Trail of the Octopus -- From Beirut to Lockerbie -- Inside the DIA, by Donald Goddard with Lester K. Coleman at American Buddha Online Library

TRAIL OF THE OCTOPUS -- FROM BEIRUT TO LOCKERBIE -- INSIDE THE DIA

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Appendix

Excerpts From The Appellate Decisions Denying Pan Am’s Request for Retrial

Editor’s Note

Donald Goddard’s narration of events concludes with Pan Am’s submission of its appeal to the United States Court of Appeals for the Second Circuit in Case Numbers 92-9251, 92-9253, and 92-9255. While Goddard was hopeful that what he saw as errors in the trial process would be remedied on appeal, he questioned whether the judicial process would be up to the challenge of doing justice where the result might be to reopen a chapter in history that the U.S. government clearly wanted closed.

Two appellate decisions rendered, the first on January 31, 1994, and the second on September 12, 1994. Neither decision accorded any substantial relief to Pan Am, and both were “split decisions,” by the three-judge panel. Both majority opinions were written by Richard J. Cardamone, a Reagan appointee who is still on the bench. Both dissenting opinions were written by Ellsworth Van Graafeiland, a Ford appointee who passed away in 2004.

Justice Cardamone’s smooth rejection of Pan Am’s position is in sharp contrast to the objections of Justice Van Graafeiland, who observed at the outset that the position he was obliged to take would make his “name anathema to the hundreds of people who are seeking recoveries probably in excess of $1 billion, and my long-time friendship with [District] Judge Platt may suffer some stress.” Apparently stung by the strong criticism of the District Judge’s refusal to allow testimony that the FAA had orally approved Pan Am’s policy of x-raying luggage rather than forcing travelers to open it up on the tarmac and affirm it as their own before boarding the plane, Justice Cardamone adjusted the contours of his reasoning somewhat after Pan Am sought and obtained a re-hearing. The September 14th Opinion liberally applied the doctrine of “harmless error,” which is to say that, that even if Pan Am had been able to introduce all of the evidence Judge Platt excluded from the case, the jury would’ve found Pan Am liable anyway.

The following excerpts are drawn from the text of the opinions. Ellipses have not been utilized, and professional readers are directed to the original decisions, easy to find by punching the case numbers into the Second Circuit decision database.

Excerpts From the January 31st Majority Opinion

On December 21, 1988 a bomb exploded on Pan Am Flight 103 causing it to crash over Lockerbie, Scotland. The 243 passengers and 16 crew members aboard the flight traveling from London to New York all perished. Numerous plaintiffs, including those in the cases before us, brought wrongful death actions against Pan Am and Alert, a Pan Am affiliate that provided security services in London and in Frankfurt, where Flight 103 originated. All those actions were consolidated for trial in the Eastern District of New York.

On July 10, 1992 the jury found that the defendants engaged in wilful misconduct that led to this fatal crash. The trial's liability phase centered on Pan Am's alleged noncompliance with FAA directives concerning baggage inspection, particularly with regard to unaccompanied baggage that might contain explosives. Additional proof was introduced regarding other alleged misconduct on the air carrier's part. Plaintiffs contended that the bomb entered the flight on an unaccompanied bag that Pan Am, through its wilful misconduct, failed to inspect and detect. Under plaintiffs' theory -- detailed by several expert witnesses -- the bomb was hidden inside a radio-cassette player packed in a bronze Samsonite suitcase. The suitcase supposedly traveled from Malta to Frankfurt on Air Malta Flight 180. There, the experts posited, it was transferred to the first leg of Flight 103 from Frankfurt to London, where it was then placed on Flight 103 bound for New York.

Although bags transferred from other flights to Flight 103 in Frankfurt were x-rayed, plaintiffs asserted the airline's x-ray procedure violated security requirements contained in the FAA ACSSP, particularly those regulations ensuring that bags matched passengers and that any unaccompanied bags be physically inspected. Pan Am unsuccessfully argued to the jury that its actions did not amount to wilful misconduct, and that it was impossible to determine how the bomb was planted on Flight 103. To meet plaintiffs' claims of wilful misconduct, Pan Am and Alert emphasized that the transferred bags had been examined using x-ray equipment, but that no bomb was discovered. They challenged plaintiffs' theory of causation and suggested that even if there were any misconduct on their part, it did not lead to the crash.

Appellants … focus on … three different lines of proof they were not allowed to present to guide the jury's application of that standard, that is, the oral waiver, the British regulations, and expert testimony regarding the threat posed by unaccompanied baggage.

Defendants maintain that an FAA official granted them an oral waiver excusing strict compliance with certain FAA regulations, and that Chief Judge Platt abused his discretion when he disallowed their evidence purporting to demonstrate their belief in this waiver. Defendants' argument essentially is that this evidence would have shown that their x-ray inspection of interline bags complied with FAA requirements or that, regardless of FAA requirements, they did not act with conscious or reckless disregard of the probable consequences of their x-ray procedures since they thought the safety precautions they were following were permissible.

In support of this point, Pan Am points out that a regulation may be interpreted orally, and that the regulation at issue is ambiguous and therefore susceptible to such an interpretation. As a matter of law the FAA regulation at issue here -- ACSSP XV C.1.(a) -- is not ambiguous, as the following Discussion demonstrates.

Pan Am and Alert assert that physical inspection could be interpreted to mean an x-ray inspection. For several reasons, we think this a strained reading of the unambiguous regulation. First, the FAA promulgated "Physical Inspection Guidelines" in the ACSSP which specified that physical inspection involves opening and inspecting all compartments of baggage. The guidelines do not mention x-ray as an acceptable means of inspection. Second, the jury heard testimony from Pan Am's own General Manager at Heathrow, and other witnesses as well, that physical inspection under the regulations involved opening up bags and that x-raying them did not satisfy the regulation. Third, ACSSP regulations applicable at other, lower security airports explicitly permitted x-ray or physical inspections. Thus, it is plain that the regulations applicable at Frankfurt and London's Heathrow were unambiguous: they did not permit x-ray inspections as a substitute for a physical inspection. We hold, therefore, that the district court did not err in refusing to allow witnesses -- like the co-chair of the Pan Am Security Task Force, Richard Cozzi -- to testify that they thought the regulations were ambiguous.

