139 F. 513 | 2d Cir. | 1905
Lead Opinion
This cause was most elaborately discussed upon the former appeal (123 Fed. 371, 59 C. C. A. 499), and it seems unnecessary to repeat anything which can be found in our former opinion, or in the two opinions in the Dodge Case (111 Fed. 165, 49 C. C. A. 287, 56 L. R. A. 130; 131 Fed. 849, 65 C. C. A. 603), where the whole subject of declaration and entry of articles brought by passengers arriving by vessels from foreign Countries was carefully considered. The case was practically disposed of when, upon the first appeal, we held that the words “wearing apparel, value not known,” were, upon the government’s own construction of them, broad enough to cover “jewelry.” On the first trial, verdict was directed against the claimant. Referring to that circumstance, we said that, in considering the case on appeal, “every conflict of evidence must be resolved in her°favor, and every inference from the facts be drawn in her favor, because, if upon her own statement of what took place she did not violate the law, she was entitled to have the jury pass upon the question whether her own narrative was or was not to be accepted as the true one.” This statement certainly did not imply that upon a retrial the case must be sent to the jury, even though the proofs adduced by the government might substantially agree with the claimant’s story as to the
The declaration, however, although sufficient as a disclosure, was defective or incomplete as an entry, and it was claimant’s duty thereafter, and at such time as might suit the convenience of the customs officers, to complete the entry by enumerating the items of “wearing apparel,” and giving such information as to their purchase as would be helpful towards appraisement; and,- of course, she was bound to pay whatever duties might be imposed. She. did this as to the “embroidered linen” and the “silk wearing apparel,” but the entry was not completed as to the pearl chain.
The next step taken by the customs officers after obtaining the declarations from the passengers is to inspect the baggage. That might, of course, be done on the ship, the different pieces being grouped on different parts of the deck and in the larger rooms, but, for the convenience of the examiners and to avoid delays, the baggage is brought down on a part of the dock, adjacent to the vessel, which is roped in, and remains till the work is completed within the jurisdiction of the customs officers. Until a piece of baggage is removed beyond the customs lines thus established, it is as much under the control of the officers as if it were still in the passenger’s stateroom. The claimant having made her declaration, and the ship having made fast to the pier, she passed down the gang plank to the dock, and placed herself near the pile of baggage to which her own trunks were to be brought. Subsequently, when the trunks came, she disclosed the two items above referred to, and completed her entry by inserting them. Before she was called upon by the inspector to open her trunks and give him the information which her imperfect prior declaration made it her duty to give, Theobald, the special treasury agent, approached her, told her that he knew she had purchased a pearl necklace in Paris, which she had omitted to declare, and asked her to produce it. He testified, “She at first said that she had had one of her necklaces mended at Tiff
The plaintiff in error relies upon the circumstance that the pearl chain was on claimant’s person, covered from view by parts of her dress; but on the former appeal we held that a passenger’s wearing apparel, articles of adornment, and personal effects did not cease to be baggage the moment they were taken out of a trunk and placed on the person. Whether they are hid from view by being stowed in the middle of a trunk, or by being placed under some part of the passenger’s clothing, is immaterial; the crucial questions are, has such a declaration been made as would be “a disclosure by the passenger sufficient to put the customs officers upon inquiry as to the dutiable character” of the articles purchased abroad? and has the passenger followed that disclosure by the production for their inspection of all such articles? It is to be observed, as was pointed out on the former appeal, that the form of declaration prepared by the government covers not only articles in the baggage; but also on the person. This effectually disposes of the contention that plaintiff was entitled to go to the jury under section 3082, Rev. St. [U. S. Comp. St. 1901, p. 2014], on the question whether claimant did not, with intent to defraud, “smuggle and clandestinely introduce into the United States the said pearl chain.” She brought it on her person under cover, as it would have been brought in a trunk under cover, from the ship to the customs territory on the pier, making no effort, so far as the proof shows, to-remove it beyond the customs lines. This, under Keck v. U. S., 172 U. S. 459, 19 Sup. Ct. 254, 43 L. Ed. 505, could not be held to be “smuggling,” even if it were done clandestinely; but how can
The judgment is affirmed.
Concurrence Opinion
I concur in the result of the opinion of the court, but not altogether in its reasoning.
If the jury believed the witnesses for the government, they would have been justified in finding that the claimant, when the vessel on which she was a passenger arrived in port and landed at the dock, was carrying concealed in one of her stockings a necklace worth $16,000, which she had recently bought in Paris; and they were at liberty to find that she had concealed her necklace in her stocking for the purpose of smuggling or clandestinely introducing it into the United States without paying duty thereon. It was seized upon her person, however, before any obligation on her part had arisen to pay or account for the duties. I agree, as the Supreme Court has so decided in the Keck Case, that, until the obligation to pay or account for the duties arises, the offense of smuggling is not complete, and no cause of forfeiture accrues. Consequently, the case made by the government did not authorize a judgment of condemnation based upon the counts of the information alleging an offense under section 3082 of the Revised Statutes of the United States. I think, also, that the case made by the government did not authorize a judgment of condemnation upon the counts alleging an offense by reason of the failure of the claimant to make entry of or “mention” the article as a part of her baggage. An article which the passenger carries concealed on his person for the purpose of smuggling it, and which, perhaps, he has separated from his baggage expressly for that purpose, is not, in the ordinary meaning of language, ba.ggage, or a part of his baggage, though it may well be held that an article should be regarded as baggage which he has temporarily removed from some of his packages, and declared or mentioned as a part of his baggage, and which has thus been treated as such by him. The counsel for the government concedes that, under such circumstances as are disclosed here, the article concealed is not a part of the baggage of the passenger, a conclusion which, it seems to me, is plainly constrained by the language of sections 2799, 2801, and 2802 of the Revised Statutes [U. S. Comp. St. 1901, pp. 1872, 1873]. For this reason, I think the discussion in the opinion of the court of the question whether the claimant made a sufficient declaration of the necklace as a part of her baggage is unnecessary.
The case presented by the record, assuming that the testimony of the special agent, Theobald, was true, discloses a serious defect in the customs laws, and this was adverted to in the Keck Case; but, as the court said in that case, it is for Congress, and not for the courts, to remedy the defect.
