Free Witness List - District Court of Federal Claims - federal

Case 1:06-cv-00167-TCW

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS _________________________________ ) OTAY MESA PROPERTY L.P. et al., ) ) Plaintiffs, ) No. 06-167 L ) (and consolidated cases) v. ) ) Hon. Thomas C. Wheeler UNITED STATES, ) ) Defendant. ) _________________________________ ) PLAINTIFFS' WITNESS LIST In compliance with the Court's Order of May 16, 2008, as amended, Plaintiffs provide the following list of witnesses whom they plan to call at trial. 1. Mr. Roque De La Fuente II Director American International Enterprises, Inc. 5440 Morehouse Drive Suite 4000 San Diego, CA 92121 Tel.: 858-623-0400 Mr. De La Fuente and his family own and control all 11 parcels of the subject property, through various entities. He will testify that he acquired most of the property in the early 1980s, adding additional parcels as they presented good business opportunities for development of large-scale industrial and commercial uses such as an international raceway and a replacement landfill when the County's current landfill is full (within the next decade). Mr. De La Fuente will testify that the Border Patrol has consistently opposed all such development, arguing that border security requires that his land be left an open space. He will

Case 1:06-cv-00167-TCW

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testify that since the September 11, 2001 terrorist attack the Border Patrol has dramatically increased the number of agents on his land and accelerated its road construction and maintenance, interfering with his ability to lease and develop the subject property for industrial and commercial uses. He will also testify that this increased Border Patrol occupancy of his land has interfered with his ability to lease it for commercial and industrial uses. He will testify that almost every time he visits the subject property he is stopped by Border Patrol agents and is required to justify his presence; he has even been required to exit his vehicle and present identification to prove his right to be on the property. Mr. De La Fuente is certain to testify at trial, and his direct examination is expected to take 1 hour. 2. Mr. David Wick President National Enterprises, Inc. 5440 Morehouse Drive Suite 4000 San Diego, CA 92121 Tel.: 858-623-9000 Mr. Wick owns an equity interest in some of the subject parcels through various entities. He has been employed since 1992 by Mr. De La Fuente to manage, lease, and develop this land. Mr. Wick will testify that, since 1992, he has visited the subject property on average about once a week in connection with his duties and observed that, commencing in 2001 or 2002, there was a tremendous increase in Border Patrol activities on the subject property. Before 2001, he had seen an occasional agent in a vehicle or on horseback; after 2001,
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there seemed to be a geometric multiplication of Border Patrol presence and activities on this land. He will testify to specific occasions after 2001 when he was no longer able to visit the subject property without being accosted or under surveillance by heavily armed Border Patrol agents who questioned him regarding his business on the subject property. Around 2002, the Border Patrol started grading new roads across the subject property, maintaining and upgrading dirt trails, detouring around or destroying barricades which the owners had erected to keep the public out, damaging their ongoing construction activities by driving Border Patrol vehicles through the middle of construction sites, and scaring away potential customers for the land by the Border Patrol's show of overwhelming armed force and round-theclock use of Plaintiffs' land. He will testify that the Border Patrol built a structure (which they call "the hootch") as well as an all-terrain vehicle training course on the subject property, and that Border Patrol agents are highly visible round-the-clock on all parts of the subject property. He will testify that he has had countless conversations with Border Patrol officials, from the agents in the field to upper level management at the regional headquarters, protesting Border Patrol activities on the subject property, and that Border Patrol officials have repeatedly told him that the last mile of the secondary fence would soon be completed, and that this would drastically cut Border Patrol activities on the subject property. He will testify that the property is highly desirable for commercial and industrial use, that Plaintiffs'
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business plan involves long-term leases for such uses, and that the Border Patrol's occupancy has severely impaired Plaintiffs' ability to lease and develop the subject property. Mr. Wick is certain to testify at trial, and his direct examination is expected to take 3 hours. 3. Mr. Jose Luis Andreu President American International Enterprises, Inc. 5440 Morehouse Drive Suite 4000 San Diego, CA 92121 Tel.: 858-623-9000 Mr. Andreu has been employed since the 1980s to manage various aspects of the development and construction on the subject property. Mr. Andreu will testify that the Border Patrol has consistently opposed development of Plaintiffs' property, and will recount how the Border Patrol stymied Plaintiffs' international racetrack development. He will testify that, after September 11, 2001, Border Patrol occupancy of the subject property increased dramatically, as did the damage done to the land and ongoing construction. He will testify that he has observed Border Patrol agents on the subject property every time he visits it, and has seen Border Patrol road construction as well as damage done to Plaintiffs' construction site. Mr. Andreu is certain to testify at trial, and his direct examination is expected to take 1 hour.

