Petition — Huerta v. United States

Supreme Court, U. $

FILED

JUN 1 1977

IN THE

Supreme Court of the United States

No. ~c-170T

JuAN M. Huerta, Petitioner

V.

THE Unirep Srares, Respondent

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF CLAIMS

F’. TROWBRIDGE vom Baur

1700 K Street, N.W.

Washington, D.C. 20006

Attorney for Petitioner

Of Counsel:

Howarp GALBUT

Miami, Florida

THEODORE M, TRUSHIN

Miami, Florida

FLORENCE D. WEIGHT

RicHarp McKim PRESTON

vom Baur, CopuRN, SIMMONS

& TURTLE

Press or Byron S. ADAMS PRINTING, INC., WASHINGTON, D. C.

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Ovens BaOW ...cccccccccccccccccecevesecvecees 1

SUMMBIOTION oo cccccvcccscccccccccsesescucceeeccoes 1

QUESTIONS PRESENTED ........ceeceecceeecereeeeces 2

Tue ConstirutionaL, Statutory aNd Treaty Provt-

SE ID. .n'n 64 ve cck toWecsesteceveees cose, 3

STATEMENT OF THB CASB ...... cscs ccccecccccecees 4

A. Earlier Contracts at Guantanamo ........... 4

B. September 1960: Five Demolition Contracts

on the Villamar Project Begin .............. 5

C. January 1961: Trouble Starts; We Break Dip-

iomatiec Relations with Cuba; Military Hos-

Se DE ce veccuesedeneeeeseesbnseet 5

D. Navy Officials Refused to Permit the Mate-

rials to be Removed into Cuba ............. 6

E. The Physical Taking of the Materials by Re-

spondent’s Employees, in Military Uniform

and Using U. 8S. Government Trucks ...... 8

F. The Holding of the Court Below .......... 10

Reasons FoR GRANTING THE WRIT .............0005: 12

I. Conflict With Decisions of This Court ...... 12

II. Denial of Procedural Due Process ......... 13

III. Departure From the Accepted Course of Ju-

GEREEE PPVOGOGED o cccccccccccccececceccess 16

edi caves uauvegeaciees subwueenaseneee 18

EE Os Seg hs Shv-ebbtcebectceasecs évveneseerer A-1

TE con Hace teeesas ves cGuennness seeceraes B-1

Arpenpix C

ii CITATIONS

CaSEs: Page

Alpirin v. United States, 111 F. Supp. 280, 283; 124

CR. Ge, GER, Gee Clee can ich ccaskuceeleeans 17

Helenic Lines Ltd. v. Gulf Oil Co., 340 F.2d 398 (2d

lr, TED). oc scccsvauwte oupanett aun 15

Interstate Circuit Inc. v. United States, 306 U.S. 208,

SER (RUUD ova ncctebteesuanakiorieelatanel 17

Morgan v. United States, 304 U.S. 1 (1938) ....... 14

Paccon, Inc, v. United States, 399 F.2d 162, 175; 185

CR. OL BR, SD GRD ésacnddancteiesce le 16, 17

Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 413

(EGE) v.00 0200000 benes see pede 13

United States v. Causby, 328 U.S. 256 (1946) ....... 13

United States v. Kansas City Life Ins. Co., 339 U.S.

COO CUBOOP 6000s candvs estadeneueen ceil ee 13

United States v. Pewee Coal Co., 341 U.S. 114 (1951) 12,13

STATUTES:

Export Control Act of 1949, ch. 11, §§ 1-11, 63 Stat.

