US SUPREME COURT DECISIONS

In the trial of a cause where goods had been seized upon suspicion of being fraudulently imported, it was proper to allow to go to the jury as evidence appraisements of the goods made either by the official appraisers or appraisers acting under an appeal, they being present to verify the papers. The objection that the appraisements had not been made in presence of the jury was not sufficient.

Such papers are documents or public writings, not judicial, and may be used as evidence under the rules which regulate all that class of papers.

Other invoices of other goods imported by the party are admissible. The decision on this point in Wood v. United States, 16 Pet. 359-360, confirmed.

It was proper to show in such a case that the agent of the claimant had sold goods for him at prices which yielded profits which other persons engaged in the same trade averred could not fairly have been made in the then state of the market.

The court is the tribunal to determine from the evidence whether or not there was probable cause for the seizure.

In order to sustain counts in the information founded on the acts of 1830 and 1832, it is not necessary that they should contain averments of the special circumstances of the examination of the goods and detection of the fraud under the authority of the collector. The language of the court in Wood's Case reexamined, explained, and controlled.

The court below was right in instructing the jury that under such an information, they were not restricted in the condemnation of the goods to any entered goods which they found to be undervalued, but that they might find either the whole package or the invoice forfeited, though containing other goods correctly valued, provided they should find that such package or invoice had been made up with intent to defraud the revenue.

On 16 August, 1839, Patrick Brady, a resident of the City of Philadelphia, presented to the custom house in that city an entry of certain goods which had arrived from Liverpool in the ship Franklin. Accompanying the entry was the oath of James Buckley, the present claimant, taken at Liverpool on 8 June, 1839. It was what is called the manufacturer's oath, as contradistinguished from the purchaser's oath, and stated the value, the purchaser's oath stating the actual cost, of the goods. The bill of lading was for three bales, marked P.B. 810, 811, 812, and eight cases, marked P.B. 813 to 820, which were consigned to the said Patrick Brady.

These goods were ordered to be appraised by the two regularly chanrobles.com-red

Page 45 U. S. 252

appointed appraisers for the port of Philadelphia, namely Thomas Stewart and Henry Simpson. The examination was not finished until 25 September, 1839, the result of which was an appraisement of 1,917, the invoice being �1,647.

On 15 February, 1840, the claimant, being then in England, made out a copy of the invoice of the goods in question, to which he annexed a purchaser's oath stating the goods to have been purchased on 28 May, 1839, from William Buckley and Company.

On 25 May, 1840, the claimant appealed from the decision of the official appraisers in the manner pointed out in the act of Congress providing for an appeal, when Samuel Ross and A. J. Lewis were appointed to make an appraisement. On 22 June, 1840, they took the oath required by law and proceeded to make the valuation.

About this time, but the record does not state exactly when, the agent of the claimant filed in the custom house at Philadelphia the purchaser's oath just spoken of.

On 22 June, 1840, the appraisers, Ross and Lewis, who had been appointed under the appeal to appraise the goods, took the necessary oaths and proceeded to execute the duty. The result was that their appraisement was seventeen percent higher than the value as stated in the invoice.

On 28 September, 1840, an information was filed against the goods in the District Court for the Eastern District of Pennsylvania. It consisted of four counts.

The first was founded on the sixty-sixth section of the act of 1799.

The second, upon the fourth section of the act of 1830, and charged that the invoice was made up with intent, by a false valuation, to evade and defraud the revenue of the United States.

The third, upon the same section of the same act, charging that each of the several packages was made up with intent &c.

The fourth, upon the fourteenth section of the act of 1832, charging that the goods were composed wholly or in part of wool or cotton, and that all and each of the several packages in the invoice were made up with intent, &c.

As these counts are the subject matter of a part of the decision of the Supreme Court, it is proper to insert them in extenso.

