B-179701, MAR 22, 1974, 53 COMP GEN 693

B-179701: Mar 22, 1974

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WHICH IS TREATED AS A FINE UNDER 19 U.S.C. 1619. IS NOT AUTHORIZED UNDER SECTION 511(D) OF THE ACT. 1974: THIS DECISION TO THE SECRETARY OF THE TREASURY IS IN RESPONSE TO THE REQUEST BY THE ASSISTANT SECRETARY OF THE TREASURY FOR ENFORCEMENT. THE CUSTOMS SERVICE IS AUTHORIZED TO MAKE PAYMENTS TO INFORMERS IN CUSTOMS AND NAVIGATION CASES UNDER 19 U.S.C. 1619. OR ALLEGED TO HAVE BEEN INCURRED. THE SPECIFIC QUESTION PRESENTED IS WHETHER THE OMISSION IN SECTION 511(D) OF THE DRUG ABUSE ACT OF ANY REFERENCE TO FINES AND PENALTIES PRECLUDES THE CUSTOMS SERVICE FROM MAKING AWARDS ON THE BASIS OF AMOUNTS RECOVERED AS FINES. PENALTIES OR BAIL BONDS FORFEITED BY SUSPECTS WHO ARE APPREHENDED BY CUSTOMS OFFICERS BUT ARE CHARGED WITH VIOLATIONS OF THE DRUG ABUSE ACT.

B-179701, MAR 22, 1974, 53 COMP GEN 693

AWARDS - INFORMERS - VIOLATIONS OF CUSTOMS LAWS - COMPREHENSIVE DRUG ABUSE PREVENTION AND CONTROL ACT SINCE SECTION 511(D) OF THE COMPREHENSIVE DRUG ABUSE PREVENTION AND CONTROL ACT INCORPORATES 19 U.S.C. 1619 ONLY IN CONNECTION WITH FORFEITURES OF PROPERTY, PAYMENT TO AN INFORMER ON THE BASIS OF A FORFEITED BAIL BOND, WHICH IS TREATED AS A FINE UNDER 19 U.S.C. 1619, IS NOT AUTHORIZED UNDER SECTION 511(D) OF THE ACT. HOWEVER, SECTION 516(A) OF THE ACT, WHICH AUTHORIZES PAYMENTS TO INFORMERS BY THE ATTORNEY GENERAL, APPEARS APPLICABLE.

IN THE MATTER OF PAYMENTS TO INFORMERS, MARCH 22, 1974:

THIS DECISION TO THE SECRETARY OF THE TREASURY IS IN RESPONSE TO THE REQUEST BY THE ASSISTANT SECRETARY OF THE TREASURY FOR ENFORCEMENT, TARIFF AND TRADE AFFAIRS, AND OPERATIONS (REFERENCE: ENF-2-02 CC JR). THE QUESTION CONCERNS THE LEGAL AUTHORITY OF THE UNITED STATES CUSTOMS SERVICE TO MAKE AN AWARD OF COMPENSATION TO AN INFORMER WHO FURNISHES ORIGINAL INFORMATION WHICH LEADS TO A RECOVERY OF FINES, PENALTIES OR FORFEITED BAIL BONDS, ARISING OUT OF THE DETECTION AND APPREHENSION BY CUSTOMS OFFICERS OF INDIVIDUALS CHARGED WITH VIOLATIONS OF THE COMPREHENSIVE DRUG ABUSE PREVENTION AND CONTROL ACT OF 1970, APPROVED OCTOBER 27, 1970, PUBLIC LAW 91-513, 21 U.S.C. 801 ET SEQ., (HEREAFTER REFERRED TO AS THE DRUG ABUSE ACT).

THE CUSTOMS SERVICE IS AUTHORIZED TO MAKE PAYMENTS TO INFORMERS IN CUSTOMS AND NAVIGATION CASES UNDER 19 U.S.C. 1619, WHICH PROVIDES IN PART:

