Free Proposed Findings of Uncontroverted Fact - District Court of Federal Claims - federal

Case 1:05-cv-00608-ECH

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Filed 09/30/2005

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS FRANCISCO JAVIER RIVERA AGREDANO and ALFONSO CALDERON LEON, Plaintiffs, v. THE UNITED STATES, Defendant. ) ) ) ) ) ) ) ) )

No. 05--608C (Judge Hewitt)

DEFENDANT'S PROPOSED FINDINGS OF UNCONTROVERTED FACT 1. On January 25, 2001, the United States Customs Service

("Customs") stopped a 1987 Nissan Pathfinder (the "subject vehicle") near the United States border with Mexico. After

finding drugs in the subject vehicle, customs agents arrested the driver and seized the subject vehicle. 2. Def. App. 1-5.1

After the driver pled guilty to importing 59 pounds of

marijuana into the United States, the Government hired EG&G, Inc. ("EG&G") to direct and organize a forfeiture sale of the subject vehicle. Def. App 6-14. McCormack Auction Company ("McCormack") Def. App. 15, 16.

conducted the auction of the subject vehicle.

On September 5, 2001, Mr. Rivera purchased the subject vehicle at auction for $2,600. 3. Def. App. 18.

Mr. Rivera bought the subject vehicle on an "as is/where For example, the brochure advertising the sale

is" basis.

explained that

"Def. App. " refers to defendant's appendix filed with defendant's motion to dismiss or, in the alternative, for summary judgment.

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The vehicles offered to you for purchase at any U.S. Customs Auction are sold "AS IS, WHERE IS." This means that neither U.S. Customs or McCormack Auction Company, or E.G. & G Dynatrend, extend any warranties or promises of any kind regarding any aspect of the vehicle or its ability to operate, including but not limited to the vehicle's identity, previous ownership, physical condition, registration status, or ability to pass a smog certification. Def. App. 16 (emphasis in original). 4. As a condition of participating in the September 5, 2001

auction, Mr. Rivera completed and signed an EG&G bidder registration form. the form stated: Def. App. 17. Above Mr. Rivera's signature,

"I agree to comply with the terms of sale

contained in the sale catalog for this sale and all future sales I attend." 5. Def. App. 17.

The sales catalog in turn stated: WARRANTY/GUARANTEE: All merchandise is sold on an "AS IS, WHERE IS" basis, without warranty or guarantee as to condition, fitness to use, or merchantability stated, implied or otherwise. Please bid from your personal observations.

Def. App. 15 (emphasis in original). 6. On Thursday, January 24, 2002, Mr. Rivera drove the Mr. Calderon accompanied Mr. Rivera.

subject vehicle to Tijuana.

Mexican authorities stopped the pair at a highway check point. Compl. ¶ 14.

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7.

The authorities searched the subject vehicle and

discovered packages of marijuana concealed between the upholstery walls and the body of the subject vehicle near the wheel well. Compl. ¶ 15. The Mexican authorities arrested Mr. Rivera and Compl. ¶ 16.

Mr. Calderon, and held them until January 10, 2003.

Respectfully submitted, PETER D. KEISLER Assistant Attorney General DAVID M. COHEN Director

s/ PATRICIA M. McCARTHY PATRICIA M. McCARTHY Assistant Director

s/ PAUL R. WELLONS PAUL R. WELLONS Trial Attorney Commercial Litigation Branch Civil Division Department of Justice Attn: Classification Unit, 8th floor 1100 L Street, N.W. Washington, D.C. 20530 Tel: (202) 616-8253 Fax: (202) 307-0972 September 30, 2005 Attorneys for Defendant

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CERTIFICATE OF FILING I hereby certify that on September 30, 2005, a copy of the foregoing "DEFENDANT'S PROPOSED FINDINGS OF UNCONTROVERTED FACT" was filed electronically. I understand that notice of this

filing will be sent to all parties by operation of the Court's electronic filing system. the Court's system. Parties may access this filing through

s/ PAUL R. WELLONS