@ v0neveneésesapweeeeenneie meee 3, 11, 12

Foreign Assistance Act of 1961, 22 U.S.C. 2370(a) (1)

(1970)

28 UB.C. $1256(a) (1970) ........ccccccccccesces 1

$8 USO. 48008 (0G iecsdescs cies 10

eeeeceeoceoeao eo eon eeoeoedeso eae soos esc oe eee ee eee sees &

Orner AUTHORITIES:

Agreement with Cuba, 23 February 1903, Nos. 418

ONG Ge. isipccextscsva ‘ ontedeaes beenEs 3, 4, 9

Am.Jur. 2d, Evidence § 597 CRED 00.00deeeunuanuae 14

31A C.J.S., Evidence §311 (1944) ................. 14

Current Export Bulletin No, 840 ............ 3, 6, 11, 12

Fed. R. Evidence

SUOGGC SIGUE os vccccuddaceden cease 14

PE er Ml 14

Jones on Evidence

Pk YG err 14

> SBckD Gli co TERED oo dc casdccdcccsuus ae 15

Citations Continued ili

Page

McCormick’s Handbook of The Law of Evidence

$252 at 604 (2d ed. 1972) .........cceeeeeeeee 14

§ 267 at 639-41 (2d ed. 1972) .........----0ee- 14

§ 270 at 653-54 (2d ed. 1972) ...........-e eens 15

Proclamation No. 3447, 3 February 1962, 27 Fed. Reg.

1085 (President Kennedy’s Trade Embargo) 3, 6, 11, 12

Wigmore, Evidence

§ 267, 292, 1072 (Chadbourne rev. 1972) ....... 15

§ 1048 (Chadbourne rev. 1972) ..........-..-4-. 14

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IN THE

Supreme Court of the United States

No.

JuaN M. Huerta, Petitioner

v.

THE UNITED States, Respondent

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF CLAIMS

Petitioner, Juan Huerta, respectfully prays that a

Writ of Certiorari issue to review the opinion, judg-

ment and order of the Court of Claims in this case.

OPINIONS BELOW

The 2-1 opinion of the Court of Claims is reported

at 548 F.2d 343. It appears in App. A. Judge Davis’

dissent appears at App. A-10. The order of the Court

of Claims denying Petitioner’s motion for rehearing

is set forth at App. A-13. That order is not officially

reported.

JURISDICTION

The judgment of the Court of Claims was entered on

26 January 1977. Petitioner’s motion for rehearing

was denied on 4 March 1977. This Court’s jurisdiction

is invoked under 28 U.S.C. § 1255(1).

2

QUESTIONS PRESENTED

1. Whether a taking, by legislative act and Presi-

dential proclamation, of Petitioner’s salvaged ma-

terials at the Guantanamo Naval Base, was a ‘‘taking”’

under the Fifth Amendment?

2. Whether there was also a ‘“‘taking”’ under the

Fifth Amendment when undisputed evidence shows

(a) that the bulk of Petitioner’s salvaged materials

were physically taken by Respondent’s employees at

Guantanamo and there incorporated into U. S. Gov-

ernment buildings, and (b) that all of Petitioner’s

materials wound up in the hands of Respondent ?

3. Whether there was also a ‘‘taking’’ under the

Fifth Amendment when (a) diplomatic relations be-

tween the United States and Cuba were broken on 1

January 1961, (b) military hostilities resulted in the

Bay of Pigs, (c) undisputed evidence, erroneously dis-

regarded by the Court below, shows that it became the

official Navy position at Guantanamo to refuse to per-

mit Petitioner’s materials to be removed into Cuba

because that would help the Castro government; and

(d) all Petitioner’s materials wound up in the hands

of Respcudent at Guantanamo?

4. Whether Petitioner was deprived of procedural

due process when the Court failed to decide in ac-

cordance with the evidence by erroneously disregard-

ing the following undisputed evidence strongly sup-

porting Petitioner’s case:

a. The undisputed testimony of a Government

witness, Sergeant Alvarez, that it was the official posi-

tion of the Navy officials at Guantanamo to refuse to

grant Petitioner permission to remove his salvaged

a eT, 2. ae ee

eS ———————E——————— ee

3

materials from Guantanamo into Cuba because that

would help the Castro Government.

b. Undisputed evidence that Petitioner made re-

peated prior consistent statements that he had re-

quested permission to remove the materials from Guan-

tanamo into Cuba.

e. Undisputed admissions by Navy officials that

there had been requests to remove the materials, made

by the Navy’s failure, in a business relationship, to

deny Petitioner’s writings stating that there had been

requests.

