are going to do --

12 MR. DAVIS: Or split mine up?

13 THE COURT: No, I am not going to split yours. I

14 don't think that's right.

15 I think the day is going to go as this. We are

16 now starting with the plaintiffs. It's about an hour, an

17 hour and 15, give or take some minutes. We are going to

18 proceed with the plaintiff's closing, break for lunch for

19 an hour, proceed with the defendant's closing, have a break

20 after that, proceed with the rebuttal.

21 At that time we are going to see what time it is.

22 The jurors have already told Lisa that they don't want to

23 be here past 5:00. If we are somewhere around the 4:00

24 o'clock time period, I may very well tell them to come back

25 on Tuesday morning for charge when they are fresh, when