VZCZCXRO4881
PP RUEHRG
DE RUEHBR #1006/01 1551927
ZNR UUUUU ZZH
P 041927Z JUN 07
FM AMEMBASSY BRASILIA
TO RUEHC/SECSTATE WASHDC PRIORITY 9101
INFO RUEHRG/AMCONSUL RECIFE 6745
RUEHRI/AMCONSUL RIO DE JANEIRO 4516
RUEHSO/AMCONSUL SAO PAULO 0018
RUEHBU/AMEMBASSY BUENOS AIRES 4808
RUEHAC/AMEMBASSY ASUNCION 6116
RUEHMN/AMEMBASSY MONTEVIDEO 6913
RUEHSG/AMEMBASSY SANTIAGO 6264
RULSDMK/DEPT OF TRANSPORTATION WASHDC
RHMFIUU/HQ USSOUTHCOM MIAMI FL
RUEKJCS/SECDEF WASHDC
RUEANHA/FAA NATIONAL HQ WASHINGTON DC
RUEAYVF/FAA MIAMI ARTCC MIAMI FL
RUEWMFU/TSA HQ WASHINGTON DC
RUWDQAB/NTSB WASHINGTON DC

UNCLAS SECTION 01 OF 03 BRASILIA 001006 
 
SIPDIS 
 
SENSITIVE 
SIPDIS 
 
DEPARTMENT FOR CA/OCS AND WHA/BSC 
DEPT FOR EB/TRA JHORWITZ, JREIFMAN, KGUSTAFSON 
STATE FOR CA/OCS 
TSA FOR VREEDER, SHASMAN 
 
SIPDIS 
FAA FOR CTFRANCESCHI, CCAPESTANY, MASHBY 
DEPT OF TRANSPORTATION FOR BHEDBERG 
BUENOS AIRES PASS TSA/JOCHOA 
 
E.O. 12958: N/A 
TAGS: CASC EAIR PGOV BR
SUBJECT: Update on GOL-Legacy Crash Legal Case 
 
Ref: Brasilia 600 and previous 
 
¶1. (SBU) Summary: In a surprise move, the Brazilian federal 
prosecutor in charge of the criminal investigation into the 
September 29 air collision between a business jet and GOL airliner 
indicted four air traffic controllers for the accident, one on 
serious charges of having acted deliberately.  The federal police 
investigation had only recommended the indictment of the U.S. 
citizen pilots of the business jet.  The prosecutor indicted the 
pilots, and three other controllers, on less serious charges.  The 
federal judge in charge of the case accepted the indictments and set 
dates for questioning of the defendants on August 27 and 28.  It is 
unclear whether the U.S. pilots will be required to return for 
testimony.  The accusations against the controllers were repeated in 
Brazilian Senate committee hearings on the accident and caused a sea 
change in press reporting on the issue.  End Summary. 
 
¶2. (U) Brazilian federal prosecutor Thiago Lemos de Andrade indicted 
Brazilian air traffic controller Jomarcelo Fernandes dos Santos for 
intentional criminal conduct that led to the September 29, 2006 air 
collision between a Legacy business jet and a GOL commercial 
airliner. (All 154 persons aboard the GOL flight perished, making 
this the worst aviation accident in Brazilian history.)  The 
prosecutor made this request to federal judge Murilo Mendes in 
Sinop, Mato Grosso, the capital of the state in which the accident 
took place, on May 25.  The recommendation came as a surprise to 
observers as the Federal Police report submitted to the prosecutor, 
after a seven-month investigation, did not recommend action against 
controllers, claiming that as they were in the military they were 
beyond civilian purview. 
 
¶3. (U) The prosecutor also recommended indictments of three other 
controllers and the two U.S. citizen Legacy pilots, Joseph Lepore 
and Jan Paladino, for unintentional criminal conduct.  In the 
pilots' case, this was for involuntary manslaughter and exposing an 
aircraft to danger.  The prosecutor claimed the pilots accidentally 
turned off their transponder, disabling both airplanes' collision 
avoidance systems and limiting air traffic controllers' ability to 
confirm the Legacy's altitude.  The federal police report focused on 
the actions of the pilots. 
 
¶4. (U) In the case of the controllers, the prosecutor claims that 
Santos did not properly inform the controllers who took over for him 
after his shift that the Legacy's transponder was not functioning 
and that he had been unable to contact the plane. 
 
¶5. (U) Judge Mendes issued an order accepting the indictments on 
June 1, setting dates for questioning of the defendants on August 27 
and 28.  His order states that the U.S. pilots will be required to 
testify in Brazil. 
 
