UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
)
RANDY D. MARTIN, )
TIANA DUPREE, )
)
Plaintiffs, )
) Civil Action No. 09-1747(EGS)
v. )
)
MICHELE LEONHART, )
Acting Administrator, )
Drug Enforcement Agency, )
in her official capacity, )
of Homeland Security, )
)
Defendant. )
)
MEMORANDUM OPINION
This action involves plaintiffs’ request for the return of
$19,800 in U.S. Currency (the “funds”) seized by agents of the
Drug Enforcement Agency (“DEA”) from Plaintiff Tiana Dupree
(“Dupree”) in Washington, D.C. during a random drug search of an
overnight Amtrak train traveling from Miami, Florida to New York,
New York on August 8, 2008. Pending before the Court is
defendant’s motion to dismiss. Upon consideration of the motion,
the response and reply thereto, the applicable law, and for the
reasons stated below, the Court concludes that it lacks subject
matter jurisdiction over this action. Accordingly, the Court
GRANTS defendant’s motion to dismiss.
I. BACKGROUND
A. Initial Seizure of the Funds by the DEA
On or about August 1, 2008, Plaintiff Randy Martin
(“Martin”) - a New York resident - allegedly went to Florida on
vacation and to look at a car that he was interested in buying
for his girlfriend, Dupree. Compl. ¶ 10. Martin brought
approximately $20,000 in U.S. Currency to Florida in order to
purchase the car. Compl. ¶ 11. On or about August 8, 2008,
after deciding not to buy the car, Martin asked Dupree - who was
returning to New York – “to bring the money . . . back home to
his safe because he was going to stay in Florida for a few more
days and he wanted the money secured in his safe while he was on
vacation.” Compl. ¶¶ 15, 17. After boarding an Amtrak train
headed for New York, Dupree took the money from Martin and
“placed it in her eyeglass case for safekeeping.” Compl. ¶ 18.
On or about August 8, 2008, Dupree was awakened by a knock
on the door of her sleeper car by DEA agents conducting a random
drug search on the train. Compl. ¶ 21. After inspecting
Dupree’s ticket, the DEA agents searched Dupree’s room. Compl.
¶¶ 22, 23. During the course of this search, the DEA Agents
“dumped out the contents of Ms. Dupree’s purse, opened her
eyeglass case, and removed the $19,800 in U.S. currency which was
in the case.” Compl. ¶ 24. After being confronted about the
money, Dupree indicated that it belonged to her boyfriend -
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Martin. Compl. ¶ 26. One of the DEA agents then called Martin,
who confirmed that the money belonged to him. See Compl. ¶¶ 27-
32. After ending the phone call with Martin, the DEA Agent
purportedly remarked to another DEA agent: “He’s Jamaican.”
Compl. ¶ 33. The DEA Agent then seized the $19,800 from Dupree’s
eyeglass case, gave Dupree a receipt for the money, apologized
for the inconvenience, and told Dupree to call a number on a
business card he handed her to get the money back. Compl. ¶ 34.
No arrest was made, nor were any drugs found in connection with
the search of Dupree. Compl. ¶¶ 7-8. After Martin called the
telephone number that the DEA agents had provided, he was
informed that he would receive information in the mail regarding
the seized funds. Compl. ¶ 37.
B. Plaintiffs’ Request for Return of the $19,800
On September 30, 2008, the DEA mailed a Notice of Seizure
(the “Notice”) to Martin and Dupree, as well as their attorney.
See Compl. ¶ 39; see also Def.’s Ex. 1-4, Notices of Seizure.
The Notice lists the seized property as “$19,800 U.S. Currency”
and the owner as “Tania Dupree.” Def.’s Ex. 1. The Notice
further states, in relevant part:
The above-described property was seized by the [DEA]
for forfeiture pursuant to [21 U.S.C. § 881],
because the property was used or acquired as a
result of a violation of the Controlled Substances
Act . . . . Pursuant to [18 U.S.C. § 983 and 19
U.S.C. §§ 1602-1619], procedures to administratively
forfeit this property are underway. You may
petition the DEA for return of the property
3
(remission or mitigation), and/or you may contest
the seizure and forfeiture of the property in
Federal Court.