THE CONSTITUTIONAL, STATUTORY AND

TREATY PROVISIONS INVOLVED

The ‘‘taking’’ and due process clauses of the Fifth

Amendment to the Constitution of the United States

are set forth in Appendix B.

In addition, excerpts from the following are set

forth in Appendix B:

1. The Export Control Act of 1949, 50 U.S.C.

App. § 2021 et seq.;

2. Current Export Bulletin No. 840;

3. The Foreign Assistance Act of 1961, 22

U.S.C.A. 2370 (a)(1);

4. Proclamation No. 3447, issued by President

Kennedy on 3 February 1962, 27 Fed. Reg.

1085, pursuant to the Foreign Assistance Act

of 1961 and Export Control Act, placing an em-

bargo on trade between the United States and

Cuba;

9. The treaties with Cuba (Agreement with Cuba,

23 February 1903, Treaty Series No. 418 and

4

426) whi h established the Guantanamo Naval

Base.

STATEMENT OF THE CASE

A. Earlier Contracts at Guantanamo: Petitioner, a busi-

nessman in Santiago de Cuba, became a Cuban refugee

in 1963, and a U. S. citizen in 1974. Beginning in 1958,

Petitioner, with the assistance of his brother Guiller-

mo Huerta, entered into several contracts with the

Navy for demolition and removal of buildings at the

Guantanamo Naval Base at Guantanamo, Cuba

(‘‘Guantanamo’’). In 1958, Petitioner pertormed con-

tracts for the demolition of a hospital complex and a

recreation building at Guantanamo (64, 65, 244").

After Castro came into power on 1 J anuary 1959,

Petitioner performed, among others, a large contract

for the demolition of sixty-two Quonset Huts at Guan-

tanamo. Part of the salvaged materials ware sold to

the Castro Government, for which the Castro Govern-

ment paid $40,000 in advance of delivery (81-85, 258).

In each case, when he had dismantled the buildings

and reconditioned the salvaged materials and was

ready to remove them, Petitioner orally requested per-

mission of the Public Works officials to take the ma-

terials from Guantanamo into Cuba (66, 246). The

officials invariably provided a pass or letter which

granted permission to take the materials through the

Northeast Gate, the only route for going by land from

Guantanamo to Cuba (67, 246, 247). Then Petitioner

removed the materials from Guantanamo into Cuba,

* The numbered references are to the transcript of the testimony

at the Trial.

I eh Oe

4)

where there was a brisk market for the salvaged ma-

terials, and sold them (66-83, 88-89, 246-267).

B. September 1960: Five Demolition Contracts on the Villamar

Project Begin: Beginning in September 1960, Petitioner

entered into five contracts with the Navy for the demo-

lition of 84 buildings in the Villamar area at Guan-

tanamo (PX 1-5)*. Under the contracts, Petitioner ob-

tained title to the valuable materials to be salvaged

from the buildings immediately upon entering into the

demolition contract. Indeed, the materials were the

main consideration to Petitioner for performing the

demolition and salvage work. He could profit by the

transaction only if he took the materials to Cuba and

sold them there. No other recourse was available be-

cause the Treaties with Cuba prohibited any ‘‘com-

mercial, industrial or other enterprise” at Guantan-

amo (App. B-6), and Guantanamo officials refused

to allow Petitioner to sell the materials clsewhere

(127-128, 201-206, PX 29, 37).

C. January 1961: Trouble Starts: We Break Diplomatic Rela-

tions With Cuba; Military Hostilities Follow: Castro came in

to power in Cuba in January 1958. Then, on 1 January

1961—right in the middle of the performance of Pe-

titioner’s first two contracts—there was a disturbing

development which thereafter drastically influenced

the Navy’s attitude toward Petitioner. On 1 January

1% ‘iplomatic relations between the United States

an‘ . \ ba were broken (144). Thereafter, Guantanamo

Bas: Policy «vas not to help Castro (368-88, 517-18,

574).

?**PX”’ refers to a Plaintiff Exhibit.

6

Then there were military hostilities at the Bay of

Pigs in April 1961 (144). This further stiffened the

attitude of Navy officials toward Cuba (144, 145, 335,

336).