Given that the FAA regulation in question is not ambiguous, Pan Am next asserts it obtained an oral waiver of the regulation from the FAA and that the district court erred in disallowing evidence of that waiver. But since FAA regulations state that any waiver of its requirements must be obtained from the FAA in writing, appellants would not have been justified in relying on an oral waiver.

The Director of the Office of Civil Aviation Security at the FAA at the time of the Pan Am bombing, Raymond Salazar, testified that in order to obtain an exemption from an ACSSP regulation an air carrier would have to file a written request and follow a specific procedure that was then in place. Plaintiffs produced the e-mail message that Pan Am security officer Daniel Soneson had sent to the regional Pan Am security representatives at Heathrow and Frankfurt. The e-mail message, dated March 28, 1988, stated in part, "the Dir. FAA R Salizar has granted x ray as and [sic] alternative to searching pass. baggage." Salazar testified that that representation was inaccurate and a misrepresentation, and when pressed by counsel, characterized it as "a falsehood."

The excluded evidence concerning the oral waiver primarily involved the testimony of two witnesses. We are told that the first witness, Daniel Soneson, would have testified that he approached the FAA in 1986 and received a verbal authorization for the x-ray-only inspection of interline bags, though he could not recall who gave this authorization. He would have testified further, so defendants state, that at an October 1987 meeting with Salazar and others he was advised that x-ray inspection would comply with ACSSP requirements. The trial Judge suggested that an offer of proof outside the presence of the jury be made regarding this witness' proposed testimony, but for some reason Pan Am chose not to make such an offer:

The second witness proffered by the defense was a former co-chair of the Pan Am Security Task Force, Richard Cozzi. Although Cozzi testified at trial, he was not permitted to testify as to Pan Am's purported verbal authorization from the FAA. Even had Cozzi been permitted to testify on this issue, his statement respecting what Soneson reported would have been inadmissible hearsay and would not have been admissible at trial in any event.

In a series of oral rulings repeated throughout the record, the trial Judge stated that any testimony by defense witnesses as to the purported verbal authorization would be excluded. It treated the proffered defense as an attempt to mount a so-called government authorization defense, the bounds of which will be discussed shortly. Chief Judge Platt believed that a government authorization defense may only be predicated on authorization from a government official with power to grant such authorization. He held the defense unavailable because anyone who might have given a verbal exemption at the FAA would have had no authority to do so.

We believe what appellants sought to present at trial was essentially a mistake of law defense, that is to say, defendants thought what they were doing was in accordance with the law and, even if they were mistaken, they think under such a circumstance they should not be held liable for wilful misconduct. The usual standards defining the permissibility of a mistake of law defense are as effective where the mistaken law is a regulation.

There is cause to be wary because of the ease with which air carriers could fabricate sham defenses and ignore with impunity safety regulations. Instead, where one of the handful of corporations in the business of transporting the public by air asserts a mistake of law as its defense to wilful misconduct under the Warsaw Convention, it may only present its objectively reasonable beliefs as to the law's requirements. To state this in other words, because of the legal status of the FAA regulations and the duty of air carriers to know and follow them, an absence of wilful misconduct -- when based on a claim of a mistaken understanding of those regulations -- must be supported by objectively reasonable evidence as to that mistaken understanding. When a law, rule or regulation that pertains to passenger and crew safety is clear and no reasonable air carrier would have believed it was authorized to act in contravention of it, we hold that an air carrier may not successfully mount a defense based on its assertion that it did not know the law.

Pan Am and Alert presented a strong defense to the jury that even if they violated the ACSSP, their actions did not amount to wilful misconduct. They insisted that a bomb contained in a suitcase would have been visible on x-ray. In fact, the parties stipulated to that fact. Appellants' counsel emphasized in closing argument and elsewhere the safety and expense of the x-ray technology purchased and employed by Pan Am, the fact that even an untrained person could spot a radio on one of their x-ray machines, and made the point that FAA inspections had shown Pan Am x-ray equipment to be in compliance with regulations.

Appellants' motion to exclude proof not tied to the Air Malta theory of causation (that the bomb bag came from an interline transfer) was denied by the trial court. It observed that since appellants planned to contest the Air Malta theory, plaintiffs were entitled to present evidence of alleged other misconduct on defendants' parts. The trial Judge reasoned that even if the Air Malta theory did not explain the bomb's presence on Flight 103, other pervasive and extensive wilful misconduct by defendants must have accounted for the bomb's presence.

Plaintiffs asserted that a contempt for security pervaded Pan Am from the highest to the lowest levels of the corporation, and that the totality of security failures would permit the jury to infer wilful misconduct. We have approved consideration of the totality of a defendant's wrongdoing in determining whether wilful misconduct existed.

Various attempts by appellants to suggest other specific causation theories were … rebuffed by the trial court. Pan Am and Alert challenge the exclusion of the testimony of four defense witnesses: two offered as experts on terrorism, Noel Koch and Dr. Ariel Merari, and two offered as experts on terrorist bombings, Peter Gurney and John Horne of Scotland Yard. Pan Am also contends it was error to restrict its cross-examination of plaintiffs' experts, Billie Vincent and Rodney Wallis (the former Director of Security for the International Air Transport Association), with respect to other methods of bombing. The trial Judge based his rulings largely on the fact that he found appellants had offered nothing to show there was any other specific bombing theory. Because there was no evidence presented with respect to other possible methods of causation that might explain how this tragic event occurred, and because appellants never sought to show that any other specific method of bombing could have caused it, any testimony relating to such other causes would necessarily be speculative.

It was also not error to decline to receive the testimony of terrorist bombings experts Peter Gurney and John Horne. Their testimony as to the importance of x-rays would have been cumulative since similar testimony was adduced from other witnesses. Additionally, these witnesses' expertise as to x-rays was questionable. Both witnesses were explosives officers with Scotland Yard who specialized in street bombings.

