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

Case 1:05-cv-00608-ECH

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No. 05-608C

1. (Judge Hewitt)
____________________________________________________________________________________ IN THE UNITED STATES COURT OF FEDERAL CLAIMS FRANCISCO JAVIER RIVERA AGREDANO and ALFONSO CALDERON LEON Plaintiffs,

v. UNITED STATES OF AMERICA Defendants. ____________________________________________________________________________________ RESPONSE TO DEFENDANT'S PROPOSED FINDINGS OF UNCONTROVERTED FACTS TERESA TRUCCHI SBN# 135543 SUPPA, TRUCCHI, AND HENEIN, LLP 3055 India Street San Diego, CA 92103 Telephone: (619) 297-7330 Telefax : (619) 297-9658 Attorneys for PLAINTIFFS FRANCISCO JAVIER RIVERA AGREDANO and ALFONSO CALDERON LEON

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PLAINTIFFS FRANCISCO JAVIER RIVERA AGREDANO and ALFONSO CALDERON LEON hereby assert the following m aterial facts create a triable issue of m aterial fact. "Pl. App." refers to the appendix in support of plaintiffs' opposition to defendant USA's m otion for sum m ary judgm ent. 1. Plaintiffs do not dispute the fact num ber one of DEFENDANT'S PROPOSED FINDINGS OF UNCONTROVERTED FACTS 2. Plaintiffs do not dispute the fact num ber two of DEFENDANT'S PROPOSED FINDINGS OF UNCONTROVERTED FACTS 3. Plaintiffs dispute fact num ber three of DEFENDANT'S PROPOSED FINDINGS OF UNCONTROVERTED FACTS. Plaintiffs were unaware of the "as-is" provision at the tim e of the sale. Plaintiffs were unaware of the contents of the advertisem ent at the tim e of the sale. See; Declaration of Francisco Javier Rivera Agredano, Pl. App. 9, and Alfonso Calderon, Pl. App. 10. 4. Plaintiffs fact num ber four of DEFENDANT'S PROPOSED FINDINGS OF UNCONTROVERTED FACTS to the extent it infers that plaintiffs were aware of the "as-is" provision in the sale catalog at the tim e of the sale. Plaintiffs were unaware of the "as-is" provision at the tim e of the sale. Plaintiffs were unaware of the contents of the sale catalog at the tim e of the sale. See; Declaration of Francisco Javier Rivera Agredano, Pl. App. 9, and Alfonso Calderon, Pl. App. 10. 5. Plaintiffs do not dispute the fact num ber five of DEFENDANT'S PROPOSED FINDINGS OF UNCONTROVERTED FACTS except to the extent it infers that plaintiffs were aware of the "as-is" provision in the sale catalog at the tim e of the sale. Plaintiffs were unaware of the "as-is" provision at the tim e of the sale. Plaintiffs were unaware of the contents of the sale catalog at the tim e of the sale. See; Declaration of Francisco Javier Rivera Agredano, Pl. App. 9, and Alfonso Calderon, Pl. App. 10. 6. Plaintiffs do not dispute the fact num ber six of DEFENDANT'S PROPOSED FINDINGS OF UNCONTROVERTED FACTS 7. Plaintiffs do not dispute the fact num ber seven of DEFENDANT'S PROPOSED FINDINGS OF UNCONTROVERTED FACTS PLAINTIFFS SUBMIT THE FOLLOW ING FACTS IN OPPOSITION TO DEFENDANT USA'S MOTION FOR SUMMARY JUDGMENT 8. RIVERA and CALDERON LEON are citizens of the Country of Mexico and authorized to enter the United States to conduct business. [Cm p. para. 2-3] Jose Arm ando Jim enez Coronel purchased and thereafter im ported a 1987 Nissan Pathfinder VIN:JN8HD16Y7HW 029972 (hereinafter SUBJECT VEHICLE) into Mexico on Decem ber 12, 2000. On or about January 25, 2001, Mr. Jim enez was arrested and the SUBJECT VEHICLE was seized by USA under 18USC545; 21 USC952; and 19CFR162.45(A)(for transportation of m arijuana across the United States border.) [See; Declaration of Francisco Javier Rivera Agredano, Pl. App. 9, and Alfonso Calderon, Pl. App. 10.; Cm p. para 10-11] 9. On January 30, 2001, Mr. Jim enez pled guilty to violation of California Health and Safety Code §11359 and adm itted that he "knowingly possessed 59 pounds of m arijuana for purposes of sale." [Cm p. para. 12] On February 20, 2001, Mr. Jim enez was granted probation for three (3) years, sentenced to tim e served (39 days) and ordered to pay $400.00 in fines and restitution. In exchange, the balance of the charges against him were dism issed. [See; Declaration of Francisco Javier Rivera Agredano, Pl. App. 9, and Alfonso Calderon, Pl. App. 10; Cm p. para. 13]