On 3 February 1962, President Kennedy proclaimed

‘“‘an embargo upon trade between the United States

and Cuba’’ (Proclamation No. 3447, 27 Fed. Reg. 1085,

App. B-2, 3). Current Export Bulletin No. 840, pro-

hibiting most exports from the United States to Cuba,

had gone into effect on October 19, 1960 (App. B-6, 7),

but the parties had paid no attention to it (Finding

39).

Finally, the Missile Base crisis in October 1962 fur-

ther worsened relations with Cuba at Guantanamo

(145, 324, 552).

D. Navy Officials Refused to Permit the Materials To Be

Removed into Cuba: In late 1960, Petitioner and Re-

spondent arranged for Petitioner to use a remote and

deserted part of the Guantanamo Base (323, 328) as

a storage area where salvaged materials could be re-

conditioned as a necessary prerequisite to shipping

them into Cuba (99, 275-278, 323, 328, PX-12a). But

the salvaged materials, worth up to $900,000 (PX 57),

were never shipped into Cuba. Here we come to Ser-

geant Alvarez’ undisputed testimony.

Sergeant Alvarez was a Marine Corps officer—an

employee of Respondent—at Guantanamo (384). Be-

ginning in May, 1962 he supervised Petitioner and

his brother in intelligence activities for the U. §.

Government (392). They were U. 8. Intelligence

agents working in an official capacity for Sergeant

Alvarez during this critical period, and rendered valu-

able services to the United States (383-386).

7

At the trial Sergeant Alvarez was under the control

of Defendant. He was finally produced by Defendant

only at Petitioner’s urgent request (123). His testi-

mony is undisputed. He testified from personal knowl-

edge as to official acts performed on behalf of the gov-

ernment. But the Trial Judge, affirmed by the Court

below, erroneously disregarded his testimony on the

astounding ground that it was “hearsay” (App. A-7,

Finding 59).

Specifically, Sergeant Alvarez testified that on

‘‘numerous occasions’? Petitioner had hold him that

Petitioner had made repeated requests for permission

to remove the salvaged materials into Cuba, and that

his requests had never been granted (385-96). More-

over, he testified that Petitioner also asked his help

in getting Petitioner’s requests granted by Navy offi-

cials, and as to the official acts which he performed as

a result. He decided to ‘‘intercede’’ with his superiors

to try to get the necessary permission, in order not to

jeopardize the confidence of Petitioner and his brother

which had been developed during their intelligence

work for him (386). And he did intercede with his

superiors, who consulted with, among others, the Pub-

lie Works officials (385, 386, 387, 393, 396-399).

Interestingly enough, Sergeant Alvarez was then

told by his superiors that they and Navy Public

Works officials already knew all about Petitioner’s

terials (395-399). In addition, they gave Alvarez a ‘‘de-

finitive answer” to his question. It was negative. They

told Alvarez that the position of the top Base officials

was that the “diplomatic situation” was such that per-

mission to Petitioner te remove the materials into

Cuba would not be granted (386, 387, 394, 395). It was

8

Guantanamo Base policy not to help the Castro Gov-

ernment (336, 386-88, 517-18, 574).

Prior to January 1961, when diplomatic relations

with Cuba were broken, Petitioner had always been

able to get permission to remove his materials. There-

after he could never get it. Thus, the breaking off of

diplomatic relations, and the Bay of Pigs episode in

April 1961, changed the attitude of the Navy officials

at Guantanamo toward Petitioner. Thereaiter they re-

fused to permit the materials to go into Cuba (386, 387,

394, 395).

In more specific language, the position of the Naval

officials at Guantanamo was that authority to Peti-

tioner to take the materials into Cuba would not be

granted (386-87). ‘“‘{W Jord came down that nothing

could be done for the Huertas’’ (394, 395). “TI ]t was

not possible for them to take”’ the salvaged materials

back to Cuba (386). And see 122-125, 302, 304, 318,

373. “[WJe could not get the permission that they

[the Huertas] wanted”? (395). ‘‘[T]he policy of offi-

cials at the Base ... was not to help the Castro re-

gime’’ (517, 518, 574). All this is undisputed.