Scottish Detective Constable Derek Henderson provided deposition testimony as to his work in the Flight 103 investigation. He was assigned responsibility for matching certain bags -- the ones that might have been placed in the flight container that was determined to have held the bag with the bomb -- with passengers on the aircraft. Henderson prepared his report largely through compiling computerized records of bags. These computerized records had been set up to amass reports from passengers' and crew members' friends and relatives, and from evidence obtained at the scene of the crash.

Pan Am and Alert also sought to include an x-ray demonstration as part of their defense to show how clearly a radio-cassette player would appear on the screen. Such a demonstration was ultimately ruled irrelevant, given plaintiffs' offer to stipulate that a radio-cassette player would be visible on an x-ray screen. Pan Am and Alert nevertheless declare the demonstration would have generally supported Pan Am x-ray operator Kurt Maier's testimony that he x-rayed all the interline bags transferred to Flight 103 in Frankfurt.

From the January 31, 1994 Dissenting Opinion

VAN GRAAFEILAND, Circuit Judge, Dissenting:

Writing a Dissenting opinion in the instant case is not a pleasant task. My name will be anathema to the hundreds of people who are seeking recoveries probably in excess of $1 billion, and my long-time friendship with Judge Platt may suffer some stress. However, because I am convinced that Pan Am*fn1 did not receive a fair trial, I would be shirking my duties as a Judge if I did not say so.

At one point near the end of the trial, Pan Am's counsel said to the court:

“Now, Judge, I would tell you, on a scale of 1 to 10, doing what I want in this courtroom, I have been about a minus 2, or maybe imaginary numbers would be a better way to describe as the level to which I have gone.”

I have read the record dispassionately, and I completely agree with this observation. Plaintiffs' attorneys were permitted to range far and wide with prejudicial, irrelevant testimony, while Pan Am's counsel was precluded time and again from presenting relative and probative proof. Because I recognize that evidentiary rulings are largely discretionary and because I want to follow the somewhat unusual practice, at least for me, of quoting at length from the record, I will limit my Discussion to what I deem the major reversible errors.

At the outset, I want to state one clear and uncontrovertible fact: NO ONE KNOWS WHEN, WHERE OR HOW THE BOMB GOT ON THE PAN AM PLANE EXCEPT THE PERSON WHO PUT IT THERE.

The jury had to content itself with "expert" testimony, more properly described as educated guesses. My colleagues summarize the plaintiffs' proof as follows:

Under plaintiffs' theory--detailed by several expert witnesses--the bomb was hidden inside a radio-cassette player packed in a bronze Samsonite suitcase. The suitcase supposedly traveled from Malta to Frankfurt on Air Malta Flight 180. There, the experts posited, it was transferred to the first leg of Flight 103 from Frankfurt to London, where it was then placed on Flight 103 bound for New York.

The accuracy of the supposition that a suitcase carrying the bomb was sent unaccompanied from Malta to Frankfurt, was transferred there to a Pan Am plane in which it was flown to London, where it was transferred to the plane in which it subsequently exploded, was a crucial issue in the case, because plaintiffs' theory of liability was based upon Pan Am's allegedly deficient baggage checks during the two transfers. If there were no transfers, there could not have been any willfully deficient screenings. The district court permitted plaintiffs' experts to testify in support of the supposition but precluded any testimony by defendant's experts in opposition thereto. Having read the testimony of Pan Am's experts that the district court kept from the jury, I am convinced that had the jury been permitted to hear this evidence, there is a strong likelihood it would have rejected plaintiffs' contention that the bomb which exploded began its deadly journey in Malta.

The jurors who had suffered through the same experiences that many of us have, with missed planes and lost luggage during connecting airline flights, probably wondered how presumably clever and experienced terrorists reasonably could have expected an unaccompanied bag containing a bomb to travel from Malta to Frankfurt to London, through two sets of baggage checks, to be smuggled finally aboard Pan Am Flight 103 and explode only after the plane had left London. The jurors' willingness to accept the plaintiffs' theory undoubtedly would be influenced in large measure by what Pan Am's witnesses said.

The first refutation of plaintiffs' supposition came from Wilferd Borg, the general manager of ground operations for Air Malta, one of the few witnesses produced by defendant whose testimony was admitted:

Q What were the circumstances under which you saw the flight file at that time?

A. Our office in Germany had received a request from the German police requesting us whether we had any passengers or baggage connecting to Pan American flights out of Frankfurt. They said they were investigating this, they wanted this information in view of the Lockerbie incident in December, '88.

Q. And what did you do with respect to their request?

A. The request was passed along to me by our office in Germany. I requested the manager responsible to keep these records, to give me this relevant flight file. I went through it and gave the relevant replies to the German police.
Q. What were those replies?

A. We had no passengers connecting on the flights out of Frankfurt. We had no baggage destined to go in flights out of Frankfurt. And, we had no unaccompanied luggage on that flight.

Q. Now, sir, based upon everything that you've read and all the investigation that you did, are you able to tell this jury whether or not there was an unaccompanied bag on Flight 180?

A. No, there was no such bag.

Q. Were there any bags destined for Pan Am, any Pan Am flights?

A. No, there are no bags.

Q. Any passengers destined for any Pan Am flights?

The following testimony of Dr. Ariel Merari of Tel Aviv University, an expert on terrorism and bombing, also would have shed unfavorable light on the Malta-origin "theory." However, this testimony was kept from the jury.

Q. Do you think, sir, that it is conjectural how the bomb got on board?

A. Could you please rephrase the question.

Q. Do you know how the bomb got on board?

A. No, I don't.

Q. Do you think any, based upon the readings you have done in this record, a fair-minded, honest, so-called expert, with a reasonable degree of professional certainty, could opine how the bomb got on board?

A. Well, of what I have read, including the trial transcripts, I cannot see how anybody can say with any degree of certainty how the bomb got on board.

Q. Do you have any level of familiarity with what our government has been saying with respect to the indictments of two Libyans?

A. Yes, I do.

Q. And have you had, to the extent you can discuss this in this forum, a conversation with any representatives of security or secret services of any governments on that subject?