10. Thereafter the SUBJECT VEHICLE was m ade available for sale to the public through a Federal Forfeiture Sale. On Septem ber 5, 2001, RIVERA acquired the SUBJECT VEHICLE from the Departm ent of Treasury in a Public Auction following a Custom s Service Departm ent Federal Forfeiture Sale. [See;

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Declaration of Francisco Javier Rivera Agredano, Pl. App. 9, and Alfonso Calderon, Pl. App. 10; Cm p. para. 15] 11. On Thursday, January 24, 2002 RIVERA was traveling in the SUBJECT VEHICLE from the City of Ensenada, Baja California to the City of Tijuana, Baja California. RIVERA was accom panied by CALDERON. RIVERA and CALDERON were stopped at a Highway Check Point at the location known as El Sauzal, Ensenada, Baja California by Mexican authorities. [Cm p para. 16] The SUBJECT VEHICLE was searched. The Mexican authorities discovered twenty two (22) packages containing m arijuana (weighing 17 kilogram s total.) The packages were between the upholstery walls and the body of the vehicle (the wheel well.) [See; Declaration of Francisco Javier Rivera Agredano, Pl. App. 9, and Alfonso Calderon, Pl. App. 10; Cm p. para. 17]

12. RIVERA and CALDERON were arrested and were in Federal Prison in Mexico from and after January 24, 2002 [Declaration of Francisco Javier Rivera Agredano, Pl. App. 9, and Alfonso Calderon, Pl. App. 10; Cm p. para. 18] until their release on January 10, 2003 (upon a finding of innocence). 13. Jose Blanco Loya, an expert witness from the Office of the Attorney General (in Mexico), tested the m arijuana on January 25, 2002. On February 13, 2002, Mr. Blanco testified before the 11th Federal District Court of Ensenada that the m arijuana found by the Mexican authorities on January 24, 2002 was "highly dehydrated, consistency and texture had been lost, and due to color lost, it had a 'brownie' color trend .... change in texture and consistency is also due to they (sic) have been stored or exposed to certain physical or atm ospherical conditions, change in color is due to an old or stored m arijuana ...." [Declaration of Carlos Mejia, Pl. App. 11; Cm p. para. 19] 14. On March 11, 2002, expert chem ists Rafael Garcia Gutierrez and Miguel Carrillo Mendivil, qualified as experts in the Federal Court, testified as follows: "(the m arijuana) is highly dehydrated, it has a brownie color ... it is observable that is m arijuana that has been stored for a long tim e and not only that, at opening a 'rotten' odor com es from the packages.... it is assum ed that such illegal drug was exposed to adverse atm ospherical and physical conditions for a long tim e." [Declaration of Carlos Mejia, Pl. App. 11; Cm p. para. 20] 15. Thereafter, in a response to a Freedom of Inform ation Act request filed by plaintiffs' counsel, photographs were produced by CUSTOMS showing that the area wherein the Mexican officials discovered the m arijuana in January of 2002 had not been searched by USA prior to the sale to RIVERA. [Cm p. para. 21][see; Declaration of Carlos Mejia, Pl. App. 11; also, Declaration of Francisco Rivera, Pl. App. 9 and Declaration of Alfonso Calderon, Pl. App. 10] 16. The area wherein the Mexican officials discovered the m arijuana in July of 2003 had not been properly searched by CUSTOMS, MCCORMACK, or EG&G, INC. despite a duty to do so. If the vehicle had been properly searched prior to the sale to plaintiffs, the m arijuana (in excess of 33 pounds) would have been detected. The failure to conduct a thorough search of the vehicle prior to sale was the result of an USA policy to curtail searches in order to avoid causing dam age to seized vehicles during custom s' inspections. The goal of curtailing the searches was to m axim ize the resale value of the vehicle at auction. [Deposition of Jayson Ahern (6-4-04) pg. 50; ll. 20-25; pg. 51, ll 1-11; Pl. App. 1; Deposition of Robert Root (6-24-04) pg. 30; ll. 2-8; Pl.App.2; Deposition of David Murphy (6-24-04) pg. 9;ll. 25; pg. 10;ll. 1-5; Pl.App. 3; Deposition of David Murphy (6-24-04) pg. 43; ll. 21-25; pg. 44; ll. 1-18; Pl. App. 3; Deposition of Officer Joseph Marilao (6-9-04) pg. 26; ll. 22-25 and pg. 27; ll. 1-4; Pl. App. 4;Deposition of Robert Bickers (6-9-04) pg. 6; ll. 21-22; Pl. App. 5; Deposition of Robert Bickers (6-9-04) pg. 8; ll. 10-12; Pl. App. 5; Deposition of Robert Bickers (6-9-04) pg. 26; ll. 3-17; Pl. App. 5; Declaration of Teresa Trucchi] 17. There is another sim ilar case pending in this court in front of the Honorable Judge Lettow. The com plaint in Rodriguez v. USA (United States Court of Federal Claim s Num ber 05-370c)][see; also, Declaration of Ali Jazm in Rodriguez, Pl. App. 7 and Declaration of Adrian Rodriguez, Pl. App. 8] which alleges as follows:

