B-130854, APR. 10, 1957

B-130854, APR. 10, 1957

TO MR. BIENVENIDO B. BUSTAMANTE:

BY LETTER OF FEBRUARY 6, 1957, FROM YOUR ATTORNEY, MR. JAIME G. MANZANO, YOU REQUEST RECONSIDERATION OF OUR SETTLEMENT OF DECEMBER 11, 1956, CLAIM NO. Z-1787260, WHICH DISALLOWED YOUR CLAIM FOR REFUND OF $4,345, REPRESENTING THE VALUE OF MILITARY PAYMENT CERTIFICATES CONFISCATED FROM YOU ON OCTOBER 29, 1952, BY AGENTS OF THE 515THMILITARY POLICE CRIMINAL INVESTIGATION DETACHMENT.

THE RECORD BEFORE OUR OFFICE INDICATES THAT, WHILE YOU WERE EMPLOYED IN OKINAWA AS A CIVILIAN BY THE DEPARTMENT OF THE ARMY, YOU WERE ARRESTED BY THE 515TH MILITARY POLICE CRIMINAL INVESTIGATION DETACHMENT IN CONNECTION WITH AN INVESTIGATION OF UNLAWFUL CURRENCY EXCHANGE TRANSACTIONS. IT ALSO APPEARS YOU WERE TRIED BY SPECIAL COURT MARTIAL ON SUCH CHARGES AND DEPORTED FROM OKINAWA.

IN THE COURSE OF THE INVESTIGATION AND ARREST, A SEARCH OF YOUR QUARTERS WAS CONDUCTED ON OCTOBER 29, 1952. THE SEARCH RESULTED IN THE FINDING, HIDDEN IN THE POCKETS OF YOUR SUITS, OF $4,345 IN MILITARY PAYMENT CERTIFICATES WHICH WERE IMPOUNDED, A RECEIPT THEREFOR BEING FURNISHED TO YOU. ON THE SAME DAY, YOUR RIGHTS WERE EXPLAINED TO YOU AND YOU WERE INFORMED OF THE NATURE OF THE INVESTIGATION. DURING THE ENSUING INTERVIEW, YOU STATED THAT WHILE ON LEAVE IN MANILA IN AUGUST 1952, YOU MET A MR. AUGUSTO (GUS) APOLINARIO, AND A PERSON KNOWN TO YOU AS "ABE," WHO IS THE OWNER OF THE A. CORDERO COMPANY IN MANILA, AND THAT THESE PERSONS PERSUADED YOU TO ACT AS THEIR AGENT IN OKINAWA FOR EXCHANGING PHILIPPINE PESOS AND MILITARY PAYMENT CERTIFICATES FOR MONEY ORDERS AND SENDING SUCH MONEY ORDERS TO THE UNITED STATES IN CONSIDERATION OF A FEE. YOU THEN DETAILED A NUMBER OF INSTANCES WHEN THESE MEN SENT YOU SHIPMENTS OF PESOS OR MILITARY PAYMENT CERTIFICATES WHICH YOU CONVERTED INTO MONEY ORDERS AND SENT TO CERTAIN PARTIES IN THE UNITED STATES. UPON BEING QUESTIONED AS TO THE ORIGIN OF THE $4,345 IN MILITARY PAYMENT CERTIFICATES FOUND DURING THE SEARCH OF YOUR QUARTERS, YOU STATED THAT YOU HAD RECEIVED THAT AMOUNT FROM APOLINARIO VIA NORTHWEST AIRLINES ABOUT ONE MONTH PRIOR TO THE DATE OF THE INTERVIEW. A WRITTEN STATEMENT WAS MADE AND SIGNED BY YOU.

ON NOVEMBER 12, 1952, YOU AGAIN WERE INTERVIEWED IN CONNECTION WITH THE UNLAWFUL CURRENCY EXCHANGE TRANSACTIONS. AT THIS TIME, UPON BEING QUESTIONED AS TO THE ORIGIN AND OWNERSHIP OF THE $4,345 IN MILITARY PAYMENT CERTIFICATES FOUND DURING THE SEARCH OF YOUR QUARTERS, YOU STATED THAT $3,000 OF THIS AMOUNT BELONGED TO CORDERO, WHO SENT 6,000 PESOS WHICH YOU CONVERTED INTO MILITARY PAYMENT CERTIFICATES AT THE COCK FIGHTS AND GAMBLING TABLE, AND THAT THE REMAINING $1,345 BELONGED TO DR. O-CAMPO, WHO SENT THE PESO EQUIVALENT OF THAT SUM TO YOU THROUGH APOLINARIO, WHICH YOU LIKEWISE CONVERTED INTO MILITARY PAYMENT CERTIFICATES. A WRITTEN STATEMENT OF THIS INTERVIEW WAS ALSO MADE AND SIGNED BY YOU. AS REQUESTED IN YOUR ATTORNEY'S LETTER OF FEBRUARY 6, 1957, THERE ARE ATTACHED THERMO- FAC REPRODUCTIONS OF THE CERTIFIED TRUE COPIES OF YOUR STATEMENTS OF OCTOBER 29 AND NOVEMBER 12, 1952, AS FURNISHED OUR OFFICE BY THE DEPARTMENT OF THE ARMY.

