3-1 

UNITE~ STATES OF AMERICA 

DEPARTMENT OF TRANSPO~'!!®f" E I v 

OFFICE OF HEARINcrsl c \...v ED 

JAN 0 5 2017 

IN THE MATTER OF: HEARING DOCKET 

PACIFIC INTERNATIONAL 

SKYDIVING, INC. , 

FDMS No. 

FAA-2014-1116 

Respondent 

Volume III 

Thursday, 

December 15, 2016 

District of Hawaii 

u.s. District Court 

300 Ala Moana Boulevard 

Honolulu, Hawaii 96580 

The hearing convened, pursuant to 

notice, at 9:00 a.m. 

BEFORE: 

THE HONORABLE DOUGLAS M. RAWALD, 

U.S. Administrative Law Judge 

(202) 234-4433 

NEAL R. GROSS 

COURT REPORTERS AND TRANSCRIBERS 

1323 RHODE ISLAND AVE., N.W. 

WASHINGTON, D.C. 20005-3701 (202) 234-4433 
3-2 

APPEARANCES: 

On Behalf of the Complainant: 

DON BOBERTZ, ESQ. 

of: Federal Aviation Administration 

Office of the Regional Counsel, AWP-7 

Western-Pacific Region 

P.O. Box 92007 

Los Angeles, California 90009-2007 

310-725-3454 

310-725-6816 (Fax) 

On Behalf of the Respondent: 

ROBERT L. FELDMAN, ESQ. 

of: Law Offices of Robert Feldman 

8900 SW 107th Avenue, Suite 203 

Miami, Florida 33176 

305-598-4841 

(202) 234-4433 

305-598-4842 (Fax) 

NEAL R. GROSS 

COURT REPORTERS AND TRANSCRIBERS 

1323 RHODE ISLAND AVE., N.W. 

WASHINGTON, D.C. 20005-3701 (202) 234-4433 
WITNESS 

Tom Sanders 

Paul McCowan 

(202} 234-4433 

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CONTENTS 

DIRECT CROSS REDIRECT RECROSS 

5 70 

142 

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117 

138 

135 

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1 P-R-0-C-E-E-D-I-N-G-S 

2 8:59 a.m. 

3 JUDGE RAWALD: Okay. It's December 

4 15th, 2016. We're back on the record in the case 

5 Pacific International Skydiving Center. When we 

6 last left, Mr. Sanders was on the stand. 

7 Mr. Sanders, if you could, please, go 

8 back to the stand. I want to remind you, sir, 

9 that you are still under oath. 

10 Also, I note before we start with Mr. 

11 Sanders' testimony, that before we started this 

12 morning, I did ask the parties to go ahead and 

13 make sure that any witnesses they intend to call 

14 would be at the courthouse this morning so we can 

15 go ahead and proceed directly when Mr. Sanders is 

16 done, with the next witness. 

17 So, Mr. Feldman, if you would continue 

18 your direct, please. 

19 MR. FELDMAN: I'm sorry, did you ask 

20 a question, Your Honor? 

21 JUDGE RAWALD: I asked you to go 

22 ahead. 

(202) 234-4433 

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1 MR. FELDMAN: Thank you. 

2 DIRECT EXAMINATION 

3 BY MR. FELDMAN: 

4 Q Mr. Sanders, we were discussing the 

5 videos yesterday shot by TK Hinshaw from the 

6 ground. But before I cover the second two 

7 videos, with respect to the clarity -- and you've 

8 watched all the videos in this courtroom, 

9 correct? 

10 A Yes, I have. 

11 Q With respect to the clarity of the 

12 videos appearing cloudy rather than sharp, is 

13 light reflection a factor in that? 

14 A Yes, definitely. There's many factors 

15 that can affect the sharpness. 

16 Q And can you explain why? 

17 A Well, you get if you're shooting 

18 without a sunshade, for instance, just the light 

19 that goes across the front of the lens will 

20 affect it. 

21 In the videos that we're viewing, most 

22 of what I think is affecting it is anything from 

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1 the salt in the air from the nearby beach, 

2 because the wind actually blows in towards where 

3 the filming was done, and all of the atmosphere 

4 that they're shooting through is, you know, a 

5 mile to three miles away. 

6 Q And is there an effect of moisture in 

7 the air - not clouds, but moisture in the air on 

8 the GoPro videos, in your opinion? 

9 A The moisture will affect it will 

10 disburse the light, for one. If you just have 

11 moisture in the air, it's going to cut the light 

12 a little bit. 

13 Q And does that make it appear cloudier 

14 than it actually is to the naked eye? 

15 A Like, if they pass by a cloud and the 

16 lighting is has dropped down, it will 

17 definitely affect the contrast. The f-stop is 

18 going to open up, because it's now darker, just 

19 like our eyes do. 

20 And when that happens, the contrast, 

21 the detail is going to be lost and it might even 

22 be focused more on the element of the GoPro 

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1 rather than out away from the GoPro. 

2 Q And in your opinion, did that affect 

3 the quality of the video shot in the air with 

4 respect - withdraw that. 

5 Did that affect - in your opinion, did 

6 that affect the accuracy of the GoPro videos 

7 taken in the air with respect to whether or not 

8 they were - the jumper ever entered a cloud? 

9 A Yes. Towards the end - towards the 

10 end of the jump, I believe it affected what the 

11 viewer would see, for sure. 

12 Q And that's because of the contrast? 

13 A As it - the one instance I'm thinking 

14 about in my mind, I know that the light drops as 

15 they fall behind a cloud. And since the light 

16 drops, all the detail is already immediately 

17 dropped. 

18 And the contrast that that one chip -

19 it's a microchip camera. It's famous for being 

20 small. It doesn't have three chips, it doesn't 

21 have big chips, it doesn't have a lot of 

22 complicated electric circuitry. 

(202) 234-4433 

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1 So, it's a very simple camera. And 

2 once it goes into the low light, it loses a lot 

3 of its information. 

4 Q Okay. I'm going to show you one of 

5 them for an example - well, without showing it to 

6 you, in some of the videos in the air, the 

7 cameraman looked up at the tandem pair opening 

8 above them and they were sharp and there was no 

9 evidence of lack of clarify. 

10 In your expert opinion, is there an 

11 explanation for this? 

12 A Well, they were opening -- the videos 

13 that I'm thinking of here, they were opening 

14 above and to the side of the cloud. So, they're 

15 in bright light. So, that's exactly where a 

16 GoPro does well. 

17 In real, nice, bright light, the f18 stop is closed down because there's lots of 

19 light. That increases the focus and the 

20 contrast, which increases the sharpness. 

21 Q And if that camera is out of focus, 

22 would that make the lens shot appear cloudy? 

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1 A It could. 

2 Q And in your opinion, did that occur in 

3 these aerial videos shot with the GoPros? 

4 A I think there's moisture that's 

5 actually on or in the camera or right in front of 

6 it affecting it the most. 

7 Q Let's talk about that. 

8 Do lenses fog up in free fall? 

9 A Frequently in places like Hawaii, 

10 Florida, Thailand, Guam, tropical places. It's 

11 so common that a free fall cameraperson will 

12 carry a rag in their pocket. 

13 When we open up under canopy, our 

14 ringsight will be fogged up. That will tell us 

15 that our cameras fogged up. Our eyes didn't fog 

16 up, but our ringsight will. And that's included 

17 - we have to clean our camera lens off, because 

18 otherwise everything else we shoot is going to be 

19 useless. 

20 So, you get down and you land first. 

21 And when the tandem comes down, you want to have 

22 your lens clean. So, it's a super common 

(202) 234-4433 

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1 practice to have a lens to clean it up. That's 

2 how common it happens. 

3 JUDGE RAWALD: Sir, could you -

4 BY MR. FELDMAN: 

5 Q Is there a way to prevent 

6 JUDGE RAWALD: Sorry, Mr. Feldman. 

7 Could you define what a ringsight is? 

8 THE WITNESS: Yeah. It's actually an 

9 old military gun sighting technology that is 

10 still used today. So, basically, we can't see 

11 through the cameras, but we have a targeting 

12 device. 

13 And it is a glass element, so it gets 

14 real cold in free fall. Reacts just like the 

15 lens. 

16 So, that's the clue to the free fall 

17 camera in that their cameras fog, is that the 

18 ringsight will fog. Some cameramen don't use a 

19 ringsight, but it's for framing. 

20 

21 camera? 

22 

(202) 234-4433 

JUDGE RAWALD: So, it's on your 

THE WITNESS: It's on the helmetNEAL R. GROSS 

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1 JUDGE RAWALD: Okay. 

2 THE WITNESS: extending down in 

3 front of your eye for a targeting device. 

4 JUDGE RAWALD: Understood. Thank you. 

5 Mr. Feldman. 

6 BY MR. FELDMAN: 

7 Q Where are the GoPro cameras typically 

8 located on a parachute jump? 

9 A On the top of the helmet. 

10 Q And which way do they face? 

11 A Forward. 

12 Q And is it ever possible to look 

13 straight down with a GoPro camera mounted on top 

14 of the helmet? 

15 A Well, it doesn't really matter who you 

16 are, you can't get your chin past - your chin 

17 bone here. So, when I want to see my feet and 

18 they're under canopy, I bring my feet up. I 

19 can't bring my head down anywhere. So, it's very 

20 hard to get beyond about a 45-degree angle when 

21 you're under canopy. 

22 Q 

(202) 234-4433 

So, in viewing the videos in this case 

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1 that were shot in the air, did you see any video 

2 taken by the cameraman where he was looking 

3 straight down prior to his actual opening of his 

4 own parachute canopy? 

5 A No. 

6 Q And not looking straight down, does 

7 that affect do you have an opinion as to 

8 whether or not if it appeared that clouds were 

9 around the cameraman, whether or not he was in a 

10 cloud? 

11 A I think it would affect it. We have 

12 to see straight down. We do get a look at 

13 straight up as the tandem is opening and we see 

14 the clearness and the fact that a cloud is off to 

15 the side, but it's harder for the cameraman to 

16 see straight down. 

17 Q And he could not do that if he were 

18 face to earth or back to earth, correct? 

19 A Back to earth, no way. Face to earth, 

20 it's difficult, but you can- you could probably 

21 get back there, but during deployment, you don't 

22 want your camera pointed downward like that. 

(202) 234-4433 

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1 In fact, if anything, you kind of put 

2 your shoulders around your neck and hold it. And 

3 during the deployment, you don't want to have a 

4 hard opening. So, if you're looking down, more 

5 chance that you're going to have your head whip 

6 back and injure yourself. So, that's not what we 

7 do at opening. We don't look down. 

8 Q Now, you're a pilot, correct? 

9 A Yes. 

10 Q And in the training to be a pilot, you 

11 studied weather, correct? 

12 A That's true. 

13 Q Okay. Can you explain why clouds 

14 form? 

15 A Well, it's on the temperature of the 

16 air and the dew point, the moisture condenses 

17 from a gas to a visible form into water. So, 

18 it's a temperature change with the moist air. 

19 Q So, would you expect the lens to fog 

20 up at the same altitude as clouds form? 

21 A 

22 

(202) 234-4433 

Yes. 

MR. BOBERTZ: Objection, Your Honor. 

NEAL R. GROSS 

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1 This witness hasn't been - I understand a pilot 

2 has some weather experience, but it sounds like 

3 he's going into more of a weather expertise area 

4 of questioning. 

5 JUDGE RAWALD: No, I agree. I'm going 

6 to give this testimony here just lay witness 

7 value and not any sort of expertise to it, 

8 counsel. So, the objection is sustained. 

9 BY MR. FELDMAN: 

10 Q Okay. In your experience as a free 

11 fall camera person, did your lens fog up at the 

12 same level at which clouds were present? 

13 A At the same level, but it doesn't mean 

14 you have to go through a cloud. It's the 

15 temperature that if the lens gets really, 

16 really cold and you get to warm air even if 

17 there's not- you're not falling through a cloud, 

18 you will get foggy. 

19 When we get foggy on our wing-mounted 

20 cameras when we're flying around in our aircraft 

21 -- we have an outside camera and the lens gets 

22 really cold, if we go up to five or 6,000 feet, 

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1 it gets cold and we drop down without going 

2 through any cloud, just the temperature change 

3 will put moisture on the lens, but it's 

4 temperature change. 

5 Q And to an uninformed viewer, would 

6 that appear when they looked at the video, to be 

7 a cloud rather than condensation? 

8 A Yes. 

9 Q Is there any weather reporting at 

10 Dillingham Airport, where you stated you fly six 

11 or seven day a week, I believe, is there any 

12 weather reporting of winds aloft as opposed to 

13 ground winds, at the airport? 

14 A There's no winds aloft report at 

15 Dillingham, just ground winds. 

16 Q And in your experience as a skydiver 

17 with thousands of jumps and your experience in 

18 camera work, do you drift horizontally in free 

19 fall? 

20 A Almost every day. It's very - very 

21 rare that there's no upper wind. 

22 wind, you're drifting. 

(202) 234-4433 

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So, if there's 

(202) 234-4433 
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1 Q And would you be drifting at the speed 

2 of the wind horizontally while you're falling 

3 vertically? 

4 A Yeah. I kind of look at it like if 

5 you're standing next to a stream that's flowing 

6 and you move into the stream, you just - you're 

7 in that current. 

8 So, whatever layer you're at, it's a 

9 current of air. And when you're in it, everybody 

10 moves in that current. 

11 Q And at the same time, you're falling 

12 vertically, but you're drifting horizontally, 

13 correct? 

14 A Yes. 

15 Q Is there any way to predict on any 

16 given jump, how far you would travel 

17 horizontally? 

18 A Not with precision. There's a lot of 

19 things that we do to - and we know here in Hawaii 

20 that it's going to be from the east most days, 

21 but we we get wind aloft forecasts and 

22 sometimes they're right, sometimes they're wrong. 

(202) 234-4433 

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1 After a load has gone up, they can 

2 tell the other jumpers, you know, go out further, 

3 that kind of thing. So, it gets refined 

4 throughout the day, but it's not precise. 

5 JUDGE RAWALD: I'm sorry, sir. Maybe 

6 I misheard. You just said you get wind aloft 

7 forecasts. Previously you said there is no wind 

8 aloft forecast. 

9 THE WITNESS: You can get - not at 

10 the airport. 

11 JUDGE RAWALD: Okay. 

12 THE WITNESS: But even on your iPhone, 

13 you can get winds aloft. 

14 JUDGE RAWALD: So, you're able to get 

15 winds aloft, but it's not an official one for the 

16 airport, sir? 

17 THE WITNESS: That's correct. 

18 JUDGE RAWALD: Okay. 

19 THE WITNESS: And it's just a 

20 forecast. It's not a measured wind. They don't 

21 send up balloons anymore. 

22 

(202) 234-4433 

JUDGE RAWALD : I understand. 

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Thank 

(202) 234-4433 
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1 you for clarifying that for me. 

2 BY MR. FELDMAN: 

3 Q So, do you ever get actual winds aloft 

4 prior to a jump, rather than a forecast? 

5 A No. 

6 Q And do those winds aloft change with 

7 different altitudes? 

8 A Yes. 

9 Q In what way? 

10 A Generally, it's going to be clockwise. 

11 I mean, it's going to change between a thousand 

12 and 3,000, and 3,000 and 5,000. All the way up 

13 it changes and it usually clocks around, but it's 

14 different levels and it's completely different 

15 speeds. So, it's not even consistent velocity. 

16 You could be 10 miles an hour at a 

17 thousand feet, and you can be 26 at 3,000 feet. 

18 Q And do they change with - do the winds 

19 aloft change without warning? 

20 A Yes. 

21 Q So, if you jumped out of the airplane 

22 and the winds aloft had changed from the prior 

(202) 234-4433 

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1 jump, you would have no way of knowing prior to 

2 actually being in free fall in the wind, correct? 

3 A That's correct. 

4 Q Now, how strong are the typical winds 

5 over Dillingham from 14,000 feet to 4,000 feet? 

6 A I think it's usually in the 15 to 25 

7 is consistent, but we get them higher than that, 

8 and rarely lower. 

9 Q And higher than that would be what? 

10 A 30-40 miles an hour. 

11 Q And so, if you jumped out of the 

12 airplane and you were in free fall for 30 

13 seconds, you would be exposed to something 

14 pushing you at 25 miles an hour, and possibly 

15 even 30 to 40 miles an hour, horizontally while 

16 you fell vertically? 

17 Is that a fair statement? 

18 A Yes. You're drifting. 

19 Q In fact, on jumps you make, what is 

20 tracking? 

21 A Tracking is a forward movement that 

22 you can gain by doing what you showed the other 

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1 day where you bring your arms to your side and 

2 straighten your legs so it creates all the lift 

3 in the back of your body. And you're basically 

4 just body surfing air so you'll actually be 

5 propelled forward. 

6 Q Are there occasions when you jump 

7 where you have drifted and you realize it and 

8 have to track to get back to where you want to 

9 open your parachute? 

10 A Yes. That's common. 

11 Q That's common? 

12 A Uh-huh. 

13 Q Can the tandem pair track? 

14 A No. 

15 Q so, they are basically at the mercy of 

16 the wind; is that correct? 

17 A Until their parachute opens, they are 

18 pretty much at the mercy of the wind. When the 

19 parachute opens, they have a little bit more 

20 control. 

21 Q Okay. Let ' s go back to the videos 

22 where we left off. I'm going to start with A14 

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1 and we'll go 3:30 into this video. Three 

2 minutes, 30 seconds. 

3 Now, looking at this video at three 

4 minutes, 30 seconds, do you see a single layer of 

5 clouds, or multiple layers of clouds? 

6 A Multiple. 

7 Q Multiple. And let's go to 4:17. 

8 At 4:17, do you also see single layer, 

9 or do you see multiple layers of clouds? 

10 A To me, I see multiple, but it's also 

11 limiting looking at it on a one-dimensional 

12 thing. I'm not at the airport looking with two 

13 eyes, but it's going all the way up, you know, in 

14 the sky at different levels, from what I pick up 

15 from this monitor. 