ANY PERSON *** WHO FURNISHES TO A UNITED STATES ATTORNEY, TO THE SECRETARY OF THE TREASURY, OR TO ANY CUSTOMS OFFICER ORIGINAL INFORMATION CONCERNING ANY FRAUD UPON THE CUSTOMS REVENUE, OR A VIOLATION OF THE CUSTOMS LAWS OR THE NAVIGATION LAWS, PERPETRATED OR CONTEMPLATED, WHICH *** INFORMATION LEADS TO A RECOVERY OF ANY DUTIES WITHHELD, OR OF ANY FINE, PENALTY, OF FORFEITURE INCURRED, MAY BE AWARDED AND PAID BY THE SECRETARY OF THE TREASURY A COMPENSATION OF 25 PER CENTUM OF THE NET AMOUNT RECOVERED, BUT NOT TO EXCEED $50,000 IN ANY CASE, WHICH SHALL BE PAID OUT OF ANY APPROPRIATIONS AVAILABLE FOR THE COLLECTION OF THE REVENUE FROM CUSTOMS. FOR THE PURPOSES OF THIS SECTION AN AMOUNT RECOVERED UNDER A BAIL BOND SHALL BE DEEMED A RECOVERY OF A FINE INCURRED. ***.

SECTION 511(D) OF THE DRUG ABUSE ACT, 21 U.S.C. 881(D), PROVIDES IN PART, QUOTING FROM THE ACT:

ALL PROVISIONS OF LAW RELATING TO THE SEIZURE, SUMMARY AND JUDICIAL FORFEITURE, AND CONDEMNATION OF PROPERTY FOR VIOLATION OF THE CUSTOMS LAWS; THE DISPOSITION OF SUCH PROPERTY OR THE PROCEEDS FROM THE SALE THEREOF; THE REMISSION OR MITIGATION OF SUCH FORFEITURES; AND THE COMPROMISE OF CLAIMS AND THE AWARD OF COMPENSATION TO INFORMERS IN RESPECT OF SUCH FORFEITURES SHALL APPLY TO SEIZURES AND FORFEITURES INCURRED, OR ALLEGED TO HAVE BEEN INCURRED, UNDER THE PROVISIONS OF THIS TITLE, INSOFAR AS APPLICABLE AND NOT INCONSISTENT WITH THE PROVISIONS HEREOF ***.

THE SPECIFIC QUESTION PRESENTED IS WHETHER THE OMISSION IN SECTION 511(D) OF THE DRUG ABUSE ACT OF ANY REFERENCE TO FINES AND PENALTIES PRECLUDES THE CUSTOMS SERVICE FROM MAKING AWARDS ON THE BASIS OF AMOUNTS RECOVERED AS FINES, PENALTIES OR BAIL BONDS FORFEITED BY SUSPECTS WHO ARE APPREHENDED BY CUSTOMS OFFICERS BUT ARE CHARGED WITH VIOLATIONS OF THE DRUG ABUSE ACT.

IN THE CASE WHICH GIVES RISE TO THIS QUESTION, AN INFORMER FURNISHED CUSTOMS OFFICERS WITH ORIGINAL INFORMATION WHICH RESULTED, AFTER INVESTIGATION BY CUSTOMS OFFICERS, IN THE APPREHENSION OF SEVERAL INDIVIDUALS AND THEIR SUBSEQUENT INDICTMENT UNDER VARIOUS PROVISIONS OF THE DRUG ABUSE ACT. ONE INDIVIDUAL WAS RELEASED FROM CUSTODY AFTER POSTING A $50,000 CASH BOND. WHEN THIS INDIVIDUAL FAILED TO APPEAR FOR TRIAL, THE $50,000 WAS DECLARED FORFEITED AND PAID OVER TO THE UNITED STATES TREASURY. THE INFORMER LATER SUBMITTED A CLAIM FOR AN AWARD BASED ON RECOVERY BY THE GOVERNMENT OF THE FORFEITED BAIL BOND. THERE WERE NO SEIZURES OF PROPERTY INVOLVED IN THE CASE, BUT IT IS STATED THAT THERE MAY BE ADDITIONAL RECOVERIES OF FINES AND PENALTIES ASSESSED AGAINST THE OTHER INDIVIDUALS.

THE ASSISTANT SECRETARY STATES:

IF THE INDICTMENTS HAD CHARGED VIOLATIONS OF THE CUSTOMS LAWS, THE UNITED STATES CUSTOMS SERVICE WOULD CLEARLY BE WITHIN ITS STATUTORY AUTHORITY UNDER 19 U.S.C. 1619 TO MAKE PAYMENT OF THE INFORMANT'S CLAIM OF 25 PERCENT OF THE $50,000 IN FORFEITED BAIL RECOVERED BY THE GOVERNMENT IF THE CLAIM IS OTHERWISE SUBSTANTIATED AS REQUIRED BY LAW. WE DO NOT BELIEVE THAT THE CONGRESS, IN ENACTING 21 U.S.C. 881(D), INTENDED TO EXEMPT THE CATEGORY OF FINES AND PENALTIES, INCLUDING BAIL FORFEITURES FROM THOSE RECOVERIES UNDER THE DRUG LAWS FROM WHICH PAYMENTS TO INFORMERS MAY BE MADE BY CUSTOMS. HOWEVER, DESPITE THIS BELIEF THAT THE OMISSION OF ANY REFERENCE TO FINES AND PENALTIES IN SECTION 881(D) WAS A LEGISLATIVE DRAFTING OVER-SIGHT AND THAT CONGRESS INTENDED THE SECTION TO INCORPORATE AND COVER THE ENTIRE SCOPE OF 19 U.S.C. 1619, WE NEVERTHELESS HAVE FOUND NOTHING EITHER IN THE RELEVANT LEGISLATIVE HISTORY OF THE COMPREHENSIVE DRUG ABUSE PREVENTION AND CONTROL ACT OF 1970 *** OR IN ANY CASE LAW WHICH WOULD SUPPORT THIS INTERPRETATION OF THE INTENDED THRUST OF 21 U.S.C. 881(D). IN VIEW OF THIS LACK OF SUPPORT AND IN LIGHT OF THE POTENTIALLY LARGE AMOUNTS OF AWARDS INVOLVED IN SUCH CASES, WE RESPECTFULLY ASK YOUR OPINION AS TO OUR AUTHORITY TO CONSIDER AND PAY THE CLAIM OF THE INFORMANT IN THIS CASE, AND OUR AUTHORITY AS TO SIMILAR CLAIMS IN THE FUTURE.

WHILE WE ARE ALSO UNAWARE OF ANYTHING IN THE LEGISLATIVE HISTORY OR ANY OTHER AUTHORITY DIRECTLY ON POINT, WE CANNOT AGREE WITH THE CONCLUSION THAT THE ABSENCE OF ANY REFERENCE IN SECTION 511(D) OF THE DRUG ABUSE ACT TO FINES OR PENALTIES IS AN UNINTENDED DRAFTING OVERSIGHT. ON THE CONTRARY, SINCE SECTION 511(D) - AND, IN FACT, SECTION 511 (2 U.S.C. 881) AS A WHOLE - IS CONCERNED WITH SEIZURES, FORFEITURES AND DISPOSITION OF PROPERTY, THE MATTER OF FINES OR PENALTIES HAS NOT APPARENT APPLICATION UNDER THESE PROVISIONS. A RECOVERY UNDER A FORFEITED BAIL BOND IS, OF COURSE, TREATED AS A FINE UNDER 19 U.S.C. 1619.

FURTHER DOUBT CONCERNING THE POSSIBILITY OF A DRAFTING OVERSIGHT ARISES IN VIEW OF THE FACT THAT SECTION 511(D) OF THE DRUG ABUSE ACT IS SIMILAR TO, AND IN ALL LIKELIHOOD PATTERNED UPON, SEVERAL OTHER STATUTORY PROVISIONS WHICH INCORPORATE PROVISIONS OF THE CUSTOMS LAWS, INCLUDING THOSE RELATING TO INFORMER PAYMENTS, ALL WITH REFERENCE TO FORFEITURES OF PROPERTY. SEE 18 U.S.C. 1963(C) (RACKETEER INFLUENCED AND CORRUPT ORGANIZATIONS); 18 U.S.C. 2513 (CONFISCATION OF WIRE OR ORAL COMMUNICATION INTERCEPTING DEVICES); 22 U.S.C. 401(B) (ILLEGAL EXPORTATION OF WAR MATERIALS); 49 U.S.C. 784 (SEIZURE AND FORFEITURE OF CARRIERS TRANSPORTING CONTRABAND ARTICLES).

FOR THE REASONS STATED HEREIN, WE MUST CONCLUDE THAT THE PAYMENTS PROPOSED IN THE INSTANT CIRCUMSTANCES ARE NOT AUTHORIZED BY SECTION 511(D) OF THE DRUG ABUSE ACT. AT THE SAME TIME, WE NOTE THAT SECTION 516(A) OF THE ACT, 21 U.S.C. 886(A), AUTHORIZES THE ATTORNEY GENERAL TO MAKE PAYMENTS FOR INFORMATION CONCERNING VIOLATIONS OF THE ACT IN SUCH SUMS AS HE DEEMS APPROPRIATE. IT APPEARS THAT THIS AUTHORITY WOULD APPLY IN THE INSTANT CIRCUMSTANCES.