312

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. ) September 30, 2003

)

ARMANDO FERNANDEZ-LARIOS, )

)

Defendant. )

)

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VOLUME 5

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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313

1 I N D E X

3 Direct Cross Red. Rec.

WITNESSES FOR THE PLAINTIFF:

VICTOR BRAVO MONROY (Depo.) 322

6 IVAN MURUA CHEVESICH (Depo.) 359

8 WITNESSES FOR THE DEFENDANT:

13 EXHIBITS

14 PLAINTIFF IN EVID.

15 Plaintiffs' Exhibit 18.................... 349:5

Plaintiffs' Exhibit 19.................... 379:17

16 Plaintiffs' Exhibit 20.................... 381:22

DEFENDANT'S

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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: I do have rulings for you on the

7 depositions, save the one deposition I did not have, I had a

8 double on the doctor, so obviously I couldn't rule on Patricio

9 Lapostol.

10 Who are you calling first?

11 MS. HEALY: We will be calling Victor Bravo first.

12 THE COURT: I had a question as to page 11 lines 12

13 through 17. What is the probative value of this conversation

14 between the two unidentified soldiers at the cemetery, if any?

15 MS. HEALY: That snippet of testimony is relevant to

16 show the soldiers were so nervous and in such a difficult state

17 themselves that it impacts on Mr. Bravo's understanding of the

18 circumstances under which he had been called out late at night

19 to identify the bodies. We are not actually offering that

20 particular portion for the truth, but only to show Mr. Bravo's

21 impressions at the time.

22 THE COURT: Ostensibly, there is very little probative

23 value. I don't see any probative value of the fact they had a

24 drunken conversation.

25 MS. HEALY: The probative value is not great. It does

RICHARD A. KAUFMAN, CMRR

315

1 add to the circumstances surrounding Mr. Bravo's experience at

2 the time.

3 THE COURT: I will sustain lines 12 through 17. I do

4 not find there is any probative value as to the conversation

5 between the unidentified soldiers.

6 He is going to testify about seeing the corpses;

7 correct?

8 MS. HEALY: Yes.

9 THE COURT: The last line in a path, lines 17 and 18,

10 so they directed the flashlight towards the ground and there

11 was a whole row of corpses. I will allow that statement to

12 come in as well as line 6 through half of 9. There was a group

13 of military personnel. Everything was dark. As they flashed

14 the flashlight onto my face, I couldn't see whom they were with

15 or whom they were speaking to. It ends there, then they direct

16 the flashlight.

17 As to page 12, lines 12 through 18, that is the same.

18 He will be testifying about what he observed and what he saw.

19 This is an opinion --

20 MS. HEALY: We would offer it as a proper lay opinion

21 under Rule 701.

22 THE COURT: There are other portions in the deposition

23 in which he talks about the condition of the body. This is in

24 general, it is not specific enough and it relates to any one

25 corpse and it is cumulative. He does testify to observing

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1 gunshot wounds in hands. I don't remember anything that

2 indicates corvos being used in any of the observations.

3 Without that observation, I would sustain that as well as well

4 as his opinion they were massacred. That is sustained.

5 Though much of this testimony does come in as it

6 relates to his observations, I will allow that to come in and

7 this would be cumulative.

8 As to page 21 line 9 through page 22 line 18. This

9 objection is sustained as the witness recognizes the defendant

10 because of the information he comes to know after the event and

11 because of conversations he had afterwards with the officers.

12 It would be excluded, therefore, on hearsay, and I do not find

13 there is an exclusion based upon -- it does not fall within the

14 exclusion of refutation under 801.

15 MS. HEALY: 803.21.

16 I would ask the Court reconsider page 21 lines 13

17 through 17 because those in fact are the witnesses' own

18 personal observations of an individual.

19 THE COURT: I will allow the question at line 9

20 through line 17.

