B-113544, MARCH 24, 1953, 32 COMP. GEN. 405

B-113544, MARCH 24, 1953, 32 COMP. GEN. 405

REWARDS - INFORMERS - VIOLATIONS OF CUSTOMS AND NAVIGATION LAWS UNDER 19 U.S.C. 1619, WHICH PROVIDES FOR PAYMENT OF REWARDS TO INFORMERS OF VIOLATIONS OF THE CUSTOMS LAWS, PAYMENT OF INFORMERS' AWARDS IS AUTHORIZED ONLY IN CONNECTION WITH DETECTION AND SEIZURES OR INFORMATION ON VIOLATIONS OF THE CUSTOMS AND NAVIGATION LAWS WHICH LEAD TO A RECOVERY OF DUTIES, FINES, PENALTY OR FORFEITURE UNDER THOSE LAWS, SO THAT IF A RECOVERY IS EFFECTED BECAUSE OF VIOLATION OF CUSTOMS AND NAVIGATION LAWS AND SOME OTHER LAW AND THE AMOUNT OF RECOVERY UNDER THE CUSTOMS AND NAVIGATION LAWS CANNOT BE ASCERTAINED NO AWARD IS PAYABLE.

COMPTROLLER GENERAL WARREN TO THE SECRETARY OF THE TREASURY, MARCH 24, 1953:

REFERENCE IS MADE TO YOUR LETTER OF JANUARY 19, 1953, AND ENCLOSURES, REQUESTING TO BE ADVISED CONCERNING SEVERAL QUESTIONS RELATING TO THE PAYMENT OF AWARDS ARISING UNDER SECTION 619 OF THE TARIFF ACT OF 1930, AS AMENDED, 19 U.S.C. 1619.

THE QUESTIONS ARE SET FORTH IN YOUR LETTER AS FOLLOWS:

(A) IS A CONSPIRACY TO VIOLATE CUSTOMS LAWS AND OTHER LAWS "A VIOLATION OF THE CUSTOMS LAWS * * * PERPETRATED OR CONTEMPLATED?

(B) WHERE NO CONSPIRACY IS INVOLVED, BUT WHERE A FINE IS LEVIED FOR A VIOLATION OF A CUSTOMS LAW AND, LET US SAY, OF THE GOLD RESERVE ACT OF 1934, 48 STAT. 337, AS AMENDED, IS AN AWARD PAYABLE? * * *.

(C) IS AN AWARD PAYABLE WHERE A FORFEITURE, AS DISTINGUISHED FROM A FINE, IS BASED GENERALLY UPON A CUSTOMS LAW AND A STATUTE WHICH RELATES TO NEITHER CUSTOMS NOR NAVIGATION? IN THE PRESENT CASE THE LIBEL IS BASED UPON "THE PROVISIONS OF THE CUSTOMS LAWS OF THE UNITED STATES AND THE GOLD RESERVE ACT OF 1934," AND THE ORDER OF FORFEITURE, INCORPORATED THIS LANGUAGE BY REFERENCE.

(D)WHERE A BAIL BOND WAS GIVEN FOR THE DEFENDANT'S APPEARANCE TO ANSWER A NUMBER OF COUNTS BASED VARIOUSLY UPON CUSTOMS LAWS; WHERE ALL COUNTS WERE DISMISSED SAVE ONE DEALING WITH CUSTOMS LAWS AND ONE DEALING WITH A CONSPIRACY TO VIOLATE THE CUSTOMS LAWS AND OTHER STATUTES NOT MENTIONED IN SEC. 619; AND WHERE SUBSEQUENTLY THE DEFENDANT FAILED TO APPEAR AND RECOVERY WAS HAD ON THE BOND--- IN SUCH CASE MAY AN AWARD BE PAID?