Def.’s Ex. 1; see also infra Section II (discussing the statutory
scheme established by Congress in civil forfeiture actions, and
providing an overview of the process for filing (i) a “petition”
for the return of property with the DEA and/or (ii) a “claim” for
the judicial review of the seizure and forfeiture with the DEA).
Plaintiffs received this Notice. Compl. ¶ 40.1
On October 10, 2008, counsel for plaintiffs sent the
following letter to the DEA requesting the return of the $19,800
in seized funds (the “October 10, 2008 Letter”):
I am the attorney representing Ms. Tiana Dupree and
Randy Martin who on August 8, 2008 had the sum of
$19,800 taken from them by DEA agents while lawfully
traveling from Florida to New York. The money was
seized during an alleged random drug search despite
the fact that there were no drugs found on my client,
there was no commission of a crime and the Agent
could not express any legal basis for the seizure of
the funds from my clients. There were no arrests and
no other property was seized.
I am submitting my clients’ sworn affidavits to
petition you to return their property forthwith. In
doing so, we do not waive our right to proceed in any
other lawful manner to recover the sum in question.
In the event you have nay [sic] lawful reason for the
seizure and subsequent forfeiture of my clients’
money I request that this information be forwarded to
1
In addition to sending the Notices of Seizure, the DEA also
filed three legal notices in the Wall Street Journal, apprising
potentially interested parties of the seizure and indicating that
November 27, 2008 was the last date to file a claim or petition
for the funds. See Def.’s Ex 9 (Legal Notices dated October 13,
2008, October 20, 2008, and October 27, 2008).
4
my office immediately. However, as I suspect you
will agree that the money should be returned to my
clients’ I would appreciate it if you could forward a
check made payable to STEVEN M. FEINBERG, ESQ., as
attorney, to my office address. Thank you for your
anticipated cooperation.
Def.’s Ex. 10. The letter was accompanied by sworn declarations
from Dupree and Martin, captioned “Petition for the Return of
Money.” See Def.’s Ex. 10.
On October 20, 2008, the DEA mailed a form letter to
plaintiffs, indicating that “[y]our petition for Remission and/or
Mitigation will be ruled on administratively by this office.
Before any decision can be made, your petition must be reviewed
and an investigation may be required.” Def.’s Ex. 11. By
letters dated December 26, 2008 and March 12, 2009, plaintiffs’
counsel requested updates regarding the status of his October 10,
2008 Letter requesting the return of funds. See Def.’s Exs. 13,
16.
C. Forfeiture of the Funds
On March 23, 2009 – while plaintiffs’ October 10, 2008
Letter was still under administrative review – the DEA issued a
Declaration of Forfeiture (the “Declaration”), whereby the
$19,800 in seized funds were forfeited to the United States
pursuant to 19 U.S.C. § 1609. See Def.’s Ex. 17.2
2
See Def.’s Ex. 17 (“The [$19,800 U.S. Currency] has been
seized by agents of the [DEA] pursuant to 21 U.S.C. Section 881.
Notice of the seizure has been sent to all known parties who may
have a legal or possessory interest in the property. Also, in
5
D. Denial of Plaintiffs’ Petition
On March 24, 2009, the DEA denied plaintiffs’ petition for
the return of money. See generally Def.’s Ex. 18. With regards
to Dupree, the DEA explained that remission or mitigation was
inappropriate because “Ms. Dupree has failed to demonstrate any
interest in the forfeited currency as an owner or a lienholder,
as required by Federal regulation.” Def.’s Ex. 18 at 2. Next,
with regards to Martin, the DEA found that he failed to provide
any documentation substantiating his allegation that he was “the
owner of the cash” or “a legitimate source for the seized funds.”
See Def.’s Ex. 18 at 2 (explaining that “[p]ursuant to 28 C.F.R.
§ 9.3(c)(1)(iv), the interest of a petitioner in the property, as
owner or otherwise, must be supported by satisfactory documentary
evidence, for example, employment records, financial statements,
bank statements, or cancelled checks,” and advising that “[i]f
your client is alleging the forfeited currency to be the proceeds
of some transaction, he must then provide credible, verifiable
documentation evidencing the transaction”). While the letter
accordance with 19 U.S.C. Section 1607, notice of the seizure has
been published and no claim has been filed for the property
within 30 days from the date of last publication of the
advertisement. On this date, I have examined this matter, and
found that there was sufficient information to support the
forfeiture of this property. Therefore, it is hereby declared
that such property is forfeited to the United States pursuant to
19 U.S.C. Section 1609.”).
6
also apprised plaintiffs of their right to file a motion for
reconsideration, no such motion was filed.