A. Yes.

Q. Has whatever knowledge that has come to you through those discussions in any way changed your view that an honest and reasonable chap cannot say to a reasonable degree of professional certainty how this bomb got on board?

A. No. I still feel that I don't know how the bomb got on board and I don't think that at this particular stage, before more intelligence information comes in, which may be a long time after the incident, in some cases, I still feel that I don't know how the bomb got on board and I don't think anybody knows for sure or even in any degree of reasonable certainty how the bomb got on board at this time, except for the terrorists, of course.

Q. Is it possible that a bomb was smuggled on board Pan Am 103 by an unwitting courier?

A. I think it is.

Q. Has that possibility been widely discussed secretly in the intelligence community?

A. Yes, it has.

Even stronger refutation of the Malta theory was given by Peter Gurney, a Scotland Yards bomb expert, whose testimony also was kept from the jury:

Q. Let me ask you this: Do you have an opinion based upon your review of the data made available to you of the existence of the fire system that existed in that Neus Toshiba bomb B 453 radio cassette?

A. I do have an opinion.

Q. What is it?

A. I cannot see how such a device could have been used on a multi leg journey with one of the earlier legs being of longer duration than the flight on which the explosion took place.

Q. If you were a bomb designer wanting to blow up Pan Am 103 over the Atlantic Ocean on [sic] off the coast of the United Kingdom would you use the Air Malta routing suggested in this case?

A. I'm not a bomb designer. We often have to think like terrorist [sic] in order to combat them. I would think that that was very unlikely because air travel there are many delays in air travel. Normally on the ground. So to work up the exact timing to get the thing to go off when you want it and not have it go off on the ground could be extremely difficult. This is used in a straightforward timer, sir.

Finally, the defense made an unsuccessful offer of proof of testimony by Noel Koch, a security consultant for the United States Department of Defense. If Koch had been permitted to testify on the subject, he would have said that the Air Malta theory is "widely at variance with modus operandi of Middle Eastern Terrorists attacks and specifically attacks on United States airlines," and that the "Air-Malta theory involves far too many variables to jibe with usual modus operandi." He also would have testified that the Pentagon relies on x-rays to scan baggage.

Admittedly, a district Judge has wide discretion in determining whether to admit evidence. However, this discretion "may not be utilized to exclude the otherwise admissible opinion of a party's expert on a critical issue, while allowing the opinion of his adversary's expert on the same issue." "Rule 403 requires even-handedness." The district Judge's lack of even-handedness cannot be justified by his reliance on the indictment of two unapprehended, unquestioned and unapproachable Middle Eastern terrorists:

THE COURT: And I must view the evidence that we're talking about in that light, not in the light of a criminal case, because we're not in a criminal case.

MR. CODDINGTON: Exactly. And my submission to you is that you may not give any evidentiary weight to the fact of that indictment.

THE COURT: No, But I may give evidentiary weight, probable cause weight to the fact that a grand jury has returned the indictment. Not in a criminal case, but in the civil case, for purposes of, I may not so instruct the jury, but as a qualifier from my standpoint, I may give it that weight. In fact I must.

Q. This document is something more than that, isn't it, sir? It says that you granted x-ray as an alternative doesn't it?

A. Yes, that is what the document says.

Q. You just said to me that you never granted that to Mr. Sonesen?

A. That's correct, I did not.

Q. You had never even spoken to Mr. Sonesen, did you?

A. About this issue, I have no specific recollection of speaking to Mr. Sonesen about this issue.

Q. Therefore, sir, if you didn't grant permission to Mr. Sonesen, and he said in this document you did, isn't that a lie?

A. It is an improper interpretation.

Q. It is an improper interpretation. I am not talking interpretation now of the procedures, I am talking about the statement: R. Salazar granted. Is that statement accurate?

A. No, it is false.

Q. So that statement, as it goes, R. Salazar has granted, is a lie.

Q. Can we agree that when Mr. Sonesen said that you had granted, in this phrase, that that was a falsehood?

A. That was a falsehood.

On the basis of Salazar's testimony, the district Judge made a colossal blunder by a sua sponte ruling [Editor’s note: sua sponte means “on his own initiative”] that was so contrary to established legal precedent and simple Justice that it smacked of a due process violation--he declared that he would receive no testimony from Sonesen or any other Pan Am employee in support of Sonesen's assertion of what Salazar had told him, Sonesen, whose testimony was an important part of Pan Am's defense, was branded a liar, and the district court precluded Pan Am from attempting to prove that he was not. So far as the jury knew, a substantial part of Pan Am's defense was built upon a lie, or as plaintiffs' counsel described it in summation, "a concocted piece of baloney."

Now, to lay to rest any argument that the district Judge was not fully aware of what Pan Am intended to prove in response to Salazar's testimony, I quote from the trial testimony:

THE COURT: As I understood, your position is somebody in the FAA, I don't know who, told Sonesen or somebody in Pan Am verbally once they had the x-ray machine they didn't have to physically search a couple of bags.

MR. SHAUGHNESSY: That's correct.

THE COURT: That is your position.

MR. SHAUGHNESSY: I understand.

THE COURT: I won't allow that offhand remark in when I have no basis for it at the moment.

MR. SHAUGHNESSY: What I propose to do is end my examination at this point and raise this question as part of my direct case.

THE COURT: Based on what I know I won't let that in.

THE COURT: Mr. Sonesen's testimony was, as I recall it, and it's right here before us, Sonesen's testimony was that I got this verbal permission from Salazar, we discussed it up and down the hierarchy which would include these Discussions here right up to what's his name.

MR. SHAUGHNESSY: Your Honor, what Salazar and Billie Vincent said was that Salazar had the authority, he just couldn't do it orally.

THE COURT: Salazar had the authority, but there has been nothing produced in writing and Sonesen said he got it orally and he acted on it orally and he told all of these people that he had the authority from the FAA and it's irrelevant what he told people in the Pan American organization on this subject, because he didn't have the authority. It's like my saying to you that I have the authority to go over and remove the money from the Chase Manhattan Bank. You know I don't, and you can't go and say gee, whiz, I'll go spend that sum of money that he promised me from the whole because you know that it's ill-gotten gains and you know that it's that simple.

