A-57564, DECEMBER 7, 1934, 14 COMP. GEN. 434

A-57564: Dec 7, 1934

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45 STAT. 413 MONEYS COVERED INTO THE GENERAL FUND OF THE TREASURY PURSUANT TO AN ORDER OF COURT FORFEITING SUCH MONEYS TO THE UNITED STATES ARE NOT DEPOSITED IN THE TREASURY PURSUANT TO PROVISIONS OF SECTION 996. THOMAS WAS ARRAIGNED JANUARY 31. 000 BILL WAS OFFERED IN EVIDENCE BEFORE THE COMMISSIONER. A CRIMINAL INFORMATION WAS FILED AGAINST THOMAS CHARGING VIOLATION OF THE NATIONAL PROHIBITION ACT. NO CHARGE FOR THE ALLEGED ATTEMPTED BRIBERY WAS MADE. DEFENDANT ENTERED A PLEA OF GUILTY AND WAS SENTENCED BY THE COURT. 000 WAS DEPOSITED IN THE REGISTRY OF THE COURT. SAID MONEY WAS FORFEITED AND THE CLERK OF THE COURT WAS DIRECTED TO PAY THE SAME INTO THE TREASURY OF THE UNITED STATES. THE MONEY WAS RECEIVED AND COVERED INTO THE TREASURY OF THE UNITED STATES AS MISCELLANEOUS RECEIPTS.

A-57564, DECEMBER 7, 1934, 14 COMP. GEN. 434

CLAIMS - MONEYS FORFEITED TO THE UNITED STATES - ACT OF APRIL 10, 1928, 45 STAT. 413 MONEYS COVERED INTO THE GENERAL FUND OF THE TREASURY PURSUANT TO AN ORDER OF COURT FORFEITING SUCH MONEYS TO THE UNITED STATES ARE NOT DEPOSITED IN THE TREASURY PURSUANT TO PROVISIONS OF SECTION 996, REVISED STATUTES, AS AMENDED BY THE ACT OF MARCH 3, 1911, 36 STAT. 1083, PROVIDING FOR THE TRANSFER OF CERTAIN MONEYS FROM THE REGISTRY OF THE COURT TO THE TREASURY AFTER A LAPSE OF AT LEAST 5 YEARS, AND SUCH MONEYS MAY NOT BE WITHDRAWN FROM THE TREASURY EXCEPT IN COMPLIANCE OF AN APPROPRIATION MADE BY LAW. A CLAIM FOR REFUND OF MONEYS FORFEITED AND COVERED INTO THE GENERAL FUND OF THE TREASURY PURSUANT TO AN ORDER OF COURT DOES NOT CONTAIN SUCH ELEMENTS OF LEGAL LIABILITY OR EQUITY AS TO JUSTIFY REPORTING IT TO THE CONGRESS FOR ITS CONSIDERATION UNDER THE ACT OF APRIL 10, 1928, 45 STAT. 413.

DECISION BY COMPTROLLER GENERAL MCCARL, DECEMBER 7, 1934:

LLOYD C. HOOKS, AS ATTORNEY FOR W. G. THOMAS, ALIAS W. T. GRIGSBY, HAS FILED CLAIM FOR THE RECOVERY OF $1,000 REPRESENTING MONEY RECEIVED FROM SAID THOMAS AND DEPOSITED IN THE REGISTRY OF A UNITED STATES DISTRICT COURT PURSUANT TO PROVISIONS OF THE ACT OF JANUARY 7, 1925, 43 STAT. 726, AND LATER COVERED INTO THE TREASURY AS MISCELLANEOUS RECEIPTS, NO. 3850, "BRIBES TO UNITED STATES OFFICERS.'

W. G. THOMAS WAS ARRAIGNED JANUARY 31, 1928, BEFORE A UNITED STATES COMMISSIONER ON CHARGES OF POSSESSING AND TRANSPORTING INTOXICATING LIQUOR AND ATTEMPTING TO BRIBE A FEDERAL PROHIBITION AGENT BY OFFERING AND DELIVERING TO SAID AGENT THE SUM OF $1,000 IN AN ENDEAVOR TO SECURE THE RELEASE OF A SEIZED AUTOMOBILE. THE DEFENDANT ENTERED A PLEA OF NOT GUILTY TO THE CHARGES. IT APPEARS THAT THE $1,000 BILL WAS OFFERED IN EVIDENCE BEFORE THE COMMISSIONER, WHO RETAINED IT.

ON APRIL 5, 1928, A CRIMINAL INFORMATION WAS FILED AGAINST THOMAS CHARGING VIOLATION OF THE NATIONAL PROHIBITION ACT, BUT NO CHARGE FOR THE ALLEGED ATTEMPTED BRIBERY WAS MADE.