Moreover, this undisputed testimony of Sergeant

Alvarez constituted powerful admissions against in-

terest of his employer, the Respondent, evidence of the

strongest character in support of Petitioner. See page

14, post.

E. The Physical Taking of the Materials by Respondent's Em-

ployees, in Military Uniform and Using U. S. Government Trucks:

Meanwhile, employees of the Government, military

personnel, Marines and Seabees, in military uniform

(129, 131, 326), and civilian employees (128-130, 326),

—_.

ee ee

9

and using U. 8. Government trucks (125, 129, 192, 194,

195, 325, 326, 327), ‘‘countless times’’ (325, 326), in

broad daylight and during working hours, were ‘‘ pro-

gressively and systematically’? removing materials

from Petitioner’s lonely storage area and incorporat- .

ing them into U. 8S. Government buildings at Guan-

tanamo (125, 128-130, 143, 185, 192-196, 199, 200-210,

219, 220, 230, 313, 323-330, 343-348, 396, 424-427, 552,

629, 697, PX-28). This strong evidence is undisputed.

Indeed, the Trial Judge even complained that the evi-

dence of the physical takings was excessive and ‘‘re-

petitive’? (697, 698).° And see Judge Davis’ dissent,

App. A-10.

Further, it is undisputed that during the Missile

Base Crisis in October 1962, there was a massive

taking of Petitioner’s materials by 5,000 new Marines

who descended on the Base ‘‘for the construction of

their pill boxes, fortifications. . . .’’ ete. (324, 552).

Moreover, apart from this direct evidence, the un-

disputed circumstantial evidence also shows with com-

pelling force that the materials taken by Respondent’s

employees could not have gone anywhere but into Gov-

ernment property at Guantanamo. For there is no pri-

vately owned real estate at Guantanamo. It is a U. 8.

leasehold, committed exclusively for use as a Naval

station. (Agreement with Cuba, 23 February 1903,

T.S. Nos. 418 and 426, App. B-4-6). Each and every

building at Guantanamo is U. 8. Government owned.

*On rebuttal the Trial Judge finally became fed up with the

large amount of evidence of the physical taking of Petitioner's

materials by Respondent's employees, which had turned out to be

undisputed. He said, ‘‘How many times do we have to hear this

testimony. .... It’s not only repetitive of other witnesses but it’s

repetitive of your case in chief.’’ (697, 698).

10

Indeed, each one even carries a Navy number. See the

maps of the Base (PX 12); and Judge Davis’ dissent

(App. A-10).

The ‘‘bits and pieces’’ of the materials remaining in

1973 were worthless (132, 329, 330). Except for tiny

sales made at Guantanamo through April 1962, aggre-

gating $4,136 (PX 55), every item of Petitioner’s ma-

terials wound up in the hands of Respondent (184-186,

199, 200-208, 329-330; PX 42).

Moreover, the Trial Judge, affirmed by the Court

below, found—admitted—that a substantial amount of

Petitioner’s materials ‘‘were removed by civilian resi-

dents on the base for their own uses, such as construc-

tion projects in family residences.’’ (Finding 83). But

they implied that these ‘‘family residences’’ were not

Government property (Finding 83). In so indicating,

the Court below was in serious error. Again, there is

no privately owned real estate at Guantanamo. Each

and every building at Guantanamo is owned by the

U. 8S. Government. In addition, Respondent did not

even deny in the Court below that all the buildings at

Guantanamo are Government property. Thus, it is un-

disputed on this record that the materials physically

taken from Petitioner by civilian employees of Re-

spondent were incorporated into ‘‘family residences”’

which were Government buildings at Guantanamo.

F. The Holding of the Court Below: The Court of Claims

took juris¢iction of the case under 28 U.S.C. § 1491. It

held that there was no breach of contract because there

were no ‘‘requests’’ by Petitioner for permission to re-

move the materials from Guantanamo into Cuba.

In so holding, the Court erroneously disregarded

and failed to consider certain undisputed evidence. It

ee se on

Jared”

ll

failed to decide in accordance with the evidence. See

page 13, post.