16 Q Let's go to 5:28. And I'll go to 5:27 

17 and I'll start playing it. We don't have audio. 

18 Let's see why we don't have audio. Let's try 

19 this. 

20 (Playing video.) 

21 Q Okay. Are there multiple layers of 

22 clouds there? 

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1 A Yes. 

2 Q Let's go to 5:30 and 15 frames. 

3 Do you see a canopy there? 

4 A I do. 

5 Q Now, another canopy will appear below 

6 it. I want you to watch the visibility of it. 

7 And as we go forward, do you see where 

8 it is? 

9 A I do. 

10 Q Do you still see it there? 

11 A Yes. 

12 Q That's at 5:31. 

13 Do you still see it at 5:30? 

14 A No, I just lost you. 

15 Q Okay. Now, is there a reason other -

16 in your opinion, other than that jumper is coming 

17 out of the cloud, that he suddenly appears in 

18 this shot at 5:30 and 24 frames? 

19 A I think there's quite a few reasons. 

20 Q And would you explain what they are? 

21 A Well, first of all, it might have been 

22 a free falling body that's too small to see. A 

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1 parachute is enormous compared to the free 

2 falling body. 

3 It's also possible there is a cloud 

4 there between the camera, maybe multiple, but at 

5 least one cloud layer blocking in between where 

6 the camera is, which is a long ways away. 

7 There's also the moisture that's going to be -

8 come back in. 

9 What we're looking at, again, you have 

10 to always remind yourself is that background that 

11 we see in there is not what they're falling 

12 through. That's the background from TK's view 

13 aimed out there at the sky. That's not what's 

14 above them. 

15 So, I have no way of knowing - it's 

16 going to be the same on all of those. It's - I 

17 think it's - unless you are directly underneath 

18 it, there's no chance of knowing. 

19 Q So, in your opinion, none of these 

2 0 videos are useful in determining - are none of 

21 these videos useful in determining whether or not 

22 any jumper jumped into or through a cloud? 

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1 A They don' tell me a thing. 

2 What appears to happen on camera may 

3 not be happening at all. And it - I don't even 

4 see a free falling body for the free falling 

5 part. 

6 I see the canopy. When the canopy is 

7 open, they just steer around the clouds. Now, 

8 they have control. They can go wherever they 

9 want to go. 

10 So, if you see them go behind a cloud, 

11 they didn't do that. They're steering. At that 

12 point, they can fly wherever they want. So, I 

13 have no belief from this angle, that any of this 

14 proves going through clouds. 

15 Q So, is it more likely or not, in your 

16 opinion, that they did not go through a cloud? 

17 A Yes, it's more likely that they did 

18 not. 

19 Q And would that also apply to the one 

20 at 5:38 and 11 frames, if we play it forward from 

21 there, would it also apply to the second tandem 

22 there that was visible at - not visible at 5:38 

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1 and seven frames, but is visible, clearly, at 

2 5:39 and 27 frames? 

3 A All of the things I said would apply. 

4 Plus, it was out of focus and it became visible 

5 as he zoomed in, made the images bigger, too. 

6 So, they could have been so small that his wide 

7 angle that there's just what looked like a drop 

8 of dirt on there, but focus and zooming in, 

9 making the images bigger, is why they appeared. 

10 Q So, at 5:38 and 23 frames, is the 

11 camera in focus, or out of focus? 

12 A Out of focus. It's difficult to tell 

13 until you start seeing the jumpers in the 

14 canopies, and they're out of focus too. 

15 Q And at 5:39 and 29 frames, which is a 

16 little over one second later, is the camera in 

17 focus, or out of focus? 

18 A Out of focus, or there's so much 

19 moisture it can't get sharp. 

20 Q And at 5:41 exactly, do you see single 

21 or multiple layers of clouds in that shot? 

22 A 

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Multiple. 

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1 Q Now, at 12:30 and 28 frames into the 

2 video, do you see single or multiple levels of 

3 clouds? 

4 A Multiple. 

5 Q I'll play this from here. 

6 (Video playing.) 

7 Q Now, what he said about the winds, I 

8 believe it was 1-7-0 at 1-5 gusting to 2-5, 

9 correct? 

10 A I didn't remember the -

11 Q Okay. 

12 A heading, but I did hear the 

13 velocity. 

14 Q I'll play it again. 

15 (Video playing.) 

16 Q Now, we don't know if that's ground 

17 wind or winds aloft. But since Mr. Hinshaw was 

18 shooting from the ground if we - if we presume 

19 that that was ground wind, would the winds aloft 

20 be stronger or weaker? 

21 A 

22 

(202) 234-4433 

Normally stronger. 

(Video playing. ) 

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3-27 

1 Q I'm going to go forward. This is at 

2 12:30 that we began at. Now, we go forward to 

3 14:02 - I'll start at 14:00. 

4 (Video playing.) 

5 Q Now, he looked at his watch there and 

6 then at 14:12 and 19 frames there's a shot of the 

7 sky. 

8 In your opinion, was there an edit 

9 made at that point? 

10 A Yes. 

11 Q And why do you say that? 

12 A Well, it went from the shot in his 

13 hand to the sky and it seems to be a completely 

14 different scene. 

15 JUDGE RAWALD: Mr. Feldman, I would 

16 note that the witness did address this on direct 

17 and he said that he stopped the camera at this 

18 point and restarted it. 

19 I mean, you are free to probe into 

2 o this, but we already have testimony regarding 

21 this exact incident, on the record. 

22 

(202) 234-4433 

MR. FELDMAN: Well, normally, Your 

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3-28 

1 Honor, when the witness stopped the camera, we 

2 saw a shot of a watch after he stopped the 

3 camera. 

4 JUDGE RAWALD: That goes to cross 

5 examination of Mr. Hinshaw about why it was 

6 different as far as what he did here, but he 

7 already said that he stopped the camera and 

8 restarted it here. 

9 I will listen to the testimony of this 

10 witness on the issue, but we have testimony where 

11 the witness who did said that he did something. 

12 And so, this is kind of impeachment testimony 

13 without actual basis because the witness 

14 testified what he did. 

15 MR. FELDMAN: Thank you. 

16 (Video playing.) 

17 BY MR. FELDMAN: 

18 Q Let's just determine the point at 

19 which that scene changes. 

20 (Video playing.) 

21 Q It's approximately 14 minutes, 10 

22 second and 21 frames into the shot. 

(202) 234-4433 

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3-29 

1 Can we determine from this video, how 

2 long the camera was off? 

3 A No. 

4 Q If we had the camera metadata, would 

5 we be able to determine that? 

6 A Yes. 

7 Q Why? 

8 A Because it would record the time that 

9 the recording stopped. That would be the last 

10 frame that's captured. And then it would start 

11 with a new one and it would capture that time as 

12 well. It would be there. 

13 Q Now, this camera, does it - when you 

14 stop it, does it the camera stores its 

15 information in files; is that correct? 

16 MR. BOBERTZ: Objection, Your Honor. 

17 BY MR. FELDMAN: 

18 Q How does -

19 MR. BOBERTZ: The witness is getting 

20 into more of an expertise on - especially on this 

21 particular camera again. 

22 

(202) 234-4433 

JUDGE RAWALD: Right. And once again, 

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3-30 

1 Mr. Sanders has testified that he never actually 

2 used this camera. He's basing it upon his 

3 knowledge of cameras generally, which we're 

4 allowing because he is a videographer. But the 

5 storage of the media on a camera which he's never 

6 used before, I'm not going to allow testimony 

7 regarding that, counsel. 

8 So, we did hear from the witness who 

9 owns the camera, that there are individual files 

10 created by starting and stopping. And then we 

11 uploaded them, he uploaded the individual files, 

12 which, of course, is going to be used as far as 

13 the basis for an assertion that, hey, this isn't 

14 the best evidence, when I discuss the credibility 

15 of the evidence. 

16 But I think Mr. Sanders is not the 

17 appropriate witness to give any more evidence 

18 than we already have from Mr. Hinshaw, sir. 

19 MR. FELDMAN: I'll move on. 

20 JUDGE RAWALD: The objection is 

21 sustained. 

22 (Video playing.) 

(202) 234-4433 

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3-31 

1 BY MR. FELDMAN: 

2 Q Is there an issue that you see as to 

3 accuracy of times in these videos, because of 

4 watches being used to display the actual time the 

5 video was taken? 

6 A I can't -

7 MR. BOBERTZ: Calls for speculation. 

8 JUDGE RAWALD: Yes, sir. And I think 

9 his answer was going to say he can't tell. So 

10 and it's related to argument, so the objection is 

11 sustained. 

12 (Video playing.) 

13 BY MR. FELDMAN: 

14 Q He said he pointed his- he's pointing 

15 his camera straight up. 

16 In your opinion, is the camera pointed 

17 straight up? 

18 A No. 

19 Q And why do you have that opinion? 

20 A We don't exit straight up, for 

21 starters, when the winds are blowing 15 to 2 5 

22 miles an hour. 

(202) 234-4433 

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3-32 

1 And for me, it doesn't appear that -

2 the angle, to me, looks like it's out towards the 

3 exit point. 

4 JUDGE RAWALD : Sir, if you could 

5 explain, what about the image makes you think 

6 that the angle of the camera is not straight up 

7 from the person filming it? 

8 THE WITNESS: It's just the perception 

9 that I'm getting looking at it. Maybe it's 

10 because of 38 years of camera experience that -

11 JUDGE RAWALD: That's fine. 

12 THE WITNESS: -- I can tell something, 

13 but I can't describe it, but it's just my 

14 observation besides the fact -

15 JUDGE RAWALD: Okay. 

16 THE WITNESS: we don't jump 

17 straight up and it appears, to me, to be at an 

18 angle. 

19 JUDGE RAWALD: so, because he's 

20 capturing jumpers and you assume that they cannot 

21 be directly above him, therefore, that's part of 

22 your assessment here? 

(202) 234-4433 

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3-33 

1 THE WITNESS: That's part of it. 

2 JUDGE RAWALD: Okay. Thank you. 

3 BY MR. FELDMAN: 

4 Q And are you looking at the bottoms of 

5 the clouds in the lower part of this screen, or 

6 the sides of the clouds? 

7 A It's a pretty low contrast image. 

8 It's hard to get any detail out of what's been 

9 shot and dubbed over and onto this. I'm just 

10 seeing broken clouds that are compacted in with 

11 the lens. 

12 (Playing video.) 

13 Q 

14 

15 Q 

16 see blue 

17 A 

18 Q 

19 clouds in 

20 A 

21 Q 

22 blue sky? 

(202) 234-4433 

That was 14:57 into the video. 

(Playing video.) 

Now, in this image at 15: 14, do you 

sky in this image? 

Yes. 

And do you see multiple layers of 

this image? 

Yes. 

And where in this image, do you see 

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1 MR. BOBERTZ: Objection. The video 

2 speaks for itself. I don't think we need to hear 

3 his continuous testimony about this video that 

4 it's obvious from viewing it, where you see blue 

5 sky. 

6 JUDGE RAWALD: Well, I'm going to 

7 allow the question to be answered, because part 

8 of the issue here is the quality of the video 

9 makes it hard to, actually, for a lay observer, 

10 to tell what's blue and not. 

11 And so, you're asking the expert here 

12 to see if based upon his expertise, he can tell 

13 what this amateur camera would have portrayed as 

14 a blue sky. 

15 So, I'm going to allow the question. 

16 Objection overruled. 

17 MR. FELDMAN: Thank you, Your Honor. 

18 THE WITNESS: There's a preponderance 

19 of blue in the bottom left hand, but there's blue 

20 scattered throughout the - all the way to the top 

21 of the frame, and even towards -- partly to the 

22 top right of the frame. 

(202) 234-4433 

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3-35 

1 So, there's blue throughout it. But, 

2 again, what we're looking at is not even really3 when we see blue there, that's not the 

4 particularly where they're falling if we're 

5 shooting at an angle. They could be straight 

6 above in a much bigger blue hole. 

7 (Playing video.) 

8 BY MR. FELDMAN: 

9 Q Now, in this shot at 15:49 and 06, 

10 there appears to be a bright light at the upper 

11 right-hand corner of the frame. 

12 Do you know what that bright light is? 

13 A It should be the sun. 

14 Q And if you see the sun, does that 

15 indicate that there's blue sky where the sun is? 

16 A It would be much clearer over there, 

17 yes. 

18 (Playing video.) 

19 Q 

20 

21 Q 

22 A 

(202) 234-4433 

Says, "There's one. There's two." 

(Playing video.) 

Do you see any jumpers in that frame? 

No. 

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1 

2 

3 

4 

5 

6 

7 

8 

9 

10 

11 

12 

13 

14 

15 

~ : 

i: 

16 

17 

18 

19 

20 

21 

22 

3-36 

JUDGE RAWALD: And that's at 16:24. 

(Playing video.) 

BY MR. FELDMAN: 

Q Do you see any parachutes in this 

video at 16:59 and nine - 16:55 and nine frames? 

A No. 

(Playing video.) 

Q And now we see a parachute - do we see 

a parachute in this frame -

A Yeah, I saw -

Q -- at 17:19 and three frames? 

A Yes. I saw it a little bit earlier 

when he had it higher in the frame as well. 

Q When he had, what? 

A I saw it a little bit earlier, if you 

want to back it up. 

Q Now, do we see that jumper in the 

lower right-hand corner at 14:10, 20? 

JUDGE RAWALD: I'm sorry, sir. This 

is 17:13. You're reading the time remaining. 

(202) 2344433 

MR. FELDMAN: I 'm sorry. 

JUDGE RAWALD: That's okay. 

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1 BY MR. FELDMAN: 

2 Q 17:13, 25, do we see a jumper in the 

3 frame? 

4 A I may see one canopy that's looking 

5 like two kind of down in the bottom almost 

6 center. 

7 Q Okay. Now, let's look at the canopy 

8 as I move forward. 

9 Do you see at 17:13, 14, do you see 

10 the canopy almost in the center of the frame -

11 A But -

12 Q -- very small? 

13 A But low? 

14 Q No. 

15 JUDGE RAWALD: He's still referring to 

16 the same one that he was referring to all 

17 throughout, the one that's sort of reddish 

18 appearance or in the center of the frame. 

19 

20 

21 Q 

22 frames. 

(202) 234-4433 

THE WITNESS: Okay. Yeah, I see that. 

BY MR. FELDMAN: 

Let's back it up from 17:15 and 16 

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3-38 

1 Do you see them at 17:13 and 17 

2 frames? 

3 A Yes. 

4 Q Is there a blue sky above him, or is 

5 it a cloud, if you can tell? 

6 A All I can see is what 1 s behind him 

7 from this angle. So, I see broken sky out there, 

8 but I don 1 t know what 1 s directly above him from 

9 this angle. 

10 Q Okay. Is there a multiple layer of 

11 clouds in this frame? 

12 A Yes. 

13 Q And prior to this, would that 

14 "multiple layer, " does that mean that there 1 s a 

15 cloud layer below him? 

16 A Yes. 

17 Q And would that be - from the vantage 

18 point of this camera, would that block the view 

19 of this jumper prior to the point where he comes 

20 out to the edge - to the side of that cloud below 

21 him? 

22 A 

(202) 234-4433 

Yes, it could. 

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3-39 

1 Q Okay. In this video that you've seen 

2 up to 17 minutes, 18 seconds and 24 frames, did 

3 you see any jumper pennant going through a cloud? 

4 A No. 

5 (Playing video. ) 

6 Q Now, he's panning the camera to the 

7 right here. 

8 Is that where the jumpers got out 

9 where the camera is pointing now at 17:33, 15? 

10 A I don't believe so. 

11 (Playing video.) 

12 Q We're going to 29:50. Start at 26:09. 

13 (Playing video. ) 

14 Q Now, at this 26:40, 40, in this video, 

15 TK Hinshaw asks on the radio ''A Pappa Alpha, say 

16 again what the winds are,'' correct? 

17 Did you hear that? 

18 A 

19 Q 

20 that? 

21 A 

22 

(202) 234-4433 

Yes. 

And would he have a reason for asking 

He was asking about the -

MR. BOBERTZ: Calls for speculation. 

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3-40 

1 THE WITNESS: He was asking about the 

2 clouds. 

3 JUDGE RAWALD : Sir, when there's an 

4 objection, you can't answer the question until I 

5 rule on the objection. 

6 THE WITNESS: Okay. 

7 (Playing video.) 

8 JUDGE RAWALD: Mr. Feldman, please 

9 stop the video. I 'm ruling on the object ion. 

10 Stop the video. 

11 MR. FELDMAN: I thought you were done. 

12 I thought you ruled on it. 

13 JUDGE RAWALD: How have I ruled? Did 

14 I say "sustained" or "overruled," sir? Have you 

15 heard either one of those words? 

16 MR. FELDMAN: I thought I heard -

17 JUDGE RAWALD: I had not heard either 

18 of those words, Mr. Feldman. 

19 MR. FELDMAN: I apologize. 

20 JUDGE RAWALD: Thank you. Okay. So, 

21 there's an objection on the table, which is this 

22 is speculation. 

(202) 234-4433 

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3-41 

1 Your witness has not answered the 

2 question yet. So, let's wait for the witness to 

3 answer the question after I rule, before you move 

4 the videotape. 

5 So, the objection was this calls for 

6 speculation. Your question was, why would TK 

7 Hinshaw be asking that question? 

8 That is speculative, because he's not 

9 TK Hinshaw. You can ask him a question about why 

10 someone would be curious of that fact, but you 

11 cannot ask it the way you asked it. 

12 So, the objection is sustained, sir. 

13 MR. FELDMAN: Thank you. 

14 (Playing video.) 

15 BY MR. FELDMAN: 

16 Q I'm going to 29:32. 

17 (Playing video.) 

18 Q TK Hinshaw said, ''There they are,'' at 

19 30:16 into the video. 

20 Do you see any jumpers in that frame? 

21 A 

22 

(202) 234-4433 

No, I don't. 

