Free Memorandum of Contentions of Fact and Law - District Court of Federal Claims - federal

Case 1:05-cv-00608-ECH

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS FRANCISCO JAVIER RIVERA AGREDANO, Plaintiff, v. THE UNITED STATES, Defendant. ) ) ) ) ) ) ) ) )

No. 05-608C (Judge Hewitt)

DEFENDANT'S WITNESS LIST Pursuant to the Court's September 14, 2007 Order, and in accordance with Appendix A of the Rules of the United States Court of Federal Claims ("RCFC"), defendant submits the following list of witnesses. This list does not include all witnesses that the defendant may choose to use for impeachment. See RCFC, App. A ¶ 15(a). Defendant reserves the right to amend this listing as described in the Court's rules or in response to the Court's rulings upon any motions in limine filed by plaintiffs. Defendant also reserves the right to call all witnesses listed on plaintiffs' witness list. Finally, defendant reserves the right to identify additional witnesses for authentication of documents based upon the objections ultimately asserted by plaintiffs in response to the exhibit list served in this case. Government Employees (Present and Former) 1. Jayson P. Ahern, Deputy Commissioner U.S. Customs & Border Protection Ronald Reagan Building 1300 Pennsylvania Avenue, N.W. Washington, D.C. 20229 Will call (unless testimony adduced during plaintiff's case-in-chief). Mr. Ahern is the Assistant Commissioner, Office of Field Operations, Customs and Border Patrol, and was formerly the Director of Field Operations, San Diego. Mr. Ahern is expected to testify

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concerning the procedures designed to uncover any contraband left in vehicles prior to release for auction. Time needed for direct examination is estimated at one hour. 2. David J. Murphy Director, Field Operations (Chicago) U.S. Customs & Border Protection 610 S. Canal Street, Room 900 Chicago, IL 60607 Will call (unless testimony adduced during plaintiff's case-in-chief). Mr. Murphy is the Director of Field Operations, Chicago, and was formerly the Assistant Director of Field Operations, San Diego. Mr. Murphy is expected to testify concerning the procedures designed to uncover any contraband left in vehicles prior to release for auction. Time needed for direct examination is estimated at one hour. 3. Joseph Marilao Supervisory U.S. Customs & Border Protection Officer San Ysidro Port of Entry 720 East San Ysidro Blvd. San Diego, CA 92173 Will call (unless testimony adduced during plaintiff's case-in-chief). Mr. Marilao is a Senior Customs & Border Protection Officer, San Ysidro Port of Entry. Officer Marilao is expected to testify concerning the procedures for searching and seizing vehicles at the San Ysidro Port of Entry in 2001. Officer Marilao is also is expected to testify about the search of the 1997 Nissan Pathfinder on January 25, 2001. Time needed for direct examination is estimated at one hour.

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4.

Vanaster Brown Supervisory U.S. Customs & Border Protection Officer San Ysidro Port of Entry 720 East San Ysidro Blvd. San Diego, CA 92173 Will call (unless testimony adduced during plaintiff's case-in-chief). Mr. Brown is a

Supervisory Customs & Border Protection Officer, San Ysidro Port of Entry. Mr. Brown is expected to testify concerning procedures for searching and seizing vehicles at the San Ysidro Port of Entry in 2001. Mr. Brown will also testify about his review and approval of the form documenting Officer Marilao's search of the 1987 Nissan Pathfinder. Time needed for direct examination is estimated at a maximum of one hour. 5. James Henderson 11431 Savannah Lakes Drive Parrish, FL 34219 May call. Mr. Henderson was formerly the Chief, Canine Enforcement, San Diego (retired). Mr. Henderson is expected to testify concerning the circumstances surrounding Customs and Border Patrol's attempt to perform K-9 re-screenings of all vehicles at the EG&G Technical Services vehicle storage facility, as well as K-9 screening procedures in general. Time needed for direct examination is estimated at a maximum of one hour. 6. Robert Root San Diego, California Will call (unless testimony adduced during plaintiff's case-in-chief). Mr. Root is a Supervisory Canine Officer, San Ysidro Port of Entry. Mr. Root is expected to testify concerning the circumstances surrounding Customs and Border Patrol's attempt to perform K-9 re-screenings of all vehicles at the auctioneer's (EG&G Technical Services) vehicle storage facility. Time needed for direct examination is estimated at a maximum of one hour. 3

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7.

Lawrence Fanning Assistant Port Director 9777 Via de la Amistad San Diego, CA 92154 May call. Mr. Fanning is the Assistant Port Director, and was formerly the Fines,

Penalties & Forfeitures Officer. Mr. Fanning is expected to testify concerning the operations of the Customs and Border Patrol's seizure and forfeiture program in San Diego. Time needed for direct examination is estimated at a maximum of one hour. 8. James Elam U.S. Customs & Border Protection Officer San Ysidro Port of Entry 720 E. San Ysidro Blvd. San Diego, CA 92101 May call. Mr. Elam is expected to testify concerning the the auctioneer's (EG&G Technical Services) records regarding the storage and sale of the 1987 Nissan Pathfinder. Time needed for direct examination is estimated at less than one hour. Third Party Witnesses 1. Michael Cater 3223 Purer Road Escondido, CA 92029 May call. Mr. Cater is expected to testify concerning the procedures the auctioneer (EG&G Technical Services) followed in 2001 for vehicle storage and sale. Time needed for direct examination is estimated at less than one hour. 2. Nigal Miller San Diego, California May call. Mr. Miller is expected to testify concerning the "Conveyance Evaluation and Fair Market Value Analysis" form for the 1987 Nissan Pathfinder. Time needed for direct examination is estimated at less than one hour. 4

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Respectfully submitted, JEFFREY S. BUCHOLTZ Acting Assistant Attorney General JEANNE E. DAVIDSON Director /s/ Patricia M. McCarthy PATRICIA M. McCARTHY Assistant Director /s/ Devin A. Wolak DEVIN A. WOLAK Trial Attorney Commercial Litigation Branch Civil Division Department of Justice 1100 L Street, N.W. Attn: Classification Unit 8th Floor Washington, DC 20530 Tel. (202) 616-0170 Fax. (202) 514-8624 December 18, 2007 Attorneys for Defendant

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CERTIFICATE OF FILING I hereby certify that on December 18, 2007, a copy of the foregoing "DEFENDANT'S WITNESS LIST" 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 parties may access this filing through the Court's system. Teresa Trucchi, Esq. Suppa, Trucci and Henein, LLP 3055 India Street San Diego, CA 92103

/s/ Devin Wolak