United States v. Farino, 78 CR 579.

• Decision Date: 21 January 1980
• Docket Number: No. 78 CR 579.,78 CR 579.
• Citation: 483 F. Supp. 651
• Parties: UNITED STATES of America v. Joseph FARINO, Joseph LoMonte, and Antoinette LoMonte, Defendants.
• Court: U.S. District Court — Eastern District of New York

483 F. Supp. 651

UNITED STATES of America v. Joseph FARINO, Joseph LoMonte, and Antoinette LoMonte, Defendants.

No. 78 CR 579.

United States District Court, E. D. New York.

January 21, 1980.

Edward Korman, U. S. Atty. by Neil John Firetog, Sp. Atty., U. S. Dept. of Justice, Brooklyn, N. Y., for plaintiff.

Tepper & Popkin by Irwin Popkin, Hicksville, N. Y., for defendant Farino.

MEMORANDUM DECISION AND ORDER

SIFTON, District Judge.

By notice of motion dated November 9, 1979, the Government has applied to have paid into the Treasury to the name and credit of the United States the sum of $15,050. It is not disputed that during the trial of the captioned criminal case those monies were shown to have been either received by an agent of the Internal Revenue Service as part of an effort to bribe him or to have been transmitted by one defendant, Joseph Farino, to another, Joseph LoMonte, for that purpose and thereafter seized by the Government following LoMonte's arrest.¹ The defendant Farino alone opposes this application and seeks the return of $15,000 of this money to himself on two grounds. First, he contends that the Court has discretion to award the money to the bribe payer and should exercise that discretion in favor of his request since he was the victim of entrapment or other improper pressure by the Government citing United States v. Connoughton, 39 F.2d 237 (E.D.N.Y.1930), decided by Judge Byers of this Court. Secondly, Farino argues that, since $10,000 of the bribe money was stolen by LoMonte and never "paid to or received by any official as a bribe" within the meaning of 18 U.S.C. § 3612, the statute relied upon by the Government in seeking forfeiture, he is entitled at least to get that money back.

The first argument must be rejected because, even if it is assumed that Judge Byers was correct in thinking that the matter of forfeiture was discretionary, cf. United States v. Iovenelli, 403 F.2d 468 (7th Cir. 1968), there is no occasion here to exercise that discretion in Mr. Farino's favor. The jury which convicted him rejected beyond a reasonable doubt Mr. Farino's contention, again pressed here, that he was entrapped by the IRS agent. The facts, as found by the jury and as this Court finds them as well, are that the defendant Farino was well able to resist the almost ludicrously timid efforts at inducement engaged in by the IRS agent in this case and was also clearly predisposed to take advantage of his apparent good luck in finding a bad apple in the IRS' barrel.

With regard to the second argument, both the Government and the defendant place too great emphasis on the language of a statute enacted principally to clarify Government accounting procedures with respect to the handling of bribe money, 18 U.S.C. § 3612. See United States v. Wilson, 591 F.2d 546, 547 n.2 (9th Cir. 1979); 65 Cong.Rec. 10584 (1924). There is no indication either in the sparse legislative history or in the language of the statute that this essentially procedural statute was intended to alter underlying principles of equity and of property law controlling the disposition of bribe monies. Under those principles the Government, as the possessor or recipient of the bribe, through its agent, is entitled to keep it,...