256 F. 301 (2nd Cir. 1919), 147, United States v. One Bag of Paradise and Ghoura Feathers

Docket Nº:147.
Citation:256 F. 301
Case Date:January 15, 1919
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit

Page 301

256 F. 301 (2nd Cir. 1919)




No. 147.

United States Court of Appeals, Second Circuit.

January 15, 1919

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

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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:

'If any person shall fraudulently or knowingly import or bring into the United States, or assist in so doing, any merchandise, contrary to law, or shall receive, conceal, buy, sell, or in any manner facilitate the transportation, concealment...

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