111 F. 164 | 2d Cir. | 1901
Lead Opinion
The government was the plaintiff in the court below, and brings this writ of error to review a judgment for the claimant entered upon the verdict of a jury. 105 Fed. 357. The action was brought to condemn as forfeited to the United States certain jewelry, the property of the claimant, seized June 24, 1899, by the collector of the port of New York, upon the theory that it had been introduced into the United States in violation of the revenue laws. The information contained four counts. The first count averred that the articles of jewelry were smuggled and clandestinely introduced into the United States, with the intention of defrauding the revenue. This count was abandoned upon the trial. The second-count averred that the jewelry was dutiable merchandise fraudulently imported into the United States by the claimant without entering the same for duty, and without .paying the duty thereon, and was liable to forfeiture under section 3082 of the Revised Statutes. The
Upon the trial of the action the following facts appeared: The claimant, a passenger returning to her home in the city of New York from a visit to Europe, arrived on the steamship St. Paul at the port of New York on the 24th day of June, 1899, bringing with her as baggage several trunks and other parcels of luggage. Before the vessel reached the dock, she made an entry of her baggage, and subscribed and verified by oath the accompanying declaration presented to her by one of the customs officers, in which she specified the number of her trunks and other parcels. The declaration contained theNollowing printed statement:
“Th'at such baggage is my personal property (and that of my maid, who accompanies me); that all of the articles in my baggage or on my person purchased abroad (and intended for others or for sale), and their cost prices paid by me, or by others who have intrusted them to me, are fully set forth and described in the annexed entry; that, with the exception of said articles, the said baggage contains only such wearing apparel and personal effects (as were taken by me and my-out of the United States) and includes only such articles as are in the use of and necessary and axxpropriate for the immediate purposes of the journey and present comfort and convenience of myself (and my-), and are not articles intended for other persons or for sale.”
The entry annexed to the declaration set forth the foreign cost of two articles which she had purchased abroad, but did not mention the cost price of any of the jewelry; nor did it contain anything to indicate that there was any jewelry in the baggage. After the' vessel reached the dock, and claimant had disembarked, and her baggage had been landed, and while it was being examined by the customs officers, she was accosted by one of them, and told by him that he was informed that she 'had with her valuable jewelry which she had not entered for duty in her declaration. He asked her to indicate that part of her baggage in which it could be found, whereupon she stated that her jewelry was in the satchel then in her hands, and handed the satchel to the officer. The satchel was opened, and found to contain, besides toilet articles, jewelry of the dutiable value of over $40,000. Among the jewelry a large necklace of the value of $35,000 and a small one of the value of $4,500 were presents which had been given to her during her visit in Paris shortly before she left to return home. None of the jewelry was entered upon the vessel’s manifest. Besides proving the foregoing facts, the government gave evidence tending to show that when the claimant signed the declaration she was asked by the customs officer if she had with
At the close of the evidence introduced by the government the claimant moved the court to dismiss the information. In denying the motion the trial judge announced that he should rule “that articles belonging to the class of personal baggage or personal effects, although they may be dutiable by reason of their amount, are not. -lo be forfeited, under the.present practice of the department, unless there is some concealment or fraud which brings them within some other provision of the Revised Statutes than section 2802.” The government then introduced further evidence showing that there were distributed among the passengers of the St. Paul printed circulars such as are customarily distributed by the customs officers upon the arrival of a vessel in the harbor. These circulars were entitled “United States Custom Notice,” and read as follows:
“To Passengers Arriving from Foreign Countries: It will lbe necessary for you to make a declaration "before the United States customs officer in tlie saloon of this vessel stating the number of your trunks and other packages and their contents; and residents of the‘United States returning from abroad should provide a detailed list of articles purchased abroad, and the prices paid llierefor. A failure to declare all dutiable goods in your possession will render the same liable to seizure and confiscation, and yourself to fine and imprisonment. * * * By Order of the Secretary of the Treasury.”
The claimant then introduced evidence tending to show that she had not seen any of the circulars distributed 011 the steamship; that she did not state, when she handed her satchel to the customs officer, that there was nothing in it but what she had taken from this country abroad; that in omitting to mention the jewelry in her declaration
The principal question which has been argued at the bar is whether the court below should not have ruled that the jewelry became liable to forfeiture under section 2802 of the Revised Statutes, ■ irrespective of any evidence of fraudulent intent on the part of the ' claimant. The statutory provisions which bear upon the question are found in sections 2799, 2801, and 2802 of the United States Revised Statutes. These sections read as follows:
“Sec. 2799. In order to ascertain what articles ought to be exempted as the -wearing apparel, and other personal baggage, and the tools or implements of a mechanical trade only,.of persons who arrive in the United States, due entry thereof, as of other merchandise, but separate and distinct from that of any other merchandise imported from a foreign port, shall be made with the collector of the district in which the articles are intended to be , landed by the owner thereof, or his agent, expressing the persons by whom or for whom such entry is made, and particularizing the several packages, and their contents, with their marks and numbers; and the person who shall • make the entry shall take and subscribe an oath before the collector, declaring that the entry subscribed by him and to which the oath is annexed contains, to the best of his knowledge and belief, a just and true account of the contents of the several packages mentioned in the entry, specifying "the name of the vessel, of her master, and of the port from which she has ■arrived; and that such packages contain no merchandise whatever other • than wearing apparel, personal baggage, or, as the case may be, tools of trade, specifying it; that they are all the property of a person named who has arrived, or who is shortly expected to arrive in the United States, and are not directly or indirectly imported for any other, or intended for sale.”