E. This Action
On September 15, 2009, plaintiffs - represented by new
counsel – filed suit in this Court alleging violations of 18
U.S.C. § 983, 42 U.S.C. § 1983, as well as the Fourth and the
Fifth Amendments of the United States Constitution. See Compl.
¶¶ 55-73. Plaintiffs principally argue that the DEA erred in
failing to initiate judicial forfeiture proceedings, explaining
that their October 10, 2008 Letter to the DEA asserted a claim -
not a petition for remission or mitigation - and that
administrative forfeiture of the seized funds was therefore
inappropriate. See, e.g., Compl. ¶¶ 45, 56-60;3 see generally
infra Section II (explaining that upon receipt of a notice of
seizure, a claimant may contest the forfeiture in a judicial
forum by filing a claim with the DEA or seek return of the funds
in an administrative forum by filing a petition with the DEA).
Plaintiffs seek, among other things, return of the funds for
defendant’s failure to file a complaint for judicial forfeiture
in a federal district court within 90 days of plaintiffs’ October
3
See also Pls.’ Opp’n Br. at 3 (“Plaintiffs do not argue now,
nor have they in the past, that they filed a petition for
remission or mitigation. . . . The allegations in the Complaint
and the supporting evidence clearly show that it was Plaintiffs’
intent to file a claim and not a petition for remission or
mitigation.”).
7
10, 2008 Letter. See generally 18 U.S.C. § 983(a)(3)(B). On
December 23, 2009, defendant filed a motion to dismiss
plaintiffs’ complaint. This motion is now ripe for determination
by the Court.
II. STATUTORY BACKGROUND
The funds at issue in this case were seized for forfeiture
pursuant to Title 21 U.S.C. § 881(a)(6), which provides that all
funds traceable as proceeds to a violation of the federal
narcotics laws are subject to forfeiture by the United States.
21 U.S.C. § 881(a), (d); see also Def.’s Ex. 1, Notice of Seizure
(“The above-described property was seized by the [DEA] for
forfeiture pursuant to Title 21, United States Code, Section 881,
because the property was used or acquired as a result of a
violation of the Controlled Substances Act[.]”). Such
forfeitures are governed by the customs laws relating to
forfeiture. See 21 U.S.C. § 881(d). Under the customs laws, the
DEA may administratively forfeit goods valued at or less than
$500,000. 19 U.S.C. § 1607. An administrative forfeiture has
the same force and effect as a final decree and order of
forfeiture in a judicial forfeiture proceeding. Id. § 1609(b).
The DEA must send written notice to all parties with an interest
in the seized property and publish notice of the seizure and its
intent to forfeit the goods administratively. Id. § 1607(a); 18
U.S.C. § 983(a)(1).
8
Once the federal government properly commences a civil
forfeiture proceeding, the claimant has the opportunity to choose
the forum of adjudication. As discussed below, a claimant may
choose a judicial forum by filing a claim with the DEA or an
administrative forum by filing a petition with the DEA.
A. Filing a Claim
A party seeking to challenge the forfeiture of its property
in a judicial forum must file a claim with the DEA within the
deadline set forth in the notice of seizure or, if the party did
not receive a notice letter, then no later than thirty days after
the final newspaper publication of the notice of seizure. See 18
U.S.C. § 983(a)(2)(B) (“A claim . . . may be filed not later than
the deadline set forth in a personal notice letter (which
deadline may be not earlier than 35 days after the date the
letter is mailed), except that if that letter is not received,
then a claim may be filed not later than 30 days after the date
of final publication of notice of seizure.”). A claim “need not
be made in any particular form” and need only identify, under
oath, the property being claimed and the claimant’s interest in
that property. Id. § 983(a)(2)(C),(D).4 The timely filing of a
claim stops all administrative forfeiture proceedings. See 21
4
“A claim shall (i) identify the specific property being
claimed; (ii) state the claimant’s interest in such property; and
(iii) be made under oath, subject to penalty of perjury.” 18
U.S.C. § 983(a)(2)(c).
