United States v. Rosenthal

• Decision Date: 17 November 1903
• Citation: 126 F. 766
• Parties: UNITED STATES v. ROSENTHAL et al. (three cases). SAME v. BROWNE.
• Court: U.S. District Court — Southern District of New York

126 F. 766

UNITED STATES v. ROSENTHAL et al. (three cases).

SAME v. BROWNE.

United States Circuit Court, S.D. New York.

November 17, 1903

[Copyrighted Material Omitted]

Henry L. Burnett, U.S. Atty. (W. Wickham Smith, Sp. Asst. Atty Gen., of counsel).

Dittenhoefer Gerber & James (A. J. Dittenhoefer and Frank H. Platt, of counsel), for defendants Rosenthal and Cohn.

Judson G. Wells, for defendant Browne.

THOMAS District Judge.

This discussion involves the validity of four indictments, arising out of facts disclosed by them. The defendants Rosenthal and Cohn, under the name of A. S. Rosenthal & Co., imported from Japan goods dutiable by weight, which were invoiced and consulated abroad by the importers' agent, and the invoice forwarded was used by the importers to enter for immediate consumption the goods at the customhouse in New York. After the collector had estimated the duties, on the basis of the weights stated in the invoice, the defendants paid such duties and obtained the goods, save the portion thereof sent for examination to the to the appraiser's department. The defendant Browne, an examiner, returned the goods as in conformity to the invoice, and the entry was liquidated accordingly. The goods were fabrics composed of silk and cotton, and the duty was measured by the number of ounces the silk weighed per square yard, the percentage of silk in it, and by various conditions of the silk as to dyeing, etc., later herein more particularly described. On account of the special and delicate ascertainments of weight, ingredients, and other conditions required in the examination, the goods were sent to the appraiser's office, to be investigated by the examiner, in the several particulars required, rather than to the surveyor's office for the purpose of weighing. The government contends that the weights in the invoice were false, and were made so at the importers' instigation; that they used the false invoice to enter the goods, and that Browne, the examiner, upon receiving the goods that went to the appraiser's office, passed and reported them as conforming to the false invoice, having been corruptly induced so to do by the importers, and that the liquidation was made in accordance with such report; and that thereby the government was deprived of legal duties. There are four indictments, generally described as follows: An indictment against Rosenthal and Cohn for entering the goods at less than their weight, and for less than the legal duty, by means of a false invoice, which the examiner Browne confirmed by his report, corruptly induced thereto by the defendants. Indorsed under section 5445, Rev. St. (U.S. Comp. St. 1901, p. 3678). An indictment against Browne for fraudulently aiding in the entry of goods for less than the amount of the legal duty, in the manner hereinafter stated. Indorsed under section 5444 (U.S. Comp. St. 1901, p. 3677). An indictment against all the defendants for conspiracy to enter the goods as above stated. Indorsed under section 5440 (U.S. Comp. St.1901, p. 3676). An indictment against the importers for making entries by means of false invoices; also for filing with the collector declarations purporting to have been subscribed and declared before a notary public, but which were false and pretended declarations, which had not been signed or made before such notary public, which were intended to deceive the collector and induce him to admit the goods contrary to law, and which did have that result. Indorsed under section 9 of the act of June 10, 1890 (chapter 407, 26 Stat. 135 (U.S. Comp. St. 1901, p. 1895)). All of the indictments are later stated with greater technical accuracy.

