B-201150, JUL 11, 1983

B-201150, JUL 11, 1983

DIGEST: IN ACCORD WITH THE DIFFICULTY OF PROVIDING SUPPORTING EVIDENCE IN CHINA CLAIMS PROGRAM CASES, DIRECT STATEMENTS OF CLAIMANT AND CLAIMANT'S SISTER TOGETHER WITH CIRCUMSTANTIAL EVIDENCE PROVIDE A SUFFICIENT BASIS FOR OUR FINDING THAT CLAIMANT HELD AMERICAN CLUB DEBENTURES AMOUNTING TO CN$55,000, AND THEREBY, IS ENTITLED TO A SHARE OF THE PROCEEDS OF THE FOREIGN CLAIMS SETTLEMENT COMMISSION AWARD TO THE AMERICAN CLUB, INC., DISCUSSED IN B-201150, MAY 13, AND DECEMBER 1, 1981.

RECONSIDERATION OF MR. THEODORE OKOUNE'S CLAIM TO PART OF THE PROCEEDS OF AMERICAN CLUB AWARD:

THE TREASURY DEPARTMENT ASKS FOR RECONSIDERATION OF B-201150, JANUARY 18, 1983, IN WHICH WE FOUND THAT MR. THEODORE OKOUNE WAS NOT ENTITLED TO A SHARE OF THE FOREIGN CLAIMS SETTLEMENT COMMISSION AWARD TO THE AMERICAN CLUB, INC., DISCUSSED IN B-201150, MAY 13, AND DECEMBER 1, 1981. BASED ON THE ADDITIONAL MATERIAL PRESENTED, WE NOW FIND THAT MR. OKOUNE IS ENTITLED TO A PART OF THE PROCEEDS OF THAT AWARD PROPORTIONATE TO HIS AMERICAN CLUB DEBENTURE HOLDINGS IN THE AMOUNT OF CN$55,000 (CN: CHINESE TAELS)

BACKGROUND

IN B-201150, JANUARY 18, 1983, AS SUPPORT FOR HIS CLAIM, MR. OKOUNE SUBMITTED TO TREASURY AFFIDAVITS OF MS. JOSEPHINE OKOUNE, HIS WIFE, AND MR. ROBERT SALTZER, A FRIEND. IN ESSENCE, MS. OKOUNE STATED THAT MR. OKOUNE'S FATHER, MR. ABRAHAM OKOUNE, HAD GIVEN THEM CN$55,000 WORTH OF DEBENTURES AS A WEDDING ANNIVERSARY GIFT. MR. SALTZER ASSERTED THAT HE REMEMBERED MR. OKOUNE MENTIONING (1) THAT MR. OKOUNE HAD SENT HIS AMERICAN CLUB BONDS TO THE FRENCH GOVERNMENT, BUT THAT HE WAS NEITHER REIMBURSED NOR WAS ABLE TO HAVE THE BONDS RETURNED; AND (2) THAT HIS SISTER, MS. ISABELLE O. ALCONE, HELD THE SAME AMOUNT OF BONDS. FN1

TO CORROBORATE MR. OKOUNE'S ASSERTIONS WE COMMUNICATED WITH MR. NORWOOD F. ALLMAN, FORMER PRESIDENT AND MEMBER OF THE BOARD OF DIRECTORS OF THE AMERICAN CLUB, AND BOTH TRUSTEE ON ALL AMERICAN CLUB DEBENTURES SUBMITTED TO TREASURY AND FOR THE CLUB DURING THE FOREIGN CLAIMS SETTLEMENT COMMISSION PROCEEDING. ALTHOUGH MR. ALLMAN APPARENTLY DID NOT KNOW MR. OKOUNE, HE ASSUMED MR. OKOUNE HELD DEBENTURES BUT WAS UNCERTAIN OF THE AMOUNT. MR. ALLMAN BASED HIS CONCLUSION ON (1) THE NAMES OF THE FIRM OKOUNE, ALCONE AND CO. AND MR. T. OKOUNE APPEARING ON A LIST OF AMERICANS IN CHINA PUBLISHED IN SHANGHAI IN 1946; (2) THE AMERICAN CLUB BEING A FAVORITE GATHERING PLACE FOR AMERICANS IN SHANGHAI AND THAT PRACTICALLY ALL AMERICANS THERE WERE MEMBERS; AND (3) IT BEING AN UNWRITTEN RULE THAT AMERICAN CLUB MEMBERS BUY DEBENTURES. IN LIGHT OF THE ABOVE, WE CONCLUDED THAT THE STATEMENTS OF MR. OKOUNE, MR. SALTZER AND MR. ALLMAN DID NOT PROVIDE SUFFICIENT CORROBORATION OF MR. OKOUNE'S CLAIM.

