DENNIS CUNNINGHAM (#112910)
3163 Mission Street
San Francisco, CA 94110
415-285-8091 / fax: 285-8091
Attorneys for Plaintiff
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
THE ESTATE OF JUDI BARI,
and DARRYL CHERNEY,
FBI Special Agent FRANK DOYLE, Jr., et al.,
and the UNITED STATES,
Case No. C-91-1057 CW (JL)
DECLARATION OF BEN ROSENFELD IN SUPPORT OF PLAINTIFFS’ MOTIONS IN LIMINE
DATE: August 31, 2001
TIME: 10:00 a.m.
I, BEN ROSENFELD, declare as follows:
1. I am over the age of 18, and if called as a witness, I could testify to the following from personal knowledge and experience. I am an attorney licensed to practice law throughout the State of California and before this Court. I am of counsel to Plaintiffs in the above-captioned case.
2. On or about August 3, 2001, I began making arrangements with Defense Counsel (for the Federal defendants) for an inspection of the materials used by the AFSC’s in their bomb reconstruction experiments, notably the four Admiral Test cars, at the EMRTC testing facility in Socorro, New Mexico.
3. On August 6, 2001, I received an email from Defense Counsel, notifying me that Cars #s 1-3 had been junked, including a statement and a picture to that effect from Dr. Allahdadi. I certify that the copies of these documents included in the Appendix are true and correct.
4. Plaintiffs made plans to go ahead with the inspection anyway, and we arranged it for August 15, 2001. I arrived in Albuquerque with our bomb expert Robert Jaeger on 8/14/01, and we set out for Socorro (approx.70 miles south) the next morning, but got stuck in a construction mess in Albuquerque, and therefore arrived later than we had hoped, at approx. 11:15 am. Along the way, I contacted Marvin Banks, our EMRTC host, on my cell phone to advise him of our delay. Mr. Banks told me that he would be rushing us in and out of the site where Car #4 is stored, because EMRTC was holding up an experiment in the vicinity for us.
5. Mr. Banks gave us approx. 45 minutes to inspect Car #4, and approx. 45 minutes to inspect Cars #s 1-3, combined, saying that he had blocked out the time from 10:00 - 2:00. We left the last site at 1:45 pm, having spent just two hours on the inspection. Though the parties never completed their discussion about specific times, my 8/3/01 email to defendants did announce that I planned to make an all day inspection. As it turned out, we did not have enough time to thoroughly examine the cars according to our expert, Mr. Jaeger,’s needs and wishes.
6. Even so, it was clear that the cars are of little value, as the best preserved among them, Car #4, was left out in the elements, and debris that had blown out from the car had been gathered and piled inside it. Cars #s 1-3 were literally junked, and mangled. Mr. Banks apologized for what he termed a miscommunication, and ventured that that photographs which the testers had taken accurately preserved the experiments, though he said the cars clearly did not, and were of no value, after being compressed in the salvage pile.
7. I asked Mr. Banks how long the cars had been in the salvage pile. He estimated a month, but said he would try to get a more precise figure. Just over a month before, I had attended the joint deposition of defendants’ bomb experts, where it was agreed on the record that the cars would be preserved. Before we said goodbye to Mr. Banks for the day, he informed me that the witness plates and other physical material used in the experiments were also destroyed.
Sworn and subscribed to under penalty of perjury at San Francisco, CA on August 20, 2001.
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