UNITED STATES of America, Plaintiff-Appellee, v. SEVENTEEN THOUSAND, FOUR HUNDRED DOLLARS IN CURRENCY, Defendant, and Ronald A. Nocenti, Claimant-Appellant, 524 F.2d 1105

LEWIS, Chief Judge. This case has a completely unique but undisputed factual background. Nocenti, described by the government as “a cooperating individual for the plaintiff United States of America,” obtained from two illicit drug dealers in Denver, Colorado, Merkowitz and Smaldone, the sum of $18,500 for the purpose of buying, in Peru, as much cocaine as possible and smuggling the contraband drugs back to Denver. With the full cooperation of the Bureau of Narcotics and Dangerous Drugs, Nocenti, accompanied by a narcotics agent, flew to Lima with the money for the purpose of making the purchase.

The government of Peru was informed of the venture and, when Nocenti made the purchase, arrested the seller but allowed the United States to complete the plan by releasing the cocaine to this government. The money was never paid to the seller and remained in Nocenti’s possession. Nocenti and the narcotics agent then returned to the United States. The agent was in possession of the cocaine and Nocenti in possession of the money, the amount then being $17,400 with the difference having been spent for expenses by Nocenti.

Upon reaching Denver, at the government’s request, Nocenti turned over the remaining money to the United States and was given an evidentiary receipt. Merkowitz and Smaldone were later “set up,” arrested, and subsequently convicted of trafficking in narcotics with Nocenti as a key prosecution witness. These events occurred in 1972.

In 1973, the United States filed a complaint in rem against the $17,400 alleging the money to be in the custody of the Bureau of Narcotics and Dangerous Drugs, Denver, Colorado, and within the jurisdiction of the District Court for the District of Colorado and asserting a right to forfeiture under 19 U.S.C. § 1595a. Notice was given to the Bureau of Narcotics and Dangerous Drugs, Smaldone, Merkowitz, and Nocenti. The Bureau and Smaldone filed no claim. Merkowitz filed a claim after the case was heard and submitted to the trial court which was then rejected as untimely. Nocenti was the only appearing claimant.

The trial court held that the money was not subject to forfeiture and dismissed the government’s complaint in this regard as part of the court’s over-all judgment. No appeal has been taken by the government from this holding. The court also held that Nocenti did not prove ownership of the funds and thus denied his claim. The court further held that Nocenti was the agent of the United States during the entire course of the transaction and concluded that the money belonged to the United States under this finding and theory. Nocenti appeals from this holding and the denial of his own claim.

Nowhere in the proceedings below did the United States ever assert that Nocenti was its agent nor are we referred to any case where the government has formally or informally asserted that an informer was a lawful agent of the United States or has accepted responsibility for the actions of an informer as his principal. To the contrary, the United States has consistently refused responsibility for the actions of informers in cases involving entrapment and various other aspects of criminal activities. See United States v. Spivey, 10 Cir., 508 F.2d 146, cert. denied, 421 U.S. 949, 95 S.Ct. 1682, 44 L.Ed.2d 104.

We are not inclined to transform a government designated “cooperating individual” into an agent simply because of the unusual history we here review. The record does not support the trial court’s finding of agency. Viewed traditionally, Nocenti was the agent of Merkowtiz and Smaldone. And in light of the serious criminality involved the law will require no accounting of this agent to his principals. Restatement (Second) of Agency § 412(2)(b) (1958).

We are left, then, with Nocenti as a witness who surrendered possession of evidence to the Bureau of Narcotics and Dangerous Drugs at the Bureau’s request and who now seeks its return to his possession. His claim is unusual, dramatic, but valid. The judgment is reversed and the case remanded with directions to order the total money surrendered to Nocenti. During the course of this litigation we ordered the $17,400 to be deposited with the Clerk of the Court and placed in an interest paying account.

As part of the mandate it is ordered that the Clerk forthwith withdraw the deposit and interest and deliver the total money to the Clerk of the District Court.