SECTION 1619 OF TITLE 19, U.S.C. PROVIDES AS FOLLOWS:

ANY PERSON NOT AN OFFICER OF THE UNITED STATES WHO DETECTS AND SEIZES ANY VESSEL, VEHICLE, MERCHANDISE, OR BAGGAGE SUBJECT TO SEIZURE AND FORFEITURE UNDER THE CUSTOMS LAWS OR THE NAVIGATION LAWS, AND WHO REPORTS THE SAME TO AN OFFICER OF THE CUSTOMS, OR WHO FURNISHES TO A DISTRICT 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 LAW OR THE NAVIGATION LAWS, PERPETRATED OR CONTEMPLATED, WHICH DETECTION AND SEIZURE OF INFORMATION LEADS TO A RECOVERY OF ANY DUTIES WITHHELD, OR OF ANY FINE, PENALTY, OR FORFEITURE INCURRED, MAY BE AWARDED AND PAID BY THE SECRETARY OF THE TREASURY A COMPENSATION OF 25 PERCENTUM 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. IF ANY VESSEL, VEHICLE, MERCHANDISE, OR BAGGAGE IS FORFEITED TO THE UNITED STATES, AND IS THEREAFTER, IN LIEU OF SALE, DESTROYED UNDER THE CUSTOMS OR NAVIGATION LAWS OR DELIVERED TO ANY GOVERNMENTAL AGENCY FOR OFFICIAL USE, COMPENSATION OF 25 PERCENTUM OF THE APPRAISED VALUE THEREOF MAY BE AWARDED AND PAID BY THE SECRETARY OF THE TREASURY UNDER THE PROVISIONS OF THIS SECTION, BUT NOT TO EXCEED $50,000 IN ANY CASE.

IT APPEARS FROM THE ENCLOSURES WITH YOUR LETTER THAT, AS THE RESULT OF INFORMATION FURNISHED BY THE CLAIMANT, THREE PERSONS WERE INDICTED BY THE GRAND JURY ON FIVE COUNTS CHARGING SUCH PERSONS WITH ILLEGALLY IMPORTING A QUANTITY OF GOLD INTO THE UNITED STATES FROM MEXICO. TWO OF THE DEFENDANTS ENTERED A PLEA OF GUILTY TO THE FIRST AND SECOND COUNTS, WHEREUPON BY MOTION ON BEHALF OF THE GOVERNMENT THE REMAINING CHARGES WERE DISMISSED. THE FIRST COUNT OUTLINED A PLAN TO VIOLATE CUSTOMS LAWS AND OTHER LAWS AND SET FORTH CERTAIN SPECIFIC ACTS WHICH WERE ALLEGED TO CONSTITUTE A CONSPIRACY IN VIOLATION OF THE PROVISIONS OF 18 U.S.C. 1946 ED. 88 (NOW 18 U.S.C. SUPP. V. 371). THE SECOND COUNT CHARGED THE DEFENDANTS WITH ILLEGALLY IMPORTING THE GOLD IN VIOLATION OF SECTION 593 OF THE CUSTOMS ACT OF 1930, 19 U.S.C. 1946 ED. 1953 (PRESENTLY SET FORTH IN 18 U.S.C. SUPP. V. 545). THE TWO DEFENDANTS WERE GIVEN SUSPENDED PRISON SENTENCES AND EACH WAS FINED $1,000 ON COUNTS 1 AND 2. THE RECORD IS NOT ENTIRELY CLEAR WITH RESPECT TO THE THIRD DEFENDANT; HOWEVER, IT APPEARS FROM QUESTION (D) THAT ALL COUNTS EXCEPT 1 AND 2 WERE LIKEWISE DISMISSED AND THAT BECAUSE HE FAILED TO APPEAR IN COURT AT THE PROPER TIME THE UNITED STATES WAS AWARDED THE SUM OF $7,500, AND THE BAIL BOND IN THAT AMOUNT WAS RECOVERED BY THE UNITED STATES IN FULL AND FINAL SETTLEMENT OF THE JUDGMENT. THE RECORD ALSO DISCLOSES THAT, AS INDICATED IN QUESTION (C), A LIBEL WAS FILED AGAINST THE GOLD BASED UPON VIOLATIONS OF BOTH THE TARIFF ACT OF 1930 AND THE GOLD RESERVE ACT OF 1934, BOTH OF WHICH PROVIDE FOR A FORFEITURE OF THE MERCHANDISE, AND THE COURT ORDERED A FORFEITURE THEREOF IN ACCORDANCE WITH THE INFORMATION AND REASONS STATED IN THE LIBEL.