(Playing video.) 

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3-42 

1 Q Stopping it at 30:27, 20, do you see 

2 a white object in the frame? 

3 A I do. 

4 Q And what is that object? 

5 A That would be the drogue pilot chute 

6 for a tandem. 

7 (Playing video.) 

8 Q And was that in clouds, or did it 

9 appear - it was seen in blue skies. 

10 Is that a correct statement? 

11 A There was blue sky in the background. 

12 I wouldn't say he's in blue sky, but I'm not 

13 looking at what is in his area from this angle. 

14 Q And is that because he's farther away 

15 and what's below him is unable to be seen? 

16 A Yes. 

17 MR. BOBERTZ: Objection. 

18 Argumentative. Leading. 

19 JUDGE RAWALD: Well, it's really asked 

20 and answered. He's already- he's already stated 

21 it numerous times that no matter where this 

22 person is, he can't tell because they're not 

(202) 234-4433 

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3-43 

1 directly underneath. 

2 And he's doing it fairly, seemingly, 

3 for both cloud cover and for blue sky, from what 

4 I'm hearing the gentleman say; is that correct, 

5 sir? 

6 THE WITNESS: Yes. 

7 JUDGE RAWALD: Okay. So, the 

8 objection is sustained for the asked and 

9 answered. 

10 (Playing video.) 

11 JUDGE RAWALD: Mr. Feldman, is there 

12 a question coming? 

13 MR. FELDMAN: Yes, Your Honor. 

14 JUDGE RAWALD: Okay. 

15 MR. BOBERTZ: Excuse me, Your Honor. 

16 JUDGE RAWALD: Yes. 

17 MR. BOBERTZ: If I could just have -

18 I know we discussed it already, but if I could 

19 have two minutes to break -

20 JUDGE RAWALD: Recess. 

21 MR. 

22 appreciate it. 

(202) 234-4433 

BOBERTZ: I 

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would really 

(202) 234-4433 
3-44 

1 JUDGE RAWALD: Okay. We'll take a 

2 five-minute recess. 

3 MR. BOBERTZ: Thank you. 

4 (Whereupon, the above-entitled matter 

5 went off the record at 9:48 a.m. and resumed at 

6 9:52 a.m.) 

7 JUDGE RAWALD: Okay. We 're back on 

8 the record after a brief recess. Mr. Sanders 

9 remains on the stand. 

10 Mr. Feldman, please continue. 

11 BY MR. FELDMAN: 

12 Q Starting at 3 8 minutes, 41 seconds 

13 into the video A14. 

14 (Playing video.) 

15 JUDGE RAWALD : Mr. Feldman, will you 

16 just -

17 MR. FELDMAN: Yes. 

18 JUDGE RAWALD : Is there a question 

19 corning? I just want to make sure. 

20 

21 

22 

(202) 234-4433 

MR. FELDMAN: Yeah. 

JUDGE RAWALD: Okay. Thank you. 

BY MR. FELDMAN: 

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3-45 

1 Q Looking at the video at 31:06 and 12 

2 frames, as I advance it, do you see a canopy 

3 coming in at the lower right-hand quadrant? 

4 A Yes. 

5 Q And watching that as I advance through 

6 the frames, do you see that canopy at any point 

7 going into or through a cloud? 

8 A No. 

9 Q Moving on to A15, we'll go to 35 

10 seconds in. Backing up to 33 seconds and I'll 

11 play it at a normal speed from here. 

12 (Playing video.) 

13 Q Now, looking at - did you see a jumper 

14 on the right-hand side of this frame? 

15 A I did. 

16 Q And is that the jumper that becomes 

17 visible after the pan? Is that the one to which 

18 you're referring? 

19 A Yes. 

20 Q As I advance in slow motion, I want 

21 you to look and give me an opinion on whether or 

22 not this jumper went through a cloud or into a 

(202) 234-4433 

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3-46 

1 cloud. 

2 JUDGE RAWALD: And just for clarity on 

3 the record, what Mr. Feldman is referring to as 

4 "the pan," is that the camera then started to 

5 move to the right. So, it panned, and that's 

6 what he's referring to with the witness. 

7 BY MR. FELDMAN: 

8 Q Now, he's panning left again at zero 

9 minutes, 43 seconds and two frames into the 

10 video. 

11 In that entire time that that jumper 

12 was visible, did you ever see him go into or 

13 through a cloud? 

14 A No. 

15 Q At 1:22 and 18 frames, do you see 

16 canopies in this image? 

17 A 

18 Q 

19 A 

20 Q 

21 image? 

22 A 

(202) 234-4433 

Yes. 

How many do you see? 

Three. 

Can you tell what is above him by this 

No. 

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3-47 

1 Q Are you looking directly up at them in 

2 this image? 

3 A No. 

4 Q How can you tell? 

5 A The shape of the parachutes, you can 

6 see that that's definitely not looking straight 

7 up at the canopy. It's the shape. 

8 Q Now, I'm backing it up to 1:18 and I 

9 want you to look at the bottom and tell me if you 

10 see a canopy come into frame. 

11 A Yes. 

12 Q Is that canopy coming into frame below 

13 the clouds or in front of the clouds? 

14 A There's so little contrast here I 

15 can't tell. 

16 Q And is that shot at one minute, 18 

17 seconds and 16 frames in focus, our out of focus? 

18 A It's out of focus. 

19 Q I'm going to go to one minute, 3 7 

20 seconds and 14 frames in and ask you to look at 

21 the left-hand upper quadrant of the screen and 

22 tell me when you see a canopy appear in view, if 

(202) 234-4433 

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3-48 

1 you do. 

2 A Now. 

3 Q Is that canopy in a cloud at that 

4 point at one minute, 38 seconds and nine frames? 

5 A No. 

6 Q And did you - can you tell whether 

7 that canopy - what - can you tell what is above 

8 that canopy rather than what is behind that 

9 canopy? 

10 A No. 

11 Q Now, here, disregarding the bird at 

12 2:05 into the frame, do you see canopies here? 

13 A Yes. 

14 Q Can you tell from this video, whether 

15 they jumped into or through a cloud? 

16 A No. 

17 Q And, again, at two minutes, 12 seconds 

18 and six frames in, there's a bright spot at the 

19 lower left quadrant of the screen. 

20 Do you know what that is? 

21 A It's either a clearer sky or brighter, 

22 because the sun is over in that direction. 

(202) 234-4433 

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3-49 

1 Q Now, here at 2:50 and - two minutes, 

2 50 seconds and 18 frames, is the camera in or out 

3 of focus? 

4 MR. BOBERTZ: Objection, Your Honor. 

5 This is getting very repetitive. I think we've 

6 made the points on these and they seem to be just 

7 very repetitive. And in the interest of the 

8 court's time, I would9 JUDGE RAWALD: Just when I think it's 

10 repetitive, something new gets said by the 

11 witness. So, I'm going to allow it to go on for 

12 the moment, counsel. The objection is overruled, 

13 but I do note that. 

14 And I have made the admonition to Mr. 

15 Feldman yesterday to please focus on new things. 

16 I think he's been making a good effort here to 

17 try to focus on new things. So, I 'm going to 

18 allow him a little more room here to maneuver. 

19 MR. FELDMAN: Thank you, Your Honor. 

20 BY MR. FELDMAN: 

21 Q Now, at two minutes, 50 seconds and 18 

22 frames, you stated the camera was out of focus? 

(202) 234-4433 

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3-50 

1 A It's out of focus. 

2 Q Now, I want you to watch a jumper that 

3 appears when the camera comes into focus. 

4 Do you see a - do you see a dark spot 

5 almost in between those two open canopies? 

6 A I do. 

7 Q Okay. And as I move slowly through it 

8 from - now, at two minutes, 49 seconds and 28 

9 frames, that jumper in between the two open 

10 canopies is not visible, correct? 

11 A That's correct. 

12 Q And as the camera pans, does that 

13 jumper become visible? 

14 A It was kind of a tilt down, yes. 

15 Q okay. Now, watch it from this point 

16 now at two minutes, 50 seconds and three frames. 

17 The jumper goes out of the frame at 

18 three minutes, seven seconds and eight frames, 

19 correct? 

20 A Yes. 

21 Q At any time during that period in the 

22 video I just showed you, did that jumper go out 

(202) 234-4433 

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1 of sight? 

2 From the time he came in the frame at 

3 the bottom until the time he just left the frame 

4 at the bottom of the frame, was he visible in all 

5 of the video? 

6 A I can't recall. 

7 JUDGE RAWALD: And so, what's relevant 

8 here --

9 BY MR. FELDMAN: 

10 Q Do you have an opinion as to whether 

11 

12 JUDGE RAWALD: Mr. Feldman, pardon me. 

13 And so, what's relevant here, 

14 seemingly, the witness testified on the 

15 government side that because that shadow seems to 

16 be behind a cloud, that he assessed that jumper 

17 to be going through a cloud. 

18 Do you agree with that assessment? 

19 THE WITNESS: No. 

20 JUDGE RAWALD: Okay. You can move on, 

21 Mr. Feldman. 

22 And, Mr. Sanders, I assume it's for 

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1 all the same reasons you articulated earlier. 

2 THE WITNESS: Yes. 

3 JUDGE RAWALD: Okay. Thank you. 

4 BY MR. FELDMAN: 

5 Q I'm going to move on to six- to 7:11. 

6 (Playing video. ) 

7 Q Now, looking at this video at 7:51 and 

8 19 frames in, do you see jumpers there? 

9 A I see parachutes for the jumpers. 

10 Q And do you see blue sky in that frame? 

11 A Yes. 

12 Q And where is that located? 

13 A Behind them. 

14 Q Again, you can't tell what's above 

15 them, correct? 

16 A That's correct. 

17 MR. BOBERTZ: Objection. Leading. 

18 JUDGE RAWALD: Objection overruled. 

19 (Playing video.) 

20 BY MR. FELDMAN: 

21 Q I'm going to start this video at 7:57 

22 and 28 frames and slowly advance it. And I want 

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1 you to watch carefully and give me an opinion on 

2 the number of jumpers that you see and why -

3 well, let me just advance it. 

4 At 7:58, 25, how many jumpers do you 

5 see? 

6 A Four. 

7 Q And where are they? 

8 A There's two about the same level, 

9 one's centered in the frame left to right, in the 

10 bottom fifth, and then to - off to the left of 

11 that jumper you can see one. And then diagonally 

12 towards the corner there's one up there. And 

13 there's also one above the bottom right jumper. 

14 Q Now, at the bottom - the bottom right 

15 quadrant there, are there multiple layers of 

16 clouds, or a single layer? 

17 A Multiple. 

18 Q Now, I'll advance it slowly. 

19 Do more jumpers appear in the frame at 

20 8:01, 16? 

21 A 

22 Q 

(202) 234-4433 

Yes. 

And is there a reason that you didn't 

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1 see them in the frame before and you see them at 

2 8:01, 16? 

3 A They got forward speed, SO it IS 

4 possible that they just flew into view. It's 

5 also the camera was zooming in and getting a 

6 little better on the focus. 

7 Q And 8:02, one second later, are those 

8 jumpers above or below the clouds? 

9 A They're below the clouds that I see in 

10 the background. 

11 Q And was this shot directly above the 

12 camera, or at an angle? 

13 A At an angle. 

14 Q Approximately what angle, if you can 

15 determine? 

16 A Looking at the shape of the 

17 parachutes, I would say like a 30-degree angle. 

18 Q And now when the camera zooms out, 

19 those jumpers become less visible. 

20 Would you -

21 JUDGE RAWALD : Is that a question, 

22 sir? 

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1 MR. FELDMAN: Yes. 

2 BY MR. FELDMAN: 

3 Q When the camera zooms out, do the 

4 jumpers become more or less visible? 

5 A Smaller. 

6 Q More or less visible? 

7 A Less. 

8 Q And looking here starting at 9:36 -

9 I'll play it - 9:36 and 15 frames. 

10 (Playing video.) 

11 Q Stopping at 9:47 and 28, did you see 

12 any jumper in that frame go into or through a 

13 cloud? 

14 A No. 

15 (Playing video.) 

16 Q Moving to 13:45. 

17 (Playing video.) 

18 Q Stopping at 13:52. So, 13:44, 13, do 

19 you see a canopy in the picture? 

20 A No. 

21 Q As I advance forward, do you see a 

22 canopy at 13:45 -

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3-56 

1 A Yes. 

2 Q -- and ten frames? 

3 And do you have an opinion as to why 

4 you didn't see it at one second, and the next 

5 second you did? 

6 A One reason might have been the 

7 parachute just opening so now it's big enough to 

8 see from thousands of feet away, or it came from 

9 behind a layer. 

10 Q In your opinion, did that jumper jump 

11 into or through a cloud? 

12 A No. 

13 Q Now, at 13:58, 11, do you see a jumper 

14 in the frame? 

15 A No. 

16 Q Moving forward at 13:59 and 27 frames, 

17 do you see a jumper? 

18 A It came into view and then went out. 

19 I kind of see it back and forth on those frames 

20 as you move it. It's going in and out of view. 

21 Q And do you have a reason why you would 

22 see them one second, and not the next second, in 

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1 your opinion? 

2 A Focus for sure, because it just blurs 

3 all the pixels together. You can't see any 

4 detail. That would certainly be one. 

5 It could also be something between the 

6 camera and where he is blocked from the view. 

7 Q And would something between it mean 

8 that the jumper went into or through a cloud? Is 

9 it more likely than not that he didn't go through 

10 a cloud? 

11 A It's more likely that he did not. 

12 Q And at 14:06, 23, how many canopies do 

13 you see? 

14 A One. 

15 Q I'll go forward from there, slowly. 

16 At 14:07, 25, one second later, and 

17 two frames later, do you see -how many canopies 

18 do you see? 

19 A Two. 

20 Q And is there a reason that you first 

21 only saw one, and one second later you saw two, 

22 in your expert opinion? 

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1 A It appeared to me that there was 

2 something blocking the view of the canopy and 

3 it's flying forward into view. 

4 Do you have an opinion as to whether 

5 top canopy in this picture went into 

6 a cloud at 14:07, 25, we're looking at 

7 

8 More likely that they did not. 

9 I'm going into this frame at 14 

10 minutes, 18 seconds and 28 frames. The camera 

11 will tilt down. I'd like you to tell me if you 

12 see another jumper come into the frame. 

13 A Yes. 

14 Q Can you tell and where is that 

15 jumper? 

16 A Center and just slightly above the 

17 bottom of the frame. 

18 Q 

19 the video, 

20 A 

21 Q 

22 went into 

(202) 234-4433 

And that's at 14:19 and 10 frames into 

correct? 

Yes. 

And can you tell whether 

or through a cloud? 

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that jumper 

(202) 234-4433 
3-59 

1 A No. 

2 Q Why not? 

3 A I'm not seeing any of the action that 

4 took place from straight above from an angle that 

5 could tell me anything. 

6 Q Are there multiple layers of clouds -

7 A Yes. 

8 Q -- in this shot? 

9 A Yes. 

10 Q Is the camera filming at an angle, or 

11 is it straight up? 

12 A At an angle. 

13 Q And approximately what angle, in your 

14 expert opinion? 

15 A 30-35 degrees. 

16 Q Now, looking here at 14 : 2 0 and 2 6 

17 frames, I'd like you to watch the upper center of 

18 the - upper third center screen to tell me if you 

19 see a canopy appear as I advance the video. 

20 A I do. 

21 Q And are there multiple layers of 

22 clouds here? 

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1 A Yes 

2 Q Do you have an opinion as to whether 

3 that jumper is behind or above the lower level of 

4 clouds prior to you seeing him? 

5 A From the camera vantage point, it 

6 appeared he's behind that lower layer and then 

7 flew forward and was revealed to the camera. 

8 Q Can you tell how much altitude there 

9 is between those two layers? 

10 A No. 

11 Q And is the frame in focus, or out of 

12 focus? 

13 A Out of focus. 

14 (Pause.) 

15 JUDGE RAWALD: Mr. Feldman, is there 

16 a question coming? 

17 MR. FELDMAN: Yes. I'm trying to find 

18 the next point. 

19 JUDGE RAWALD: Okay. 

20 BY MR. FELDMAN: 

21 Q Now, at 15:06 and 28 seconds, do you 

22 see any canopies in the video? 

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1 A No, I do not. 

2 Q Are there single or multiple layers of 

3 clouds? 

4 A Multiple layers. 

5 Q And at 15:08 and six seconds, do you 

6 see a canopy in the video? 

7 A I do. 

8 Q And where is that located? 

9 A Just left of center of the screen. 

10 JUDGE RAWALD: And to be clear for the 

11 record when Mr. Feldman says 11 06 seconds, 11 he 

12 meant 06 frames. So, one of the three sets of 

13 digits, the third set is the frames. The second 

14 being the seconds. Okay. 

15 BY MR. FELDMAN: 

16 Q This is at 15:08 and six frames in. 

17 You see a canopy, correct? 

18 A Yes. 

19 Q Now, as I back it up at 15:07 and 10 

20 seconds in, you don't see the canopy, correct? 

21 A 

22 Q 

(202) 234-4433 

That's correct. 

Do you have an explanation as to why 

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1 you don't see them at 15:07, 10, and you see them 

2 at 15:08 and 10? 

3 A Looks to me like the color of the 

4 parachute is not discernible with the black - or 

5 the blue that's in the background from this 

6 angle. And then he goes forward in front of a 

7 cloud, and so you see the color of the parachute 

8 more clearly because he's got a cloud in the 

9 background in the camera. 

10 Q So, is that fair to say that that's a 

11 contrast issue? 

12 A Yes. 

13 Q Okay. Moving on to A32. 

14 (Playing video.) 

15 Q I'm stopping it at 47 seconds and 19 

16 frames into the video. And I'll go back to that 

17 here. 

18 Now, it appears here at 47 seconds and 

19 19 seconds, that - tell me whether or not you 

20 think this parachute is going into or through a 

21 cloud. 