Second, the Court below held that there was no phy-

sical ‘‘taking’’ under the Fifth Amendment. In so

holding, it disregarded the strong, undisputed evidence

that Government employees, Seabees and Marines—

in uniform, and using Government trucks, in broad

daylight, and during working hours—took Petition-

er’s materials and incorporated them into Government

buildings. See Judge Davis’ dissent, which was not

controverted by the majority opinion (App. A-10).

We submit that this undisputed evidence shows that

Petitioner’s maierials were ‘‘taken’’ by Respondent

within the meaning of the Fifth Amendment.

Third, the Court below held that a taking of Peti-

tioner’s materials by Act of Congress and Presidential

Proclamation was not a ‘‘taking’’ under the Fifth

Amendment. It followed the Contracting Officer. In

his decision of 9 August 1967, the Contracting Officer

had stated that ‘‘to the extent that you were also pre-

vented from shipping this material to Cuba by pro-

visions of the Trade Embargo Act of 1962 [sic], this

law is a sovereign act, and the Government as a con-

tractor is not responsible for the consequences or effect

thereof.’’ (App. to Pl. Req. for Findings dated 10

October 1974.)

In the Court below Respondent, echoing the Con-

tracting Officer, argued (Res. Brief p. 26) that any

removal of the materials into Cuba ‘‘would have been

barred by current Export Bulletin No. 840, issued un-

der the Export Control Act of 1949... Bulletin No.

840 is clearly a public and general act of the United

States, the consequences of which cannot enable the

12

plaintiff to just compensation under the Fifth Amend-

ment.’’ ‘‘[T]he United States is not liable under the

Fifth Amendment for its acts performed in a sov-

ereign capacity. (Res. Brief p. 29).

The Court below adapted Respondent’s argument.

Tucked away in a potent footnote, it held that Export

Control Bulletin &40 and the 1962 Trade Embargo

(App. B-2-6) had the effect of ‘depriving’ Peti-

tioner “of his property” but that this did “not establish

liability . . . for a taking.’”’ App. A-9, footnote 2.

REASONS FOR GRANTING THE WRIT

I. Conflict With Decisions of This Court: The Court be-

low has decided a federal question in conflict with

decisions of this Court. It held that ‘‘depriving Peti-

tioner of his property”’ by certain legislative and Ex-

ecutive acts—the Export Control Act of 1949, Current

Export Bulletin 840, and President Kennedy’s Trade

Embargo Proclamation of 3 February 1962, App. B-

1-4, did not ‘‘establish liability ... for a taking”

under the Fifth Amendment, App. A-9, footnote 2. In

its order denying Petitioner’s Motion for Rehearing,

the Court below reemphasized this holding by adding

the words ‘‘in the circumstances of this case” after the

word ‘“‘taking’’ (App. A-13).

It is settled that a taking under the Fifth Am .c-

ment can result from a sovereign act, including legis-

lative and executive acts.

Thus, this Court has held repeatedly that a sover-

eign act may constitute a taking. It held that the Gov-

ernment ‘‘took’’ property under the Fifth Amendment

by means of an Executive Order of general applica-

tion in U. S. v. Pewee Coal Co., 341 U.S. 114, 95 L.Ed.

——

BNI

15

809 (1951) ; by a State statute destroying ‘‘ previously

existing rights of property and contract,’’ Pennsyl-

vamia Coal Co. v. Mahon, 260 U.S. 393, 413; 67 L.Ed.

322 (1922) ; through such sovereign acts as flying mili-

tury planes over private property, United States v.

Causby, 328 U.S. 256, 90 L.Ed. 1206 (1946); and by

the maintaining of the Mississippi River at its high

water level, United States v. Kansas City Life Ins. 339

U.S. 799, 94 L.Ed. 1277 (1950).

In our case, the taking was direct, complete and

absolute. The Court below held that Petitioner ‘was

“deprived . . . of his property’’ by the sovereign acts.

That was a taking. In addition, Respondent itself took

complete and absolute dominion over Petitioner’s ma-

terials and consumed them all—a second taking.