MR. SHAUGHNESSY: No, it's not.

THE COURT: Yes, it is.

MR. SHAUGHNESSY: No, it's not. This is not a statute that's being violated. This is not even a regulation that is being violated. This is a rule promulgated under the regulations that is being violated.

THE COURT: It doesn't make any difference. According to the very rule, that cannot be altered or modified except in writing. And you're charged with that knowledge and all of these people are charged with that knowledge and they never did have any writing.

MR. SHAUGHNESSY: So I take it that all of the conversations among these people are out?

THE COURT: Obviously they're not objecting to it, but I'm going to sustain those three questions that he's objected to and I'm going to--you might as well know now that I'm going to sustain the questions and answer on page 78.

MR. SHAUGHNESSY: I understand, your Honor.

THE COURT: And anything else that they object to in between I'm going to sustain because I think it's irrelevant.

The district Judge never budged from his misunderstanding of the law:

THE COURT: The proposition before us is that Sonesen says--Sonesen not being Pan Am corporation, about whom we are talking, but only an employee [sic] of Pan Am. Sonesen says he got verbal permission from Salazar. The cases are quite clear, that that is in admissible under the issue of lawfulness or otherwise, and I have never seen anything at the moment, recently, that casts any doubt on it.

THE COURT: Ever heard the expression, an individual may not bind the government?

MR. CODDINGTON: Ever heard the expression that an individual may not bind the government? Yes, I have.
THE COURT: The government enacted a regulation or promulgated a regulation, I may not take off my robe, I may not work until executive capacity authorizes to make that. United States against Sorenson [sic] regulates, while on this subject, said: Whoever had the authorization from the DIA and C.I.A. to smuggle guns to Russia, and so forth and so on, and the 2d. Circuit upheld, may not do that verbally. That's the law. This theory of yours, if you have verbal authorization from somebody to violate a regulation, I will have to charge the jury that an individual may not do that.

MR. CODDINGTON: Well, certainly I'm happy to brief that.

THE COURT: Brief it all you want, because I sweated blood over this issue, because this was really quite serious. This was the business of taking armaments from this country and swapping it over from Russia, all on the okay of D.I.A. and C.I.A., And I wouldn't let them put that defense before the jury, and the 2d. Circuit said I was right. I went through a tremendous amount of research and wrote an opinion on this, and it was published, United States -vs- Schwartz. You may not as an individual authorize somebody to do something against the regulation, whether you are high-ranking. I don't think the President may do it. I didn't have to decide.

THE COURT: In any event, nobody approved this in writing. So the whole defense is a non-entity. I know you don't want to get rid of it from your mind, but there it is. If you want to stop the trial and mandamus me to the Second Circuit and have your ears pinned back, fine. But that's it, that's the ruling, you've got to live with it. You've got to stop trying to sneak it in through the back door or I'm going to have to take appropriate action.

THE COURT: You might have some validity to it if--if there was any kind of an acknowledgment from Salazar that he--that he had any such conversation, but he emphatically denies it. Everybody says it is not within anybody's power to give it or--and the regulation itself says you've got to have any modification in writing. It just doesn't make any sense to me that anybody in his right mind would rely--would, in fact did rely on any such permission. It just didn't exist.

Wilfulness is a question of fact for the jury. A trial Judge cannot take the question from the jury and answer it himself by applying his own objective standard of wilfulness. We thus disagree with the Court of Appeals' requirement that a claimed good-faith belief must be objectively reasonable if it is to be considered as possibly negating the Government's evidence purporting to show a defendant's awareness of the legal duty at issue. Knowledge and belief are characteristically questions for the factfinder, in this case the jury. Characterizing a particular belief as not objectively reasonable transforms the inquiry into a legal one and would prevent the jury from considering it. It would of course be proper to exclude evidence having no relevance or probative value with respect to willfulness; but it is not contrary to common sense, let alone impossible, for a defendant to be ignorant of his duty based on an irrational belief that he has no duty, and forbidding the jury to consider evidence that might negate willfulness would raise a serious question under the Sixth Amendment's jury trial provision. My colleagues clearly err, therefore, in holding that "an absence of wilful misconduct--when based on a claim of a mistaken understanding of [FAA] regulations--must be supported by objectively reasonable evidence as to that mistaken understanding." Because these are the crucial issues in the instant case, the trial court should have followed a liberal policy in admitting evidence directed towards establishing the Captain's subjective state of mind. No evidence which bore even remotely on this issue should have been kept from the jury, unless it interjected tangential and confusing elements which clearly outweighed its relevancy.

We would be blinking reality if we did not hold that the district Judge's erroneous rulings were prejudicial. Indeed, as disclosed by the following excerpt from the argument on appeal, plaintiffs' counsel admitted as much:

JUDGE VAN GRAAFEILAND: Let me ask you this, Mr. Kreindler: If I read the record, I listen to your argument and I read the record, and I decide that Judge Platt said I'm not going to hear from Mr. Sonesen no matter what, would you concede that that is very prejudicial error in this case?

MR. KREINDLER: Under those circumstances, yes. But that's not what happened. That's--

JUDGE VAN GRAAFEILAND: I'm not asking you that. I'm asking you if I read this record and I decide that that is what happened--leave this offer of proof business out--if I decide that Judge Platt just simply said, I'm not going to hear Mr. Sonesen, that would be prejudicial error; wouldn't it, in this case?

MR. KREINDLER: Your Honor, even--

JUDGE VAN GRAAFEILAND: Counsel, wouldn't it be prejudicial error?

MR. KREINDLER: Of course, if the Judge were hearing--

JUDGE VAN GRAAFEILAND: Of course, it would. Then we have got the issue: did he refuse to hear him, or didn't he?

MR. KREINDLER: No.

JUDGE VAN GRAAFEILAND: All right, that's the issue. I'll read the record very carefully, Mr. Kreindler.