22 A 

(202) 234-4433 

No. The cameraman is falling 200 feet 

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1 per second and they deploy above and to the side 

2 of the cloud. Now, he's looking up through, you 

3 know, there's moisture in the air, for sure. 

4 It's next to a cloud, but I saw them open above 

5 the cloud before he dropped below with the camera 

6 angle. 

7 JUDGE RAWALD : So, sir, just to be 

8 clear, neither the tandem nor the videographer, 

9 in your opinion, are going through a cloud. 

10 THE WITNESS: That's correct. 

11 JUDGE RAWALD: Okay. 

12 BY MR. FELDMAN: 

13 Q Now, at 52 seconds and 10 frames in, 

14 do you see any clouds in the image? 

15 A Yes. 

16 Q And in your opinion, did either the 

17 jumper or the cameraperson go through that cloud 

18 that you see in the image? 

19 A No. 

20 Q Moving on to 8:33 and I'll start it at 

21 30 seconds in. 

22 (Playing video.) 

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1 Q Stopping it at 58:22 in. I'll start 

2 playing it again at 51:15 in. 

3 JUDGE RAWALD: Well, sir, so was there 

4 a question based upon that? Because you can't 

5 just keep replaying it. 

6 MR. FELDMAN: I'm backing up and I'm 

7 starting -

8 JUDGE RAWALD: Well, you just played 

9 it. So, you're going frame by frame now? 

10 MR. FELDMAN: I'd like it - I will. 

11 JUDGE RAWALD: Okay. 

12 BY MR. FELDMAN: 

13 Q I'd like you to watch from 51 seconds, 

14 15 frames in as the jumper opens. 

15 (Playing video.) 

16 Q Do you have an opinion as to whether 

17 that jumper went into or through a cloud? 

18 A Not a cloud that would obscure your 

19 view of the ground with your eyes, no. 

20 Q 

21 vertically? 

22 A 

(202) 234-4433 

And as he opens, do you have a view 

During the parachute 

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deployment, 

(202) 234-4433 
3-65 

1 you're looking outward in wide angles picking up 

2 the canopy. He's looking horizontally. 

3 Q But looking -

4 JUDGE RAWALD: Mr. Feldman, if I 

5 could, sir, I could not help but notice that you 

6 gave a very good caveat there, which was, "Not a 

7 cloud that would obscure the view of the ground 

8 with your eyes.'' 

9 So, he could be going through a cloud, 

10 but it wouldn't be enough to obscure his vision? 

11 THE WITNESS: No, I think there is -

12 I there's moisture in the air. 

13 JUDGE RAWALD: Okay. 

14 THE WITNESS: And I also think that 

15 the camera is nowhere near what our eyes are. 

16 JUDGE RAWALD: Okay. 

17 THE WITNESS: And so, I think - and 

18 I've had this happen to me many times where my 

19 ringsight will fog up, my lens will fog up, but I 

20 can see through it and there's water vapor, but 

21 I've never lost sight of the ground. 

22 JUDGE RAWALD: So, in your opinion, 

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1 did he go through a cloud, or did he not go 

2 through a cloud? 

3 THE WITNESS: No. 

4 JUDGE RAWALD: Okay. 

5 BY MR. FELDMAN: 

6 Q Moving on to A34 - or, excuse me, A35. 

7 (Playing video.) 

8 Q Looking at A35, I'm going to stop at 

9 50 seconds and 10 frames and slowly advance it to 

10 52 and nine seconds. 

11 Do you have an opinion as to whether 

12 or not that jumper went through a cloud? 

13 A My opinion is he did not go through a 

14 cloud. 

15 Q And on what do you base that? 

16 A There's no time that the camera looks 

17 straight down. It's always looking out in front. 

18 It's also the tandems are clearly opening up in 

19 the drier air and they're open above. 

20 The the camerapeople here are 

21 opening at cloud level. So, there's lots of 

22 moisture on the lens as well. 

(202) 234-4433 

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1 Q Going to A3 8 . I'll start you at 36 

2 seconds in. 

3 (Playing video.) 

4 Q I'll stop it at 59 seconds and eight 

5 frames. 

6 Do you have an opinion as to whether 

7 the tandem pair went into or through a cloud? 

8 A I believe they opened above and to the 

9 side. 

10 Q Is that your opinion? 

11 A That's my opinion. 

12 Q And do you have an opinion as to 

13 whether the cameraperson ever went into or 

14 through a cloud in this jump? 

15 A I believe they did not go through a 

16 cloud, that their lens fogged as they hit the 

17 moisture layer. 

18 Q So, that's your opinion that it did 

19 not go through a cloud? 

20 A 

21 Q 

22 moisture? 

(202) 234-4433 

That's my opinion. 

And, in fact, can you see the 

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1 A Yes. 

2 Q Is there a propensity for GoPro 

3 cameras to fog up because of humidity in the air? 

4 MR. BOBERTZ: Objection. Asked and 

5 answered. 

6 JUDGE RAWALD: Yeah, you covered this 

7 thoroughly before we got into the videos earlier 

8 today. So, the objection is sustained. 

9 BY MR. FELDMAN: 

10 Q Do the housings in any way around the 

11 GoPro camera contribute to the propensity of the 

12 GoPro camera to fog up? 

13 A Yes. 

14 Q And how? 

15 A The air that's captured inside that 

16 sealed box when it changes temperature, it 

17 creates a cloud in the camera. So, around cloud 

18 level it will do that. 

19 Q And you've seen numerous Go Pro 

20 footages where this has happened in your career 

21 as a skydiving -

22 

(202) 234-4433 

MR. BOBERTZ: Objection. 

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1 BY MR. FELDMAN: 

2 Q professional? 

3 MR. BOBERTZ: Asked and answered. 

4 JUDGE RAWALD: He discussed this a lot 

5 as well, sir. The objection is sustained. 

6 BY MR. FELDMAN: 

7 Q And just to summarize after watching 

8 all of the videos, both the ones taken from the 

9 ground and the ones taken from the air, have you 

10 seen any instance of a skydiver from Pacific 

11 International Skydiving conducting their 

12 parachute jump into or through a cloud? 

13 A No, I haven['t. 

14 Q And that's your expert opinion? 

15 A Yes. 

16 MR. FELDMAN: Nothing further at this 

17 time. 

18 JUDGE RAWALD: Okay. Mr. Bobertz. 

19 MR. BOBERTZ: I apologize, Your Honor. 

20 Can I have another two minutes? 

21 JUDGE RAWALD: Okay. 

22 brief recess. 

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we' 11 take a 

(202) 234-4433 
3-70 

1 (Whereupon, the above-entitled matter 

2 went off the record at 10:33 a.m. and resumed at 

3 10:36 a.m.) 

4 JUDGE RAWALD: Okay. We're back from 

5 our recess, Mr. Sanders remains on the stand, and 

6 Mr. Bobertz will now cross examine. 

7 MR. BOBERTZ: Thank you, Your Honor. 

8 CROSS EXAMINATION 

9 BY MR. BOBERTZ: 

10 Q Good morning, Mr. Sanders. 

11 A Good morning. 

12 Q Are you being paid for your testimony 

13 today? 

14 A I am. 

15 Q And how much? 

16 A $500 an hour. 

17 Q Okay. Do you skydive at Dillingham? 

18 A Yes, I do. 

19 Q With who? 

20 A With my wife. 

21 Q On your own? Do you have your own 

22 plane? Do you go with one of the operators? 

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1 A No, we jump at Pacific International 

2 Skydiving Center. 

3 Q And how long have you been doing that? 

4 A About 14 years. 

5 Q Do they charge you? 

6 A No, they don't. 

7 Q And how long have you known Mr. 

8 Banelle (phonetic)? 

9 A 35 years. 

10 Q Are you friends? 

11 A Yes. 

12 Q Good friends? 

13 A Yes. 

14 Q Do you have lunch? Dinner? 

15 A No. We're both too busy. 

16 Q Ever go on a trip with him? 

17 A No. 

18 Q Anyone else at Pacific Skydiving that 

19 you consider a friend or a relative? 

20 A Yeah, there's a number of people that 

21 are friends, not relatives. 

22 Q 

(202) 234·4433 

Have you ever been an expert witness 

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1 before? 

2 A I believe I have, but I can't 

3 remember. It's been a while. 

4 Q So, if you did, it would have been 

5 infrequent, it sounds like. 

6 A Yeah. 

7 MR. BOBERTZ: Your Honor, may I have 

8 the screen? 

9 JUDGE RAWALD: You may. 

10 (Playing video.) 

11 MR. BOBERTZ: One moment, Your Honor, 

12 while I get to where I need to be, please. 

13 JUDGE RAWALD: Okay. 

14 MR. BOBERTZ: I have advanced- I'm on 

15 Exhibit A5, and I've advanced to five minutes and 

16 47 seconds - I'm sorry, let me go a little bit 

17 further. 

18 (Playing video.) 

19 MR. BOBERTZ: I'm sorry. 

20 please. 

21 (Playing video.) 

22 BY MR. BOBERTZ: 

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Hold on, 

(202) 234-4433 
3-73 

1 Q So, I pause it at -I'm sorry, let me 

2 go back one second. 

3 (Playing video.) 

4 Q Mr. Sanders, do you see a jumper in 

5 that frame? 

6 A I see a parachute. 

7 Q Okay. And so I paused at 6: 06. I 

8 understand it's not - sort of a double image, 

9 maybe, it's not completely focused, but it's -

10 it's not so out of focus that you don't see a 

11 jumper there, right? 

12 A No, I see a parachute. 

13 Q Okay. The contrast isn't so bad that 

14 you don't see a parachute there, right? 

15 A That's correct. 

16 Q It's not so zoomed in or zoomed out 

17 that you can't see an image there, is it? 

18 A 

19 Q 

20 A 

21 Q 

22 images? 

(202) 234-4433 

No. 

Do you see any other images? 

I just see sky and clouds. 

All right. But no other parachute 

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1 A No. 

2 MR. BOBERTZ: Your Honor, I got to do 

3 my version of the frame by frame. I don't have 

4 the equipment Mr. Feldman has, but I have my 

5 finger. 

6 BY MR. BOBERTZ: 

7 Q So, do you see another image yet? 

8 A No. 

9 JUDGE RAWALD: And just to be clear, 

10 Mr. Bobertz, by "image" you mean another jumper, 

11 another -

12 MR. BOBERTZ: Yes, Your Honor. 

13 JUDGE RAWALD: Okay. 

14 BY MR. BOBERTZ: 

15 Q So, now I pause it at 6:06. 

16 Do you see another image? 

17 A I just see the same parachute. 

18 Q So, you don't see a small dot almost 

19 directly below just to the right? 

20 MR. FELDMAN: Objection. 

21 Argumentative. 

22 JUDGE RAWALD: He's asking a question 

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1 in a leading fashion. He left it open-ended 

2 before and I asked him for clarification. 

3 I'm going to allow it. Objection 

4 overruled. 

5 THE WITNESS: Now that you 1 re pointing 

6 to an area, I see a dot. I have no idea what it 

7 is. 

8 BY MR. BOBERTZ: 

9 Q Okay. But all this time you have been 

10 able to see the image above, the larger one, 

11 correct? 

12 A That's correct. 

13 Q And now you say- so, I'm at 6:06 and 

14 now you say you do see a smaller image, a dot? 

15 A I see a very small image that could be 

16 a parachute. 

17 Q That you didn't see before? 

18 A Yes. 

19 Q I'm going to continue. So, now I'm at 

20 6:07. 

21 Is it more clear to you now, that 

22 second image? 

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1 A A tiny bit, yes. 

2 Q I'll continue at 6:07. 

3 (Playing video.) 

4 Q Pausing at 6:09, is it becoming 

5 clearer to you? 

6 A It's also getting bigger and the 

7 parachute is opening. 

8 Q Okay. 

9 (Playing video. ) 

10 Q So, when you first saw that, the first 

11 image, you talked before about the camera quality 

12 and it being so cheap, but it wasn't so cheap and 

13 poor that you couldn't see that first image, 

14 right? 

15 A But it missed a lot before it. 

16 Whatever I'm seeing there, I can agree I see, 

17 but, I mean, even right now the -

18 Q I'm not asking about now. But when we 

19 were showing that other one, you could see that 

20 image even though the camera was cheap and poor 

21 quality, in your words. 

22 A I could see a parachute. 

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3-77 

1 Q Thank you. 

2 MR. BOBERTZ: Your Honor, I'm going to 

3 go to Exhibit A7. 

4 JUDGE RAWALD: Okay. 

5 BY MR. BOBERTZ: 

6 Q And I'm going to go to one minute or 

7 59 seconds. So, I'm going to play it slowly or 

8 frame by - semi-frame by frame from here. I'll 

9 go through it and I'll back it up a little bit. 

10 (Playing video.) 

11 Q Okay. So, you see this parachute, Mr. 

12 Sanders, here? 

13 A Yes. 

14 Q And you see this one here? 

15 A Yes. 

16 Q Okay. I'm going to back it up a 

17 little bit. 

18 A So, I stopped it at 1:04. 

19 Do you see the parachute that I 

20 referred to earlier that was just below - a 

21 little bit right of center, little bit lower than 

22 center? 

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3-78 

1 A Yes. 

2 Q So, Mr. Hinshaw's camera isn't so poor 

3 quality that you can't make out that parachute 

4 that I'm pointing to. 

5 A At that altitude, you can see a 

6 parachute. 

7 Q And it's not so zoomed in or zoomed 

8 out that you can't see that parachute, is it? 

9 A No. 

10 Q And the contrast isn't so poor that 

11 you can't see that parachute, is it? 

12 

13 

14 

15 

16 

17 

18 

19 

20 

21 

22 

A No. 

Q So, now I'm at 1:05. 

Do you see another parachute yet? 

A Yes. 

Q And where is it? 

A On the left diagonal. 

Q Okay. I'm going to back up just a 

little bit. And now you know where to look for 

it. I'm at 1:03. 

A 

(202) 234-4433 

Do you see another parachute? 

Now, I see on the bottom right where 

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3-79 

1 it's a smudge on the lens. 

2 Q This one here? 

3 A Farther to the right. 

4 Q Okay. Okay. Again, I'll ask if you 

5 could focus in this area and -

6 A Okay. 

7 Q tell me when you see a second 

8 parachute. 

9 A All right. 

10 Q So, again, I'm going semi-frame by 

11 frame. I know I'm covering a lot more frames in 

12 one -

13 A Right. 

14 Q click of the mouse than Mr. 

15 Feldman, but - so, I'm still at 1:03. 

16 Is the one parachute still visible to 

17 you that we talked about just right of center, 

18 just lower of center? 

19 A Yes. 

20 Q Still at 1:03. Still at 1:03. Still 

21 at 1:03. 1:03. Still at 1:03. Still at 1:03. 

22 

(202) 234-4433 

Do you see - now, do you see this 

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1 small dot here? Does that look like a parachute 

2 to you? 

3 A Now that you pointed the arrow there, 

4 I see a dot. 

5 Q Okay. Did you see it before then? 

6 A I don't think so. 

7 Q Okay. So, the camera is okay to see 

8 here, but something you're saying - you've had a 

9 lot of testimony about the - something blocking, 

10 the haze, the bad camera, the focus of the 

11 camera, but yet here we've been able to see this 

12 one to the right the whole time, and now - just 

13 now the one to the left appeared when - isn't 

14 that correct? For you, it just appeared for you? 

15 A Yes. 

16 Q Thank you. 

17 MR. BOBERTZ: One moment, Your Honor. 

18 JUDGE RAWALD: Okay. 

19 BY MR. BOBERTZ: 

20 Q Mr. Sanders, you talked before about 

21 the angle of the clouds and somehow you felt like 

22 you could tell by just - by looking. 

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1 What's your opinion on the angle that 

2 this is being filmed at? 

3 A Well, it's easier to tell the angle 

4 when you see the chute the parachute. I 

5 understand that's at least 30 degrees out. 

6 Q So, let me go a little further on this 

7 one. 

8 (Playing video.) 

9 Q So, I don't know. Can you see enough 

10 of a shape of a parachute to have that help your 

11 opinion regarding the angle? 

12 A Yes. 

13 Q Okay. What is it? 

14 A By 30 degrees. 

15 Q Okay. All right. I'm going to go to 

16 A14. 

17 MR. BOBERTZ: One more moment, please, 

18 Your Honor. 

19 JUDGE RAWALD: Okay. 

20 BY MR. BOBERTZ: 

21 Q All right. So, I'm going to start 

22 this at 5:52 or 5:51. 

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3-82 

1 (Playing video. ) 

2 Q I'm sorry, did I - I think I went to 

3 the wrong - sorry. 

4 MR. BOBERTZ: I'm sorry, Your Honor. 

5 One moment, please. 

6 JUDGE RAWALD: Okay. And just as an 

7 advisory, Mr. Bobertz, it's very clear to me that 

8 your point is well made that there are times 

9 where you can see thing and not another thing, 

10 and the other thing will appear later. 

11 So, if you're going to make that point 

12 at different points of time, I understand that 

13 point. 

14 MR. BOBERTZ: Understood, Your Honor. 

15 Thank you. 

16 JUDGE RAWALD: Okay. 

17 BY MR. BOBERTZ: 

18 Q Okay. I'm going to 5:20 on A14. 

19 (Playing video. ) 

20 Q Mr. Sanders, do you see in this area, 

21 do you see that which appears to be a parachute? 

22 A 

(202) 234-4433 

Yes. 

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1 Q I paused at 5:27. All right. Let me 

2 back it up just a little bit. 

3 Do you see that general area, I think 

4 it was in here, do you see a parachute yet? 

5 A No. 

6 JUDGE RAWALD: And that's at 5:24? 

7 MR. BOBERTZ: 5:25. 

8 BY MR. BOBERTZ: 

9 Q No? Yes? 

10 A No. 

11 Q I think now we have to pan back. 

12 Okay. Now, we're at 5:27. 

13 Do you see a parachute? 

14 A I see a dot that probably is a 

15 parachute. 