II. Denial of Procedural Due Process: The Court below

deprived Petitioner of procedural due process, in that

(a) it refused to consider undisputed evidence, and

(b) failed to decide in accordance with the evidence.

A major issue before the Court of Claims revolved

around the reason why the materials were not taken

to Cuba. Plaintiff’s witnesses testified that Plaintiff

repeatedly requested permission of Navy officials to

remove the materials, but that such permission was

never granted (103-07, 281-85, 301, 384, 487, PX 8).

This testimony was strongly supported by the follow-

ing undisputed evidence which the Court below er-

roneously disregarded and failed to consider:

A. In holding that there were no “requests’’ by Peti-

tioner for permission to remove the materials from

Guantanamo into Cuba, the Court below, affirming the

Trial Judge, erroneously disregarded as ‘‘hearsay”’

the potent and undisputed testimony of a Government

14

employee, Sergeant Alvarez, which strongly supported

Petitioner’s case that there were requests, supra p. 6-8.

The Alvarez testimony constituted admissions against

interest of Respondent. Federal Rules of Evidence,

801(d)(2); 29 Am.Jur. 2d, Evidence, §597; 31A

C.J.8., ‘“Evidence’’ §311 (such testimony is ‘‘ primary

evidence’’) ; Wigmore on Evidence § 1048; McCormick

on Evidence pp. 639-641 (2nd ed.).

Above all, any conflict in the testimony should have

been resolved with the aid of a consideration of the

Alvarez’ testimony. In failing to consider Alvarez’

testimony, the Court below deprived Petitioner of pro-

cedural due process and failed in its duty to decide

in accordance with the evidence. Morgan v. United

States, 304 U.S. 1, 82 L.Ed. 172.

B. The Court below also refused to consider the

strong evidence of Petitioner’s repeated prior con-

sistent statements to Silvio Cardero (31, 126, 304),

Doris Navarro (126, 220, 223, 302), Sergeant Alvarez

(126, 301-304, 384-396), Perez Valencuello (126),

Robert Pendleton (126, 304), and others (126), that

he had made repeated requests for permission to re-

move the materials into Cuba. It is elementary that

prior consistent statements are properly admissible in

evidence to rebut an implied charge of recent fabrica-

tion. Federal Rules of Evidence 801(d)(1)(B); Me-

Cormick on Evidence, 2d ed., § 252, p. 604; Jones on

Evidence, 6th ed., § 10:19. Again, the Court below gave

no reason for disregarding this evidence. Again, in re-

fusing to consider this evidence, the Court below de-

nied Petitioner procedural due process by failing to

decide in accordance with the evidence.

C. The Court below also erroneously disregarded as

‘‘hearsay’’ (App. A-7, Fdg. 59) the undisputed testi-

fi eet tetas ih

Toe i.

15

mony of Sergeant Alvarez that it was the official posi-

tion of the Navy officials at Guantanamo to refuse per-

mission to Petitioner to remove the materials into Cuba

because that would help the Castro Government, D.

supra, p. 6-8. In disregarding this undisputed evi-

dence, these admissions against interest of Respond-

ent, the Court below again deprived Petitioner of pro-

eedural due process by refusing to decide in accord-

ance with the evidence.

D. The Court below also erroneously refused to con-

sider Respondent’s admissions that there were re-

quests for permission to remove the materials into

Cuba. These admissions stemmed from Respondent’s

failure to deny Petitioner’s written statements, made

in a business relationship, that there were such re-

quests. Please see App. C-1. It is settled that a failure

to deny statements made in a business relationship con-

stitutes an admission that the statements are true. Mc-

Cormick on Evidence, 2d ed., pages 653, 654, “ Admis-

sions”; Jones on Evidence, 6th ed., § 13-49; Wigmore

on Evidence (Chadbourne Rev. 1922) § 267, 292, 1072;

Helenic Lines Ltd. v. Gulf Oil Co., 340 F.2d 398 (2d

Cir., 1965). Again, the Court below gave no reason for

refusing to consider this evidence.