“See. 2801. On compliance with the two preceding sections, and not otherwise, a permit shall be granted for landing such articles., But whenever the collector and the naval officer, if any, think proper, they may direct the baggage' of any person arriving within the United States to be examined by the Surveyor of the port, or by an inspector of the customs, who shall make a return of the same; and if any 'articles are contained therein which in their opinion ought not to be exempted from duty, due entry of them shall be made and the duties thereon paid.
“Sec. 2802. Whenever any article subject to duty is found in the baggage of any persofi arriving within the United States, which was not, at the time of making entry for such baggage, mentioned to the collector before whom ■such entry was made, by the person making entry, such article shall be forfeited, and the person in whose baggage it is found shall be liable to a penalty of treble the value of such article.”
: These statutes apparently provide a special system for the entry of dutiable articles contained in the packages of baggage brought by passengers arriving1 by vessel in the United States from foreign -coúntries. - Dutiable articles brought by such passengers, but not
If we have correctly interpreted these sections, it follows that, if ' the claimant omitted to mention the jewelry to the customs officer who received her entry made before the examination of her baggage, the articles became liable to forfeiture if they were in fact dutiable. Concededly, the two necklaces were subject to duty in about the amount of $24,000, unless exempt by the provisions of paragraph 697 of the tariff act of July 24, 1897 (30 Stat. 202). That paragraph places upon the free list “such articles of wearing apparel, personal adornment, toilet articles, and similar personal effects as are in the use of and accompanying persons arriving in the United States and are necessary and appropriate for the immediate purposes of the journey and their present comfort and convenience: provided, that in case of residents of the United States returning from abroad, all wearing apparel and other personal effects taken by them out of the United States to foreign countries shall be admitted free of duty, without regard to their value, upon their identity being established, under appropriate rules and regulations to be prescribed by the secretary of the treasury, but no more than one hundred dollars, in value of articles purchased abroad by such residents of the United States shall be admitted free of duty upon their return.” As we read this paragraph, it classifies exempt articles according to the citizenship of the persons arriving in this country. The proviso carves out an-exception from the general clause in the case of-our- own-citizens,
We are unable to appreciate the argument for the defendants in error that, because of the misleading and unintelligible .form of the declaration, the jewelry was not liable to forfeiture. The forms are prepared by the treasury department for the convenience of passengers, and to facilitate the making a sufficient entry of their baggage. The form in question was prepared for the purposes of section 2799. It is not perspicuous, and is discreditable to the department, because it is calculated to befog the understanding of those to whom it is presented. It was evidently prepared for two classes of passengers, foreigners and our own citizens. If some of the clauses had been erased by the claimant or the customs officer who received it, the declaration would have fully served the purpose of the section. But, however inappropriate, or even misleading, the form may have been, the circumstance does not help the claimant. The statute imposed upon her the duty of making a proper entry and declaration, and she could not escape the obligation by transferring it to any other person. If the customs officer, in assisting her in doing what she was bound to do herself, did not exercise due care to correct the printed form presented to her, the consequences must fall upom her, however great may be the hardship. But there was no element of hardship in the case. It was not because she made a declaration and entry which may have been obscure and unintelligible to" her that she subjected her property to forfeiture. If she had suggested to the customs officer that she had in her baggage such valuable jewelry, she would have been safe. It would seem that an ordinarily honest and intelligent person would, under the circumstances, have done so.
The statutes confer upon the secretary of the treasury the widest discretion to remit forfeiture and penalties accruing for a violation of the customs and revenue laws. This discretion has always been liberally exerted in cases where violation was unintentional or excusable upon any consideration.
In ruling, as the court below did, that it was necessary for the government to show an intent to defraud the revenue on the part of the claimant in order to maintain its action, and unless the jury found fraud it was their duty to find for the claimant, we are of the opinion that error was committed, which should lead to ,a reversal
The judgment is reversed.
Concurrence Opinion
I concur in the conclusions and. in nearly all that is said in the opinion of the majority of the court. ' As to paragraph 697, however, I do not concur in any construction ' which applies the $100 restriction to articles “purchased abroad” unless they are purchased by the “returning resident” of the United States. The language of the paragraph precludes any such con- ' struction, although, of course, on the theory of inherent absurdity, the paragraph may be construed in the teeth of its text, as in the Holy Trinity Case, 12 Sup. Ct. 511, 36 L. Ed. 226. But to me there ’ is nothing inherently absurd in the exemption of presents received abroad. Inasmuch, however, as claimant was a “person arriving in the United States,” I am unable to see why the provisions of the first half of this paragraph do not apply; and, inasmuch as the two necklaces were not necessary or appropriate for the immediate purposes of the journey, reach the same conclusion as the majority of ' the court. With regard to the extraordinary form of entry which was presented to the unfortunate passengers arriving on this steamer, it would seem that the treasury department was not responsible. By circular No. 141 (Treas. Dec. 1897, p. 816) that department instructed the customs officers as follows:
“In order that passengers may be duly apprised of the requirements of the law, a notice to passengers which will contain a copy of paragraph '697 in full and a reference to the provisions of law as to undervaluation and bribery, wilt be distributed among the passengers.”
This instruction exhibits most careful consideration for the incoming passengers, but the so-called “circular” proved in this case wholly fails .to comply with the instructions.