Five counts of an indictment brought in the district court against the appellant herein, Bernard Kushner, together with four codefendants, accused him of violating the Customs Act, 19 U.S.C.A. §§ 1593(a), 1593(b), and § 483(b), by importing and assisting the importation of undeclared gold bullion from Canada; a sixth count charged him and the others with conspiring to commit these offenses and to defraud the United States, 18 U.S.C.A. § 88. Appellant’s codefendants pleaded guilty, and a jury convicted him on all counts. It was undisputed that the codefendants successfully engaged in a conspiracy between 1938 and 1942 to import undeclared gold bullion into the United States from Canada; the issue concerned the extent to which appellant, a licensed gold refiner who admittedly purchased gold from at least two of the co-defendants, was connected with the affair. This appeal challenges the sufficiency of the evidence for the jury, the propriety of the court’s charge and refusals of requests to charge, numerous rulings made at trial, and, initially, the illegality in any event of the importation of undeclared gold bullion. We take up the latter question first.
1. The substantive law. Appellant’s attack on the legal theory of the prosecution centers on two main points: that gold being duty free, 19 U.S.C.A. § 1201, par. 1638, its importation does not violate the Customs Act, and that in any event the exclusive penalty for any unlawful dealing with gold, including importation, is under the Gold Reserve Act, 31 U.S.C.A. § 443, providing penalties for the acquisition and use of gold in violation of law.
It seems clear, however, that the statutes, 19 U.S.C.A. §§ 1461, 1484, which require the inspection and invoicing of all “merchandise” brought into the country include duty-free gold bullion. Merchandise is defined by 19 U.S.C.A. § 1401 (c) as “goods, wares, and chattels of every description and includes merchandise the importation of which is prohibited.” This is broad enough to include gold. Shaar v. United States, 5 Cir.,
Appellant’s point that the Gold Reserve Act, 31 U.S.C.A. § 443, is exclusive stresses 31 U.S.C.A. § 446 to the effect that all laws inconsistent with that Act are repealed. But § 443 applies only to importations in disregard of regulations or licenses of the Secretary of the Treasury, issued pursuant to 31 U.S.C.A. §§ 441, 442, with a view to stabilizing the domestic monetary economy; and it is in no wise
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inconsistent with §§ 1593(a), 1593(b), and 483(b), as here directed at the impairment of the efficiency of customs administration by a failure to declare or to invoice anyi imported gold. Each statute stands for a separate function. Cf. General Motors Acceptance Corp. v. United States,
We need not now pass upon the case in which a violation of the Gold Reserve Act is sought to be penalized under the provisions of the Customs Act. Cf. In re 200 7/12 Dozen Wool Hose and Half Hose, 2 Cir.,
Perhaps a more serious problem is posited by appellant’s contention that the requisite intent for violation of the three statutes is lacking in any case involving duty-free merchandise, since the statutes were intended solely to prevent and punish frauds on the Government with respect to its revenue. Sec. 1593(a) does require an “intent to defraud the revenue of the United States.” This hardly grammatical expression appears in certain other statutes'(cf. 26 U.S.C.A. Int.Rev, Code, §§ 3321, 3323(a) (3)), but its meaning cannot be said to be wholly clear. The district court relied on the decision of Judge Augustus N. Hand in United States v. Twenty-Five Pictures, D.C.S.D.N.Y.,
The express requirement of an intent to defraud the revenue in § 1593(a) helps to negate any inference of an implied limitation to this effect in §§ 1593(b) and 483(b), which omit such provision. It is not brought back by the term “fraudulently or knowingly” in § 1593(b), as Judge Hand demonstrated in United States v. Twenty-Five Pictures, supra. Hence, if the evidence was sufficient, conviction on the remaining substantive counts was proper. And the requisite intent for the conspiracy charge would be present, under the authorities above cited. So far as it included a reference to § 1593(a), no objection or request to charge as to that alone was made. United States v. Smith, 2 Cir.,
2. The sufficiency of the evidence. We come, then, to the important issue of the sufficiency of the evidence to convict appellant of aiding and abetting these violations of the Customs Act and of knowingly participating in a conspiracy so to do. In the conspiracy which was proved, two Canadians, Dollinger and Faibush, secured gold bullion in Canada and brought it without declaration into the United States and to the codefendants Rubin and Roth in New York City or sent it by go-betweens, Julius and Abrahams, the other codefendants. Rubin and Roth then disposed of it to a licensed refiner in this country. Advantage was taken of a favorable disparity in rates of exchange. Overt acts were shown to have occurred on September 26, 1941, when Canadian authorities observed Abrahams and Julius to cross the border after leaving Faibush’s home with a bag, and on October 4, 1941, when Abrahams and Julius were stopped at the border and searched, and a concealed vest was discovered on Julius containing some $10,308 in gold bullion.
