244 F. 296 | S.D.N.Y. | 1917
The plaintiff moves to amend its complaint and the defendant moves to dismiss the complaint. Both motions will be considered together.
The complaint alleges that between the 25th of February, 1910, and the 9th of June, 1913, the defendant imported into the United States laces, embroideries, trimmings, etc., which were subject to duty by law; that they were entered at false values, and for failure to enter the true value the United States has suffered loss in the collection of customs duties, and demands damages at $196,651.47. The defendant has not only had this lawsuit to contend with, but was indicted. He demurred to the indictment, and the demurrer to the sixth count thereof was sustained, and overruled as to the other five counts, in an opinion by Judge Hough. On appeal from this decision, Judge Hough was sustained. United States v. Salen, 235 U. S. 237, 35 Sup. Ct. 51, 59 L. Ed. 210.
The iheory of the amendment is that “the original complaint contains various allegations of fraud based upon the suppression clauses in the declarations, which should be stricken out in view of the decision of the United States Supreme Court, and the amendment sought is to rest the action solely upon the proposition that the defendant entered various importations of merchandise knowing that the foreign market value at the time of the importation was in excess of the válues set forth in the respective invoices and entries.” The indictment was ultimately dismissed as to the five other counts.
The defendant says that the allegations of the original complaint tend to make out a case of fraudulent importation, which were the state of facts averred in the sixth count of the indictment against the
It is claimed that by the dismissal of the indictment, and particularly the sixth count thereof, the'doctrine of res adjudicata applies and controls in this civil action, and that, therefore, leave to amend should not be granted and that the complaint should be dismissed.
The gist of the allegations oí the complaint is a general charge of fraudulent practices by means of false and fraudulent invoices and entries, stated by way of inducement, the specifications and particulars of the fraud relied upon being set forth in the sixth and seventh paragraphs of the complaint.
In Coffey v. United States, 116 U. S. 436, 6 Sup. Ct. 437, 29 L. Ed. 684, a proceeding was instituted to forfeit a distillery after a verdict of not guilty in a criminal prosecution. The proceeding was based up'on the same acts as the prosecution. It was there said—
“that, although one section counted on in the information declared, as a consequence of the commission of the prohibited act, (1) that certain specific! property should be forfeited, and (2) that the offender should he fined and imprisoned, yet, as the issue raised as to the existence of the act or fact had been tried in a criminal proceeding against the claimant, instituted by the United States, and a judgment of acquittal rendered in his favor, that judgment was conclusive in his favor.”
In United States v. Zucker, 161 U. S. 475, 16 Sup. Ct. 641, 40 L. Ed. 777, it was sought to recover the value of merchandise forfeited under section 9 of the Customs Act of June 10, 1890, c. 407, 26 Stat. 131. This language was used by the court:
“Of course, if the government had elected to prosecute the present defendants criminally for the offense defined in the ninth section of the act of 1890, a verdict and judgment of acquittal could have been pleaded in bar of an action to recover the value of the merchandise.”
Since the adjudication of the Supreme Court is that, upon the same allegations of fact set forth in the civil action here, an offense under _ the statute of tire fraudulent suppression or concealment was not made
The motion to amend the complaint will therefore be denied.
The motion to amend the complaint will therefore be denied, as will the motion to dismiss.