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Cook v. United States Drug Enforcement Administration Agent Frank Drew

January 4, 2007

PHILLIP COOK, PLAINTIFF,
v.
UNITED STATES DRUG ENFORCEMENT ADMINISTRATION AGENT FRANK DREW, IN HIS INDIVIDUAL CAPACITY; AND PENNSYLVANIA STATE TROOPER JEFFREY BRAUTIGAM IN HIS INDIVIDUAL CAPACITY, DEFENDANTS.



The opinion of the court was delivered by: Ambrose, Chief District Judge.

OPINION and ORDER OF COURT

SYNOPSIS

Before the Court is Defendants' Motion for Summary Judgment on Plaintiff's claim based on the temporary deprivation of property between the Government's decision not to commence forfeiture proceedings, and the eventual return of Plaintiff's property. The claim at issue is limited to the deprivation of property occurring between July 21, 2004, and December 9, 2004.

For the following reasons, Defendants' Motion will be granted.

OPINION

I. Facts

The majority of the facts were recounted in my Order dated October 19, 2007, and I will not recite them again in their entirety. I will, instead, limit this account to additional facts pertinent to this Motion. The following facts are not in dispute; the parties disagree, however, as to their import. To ameliorate any confusion, I refer to persons other than the parties by reference to their affiliated agencies, rather than by their individual names or titles.

All forfeitures in Drug Enforcement Administration ("DEA") are processed centrally at DEA headquarters. The DEA accepted Plaintiff's case for administrative forfeiture. After property has been accepted for forfeiture at DEA headquarters, all decisions with regard to the administrative processing of that property are made at DEA headquarters, including the return of seized property. Plaintiff's money and jewelry were eventually transferred, on March 10, 2004, to the United States Marshall Service ("USMS"), which serves as custodian for assets seized by Department of Justice agencies.*fn1 The USMS has primary authority over the management and disposal of seized assets in its custody.

On or about April 23, 2004, about a month after forfeiture notices were mailed, Plaintiff filed a claim for the currency and jewelry with DEA headquarters. By letter dated July 21, 2004, Brautigam was advised by the United States Attorney's Office ("USAO") that it would not commence judicial forfeiture proceeding against the seized property, and that the DEA should "now" return the property to Plaintiff. The letter also states, "kindly call" Plaintiff's counsel and make arrangements to return the seized assets. Brautigam advised Drew, his supervisor, of the USAO's declination.

When the DEA Headquarters authorizes the return of seized property, the Asset Removal Group ("ARG") in the respective field office is responsible for handling the return of the property per the DEA headquarter's instructions. The ARG contacts the USMS to request release of the property, and relays information between the USMS, USAO, and DEA. In this case, the ARG received the USAO's declination letter on August 16, 2004, and forwarded it to the Philadelphia Office, which forwarded it to DEA headquarters for authorization to return the property. By letter dated September 2, 2004, counsel from the DEA Asset Forfeiture Section ("forfeiture counsel") advised an agent in the DEA Philadelphia Office that the agent was authorized to contact Plaintiff, through his lawyer, to return the property, and was to have a hold harmless agreement executed upon return of the property. On or about September 27, 2004, this letter was forwarded to the DEA Pittsburgh Field Office.

On October 19, 2004, the ARG advised the USMS that the DEA was ordered to return the seized property, that the USAO had declined forfeiture, and that the jewelry, which the USMS had housed in Texas, be returned to the Western District. Another letter to the Philadelphia Field Office from forfeiture counsel, dated November 4, 2004, stated authority to contact Plaintiff to return seized property. The ARG and the USMS then exchanged information regarding the return of the currency, in which the USMS refused to release the currency based on the USAO's declination letter, and requested authorization from the DEA; Laughlin provided the September 2 authorization, and the USMS issued a voucher for the currency on November 18, 2004. The USMS advised the ARG that someone from DEA had to pick up the certified check.

On or about November 22, 2004, the ARG advised Brautigam that the seized property was available and ready for delivery.*fn2 He also informed Brautigam that when he returned the seized property, Plaintiff's counsel had to sign a hold harmless agreement, which the ARG provided to Brautigam. Until Brautigam received this notification, he had no affirmative involvement in the process of having the property released to the DEA by the USMS. Additionally, Brautigam was not responsible for contacting the USMS and requesting the release of the property.

Subsequently, on November 23, 2007, Brautigam advised Plaintiff's counsel that he could obtain the seized property from the USMS and return it. He also informed counsel that the DEA required him to execute a hold harmless agreement upon receipt of the seized property. Counsel informed Brautigam that he would not execute a hold harmless agreement. Brautigam had never had anyone refuse to execute such an agreement before. Therefore, "immediately," on the same day, Brautigam sought assistance from the USAO as to how to proceed because counsel would not sign the agreement. The USAO advised Brautigam that he should return the seized property even if counsel would not sign the agreement.

Also on the same day, Brautigam told the ARG that counsel would not sign the agreement. The ARG advised that he would seek guidance from the DEA, and did so on November 23rd. The DEA asset forfeiture section's lead attorney advised the ARG Brautigam should return the property without signature. Still on November 23, the ARG relayed this advice to Brautigam. Brautigam then contacted counsel, and told him that the property would be released even absent the signed agreement. Brautigam did not work from November 25, 2004 through November 30, 2004 due to the Thanksgiving holiday. Other than ...


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