Free Response to Motion - District Court of Arizona - Arizona

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PAUL K. CHARLTON United States Attorney District of Arizona SUE A. KLEIN Assistant U.S. Attorney Arizona State Bar No. 11253 Two Renaissance Square 40 North Central Ave., Ste. 1200 Phoenix, Arizona 85004-4408 Telephone: (602) 514-7500 E-mail: [email protected]

UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA United States of America, Plaintiff, v. 192.019 Acres of Land, more or less, located in Yuma County, State of Arizona; Glen G. Curtis, Trustee of Curtis Family Trust; Sam Perricone, Trustee of Amended and Restated Declaration of Revocable Trust of Sam Perricone and Mary Louise Perricone; Earl O. Zion and Esther E. Zion; Yuma County Tax Assessor, Yuma Hospital District No. 1; Yuma County Citrus Pest Control District; Yuma County Pest Abatement District; Yuma County Flood Control District; Farm Credit Services Southwest; Intangible property rights, Yuma Mesa Irrigation and Drainage District; and Unknown Owners, Defendants. Defendants request this Court to exclude any reference to the financial status and CIV-03-2006-PHX-SRB

RESPONSE TO DEFENDANTS' MOTION IN LIMINE REGARDING DEFENDANTS' FINANCIAL STATUS

20 business activities of defendants and their family members. Plaintiff contends that this 21 information is relevant as it provides a basis for the landowners' testimony regarding the uses 22 and value of the subject property. This response is supported by the attached Memorandum 23 of Points and Authorities. 24 25 26 27 28 Respectfully submitted this 19th day of July, 2006. PAUL K. CHARLTON United States Attorney District of Arizona s/Sue A. Klein SUE A. KLEIN Assistant U.S. Attorney

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MEMORANDUM OF POINTS AND AUTHORITIES Defendants have listed as witnesses at least three members of the Curtis family.

3 One member, Glen T. Curtis, is listed as a lay witness and as a potential expert 4 witness. Glen G. Curtis and Robert O. Curtis are listed as potential witnesses. 5 Some topics which their testimony is expected to cover include the fair market 6 value of the subject property, the suitability of the subject property for 7 development and comparable sales. The primary basis for the Curtis testimony is 8 their family holdings and businesses. The Curtis family and related entities have 9 extensive land ownership in the Yuma area and are, and have been, involved in 10 agriculture, industrial and residential business and development in the Yuma area 11 for quite some time. (See Exhibit A, Deposition of Glen T. Curtis, p. 13, l. 11 to p. 12 14, l. 13). Glen T. Curtis has, for approximately twenty years, worked in the 13 family real estate business. (See Exhibit A, Deposition of Glen T. Curtis, pp. 2214 36). In their Second Supplemental Disclosure Statement, defendants indicated that 15 they helped create a market for industrial land. (See Exhibit B, Second 16 Supplemental Disclosure Statement). At his deposition, Glen T. Curtis agreed that 17 defendants have had some influence on the market for industrial land. (See Exhibit 18 A, Deposition of Glen T. Curtis, p. 132, l. 3-11). 19 A lay witness' testimony, in the form of opinions or inferences, is limited to

20 those opinions or inferences which are rationally based on the perception of the 21 witness. Fed. R. Evid. 701. A witness offering a lay opinion "must base his 22 opinion on his own personal knowledge, which must be established for the court 23 and the jury." United States v. Garcia, 291 F.3d 127, 142 (2d Cir. 2002). A 24 landowner is a condemnation case may offer testimony as to the value of the land, 25 but must first establish a basis for his opinion, United States v. 10,031.98 Acres of 26 Land, 850 F.2d 634, 637 (10th Cir. 1988). In this case, testimony of the named 27 Curtis family members is dependent on and based upon their land holdings and 28 business interests in the Yuma area. During his deposition, Glen T. Curtis was

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1 questioned and testified regarding his education and experience as a real estate 2 broker. (See Exhibit A, Deposition of Glen T. Curtis, at p. 14). Mr. Curtis was also 3 questioned regarding property currently owned by the defendants and their related 4 entities and how that property is utilized. (See Exhibit A, Deposition of Glen T. 5 Curtis, at pp.27-30). This testimony establishes, at least in part, the basis of the 6 Curtis' opinion regarding the value of the subject property. "Rule 701 requires that 7 a lay opinion witness have a reasonable basis grounded either in experience or 8 specialized knowledge for arriving at the opinion he or she expresses." Asplundh 9 Manufacturing Division v. Benton Harbor Engineering, 57 F.3d 1190, 1201 (3rd Cir. 10 1995). As a real estate broker, Glen T. Curtis has significant experience and 11 knowledge of the real estate market, uses and sales which is relevant to his 12 credibility in providing an opinion as to the property value. This knowledge comes 13 from involvement in family business and operations. Likewise, the other Curtis 14 family members will base their testimony, in large part, on their experience and 15 involvement in the real estate market in the Yuma area. 16 Additionally, Fed. R. Evid. 403 allows for the admission of evidence if its

17 probative value outweighs any potential prejudice, confusion or undue delay. Fed. 18 R. Evid. 403. "In weighing the probative value of evidence against the dangers and 19 considerations enumerated in Rule 403, the general rule is that the balance should 20 be struck in favor of admission." United States v. Denberg, 212 F.3d 987, 993 (7th 21 Cir. 2000). 22 Plaintiff does not intend to inquire into the net worth or monetary value of the

23 Curtis family members and related entities. However, inquiry into the extent and 24 type of businesses and holdings is proper as a basis for the landowners' testimony 25 in either a lay or expert capacity. 26 WHEREFORE, the defendants' Motion to Exclude Evidence of Financial

27 Status should be denied. 28 Respectfully submitted this 19th day of July, 2006.

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PAUL K. CHARLTON United States Attorney District of Arizona s/Sue A. Klein ____________________________ SUE A. KLEIN Assistant U.S. Attorney CERTIFICATION I hereby certify that on July 19, 2006, I electronically transmitted the attached document to the Clerk's Office using the CM/ECF System for filing and transmittal of a Notice of Electronic Filing to the following CM/ECF registrants:
John A. Weil Attorneys at Law

10 Weil & Weil 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

11 1600 S. Fourth Ave., Ste. C
Yuma, Arizona 85364
s/Nancy Stotler

_____________________

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