9
C.F.R. § 1316.76(b). The claim is then transferred to a United
States Attorney who must initiate a judicial forfeiture action in
a federal district court within ninety days or return the seized
property. See 18 U.S.C. § 983(a)(3). In the subsequent civil
forfeiture proceedings, the government bears the burden of
proving, by a preponderance of the evidence, that the property is
subject to forfeiture. Id. § 983(c)(1).
B. Filing a Petition
If the claimant fails to timely file a claim, the property
is administratively forfeited. 19 U.S.C. § 1609. A claimant
may, however, request remission and/or mitigation of the
administrative forfeiture by filing a petition within thirty days
of receipt of the notice of seizure. 28 C.F.R. § 9.3. A
petition must include proof of an individual’s interest in the
property and state the facts and circumstances justifying
remission or mitigation. See Def.’s Ex. 1, Notice of Seizure;
see also 28 C.F.R. § 9.3(c)(1).5 “Any factual recitation or
5
“All petitions must include the following information in
clear and concise terms: (i) The name, address, and social
security or other taxpayer identification number of the person
claiming an interest in the seized property who is seeking
remission or mitigation; (ii) The name of the seizing agency, the
asset identifier number, and the date and place of seizure; (iii)
A complete description of the property, including make, model,
and serial numbers, if any; and (iv) A description of the
petitioner's interest in the property as owner, lienholder, or
otherwise, supported by original or certified bills of sale,
contracts, deeds, mortgages, or other documentary evidence.” 28
C.F.R. § 9.3(c)(1).
10
documentation of any type in a petition must be supported by a
sworn affidavit.” Id. § 9.3(c)(2). Once a petition is received,
a seizing agency investigates its merits and submits a written
report to the Ruling Official. Id. § 9.3(f). The Ruling
Official then reviews and considers the report and issues a
ruling. Id. § 9.3(g). The DEA has broad discretion in deciding
whether to grant a petition. See 28 C.F.R. § 9.7(a)(1) (“Whether
the property or a monetary equivalent will be remitted to an
owner shall be determined at the discretion of the Ruling
Official.”). If the Ruling Official denies the petition, the
petitioner is notified of the reasons for the denial and of the
right to submit a request for reconsideration. Id. § 9.3(i). A
request for reconsideration is decided by a different Ruling
Official than the one who ruled on the original petition. Id.
§ 9.3(j)(2).
III. LEGAL STANDARD
A motion to dismiss under Rule 12(b)(1) of the Federal Rules
of Civil Procedure tests whether the court has subject matter
jurisdiction over the action. Zaigang Liu v. Novak, 509 F. Supp.
2d 1, 3 (D.D.C. 2007). The plaintiff bears the burden of
establishing that the court has subject matter jurisdiction.
Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992). In
evaluating a motion to dismiss for lack of subject matter
jurisdiction, the court accepts the complaint’s well-pled factual
11
allegations as true and construes all reasonable inferences in
the plaintiff’s favor. Thompson v. Capitol Police Bd., 120 F.
Supp. 2d 78, 81 (D.D.C. 2000). Because subject-matter
jurisdiction focuses on the court’s power to hear the claim,
however, the court must give the plaintiff’s factual allegations
closer scrutiny when resolving a Rule 12(b)(1) motion than would
be required for a Rule 12(b)(6) motion for failure to state a
claim. Macharia v. United States, 334 F.3d 61, 64, 69 (D.C. Cir.
2003). To determine whether it has jurisdiction, the court may
consider materials outside the pleadings. Alliance for Democracy
v. Fed. Election Comm’n, 362 F. Supp. 2d 138, 142 (D.D.C. 2005).
A motion to dismiss under Rule 12(b)(6) tests the legal
sufficiency of a complaint. Browning v. Clinton, 292 F.3d 235,
242 (D.C. Cir. 2002). A complaint must present “enough facts to
state a claim to relief that is plausible on its face” and “above
the speculative level.” Bell Atlantic Corp. v. Twombly, 550 U.S.
544, 555 (2007). In considering a 12(b)(6) motion, the Court
must construe the complaint “‘liberally in the plaintiff’s
favor,’ ‘accept[ing] as true all of the factual allegations’”
alleged in the complaint. Aktieselskabet AF 21 November 2001 v.
