216 F. 420 | S.D.N.Y. | 1914
*421 “Nothing has been on my part, nor to my knowledge on the part of any other person, concealed or suppressed whereby the United States may be defrauded.”
The clause must refer, I think, to information which, if known, would enable the United States to get larger duties than it would if the entry went through at the values fixed in the consular invoice. Knowledge of a suppressed invoice which in fact stated other values at the place of export, all would agree, would come within the clause. I can see no reason to limit the words to such an invoice; on the contrary, the fair meaning appears to me to include any document which, if known, would have led the United States to fix the duties at a higher figure. Of course, the United States must prove that the defendant knew that the document, if discovered, would have so resulted, and it may be hard to show that a document, designed only as the basis of sale values, would, if known, have resulted in such action by the United States. That, however, is not raised by this motion. The sole question here is whether the United States by any possibility could show that documents, like those here in question, would inevitably have set the authorities upon an inquiry which would have resulted in larger duties. If, as is suggested, it had appeared that there were, to the defendant’s knowledge, continuous and parallel invoices setting out selling prices five times as great as the consular invoices, I should at once have regarded the consular invoices as fraudulent, had I been an appraiser. Were I a juror I should have no difficulty, I think in concluding that any man who knew of such invoices knew very well that they would provoke such action by the appraiser, and that their suppression, therefore, would defraud the United States of duty otherwise collectible. At least, I should ask for a very full explanation.
However, it is asserted that forms 3 and 4 show that the suppression must be in the entry or invoice. I am not prepared to assent to the proposition that, even if this were so, and the case arose under either form 3 or 4, it would not be a crime to swear to the declaration with such knowledge as is here alleged, but it is not necessary to go so far, because the phrase in forms 1 and 2 is purposely different. Under forms 1 and 2 the declarant must swear that neither he nor any one else has suppressed anything. Obviously this includes also matters which could not be included in the invoice, and refers to information which would not naturally be in the invoice. To interpose the words “in such entry or invoice” into forms 1 and 2 makes nonsense if only the declarant is to swear to it. Nor can I agree that the suppression must be of a document which would in usual course come to the authorities, as such invoices as these would not. If the declaration includes, as it does, matters extraneous to the invoice itself, it cannot be limited to other documents which usually come to the authorities, because usually no other documents do come, and the entry is made upon the consular invoice. The general purpose indeed of the declaration clearly is to search the conscience of the declarant and to require him to state all that he knows which any one is keeping from the authorities and which would result in higher duties. It would be narrow to seek to give it less than its natural scope. If a distinction is sought between failure to disclose and suppression or concealment, it is enough
I am satisfied that the counts are sufficient on this point, and the motion is denied.
On Further Motion to Quash.
Motion to quash denied.