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4. Mr. Bob Greninger Project Manager J. T. Kruer & Company 10251 Vista Sorrento Parkway Suite 135 San Diego, CA 92121 Tel.: 858-550-0044 Mr. Greninger is on-site construction manager for several of Plaintiffs' construction projects, and is present on the subject property every day. He will testify that he sees multiple Border Patrol agents on the subject property every day, and that during the night they have knocked down protective silt fences, caved in trenches, destroyed unlaid pipe, destroyed landscaping, knocked down street barriers, and otherwise damaged and delayed Plaintiffs' ongoing construction. Mr. Greninger is certain to testify, and his direct testimony is expected to last half an hour. 5. Mr. Marco Tulio Montañes Rumayor 522 21st Street NW, Apt. 505 Washington, DC 20006 Tel.: 202-321-1363 Mr. Montanes will testify regarding a June 6, 2006 incident in which he was a passenger in Mr. Wick's car on the subject property, and they were pulled over by Border Patrol agents and required to explain their presence on the subject property. Mr. Montanes may testify, and his direct testimony is expected to last half an hour.

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6. Mr. Robert Hixon First Vice President CB Richard Ellis, Inc. 600 West Broadway Suite 2100 San Diego, CA 92101 Tel.: 619-696-8350 Mr. Hixon is a real estate broker who showed the subject property to a highly motivated client that wished to build a security officer training facility, including a firing range and an advanced driving training course. He will testify that the client stated that the presence of armed Border Patrol agents made this property unsuitable for its use, eliminating the property from consideration. Mr. Hixon is certain to testify, and his direct testimony is expected to last half an hour. 7. Victor Novik Senior Biologist REC Consultants, Inc. 2442 Second Avenue San Diego, CA 92101 Tel.: 619-232-9200 Mr. Novik is a biologist specializing in endangered species. Since 2001 he has visited the subject property about once a week during the winter and spring to survey endangered species, particularly the San Diego fairy shrimp. He has been on the subject property 100 times or more, and has seen Border Patrol agents every time. Most times they stop him and ask who he is and what he is doing on the property. Once an agent came up behind him and shouted for him to raise his hands. He will also testify that ruts created by Border Patrol vehicles can fill with

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water and become fairy shrimp habitat, impairing the developability of the subject property. Mr. Novik will also testify about the impacts of endangered species on development plans. Mr. Novik is certain to testify, and his direct testimony is expected to last 1 hour. 8. Mr. Randy Tagg Certified General Real Estate Appraiser The Tagg Company 8321 Lemon Avenue La Mesa, California 91941-5287 Tel.: 619-462-4753 Mr. Tagg is an MAI appraiser who will present expert testimony regarding the highest and best use of the subject parcels. He has prepared a written report. Mr. Tagg will testify that the impending creation of a third border crossing adjacent to the subject property makes it highly desirable for near-term development, and that the size of the subject property, over 1,200 acres, is a unique value characteristic for large-scale developments like landfills, race tracks, power plants, recycling yards and the like, and that there are few, if any, other such undeveloped large holdings in San Diego County. He will also testify that development requirements and constraints (e.g. zoning and environmental) do exist, but can be overcome. Mr. Tagg will then present a parcel-by-parcel analysis of the highest and best use of each of the 11 parcels, concluding that many are suitable for industrial and commercial development, others as a mitigation bank to be sold to other developers.