Even my colleagues concede that the district court erred in excluding evidence of British Airway regulations which, in the face of bombings by Irish terrorists organizations, permitted Pan Am and other carriers to x-ray unaccompanied baggage at Heathrow Airport. This proof, my colleagues recognize, "undercut[s] the allegation that [Pan Am] consciously or recklessly disregarded the probable consequences of its x-ray procedures" and "clearly was relevant." My colleagues continue, "[a] showing that Pan Am and Alert complied with British security directives--whether or not they violated the ACSSP-might have made it somewhat less likely to believe that they acted recklessly in adopting an x-ray-only approach to inspecting interline bags." I regret that in my colleagues' apparent eagerness to affirm, they hold this error to be harmless. It was not harmless. It went squarely to a crucial issue in the case, i.e., whether Pan Am knew that its use of x-ray screening probably would result in injury.

Evidence that, shortly after the Lockerbie accident the FAA amended its regulations so as to permit x-ray screening, also went squarely to the issue of whether Pan Am should have anticipated danger in its pre-amendment use of x-rays. The district court's refusal to permit the jury to receive this evidence exacerbated all of the court's similar rulings that pervaded the trial. In short, it was another indication that the district court misunderstood the law. The issue was not whether Pan Am violated the regulation; it was whether Pan Am wilfully used x-ray screening with knowledge that its use would probably result in injury or in reckless disregard of the probable consequences.

Conclusion

If all of the irrelevant and prejudicial evidence dealing with such matters as television commercials and the private lives of Pan Am employees, together with the colloquies of court and counsel arising out of the district court's "425" erroneous rulings, were eliminated from this case, it could be retried in several weeks. Particularly in view of the fact that the outcome in over two hundred cases hinges upon the judgment in the instant case, Justice demands that the matter be remanded so that it can be tried fairly.
I Dissent.

Excerpts from the September 12th Majority Opinion

[T]he evidence offered by Pan Am regarding its mistaken view of what was required by the ACSSP was inadmissible for the purposes of mounting a mistake of law defense. Notwithstanding the foregoing, appellants insist the oral waiver evidence was admissible on the question of their wilful misconduct, which is of course the ultimate issue in this Warsaw Convention case…. On Vinieris v. Byzantine Maritime Corp., 731 F.2d 1061 (2d Cir. 1984), we addressed the question of admissibility of evidence going to a defendant's state of mind in the context of a statute that required "conscious misconduct" be proven for a seaman to recover under the penalty provision in a wage-withholding statute. We held that "no evidence which bore even remotely on [state of mind] should have been kept from the jury, unless it interjected tangential and confusing elements which clearly outweighed its relevancy." Id. at 1064. This formulation is in some sense a restatement of the well-known balancing test contained in Rule 403 of the Federal Rules of Evidence.

Whether the problems to be anticipated by admission of the oral waiver evidence in the present case clearly outweighed the evidence's relevancy is a close question. Analysis of this issue cannot exist in a vacuum. Because the oral waiver evidence was so intertwined with the government authorization and mistake of law defenses, which as a matter of law were not available to defendants, we believe that admission of such evidence might well have been unnecessarily confusing and perhaps prejudicial so as to justify the trial court's refusal to allow its admission.

Nonetheless, even were it an abuse of discretion to deny admission of the oral waiver evidence on the foregoing grounds, we hold that such an error was harmless. An evidentiary ruling is harmless when we are fairly assured that it had no substantial effect on the jury's verdict. See Rea,958 F.2d at 1220. In the instant case, the record is replete with evidence that wholly undermines Pan Am's claim of good faith. The overwhelming evidence presented during the course of the three and one-half month trial established that Pan Am officials ignored repeated warnings and signals that its security measures were insufficient.

The scope and nature of this evidence needs to be set forth in some detail. We begin in 1983 when a Pan Am flight leaving Rome, Italy for New York was the target of a bomb planted in an unaccompanied interline suitcase. Disaster was averted only when Turkish authorities conducted a passenger/bag match that uncovered the suitcase. Pan Am thus knew of this type of sabotage and that physical matches of suitcases were successful in averting such a terrorist act.

In 1985 a bomb hidden inside a radio and packed in an unaccompanied interline bag exploded on an Air India 747 over the North Atlantic, killing all aboard. The dangers of a bomb hidden inside radios packed in interline bags were well known to Pan Am and the airline industry. These two incidents not only led to the adoption of ACSSP XV.C.1(a), but they conveyed clear warnings that what actually happened at Lockerbie was a distinct possibility.

In September 1986 Pan Am received a report from a group of Israeli security experts commissioned to review Pan Am security at various airports, including Heathrow and Frankfurt. The security experts concluded that "under the present security system, Pan Am is highly vulnerable to most forms of terrorist attack. The fact that no major disaster has occurred to date is merely providential." The report specifically cautioned Pan Am on the use of x-ray machines as substitutes for physical searches, and the dangers of interline unaccompanied bags.

In October 1988 Alert Manager for Germany Ulrich Weber wrote a memo to New York headquarters citing the need for more personnel to remedy Frankfurt's security shortcomings. Only minimum efforts were made to remedy them.

In July 1988 the FAA issued a Security Bulletin warning of the high threat of a terrorist retaliatory attack because of the downing of an Iranian Jetliner. In November 1988 Pan Am received an FAA Security Bulletin warning that a raid on a terrorist group had uncovered a bomb built into a Toshiba radio cassette player. (Toshiba Warning). The bulletin warned that the bomb was difficult to detect by the use of normal x-ray.

The most wilful disregard of passenger safety, bordering on the outrageous, was in December 1988 when Pan Am received an FAA Security Bulletin advising that the United States Embassy in Helsinki had received a telephone warning that a Pan Am flight from Frankfurt to London and on to New York would be bombed. (Helsinki Warning). The Helsinki warning came just 14 days before the instant tragedy and specifically referred to the Toshiba Warning. Despite these warnings, Pan Am failed to conduct searches of unaccompanied interline luggage, and instead inspected such bags only by x-ray. Pan Am did not even alert x-ray technicians to watch for Toshiba radios. It violated FAA regulations by failing to match the bags with particular tickets without advising the FAA in writing that interline bag match had been discontinued. And it violated other FAA regulations by failing to warn pilots about the unaccompanied bags on board for fear that the crews might become "jittery." Additionally, Pan Am did not replace several members of its security team who were woefully undertrained given their responsibility for thwarting terrorist attacks.

