1007

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 14, 2003

ARMANDO FERNANDEZ-LARIOS, )

)

Defendant. )

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VOLUME 13

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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I N D E X

Direct Cross Red. Rec.

WITNESSES FOR THE PLAINTIFF:

JURY CHARGE

WITNESSES FOR THE DEFENDANT:

EXHIBITS

PLAINTIFF IN EVID.

DEFENDANT’S

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1009

(Open court. Jury not present.)

THE COURT: Estate of Winston Cabello, et al. vs.
Armando Fernandez-Larios, Case Number 99-0528.

Would counsel state their appearances.

(All parties present.)

THE COURT: All of the jurors are now here. One of
the jurors’ car broke down. He had to get a relative to help
him out.

There was one more typo, page 12 instruction 11 in the
first element. Omitted in the “actively participated” portion
of that element was deliberate killing. I took the liberty of
adding that. I ordered it be added; let’s put it that way.

Are you ready to proceed?

MR. DAVIS: There is an issue I would like to raise
first.

In yesterday’s Miami Herald on Monday October 13,
2003, on the front page of the local section, I brought the
entire paper, there is a major headline which says Chilean
could be Pinochet witness.

Nobody couldn’t help but see this headline. I don’t
know if Your Honor has seen the article.

I would ask three things. I would ask the Court
inquire of the jurors whether anyone had been reading the
Herald on a daily basis and two, whether they have seen any
articles touching on this case, and three, to assure anything

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that they saw in the paper is not evidence, to remind them,
anything they saw in the paper is not evidence, they are to
decide the case on the basis of what happens here.

Most of the other articles have been inside the paper
buried so the jury might have easily avoided that. This way,
there was no way one can avoid seeing the headline.

THE COURT: Any response?

MR. KERRIGAN: I think it is inappropriate to suggest
to the jury they violated the Court’s order and instructions
and subject them to some kind of examination, number one.
Number two, Mr. Davis is quoted in this article and the article
suggested he supplied information to the Miami Herald. The
plaintiffs are not quoted, the plaintiffs’ lawyers are not
quoted and we supplied no information to the Miami Herald. If
this problem has arisen, the Court has strictly instructed the
jury every day and anything other than that would seem to be
excessive.

MR. DAVIS: I am referred to in the paper, not quoted.
It is not as if I had a press conference to talk about
this.

The jury should be reminded and should be inquired
whether or not they saw this article.

THE COURT: What I will do when the jurors come in, I
will not make a specific inquiry whether or not any jurors have
been reading the Herald but I will make a general inquiry to

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the jury as a whole, has anybody seen, heard, or read anything
about the case outside of the courtroom. If somebody says yes,
we will take that up individually. If there is a general no,
or nobody acknowledges they have done so, I will remind the
jurors they are to decide the case solely on the evidence
presented in the courtroom and we will proceed with the jury
instruction.

MR. DAVIS: Could I ask you modify the question
slightly to say read or seen anything about the case or the
parties to the case, because this article really is not
touching directly on the case, it is touching more on
Mr. Fernandez personally?

THE COURT: Yes.

Bring the jurors in.

(Jury present.)

THE COURT: Ladies and gentlemen of the jury, before
we begin with the Court’s instructions to you, I want to ask if
there is any member of the jury who has read, heard or seen
anything about the case or the parties to the case outside of
the courtroom?

A JUROR: A headline.

THE COURT: Has anybody else seen anything or read
anything?

Would the rest of you step into the juryroom and I
will talk to juror number 5.

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Do not discuss or read anything about the case while
you are inside. I will be with you in just a moment.

(Jury leaves room.)

BY THE COURT:

Q. Mr. Osman, what headline did you read, do you remember?
A. Yes. This morning I saw a headline. I didn’t read the
article. I wasn’t paying too much attention.

Q. Do you remember what it said?

A. It was in the Metro section.

Q. Of the Herald?

A. Yes.

Q. Do you remember what it said?

A. Something about Chilean --– I heard you say it, I might
remember.

Q. Do you understand, sir, you have to decide the case solely
on the evidence presented in the courtroom?

A. Yes.

Q. Would you be able to put aside whatever --– know you are
not remembering real clearly. That is fine.

Would you be able to put aside whatever you have seen
and decide the case solely on the evidence presented in the

courtroom?

A. Absolutely.

Q. And not be influenced by any headlines you may have read?

A. Yes.

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THE COURT: Would you step into the juryroom for just
a few moments and do not discuss this with any of the jurors?

(Juror leaves room.)

THE COURT: Any position either side wants to take?

MR. DAVIS: My only question is anyone who would have
seen the Herald -- if any of the other --

THE COURT: This is the one person that responded yes.
Mr. Osman responded yes which is the reason I sent everybody
out and questioned him.

My question to you, Mr. Davis, or Mr. Cunningham, or
Mr. Kerrigan, or Ms. Healy; is there any position either side
wants to take with regard to this juror wanting to deliberate
as a juror?

MR. DAVIS: We are satisfied.

May I inquire with my client a moment?

THE COURT: Sure. I will turn off the microphone.

(Interruption.)

MR. DAVIS: Your Honor, we remain concerned but based
on the answers this juror gave, we have no objection to him
deliberating.