16 Q Is that right here? 

17 A Yes. 

18 Q Okay. All right. Let me just go back 

19 just a little bit. 

20 

21 Q 

22 A 

(202) 234-4433 

(Playing video.) 

Do 

No. 

you see it yet? 

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3-84 

1 Q Now? And, for the record, I'm at 5:26 

2 pausing - fast forwarding - running the video 

3 forward just a bit at a time, several frames at a 

4 time. 

5 A I don't see it yet. 

6 Q Still at 5:26. 

7 A I see it now. 

8 Q okay. So, you didn't see it, and then 

9 you saw it, and we're still at 5:26. 

10 And your explanation for that is what? 

11 A The same reason that we didn't see 

12 your witness when they jumped. There was a cloud 

13 in the foreground. Or, in this case, it also is 

14 so far away it could be that the parachute just 

15 opened. I don't know. one of those two. 

16 Q Okay. So now, I'm going to play about 

17 five minutes of this. And what I'd like for you 

18 to do for me is see if you can follow that 

19 parachute that we see there, to the ground. 

20 And I'll help you out why it - with 

21 some questions along the way, but I want to see 

22 if you feel like you could follow that down to 

(202) 234-4433 

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1 the ground. 

2 (Playing video.) 

3 Q So, I paused it at 5:41. 

4 Is there any indication to you about 

5 - any information about that parachute, whether 

6 it's a tandem or not, the color? What do you see 

7 that might help identify that? 

8 A It looks orange. 

9 Q And any thoughts on whether it's a 

10 tandem or a single? 

11 A I would - it would be a guess, but it 

12 looks big. So, it looks like a tandem. 

13 Q Would the fact that it - and the one 

14 below that to the right, is that potentially a 

15 cameraman for that tandem? 

16 A We actually can't tell. We can't tell 

17 if that parachute is a mile further away and 

18 that's why they're smaller. 

19 I don't know if they're below or 

20 they're further behind and above. There's in 

21 this one-dimensional image here shot at an angle, 

22 it just doesn't give information. 

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3-86 

1 I see two parachutes, for sure. 

2 Q So, with all your· photography 

3 background, you can't - you don't know whether 

4 those - that one parachute might be a mile behind 

5 the other one? 

6 MR. FELDMAN: Objection. 

7 Argumentative. 

8 JUDGE RAWALD: I think he's just 

9 asking him to explain with his expertise whether 

10 or not he can make the analysis. 

11 I'm going to allow it. The objection 

12 is sustained - overruled. Excuse me. 

13 THE WITNESS: I think there's so many 

14 ways that you can be misled. You see something 

15 smaller, so you think it's further away. 

16 Could be a smaller parachute. There's 

17 just not enough information for me to be able to 

18 tell who's in the foreground. I'm not looking at 

19 it in person with 3D eyes. 

20 BY MR. BOBERTZ: 

21 Q Understand. Thank you. 

22 So, I'm going to keep playing and I'll 

(202) 234-4433 

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1 tell you there's a- some time that you won't see 

2 that parachute in the frame. So, I - so, you 

3 know, but I'll -we'll see. 

4 (Playing video.) 

5 Q So, there's some other parachutes now 

6 coming into view, a couple down below that - do 

7 you have any thoughts on can you tell me 

8 anything about those? Color? Size? 

9 A I can't tell if they're a drogue or a 

10 parachute, because it's just a white dot. 

11 Q Okay. 

12 A I would assume just knowing skydiving 

13 operations, these are people that exited later. 

14 They're further away. 

15 Earlier I thought I saw a drogue and 

16 then it started cruising around. It was a 

17 canopy. So, I see the two white dots. Drogue or 

18 a canopy, I can't tell right now. 

19 Q Okay. And I was at - I paused at five 

20 minutes, 58 seconds. 

21 

22 Q 

(202) 234-4433 

(Playing video.) 

Do you have any other - any different 

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3-88 

1 opinion about the one we've been following again, 

2 whether it's still orange or that's a tandem or 

3 any additional information for you? 

4 A It's orange. I do notice that as it 

5 does turns, you go from seeing a bigger image to 

6 a profile where it almost disappears. So, a lot 

7 of the changing in visibility is that these are 

8 high-performance parachutes and they're flying 

9 around. They're moving forward, they're flying 

10 around in circles. They could go behind clouds, 

11 but you do see a different shape of the canopy 

12 and it determines the size. 

13 All I can tell is that it's been doing 

14 turns and it's orange. 

15 Q Okay. Thank you. So, I paused at 

16 6:23, if I didn't say that before. 

17 I'm continuing. 

18 (Playing video.) 

19 Q So, there it's gone out of the frame, 

20 but you kind of have an idea about where it's at 

21 if the camera is going to repan to it? 

22 A 

(202) 234-4433 

Yes. 

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3-89 

1 Q So, it's coming back in now in that 

2 5:40 -or, I'm sorry, 6:40. Now, it's out of the 

3 frame again down below. 

4 A Uh-huh. 

5 Q Here it is again now at 6:45 near the 

6 bottom. 

7 A Yes. 

8 Q Okay. Going out of frame again, back 

9 in. Okay. So, just at 6:51, it -- he pans away 

10 and it's off to the right, but you still have an 

11 idea about where it's at? 

12 A Yes. 

13 (Playing video.) 

14 Q Any chance the two you've seen land -

15 or the one you see land and the next one - and 

16 we're at 7:30 - was that the parachute we were 

17 following? 

18 A I thought the parachute was more 

19 orange. 

20 Q Thank you. Let me back up a little 

21 bit. Sorry. Back a little further. Now, I'm 

22 back at 7:15 and I want to catch something we saw 

(202) 234-4433 

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3-90 

1 a moment ago. 

2 (Playing video.) 

3 Q So, now I've paused it at 7:39. I see 

4 a parachute to the right center of the screen. 

5 Is that that same parachute, in your 

6 opinion? 

7 A It would be, I guess, but I would -

8 it's an educated guess. It's the one I would 

9 expect it to be. 

10 Q Thank you. Continuing. 

11 (Playing video.) 

12 Q So, is that that same parachute that 

13 you - in your opinion? 

14 A I believe that they have many orange 

15 parachutes. I'm not trying to be argumentative. 

16 Q I understand. 

17 A All I'm saying is if I had to pick out 

18 of all the ones I •ve seen, that would be it so 

19 far. 

20 Q Okay. Did you see any orange 

21 parachutes land before this one? 

22 A 

(202) 234-4433 

I don't think so. 

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1 MR. BOBERTZ: And for the record, this 

2 was identified in earlier government testimony 

3 that this individual appeared to be Jonathan 

4 Fennell, the same person in the GoPro video from 

5 Pacific -

6 JUDGE RAWALD: I understand, counsel. 

7 MR. BOBERTZ: Thank you. 

8 (Playing video.) 

9 BY MR. BOBERTZ: 

10 Q So, he landed about eight minutes 

11 even. And I'm just going to continue watching 

12 the rest of these people land to see if anybody 

13 else could be - could have been that person. So, 

14 now we see another tandem with a yellow 

15 parachute, orange stripes. 

16 Any chance that could be that person? 

17 A It looked more orange. 

18 Q Thank you. And now, we see a pink 

19 parachute coming in at 8:30. 

20 Any chance it was that person? 

21 A There is a chance. Up in the sky it's 

22 that tone that, you know, I'm just guessing, 

(202) 234-4433 

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1 because we didn't - we didn't follow it all the 

2 way. 

3 Q Understood. 

4 (Playing video.) 

5 JUDGE RAWALD: Mr. Bobertz, I am going 

6 to note here nothing that he's doing is, at this 

7 point, is using his expertise. We're merely 

8 eliminating the fact that there could be another 

9 orange parachute, which I could do without 

10 testimony. 

11 MR. BOBERTZ: Very good, Your Honor. 

12 I'm happy to move on. 

13 JUDGE RAWALD: Okay. 

14 MR. BOBERTZ: Thank you. 

15 MR. BOBERTZ: okay. May I have one 

16 moment? 

17 JUDGE RAWALD : sure. And purpose of 

18 the record, the other evidence that Mr. Bobertz 

19 is referring was A32, the GoPro video of the 

20 individual that was identified by Mr. McCowan 

21 yesterday in testimony. 

22 MR. BOBERTZ: And we're going to see 

(202) 234-4433 

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1 that again real quick starting at actually, 

2 we're going to watch this one. 

3 (Playing video.) 

4 BY MR. BOBERTZ: 

5 Q So, as we watch this, Mr. Sanders, 

6 there's - we've heard a lot of testimony about 

7 layers of cloud, multiple layers. 

8 Can you - as we go through this, and 

9 I'll pause it if you want, when you see good 

10 shots of the multiple layers that you're talking 

11 about, please? 

12 (Playing video.) 

13 A You can stop it now. 

14 Q Yes. 

15 A There is multiple layers. And to me 

16 from this perspective, I can see that, the high 

17 layer in the distance, and then I can see 

18 scattered ones down below it if you just look at 

19 that blue stripe out there. 

20 Q Okay. So, that higher layer in the 

21 distance, is that distance in yards, miles? Any 

22 idea how far away that other layer is? 

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1 A It's probably miles. 

2 Q Okay. 

3 A With a GoPro, it's deceiving because 

4 it distorts distances. 

5 Q Understood. So, that's- we're at 

6 01:13. 

7 (Playing video.) 

8 A And here's another part where you can 

9 kind of see this -

10 Q Okay. 

11 A layer off to the left, but this 

12 stuff that's to the bottom right corner appears 

13 to be a lower layer. 

14 Q Appears by how much, do you think? 

15 A Maybe a thousand feet. 

16 Q Okay. 

17 A Again, the worst thing to judge with 

18 is a GoPro, because it's a - the most distorted 

19 lenses that you make. 

20 Q 

21 

22 A 

(202) 234-4433 

Okay. At 0:23 pausing, now going on. 

(Playing video.) 

Do you want another example? 

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1 Q Sure. 

2 A Out over the ocean there appears to 

3 be, you know, lower, real wispy clouds out there. 

4 And this is real common. I mean, this is what we 

5 see all the time is different layers. And also, 

6 you know, different thicknesses on some clouds, 

7 different heights. 

8 Q Okay. That was paused at 0:30. 

9 (Playing video.) 

10 Q So, now I've paused it at 46 seconds 

11 and I believe you testified on direct that they 

12 were not in a cloud. 

13 Is that still your testimony? 

14 A It is. 

15 Q And isn't it true that you can see 

16 clouds to the left, clouds to the right, cloud 

17 below, cloud above? 

18 A 

19 not see 

20 Q 

21 them. 

22 you're 

(202) 234-4433 

I see clouds in the background. I do 

what's directly below them. 

You do not see what's directly below 

Okay. 0:46 still - you're still not -

still saying that they're not in a cloud. 

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1 A No. I can see them clearly. I don't 

2 see any effect on a cloud. The GoPro would 

3 actually make it look worse and you still see 

4 them. 

5 Q So, you're saying that because you 

6 could see them, you don't think it's getting a 

7 little hazy the view of them has gotten a 

8 little bit hazier -

9 A Well, that's -

10 Q -- not as sharp? 

11 MR. FELDMAN: Objection. 

12 JUDGE RAWALD: What's that, sir? 

13 MR. FELDMAN: The question is 

14 argumentative. 

15 JUDGE RAWALD: You're correct, sir. 

16 So, the objection is sustained. Mr. 

17 Bobertz, it's appropriate- he's giving testimony 

18 saying this man is not going through a cloud. 

19 You can say you don't believe he's 

20 going through a cloud despite the fact it's hazy, 

21 despite the fact this? That is not 

22 argumentative. That is simply having him observe 

(202) 234-4433 

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1 other things. 

2 But the way you're phrasing the 

3 question is, unfortunately, argumentative. so, 

4 the objection is sustained. 

5 MR. BOBERTZ: Thank you, Your Honor. 

6 BY MR. BOBERTZ: 

7 Q In your opinion, before you said that 

8 he wasn't in a cloud. 

9 Are you still of that same opinion? 

10 Does it not look a little bit hazy to you? 

11 A I do not believe they're in a cloud. 

12 I believe I'm looking at a cloud in the 

13 background. Haziness could be easily at this 

14 altitude - I've had it happen to me hundreds of 

15 times where if the subjects I'm pulling pull near 

16 cloud level, I don't get the last part of the 

17 video. My lens fogs up, my ringsight fogs up, 

18 but my plastic glass, my goggles and my eyes see 

19 clearly. 

20 And so, what we're seeing is GoPro 

21 video, not a human eye and it's shot on an angle. 

22 I'm not trying to be argumentative. 

(202)·234-4433 

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(202) 234-4433 
3-98 

1 opinion is they are close to, but not in a cloud 

2 and they pulled above. 

3 Q And they pulled above. Okay. 

4 You've driven through fog, haven't 

5 you? 

6 A I have. 

7 Q Isn't fog a cloud on the ground? 

8 A I would go along with that. 

9 Q Aren't there times you can see - are 

10 there times when you can see -you can't see more 

11 than a couple car lengths in front of you, but 

12 then there's other times that you could see many, 

13 many car lengths in front of you, but you're 

14 still in the fog? 

15 A I don't know that I can agree with 

16 that, because we don't have fog here in Hawaii. 

17 And I've lived here for 15 years, but I'm still 

18 saying what you're seeing as a cloud is in the 

19 background, not below them or not encompassing 

20 them, not surrounding them at all at this point. 

21 Q If you were driving in the fog, would 

22 you drive at 110 miles an hour into the fog 

(202) 234·4433 

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1 assuming it was legal to do so and that's with 

2 the normal driving speed? 

3 Would you drive 110 miles into fog? 

4 MR. FELDMAN: Objection to relevancy. 

5 JUDGE RAWALD : Mr. Bobetrz, the 

6 question you can ask hypotheticals of the 

7 witness that are germane to his expertise. 

8 Driving is not, and certainly I'm not going to 

9 allow the question. So, the objection is 

10 sustained. 

11 MR. BOBERTZ: Understood. 

12 JUDGE RAWALD: so, you can't persuade 

13 the witness to have different testimony. You can 

14 confront him with things that make his testimony 

15 seem unbelievable to you, but you cannot persuade 

16 him differently. And so, it's all about the 

17 phrasing we're trying to get at here. 

18 MR. BOBERTZ: Understood, Your Honor. 

19 Thank you. 

20 BY MR. BOBERTZ: 

21 Q Mr. Sanders, do you know what a common 

22 helicopter rotor blade diameter would be? 

(202) 234-4433 

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1 A No. 

2 Q You've seen helicopters? 

3 A Yes. 

4 Q Some helicopters operate out at the 

5 airport, out at Dillingham? 

6 A Not full time, but they come in and 

7 out to get fuel occasionally. 

8 Q Okay. 

9 MR. FELDMAN: Objection to relevancy. 

10 JUDGE RAWALD: Where is this going, 

11 Mr. Bobertz? 

12 MR. BOBERTZ: This is going to the 

13 danger of other - what we've talked some about 

14 before, what might be avoidable that might be in 

15 the pattern out there. 

16 JUDGE RAWALD: Okay. I will allow you 

17 some room to maneuver here for this, but -

18 BY MR. BOBERTZ: 

19 Q 

20 

21 overruled. 

22 

(202) 234-4433 

So, assume for the purposes -

JUDGE RAWALD: The objection is 

MR. BOBERTZ: I'm sorry, Your Honor. 

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1 BY MR. BOBERTZ: 

2 Q So, assume for the purposes at the 

3 moment that it's 30 to 50 feet, does that sound 

4 reasonable, the diameter of a rotor blade if it's 

5 spinning? 

6 A Sure. 

7 Q Okay. So, if you're going 110 miles 

8 an hour on course to hit the center of that and 

9 you don't see it until you're 50 feet away, are 

10 you going to be able to avoid it? 

11 A If you're in a tandem, you're not 

12 going to be able to avoid it either. You're 

13 going straight down. 

14 Q Thank you. 

15 A With or without clouds. 

16 Q Okay. So, I'm going to keep playing 

17 this and try and play it slowly. 

18 (Playing video.) 

19 JUDGE RAWALD: And for the record, is 

20 this still A32 that you're referring to? 

21 MR. BOBERTZ: Yes. And now, we're at 

22 46 seconds. 

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1 BY MR. BOBERTZ: 

2 Q In your opinion, is the image getting 

3 less clear? 

4 A Absolutely. 

5 Q And why do you believe that is? 

6 A The camera has fallen below them and 

7 there's moisture on the lens and there's moisture 

8 near the cloud. 

9 There's lots of moisture in the 

10 tropical air here, but I don't believe looking up 

11 -- you don't see - I personally see blue sky. 

12 I know if I was looking straight down, 

13 I'd be able to see the ground clearly and know 

14 where I was and not be in any danger of landing 

15 in the ocean or any of the other scenarios I've 

16 heard. 

17 Q So, despite the relative what 

18 appears to be relative to be close proximity, how 

19 far would you - do you have any estimate as far 

2 o as how far the camera is from the jumper, the 

21 tandem pair right now? 

22 A 

(202) 234-4433 

Probably about 75 feet. 

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1 Q And yet it's fuzzy and you're saying 

2 that's because of moisture. It's not that 

3 there's cloud in between the cameraman and the 

4 tandem, it's just because of moisture. 

5 A He's at a level that there will be 

6 moisture on the lens for sure, but he's also 

7 shooting up into the sky. And the sky is - when 

8 the sun comes through, all of the particles that 

9 are in the air here are going to look real soft 

10 and diffused if you're looking up into a bright 

11 sky. 

12 If you look downward, you're not going 

13 to have the same look. 

14 Q So, why do you see blue sky to the 

15 left? 

16 A Because there's blue sky in the 

17 background from this camera angle. Again, I'm 

18 still not looking straight above the jumper as 

19 well. We're at an angle in all of these. 

20 So, we're always looking at 

21 background, not really what the jumper is 

22 experiencing straight up or straight down. 

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1 Q Do you see any moisture on the lens? 