"

I

"the Eastern District of Pennsylvania"

"EASTERN DISTRICT OF PENNSYLVANIA, ss.: "

"Be it remembered that, on this twenty-eighth day of September in the year of our Lord one thousand eight hundred and forty, into the District Court of the United States of America in and for the Eastern District of Pennsylvania comes John M. Read, attorney

Page 45 U. S. 253

of the said United States of America, and prosecuting in their name and on their behalf, and gives the said court here to understand and be informed that, on the twenty-fourth day of June in the year aforesaid, at the City of Philadelphia, in the Eastern District of Pennsylvania and within the jurisdiction of this court, the following goods, wares, and merchandise, to-wit:"

"Three bales of cloths, marked P.B. 810, 811, 812, and eight cases of cloth, marked P.B. 813, 814, 815, 816, 817, 818, 819, 820, were seized on land by Calvin Blythe, Esq., collector of the customs of the port and district of Philadelphia, in the said Eastern District of Pennsylvania, and are now in his custody, as being forfeited, for the causes hereinafter mentioned, to-wit:"

"1. That the aforesaid goods, wares, and merchandise are of the growth, produce, and manufacture of some foreign place or country to the said attorney unknown, and were heretofore, to-wit, on the sixteenth day of August in the year of our Lord one thousand eight hundred and thirty-nine, brought or imported in a ship or vessel, being a ship called the Franklin, from a foreign port or place, to-wit, the port of Liverpool, to the port of Philadelphia, in the collection district of Philadelphia, in the Eastern District of Pennsylvania, which said goods, wares, and merchandise are subject to the payment of duties to the United States, on being brought and imported as aforesaid."

"That an entry of the aforesaid goods, wares, and merchandise, duly signed, was, at the time of said importation thereof, made at the office of the collector of the customs of the said port and district of Philadelphia, and that on such entry's being made as aforesaid, an invoice of the goods, wares, and merchandise included in such entry was produced and left with the said collector of the customs of the port and district of Philadelphia."

"And the said attorney further avers that the aforesaid goods, wares, and merchandise, which were so entered as aforesaid and of which an invoice was so produced and left as aforesaid were not invoiced according to the actual cost thereof at the place of exportation, but on the contrary were in fact invoiced at less sums than the actual cost thereof at the place of exportation with design to evade the duties thereupon, or some part thereof, against the form of the act of Congress in such case made and provided."

"2. That the aforesaid goods, wares, and merchandise, being subject to the payment of ad valorem duties to the United States, an entry thereof, duly signed, was, at the time of the importation thereof, made at the office of the collector of the customs of the said port and district of Philadelphia, and that on such entry's being made as aforesaid, an invoice of the goods, wares, and merchandise included in such entry was produced and left with the said collector of the customs of the said port and district of Philadelphia. "

Page 45 U. S. 254

"And the said attorney further avers that the said invoice, so produced and left as aforesaid, was made up with intent, by a false valuation, to evade and defraud the revenue of the United States, against the form of the act of Congress in such case made and provided."

"3. That the aforesaid goods, wares, and merchandise, being subject to the payment of ad valorem duties to the United States, an entry thereof, duly signed, was, at the time of the importation thereof, made at the office of the collector of the customs of the said port and district of Philadelphia, and that on such entry's being made as aforesaid, an invoice of the goods, wares, and merchandise included in the said entry was produced and left with the said collector of the customs of the said port and district of Philadelphia."

"And the said attorney further avers that all and each of the said several packages contained in the said entry so made, and in the invoice so produced and left as aforesaid, in which the aforesaid goods, wares, and merchandise were so imported and entered as aforesaid, was made up with intent, by a false valuation, to evade and defraud the revenue of the United States, against the form of the act of Congress in such case made and provided."

"4. That the aforesaid goods, wares, and merchandise, being composed wholly or in part of wool or cotton, an entry thereof, duly signed, was, at the time of the importation thereof, made at the office of the collector of the customs for the port and district of Philadelphia, and that on the said entry's being made as aforesaid, an invoice of the said goods, so as aforesaid composed wholly or in part [of] wool or cotton, included in such entry, was produced and left with the said collector of the customs of the said port and district of Philadelphia."