21 MR. DAVIS: The issue on this I would also have, in

22 their papers they somehow misstate this testimony as saying

23 Fernandez is at the cemetery. This witness does not say

24 Mr. Fernandez is at the cemetery. He identifies him only at

25 the dining hall. In their papers they argue that.

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1 If you look at the preceding question they don't

2 designate, they ask whether Armando was present at date -- did

3 you see him at Copiapo at any time, and I objected to the

4 question and Mr. Kerrigan rephrased his question. Did you see

5 who you now know as Fernandez on the 16th of October, and all

6 we have is his identification as I set forth in other examples

7 later on in this testimony. It is all based on what somebody

8 told him. Everything is based on what Mr. Vidal told him and

9 Mr. Mendoza told him.

10 THE COURT: The question at line 10 is, did you see

11 who you now know as Armando Fernandez Larios, did you see that

12 man on the 16th of October. The identification of him by name

13 would have to be stricken.

14 Actually what would happen, how we would proceed with

15 this, line 3, was Armando Fernandez Larios present on the date

16 of October 16 and did you see him at Copiapo at any time. The

17 answer would be, among the officers there dressed in combat

18 fatigue, there is a tall man then in combat fatigues with a

19 corvo attached to his legs. He had all the characteristics of

20 a typical commando leader which was different from the officers

21 I knew. That is the only identification. That is based upon

22 his observation of what he saw. The remainder of the

23 identification as the defendant would be excluded based upon

24 hearsay.

25 MR. DAVIS: The question would be the one from lines 3

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1 to 5 and the answer starts at line 13 and ends at line 17?

2 THE COURT: Yes.

3 MS. HEALY: Thank you, Your Honor.

4 THE COURT: Is that everything with respect to this

5 witness?

6 MS. HEALY: Two more. Page 33 lines 16 through 25.

7 THE COURT: Page 33 line 16. Recollection based upon

8 conversations with other witnesses, is sustained. It is

9 hearsay. Page 23 lines 13 through 25. The three persons who

10 had been executed, was this part of the actions at Copiapo on

11 the same date?

12 MS. HEALY: They are actually executed during the day

13 of the 17th in a separate action, not the early morning hours

14 of the 17th along with the 13 that included Winston Cabello.

15 THE COURT: What is the probative value?

16 MS. HEALY: To show the difference between a military

17 execution versus a massacre. The witness observed two

18 different sets of bodies and he distinguished between the

19 markings he sees on each of them after they are killed.

20 MR. DAVIS: It goes to confusion. The jury will now

21 think Mr. Fernandez is alleged to have something to do with

22 these other executions. There is already a lot of other acts

23 in this case, now they are putting in three additional

24 executions. Perhaps with a limiting instruction.

25 MS. HEALY: We would accept a limiting instruction.

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1 THE COURT: What would you propose that be?

2 MS. HEALY: This evidence is not offered to show

3 Mr. Fernandez was involved in these particular killings but

4 only to show the witness can distinguish between people who

5 were killed by military execution and people who have been

6 massacred.

7 MR. DAVIS: It has to go a little further than that

8 and say there is no allegation or indication that Mr. Fernandez

9 has anything to do with these and these are for comparison

10 purposes only, not anything having to do with any allegations

11 against Mr. Fernandez.

12 There is no allegation anywhere Mr. Fernandez or the

13 Caravan, to my knowledge, had anything to do with these three

14 executions.

15 THE COURT: Let me propose this. When this evidence

16 comes in, there are no allegations in this case, there are no

17 allegations that the defendant, Mr. Fernandez, participated in

18 or was involved in the killing of persons by military firing

19 squads. This evidence is offered for the purpose of comparing

20 the witness' observation as to persons who had been killed.

21 MS. HEALY: I would propose two additional changes to

22 that. The plaintiffs do not make these allegations.

23 THE COURT: Okay.

24 MS. HEALY: Also, with respect to the killing of these

25 three people by a military firing squad, because there are

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1 other allegations in this case.

