B-140635, OCT. 16, 1959

B-140635: Oct 16, 1959

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THE ADMINISTRATIVE ASSISTANT SECRETARY REQUESTED OUR ADVICE IN DETERMINING THE PROPER AMOUNT OF A CLAIM TO BE RECORDED AGAINST A FORMER SEASONAL PARK RANGER AT YELLOWSTONE NATIONAL PARK WHO WAS CONVICTED OF EMBEZZLEMENT FOR THE RECALLING OF PARK ENTRANCE PERMITS AND CONVERTING THE PROCEEDS OF SUCH SALES TO HIS OWN USE. HE WAS COVERED UNDER THE DEPARTMENT'S POSITION SCHEDULE BOND IN THE PENAL SUM OF $5. IT WAS DECIDED TO CHECK HIS OPERATIONS. A ROAD BLOCK WAS SET UP WITHIN THE PARK ABOUT TWO MILES FROM THE SOUTH ENTRANCE. A PASSENGER CAR WAS STOPPED AND THE DRIVER DISPLAYED A PERMIT BEARING AN IDENTIFICATION NUMBER NOT INCLUDED IN THE SERIES ISSUED TO THE SOUTH ENTRANCE. HE WAS RELIEVED FROM DUTY AND PLACED UNDER ARREST.

B-140635, OCT. 16, 1959

TO THE SECRETARY OF THE INTERIOR:

ON AUGUST 27, 1959, THE ADMINISTRATIVE ASSISTANT SECRETARY REQUESTED OUR ADVICE IN DETERMINING THE PROPER AMOUNT OF A CLAIM TO BE RECORDED AGAINST A FORMER SEASONAL PARK RANGER AT YELLOWSTONE NATIONAL PARK WHO WAS CONVICTED OF EMBEZZLEMENT FOR THE RECALLING OF PARK ENTRANCE PERMITS AND CONVERTING THE PROCEEDS OF SUCH SALES TO HIS OWN USE.

THE RANGER ENTERED ON DUTY ON JULY 14, 1958. HE WAS COVERED UNDER THE DEPARTMENT'S POSITION SCHEDULE BOND IN THE PENAL SUM OF $5,000 AS A COLLECTION OFFICER. HIS DUTIES INCLUDED THE SELLING OF 15-DAY AUTOMOBILE PERMITS AT THE SOUTH ENTRANCE. DURING THE LATTER PART OF AUGUST 1958, HIS FELLOW EMPLOYEES AND SUPERVISORS BECAME SUSPICIOUS OF HIS ACTIONS. NOT ONLY DID HE APPEAR TO BE SELLING LESS AUTOMOBILE PERMITS THAN OTHER SIMILARLY SITUATED RANGERS BUT, HAVING REPORTED FOR DUTY WITH ONLY $10 IN FUNDS, HE HAD QUICKLY BLOSSOMED FORTH INTO A CONDITION OF AFFLUENCE, INVESTING HEAVILY IN EXPENSIVE PHOTOGRAPHIC, MOUNTAINEERING, AND ROCK- CLIMBING EQUIPMENT. IT WAS DECIDED TO CHECK HIS OPERATIONS.

ON AUGUST 28, 1958, A ROAD BLOCK WAS SET UP WITHIN THE PARK ABOUT TWO MILES FROM THE SOUTH ENTRANCE. A PASSENGER CAR WAS STOPPED AND THE DRIVER DISPLAYED A PERMIT BEARING AN IDENTIFICATION NUMBER NOT INCLUDED IN THE SERIES ISSUED TO THE SOUTH ENTRANCE. THE DRIVER AND HIS WIFE STATED THAT THEY HAD PAID THREE DOLLARS FOR THE PERMIT AT SOUTH ENTRANCE A FEW MINUTES PREVIOUSLY. AT THE ENTRANCE STATION THE DRIVER AND HIS WIFE FORMALLY IDENTIFIED THE EMPLOYEE UNDER SUSPICION AS THE RANGER WHO HAD SOLD THEM THE PERMIT IN QUESTION. THEREUPON, HE WAS RELIEVED FROM DUTY AND PLACED UNDER ARREST. A STATION AUDIT DISCLOSED NO IRREGULARITIES IN HIS ACCOUNTS. HOWEVER, A SEARCH OF HIS PERSON REVEALED 21 PREVIOUSLY ISSUED YELLOWSTONE NATIONAL PARK AUTOMOBILE PERMITS WHICH HAD BEEN ALTERED BY THE ERADICATION OF THE ORIGINAL EXPIRATION DATE, ENTRANCE DESIGNATION, AND THE LICENSE NUMBER AND STATE OF THE ORIGINAL VEHICLE AND RE-STAMPED TO INDICATE A NEW EXPIRATION DATE AND POINT OF PARK ENTRY.

