Free Motion to Continue - District Court of Federal Claims - federal

Case 1:03-cv-00623-LSM

Document 43-2

Filed 11/22/2004

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS ) ) Plaintiff, ) ) v. ) ) THE UNITED STATES, ) ) Defendant and Third Party Plaintiff, ) ) v. ) ) THE W.I.N.N. GROUP, INC., ) ) Third Party Defendant. U.S. FINANCIAL CORPORATION,

No. 03-623C (Senior Judge Margolis)

)

DECLARATION OF LESLIE CAYER OHTA IN SUPPORT OF DEFENDANT'S MOTION FOR CONTINUANCE OF PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT 1. I am the attorney within the Department of Justice having primary responsibility for

representing defendant, the United States. 2. 3. I filed my notice of appearance in this case on October 14, 2004. After familiarizing myself with the file, including reviewing documents provided by the

agency, I determined that the legal validity of the modification changing the payee under the contract from The W.I.N.N. Group ("WINN"), the prime contractor, to U. S. Financial was questionable. 4. In an attempt to gather additional evidence pertaining to this issue, I interviewed Marlon

Phillips, the president of WINN. In addition, Mr. Phillips provided me with approximately 300 pages of documents in his possession concerning the underlying contract, including documents relating to an escrow agreement executed by Mr. Phillips upon behalf of WINN, Doug Cumins upon behalf of M.C. Dean, Inc., WINN's subcontractor on the underlying contract, and Douglas

Case 1:03-cv-00623-LSM

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Dixon, the president of U.S. Financial, upon behalf of U.S. Financial; correspondence; copies of checks; and invoices. Of particular interest were documents, apparently prepared by U.S. Financial, showing the receipt by U.S. Financial of Government checks in connection with a number of different contracts, including the contact involved in this case. From the amount received from the Government, U. S. Financial took 5% as its fee for acting as the escrow agent and remitted the balance of the proceeds to M.C. Dean. 5. Based upon the evidence of which I am aware, I have no reason to doubt the veracity of

Mr. Phillips's factual allegations. Based upon that evidence, it appears that the Modification incorporating the purported assignment of Goverment funds from WINN to U. S. Financial United was based upon material misrepresentations made to the CO and that the CO relied on those misrepresentations when he issued the Modification. 6. In the absence of WINN disclosing the underlying escrow agreement, I would have had

no way of knowing the true purpose underlying the purported assignment. 7. In order to adequately determine its liability, if any, in this matter, I believe that it is

essential that the Government be given the opportunity to depose the participants to the underlying transactions and those with information concerning the underlying contract because I believe that most, if not all, of the information regarding the issues in this case is uniquely within U.S. Financial's, Dean's, and WINN's possession. Based upon my review of the available documents, I believe those individuals include the following: Douglas Dixon, the president of U.S. Financial, who executed both the escrow agreement and the purported assignment; William H. Dean, the vice-president of M. C. Dean, Inc.; M. Casey Dean, the president of Dean; Mickey Dent, a Dean employee who directly contacted the agency concerning payments made under the contract; Laurie Allen, WINN's project coordinator; Seif Yirga, the Dean employee who prepared

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the invoices; Joel Rubinstein; a lawyer with Bell, Boyd, & Lloyd, who was consulted by Mr. Phillips in connection with the underlying transactions; Doug Cummins, Dean's comptroller and corporate secretary who signed the escrow agreement upon behalf of Dean; James Kingsley, Dean's accountant; and Tom Greenwald, an accountant with Watkins, Megan, Dury. Mr. Phillips has advised me that he will waive his attorney client privilege with respect to all of his communications with Mr. Rubinstein. In addition, I believe that documents underlying the transactions at issue must be obtained from U.S. Financial and WINN and subpoenaed from M. C. Dean, Inc. and from Watkins, Meegan and Drury, the firm that allegedly audited the transactions between Dean and WINN; and Walker Irving Noble & Napoleon, the accounting firm that audited the escrow fund. Id. I declare under penalty of perjury that the foregoing declaration is true and accurate to the best of my knowledge and belief. Executed on November 22, 2004.

LESLIE CAYER OHTA Attorney, Civil Division U.S. Department of Justice

Case 1:03-cv-00623-LSM

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Filed 11/22/2004

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CERTIFICATE OF FILING I hereby certify that on November 22, 2004, a copy of the foregoing DECLARATION OF LESLIE CAYER OHTA IN SUPPORT OF DEFENDANT'S MOTION FOR CONTINUANCE OF PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT 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. Parties may access this filing through the Court's system. s/ Leslie Cayer Ohta _______________________