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18. Ali Jazm in Rodriguez and Adrian Rodriguez (husband and wife) purchased a Volkswagen Passat at an auction conducted by EG&G/McCorm ick for the Departm ent of Hom eland Security of the UNITED STATES OF AMERICA [Com plaint, paragraph 16 and Declaration of Ali Jazm in Rodriguez, Pl.App. 7, and Adrian Rodriguez, Pl. App. 8. ].

19. On July 17, 2003, Adrian Rodriguez took the vehicle to a m echanic in Tijuana because it was m aking an unusual sound. The vehicle was found to have 33 pounds of m arijuana in a box on the underside of the body. Upon discovery of the m arijuana, Adrian Rodriguez asked the m echanic to call the police. The Tijuana police arrived and Adrian Rodriguez was arrested. [Com plaint, paragraph 17-18 and Declaration of Ali Jazm in Rodriguez, Pl.App. 7, and Adrian Rodriguez, Pl. App. 8.] Adrian Rodriguez was in Federal Prison in Mexico from and after July 17, 2003 until August 15, 2003 when he was released. [Com plaint, paragraph 17-22 and Declaration of Ali Jazm in Rodriguez, Pl.App. 7, and Adrian Rodriguez, Pl. App. 8.] 20. Seller USA is required under its policies and procedures to search any autom obile when there is probable cause to suspect narcotics to be hidden within the vehicle. The USA's search of the autom obile was "significantly substandard and incom plete." [Dec of Trucchi, Pl. App. 6; Report of expert Michael Levine].

21. Plaintiffs believed, at the tim e of the sale, that the vehicle was the product of a seizure at the border. Plaintiffs believed, at the tim e of the sale, that the fact that the vehicle had been seized by USA Custom s, that USA Custom s had searched the vehicle as part of the seizure and before releasing the vehicle for sale to them . Plaintiffs were unaware that the search of the vehicle had been lim ited to increase the resale value of the sam e and would not have entered into the transaction with the USA if they had known of the lim itations to the seizure search for the purpose of increasing USA's profit in the subsequent com m ercial transaction. [Declaration of Francisco Rivera, Pl.App. 9, and Alfonso Calderon, Pl. App. 10.]

DATED: October 31, 2005 SUPPA, TRUCCHI & HENEIN, LLP By: TERESA TRUCCHI, Attorneys for Plaintiffs

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