Fame Jeans Inc., 525 F.3d 8, 15 (D.C. Cir. 2008) (alteration in
original) (quoting Kassem v. Wash. Hosp. Ctr., 513 F.3d 251, 253
(D.C. Cir. 2008)). Plaintiffs are entitled to “the benefit of
12
all inferences that can be derived from the facts alleged.”
Kowal v. MCI Commc’ns Corp., 16 F.3d 1271, 1276 (D.C. Cir. 1994).
IV. ANALYSIS
Defendant argues that because plaintiffs failed to file a
timely claim with the DEA, the agency forfeited the seized funds
through the administrative forfeiture process set forth in the
Civil Asset Forfeiture Reform Act (“CAFRA”), 18 U.S.C. § 983.
Because the seized funds have already been forfeited to the
United States, defendant argues that the Court lacks jurisdiction
to review the merits of plaintiffs’ complaint. Plaintiffs,
however, argue that the underlying administrative forfeiture was
improper and that defendant’s argument must therefore be
rejected. Specifically, plaintiffs contend that because their
October 10, 2008 Letter asserted a claim - not a petition – the
DEA was required to cease administrative forfeiture proceedings
and commence judicial forfeiture proceedings within 90 days or
return the seized funds to plaintiffs. The threshold issue for
the Court to resolve, therefore, is whether plaintiffs asserted a
claim in their October 10, 2008 Letter to the DEA. For the
reasons discussed below, the Court concludes that they did not.
First, the Court is persuaded by the fact that plaintiffs’
captioned their October 10, 2008 Letter as a “Petition for the
Return of Money.” Def.’s Ex. 10. Plaintiffs’ letter is not
captioned a “claim”; it does not mention that a “claim” is being
13
filed; it does not request judicial review; nor does it seek
transfer to a United States District Court. See generally Def.’s
Ex. 10. To the contrary, the October 10, 2008 Letter
“petition[s] [the DEA] to return their property forthwith,” and
purportedly reserves plaintiffs’ right “to proceed in any other
lawful manner to recover the sum in question.” Def.’s Ex. 10.
While plaintiffs contend that “[h]ad [they] intended their
submission to be construed as a petition for remission or
mitigation, Plaintiffs . . . would not have included information
required specifically for a claim,” such as a “sworn statement,”
Pls.’ Opp’n Br. at 3-4, the Court finds this argument
unpersuasive in light of the fact that “[a]ny factual recitation
or documentation of any type in a petition must be supported by a
sworn affidavit.” 28 C.F.R. § 9.3(c)(2). Plaintiffs’ counsel is
therefore incorrect in his contention that “a petition for
remission or mitigation need not be accompanied by a sworn
statement.” Pls.’ Opp’n Br. at 4.
Second, in response to plaintiffs’ October 10, 2008 Letter,
the DEA notified plaintiffs on October 20, 2008 that it was
construing their “Petition for Return of Money” as a petition for
remission and/or mitigation. See Def.’s Ex. 11. Specifically,
the DEA informed plaintiffs, through counsel, that “[plaintiffs’]
petition for Remission and/or Mitigation will be ruled on
administratively by this office.” Def.’s Ex. 11. Upon receipt
14
of this letter, plaintiffs did not notify the DEA that their
October 10, 2008 Letter had been misconstrued, or that they
wished to proceed with judicial review rather than administrative
review. Indeed, had plaintiffs informed the DEA upon receipt of
the DEA’s October 20, 2008 Letter that their October 10, 2008
Letter had been misconstrued as a petition rather than a claim,
plaintiffs would have been well within the November 4, 2008
deadline for filing a claim. Instead of notifying the DEA that
their letters had been construed, however, plaintiffs sent
follow-up letters to the DEA requesting updates “as to the status
of [their] request to have the funds released.” Def.’s Ex. 13,
16. Plaintiffs also failed to file a motion for reconsideration
with the DEA after the agency issued its determination that,
among other things, plaintiffs were foreclosed from contesting
the forfeiture judicially because they had failed to file a claim
within the prescribed time. See Def.’s Ex. 18 at 3.