Moreover, the Helsinki Warning was deliberately placed under a pile of papers on the desk of the security officer who received the bulletin and was first discovered in the morning following the downing of Flight 103. There was also evidence that Weber, the security officer in charge, ordered the Pan Am employee who discovered the bulletin after the explosion to backdate the warning to give government investigators the impression that the warning was timely disseminated when received. The district court found that the backdating was evidence of consciousness of guilt on the part of Pan Am for its part in the wrongful causation of the crash.

This and other evidence overwhelmingly supported the jury's Conclusion that but for Pan Am's wholly inadequate terrorist prevention techniques and its deliberate indifference and overt acts of wilfulness, the bombing and the senseless loss of life would not have occurred. Even had Pan Am been permitted to present Sonesen's deposition testimony to the jury, the above recited proof, plus the additional fact that any waiver of FAA regulations had to be in writing, make it plain to us that it would not have affected the jury's finding that Pan Am was guilty of wilful misconduct. Its exclusion was therefore harmless error.
Consequently, for all of the above reasons, the district court's refusal to permit the admission of Pan Am's oral waiver evidence -- on government authorization, mistake of law, and state of mind grounds -- does not constitute a sufficient basis for the granting of a new trial.

Various attempts by appellants to suggest other specific causation theories were then rebuffed by the trial court. Pan Am and Alert challenge the exclusion of the testimony of four defense witnesses: two offered as experts on terrorism, Noel Koch and Dr. Ariel Merari, and two offered as experts on terrorist bombings, Peter Gurney and John Horne of Scotland Yard. Pan Am also contends it was error to restrict its cross-examination of plaintiffs' experts, Billie Vincent and Rodney Wallis (the former Director of Security for the International Air Transport Association), with respect to other methods of bombing. The trial Judge based his rulings largely on the fact that he found appellants had offered nothing to show there was any other specific bombing theory.

The trial court did not abuse its discretion in excluding the testimony of defense experts Koch and Merari because their Conclusions as to more likely explanations for the bombing were speculative. Any testimony as to some other particular method of bombing -- without any foundation that such method might explain the Flight 103 bombing -- was clearly conjectural.

It was also not error to decline to receive the testimony of terrorist bombings experts Peter Gurney and John Horne. Their testimony as to the importance of x-rays would have been cumulative since similar testimony was adduced from other witnesses. Additionally, these witnesses' expertise as to x-rays was questionable. Both witnesses were explosives officers with Scotland Yard who specialized in street bombings. Neither had experience in aviation bombings or security. Moreover, neither had any background or knowledge concerning the Flight 103 bombing itself; the trial court found this rendered their proposed testimony unhelpful and largely irrelevant. This ruling was well within the trial court's Fed. R. Evid. 702 discretion.

Appellants admit that at trial they sought to argue that the method of bombing was not established and concede they were unable to suggest a specific alternate theory. They vigorously argued that the method of bombing was unclear, and accomplished this through extensive cross-examination of plaintiffs' experts. Pan Am and Alert also were not deterred from attacking plaintiffs' weaker theory that widespread misconduct on defendants part more likely than not caused the bomb to be loaded on Flight 103. In sum, Pan Am and Alert exercised the ample opportunities given them to undermine plaintiffs' causation theory. Thus, the rulings limiting cross-examination and expert testimony were unremarkable and without error.

Excerpts from the September 12th Dissenting Opinion

I am convinced that Pan Am did not receive a fair trial, I would be shirking my duties as a Judge if I did not say so. Before undertaking the unpleasant task of discussing where I believe the district court erred, I find it necessary to undertake the even more unpleasant task of commenting briefly upon my colleagues' amended opinion, a substantial portion of which is devoted to a rebuttal of arguments that Pan Am never made. As will be discussed below, the district court clearly erred in rejecting all evidence offered by Pan Am in support of its contention that it received and relied upon an oral interpretation from Salazar. Although my colleagues devote seventeen pages of their amended opinion to a Discussion of the "oral waiver," "government authorization," and "mistake of law" defenses, none of these defenses was asserted by Pan Am or is relevant to the pertinent issue herein.

Because, as in my Dissent to the original majority opinion, I deem it necessary in the interest of uncontrovertible accuracy to quote at length from the record, I will not prolong this opinion by an extended counterstatement of the facts. Indeed, what is perhaps the most crucial fact has been established by stipulation: [Pan Am] insisted that a bomb contained in a suitcase would have been visible on x-ray. In fact, the parties stipulated to that fact. Majority opinion at 31. It is worth noting, however, how this stipulation came into being. After Pan Am was satisfied that it could use x-ray examination of luggage, it purchased for the Frankfurt airport the most expensive up-to-date x-ray machine on the market, the Astrophysics Linescan X-ray Screening System.

Q. Does your company make a larger machine than this?

A. This is the largest machine we make.

Q. Does your company make a more expensive machine that this?

A. No, sir.

Q. At the time it was sold, was there a newer or more advanced state of the art machine than this?

A. No, sir.

(Testimony of Derek Kemp, an Astrophysics Company official).

Pan Am wanted the jury to see the machine and how it operated, and for this purpose it had the machine transported to the courthouse. For obvious reasons, plaintiffs' counsel did not want the jury to have the benefit of this first-hand observation, and he stipulated what an examination of the machine would have shown. Although Pan Am should not have been required to accept this stipulation in lieu of actual observation, see United States v. Gantzer,810 F.2d 349, 351 (2d Cir. 1987), the district court gave it no choice. At the district court's direction, the machine sat in the basement of the courthouse, alone and unobserved. The fact that plaintiffs' counsel objected to a jury inspection is evidence in and of itself that the district court erred in not permitting it.