Strongly implicating appellant in the conspiracy was the testimony of Rubin, Roth, and Julius, as government witnesses, to the effect that appellant, as a licensed refiner, bought the imported gold bullion with full knowledge of its illicit origin; that on occasion Dollinger came directly to appellant’s office to receive payment; and that once in 1940, appellant, together with Rubin and Julius, met Dollinger and Faibush at La Guardia Airport in New York and took them to appellant’s office, where appellant assayed and paid for gold bullion taken by Faibush from a vest concealed under his clothing. They further testified that when the Canadian authorities began to hamper the activities of Dollinger and Faibush, so that it became necessary to send Julius and Abrahams for the gold, appellant paid one-half Julius’ expenses. The practice was that Rubin or Roth, upon getting notice from their Canadian associates that a shipment was ready, would secure an advance against the shipment from appellant and convert it into Canadian currency, along .with the balance received upon any prior shipment, less commissions to themselves, and Julius would take these funds to Dollinger or Faibush, together with assay figures and gold drillings from the prior shipment, for checking by the latter.
Corroborating this testimony was evidence that after Abrahams and Julius were arrested on October 4, 1941, a search of Faibush’s home uncovered $8,653 in Canadian currency, gold drillings in envelopes similar to those used by appellant for pay rolls, and a notebook containing appellant’s name and telephone number. Some of the envelopes were dated “9/26/41.” Furthermore, sometime between October 3 and October 5, appellant’s books for 1940 and 1941, containing the names and addresses of persons from whom gold was acquired and the amount and quality thereof, were destroyed. That these records were destroyed after Julius’ arrest and thus with a motive to conceal was an inference from testimony by Roth that he telephoned appellant of Julius’ arrest the day after it occurred, and by appellant’s stenographer that his office was not informed of the loss of the books until October 6.
Appellant, however, denied receiving a telephone message from Roth, and set the time of the destruction of the books as the night of October 3, explaining that while checking them in his laboratory he accidentally spilt a container of sulphuric acid over them. In answer to' the other incriminating testimony of his codefendants, he admitted that he bought gold during the period of the conspiracy from Rubin and Roth, trading under the name of the London Gold and Gem Company, and that he made advances to Rubin against undelivered gold. But he claimed that the gold *673 was scrap gold, that it was a customary-practice in his trade to make advances against undelivered scrap gold, that he did not know that Rubin and Roth were importing undeclared gold bullion, and that he was unacquainted with any of the other members of the conspiracy.
Since the jury has drawn the inference of guilt from all this evidence, our only duty is to decide whether it was competent for the purpose, and the inference reasonable, rather than absolutely impelled by the circumstances. United States v. Valenti, 2 Cir.,
3.
Sufficiency of the indictment.
Appellant contends that the original indictment should have been dismissed for vagueness upon motion at the end of the Government’s case, and that in any event his motion for a bill of particulars was erroneously denied. The indictment charged appellant with specific violations of the particularly cited statutes, in substantially the statutory language. Ordinarily an indictment in this form is sufficient. United States v. White, C.C.S.D.N.Y.,
So, too, the denial of the motion for a bill of particulars must stand in the absence of a showing that appellant was unfairly surprised or prejudiced at the trial by the Government’s evidence. Kanner v. United States, 2 Cir.,
4.
Rulings at trial.
