United States v. One Blue Taffeta Evening Coat, Trimmed Lace, & Other Women's Clothing

LEARNED HAND, District Judge

(after stating the facts as above). [1] First Count. If groups C, D, E, and F were a part of the claimant Warren’s baggage, and were subject to duty, and were not mentioned to the collector when entered, they were, of course, forfeit., The first criticism is that in other counts it appears that groups E and F were imported for the claimants Burden and Dows. If groups E and F could not be at once in fact personal baggage and goods imported for the use of another (One Pearl Chain v. U. S., 123 Fed. 371, 374, 59 C. C. A. 499), still it is permissible to plead contradictory versions 'of the same transaction in the alternative, so as to be safe, whichever way the proof develops (Bishop, Crim. Proc. §§ 453 [2], 492). The count, standing alone, is good.

[2] A second criticism is that the word “mentioned” involves a legal conclusion, and is bad for that reason. I think not. It may be true, since One Pearl Chain v. U. S., 123 Fed. 371, 59 C. C. A. 499, that it is enough generally to state upon a baggage declaration that one has wearing apparel, without the particularity of R. S. § 2799 ;1 but that does not make the word “mention,” as used in section 2802, a legal term. Rather it embraces within the term any form of “mentioning” to the collector, including its broader colloquial meaning. Words like “subject to duty” are good, even in indictments. Dunbar v. U. S., 156 U. S. 185, 15 Sup. Ct. 325, 39 L. Ed., 390.

[3] Finally, even if the groups F and F were to be excluded from the count, it would still be good as to C and D, and an exception, like a demurrer, is bad, if any part of the pleading be good. The exception to the first count is overruled.

[4] Second Count, (a) The smuggling count is challenged because in other counts the United States has alleged that the goods were) disclosed to the authorities, but the objection amounts to no more than a charge of inconsistency between counts. The terms of the charge are valid. Keck v. U. S., 172 U. S. 434, 19 Sup. Ct. 254, 43 L. Ed. 505. And since that case they have become the accepted form.

[5, 6] (b) R. S. § 3082 (Comp. St. 1913, § 5785), only forbids importation, and section III, E, affects only entry, and the claimants argue that entry succeeds, and is not a part of, importation. “Importation” is complete, certainly for purposes of the incidence of duties, as soon as the goods enter the port. Arnold v. United States,. 9 Cranch, 104, 3 L. Ed. 671; The Boston, Fed. Cas. No. 1,670; United States v. Lindsey, Fed. Cas. No. 15,603, 1 Gall. 365. In United States v. Thomas, Fed. Cas. No. 16,473, 4 Ben. 370, Judge Hall applied this definition so far as to hold bad an indictment under section 3082, which charged that the goods were imported without payment of the legal duties. His theory was that, since the importation was complete when the goods reached the port, and no duties could be evaded till entry, there could be no illegal importation, except the goods were illegally packed or absolutely forbidden. The case was followed by Judge Deady in United States v. Kee Ho (D. C.) 33 Fed. 333, and by Judge Benedict in United States v. Claflin, Fed. Cas. No. 14,798, 13 Blatchf. 178, 186, but it was criticized by Judge Fongyear, obiter, in United States v. Merriam, Fed. Cas. No. 15,759. As there have been three decisions upon the point, I scarcely think I ought to disregard them as mere matter of authority.

Besides, I do not see how the word “import” can mean different things in the same connection. If the importation of goods illegally packed or absolutely forbidden is complete when they enter the precincts of the port, it must be complete when they enter under a scheme to defraud the revenues. Section 3082 is not redundant, and does not reduplicate the smuggling section, or the elaborate provisions of the Customs Administrative Act. It is directed against introducing goods into the precincts of the port. The exception is overruled to count 2 (a), and is sustained to count 2 (b).