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Mr. Tagg is certain to testify, and his direct testimony is expected to last 2 hours. Finally, Plaintiffs plan to call 10 of the following Border Patrol agents (depending on their availability) as adverse witnesses, for approximately 10-15 minutes each, to testify regarding performance of their duties on the subject property. This testimony will include: (1) they and other Border Patrol agents occupy all 11 parcels every day, on a 24-hour basis; (2) in performing their duties they make no distinction between Plaintiffs' private land and adjacent land owned by the government; (3) they have been instructed that they have the right to occupy Plaintiffs' land at all times in performance of their duties; and (4) they drive their vehicles, including all-terrain vehicles and sports-utility vehicles, off road as well as on the established roads on all 11 parcels of the subject property: 9. Mr. Brad Beales Border Patrol Agent United States Customs and Border Protection 7560 Britannia Court San Diego, CA 92154 Tel.: 619-216-4005 10. Mr. David E. Brown Border Patrol Agent United States Customs and Border Protection 1345 Camino Entrada Chula Vista, CA 91910 Tel.: unknown

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11. Mr. Ben Davis Border Patrol Agent United States Customs and Border Protection 7560 Britannia Court San Diego, CA 92154 Tel.: 619-216-4005 12. Mr. James Dee Border Patrol Agent United States Customs and Border Protection 7560 Britannia Court San Diego, CA 92154 Tel.: 619-216-4005 13. Mr. Michael Diaz Supervisory Border Patrol Agent United States Customs and Border Protection 311 Athey Avenue San Ysidro, CA 92173 Tel.: 619-216-4005 14. Mr. Joseph Granata Facility Maintenance Department Manager United States Customs and Border Protection 7684 Pogo Row Chula Vista, CA 92154 Tel.: 619-216-4005 15. Mr. Michael Hance Field Operations Supervisor United States Customs and Border Protection 2411 Boswell Rd. Chula Vista, CA 91914-3519 Tel.: 619-216-4005 16. Andrew R. Jones Border Patrol Agent United States Customs and Border Protection 8960 Corte Pellejo Spring Valley, CA 91977 Tel: unknown

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17. Mr. Steven Kean Border Patrol Agent United States Customs and Border Protection Address unknown Tel.: 619-216-4005 18. Mr. Darren Kerns Senior Border Patrol Agent United States Customs and Border Protection 311 Athey Avenue San Ysidro, CA 92173 Tel.: 619-216-4005 19. Mr. Bonifacio Lara Supervisory Border Patrol Agent United States Customs and Border Protection 311 Athey Avenue San Ysidro, CA 92173 Tel.: 619-216-4005 20. Ms. Gilbertina Paisley Special Operations Manager United States Customs and Border Protection 2411 Boswell Rd. Chula Vista, CA 91914-3519 Tel.: 619-216-4005 21. Mr. Oscar Pena Acting Assistance Chief United States Customs and Border Protection 2411 Boswell Rd. Chula Vista, CA 91914 Tel.: 619-216-4005 22. Mr. Joe Perez Border Patrol Agent United States Customs and Border Protection 3752 Beyer Boulevard Chula Vista, CA 92173 Tel.: 619-216-4005

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23. Mr. Jason Pontes Senior Border Patrol Agent United States Customs and Border Protection 7560 Britannia Court San Diego, CA 92154 Tel.: 619-216-4005 24. Mr. David Rainey Senior Border Patrol Agent United States Customs and Border Protection 7560 Britannia Court San Diego, CA 92154 Tel.: 619-216-4005 25. Mr. Omar Ramirez Border Patrol Agent United States Customs and Border Protection 7560 Britannia Court San Diego, CA 92154 Tel.: 619-216-4005 26. Mr. Alex Roozen Border Patrol Agent United States Customs and Border Protection 7560 Britannia Court San Diego, CA 92154 Tel.: 619-216-4005 27. Mr. Curtis Weatherred III Border Patrol Agent United States Customs and Border Protection 7560 Britannia Court San Diego, CA 92154 Tel.: 619-216-4005 Plaintiffs are unable at this time to determine whether they will call as witnesses Mr. Kevin Barnes or Mr. Otis Harper, as they were only recently added to Defendant's Witness List through Judge Wheeler's Order of August 1, 2008.

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Plaintiffs request the right to designate one or both of these witnesses after their depositions have been taken and the substance of their testimony is known. Plaintiffs further reserve the right to call as witnesses all persons to be identified in Defendant's Witness List, to be filed September 23, 2008, and the right to call additional rebuttal witnesses as required.
Respectfully submitted,

Dated: August 29, 2008

s/ Roger J. Marzulla Roger J. Marzulla Nancie G. Marzulla MARZULLA LAW 1350 Connecticut Avenue, N.W. Suite 410 Washington, D.C. 20036 (202) 822-6760 (202) 822-6774 (facsimile) Counsel for Plaintiff

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