2 THE COURT: It would then be, the plaintiffs make no

3 allegations in this case that the defendant Mr. Fernandez

4 participated in or was involved in the killing of these three

5 persons by military firing squad. This evidence is offered for

6 the purpose of comparing the witness' observation as to persons

7 who had been killed.

8 I don't like the ending.

9 This evidence is offered for the purpose of comparing

10 the witness' observation as to the manner in which persons had

11 been killed.

12 MS. HEALY: That appears to be acceptable.

13 MR. DAVIS: Yes, Your Honor.

14 THE COURT: Counsel please approach for one moment.

15 (Side bar.)

16 THE COURT: In regard to the matter that was taken up

17 at the end of the day yesterday as to the jurors, what are

18 counsel's positions?

19 MR. DAVIS: I think they ought to be allowed to come

20 in and go as they please. Perhaps they could be told the rear

21 entrance has fewer members of the press.

22 THE COURT: Let me propose this. What I thought I

23 might do, if we are going to do any kind of pickup we need to

24 organize it and it needs to be handled expeditiously so it

25 could be efficiently done by tomorrow morning. It will take

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1 several days to organize.

2 What I would suggest if everybody agrees and there is

3 no objection, that I go into the juryroom and speak with the

4 jurors indicating that I understand someone has mentioned

5 photographs have been taken of you and get an idea from them

6 what their feelings are about it. As the conversation goes, I

7 may propose alternatives to them, asking them if they wish to

8 come in another entrance. They might want to come in that way

9 and make arrangements for them to be met over there, or I guess

10 they could come in and walk over. Once they are inside I don't

11 think there is a problem, or if there are strong feelings about

12 it we could make arrangements for them to meet, very early in

13 the morning, 7:30 at some outside location. That would be my

14 recommendation, to let me talk to them if there is no objection

15 to my going in the juryroom.

16 MR. DAVIS: I have no objection. It seems burdensome

17 for them to have to go someplace 7:30 in the morning when their

18 services are required at 9:30.

19 THE COURT: That would be the only way the marshals

20 can accomplish it.

21 MR. CUNNINGHAM: Whatever the Court wants to do with

22 regard to solving the problem.

23 THE COURT: Let me do this. Maybe at the first break

24 today I will go in and talk to them.

25 MR. CUNNINGHAM: Maybe you have done that before, but

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1 you may get a release of information about the case.

2 THE COURT: No, I have done it before and I would not

3 allow anybody to talk to me about the case. I begin by telling

4 them I am not here to talk about the case at all, I am here to

5 talk to them about any feelings of being uncomfortable about

6 coming into the building. I understand there have been some

7 people whose photographs were taken. If you feel strongly and

8 don't want me to do it, I won't do it; but I have done it

9 before and gone into the juryroom and talked to jurors. I

10 don't talk about the case.

11 MR. CUNNINGHAM: That is fine with me.

12 THE COURT: We will do that at the first break and I

13 will report back to you and see how that works.

14 (Open court.)

15 THE COURT: Bring the jury in.

16 (Jury present.)

17 THE COURT: Call your next witness.

18 MS. HEALY: The plaintiff calls Victor Bravo with a

19 videotaped deposition.

20 (Videotape played.)

21 Thereupon - -

23 VICTOR BRAVO MONROY,

24 called as a witness by the Plaintiff, having been first duly

25 sworn, testified as follows.

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323

1 Q. Would you state your full name for us, please?

2 A. Victor Francisco Bravo Monroy.

3 Q. What is your current occupation?

4 A. I am the head of a fleet. I work in a fishing company.

5 Q. Have you ever lived in Copiapo?

6 A. Yes, 21 years.

7 Q. You lived in Copiapo 21 years?

8 A. Yes.

9 Q. From what time to what time?

10 A. From the 2nd of May 1962 until 1978. I had a summer home

11 in Caldera. So I kept living in that house but I always had

12 connection with Copiapo because it was 70 kilometers away until