Third Count. The third count is said to be bad, because it does not appear that the goods were entered and introduced into the commerce of the United States. This the claimants urge follows from the character of the goods, women’s clothes, and from the fact that they were imported either for the claimant Warren herself, or for her friends, the claimant Burden, or the claimant Dows. Nothing of the sort appears in the count itself, which only alleges that the claimant Warren imported the goods into the commerce of the United States. Each count may stand alone, as I have said, and nothing contradicts the allegation that they were so imported.

Another question is whether the allegation is good in law. The phrase “enter, and introduce” is no more contaminated by legal implications than the allegations in the indictments in Dunbar v. United States, supra, and Keck v. United States, supra. As to “enter,” I think it may stand, because it signifies the complete series of acts necessary to get a permit to pass the goods (United States v. Cargo of Sugar, Fed. Cas. No. 14,722, 3 Sawyer, 46), and they are defined by the statute, which is accessible to all. While it is true that this single legal term includes a number of acts, ’that is not necessarily a fatal defect. The word “introduce” comprehends fewer acts than “enter” (United States v. 25 Packages of Hats, 231 U. S. 358, 34 Sup. Ct. 63, 58 L. Ed. 267), and it is at least uncertain just how far an importer must go to “introduce” goods into the United States. We know from the case cited that to unload and place them in general order is enough, but to make them arrive merely at the port is only an attempt to introduce. While it may be unsafe, therefore, for the United States to go to trial upon that word, without further specification, the exception will not lie, because “entry” is enough, and has been alleged. As the greater, it includes “introduction,” which is the less. How the United States would fare if it failed to prove complete entry, but did prove acts, sufficient for introduction, without specifying those acts in the libel, is another question.

The exception is overruled, as well as the exception on the same ground to counts 4 and 5.

[7] Fourth Count. The specific objection to this count is that false verbal (sic) statements made to an examiner were irrelevant. The goods are not alleged to be passengers’ baggage, but imported merchandise, and I will not look beyond the count. A false statement to the examiner was relevant, if examiners had any authority in respect of admitting imported merchandise. Article 1124 of the Customs Regulations makes it the duty of examiners to ascertain and report the foreign market value of such imported merchandise as the collector designates for examination, and to describe it, so that the collector might determine the duty upon it. But the regulation is not pleaded as it should be, nor is it alleged that the collector had designated the merchandise for examination. As the count stands, the examiner had no duties and no powers, and the exception is sustained.

[8] A further point is raised that only the clothes about which the false oral statements were made are forfeit. This is so, unless it were alleged that they were baled or boxed with others; if the United States means to forfeit the other articles, it must allege that they were packed with those about which the false statements were made, since that is a part of the necessary allegations to forfeit those articles. However, part of the count is good without such an allegation, since the articles mentioned could in any case be forfeited, and an exception will not lie while any part of the count is good.

[9] Fifth Count. This count raises the point, which is in fact also raised by the third count, though not argued, whether in entering and introducing into the commerce of the United States certain mer-> chandise, not passengers’ personal baggage, the goods are forfeit, if the importer uses a false baggage declaration. Certainly to attempt to introduce goods into the commerce of the United States by such a false paper is not safer than by- a false invoice. The count does not present the question whether to introduce personal baggage as such by a false baggage declaration violates section III, H, of the Customs Administration Act (Comp. St. 1913, § 5526). The count would be satisfied, if the claimant, seeking to introduce goods for sale, disguised as personal baggage, used a false baggage declaration. In this regard it is precisely like-count 3, which is not challenged on that score. It may turn out at the trial that personal baggage was introduced by a false baggage declaration, and then that point will be raised; but this pleading does nqt raise it, and the pleader is entitled ■ to be taken at his word. Or it might turn out that some of the goods designed for import into the commerce of the United States were packed with personal baggage and entered by a false invoice. That would raise the question of the contamination of the personal baggage, and of whether it was sufficiently pleaded; but that, also, is not raised by this pleading. The exception is therefore overruled.

A decree may therefore pass sustaining the exception to count 2 (b) and to count 4, and overruling the other exceptions. The libelant has leave to plead over generally, except as to count 2 (b), which, if I am right, is incurable.

1 Comp. St. 1913, § 5496.