E. Respondent’s witnesses, Captain Burky and Lt.

Cronenberg, consistently with the anti-Castro position

of Navy officials at Guantanamo—testified that Plain-

tiff never made requests to remove the materials into

Cuba, on the theory that if he did the materials would

be ‘‘eonfiscated.’’ (294-94, 546-48). But it is undis-

puted in any event that the ‘‘confiscation’’ of the sal-

vaged materials would have been a physical impossi-

bility, inasmuch as, consistent with prior practice

under previous demolition contracts, it is undisputed

16

that the salvaged materials would have been shipped

into Cuba in approximately 250 truckloads over a sub-

stantial period of time. No more than 2 truckloads

would have been delivered at any one time, and pay-

ment for them would have had to be made before there

would have been further delivery. (93, 624, 693, 394).

Thus, even if the Cuban Government had had some

desire to ‘‘confiscate’’ the materials—and the undis-

puted evidence is to the contrary, that the Cuban gov-

ernment was desperately eager to purchase them (313,

380, 381)—it would have been a sheer physical im-

possibility for the Cuban Government to have confis-

cated more than one or two truckloads (624, 694).

In addition, it is undisputed that Petitioner com-

plained strenuously to Navy officials that a competitor,

Vargas, who had reconditioned a much smaller

amount of salvaged materials in a storage area at

Guantanamo, was permitted to remove them into

Cuba about February 1961 (107, 191, 283, 284). And

Vargas’ materials were not confiscated when taken

into Cuba (106, 107, 283-285).

Ill. Departure From the Accepted Course of Judicial Pro-

ceedings: Apart from I and II above, the Court below

has so far departed from the accepted course of judi-

cial proceedings as to call for the exercise of this

Court’s power of supervision.

A. The Court below sustained the Respondent in a

position which is in breach of a duty of candor and

good faith. The Government’s failure to produce evi-

dence ‘‘peculiarly within its possession’’ explaining

what happened to the materials which were taken into

its possession by its employees at Guantanamo, ‘‘casts

an adverse inference,’’ Paccon, Inc. v. United States,

17

185 Ct. Cl. 24, 40; Alpirin v. United States, 124 Ct. Cl.

670, 675, 111 F.Supp. 280, 283 (1953), Interstate Cir-

cuit Inc. v. United States, 306 U.S. 208, 221; 83 L.Ed.

610.

We submit that the Government should have had

enough candor to explain what it did with the great

quantity of Petitioner’s materials physically taken by

Government employees into its possession.

B. Except for the tiny sales described through April

1962 (supra, p. 10), it is undisputed that the great

bulk of Petitioner’s materials were physically taken

by Respondent’s employees, and that every item of

Petitioner’s materials wound up in the hands of Re-

spondent. On these facts, Respondent should not be

able to evade responsibility for them under the Fifth

Amendment.

C. We submit that this Court should straighten out

the Court of Claims on the unusualiy serious errors of

evidence set forth in II above, p. 13). The appro-

priate consideration of evidence is specially important

in that Court, if justice is to be done.

D. Finally, Petitioner should not be denied recovery

when diplomatic relations between Cuba and the

United States were broken, the two countries engaged

in military hostilities at the Bay of Pigs, and the un-

disputed evidence, erroneously disregarded by the

Court below, shows that it became the official Navy

position to refuse to grant permission to Petitioner

to remove the materials into Cuba, because that would

help Castro (supra, p. 6-8).

Property rights are still important to this Peti-

tioner Substantially all his assets are tied up in this

litigation.

18

CONCLUSION

We submit that the Court should:

1. Grant the Petition and summarily reverse the

decision below on the grounds stated above; or

2. Grant the Petition and summarily reverse the

Court below on the dissent of Judge Davis (App.

A-13); or

3. Grant the Petition and set the case for oral

argument.

Respectfully submitted,

F.. TROWBRIDGE VOM BAUR

1700 K Street, N.W.

Washington, D.C. 20006

Attorney for Petitioner

Of Counsel:

Howarp GALBUT

Miami, Florida

THEODORE M. TRUSHIN

Miami, Florida

FLoRENCE D. WEIGHT

Ricuarp McKim PRESTON

vom Baur, CoBpuRN, SIMMONS

& TURTLE