2 A I don't not see it. 

3 Q Okay. 

4 A Yeah. I can't tell. 

5 Q Does this appear like we're getting 

6 closer to if not directly below, closer to 

7 being directly below the jumper? And we're at 46 

8 seconds. 

9 A The angle is getting steeper, because 

10 they're falling away and the angle is steepening 

11 out. 

12 Q And does that not indicate to you that 

13 he has fallen through the cloud that you can see 

14 above? 

15 A No. I think, again, you're now 150 

16 feet away and you're looking through atmosphere. 

17 You're at the wettest layer in the sky and you're 

18 next to a cloud. There's moisture there. 

19 There's a lot of moisture in the sky. 

2 0 You're not looking at it with human 

21 eyes. You're not looking at it in 3D. You're 

22 looking at it pointing towards the sun, which is 

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1 defracting all of that moisture and giving you 

2 that hazy look, but I see blue sky there, too. 

3 Q Okay. Thank you. 

4 (Playing video.) 

5 Q Again, do you see any moisture on the 

6 camera? 

7 A It's soft, for sure. 

8 Q It's what? 

9 A It has a soft image and that's one of 

10 the first clues that there is moisture on the 

11 lens is that it's shooting through another layer. 

12 And not just the lens, it's shooting through 

13 moisture. You can see how soft it is. 

14 Light on the lenses don't go out of 

15 focus as much as like the ground camera is going 

16 out of focus. When a wide angle appears out of 

17 focus, it's oftentimes moisture, not focus. 

18 Q Playing again from - oh, sorry. 

19 (Playing video.) 

20 Q So, I've stopped at one minute. Tell 

21 me what you see about layers of clouds. 

22 A Well, I think they're down below the 

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1 bottom layer, as far as I can tell in this image. 

2 And this is real typical, because it's too warm 

3 down low for the moisture to condense. So, 

4 that's Mount Ka'ala, it's 4,000 feet, and usually 

5 the clouds are three to 5,000 feet on the low end 

6 and there's higher layers. 

7 So to me, I would say they're below 

8 the bottom layer. 

9 Q Okay. So, just to be clear, so the 

10 below - what you kind of see in the horizon looks 

11 like a bottom layer of clouds to you, and then 

12 they're clear from there? 

13 A In that direction, it does look like 

14 that. 

15 JUDGE RAWALD: That's at one minute 

16 into the video. 

17 MR. BOBERTZ: Thank you. 

18 (Playing video. ) 

19 MR. BOBERTZ: Okay. 

20 please, Your Honor. 

21 

22 

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JUDGE RAWALD: Okay. 

(Pause.) 

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One moment, 

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3-107 

1 MR. BOBERTZ: I'm going to A33. 

2 (Playing video.) 

3 BY MR. BOBERTZ: 

4 Q So, I paused it at 30 seconds. 

5 What do you see as far as layers of 

6 clouds here, Mr. Sanders? 

7 A In the distance I see the tops are 

8 higher than the other clouds, but they could be 

9 considered as part of that same layer. But in 

10 the middle of the frame where it looks a little 

11 clearer, there's -you can start to see a little 

12 bit of the three dimension to it where there are 

13 lower layers. 

14 Q so, you would consider all this one, 

15 thick layer? You'd call this multiple layers? 

16 A It looks multiple to me. 

17 Q I see. I'm playing from 30 seconds. 

18 (Playing video. ) 

19 Q So, I stopped it at 58 seconds. And 

20 I believe your testimony before was he's not in a 

21 cloud. 

22 A 

(202) 234-4433 

Yes. And so, to be clear, what we're 

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1 looking at here is a GoPro and we're not looking 

2 through his eyes. 

3 I've had this exact experience 

4 hundreds of times where my ringsight fogs and my 

5 lens is capturing this image and I never lost 

6 sight of the ground. 

7 Q And so, playing forward from 58. 

8 (Playing video. ) 

9 Q Do you see some moisture on the lens? 

10 A Yes. 

11 Q Okay. Very much? 

12 A At this angle, it's hard to tell, but, 

13 yeah, there's definitely moisture on the lens. 

14 Q Okay. More or less than the last jump 

15 we saw, if you recall? 

16 A I know out of all the videos, there's 

17 one where it's, you know, a huge drop. All the 

18 rest seem pretty equal. 

19 Q Okay. And what can you tell me about 

20 the cloud layer at this point? I'm at one minute 

21 and four seconds. 

22 A 

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You can see the lower layer off to the 

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1 left, but where they are, that's the bottom -

2 between there and the drop zone it's probably 

3 clear. 

4 Q Pretty clear, right? 

5 A Right. 

6 Q Okay. Thank you. Okay. 8 : 3 8 . 

7 (Playing video.) 

8 Q so, I paused it at 35 seconds. 

9 What can you tell me about the cloud 

10 layers there? 

11 A The first thing I'd like to point out 

12 is how much more broken it looks from the air 

13 than from the ground. 

14 Q I'm sorry, Mr. Sanders, I'm not asking 

15 you that. I'm just asking about the layer. 

16 A Okay. There's a low - appears to be 

17 a low layer in the foreground closest to the 

18 camera. 

19 distance. 

20 Q 

21 

22 Q 

(202) 234-4433 

And then a pretty even layer in the 

Thank you. 

(Playing video.) 

At zero minutes, 57 seconds, I believe 

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1 you testified previously not in a cloud? 

2 A I can't tell. When you're looking at 

3 a GoPro, it fogs up. I have no idea. 

4 Q Now, you have no idea? 

5 A Well, I would say that he's likely to 

6 see the ground there. His eyes - he would see 

7 the ground. He wouldn't be obscure at all like 

8 the lens would or like a ringsight would fog up. 

9 Q In your opinion, is he, or is he not, 

10 in a cloud? 

11 A No. 

12 Q Thank you. And to what degree of 

13 certainty do you -

14 A Because I've seen that video image 

15 hundreds of times on videos that I've shot where 

16 I haven't even been near a cloud, but have been 

17 at the level where the temperature condenses and 

18 it fogs it up. 

19 So, it can, literally, just fog up and 

20 it's going to happen very quickly, and it's going 

21 to leave very quickly as well. 

22 

(202) 234-4433 

You're falling 200 feet a second. 

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1 During that deployment, you're slowing down, but 

2 you're going through a lot of altitude. It fogs 

3 on and comes off very quickly. 

4 Q So, tell me about the condensation on 

5 this lens compared to the others. 

6 A I have seen more, but I see a lot of 

7 texture that is the water droplets on -

8 Q So, is your testimony that it's- what 

9 appears to be one of the worst one of the 

10 worser cloud entries to the untrained eye is not 

11 that, it's just the condensation? 

12 A I think it's very clear particularly 

13 if you, like, look on the edge of the right-hand 

14 said, maybe even down towards the bottom, you can 

15 actually see the rain or the moisture droplets on 

16 it. 

17 Q Okay. 

18 A This is moist, but it doesn't mean you 

19 went through a cloud, it means it condensed on 

20 the lens because of temperature and this happens 

21 frequently. So frequently we bring a rag to wipe 

22 off our lens. 

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1 Q Understood. Thank you. I'm going to 

2 keep playing from 57 seconds. 

3 (Playing video.) 

4 Q So, I'm now at 59 seconds. I still 

5 see a lot of moisture on the lens, yet now all of 

6 a sudden I see the ground clear. 

7 Can you explain? 

8 A Yeah. And it's going to continue to 

9 clear all the way down to the ground, and it will 

10 clear. 

11 Q Thank you. 

12 (Playing video. ) 

13 MR. BOBERTZ: May I have a moment, 

14 Your Honor? 

15 JUDGE RAWALD: You may. 

16 (Pause.) 

17 BY MR. BOBERTZ: 

18 Q Mr. Sanders, how high up with the 

19 naked eye, if you've got decent eyes, 20/20 

20 vision, can you see a skydiver in free fall? 

21 A It definitely depends if the sky is 

22 real bright. But in the best case scenario, I've 

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1 seen the drogues exit -- from 14,000 feet, I see 

2 the white drogue. I don't see the person, if 

3 that helps. 

4 Q Okay. Sure. Is there a point at 

5 which you think you can actually see the skydiver 

6 or is it -when you're looking at it - so, you're 

7 seeing the drogue first and that's mostly what 

8 you're seeing besides the skydivers? 

9 A Yeah. The drogue is very noticeable 

10 and it's big and it's bright and it's wide. It 

11 stands out. But keep in mind they open their 

12 parachute at a mile above the ground, plus 

13 whatever distance you're at. 

14 So, it would be like if you're looking 

15 at somebody that's five-foot-six over a mile 

16 away, how are they going to look? They're going 

17 to look very small -

18 Q Right. 

19 A -- until the parachute opens. 

20 Q Okay. But can you so, can you 

21 actually see the skydiver themselves at 14,000, 

22 at 10,000 if it's -assuming it's a clear sky, 

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1 you've got some good contrast, at what point can 

2 you normally pick out a skydiver -

3 A Lots of times it's -

4 Q with the naked eye? 

5 A towards the end - the end of the 

6 jump, because you're so far away. But in the 

7 right conditions, you can see bodies exiting. 

8 We'll just see little dots exiting. 

9 With the naked eye -

10 Q Yeah. 

11 A -- it's possible to see the exit of a 

12 jumper with or without a drogue in the right 

13 conditions, but they're going to look just like a 

14 speck. 

15 Q Right. Okay. 

16 MR. BOBERTZ: Thank you. No further 

17 questions. 

18 JUDGE RAWALD: okay. Before we have 

19 redirect, sir, I do have two follow-up questions 

20 I just want to ask the gentleman that trigger 

21 redirect on your part. 

22 So, in comparing your testimony to 

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1 that of Inspector McCowan who said that basically 

2 he was basing, in large part, his notion that 

3 someone went through a cloud was that they would 

4 appear when they weren't there before. 

5 It sounds to me - and this is dealing 

6 with the ground cameras now. So, the cameras 

7 from the ground where TK Hinshaw took them -

8 seems to me what you're saying is, that is not an 

9 appropriate way of judging if someone has gone 

10 through a cloud. 

11 THE WITNESS: I would agree with that. 

12 JUDGE RAWALD: Okay. 

13 THE WITNESS: It's not an appropriate 

14 way. 

15 JUDGE RAWALD: And that's because of 

16 the fact that there is a change in size from free 

17 fall, to canopy, deploy, as well as limitation on 

18 the camera due to the auto- focus, it's amateur 

19 grade and the movement to frame the object. 

20 THE WITNESS: Yes. And I don't know 

21 if you mentioned the - parachutes fly pretty 

22 fast. They can actually fly around an area that 

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1 they were obscured in just like a wall of a 

2 cloud. They can reveal themselves to where the 

3 ground camera was once -

4 JUDGE RAWALD: Okay. So, once again, 

5 kind of limitation of two dimensions on the 

6 camera, which is three dimensions in real life. 

7 THE WITNESS: Yes. 

8 JUDGE RAWALD: Okay. And then in 

9 comparing the testimony we heard from TK Hinshaw 

10 which you were present for, he said he was basing 

11 his conclusion that a person had gone through a 

12 cloud because he couldn't see the plane, but he 

13 could see the parachutist. 

14 Is that an appropriate methodology to 

15 decide if someone has gone through a cloud? 

16 THE WITNESS: No, not at all. We 

17 actually saw that in the expert witness 

18 testimony. 

19 JUDGE RAWALD: Okay. And so, explain 

20 to me - so, and the reason for that is because 

21 why, sir? 

22 

(202) 234-4433 

THE WITNESS: Well, the parachutes are 

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1 very maneuverable. They're 2S mile an hour and 

2 we're exiting upwind. So, we have the tailwind. 

3 So, they can be going 40-SO miles an hour. So, 

4 they can hide themselves, reveal themselves, just 

s by flying around in the three-dimensional sky. 

6 That does happen. 

7 JUDGE RAWALD : So, the fact that we 

8 can't see the plane shouldn't be considered as a 

9 factor in deciding whether a person has gone 

10 through a cloud layer? 

11 THE WITNESS: No. And the plane's at 

12 14,000 feet and it is flying forward. So, you 

13 know, he's not necessarily going to be in the 

14 frame at all. 

1S JUDGE RAWALD: Okay. Mr. Feldman, 

16 I'll turn to you for redirect. 

17 MR. FELDMAN: Let's go back to AS. 

18 JUDGE RAWALD : Okay. We '11 open up 

19 the screen for you. 

20 REDIRECT EXAMINATIOIN 

21 BY MR. FELDMAN: 

22 Q Showing you AS at six minutes, six 

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1 seconds and zero frames in, you see a canopy 

2 there, correct? 

3 A Yes. 

4 Q Can you see any bodies under that 

5 canopy? 

6 A No. 

7 Q And do you have an opinion as to why 

8 you don't see the bodies? 

9 A They're a long ways away, for one. 

10 And they could be hidden from the angle by the 

11 parachute itself, just got lost. 

12 Q And with the quality of the camera 

13 used for these videos being a consumer camera, 

14 would that make it more or less likely that you 

15 would be able to distinguish a body under a 

16 canopy? 

17 A Far less likely. 

18 Q And would that also apply to a body in 

19 free fall? 

20 A Yes. 

21 Q And does contrast affect the ability 

22 to view a canopy in - a canopy in the sky? 

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1 A Yes. 

2 Q How does it affect it? 

3 A There are times that we couldn't see 

4 it, because it was a blue sky and a dark 

5 parachute and the camera couldn't discern the 

6 two. They just got lost together and it moves in 

7 front of the cloud and there's a greater contrast 

8 between the two images and it's real obvious. 

9 Q And would that also affect a body in 

10 free fall being able to be seen or not seen? 

11 A Yes. 

12 Q And the size of an object, does that 

13 affect your ability to view it? 

14 A Yes. 

15 Q And the angle from which you're 

16 viewing it affects whether or not you can see an 

17 object -

18 A Absolutely. 

19 Q -- is that a correct statement? 

20 A Yes. 

21 Q And the focus of the camera, does that 

22 affect whether or not you can see an object? 

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1 A Yes. 

2 Q How? 

3 A Well, we've seen it there where it's 

4 out of focus, all of the information just gets 

5 blurred together. And when it's brought into 

6 focus, there's some detail. 

7 Q And these lenses have inherent - is it 

8 a correct statement that the lenses have inherent 

9 flaws in these lower-end cameras? 

10 A Yes. 

11 Q And can you tell what flaws it would 

12 have? 

13 MR. BOBERTZ: Objection. Asked and 

14 answered. Again, not necessarily a camera 

15 expert. 

16 JUDGE RAWALD: I'm going to allow the 

17 question at this point. So, counsel, it's 

18 responsive to the cross examination questions you 

19 had where you were trying to confront him with 

20 why he's denying certain things. 

21 So, I'm going to allow him to answer 

22 the question to allow him to answer within the 

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1 normal expertise that he established so far. So, 

2 the objection overruled. 

3 THE WITNESS: Well, the objects are 

4 absolutely critical, because we're basing this 

5 entire evidence on something that's been 

6 videotaped. And the lower-end lenses have less 

7 elements, so they're - they don't provide as good 

8 a resolution. They can't handle the contrast as 

9 well. And in most- well, actually, all consumer 

10 lenses, they'll be soft in the edges. 

11 A very expensive lens is going to be 

12 sharp not only in the center of the frame, but 

13 all the way to the edges it will remain sharp. 

14 So, the objects can make a big difference in the 

15 way things appear. 

16 BY MR. FELDMAN: 

17 Q So, are you saying, then, that objects 

18 if you're looking at a shot of the sky with 

19 various jumpers in it, that the jumpers in the 

20 center would be clearer than the jumpers in the 

21 periphery of the lens? 

22 A 

(202) 234-4433 

All things being equal, they would be 

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1 sharper in the center. But if there's a cloud, 

2 you know, blocking the one in the center, it may 

3 not be true to say that. But all things being 

4 equal, it would be sharper in the center. 

5 Q Okay. Let's go to A7. A minute three 

6 in. 

7 Is the lens in or out of focus at a 

8 minute three in on A7? 

9 A Out of focus or moisture on the lens. 

10 But since it's a ground camera, probably out of 

11 focus. 

12 Q And then 1:04, is the lens in or out 

13 of focus? 

14 A It's out of focus. Maybe a touch 

15 closer towards focus, but it's out of focus. 

16 Q And at 1:04 and 21 frames, that's 

17 21/30ths of a second later, is the lens in more 

18 focus, or less focus? 

19 A More focus. 

20 Q We'll go to A14 - sorry. Let's just 

21 back up to AS for a second. 

22 Can you see the canopy in this shot? 

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1 A Yes. 

2 Q Do you see any bodies in the shot? 

3 A No, not til six minutes and six 

4 seconds. 

5 Q And at what angle would you estimate 

6 at six minutes, six seconds the camera was from 

7 the canopy that you see? 

8 A Somewhere in the 35 to 40-degree 

9 angle. 

10 Q Now, let's go to A14. At five 

11 minutes, 27 seconds into the video, can you see a 

12 jumper in the frame? 

13 A I can see a dot that looks like a 

14 parachute. 

15 Q And that would be on the left side? 

16 A That's correct. 

17 Q Can you tell if it's a jumper or a 

18 parachute? 

19 A I would say a parachute. 

20 Q Now, at five minutes, 28 seconds and 

21 three frames, do you see that dot? 

22 A No. 

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1 Q And 12 frames later at five minutes, 

2 28 seconds and 15 frames, do you see the dot? 

3 A Yes. 

4 Q Do you have an opinion as to why the 

5 dot disappeared? 

6 A Looked like there was focus issues, 

7 for sure. But again, we're shooting a long ways 

8 away and I don't know if it's just too far away 

9 at some point and then it becomes visible as 

10 well, but it looks to me like it's maybe 

11 revealing itself with the focus getting sharper. 

12 Q If you look at the clouds to the 

13 lower-third bottom center, does that help you in 

14 any way to determine whether it's a focus issue? 