¶6. (SBU) The pilots' lawyers, after a preliminary analysis of the 
order, believed that the pilots may be able to make a deposition in 
front of a U.S. court for use by the Brazilian authorities. 
 
¶7. (U) The indictment against the controllers was mirrored by a 
similar change of focus in the Brazilian Senate Investigative 
Committee (CPI) created to look into the accident and in Brazilian 
press coverage.  Previously, press coverage had focused on the 
Legacy pilots as the major culprits of the accident.  Following the 
indictment, most articles focused on culpability of the controllers, 
while describing the pilots as secondary contributors to the 
accident. 
 
¶8. (U) A chief member of the CPI and Brazilian air officials laid 
the chief blame for the accident on controllers during hearings held 
the week of May 28.  Senator Demostenes Torres, who will draft the 
final CPI report, said that Santos, the flight controller, was most 
to blame.  His statement followed testimony from three military 
 
BRASILIA 00001006  002 OF 003 
 
 
flight controllers, on duty during the midair collision, who told 
the CPI that they blamed the American pilots of the Legacy jet and 
faulty air traffic control equipment for the accident.  The 
controllers claimed that the Legacy pilots should have adjusted 
their altitude according to the flight plan and criticized Brazil's 
air traffic control system.  Demostenes replied that "the [air 
traffic control] system has shortcomings, but the [Gol] accident had 
human causes, especially on the part of [military controller] 
Jomarcelo [Santos].  The Legacy pilots also contributed decisively." 
 Officials of the Brazilian Air Force's Center for the Investigation 
and Prevention of Aeronautical Accidents (CENIPA) later told the CPI 
that the crash of the Gol flight could have been prevented by the 
controllers who were on duty.  "If all the rules had been followed, 
there would have been no accident," according to Brigadier Jorge 
Kersul. 
 
¶9. (U) The Brazilian Air Force announced on May 31 that it would 
open an investigation into the responsibilities of the flight 
controllers who were on duty the day of the Gol airliner crash. 
According to press reports, the inquiry could take up to two months 
and after this period the air traffic controllers might be tried by 
military justice. 
 
¶10. (U) The Brazilian indictment process is very different than the 
U.S. process.  The first step was completed when the Federal Police 
finished their investigation, known as an "inquerito," the purpose 
of which was to determine the facts of the case.  They then 
submitted a "relatorio" (report) to the prosecutor.  (The 
"relatorio" makes an "indiciamento" of those whom the police believe 
qualify as having committed a crime, though this is not an 
indictment in U.S. sense, but closer to a recommendation for 
indictment.)  The prosecutor then indicted those he considered 
guilty.  The federal judge has now accepted the indictments and 
those indicted are now defendants. 
 
¶11. (U) The first ruling of the court ordered service of summons on 
the defendants, so that they were officially informed of the 
indictments.  As the pilots do not reside in Brazil, service of 
summons would have to be carried out in the place of their domicile 
by means of a letter rogatory.  Thereafter begins the evidentiary 
phase: the court will question the defendants.  Subsequently, the 
judge would question witnesses for the prosecution and then 
witnesses for the defense. At some point, the court will be provided 
documents by the parties, such as the final report of the Air Force, 
and perhaps proceedings of the CPI.  Eventually the prosecutor and 
defense counsel will file their final briefs and the court will 
issue a decision. There is no jury and there is no trial in the U.S. 
sense (the case is "on trial," mostly in writing, from the moment 
the judge accepts the indictment).  In every criminal case, there is 
the possibility of appeal, and the Federal Court of Appeals, in 
Brasilia, would reexamine the facts in the case of an appeal. 
 
¶12. (SBU) Comment: The indictment of the air traffic controllers 
caused a second sea change in the tone of press coverage on the 
culprits of Brazilians worst ever aviation accident.  For the first 
month after the accident, the Legacy pilots were vilified as cowboys 
whose dangerous flying led to the accident.  As problems with 
Brazilian air traffic control systems then became apparent, press 
coverage went through its first metamorphosis and turned to the role 
of the air traffic control systems in the accident, while still 
claiming that the Legacy pilots' "incompetence" was a major factor. 
Now the air traffic controllers, who assigned both aircraft to the 
same path and altitude, have taken center stage, with the Legacy 
pilots moving into a secondary role. 
 
¶13. (SBU) Comment continued: It is interesting that the prosecutor 
decided to indict the controllers despite the federal police's claim 
that they were under the military justice system and therefore could 
not be indicted by civilian courts.  It is unclear why, eight months 
 
BRASILIA 00001006  003 OF 003 
 
 
after the accident, the Air Force has now decided to start its own 
criminal investigation of the controllers, although it may be an 
attempt to remove them from the civilian criminal system. 
 
SOBEL