ON AUGUST 29, 1958, THE RANGER ADMITTED THAT HE HAD ILLEGALLY SOLD FOUR PARK PERMITS AT $3 EACH, TOTALING $12, DURING THE COURSE OF HIS EMPLOYMENT, TWO PERMITS SHORTLY AFTER BECOMING EMPLOYED, AND THE REMAINING TWO ON THE DATE OF HIS ARREST. ON SEPTEMBER 3, 1958, HE PLEADED GUILTY TO THE CHARGE OF EMBEZZLEMENT IN THE UNITED STATES DISTRICT COURT AT CHEYENNE, WYOMING. ON OCTOBER 24, 1958, HAVING BEEN CONVICTED HE WAS SENTENCED TO ONE YEAR IN PRISON, AND AT THE SAME TIME, THE PENALTY WAS SUSPENDED AND HE WAS PLACED ON PROBATION. THE CONVICTION APPEARS TO HAVE BEEN BASED ON A SINGLE PERMIT SALES TRANSACTION IN THE AMOUNT OF $3.

AT THE TIME OF THE EMPLOYEE'S ARREST, HE CLAIMED THAT $18 IN CURRENCY FOUND WITHIN HIS WALLET COMPRISED ALL OF HIS PERSONAL FUNDS. HOWEVER, A MORE COMPLETE SEARCH DISCLOSED AN ADDITIONAL $20. ALSO, IT IS REPORTED THAT A PACKET OF $20 BILLS TOTALING $400 WAS CONCEALED IN THE TRUNK OF HIS CAR FOLLOWING HIS ARREST. HE HAD ALSO ACQUIRED DURING HIS EMPLOYMENT A LARGE QUANTITY OF NEW PHOTOGRAPHIC, SPORTING, CAMPING, MOUNTAINEERING, AND ROCK-CLIMBING EQUIPMENT, REPRESENTING A VALUE OF AT LEAST $500. HE, ALSO, CLAIMED TO FELLOW EMPLOYEES SHORTLY PRIOR TO HIS ARREST THAT HE HAD SENT HOME ONE OR TWO PAY CHECKS, WHICH WOULD HAVE AMOUNTED TO $119 EACH. PARK AUTHORITIES ARE PRESENTLY WITHHOLDING A PAYROLL CHECK FROM HIM IN THE AMOUNT OF $119. THIS CHECK REPRESENTS THE PAY PERIOD AUGUST 10, THROUGH AUGUST 23, 1958. IT IS REPORTED THAT HE IS ATTEMPTING TO RECOVER THIS CHECK ON THE PREMISE THAT THE UNITED STATES HAS PROVED IN THE CRIMINAL ACTION ONLY THAT HE EMBEZZLED A SINGLE PERMIT VALUED AT $3.