15 I'll scrub back and forth. 

16 A Yeah, it's a focus issue right there, 

17 unless it happened simultaneously where it flies 

18 behind a layer. But it was out of focus, I can't 

19 see it, and then the focus appears to get a 

20 little better as the cameras move. 

21 Q So, does the jumper disappearing at 

22 five minutes, 28 seconds, approximately, indicate 

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1 that the jumper was going through a cloud, or 

2 other - that there were other issues causing him 

3 to disappear? 

4 MR. BOBERTZ: objection. Asked and 

5 answered. 

6 JUDGE RAWALD: Yeah. He's made it 

7 clear that it's a focus issue or possibly 

8 something else, sir. 

9 So, you can move on. The objection is 

10 sustained. 

11 MR. FELDMAN: All right. 

12 BY MR. FELDMAN: 

13 Q And, again, the angle at five minutes, 

14 28 seconds is not straight up. 

15 Is that a correct statement? 

16 MR. BOBERTZ: Objection. Asked and 

17 answered. 

18 JUDGE RAWALD: He did say already it 

19 was 30 to 45 degrees, sir. The objection is 

20 sustained. 

21 BY MR. FELDMAN: 

22 Q 

(202) 234-4433 

Let's go to 6:35 and I'd like you to 

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1 look at the white dot below the canopy that's in 

2 the center just between the middle and top-third 

3 of the frame. And the white dot is almost 

4 directly below it. 

5 Do you see it there? 

6 A I do. 

7 Q Now, do you see a cloud in this shot 

8 where the white dot is? 

9 A I do. 

10 Q And is the white dot above or below 

11 the cloud? 

12 A Below the cloud. 

13 Q And let's go to 7:39. 

14 Is that a pink or orange canopy you 

15 see at 7:40 and 10 frames? 

16 A It looks as much red to me as pink or 

17 orange. 

18 Q And then which way does the camera 

19 move as I advance it from that point? 

20 A It panned to the left. 

21 JUDGE RAWALD: And, Mr. Feldman, 

22 before you go on with this, I do want to make 

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1 sure I made the point where Mr. Bobertz said this 

2 is really lay testimony as far as identifying 

3 that person and trying to link it to the video. 

4 I can draw my own conclusions from it. 

5 The testimony of the witness was not helpful for 

6 that and redirecting on that is not going to make 

7 any more difference for that. 

8 MR. FELDMAN: I'll withdraw this line 

9 of questioning, Your Honor. 

10 BY MR. FELDMAN: 

11 Q I'll go to A32. We'll go to 30 

12 seconds in. 

13 Now, looking at this video, you 

14 testified that there were multiple layers in the 

15 background, correct? 

16 A Yes. 

17 Q Is it easier to see multiple layers 

18 from directly above the clouds, or when they're 

19 off at an angle? 

20 A 

21 bit. 

22 Q 

(202) 234-4433 

I would think on an angle a little 

So, has that helped you identify 

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1 multiple layers in your testimony here today? 

2 A Yes. 

3 Q Going to A33, at 1:04 in A33, do you 

4 see multiple layers in this shot at 1: 04, zero 

5 fraines? 

6 A Yes. 

7 Q And can you tell looking at this shot 

8 even if there's - appears to be clearer sky to 

9 the right, exactly what TK' s camera could see 

10 from its angle on the ground? 

11 MR. BOBERTZ: Objection. Speculation. 

12 JUDGE RAWALD : He's asking if he can 

13 with his expertise, do that. So, I want to hear 

14 the answer. 

15 The objection is overruled. 

16 JUDGE RAWALD: Can you repeat the 

17 question? 

18 BY MR. FELDMAN: 

19 Q Yeah. Can you tell from this shot at 

20 a minute four and no frames - zero frames, what 

21 the camera on the ground that was shooting -

22 being shot 

(202) 234-4433 

operated by TK, could see or 

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1 couldn't see? 

2 A No, I can't. 

3 Q And do you have an opinion as to 

4 whether that camera would have a view of clouds 

5 in it as it - if it was facing this direction 

6 where the jumpers were? 

7 A It's likely there would be cloud in 

8 the background of the shot, for sure. 

9 Q And just with respect to lens fogging, 

10 is there something that professionals do to keep 

11 lenses from fogging up? 

12 A Yes. 

13 Q And what is that? 

14 A You have a heated lens so the 

15 temperature can't change and cool down. 

16 Q And that's not available for consumer 

17 cameras, to your knowledge? 

18 A No. And it's only used occasionally 

19 professionally. 

20 Q Go to A38. Now, I'll go from A38 at 

21 57 seconds and 23 frames in. 

22 Do you have an opinion as to what the 

(202) 234-4433 

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1 contrast is in this shot? 

2 A Very low. 

3 Q And that's because it's facing - is 

4 that because it's facing toward the ground? 

5 A There's a couple of reasons. I think 

6 this altitude, they're not up in the bright sky 

7 where the tandem was being found. Wherever the 

8 sun is, the ground is much darker. 

9 It's darker to begin with even if it's 

10 lit up, but it may be in shadow. But you can see 

11 the greens and you can see the ground there even 

12 through this moisture on the GoPro video camera. 

13 Again, I would say that the contrast 

14 of your eyes, you can see the ground perfectly 

15 clear here because it's - first of all, for some 

16 reason our skydiver goggles don't tend to fog up 

17 like a lens. It's not a smooth, polished surface 

18 that really gets cold. So, the skydiver's view 

19 right here would not be this view. 

20 Q And does this view at 57 seconds and 

21 23 frames in, can you see moisture on the lens? 

22 A 

(202) 234-4433 

Definitely. 

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1 Q Okay. And does it look like that 

2 moisture is in focus? 

3 A No. 

4 Q Does it look like it's focusing beyond 

5 the moisture? 

6 A Yes. And the GoPros are usually- you 

7 focus more out towards infinity and they're not 

8 on a real auto focus. 

9 Q And here at 59 seconds in, is there a 

10 difference in contrast from what we just saw in 

11 the previous frame? 

12 A Yes. 

13 Q And what is the difference? 

14 A We can see much more clearly even 

15 though through the water, we can see it clear. 

16 Q And in this shot, would the lens 

17 aperture or f-stop change from what we saw in the 

18 previous shot? 

19 A Yeah. It's a much brighter direction 

20 that he's facing right now. So, the f-stop of 

21 the lens would stop down and give you greater 

22 depth to field, which would give you some greater 

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1 clarity as well. 

2 Q Then on a darker shot in -

3 A On a dark shot, the lens is going to 

4 open up just like our eye does and focus is 

5 really critical. So, it would go way out of 

6 focus with a big opening on your iris. 

7 And when it's a brighter image where 

8 the sky comes in there, the auto - iris is going 

9 to stop down and give you greater clarity with 

10 depth of field. 

11 Q Okay. And just to be clear, Hawaii is 

12 an island, correct - a group of islands, correct? 

13 A Yes. 

14 Q And your circle of friends is mostly 

15 on the group of islands? 

16 A I have a lot of friends on the 

17 mainland. 

18 Q But while you're on the island, your 

19 friends are here on the island with you that you 

20 - with whom you ever associate, correct? 

21 A 

22 Q 

(202) 234-4433 

Yeah, I spend most of my time here. 

And as a skydiver, you need to jump 

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1 somewhere, correct? 

2 A Absolutely. 

3 Q And you've chosen to jump at Pacific 

4 Skydiving? 

5 A Yes. 

6 Q Did your friendship with Gi Banelle in 

7 any way affect the truthfulness of your testimony 

8 here today? 

9 A No. 

10 Q And did you testify based on your 

11 experience as an expert in photography and aerial 

12 skydiving photography and the effects that 

13 various factors would have on the accuracy of 

14 images -

15 MR. BOBERTZ: Objection. Asked and 

16 answered. 

17 JUDGE RAWALD: You can answer the 

18 question which is, did you base is your 

19 testimony based upon your expertise rather than 

20 your friendship, sir? 

21 

22 

(202) 234-4433 

THE WITNESS: It is. 

JUDGE RAWALD: Okay. Thank you. 

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1 So, the objection is sustained, in 

2 part, with that question being allowed to be 

3 asked. 

4 BY MR. FELDMAN: 

5 Q And your being paid for your 

6 appearance and your time, did that in any way 

7 affect the answers that you gave here today? 

8 A No. 

9 Q And you're a professional in 

10 skydiving, correct? 

11 A Yes. 

12 Q And you get paid for what you do as a 

13 professional; is that correct? 

14 A Yes. 

15 Q And typically, what do you charge an 

16 hour as a free fall videographer? 

17 A I'm usually shooting high-end projects 

18 and I have a daily rate that's around a thousand 

19 dollars a day and $500 a jump. So, it's not an 

20 hourly rate, but usually it's around three or 

21 $4,000 a day. 

22 Q 

(202) 234-4433 

And how long does a jump take? 

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1 A We do a lot of planning when it's a 

2 Hollywood-type jump. So, we do one about every 

3 hour, hour and a half. 

4 Q so, that's approximately $500 an hour, 

5 isn't it? 

6 A Yes. 

7 MR. FELDMAN: Nothing further, Your 

8 Honor. 

9 JUDGE RAWALD: Any recross based on 

10 the redirect? 

11 MR. BOBERTZ: Just one question on 

12 recross, Your Honor. 

13 RECROSS EXAMINATION 

14 BY MR. BOBERTZ: 

15 Q I've got A38 starting at 56 seconds16 JUDGE RAWALD: Hold on one second. 

17 MR. BOBERTZ: Sorry. Let me go back 

18 just a little bit. 

19 JUDGE RAWALD: Okay. 

20 MR. BOBERTZ: Okay. Actually starting 

21 at about 49 seconds, A38. 

22 (Playing video.) 

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1 BY MR. BOBERTZ: 

2 Q About what angle towards vertical 

3 would you say the camera is looking up at that 

4 point, Mr. Sanders? 

5 JUDGE RAWALD : At which point? The 

6 point where you stopped it at 1:02? 

7 MR. BOBERTZ: The point where I 

8 stopped it at 1:02. 

9 THE WITNESS: Well, he's being swung 

10 back a little bit, but, I mean, it's almost like 

11 70 degrees, probably. 

12 BY MR. BOBERTZ: 

13 Q Okay. Do you see much blue sky above 

14 him? 

15 A No, but I think he's been swung 

16 backwards a little bit. The canopy is out in 

17 front of him here, which happens during 

18 deployment as you're swinging back. So, he's 

19 looking more forward and down than what's right 

20 below him or above him. 

21 Above him is out the top of the frame, 

22 not the bottom. 

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1 Q All right. At 1:02 still, you still 

2 think that's 70 degrees some vertical? 

3 A 70 or 80, yeah. 

4 Q Still at -

5 A Yeah. Yeah. He's not getting 

6 underneath the canopy yet. Still behind the -

7 see how far out - the canopy is way out in front 

8 of him. 

9 Q Okay. 

10 JUDGE RAWALD: I don't think your 

11 previous testimony was hearable because you're 

12 kind of getting away from the mic, sir. 

13 THE WITNESS: Okay. 

14 JUDGE RAWALD: so, you were saying? 

15 THE WITNESS : You can see in the 

16 deployment, that's kind of a high-performance 

17 parachute which the cameramen use in a jump, but 

18 it looks like it's way out in front of him. 

19 so, I was basing my angle based on his 

20 angle to the parachute, but the parachute and the 

21 body was also at an angle, too. So, I think 

22 they're looking way out in front of where up 

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1 would be. 

2 MR. BOBERTZ: Thank you. No further 

3 questions. 

4 JUDGE RAWALD: The witness may step 

5 down and back to the -

6 MR. FELDMAN: I have one more question 

7 based on what -

8 JUDGE RAWALD: Okay. 

9 REDIRECT EXAMINATION 

10 BY ~R. FELDMAN: 

11 Q Moving to may I have the screen 

12 again? Going to A38 at 56 seconds and seven 

13 frames in, it looks like to the right there's an 

14 area that's a different color. 

15 Do you have an opinion of whether or 

16 not that's sky there or clouds there? 

17 A On this one, I actually think it 

18 unless I'm losing track, I think it's actually 

19 ground. And he's - there's kind of a green color 

20 that goes across the whole frame there. I think 

21 that that is ground through water on a lens. 

22 And, again, that's not necessarily at all wet. 

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1 It's happening in real life to the skydiver. 

2 There's lots of moisture, but our eyes 

3 don't get affected by it like the camera does. 

4 MR. FELDMAN: Thank you, and nothing 

5 further. 

6 JUDGE RAWALD: Okay. Any recross 

7 based on that question? 

8 MR. BOBERTZ: No, Your Honor. 

9 JUDGE RAWALD: Okay. Thank you. You 

10 can go ahead and sit back at the table, sir. 

11 (Witness excused.) 

12 JUDGE RAWALD : Mr. Feldman, what is 

13 next? 

14 MR . FELDMAN: Your Honor, we rest. 

15 However, we move to dismiss for lack of 

16 jurisdiction. 

17 JUDGE RAWALD: Okay. And as I 

18 mentioned to you before, the lack of jurisdiction 

19 argument is regarding the complaint issue of 

20 being over $50,000, the civil penalty; is that 

21 what you're talking about, sir? 

22 MR. FELDMAN: Yes. The amount in 

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1 controversy in this case is 55,000. And the 

2 jurisdiction of this court is 50,000. 

3 I do have a case that says that the 

4 court -

5 JUDGE RAWALD: That's fine, sir. Let 

6 me just make sure I clear up two things. One, I 

7 asked you to file motions many, many months ago 

8 and we did not. I'm not going to rule on the 

9 motion here without briefing by both parties on 

10 the issue. 

11 So, I will set a motion deadline for 

12 that hearing. So, you can set that motion 

13 deadline. 

14 The motion will be due by - let me 

15 pull up the calendar. Your motion will be due to 

16 be filed by December 29th, two weeks from today. 

17 Mr. Bobertz, you will then have two 

18 weeks of brief and response. So, by January 12th 

19 your response to Mr. Feldman's motion regarding 

20 the jurisdictional issue that will be in 

21 addition to the time frame we set for the briefs. 

22 Okay? 

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1 So, December 29th for the initial 

2 filing for Mr. Feldman. January 12th for the 

3 response of filing for Mr. Bobertz. 

4 MR. FELDMAN: And Your Honor will set 

5 the dates for the closing arguments subsequent to 

6 that motion? 

7 JUDGE RAWALD: That - no. No. We'll 

8 talk about - that's going to be -no, those will 

9 be running concurrently because you've decided 

10 that's how you want to handle this issue as 

11 opposed to dealing with it before the hearing. 

12 So, we're not going to derail the hearing issue 

13 while we look at the jurisdictional issue. 

14 So, let's see if Mr. Bobertz has any 

15 sort of rebuttal then to your evidence. 

16 MR. BOBERTZ: It will be a minute or 

17 two, but I do have one. We'd like to recall Mr. 

18 McCowan. 

19 JUDGE RAWALD : Okay. Mr. McCowan, 

20 would you take the stand, please? 

21 Mr. McCowan, I remind you that you're 

22 under oath. 

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1 Mr. Bobertz, your witness. 

2 MR. BOBERTZ: Thank you. May I have 

3 the screen, Your Honor? 

4 JUDGE RAWALD: You may. 

5 DIRECT REBUTTAL 

6 BY MR. BOBERTZ: 

7 Q So, I'm playing A38 from about 40 

8 seconds. 

9 (Playing video.) 

10 Q I paused it at 1:03. 

11 Inspector McCowan, you've done a lot 

12 of skydiving and are familiar with videos of 

13 skydiving. And of course they're not through the 

14 clouds. And when you' re diving and you're not 

15 going through the clouds, do you ever see this 

16 kind of condensation on the lens? 

17 

18 

19 

20 

21 

22 

A Again, I don't jump cameras that much. 

But looking at other people's videos when they 

come through that level, you will see 

condensation. That is where the cloud layer -

he's coming out the bottom of it right 

that would 

(202) 234-4433 

be where you would 

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now. So, 

see the 

(202) 234-4433 
3-143 

1 condensation. 

2 Q So, will you see condensation when 

3 you're going - absence of a cloud, will you see 

4 condensation like that? 

5 A Yes, you do at that particular level. 

6 Q Okay. 

7 A Not this particular level, but 

8 whatever the moisture level is. 

9 Q Thank you. 

10 JUDGE RAWALD: Any further questions? 

11 MR. BOBERTZ: I have no further 

12 questions. 

13 JUDGE RAWALD: Mr. Feldman, any cross 

14 examination based upon the direct? 

15 MR. FELDMAN: No, Your Honor. 

16 JUDGE RAWALD: Okay. 

17 MR. FELDMAN: It was a very good 

18 answer. 

19 JUDGE RAWALD: Okay. And I'll 

20 disregard your qualitative analysis of the 

21 answer. 

22 

(202) 234-4433 

Okay. You can go ahead and sit down. 

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1 (Witness excused.) 

2 JUDGE RAWALD: So, it appears, then, 

3 that we have all the evidence in this case. I do 

4 want to go over with the parties what we have 

5 received in evidence at this time. 

6 I have received all the government 

7 exhibits. A1 through A56 have been put in 

8 evidence. 

9 Additionally, from the respondent's 

10 point of view, R3, R6, R12, R14, R15, 16, 17, 18, 

11 19, 20, 21, 23, 24, 25 and 26. So, those are the 

12 evidence that have been admitted in the course of 

13 this hearing. 

14 Both parties indicated they will 

15 prefer to do response to briefings rather than 

16 closing arguments. 

17 Is that still the case, Mr. Bobertz? 

18 MR. BOBERTZ: Yes, Your Honor. 

19 JUDGE RAWALD: Mr. Feldman? 

20 MR. FELDMAN: Yes, Your Honor. 

21 I'd also move that any exhibits that 

22 I've referenced in this hearing be admitted in 

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1 case one was omitted in the list you gave. It 

2 was too fast for me to verify that I had them 

3 all, but I think you got the additional ones that 

4 were added. 

