United States v. One Bag of Paradise and Ghoura Feathers
Decision Date | 15 January 1919 |
Docket Number | 147. |
Citation | 256 F. 301 |
Parties | UNITED STATES v. ONE BAG OF PARADISE AND GHOURA FEATHERS. |
Court | U.S. Court of Appeals — Second Circuit |
The government filed a libel asking for the forfeiture of certain plumage of wild birds alleged to have been imported contrary to law and in violation of section 3082 of the Revised Statutes (Comp. St. Sec. 5785), claiming that the importation of such plumage was prohibited by section 347 of the Tariff Act (Act Oct. 3, 1913, c. 16, Sec. 1, Schedule N, 38 Stat 148 (Comp. St. Sec. 5291)). The libel covers three lots of merchandise described as items 1, 2, and 3. The seizure of the merchandise referred to in items 1 and 2 was made at the steamship dock at the time of the arrival of the steamship Kroonland on November 26, 1916, and was taken from the custody of one Angelo Tartaglino, who had concealed the plumage in a belt which he wore about his body. Since no answer was interposed, either by way of admission or denial as to items 1 and 2 of the libel, a forfeiture was decreed as of course.
The third item referred to in the libel consisted of a seizure of plumage taken from the claimant's premises in the city of New York on May 31, 1917. The claimant conducts a wholesale feather business at this latter place of seizure. Practically all of the feathers of wild birds that were found on his premises were seized, and were in a manufactured state; that is to say, were bound with feathers and made up into a piece with a stick on the end, and wound around with wire, and some were upon cardboards, some in boxes, and others loose and unmanufactured.
Upon the trial, claimant's counsel made the following concessions: 'I will concede, for the claimant, that the witness Tartaglino on October 23, 1916, smuggled into this country six belts of paradise feathers, and they were delivered to the claimant, Arthur Arbib, within a few days thereafter, with knowledge on the part of the claimant that six belts of feathers had been smuggled into this country.'
It will be noted that this concession was confined to the paradise feathers. Arbib's relation to Tartaglino was not only conceded by counsel, but there was Tartaglino's confession. The other evidence indicated that Tartaglino was a cook employed aboard the ship Kroonland and the Philadelphia, and made four trips upon the former and one trip upon the latter vessel. He bought the smuggled plumage from one Felice Strada, who was a steward on the American Line, and that he smuggled feathers on two of his trips from the Kroonland arriving in New York on October 23, 1916, and November 26, 1916. Each time he took the belt containing the feathers to the home of one Ruscetta in New York City, and on one occasion, during the stay of the Kroonland in this port, at 11 o'clock at night he met the claimant, whom he identified in the courtroom, and received $300 for his services and that of Strada. On one occasion he received feathers from the claimant's brother and brought them to this country.
Upon the trial, both the libelant and claimant asked for a decree; the former of forfeiture of the merchandise in dispute. The court decreed a forfeiture of the paradise feathers and quills to the government, and the Ghoura feathers, paradise heads, and paradise wings were awarded to the claimant, holding that as to the latter plumage there was no evidence to show that they were imported on the first trip. Both libelant and claimant, feeling aggrieved with the above decree, have sued out a writ of error, and the cause comes here for review. We shall therefore refer to the parties as libelant and claimant throughout.
Francis G. Caffey, U.S. Atty., of New York City (Harold Harper, Asst. U.S. atty., of New York City, of counsel), for the United States.
Barber, Watson & Gibboney, of New York City (Stuart G. Gibboney and George M. Burditt, both of New York City, of counsel), for claimant.
Before WARD, HOUGH, and MANTON, Circuit Judges.
MANTON Circuit Judge (after stating the facts as above).
The question presented here for review is as to the ruling of the court below regarding merchandise mentioned in item 3 of the libel.
Section 3082 of the Revised Statutes provides as follows:
And paragraph 347 of the Tariff Act, which imposes an import duty upon feathers and other merchandise, contains a proviso as follows:
'Provided, that the importation of aigrettes, egret plumes or so-called osprey plumes, and the feathers, quills, heads, wings, tails, skins, or parts of skins, of wild birds, either raw or manufactured, and not for scientific or educational purposes, is hereby prohibited; but this provision shall not apply to the feathers or plumes of ostriches, or to the feathers or plumes of domestic fowls of any kind.'
It is claimed by the libelant on this appeal that, in the absence of exculpatory proof by the claimant, the court below should have directed the forfeiture of the entire seizure of plumage and parts, the importation of which was prohibited, and insists that it was not necessary for the libelant to establish a prima facie case, but merely reasonable grounds of suspicion. Apart from the concession above referred to the paradise feathers, consisting of six belts of feathers, were imported on October 23, 1916, by smuggling them into this country and subsequent delivery to Arbib, and with full...
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