THE COURT: I will have the jurors brought back in. I
will instruct the jurors they are to decide the case solely on
the evidence presented in the courtroom and we will proceed
with the Court’s instructions to the jury.

(Jury present.)

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THE COURT: Ladies and gentlemen of the jury, I want
to remind you, you are to decide the case solely on the
evidence presented in the courtroom.

Now, if you would turn to your packet of jury
instructions, I will instruct you on the law in this case.

Members of the jury, I will now explain to you the
rules of law that you must follow and apply in deciding this
case.

By the way, these are your packet of jury instructions
to utilize during your deliberations.

When I have finished, you will go to the juryroom and
begin your discussion, what we call your deliberations.

You must make your decision only on the basis of the
testimony and other evidence presented here during the trial,
and you must not be influenced in any way by either sympathy or
prejudice, for or against the defendant or the plaintiff.

In deciding the case, you must follow and apply all of
the law as I explain it to you, whether you agree with that law
or not and you must not let your decision be influenced in any
way by sympathy or by prejudice for or against anyone.

In your deliberations you should consider only the
evidence. That is, the testimony of the witnesses and exhibits
that I have admitted in the record, but as you consider the
evidence, both direct and circumstantial, you may make
deductions and reach conclusions which reason and common sense

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lead you to make. Direct evidence is the testimony of one who
asserts actual knowledge of a fact, such as an eye witness.
Circumstantial evidence is proof of a chain of facts and
circumstances tending to prove or disprove any fact in dispute.

The law makes no distinction between the weight you
may give to either direct or circumstantial evidence.

Remember, anything the lawyers say is not evidence in
the case, and except for my instructions to you on the law, you
should disregard anything I may have said during the trial in
arriving at your decision concerning the facts. It is your own
recollection and interpretation of the evidence that controls.

Now, in saying you must consider all of the evidence,
I do not mean that you must accept all of the evidence as true
or accurate. You should decide whether you believe what each
witness had to say, and how important that testimony was. In
making that decision you may believe or disbelieve any witness
in whole or in part. Also, the number of witnesses testifying
concerning any particular dispute is not controlling.

In deciding whether you believe or do not believe any
witness, I suggest that you ask yourself a few questions. Did
the witness impress you as one who was telling the truth? Did
the witness have any particular reason not to tell the truth?
Did the witness have a personal interest in the outcome of the
case? Did the witness seem to have a good memory? Did the
witness have the opportunity and ability to observe accurately

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the things he or she testified about? Did the witness appear
to understand the questions clearly and answer them directly?
Did the witness’ testimony differ from other testimony or other
evidence?

You should also ask yourself whether there was
evidence tending to prove that the witness testified falsely
concerning some important fact, or whether there was evidence
that at some other time the witness said or did something or
failed to say or do something which was different from the
testimony the witness gave before you during the trial.

You should keep in mind, of course, a simple mistake
by a witness does not necessarily mean that the witness was not
telling the truth as he or she remembers it; because people
naturally tend to forget some things or remember other things
inaccurately.

So, if a witness has made a misstatement, you need to
consider whether that misstatement was simply an innocent lapse
of memory or an intentional falsehood and the significance of
that may depend on whether it has to do with an important fact
or only an unimportant detail.

In this case, it is the responsibility of the
plaintiff to prove every essential part of their claim by a
preponderance of the evidence. This is sometimes called the
burden of proof or the burden of persuasion. A preponderance
of the evidence simply means an amount of evidence that is

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enough to persuade you that the plaintiffs’ claims are more
likely true than not true.

In deciding whether any fact has been proved by a
preponderance of the evidence, you may consider the testimony
of all of the witnesses regardless of who may have called them,
and of all of the exhibits received in evidence regardless who
may have produced them.

If the proof fails to establish any essential part of
plaintiffs’ claim by a preponderance of the evidence, you
should find for the defendant as to that claim.

The Court has determined this case involved United
States law even though the events occurred in another country.

Certain testimony has been presented to you through
deposition. A deposition is the sworn, recorded answers to
questions asked of a witness in advance of the trial. Under
some circumstances, if a witness cannot be present to testify
from the witness stand, that witness’ testimony may be
presented under oath. In the form of a deposition. Some time
before this trial attorneys representing the parties in this
case questioned this witness under oath. A court reporter was
present and recorded the testimony. You have heard the
questions and the answers. This deposition testimony is
entitled to the same consideration and is to be judged by you
as to credibility as if the witness had been present and had
testified from the witness stand in Court.

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Certain testimony has been presented to you through
responses to a letter rogatory. A letter rogatory is a formal
request from a United States Court to the Court of a foreign
nation asking the foreign court’s assistance in obtaining
evidence for use in the United States Courts. In this case the
parties asked this Court to issue a letter rogatory to the
Supreme Court of the Government of the Republic of Chile,
asking it to assist this Court in obtaining evidence, including
testimony from Chilean citizens who live in Chile. The parties
submitted questions to these Chilean witnesses and the Chilean
Court asked these witnesses to answer the questions. Those
answers were made under oath. And you have heard the questions
and the answers. These witnesses’ testimony in the form of
answers to the letter rogatory is entitled to the same
consideration and is to be judged by you as to credibility as
if the witness had been present and had testified from the
witness stand in Court.