"And the said attorney further avers that all and each of the several packages in the said invoice so produced and left as aforesaid, and in the said entry so much as aforesaid, in which the aforesaid goods were so imported as aforesaid, were made up with intent to evade and defraud the revenue of the United States, against the form of the act of Congress in such case made and provided."

"By reason of all which the premises and the acts of Congress in this behalf made and provided the said goods, wares, and merchandise have become and are forfeited."

"Wherefore, the said attorney prays the aid and the advice of the said court here in the premises, and due process of law for the condemnation thereof."

"JOHN M. READ"

"United States Attorney for the Eastern District of Pennsylvania"

The acts of Congress upon which these counts are founded are as follows: chanrobles.com-red

Page 45 U. S. 255

The sixty-sixth section of the act of 1799, chapter 22, provided:

"That if any goods, wares, or merchandise, of which entry shall have been made in the office of a collector, shall not be invoiced according to the actual cost thereof at the place of exportation, with design to evade the duties thereupon, or any part thereof, all such goods, wares, and merchandise, or the value thereof, to be recovered of the person making the entry, shall be forfeited."

The fourth section of the act of 1830, chapter 147, 4 Lit. & Brown's ed. 410, provided:

"That the collectors of the customs shall cause at least one package out of every invoice, and one package at least out of every twenty packages of each invoice, and a greater number should he deem it necessary, of goods imported into the respective districts, which package or packages he shall have first designated on the invoice, to be opened and examined, and if the same be found not to correspond with the invoice, or to be falsely charged in such invoice, the collector shall order, forthwith, all the goods contained in the same entry to be inspected, and if such goods be subject to ad valorem duty, the same shall be appraised, and if any package shall be found to contain any article not described in the invoice, or if such package or invoice be made up with intent, by a false valuation or extension or otherwise, to evade or defraud the revenue, the same shall be forfeited [then follows a repeal of the fifteenth section of the act of 1823, and of any act which imposes an additional duty or penalty of fifty percent upon goods appraised above their invoice price], and no goods liable to be inspected or appraised as aforesaid shall be delivered from the custody of the officers of the customs until the same shall have been inspected or appraised or until the packages sent to be inspected or appraised shall be found correctly and fairly invoiced and put up, and so reported to the collector, provided,"

&c.

The fourteenth section of the act of 1832, chapter 224 (4 Lit. & Brown's ed. 593), provided:

"That whenever, upon the opening and examination of any package or packages of imported goods, composed wholly or in part of wool or cotton, in the manner provided by the fourth section of the act for the more effectual collection of the impost duties, approved on 28 May, 1830, the said goods shall be found not to correspond with the entry thereof at the custom house, and if any package shall be found to contain any article not entered, such article shall be forfeited, or if the package be made up with intent to evade or defraud the revenue, the package shall be forfeited, and so much of the said section as prescribes a forfeiture of goods found not to correspond with the invoice thereof be, and the same is, hereby repealed."

On 7 October, 1840, Buckley filed his claim, and on chanrobles.com-red

Page 45 U. S. 256

13 December, 1842, the cause came on for trial. In the course of it, the counsel for the claimant took nine exceptions to the admissibility of certain evidence offered in support of the prosecution, which may be stated as follows.

"1. The first exception was to the admissibility of Thomas Stewart to prove an appraisement of the goods made by him as one of the official appraisers of the port, to which testimony the counsel for the claimant objected that the appraisement was not made in presence of the court and jury."

"2. Was to the admissibility of the appraisement."

"3. Was to the admissibility of the testimony of Felix A. Huntingdon, an importer and experienced judge of goods, to prove what was the value, in his belief, of the goods in the British market at the date of the invoice upon which they were entered, the ground of the objection being that the appraisement was not made in the presence of the jury."