The defendants raise many objections to the indictments severally, but some of them go to all the indictments. There is one broad, general objection, which is to the effect that the plan of operation charged against the defendants, whereby, as alleged, they intended to defraud the government of its revenue, was impossible of operation, because it contemplated a procedure that could not, under the rules that should obtain in the customhouse, be effectively employed. The contention is that the goods were dutiable by weight, and would go to the weighers in the surveyor's department, and not to the examiners in the appraiser's department; that the invoice does not go to the surveyor's department, as the weighers there are required to act independently of it; that Browne could not, by law, come in official relation to the goods, and that, even if he did, he could not report to the collector, as charged, but only to the assistant appraiser, and he to the appraiser, and he to the collector; and that the practice of sending the goods to the examiner, and of his reporting to the collector thereon, as charged in the indictment, was unlawful. Moreover, it is urged that the examiners and appraisers report only upon value, and that it was not their duty to report the weight of the goods to the collector, and that he, therefore, could not have acted upon any such information received from Browne. Further, it is objected that the importers were not obliged to state the weight in the invoice, unless the goods were purchased by weight, which is not alleged, and the statements therein are immaterial, and cannot legally be deemed to have influenced the entry or the liquidation of the entry. It is further objected that section 5445 has been repealed, and that section 9 of the customs administrative act now embodies the law, and that the indictment purporting to be found under section 5445 is void. The same claim is made as to the indictment against Browne alone, indorsed as found under section 5444. There are numerous other special objections to specific indictments, relating in great part to the insufficiency of allegations. The indictments will now be considered seriatim:

Indictment No. 1.

This indictment (for convenience called 'No. 1'), by its indorsement purporting to be found under section 5445, Rev. St. U.S. (U.S. Comp. St. 1901, p. 3678), charges that on February 6, 1901, the defendants, under name of A. S. Rosenthal & Co., imported at the port of New York, from Japan, mixed silk and cotton goods in the piece and silk handkerchiefs, upon which there became due 'specific duties upon the weight of a portion thereof in pounds avoirdupois'; that then and there, to wit, on February 6, 1901, defendants, with intent then and there that the United States should be wrongfully deprived of a portion of the lawful duties due upon such goods, unlawfully 'did effect an entry thereof at the customhouse * * * with the collector of customs * * * at less than the true weight thereof, and by payment of less than the amount of duty then legally due thereon, which said entry was then and there a written entry for warehousing' said goods, and numbered by the collector 22,680; 'and the effecting of which said entry in the manner and for the purpose aforesaid was then and there accomplished by' defendants 'by their theretofore directing and causing their agents in Japan aforesaid to make an invoice of the said goods, * * * and have the same certified by a consul 'of the United States as required by law, and forwarded with the said goods * * * ' to defendants 'as the consular invoice upon which to make, and upon which they thereafter did make, the entry aforesaid, * * * which said invoice contained certain false statements of the weight of certain of the said goods; * * * ' a statement that the weight 'of the goods in case numbered 1,891, mentioned in said invoice, was 28,812 mommos, equivalent to 238 1/2 pounds avoirdupois, whereas in truth * * * the weight thereof was 328 1/2 pounds avoirdupois; * * * and by their making the entry hereinabove described upon and in accordance with the said invoice, and the false statements so contained therein as aforesaid, and then by their corruptly procuring the said invoice to be wrongfully approved, passed, and reported to the said collector as true, so far as the said false statements of weights were concerned, by the examiner of merchandise at the said port before whom the same thereupon came for examination according to law and the practice at the said port.' The statement may be further reduced to this: The defendants, on a day named, with intent to defraud the United States of duty on goods specifically dutiable according to weight, effected an entry thereof, which was an entry for warehousing the goods, at less than their weight, and by payment of less than the legal duty. They effected said entry (1) by making it in accordance with false statements as to weight in the invoice, which invoice had by their direction been made, consulated, and forwarded by their agent in Japan; (2) by corruptly procuring said invoice to be wrongfully approved, passed, and reported by Browne, the examiner, to the collector.

Section 5445, Rev. St. U.S. (U.S. Comp. St. 1901, p. 3678), is as follows:

'Every person who, by any means whatever, knowingly effects, or aids in effecting any entry of any goods, wares, or merchandise at less than the true weight or measure thereof, or upon a false classification thereof as to quality or value, or by the payment of less than the amount of duty legally due thereon, shall be fined,' etc.

The offense described is 'knowingly effecting' an entry of goods (1) at less than their true weight or measure; (2) upon a false classification; or (3) by payment of less than legal duty. The word 'knowingly' applies to each of the three alternatives. Now apply this statute to the indictment. The defendants, with intent to defraud the United States of duty on goods dutiable by weight, effected an entry at less than their true weight, and by payment of less than legal duty. This is equivalent to...