IT IS THE VIEW OF THE NATIONAL PARK SERVICE THAT THE EMPLOYEE'S PECULATIONS INVOLVED MUCH MORE THAN THE ADMITTED MISAPPROPRIATION OF $12. THE SERVICE HAS VERY CAREFULLY RECONSTRUCTED ITS RECORDS IN ORDER TO ESTABLISH THE LOSS IN REVENUE SUFFERED BY THE UNITED STATES. TO SUCH END A STATISTICAL ANALYSIS AND STUDY WAS MADE OF THE SALES PATTERN OF INDIVIDUALS EMPLOYED AT THE SOUTH ENTRANCE TO THE PARK. THROUGH THE USE THEREOF AN ESTIMATE OF THE GOVERNMENT'S TOTAL LOSS WAS MADE. WHILE THE EMBEZZLER WORKED A TOTAL OF 32 PERIODS, ONLY THE 7 PERIODS DURING WHICH HE WORKED ON THE 4:00 P.M. TO 12:00 MIDNIGHT SHIFTS WERE USED AS THE BASIS FOR THE COMPUTATION IN ORDER TO MINIMIZE THE INEQUALITIES OF INFLUENCING FACTORS. ON SUCH BASIS THE SERVICE CONCLUDED THAT THE UNITED STATES HAD BEEN DEFRAUDED OF $704.60 DURING THE 7 PERIODS IN QUESTION AND ESTIMATED THAT THE PROJECTION OF SUCH LOSS TO ALL OF THE 32 PERIODS THAT THE EMBEZZLER WORKED AMOUNTED TO $3,942. THE NATIONAL PARK SERVICE RECOMMENDED THAT CIVIL REDRESS BE SOUGHT TO SATISFY THE FULL AMOUNT OF THE GOVERNMENT'S LOSS AND SUGGESTED THAT THE AMOUNT OF THE CLAIM BE BASED UPON THE PROJECTED ESTIMATE OF $3,942.

THE ADMINISTRATIVE ASSISTANT SECRETARY STATES THE POSITION OF THE DEPARTMENT OF THE INTERIOR AS FOLLOWS:

"WE FEEL THAT THERE IS STRONG PROBABILITY, AS THE PARK SERVICE SUGGESTS, THAT THE LOSSES SUSTAINED BY THE UNITED STATES WERE IN EXCESS OF THE AMOUNTS SUPPORTED BY DIRECT EVIDENCE. OF THE SEVERAL HYPOTHETICAL AMOUNTS COMPUTED BY THE PARK SERVICE FOR RECOVERY CONSIDERATION, WE CONSIDER THE AMOUNT OF $704.60 TO BE THE MOST DEFENSIBLE FOR RECOVERY PURPOSES. ON THE OTHER HAND, THIS DEPARTMENT HAS CUSTOMARILY LIMITED RECOVERIES ARISING FROM FINANCIAL IRREGULARITIES TO AN AMOUNT SUSCEPTIBLE TO POSITIVE PROOF. WERE THIS POLICY APPLIED HERE OUR MAXIMUM RECOVERY WOULD BE $12.00. EFFORT TO RECOVER ANY AMOUNT IN EXCESS THEREOF WOULD INVOLVE FACTORS OF PRESUMPTION AND WOULD BE CONTROVERSIAL. FOR THESE REASONS THE ADVICE OF YOUR OFFICE IS SOUGHT IN DETERMINING THE PROPER AMOUNT OF CLAIM TO BE RECORDED.'

THE ISSUE IN THIS CASE IS WHETHER THE CONFESSED EMBEZZLER (AND/OR HIS SURETY) IS TO BE RELIEVED OF THE CIVIL LIABILITY FOR HIS PECULATIONS MERELY BECAUSE THE NATURE OF HIS CRIME PRECLUDES THE PRESENTATION OF DIRECT EVIDENCE OF THE EXACT AMOUNT OF THE GOVERNMENT'S LOSS, EVEN THOUGH SUCH LOSS MAY BE ESTIMATED ON THE BASIS OF CIRCUMSTANTIAL EVIDENCE.