IT APPEARS FROM YOUR OWN STATEMENTS MADE AT THE TIME THE MILITARY PAYMENT CERTIFICATES HERE IN QUESTION WERE IMPOUNDED THAT YOU WERE ENGAGED IN UNLAWFUL CURRENCY EXCHANGE TRANSACTIONS WHILE A CIVILIAN EMPLOYEE OF THE DEPARTMENT OF THE ARMY IN OKINAWA, THAT THE IMPOUNDED MILITARY PAYMENT CERTIFICATES WERE DERIVED THEREFROM, AND THAT THE FUNDS DID NOT BELONG TO YOU.

WHERE FUNDS WHICH APPARENTLY WERE DERIVED FROM UNLAWFUL TRANSACTIONS HAVE COME INTO THE HANDS OF THE ACCOUNTING OFFICERS OF THE GOVERNMENT, THE BEST INTERESTS OF THE GOVERNMENT DEMAND THAT SUCH FUNDS BE RETAINED BY THE GOVERNMENT UNLESS AND UNTIL A VALID CLAIM THEREFOR HAS BEEN ESTABLISHED. SEE ARTHUR R. SMITH V. UNITED STATES, 130 C.CLS. 222, WHEREIN THE COURT HELD THAT THE PLAINTIFF WAS NOT ENTITLED TO RECOVER THE SUM OF $13,500 TAKEN FROM HIM AT THE TIME OF HIS ARREST, WHERE THE EVIDENCE DISCLOSED THAT SAID SUM HAD BEEN ACCUMULATED THROUGH UNLAWFUL CURRENCY TRANSACTIONS. YOUR CLAIM, BASED SOLELY UPON AN AFFIDAVIT MADE BY YOU ON JULY 18, 1956, TO THE EFFECT THAT THE SUM INVOLVED REPRESENTED YOUR ACCUMULATED SAVINGS, IS DIRECTLY CONTRARY TO YOUR STATEMENTS MADE IN 1952 AND THE FINDINGS OF THE ARMY'S INVESTIGATION. THIS SUGGESTS THAT YOUR CURRENT CLAIM IS FALSE AND FRAUDULENT AND THAT ANY COURT ACTION BASED THEREON WOULD RESULT IN A FORFEITURE OF THE CLAIM TO THE UNITED STATES, 28 U.S.C. 2514. MOREOVER, YOUR ATTENTION IS INVITED TO 31 U.S.C. 231-235. CONSIDERING SUCH STATUTES, YOUR CLAIM IS ENTIRELY TOO DOUBTFUL TO WARRANT OUR SURRENDERING THE FUNDS TO YOU. IN THIS CONNECTION SEE LONGWILL V. UNITED STATES, 17 C.CLS. 288, 291, WHEREIN THE COURT SAID:

"THE ACCOUNTING OFFICERS OF THE TREASURY (NOW THE GENERAL ACCOUNTING OFFICE) ARE IN DUTY BOUND TO SCRUTINIZE CLAIMS AND ACCOUNTS WITH GREAT CARE, AS IS THEIR CUSTOM; AND IT IS THE UNDOUBTED RIGHT AND DUTY OF THE COMPTROLLERS * * * WHO ALONE OF THE ACCOUNTING OFFICERS HAVE AUTHORITY TO DECIDE THEREON, TO REJECT, IN WHOLE OR IN PART, AS THEIR JUDGMENT DICTATES, ALL THOSE CLAIMS WHICH THEY HAVE REASONABLE CAUSE TO SUSPECT TO BE TAINTED WITH FRAUD, OR TO WHICH THEY BELIEVE THERE MAY BE SUBSTANTIAL DEFENSES IN LAW, OR AS TO THE VALIDITY OF WHICH THEY ARE IN DOUBT.'

ALSO, THE COURT OF CLAIMS IN CHARLES V. UNITED STATES, 19 C.CLS. 316, 319, STATED THAT---

"WHEN, IN THE COURSE OF THE EXAMINATION OF ACCOUNTS IN THE DEPARTMENTS, SUSPICIONS ARE AROUSED OR DOUBTS ARE ENTERTAINED AS TO THE VALIDITY OF THE DEMANDS OF CLAIMANTS, THE PARTIES MAY BE SENT TO THIS COURT TO PROVE THEIR CASES UNDER THE RULES AND FORMS OF LAW, UPON LEGAL AND COMPETENT EVIDENCE, OR THEIR DEMANDS MAY BE REJECTED ALTOGETHER, LEAVING THE CLAIMANTS TO PROSECUTE THEM HERE UPON THEIR VOLUNTARY PETITIONS, IF THEY SO DESIRE. THAT IS THE MAIN PROTECTION WHICH THE ACCOUNTING OFFICERS CAN SECURE FOR THEMSELVES AND FOR THE GOVERNMENT IN THE CASE OF CLAIMS OF DOUBTFUL VALIDITY IN FACT OR IN LAW AND ESPECIALLY OF CLAIMS AS TO WHICH THERE IS A REASONABLE SUSPICION OF FRAUD, IRREGULARITY, OR ERROR.'

ACCORDINGLY, WE HAVE NO ALTERNATIVE BUT TO SUSTAIN THE DISALLOWANCE OF YOUR CLAIM.