ON APRIL 29, 1928, DEFENDANT ENTERED A PLEA OF GUILTY AND WAS SENTENCED BY THE COURT. THE RECORD FAILS TO DISCLOSE THE DATE ON WHICH THE $1,000 WAS DEPOSITED IN THE REGISTRY OF THE COURT, BUT ON NOVEMBER 29, 1933, BY AN ORDER OF COURT DULY ENTERED OF RECORD, SAID MONEY WAS FORFEITED AND THE CLERK OF THE COURT WAS DIRECTED TO PAY THE SAME INTO THE TREASURY OF THE UNITED STATES. PURSUANT TO THIS ORDER, THE MONEY WAS RECEIVED AND COVERED INTO THE TREASURY OF THE UNITED STATES AS MISCELLANEOUS RECEIPTS, NO. 3850,"BRIBES TO UNITED STATES OFFICERS.'

ON APRIL 2, 1934, MOTION TO VACATE THE ORDER OF FORFEITURE WAS MADE BY THE SAID THOMAS WHO FILED, ALSO, PETITION FOR THE RETURN OF THE MONEY. APRIL 6, 1934, THE MOTION TO VACATE WAS GRANTED AND ON MAY 11, 1934, THE PRAYER OF THE PETITIONER FOR THE RETURN OF THE $1,000 WAS GRANTED AND THE CLERK OF THE COURT WAS DIRECTED TO PAY THE SAME TO W. G. THOMAS. THE ORDER OF NOVEMBER 29, 1933, FORFEITING THE MONEY TO THE UNITED STATES HAVING BEEN COMPLIED WITH, AND THE $1,000 HAVING BEEN COVERED INTO THE GENERAL FUND OF THE TREASURY OF THE UNITED STATES, THE CLERK WAS UNABLE TO COMPLY WITH THE ORDER OF MAY 11, 1934, DIRECTING PAYMENT OF THE MONEY TO THOMAS. THIS FACT WAS BROUGHT TO THE ATTENTION OF THE COURT AND ON MAY 16, 1934, AN ORDER WAS ENTERED DIRECTING THE PAYMENT OF THE $1,000 TO LLOYD C. HOOKS, THE CLAIMANT HEREIN, FROM THE PERMANENT APPROPRIATION PROVIDED BY SECTION 996, REVISED STATUTES, AS AMENDED.

THE ORDER OF FORFEITURE, ENTERED NOVEMBER 29, 1933, PURSUANT TO WHICH THE MONEY WAS COVERED INTO THE TREASURY, WAS MADE UNDER AUTHORITY OF THE ACT OF JANUARY 7, 1925, 43 STAT. 726, WHICH PROVIDES:

THAT HEREAFTER ALL MONEYS RECEIVED OR TENDERED IN EVIDENCE IN ANY CASE, PROCEEDING, OR INVESTIGATION IN ANY UNITED STATES COURT, OR BEFORE ANY OFFICER THEREOF, WHICH HAVE BEEN PAID TO OR RECEIVED BY ANY OFFICIAL AS A BRIBE, SHALL AFTER THE CONCLUSION AND FINAL DISPOSITION OF THE PARTICULAR CASE, PROCEEDING, OR INVESTIGATION IN WHICH IT WAS RECEIVED AS EVIDENCE, BE DEPOSITED IN THE REGISTRY OF THE COURT TO BE DISPOSED OF UNDER AND IN ACCORDANCE WITH THE ORDER, JUDGMENT, OR DECREE OF THE SAID COURT, TO BE SUBJECT, HOWEVER, TO THE PROVISIONS OF SECTION 996, REVISED STATUTES, AS AMENDED.

THIS STATUTE PLACES THE DISPOSITION OF THE MONEY IN QUESTION WITHIN THE REASONABLE JUDICIAL DISCRETION OF THE COURT. SEE UNITED STATES V. CANNOUGHTON ET AL., 39 FED./2D) 237. UPON AN INVESTIGATION OF A CHARGE OF BRIBERY BEFORE A UNITED STATES COMMISSIONER, THE $1,000 BILL WAS TENDERED IN EVIDENCE. PURSUANT TO AN ORDER OF COURT, IT WAS DEPOSITED IN THE REGISTRY OF THE COURT. DISPOSITION OF THE MONEY WAS MADE PURSUANT TO AN ORDER OF THE COURT PROPERLY ENTERED OF RECORD AND THEREBY THE MONEY WAS PLACED BEYOND THE CUSTODY, CONTROL, OR JURISDICTION OF THE COURT. IT WAS NOT DEPOSITED IN THE TREASURY PURSUANT TO PROVISIONS OF SECTION 996, REVISED STATUTES, WHICH, AS AMENDED BY THE ACT OF MARCH 3, 1911, 36 STAT. 1083, PROVIDES IN PART:

IN EVERY CASE IN WHICH THE RIGHT TO WITHDRAW MONEY SO DEPOSITED HAS BEEN ADJUDICATED OR IS NOT IN DISPUTE AND SUCH MONEY HAS REMAINED SO DEPOSITED FOR AT LEAST FIVE YEARS UNCLAIMED BY THE PERSON ENTITLED THERETO, IT SHALL BE THE DUTY OF THE JUDGE OR JUDGES OF SAID COURT, OR ITS SUCCESSOR TO CAUSE SUCH MONEY TO BE DEPOSITED IN THE TREASURY OF THE UNITED STATES IN THE NAME AND TO THE CREDIT OF THE UNITED STATES: PROVIDED, THAT ANY PERSON OR PERSONS OR ANY CORPORATION OR COMPANY ENTITLED TO ANY SUCH MONEY MAY ON PETITION TO THE COURT FROM WHICH THE MONEY WAS RECEIVED OR ITS SUCCESSOR AND UPON NOTICE TO THE UNITED STATES ATTORNEY AND FULL PROOF OF RIGHT THERETO OBTAIN AN ORDER OF COURT DIRECTING THE PAYMENT OF SUCH MONEY TO THE CLAIMANT AND THE MONEY DEPOSITED AS AFORESAID SHALL CONSTITUTE AND BE A PERMANENT APPROPRIATION FOR PAYMENTS IN OBEDIENCE TO SUCH ORDERS AND THIS ACT IS APPLICABLE TO ALL MONEY DEPOSITED IN THE TREASURY OF THE UNITED STATES IN ACCORDANCE WITH SECTION NINE HUNDRED AND NINETY-SIX, REVISED STATUTES OF THE UNITED STATES, AS AMENDED FEBRUARY NINETEENTH, EIGHTEEN HUNDRED AND NINETY-SEVEN.

THIS IS NOT A STATUTE OF FORFEITURE AND IT DOES NOT ATTEMPT TO ESCHEAT THE MONEY SO DEPOSITED. IT PROVIDES FOR THE TRANSFER OF CERTAIN MONEYS FROM THE REGISTRY OF THE COURT TO THE TREASURY AFTER A LAPSE OF TIME. APPLIES TO MONEYS WHICH HAVE REMAINED IN THE REGISTRY OF THE COURT FOR YEARS OR LONGER SOLELY BECAUSE THEY ARE UNCLAIMED. SEE IN RE MONEYS IN REGISTRY OF DISTRICT COURT, 170 FED. 470. IF THE $1,000 HERE IN QUESTION HAD NOT BEEN IN DISPUTE; HAD REMAINED IN THE REGISTRY OF THE COURT FOR 5 YEARS OR LONGER AND FOR THAT REASON HAD BEEN DEPOSITED AND COVERED INTO THE TREASURY OF THE UNITED STATES, IT WOULD HAVE BEEN DEPOSITED AS NO. 3940 "FORFEITURES, MONEYS REMAINING IN REGISTRY OF COURTS 5 YEARS OR LONGER; " WOULD HAVE REMAINED SUBJECT TO THE JURISDICTION AND ORDERS OF THE COURT AND THE PERMANENT APPROPRIATION PROVIDED BY THE STATUTE CITED WOULD HAVE BEEN AVAILABLE FOR MAKING PAYMENT PURSUANT TO PROPER ORDERS OF THE COURT. THIS MONEY WAS NOT SO ACTED UPON AND THE COURT, BY ITS OWN ACTION, MADE A DISPOSITION THEREOF AS A RESULT OF WHICH THE MONEY WAS PLACED OUTSIDE ITS JURISDICTION. THE MONEY HAVING BEEN DEPOSITED AND COVERED INTO THE GENERAL FUND OF THE TREASURY, MAY NOT BE WITHDRAWN EXCEPT IN CONSEQUENCE OF APPROPRIATION MADE BY LAW. ARTICLE 1, SECTION 9, CONSTITUTION OF THE UNITED STATES.

THE LEGALITY OR PROPRIETY OF THE VARIOUS ORDERS OF THE COURT IS NOT FOR CONSIDERATION BY THIS OFFICE, AND THE ACTION HEREIN IS NOT INTENDED AS A REVIEW OF SUCH ORDERS. THAT THE COURT HAS CAUSED A DISPOSITION OF THE MONEY IS A FAIT ACCOMPLI. MONEYS COVERED INTO THE TREASURY PURSUANT TO AN ORDER OF A COURT HAVING JURISDICTION TO MAKE SUCH ORDER ARE NOT ERRONEOUSLY RECEIVED AND COVERED INTO THE TREASURY WITHIN THE MEANING OF ANY LAW AUTHORIZING THE WITHDRAWAL OF MONEYS ERRONEOUSLY RECEIVED AND COVERED INTO THE TREASURY. SEE A-57539, NOVEMBER 14, 1934, 14 COMP. GEN. 389.