WHERE IT IS ESTABLISHED THAT DAMAGES HAVE BEEN SUSTAINED THE PARTY RESPONSIBLE THEREFOR MAY NOT COMPLAIN AS TO THE DIFFICULTY OF EXACT ASCERTAINMENT AND MEASUREMENT OF THE DAMAGES. EASTMAN KODAK CO. V. SOUTHERN PHOTO MATERIALS CO., 273 U.S. 359; BRINKS, INC. V. MOYT, 179 F.2D 355. TO PUT IT DIFFERENTLY, A DEFENDANT WHOSE WRONGFUL CONDUCT HAS RENDERED DIFFICULT THE ASCERTAINMENT OF THE PRECISE DAMAGES SUFFERED BY THE PLAINTIFF IS NOT ENTITLED TO COMPLAIN THAT THEY CANNOT BE MEASURED WITH THE SAME EXACTNESS AND PRECISION AS WOULD OTHERWISE BE POSSIBLE. PACKAGE CLOSURE CORPORATION V. SEABRIGHT COMPANY, 141 F.2D 972; FIRST- CITIZENS BANK AND TRUST CO. V. UNITED STATES, 76 F.SUPP. 250. ALSO, WHERE A DEFENDANT BY HIS OWN WRONG PREVENTS MORE PRECISE COMPUTATION OF DAMAGES, JUST AND REASONABLE ESTIMATES THEREOF BASED UPON RELEVANT DATE MAY BE USED. UNITED STATES V. AMERICAN PACKING CORP., 113 F.SUPP. 223. JUSTICE AND PUBLIC POLICY REQUIRE THAT A WRONGDOER SHALL BEAR THE RISK OF THE UNCERTAINTY WHICH HIS OWN WRONG HAS CREATED AND WHICH PREVENTS THE PRECISE COMPUTATION OF DAMAGES. BIGELOW V. RKO RADIO PICTURES, 327 U.S. 251.

SUCH DAMAGES, HOWEVER, MUST BE SUSCEPTIBLE OF ASCERTAINMENT BY REFERENCE TO SOME DEFINITE STANDARD, SUCH AS MARKET VALUE, ESTABLISHED EXPERIENCES, OR DIRECT INFLUENCE FROM KNOWN CIRCUMSTANCES. H. P. WATTS CO. V. AMERICAN BOND AND MORTGAGE CO., 166 N.E. 713.

THERE IS NO DOUBT HERE THAT THE EMBEZZLEMENT WAS COMMITTED; THE ONLY DOUBT IS TO THE EXTENT THEREOF. SUCH DOUBT IS THE DIRECT RESULT OF THE EMBEZZLER'S ACTIONS. FURTHERMORE, THE ESTIMATE OF A TOTAL LOSS TO THE UNITED STATES OF $3,942 APPEARS TO HAVE BEEN ARRIVED AT AFTER A VERY CAREFUL STUDY OF THE KNOWN CIRCUMSTANCES AND ESTABLISHED EXPERIENCE AT THE PARK, WITH THE SALES PATTERN OF INDIVIDUALS EMPLOYED AT THE SOUTH ENTRANCE OF THE PARK UTILIZED AS A RELIABLE STANDARD.

THE AMOUNT OF THE LOSS IN REVENUE SUFFERED BY THE UNITED STATES DUE TO THE EMPLOYEE'S PECULATIONS IS A MATTER PRIMARILY FOR DETERMINATION BY YOUR DEPARTMENT. AS INDICATED ABOVE, THE AMOUNT OF THE EMPLOYEE'S INDEBTEDNESS SHOULD NOT NECESSARILY BE LIMITED TO AN AMOUNT SUSCEPTIBLE TO POSITIVE PROOF WHICH WOULD BE $12 IN THIS CASE, BUT SHOULD BE DETERMINED IN THE LIGHT OF ALL AVAILABLE EVIDENCE, EITHER DIRECT OR CIRCUMSTANTIAL, IN AN AMOUNT WHICH YOU BELIEVE WILL ADEQUATELY PROTECT THE INTERESTS OF THE UNITED STATES. WE WOULD HAVE NO OBJECTION TO YOUR DETERMINATION UPON THE BASIS OF THE NATIONAL PARK SERVICE'S ANALYTICAL STUDY THAT THE EMPLOYEE IS INDEBTED TO THE UNITED STATES FOR ANY AMOUNT UP TO AND INCLUDING $3,942. SUCH DETERMINATION WOULD APPEAR TO ESTABLISH A PRIMA FACIE CASE SO THAT THE BURDEN WOULD BE UPON THE EMPLOYEE TO OVERCOME THE PRIMA FACIE CASE THUS ESTABLISHED.