"4. Was to the admissibility of the affidavits of Samuel Ross and A. J. Lewis, who had appraised the goods under an appeal, taken by them before entering on the performance of their duty as appraisers under the appeal."

"5. Thereupon the counsel of the United States gave in evidence their appraisement, and to this the claimant excepted that the appraisement had not been made in presence of the jury."

"6. The counsel for the United States having produced the invoices of two importations -- one into Philadelphia, and the other into New York -- of goods exported from England by the claimant, whose affidavit was in each case annexed, dated 23 May, 1839, and 12 June, 1839, the counsel for the claimant excepted to the reading of these two affidavits."

"7. Several other invoices, affidavits, and entries were offered on the part of the United States, after being verified in the same manner as those mentioned in the last exception, and to their admission in evidence the counsel for the claimant excepted."

"8. The counsel of the claimant also excepted to any evidence being given of certain importations made by the claimant into New York, per Republic and United States, in which cases the value of the goods were appraised at a higher value than the invoices."

"9. The counsel for the United States proved that the claimant's factors in Philadelphia had received goods from him to be sold for his account, and had sold the same at prices more, by one hundred and twenty percent, than the prices entered upon the invoices upon which they had been entered, and to the admissibility of this testimony the counsel for the claimant excepted."

The evidence being closed on both sides, the counsel for the United States prayed certain instructions, and the court proceeded to charge the jury. The two following appear to be the passages to which the counsel for the claimant excepted. chanrobles.com-red

Page 45 U. S. 257

"The United States allege that the appraisements and the affidavits, and the fact of Mr. Buckley's acquaintance with the different forms of oaths, show his fraudulent intent in this importation; other invoices of the claimant are also given in evidence to show the same fraudulent design. Fraud is to be judged of by various circumstances. If this were the only case, the presumption might be that there was a mistake, but the United States have presented these various invoices to show that there was no mistake. They have further shown the appraisements and the sales of these other importations by James Buckley at an advance from one hundred and fourteen to one hundred and forty percent in the invoice. Whereas eighty-five percent advance is a fair profit according to the testimony. These circumstances go to show intention, because, though the goods may be under invoiced, yet unless fraud was intended, the undervaluation will not work a forfeiture. The United States is only bound in the first instance to prove to the court probable cause. I have no difficulty in saying that the United States has abundantly shown probable cause; the burden of proof is hence thrown upon the claimant."

"It is said that although some of the goods were undervalued, some were not so, and should not be condemned. The law is this -- if in any particular package the prices of some of them are undervalued, and some of them are fair, if the whole package has been made up by a false valuation with intent to defraud the revenue, the whole is forfeited. The same is the case with an invoice. Although it may be composed of some packages fairly made up, yet if the whole invoice has been made up with intent to defraud, the whole invoice will be forfeited. If the cost of the whole invoice offered for entry is made up with intent to defraud, the whole of the goods contained in it are forfeited."

"The first question for your decision, then, is whether the goods were put in the invoice under their cost or value; if so, whether such undervaluation was with a view to defraud; if this were so, then as to those goods there can be no difficulty; whether the other goods in the invoice are to be forfeited must depend on the intent of the party in making up the invoice."

"1st. And thereupon, the counsel for the claimant did except to so much of the said charge as decided upon the question of probable cause as a question of law, taking it entirely from the jury."

"2d. And to so much of the said charge as decided that under the present information the jury should not be restricted in their condemnation to any restricted goods which they found undervalued, but find first either the whole package, or second, the invoice in which they were imported, forfeited, though containing other goods correctly valued, if they should find that such package or invoice had been made up with intent to defraud the revenue of the United States. "

Page 45 U. S. 258

"And forasmuch as the exceptions aforesaid do not appear of record, the said defendant prayed that the court will sign and seal this his bill of exceptions, which is done accordingly."

"ARCHIBALD RANDALL"