Because plaintiffs - who were represented by counsel -
failed to notify the DEA that their petition had been
misconstrued (i.e., that their October 10, 2008 Letter asserted a
claim for judicial review rather than a petition for
administrative review), this Court will not countenance
plaintiffs’ post hoc attempts to recast their administrative
petition as a claim. See Malladi Drugs & Pharms., Ltd. v. Tandy,
538 F. Supp. 2d 162 (D.D.C. 2008), aff’d on other grounds, 552
15
F.3d 885 (D.C. Cir. 2009) (rejecting the plaintiff’s contention
that its petitions for remission or mitigation of forfeiture were
also claims). Having carefully reviewed the facts of this case,
the Court concludes that plaintiffs waived their opportunity to
seek relief in a judicial forfeiture action by proceeding with
administrative review by the DEA. Cf. Malladi Drugs & Pharms.,
Ltd. v. Tandy, 552 F.3d 885, 890 (D.C. Cir. 2009) (“Malladi
elected to forego the legal remedy it seeks here when it chose
the discretionary administrative remedy and allowed the time for
filing a claim under the administrative scheme to pass. Having
waived its opportunity for judicial forfeiture proceedings during
the administrative process, Malladi may not now attempt to
correct its choice of remedy in federal court.”).
Accordingly, because plaintiffs did not file a timely claim
with the DEA contesting the forfeiture, the forfeiture occurred
and became final in the administrative process. See Def.’s Ex.
17. Under the scheme established by Congress, the filing of a
claim by an aggrieved party is the exclusive means by which a
claimant can have a judicial determination as to the forfeiture’s
validity.6 Because a federal district court has no jurisdiction
6
A party may also file a motion to set aside an
administrative forfeiture if a person entitled to written notice
of the forfeiture proceeding did not receive the required notice.
See 18 U.S.C. 983(e)(1). In this case, however, plaintiffs do
not argue that they did not receive adequate notice, and
therefore are not eligible to bring such a suit. See Compl. ¶¶
39-40 (“On September 20, 2008, the DEA mailed a Notice of Seizure
16
to entertain a lawsuit which is brought by a claimant wholly
apart from the procedure established by Congress, this Court
lacks jurisdiction to review the merits of plaintiffs’ complaint.
See, e.g., McKinney v. DEA, 580 F. Supp. 2d 1, 3-4 (D.D.C. 2008)
(concluding that where the plaintiff received the DEA’s notice of
seizure and failed to timely file a claim, the Court is “without
jurisdiction to review whether the forfeiture was based on a
legal search, as the statute requires, or to order the return of
the asset”); Aquasviva v. DEA, No. 02-3076, 2004 U.S. Dist. LEXIS
16876, at *11 (S.D.N.Y. Aug. 24, 2004)(granting the defendant’s
motion to dismiss for lack of jurisdiction because “the plain
fact is that plaintiff failed to follow the prescribed route to a
judicial determination, and [] cannot now substitute some other
method of proceeding”).7 Defendant’s motion to dismiss is
both to Martin and Dupree. It listed the property as $19,800 in
U.S. currency, the owner as Dupree, and the seizure date as
August 8, 2008. Plaintiffs received the Notices of Seizure[.]”).
7
Even assuming, arguendo, that the Court has jurisdiction to
review plaintiffs’ constitutional and statutory claims, the Court
concludes that plaintiffs’ failure to raise these claims before
the DEA precludes the Court from considering them in the first
instance. See Malladi Drugs, 552 F.3d at 891-92 (explaining that
because the petitioner “had adequate opportunity to make the DEA
aware of its [] objection but failed to do so, . . . it cannot
[later] challenge the DEA’s action on that ground”); Colon-
Calderon v. DEA, 218 Fed. Appx. 1, 1 (D.C. Cir. 2007) (declining
to consider the petitioner’s constitutional challenge because
“petitioner never raised this contention before the DEA”).
Plaintiffs present no argument to the contrary. See Pls.’ Opp’n
Br. at 5-6 (conceding that plaintiffs did not raise these
arguments before the DEA).
17
therefore GRANTED.
V. CONCLUSION
For the reasons set forth above, the Court GRANTS
defendant’s motion to dismiss. The complaint in this action is
hereby dismissed with prejudice for lack of subject matter
jurisdiction. An appropriate Order accompanies this Memorandum
Opinion.
SIGNED: Emmet G. Sullivan
United States District Court Judge
June 15, 2010
18