TREASURY HAS NOW SUBMITTED TO US AFFIDAVITS OF MS. ISABELLE O. ALCONE, MR. E. XENIDES, AND THOSE OF SEVERAL INDIVIDUALS WHO KNEW THE OKOUNE FAMILY IN HARBIN, CHINA. IN HER AFFIDAVIT IN SUPPORT OF MR. OKOUNE'S CLAIM, MS. ALCONE STATES THAT AS CO-CHAIRMAN OF THE AMERICAN COMMITTEE FOR CHINA CLAIMS SHE TOLD THE TREASURY DEPARTMENT THAT HER BROTHER, THEODORE OKOUNE, WAS ONE OF THREE AMERICAN CLUB DEBENTURE HOLDERS SHE KNEW OF. SHE DID NOT NOTIFY HIM ABOUT THE POSSIBILITY OF HIS HAVING A CLAIM, HOWEVER, BECAUSE SHE THOUGHT HIS FRENCH CITIZENSHIP WOULD BAR HIS RECOVERING. SHE ALSO SAYS THAT SHE AND HER BROTHER WERE ALWAYS EQUAL PARTNERS IN EVERYTHING THEIR FATHER, MR. ABRAHAM OKOUNE, BEQUEATHED TO THEM. MR. XENIDES' STATEMENT CORROBORATES MS. ALCONE'S ASSERTION THAT SHE DID NOT THINK HER BROTHER COULD RECOVER ON THE CLAIM BECAUSE OF HIS FRENCH CITIZENSHIP. THE OTHER AFFIDAVITS SUBMITTED BY TREASURY SUGGEST THAT ABRAHAM OKOUNE WAS ONE OF THE WEALTHIEST AMERICANS IN HARBIN, CHINA BEFORE WORLD WAR II, AND THAT AFTER HIS SEPARATION FROM HIS WIFE, ON VARIOUS OCCASIONS HE PUBLICLY ANNOUNCED (1) THAT HE WOULD LEAVE EVERYTHING TO HIS TWO CHILDREN; AND, SUBSEQUENTLY (2) THAT HE HAD CAUSED HIS PROPERTIES TO BE GIVEN TO THEM.

AS A GENERAL RULE, THIS OFFICE REQUIRES THAT ALL CLAIMS AGAINST THE UNITED STATES BE SUPPORTED BY THE BEST EVIDENCE OBTAINABLE. 55 COMP.GEN. 402, 404 (1975). AT THE SAME TIME, WHEN UNUSUAL CIRCUMSTANCES MAKE THE PRESENTATION IMPOSSIBLE OR IMPRACTICAL WE HAVE EXERCISED OUR DISCRETION IN ESTABLISHING THE QUANTUM OF EVIDENCE NECESSARY TO CERTIFY A CLAIM. B-201150, MAY 13, 1981, WE RECOGNIZED THE DIFFICULTY IN PROVIDING SUPPORTING EVIDENCE IN CHINA CLAIMS PROGRAM CASES, AND INDICATED WE WOULD CONSIDER SECONDARY EVIDENCE OR OTHER PERTINENT DATA.

BASED ON THESE PRINCIPLES, WE THINK THE ADDITIONAL STATEMENTS SUBMITTED BY TREASURY DO PROVIDE SUFFICIENT CORROBORATION OF THE EVIDENCE DISCUSSED IN B-201150, JANUARY 18, 1983, FOR US TO CONCLUDE THAT MR. OKOUNE DID HOLD AMERICAN CLUB DEBENTURES IN THE AMOUNT OF CN$55,000. OUR CONCLUSION IS BASED BOTH ON THE DIRECT STATEMENTS OF MR. OKOUNE AND MS. ALCONE, CORROBORATED BY MS. OKOUNE, MR. SALTZER AND MR. XENIDES, AND THE CIRCUMSTANTIAL EVIDENCE PRESENTED. AS REGARDS THE LATTER, WE THINK THE STATEMENTS ABOUT MR. ABRAHAM OKOUNE'S WEALTH AND HIS PUBLICLY ANNOUNCED INTENTION TO LEAVE EVERYTHING TO MR. OKOUNE AND MS. ALCONE, AND LATER, TO HIS HAVING DONE SO, TOGETHER WITH MR. ALLMAN'S INFORMATION, DO PROVIDE CIRCUMSTANTIAL SUPPORT TO THE DIRECT ASSERTIONS THAT MR. OKOUNE HELD CN$55,000 WORTH OF AMERICAN CLUB DEBENTURES.

THUS, WE FIND THAT MR. OKOUNE IS ENTITLED TO A PART OF THE PROCEEDS OF THE FOREIGN CLAIMS SETTLEMENT COMMISSION AWARD TO THE AMERICAN CLUB, INC., PROPORTIONATE TO HIS CN$55,000 HOLDINGS. AS WAS THE CASE WITH THE CLAIMS APPROVED IN OUR MAY 13 AND DECEMBER 1 DECISION, MR. OKOUNE SHOULD BE REQUIRED, AS A CONDITION OF PAYMENT, TO SIGN AN AGREEMENT PROVIDING THAT HE AND HIS HEIRS WILL REIMBURSE AND HOLD THE UNITED STATES HARMLESS SHOULD A LOST DEBENTURE BE PRESENTED AND PAID.

FN1 IN B-201150, DECEMBER 1, 1981, WE FOUND THAT AN AWARD COULD BE MADE TO MS. ALCONE PROPORTIONATE TO HER CLAIMED OWNERSHIP OF $55,000 WORTH OF AMERICAN CLUB DEBENTURES. OUR FINDING WAS BASED ON HER ASSERTIONS, THAT OF HER FRIEND, MR. E. XENIDES, WHO STATED THAT MS. ALCONE AND HER HUSBAND HAD SHOWN HIM SOME SHANGHAI AMERICAN CLUB BONDS VALUED AT BETWEEN $55,000 AND $75,000; AND THAT OF MR. NORWOOD ALLMAN, WHO SAID THAT HE WAS REASONABLY CERTAIN THAT MS. ALCONE WAS A DEBENTURE HOLDER. ABOUT MR. ABRAHAM OKOUNE'S WEALTH AND HIS PUBLICLY ANNOUNCED INTENTION TO LEAVE EVERYTHING TO MR. OKOUNE AND MS. ALCONE, AND LATER, TO HIS HAVING DONE SO, TOGETHER WITH MR. ALLMAN'S