REFERENCE IS MADE IN YOUR LETTER TO TWO DECISIONS OF THIS OFFICE, 7 COMP. GEN. 337; A-34221, NOVEMBER 21, 1930; AND THE CASE OF WILSON, ET AL. V. UNITED STATES, 135 F.2D 1005. IN THE DECISION OF NOVEMBER 21, 1930, IT WAS HELD, IN EFFECT, THAT AN INFORMER WAS ENTITLED TO 25 PERCENT OF A FORFEITED BAIL BOND WHERE THE DEFENDANT WAS FOUND GUILTY OF VIOLATING THE CUSTOMS LAWS, ALTHOUGH THE INDICTMENT ALLEGED VIOLATION OF BOTH CUSTOMS AND NATIONAL PROHIBITION LAWS, WHERE THE VIOLATION OF THE NATIONAL PROHIBITION LAW WAS REPORTED NEVER TO HAVE BEEN SERIOUSLY CONSIDERED BY THE PROSECUTION NOR THE COURT AND THE COURT IN ITS CHARGE TO THE JURY STATED THE PROHIBITION ACT WAS NOT INVOLVED. IN 7 COMP. GEN. 337 IT WAS STATED, IN CONNECTION WITH THE FORFEITURE OF A VESSEL AND THE RIGHT TO SHARE IN THE PROCEEDS OF THE SALE THEREOF, THAT AN AWARD CONTEMPLATED BY SECTION 619 DOES EXTEND TO ALL RECOVERIES UNDER THE LAWS OF THE UNITED STATES. ACCORDINGLY, AND AS THE RECORD DID NOT SHOW THAT THE FORFEITURE WAS SOLELY UNDER THE CUSTOMS LAWS, IT WAS HELD THAT THE PAYMENT OF AN AWARD WAS NOT AUTHORIZED.

IN THE CASE OF WILSON, ET AL. V. UNITED STATES, THE PLAINTIFFS, AS INFORMERS, WERE SEEKING TO SHARE IN THE PROCEEDS OF FINES IMPOSED UPON THE CREW OF A SPEED BOAT UNDER COMBINED CHARGES OF VIOLATIONS OF THE CUSTOMS LAWS AND PROHIBITION LAWS. IN DISALLOWING THEIR CLAIM THE COURT STATED THAT, WHILE A FINE IS IMPOSED ON AN INDIVIDUAL BECAUSE HE HAS BEEN FOUND GUILTY OF A VIOLATION OF A PARTICULAR LAW, IT COULD NOT BE DETERMINED FROM THE RECORD BEFORE THE COURT WHETHER THE FINES WERE ASSESSED BECAUSE OF A VIOLATION OF THE CUSTOMS LAWS OR BECAUSE OF A VIOLATION OF THE PROHIBITION LAWS AND THE COURT RULED, THEREFORE, THAT THE PLAINTIFFS WERE NOT ENTITLED TO AN AWARD SINCE THEY HAD NOT PROVED THAT THE FINES WERE IMPOSED BECAUSE OF A VIOLATION OF THE CUSTOMS LAWS.

FROM THE ABOVE, IT SEEMS CLEAR THAT THE STATUTE AUTHORIZES PAYMENT OF INFORMERS' AWARDS ONLY IN CONNECTION WITH DETECTION AND SEIZURES OR INFORMATION IN CONNECTION WITH VIOLATIONS OF THE CUSTOMS AND NAVIGATION LAWS PERPETRATED OR CONTEMPLATED AND WHICH LEAD TO A RECOVERY OF DUTIES, FINES, PENALTY OR FORFEITURE UNDER THOSE LAWS. WHERE A RECOVERY IS EFFECTED BECAUSE OF VIOLATION OF CUSTOMS AND NAVIGATION LAWS AND SOME PROVISION OF ANOTHER LAW, AND THE AMOUNT OF RECOVERY SOLELY UNDER THE CUSTOMS AND NAVIGATION LAWS CANNOT BE ASCERTAINED, NO AWARD IS PAYABLE. ACCORDINGLY, THE LAST THREE OF YOUR QUESTIONS MUST BE ANSWERED IN THE NEGATIVE. AS TO THE FIRST, IT SEEMS CLEAR THAT A CONSPIRACY TO VIOLATE THE CUSTOMS LAWS AND OTHER LAWS IS A VIOLATION OF CUSTOMS LAWS PERPETRATED OR CONTEMPLATED. HOWEVER, NO AWARD IS PAYABLE IN CONNECTION WITH SUCH A CONSPIRACY UNLESS A RECOVERY IS EFFECTED UNDER THE CUSTOMS AND NAVIGATION LAWS AND THE AMOUNT OF RECOVERY UNDER THOSE LAWS CAN BE ASCERTAINED.