Appeal from an order of the United States District Court for the Eastern District of New York, Charles P. Sifton, Judge, denying motion for return of moneys after acquittal of bribery. Affirmed.
Kearse and Winter, Circuit Judges, and Sweet, District Judge.*fn*
Defendant Dong Chan Kim appeals from an order of the United States District Court for the Eastern District of New York, Charles P. Sifton, Judge, denying his motion, made after his acquittal of bribery, for the return of $1,000 he had given to an agent of the Internal Revenue Service ("IRS"). The district court denied the motion and ordered the $1,000 transferred to the United States Treasury ("Treasury") pursuant to 18 U.S.C.A. § 3666 (West 1985). On appeal, Kim contends principally that § 3666 is a sentencing provision and thus is inapplicable to him, and that the forfeiture ordered by the court was inappropriate and inequitable. Finding no merit in any of Kim's arguments, we affirm the order of the district court.
In March 1988, Kim was indicted on one count of offering a bribe to an IRS agent, in violation of 18 U.S.C. § 201(b)(1)(A) (Supp. IV 1986). Among the evidence presented at trial were testimony of the IRS agent, Stanley Farrell, and a tape recording of a July 1987 conversation between Farrell and Kim during which Kim gave Farrell $1,000.
In March 1987, Farrell was assigned an audit of the 1985 joint income tax return of Kim and his wife. Farrell testified that he first met with Kim in May 1987 at the IRS office and explained the nature of the audit and the appeal rights. He told Kim he estimated Kim's additional tax liability at approximately $10,000, to which Kim responded, "Isn't there any way we could get it down further?" Farrell told Kim the additional liability could be reduced if Kim provided proper documentation. Kim had stated that he had prepared the return himself and that there were "no real records."
Farrell next met with Kim at Kim's home and went over the gross receipts of the two businesses run by the Kims. Toward the end of the meeting, Mrs. Kim offered Farrell a sweatsuit. When Farrell stated that such a gift would be against the law, Mrs. Kim said the suit was for Farrell's wife. Farrell explained that it would still be illegal. After this discussion, Kim asked Farrell if there was any way he "could manage to get the report down to $2,500." Farrell again explained that he would need further documentation.
Farrell reported these conversations to the IRS Inspection Division. At his next meeting, held in Kim's home on July 1, 1987, Farrell carried a recording device in his briefcase. At that meeting, Kim gave Farrell $1,000 in cash, in return for which Farrell understood that Kim expected Farrell to report only $2,500 in additional liability and not to cause an audit of Kim's 1986 return. This conversation was recorded.
On July 13, 1987, in another recorded conversation, Kim asked Farrell to alter the adjustments to the 1985 return in order to show increased expenses. This was to limit any increase in Kim's state taxes.
In March 1988, Kim was indicted for bribery, charged with corruptly giving, offering, and promising something of value to a public official on July 1, 1987, with the intent to influence an official act, in violation of 18 U.S.C. § 201(b)(1)(A). The government's proof included the evidence described above. Kim did not deny paying Farrell the $1,000 but argued that he had been entrapped. Kim's first trial resulted in a deadlocked jury. His retrial ended in acquittal, as the jury found him not guilty.
Kim promptly moved for the return of the $1,000 he had paid Farrell, contending that the government was not entitled to retain the money because it had entrapped Kim into paying the bribe and had been guilty of outrageous misconduct in failing to advise Kim fully of his right to appeal the results of the tax audit. The government opposed the motion, arguing, inter alia, that the money might be subject to civil forfeiture pursuant to 26 U.S.C. § 7302 et seq. (1982) or transferrable to the United States Treasury pursuant to 18 U.S.C. § 3666.
The district court noted that on a motion for return of property used in a criminal prosecution, the court is the finder of fact, the jury's verdict is not binding on the court, and the defendant has the burden of proving entrapment or misconduct by a preponderance of the evidence. After offering the parties an opportunity to present additional evidence, which both inclined, and taking into account the jury's verdict, the court concluded that Kim had not carried his burden:
Having heard the evidence at trial and no other being offered I am not at all persuaded that he was entrapped and I am not persuaded that the government's conduct [was] of such a sort ...