5 JUDGE RAWALD: R25 and R26 are the two 

6 pieces of evidence that were added in the course 

7 of the hearing. They were admitted as part of 

8 the process. And so, I did account for those in 

9 my list just now. 

10 MR. FELDMAN: Thank you, Your Honor. 

11 JUDGE RAWALD : Okay. And given the 

12 fact that both parties want to submit briefs, let 

13 me go ahead and go over the issues that I think 

14 are important. I still believe the ones I 

15 provide at the prehearing conference on November 

16 28th, are the guiding issues of the case with one 

17 addition. 

18 In the first issue which regards did 

19 individuals parachute through clouds, the things 

20 that will be most helpful for me to hear from the 

21 parties about would be the proper weight to give 

22 the credibility of TK Hinshaw's testimony; the 

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1 weight of the film shot by TK Hinshaw, what we 

2 actually give that film; what weight I should 

3 give the video evidence obtained from Pacific, 

4 specifically as we've been calling it "the GoPro 

5 footage. n 

6 And, also, I ask the parties when 

7 discussing the expert testimony from Mr. McCowan 

8 and also from Mr. Sanders, please keep in mind 

9 the administrator opinion that logic, depth and 

10 persuasiveness are the criteria for evaluating 

11 expert testimony as cited by 1997-9 Alphin 

12 Aircraft at 12. 

13 The second issue that's important for 

14 me to hear from you folks on is whether 

15 respondent is a responsible party under the 

16 applicable regulations for the cloud issue, which 

17 is at 14 CFR 105.7, as well as the definitions 

18 that are at 14 CFR 105.3. So, explain to me why 

19 they apply to the respondent as a company as 

20 opposed to the parachutist or the pilot in 

21 command. 

22 The 

(202) 234-4433 

third issue would 

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be the 

(202) 234-4433 
3-147 

1 independent contractor issue raised by the 

2 defense and whether the facts have indeed met the 

3 fact that they are independent contractors. And 

4 if so, whether that provides any defense to any 

5 sort of responsibility by the respondent here. 

6 And fourth, if the respondent did 

7 commit any violations, how should I compute the 

8 appropriate civil penalty? 

9 While I have an amount for the 

10 administrator for if I found all the violations, 

11 I want to understand the basis for how to get to 

12 that number or how to compute a lower amount if I 

13 were to find less violations or a different 

14 outcome. 

15 And finally, the last issue that I -

16 that we didn't discuss before that I think is 

17 important, is why 9113 applies, or does not 

18 apply, in this case. 

19 so, while I don't think - as we all 

20 agreed, it does not affect the ultimate civil 

21 penalty if I were to find a violation, I do have 

22 to find whether they violated that provision or 

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1 not. 

2 And so, I need to hear from the 

3 panties about why it applied or does not apply. 

4 Okay? 

5 Any question on that summary of what 

6 I'm looking for? 

7 Mr. Bobertz? 

8 MR. BOBERTZ: You went very fast on 

9 the first part about the weight. 

10 JUDGE RAWALD: Yes. I'll go back. 

11 MR. BOBERTZ: But if we're going to 

12 get the transcript shortly, that's fine. If it's 

13 going to be a while for the transcript, a little 

14 bit slower repetition would be appreciated. 

15 JUDGE RAWALD: sure. And so, you want 

16 to hear back from the first issue? 

17 MR. BOBERTZ: Yes, please. 

18 JUDGE RAWALD : okay. So, in looking 

19 at the individuals parachuting into the clouds 

20 issue, the things that are most important to me 

21 to be described by the parties are the 

22 credibility of TK Hinshaw's testimony; how should 

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1 I weigh that and what weight should it get? 

2 What weight to give the film shot by 

3 TK Hinshaw, the four exhibits that we've seen 

4 quite a bit today and over the course of the 

5 hearing. 

6 What weight to give the video evidence 

7 obtained from Pacific. In other words, the GoPro 

8 footage. 

9 And once again, when discussing the 

10 expert testimony of Mr. McCowan and Mr. Sanders, 

11 just I'm asking the parties to keep in mind the 

12 administrator's opinion that logic, depth and 

13 persuasiveness are the criteria for evaluating 

14 testimony. 

15 And the case citation for that that I 

16 have that's most recent is 1997-9 Alphin Aircraft 

17 at 12 though that's stated many times throughout 

18 the administrator's opinions. 

19 Anything else, Mr. Bobertz, or is that 

20 sufficient? 

21 MR. BOBERTZ: That's sufficient. 

22 Thank you, Your Honor. 

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1 JUDGE RAWALD: Okay. 

2 MR. FELDMAN: Your Honor, just let's 

3 make sure that we didn't miss anything. The 

4 second point is, is the respondent the 

5 responsible party? 

6 JUDGE RAWALD : Under the applicable 

7 regulations, yes. So, looking at 14 CFR 105.7 

8 and looking at definitions of 14 CFR 105.3, 

9 explain to me whether respondent is or is not the 

10 responsible party depending on your position in 

11 this case. 

12 MR. FELDMAN: And the next issue is 

13 the independent contractor issue -

14 JUDGE RAWALD: Yes. 

15 MR. FELDMAN: -- how they got to be 

16 independent - are they independent contractors? 

17 JUDGE RAWALD: Well, did you factually 

18 prove they are independent contractors as viewed 

19 under the law? And if so, does that obviate them 

20 from any sort of responsibility under the law? 

21 MR. FELDMAN: And the next one is 

22 computing the penalty and how that was computed? 

(202) 234-4433 

NEAL R. GROSS 

COURT REPORTERS AND TRANSCRIBERS 

1323 RHODE ISLAND AVE., N.W. 

WASHINGTON, D.C. 20005-3701 (202) 234-4433 
3-151 

1 JUDGE RAWALD : Yes, sir. And from 

2 your point of view, if you want to offer any sort 

3 of thought on computing a lower civil penalty on 

4 behalf of your client if I do find a violation, I 

5 will consider your arguments. 

6 MR. FELDMAN: And then, finally, why 

7 9113 does or does not apply. 

8 JUDGE RAWALD: Absolutely. 

9 MR. FELDMAN: Thank you, Your Honor. 

10 JUDGE RAWALD : Okay. And so, each 

11 party will submit one brief by the same deadline. 

12 We're not going to have response to briefing. 

13 It's simply going to be one shot from each side. 

14 When would be an appropriate date for 

15 you to do that based upon the receipt of 

16 transcript? 

17 Mr. Bobertz, do you have a position? 

18 MR. BOBERTZ: If you can give me one 

19 moment to pull up my calendar? 

20 JUDGE RAWALD: Okay. I will note that 

21 13.231(c) directs that no more than 30 days from 

22 receipt of the transcript would be reasonable. 

(202) 234-4433 

NEAL R. GROSS 

COURT REPORTERS AND TRANSCRIBERS 

1323 RHODE ISLAND AVE., N.W 

WASHINGTON, D.C. 20005-3701 (202) 234-4433 
3-152 

1 This is a long case. We have three 

2 days of testimony. I don't mind giving you the 

3 full 30 days, if that would be the best thing for 

4 both parties. 

5 MR. FELDMAN: That would be the best 

6 with the holidays in here and -

7 JUDGE RAWALD : Well, I don't presume 

8 the transcript will be to you before the 

9 holidays, quite honestly, sir. 

10 MR . FELDMAN: I'd like the full 30 

11 days. 

12 JUDGE RAWALD: Okay. Mr. Bobertz? 

13 MR. BOBERTZ: I was doing to say I'd 

14 like to get it done, but I think 15 would be 

15 sufficient. 

16 JUDGE RAWALD: Okay. There's a lot to 

17 chew on here and I also have you working on a 

18 brief regarding jurisdiction. So, I will go 

19 ahead and give the 30 days. 

20 So, what will happen is once the 

21 parties receive the transcript, I will then issue 

22 an order and we will adopt a deadline, but you 

(202) 234-4433 

NEAL R. GROSS 

COURT REPORTERS AND TRANSCRIBERS 

1323 RHODE ISLAND AVE., N.W 

WASHINGTON, D.C. 20005-3701 (202) 234-4433 
3-153 

1 should of course compute for yourself when you 

2 receive the transcript, that it will be 30 days. 

3 But I will issue a follow-up order so you know 

4 the exact deadline so there will be no confusion 

5 about what the deadline for the brief will be. 

6 MR. FELDMAN: Thank you. 

7 JUDGE RAWALD: Okay. Any other 

8 questions? 

9 MR. FELDMAN: Your Honor, that's 30 

10 days from receipt of the transcript? 

11 JUDGE RAWALD: Yes. 

12 MR. FELDMAN: Thank you. 

13 JUDGE RAWALD: Yes. Because the 

14 transcript will be useful to you in writing your 

15 brief. And of course if your brief contains 

16 transcript citations, that will be much more 

17 useful to me than if it does not. 

18 Anything else? Any other questions, 

19 Mr. Feldman? 

20 MR. FELDMAN: No, Your Honor. 

21 JUDGE RAWALD: Okay. Mr. Bobertz, any 

22 other questions about what's going on at all? 

(202) 234-4433 

NEAL R. GROSS 

COURT REPORTERS AND TRANSCRIBERS 

1323 RHODE ISLAND AVE., N.W. 

WASHINGTON, D.C. 20005-3701 (202) 234-4433 
3-154 

1 MR. BOBERTZ: No, Your Honor. 

2 JUDGE RAWALD: Okay. Mr. Feldman, one 

3 last chance. Any questions in general? 

4 MR. FELDMAN: Nothing, Your Honor. 

5 Thank you. Thank you for being patient. 

6 JUDGE RAWALD: That's fine. Once the 

7 deadlines for brief have passed, I will issue a 

8 written decision in this matter that will be sent 

9 to both parties at the address I have for you. 

10 If it changes for any reason, please 

11 let me know where you are so I can find you and 

12 send the brief to you. Okay? 

13 Last thing, then, thank you for 

14 showing up and staying for this proceeding. Best 

15 wishes for you, have a safe travel home, and the 

16 hearing is now closed. Thank you. 

17 (Whereupon, at 12:04 p.m. the hearing 

18 was adjourned.) 

19 

20 

21 

22 

(202) 234-4433 

NEAL R. GROSS 

COURT REPORTERS AND TRANSCRIBERS 

1323 RHODE ISLAND AVE., N.W. 

WASHINGTON, D.C. 20005-3701 (202) 234-4433 
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calendar140:15151:19 

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call4:13 107:15 

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Washington DC 

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changing 88:7 

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clarification 75:2 

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common 9:11,22 10:2 

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Washington DC 

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focus 8:19,21 25:4,8,11 

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Washington DC www. nealrgross.com 
honest 97:22 

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jumper7:8 22:16 23:22 93:15 95:5 105:21 

Neal R. Gross and Co., Inc. 

Washington DC 

Volume 3 

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limitation 115:17 116:5 

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line 127:8 

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Volume 3 

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little 6:12 20:19 25:16 114:3139:2 128:20141:16 128:1,4 

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(202) 234-4433 Washington DC www.nealrgross.com 
obtained 146:3 149:7 

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picture 55:19 58:5 

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pilot13:8,10 14:142:5 

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pink 91:18 126:14,16 

pixels 57:3 

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Neal R. Gross and Co., Inc. 

Washington DC 

Volume 3 

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possible 11:12 23:3 

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qualitative 143:20 

quality 7:3 34:8 76:11 

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replaying 64:5 

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Washington DC 

Volume 3 

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responsibility 147:5 

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rest91:12108:18 

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restarted 27:18 28:8 

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revealing 124:11 

right-hand 35:11 36:18 

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ringsight 9:14,16 10:7 

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room 49: 18 1 00: 17 

rotor 99:22 101:4 

rule40:5 41:3 140:8 

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safe 154:15 

salt 6:1 

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saying 80:8 90:17 

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scattered 34:20 93:18 

scenario 112:22 

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seemingly 43:2 51:14 

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speaks 34:2 

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Neal R. Gross and Co., Inc. 

Washington DC 

Volume 3 

164 

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steepening 104:10 

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stop 8:18 29:14 40:9,10 

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storage 30:5 

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straight11:1312:3,6,12 

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stripe 93:19 

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strong 19:4 

stronger 26:20,21 

studied 13:11 

stuff94:12 

subjects 97:15 

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subsequent 141:5 

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table 40:21 139: 1 0 

tailwind 117:2 

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thousand 18:11,17 

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thousands 15:17 56:8 

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times 31:3 42:21 65:18 

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tiny 76:1 

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top 11:9,13 34:20,22 

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top-third 126:2 

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track20:8,13138:18 

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training 13:10 

transcript 148:12,13 

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Washington DC 

Volume 3 

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87:6 96:7 118:22 

119:13129:4130:18 

130:19,20 144:10 

151:2 

viewed 150:18 

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viewing 5:21 11:22 34:4 

119:16 

violated 147:22 

violation 147:21151:4 

violations 147:7,10,13 

visibility 22:6 88:7 

visible 13:17 24:22,22 

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Volume 3 

166 

25:1,4 45:17 46:12 16:21 17:6,7,20 19:2 zoomed 25:5 73:16,16 14:02 27:3 

50:10,13 51:4 54:19 20:16,18 26:17,19 78:7,7 14:06 57:12 

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vision 65:10 112:20 17:13,15 18:3,6,18,22 zooms 54:18 55:3 14:1036:18 

Volume 1:8 19:4 26:7,17,19 31:21 14:12 27:6 

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warning 18:19 withdraw 7:4 127:8 0635:961:11,12 39:9 55:9 64:14 98:17 

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watch 22:6 27:5 28:2 10:2211:214:1,6 1 15:06 60:21 

50:2,1553:159:17 17:9,12,17,19 27:16 1-5 26:8 15:0761:1962:1 

64:13 93:2,5 28:1,10,11,13 29:19 1-7-0 26:8 15:08 61:5,16 62:2 

watched 5:8 30:8,17 32:8,12,16 1:02 136:6,8 137:1 15:14 33:15 

watches 31:4 33:1 34:18 37:19 40:1 1:03 78:20 79:15,20,20 15:49 35:9 

watching 45:5 69:7 40:6 41:1,2 43:6 46:6 79:21,21,21,21 150104:15 

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16:15 18:9,12 19:1 115:13,20116:7,16 1:1847:8 16:55 36:5 

21:13 23:15 34:20 116:17,22117:11 1:22 46:15 16:59 36:5 

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92:2 97:2 112:9 115:9 136:9137:13,15 61:19 62:1,2 63:13 17:13 36:20 37:2,9 38:1 

115:14121:13,15 138:4 139:11 142:1 66:9 126:15 17:15 37:21 

124:14 126:18 132:5 144:1 10,000113:22 17:19 36:11 

133:7134:6137:7,18 witnesses 4:13 10:33 70:2 17:33 39:9 

137:22 words 40:15,18 76:21 10:36 70:3 18 39:2 46:15 47:16 

ways 23:6 86:14 118:9 149:7 105.3146:18 150:8 49:2,21 58:10 144:10 

124:7 work 15:18 105.7146:17 150:7 19 27:6 52:8 62:15,19 

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weather 13:11 14:2,3 worse 96:3 1124:20 56:13 1997-9146:11149:16 

15:9,12 worser 111:10 110 98:22 99:3 101:7 

week 15:11 worst94:17111:9 117 3:13 2--~----

weeks 140:16,18 wouldn't42:12 65:10 1245:1 48:17 124:1 2-5 26:8 

weigh 149:1 110:7 146:12 149:17 2:05 48:12 

weight 145:21 146:1,2 writing 153: 14 12:04 154:17 2:50 49:1 

148:9 149:1,2,6 written 154:8 12:30 26:1 27:2 20 36:18 42:1 144:11 

went 27:12 44:5 45:22 wrong 16:22 82:3 12th 140:18 141:2 20/20112:19 

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weren't 115:4 yards 93:21 13:52 55:18 21/30ths 122:17 

Western-Pacific 2:5 years 32:10 71:4,9 13:58 56:13 2325:10 57:12129:21 

wet 138:22 98:17 13:59 56:16 130:21 144:11 

wettest 104:17 yellow 91:14 135 3:13 24 22:18 39:2 144:11 

whip 13:5 yesterday 5:5 49:15 1383:14 2519:6,14 31:21 37:2 

white42:2 87:10,17 92:21 1428:21 37:9 47:20 53:4 57:16 58:6 117:1 

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wide 25:6 65:1 105:16 z 150:7,8 26 18:17 59:16 144:11 

113:10 zero46:8 109:22 118:1 14,00019:5 113:1,21 26:09 39:12 

wife 70:20 128:4,20 117:12 26:40 39:14 

wind 6:2 15:21,22 16:2 zone 109:2 14:00 27:3 27 25:2 56:16 123:11 

Neal R. Gross and Co., Inc. 

(202) 234-4433 Washington DC www.nealrgross.com 
28 26:1 50:8 52:22 

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63:21 81:5,14101:3 

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30-35 59:15 

30-4019:10 

30-degree 54:17 

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30:27 42:1 

3001:12 

305-598-4841 2: 12 

305-598-4842 2:12 

31:06 45:1 

310-725-3454 2:6 

310-725-6816 2:7 

3345:10 

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3545:9 71:9109:8 

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6:06 73:7 74:15 75:13 

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8:30 91:19 

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9 

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90009-2007 2:6 

9113147:17 151:7 

92007 2:5 

96580 1:12 

Neal R. Gross and Co., Inc. 

Washington DC 

Volume 3 

167 

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3-168 

C E R T I F I C A T E 

This is to certify that the foregoing transcript 

In the matter of: Pacific International Skydiving 

Before: USDOT/OH 

Date: 12-15-16 

Place: Honolulu, HI 

was duly recorded and accurately transcribed under 

my direction; further, that said transcript is a 

true and accurate record of the proceedings. 

(202) 234-4433 

Court Reporter 

NEAL R. GROSS 

COURT REPORTERS AND TRANSCRIBERS 

1323 RHODE ISLAND AVE., N.W. 

WASHINGTON, D.C. 20005-3701