My colleagues' Discussion of the Helsinki warning is in the nature of a half-truth that calls for exposition. Pan Am's response to this warning, as described in the testimony of Wolfgang Schwab, a Pan Am supervisor at Frankfurt, was quite different than what my colleagues would have us believe:

Q. Prior to the Lockerbie disaster, had it been brought to your attention that there was a warning received by the United States Embassy in Helsinki to the effect that a Pan Am flight to the United States would be bombed?

A. Yes.

Q. Tell us, please, when and how that was brought to your attention?

A. I am not able to give you the exact point in time but it was certainly before Lockerbie, when we were told that a female Finnish passenger would try to smuggle a bomb aboard.

Q. Were you warned to pay particular attention to all female passengers or only Finnish female passengers?

A. Particularly to a female Finnish passenger.

Q. Did you ever issue any instructions to look out for Finnish women or to pay particular attention to Finnish women?

A. Yes, I did.

Q. When was that?

A. Before Lockerbie.

Q. What instructions or suggestions did you issue?

A. Now, I told the screeners and the staff that they were to pay particular attention to female Finnish passengers or woman coming from that region up there and I told them that one person would try to smuggle a bomb aboard a plane.

Q. Do you remember if you did it personally or if you asked someone else to do it?

A. I did it personally.

Because the house of cards to the effect that the bomb entered the stream of commerce in Malta was constructed entirely of opinion testimony introduced by plaintiffs, simple Justice required that defendant's experts be given an opportunity to demolish it. Obviously any testimony concerning how the bomb got on the plane had to be conjectural. However, the burden of proof on this issue was on the plaintiffs, not the defendant. Pan Am nevertheless offered expert testimony to challenge plaintiffs' contentions, which the district court refused to receive.

If Pan Am's experts were correct in opining that no expert could testify with any degree of reasonable certainty how the bomb got on the plane, the district court's refusal to permit Pan Am's experts to so testify meant that the district court deprived Pan Am of all means of contesting the testimony of plaintiffs' experts on this important issue. The constitutional implications of such a result are obvious. "The admission of a report containing 'Conclusions' is subject to the ultimate safeguard -- the opponent's right to present evidence tending to contradict or diminish the weight of those Conclusions." Denial of this "ultimate safeguard" in the instant case was prejudicial reversible error.

A carrier covered by the Warsaw Convention cannot limit its liability to $75,000 if a plaintiff's damages were caused by the carrier's "wilful misconduct." Wilfulness as thus used involves the issue of intent, not an intent to violate an FAA regulation, but the intent to perform an act with knowledge that it probably will result in injury and with disregard of that probable consequence. Because the issue of intent, or state of mind, is crucial in any determination of wilful misconduct, the following generalizations concerning proof of intent will be helpful in the Discussion that follows. A court has no right to reject testimony dealing with a person's state of mind because it deems the testimony incredible or lacking in persuasive force. The pertinence of the above legal generalizations in the instant case is readily apparent. It cannot be gainsaid, for example, that resolution of the issue of wilfulness involves consideration by the jury of the mental processes of Pan Am officials. As stated above, the state of mind of these officials was a fact question to be proved the same as any other fact, and the district Judge had no right to reject testimony dealing with this fact because he deemed it incredible or unpersuasive. Any evidence which has a material bearing upon the intent with which a person acted and which fairly tends to a disclosure thereof, or which is explanatory of the intent or purpose with which an act was done, or is to be done, is admissible. The record is clear that both the district court and plaintiffs' counsel had ample notice of Pan Am's intention to offer evidence of Sonesen's conversation with Salazar concerning the propriety of using x-ray screening.

The district Judge even precluded Pan Am from showing that FAA officials inspected Pan Am's operations both before and after the bombing and made no complaints of irregularities. The district Judge's ruling on this issue is illustrative of his mind-set.

THE COURT: I'm satisfied, Mr. Shaughnessy, this is another back-door method of getting Mr. Sonesen's unilateral interpretation of his authority to bury the FAA regulations before this jury. I don't like you doing it. I think the next time you attempt to do it you should alert the Court that this is what you're attempting to do. I have ruled upon it. Had you gotten this before the jury before alerting me and one had been asleep, I probably would have had to declare a mistrial. We're six weeks into this trial. The law has been stated by me to be that based upon two Second Circuit decisions, both of which went to the Supreme Court and certiorari was denied, you have promised me that you were going to show me the law was otherwise. You haven't. You may not do this.

MR. SHAUGHNESSY: All I wanted was to ask the witness –

THE COURT: You attempted to get this FAA report in before this jury with, knowing that this man was operating under this assumption, that what they were doing was correct and was in direct violation of the FAA regulations, and he was doing it on the basis of this verbal authorization of Mr. Sonesen who said he had reached him. According to FAA officials, testified he didn't have, and the regulations themselves say he couldn't have, and you can't do it. You do it again and I'm going to have to take appropriate action.

A threat of contempt for attempting to introduce evidence that FAA officials who, after personally inspecting Pan Am's operations found no fault with them, is pretty strong medicine. However, it illustrates once again that the district Judge was fully aware of what Sonesen's testimony would have been.

Even my colleagues concede that the district court erred in excluding evidence of British Airway regulations which, in the face of bombings by Irish terrorist organizations, permitted Pan Am and other carriers to x-ray unaccompanied baggage at Heathrow Airport. I regret that in my colleagues' apparent eagerness to affirm, they hold this error to be harmless. It was not harmless. It went squarely to a crucial issue in the case, i.e., whether Pan Am knew that its use of x-ray screening probably would result in injury.
Evidence that, shortly after the Lockerbie accident the FAA amended its regulations so as to clarify the permissible use of x-ray screening, also went squarely to the issue of whether Pan Am should have anticipated danger in its pre-amendment use of x-rays. The district court's refusal to permit the jury to receive this evidence exacerbated all of the court's similar rulings that pervaded the trial. In short, it was another indication that the district court misunderstood the law. The issue was not whether Pan Am violated the regulation; it was whether Pan Am used x-ray screening with knowledge that its use would probably result in injury or in reckless disregard of the probable consequences.

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