UPON THE FACTS DISCLOSED BY THE RECORD, I DO NOT FIND THAT THE CLAIM CONTAINS SUCH ELEMENTS OF LEGAL LIABILITY OR EQUITY AS TO JUSTIFY MY REPORTING IT TO THE CONGRESS FOR ITS CONSIDERATION UNDER THE ACT OF APRIL 10, 1928, 45 STAT. 413. APPARENTLY, CLAIMANT'S PRINCIPAL, W. G. THOMAS, WAS ORIGINALLY CHARGED WITH ATTEMPTED BRIBERY OF AN OFFICER OF THE UNITED STATES BY OFFERING AND DELIVERING TO HIM A $1,000 BILL. THE BILL WAS TENDERED TO THE UNITED STATES COMMISSIONER AS EVIDENCE IN CONNECTION WITH THE CHARGE. IT WAS DEPOSITED IN THE REGISTRY OF THE UNITED STATES DISTRICT COURT AS MONEY SO RECEIVED AND FINALLY WAS FORFEITED TO THE UNITED STATES AS BRIBE MONEY. CLAIM FOR RECOVERY IS BASED UPON THE FACT THAT THOMAS WAS NEITHER CONVICTED NOR PROSECUTED ON A CRIMINAL CHARGE FOR THE ATTEMPTED BRIBERY, AND IT IS CONTENDED THAT THE GOVERNMENT MUST SHOW RIGHT OR TITLE TO THE MONEY IF IT IS TO BE RETAINED. I DO NOT SO INTERPRET THE LAW.

AS A GENERAL RULE OF LAW AND PROCEDURE, COURTS REFUSE TO EXTEND AID TO PERSONS WHO HAVE VOLUNTARILY PLACED THEMSELVES IN A POSITION OF DISADVANTAGE IN PERFORMANCE OF, OR ENDEAVORING TO PERFORM AN ILLEGAL OR CRIMINAL ACT. SEE CLARK V. UNITED STATES, 102 U.S. 322. IF THE MONEY WAS OFFERED OR DELIVERED TO THE PROHIBITION AGENT AS A BRIBE, IT SHOULD NOT BE RETURNED. THE FACT THAT THE UNITED STATES ELECTED TO PROSECUTE THE SAID THOMAS ON A DIFFERENT CHARGE ON WHICH HE PLEAD GUILTY AND RECEIVED SENTENCE IS NOT A DETERMINATION OF THE BRIBERY CHARGE IN FAVOR OF CLAIMANT. THE RIGHT OF CLAIMANT TO RECOVER THE MONEY IN QUESTION IS IN NO WAY DEPENDENT UPON THE CONVICTION OR ACQUITTAL OF, OR FAILURE OF THE UNITED STATES TO PROSECUTE DEFENDANT ON CRIMINAL CHARGES OF BRIBERY. PROPERTY RIGHTS AND REMEDIES AND CRIMINAL CHARGES ARE FOR DETERMINATION UNDER DIFFERENT RULES OF EVIDENCE AND PROCEDURE AND NEITHER IS CONTROLLED BY THE DISPOSITION OF THE OTHER. IN THE CASE OF UNITED STATES V. GALBREATH, 8 FED./2D) 360, IN DENYING A PETITION FOR RECOVERY OF MONEY DELIVERED AS A BRIBE, THE COURT SAID, IN PART:

IT IS OF COURSE UNTHINKABLE THAT A COURT OF JUSTICE WILL ASSIST IN THE RECOVERY OF PROPERTY VOLUNTARILY SURRENDERED UNDER SUCH CIRCUMSTANCES.

IN ORDER TO ESTABLISH A RIGHT TO RECOVER MONEY WHICH HAS FOUND ITS WAY INTO THE GENERAL FUND OF THE TREASURY, THE BURDEN IS UPON THE PERSON ASSERTING THE CLAIM. UPON THE RECORD IN THIS CASE, IN MY JUDGMENT, THERE IS NO BASIS FOR REPORTING THE MATTER TO THE CONGRESS FOR ITS CONSIDERATION UNDER THE PROVISIONS OF THE ACT OF APRIL 10, 1928, CITED.

ACCORDINGLY, THE CLAIM FOR RECOVERY OF THE $1,000 MUST BE AND IS DENIED.