Castle, Chief Judge, and Hastings and Fairchild, Circuit Judges. Hastings, Circuit Judge (dissenting).
Defendant-appellee, after entering a plea of guilty, was convicted of bribery of a Treasury Department agent, in violation of 18 U.S.C. § 201(b), and sentenced to two years probation, the first 90 days to be served in a county jail, and fined $1000 and costs. Defendant has served his jail sentence and paid the fine and costs. Subsequent to defendant's conviction the Government moved in the District Court to withdraw the bribe money -- $300 -- which it had deposited in the registry of the office of the Clerk of the District Court. The Court denied the motion and ordered the money returned to the defendant. The Government appealed.
The contested issue on appeal is whether, under the circumstances of this case, the District Court's return of the bribe money to the defendant, a convicted briber, was a matter subject to the Court's discretion. We hold that it was not and therefore reverse the District Court's order.
At the hearing before the District Court the defendant urged that he was in "rather dire financial straits," that he had a retarded son to support, and that the circumstances surrounding the offense presented a "clear flavor of entrapment." Defendant now contends that these factors, along with others contained in the pre-sentence report, formed a basis authorizing the Court in the exercise of discretion to order the bribe money returned to him.
On the facts here involved, we perceive no permissible area for the exercise of such a discretion. While the two relevant statutory provisions, 18 U.S.C. § 3612 and 28 U.S.C. § 2042*fn1 do not vest an indefeasable interest to bribe money in the United States, they contain nothing which makes it discretionary with the Court as to whether or not the money will be returned to the convicted briber. It is our opinion that a person seeking return of money deposited pursuant to § 3612 must demonstrate a right to the return of the money to him. And, in this connection, we are of the view that the holding in Clark v. United States, 102 U.S. 322, 26 L. Ed. 181, is dispositive of this case. In Clark it was pointed out:
"Clearly this was bribery, and placed the claimants and the man they corrupted in pari delicto. They could not recover back from him the money they paid, neither can they from the United States after it has been taken from him * * *" 102 U.S. at 331-332.
In this connection, United States v. Thomas, 75 F.2d 369, 371 (5th Cir. 1935) observed:
"* * * If he was guilty of bribery, he could not have recovered the bribe money back from the customs officers, and has no better claim against the United States. Clark v. United States, 102 U.S. 322, 332, 26 L. Ed. 181; St. Louis, V. & T.H.R. Co. v. Terre Haute & I.R.R. Co., 145 U.S. 393, 407, 12 S. Ct. 953, 36 L. Ed. 748; Harriman v. Northern Securities Co., 197 U.S. 244, 295, 25 S. Ct. 493, 49 L. Ed. 739."
See also United States v. Galbreath, 8 F.2d 360 (D.C.N.D.Cal.1925); Arter v. Byington, 44 Ill. 468 (1807); Goodrich v. Tenney, 44 Ill.App. 331 (1892).
A convicted briber forfeits any right he had to the bribe money. Therefore, ordinarily, the Government alone is entitled to the money used to bribe its agent.*fn2
We are not persuaded by United States v. Connoughton, 39 F.2d 237 (D.C.E.D.N.Y.1930), heavily relied upon by the defendant, insofar as it may be taken as expressing a contrary view.
The order below is therefore ...