Counsel for the appellant, cross-examining a United States Customs Agent, queried what would have happened if defendant Abrahams had presented the gold to the Customs authorities at the border with a permit from the Canadian authorities for its exportation. The witness answered that Abrahams could not have secured such a permit, “because the gold was stolen.” The court immediately struck out the answer and ordered the jury to disregard the statement. Appellant now complains that the judge did not go further and grant his motion to withdraw a juror. The complaint under these circumstances is clearly without merit. Cf. United States v. Salli, 2 Cir.,
Error is assigned as to the admission of photostatic copies of Chase National Bank statements, admittedly appellant’s, one of which referred to a $15,000 withdrawal on February 13, 1940. The Government relied on this item to corroborate Julius’ testimony that in early February, 1940, appellant had met him at the Chase National Bank and handed him $15,000 in cash. The statements were clearly competent for this purpose, and appellant’s failure to explain or to recollect the withdrawal was a circumstance which the jury might properly take into account in weighing his guilt. The use of the photostatic copies was not excluded by the best evidence rule, for their contents were not questioned. See 4 Wigmore on Evidence, 3d Ed. 1940, § 1191. Obviously, also, they were no whit less reliable than the originals. Cf. United States v. Manton, 2 Cir.,
5.
The court’s charge.
Numerous exceptions have been taken to the court’s charge to the jury and to refusals of requests to charge. Appellant urges that the court should have instructed the jury that the testimony of appellant’s character witnesses “alone in and of itself may create in your minds the reasonable doubt” requiring acquittal. This instruction is supported by Edgington v. United States,
Reversal, however, does not follow as of course, but only if the charge appears to have been substantially prejudicial to the rights of the accused. United States v. Salli, supra; Kalmanson v. United States, 2 Cir.,
Appellant complains further that the judge did not admonish the jury that any violation of the Gold Reserve Act or of any regulations promulgated thereunder should not be considered; but as we have already noted, the court expressly, if cautiously, did just that. Other objections to the court’s charge are similarly without merit and in no wise prejudicial to appellant’s right to a fair trial.
The judgment of conviction on the first count is reversed; the other judgments are affirmed.
Notes
§ 1593(a): “If any person knowingly and willfully, with intent to defraud the revenue of the United States, smuggles, or clandestinely introduces into the United States any merchandise which should have been invoiced, or makes out or passes, or attempts to pass, through the customhouse any false, forged, or fraudulent invoice, or other document or paper, every such person, his, her, or their aiders and abettors, shall be deemed guilty of a misdemeanor, and on conviction thereof shall be fined in any sum not exceeding $5,000, or imprisoned for any term of time not exceeding two years, or both, at the discretion of the court.”
§1593(b): “If any person fraudulently or knowingly imports or brings into the United States, or assists in so doing, any merchandise contrary to law, or receives, conceals, buys, sells, or in any manner facilitates the transportation, concealment, or sale of such merchandise after importation, knowing tbe same to have been imported or brought into the United States contrary to law, such merchandise shall be forfeited and the offender shall be fined in any sum not exceeding $5,000 nor less than $50, or be imprisoned for any time not exceeding two years, or both.”
§ 483(b): “Any member of the crew of any such vessel and any person who assists, finances, directs, or is otherwise concerned in the unlading, bringing in, importation, landing, removal, concealment, harboring, or subsequent transportation of any such merchandise exceeding $100 in value, or into whose control or possession the same shall come without lawful excuse, shall, in addition to any other penalty, be liable to a penalty equal to the value of such goods, to be recovered in any court of competent jurisdiction, or to imprisonment for not more than five years, or both.”
A further complication is that this statute as contained in Rev.Stat. § 2865, amended in 1877, 19 Stat. 247, then referred to “goods, wares, or merchandise, subject to duty by law, and which should have been invoiced, without paying or accounting for the duty.” These provisions fell out in the re-enactment of tbe law in 1922, 42 Stat. 982. Possibly tbe omission was intended to extend the statute beyond goods “subject to duty by law,” but the implication of intent is perhaps too faint to be trusted.
The indictment here was undoubtedly sufficient so far as it charged smuggling of identified gold at a specified date in violation of § 1593(a), for the criminal connotations of the term “smuggling” have been well established. See Keck v. United States,