Sarkisian v. United States
| Decision Date | 24 January 1973 |
| Docket Number | No. 72-1115.,72-1115. |
| Parties | H. Medill SARKISIAN, Appellant, v. UNITED STATES of America, and Kelly Tipps, Port Director of Customs for State and District of Colorado, Appellees. UNITED STATES of America, Appellee, v. ONE PACKAGE OF ANTIQUES AND INDIAN JEWELRY, Appellant. |
| Court | U.S. Court of Appeals — Tenth Circuit |
Albert B. Wolf, of Meer & Wolf, Denver, Colo. (Walter Slatkin, Denver, Colo., with him on the brief), for appellant.
Charles W. Johnson, Asst. U. S. Atty. (James L. Treece, U. S. Atty., with him on the brief), for appellees.
Before PHILLIPS, SETH, and HOLLOWAY, Circuit Judges.
Two suits were filed in the United States District Court for the District of Colorado concerning an air shipment of jewelry which arrived at Denver, Colorado, from Lebanon. The jewelry was seized by customs agents when the container was opened at the airport. The owner filed an action to recover it, and the Government filed proceedings to forfeit the shipment. The suits were consolidated and the trial court held for the Government. The owner has taken this appeal which raises several issues, including the constitutional implications in the delay by the Government in instituting forfeiture proceedings, the failure of proof by the Government, the unconstitutional burden of proof placed on the owner by statute, and that attempted forfeiture of all the items in the container was improper.
The record shows that the owner bought old jewelry in the Near East, and sent a suitcase containing some jewelry from Beirut to Denver. The shipment arrived at Denver while the owner was still in Europe. Upon its arrival, the carrier asked a representative of the owner's customs broker if he would receive it. This representative did not usually handle the owner's shipments, so he called the owner's office and was told to do the "paper work" on the bag. However no information as to the contents or the invoices was given to the representative and he had no such information from other sources other than invoices given him by the carrier. Some of the invoices had been attached to the outside of the parcel, and as it later developed some were inside and one was missing. The representative, in the presence of the customs agent, made out a form of Application for Immediate Delivery (AID) under 19 C.F.R. § 8.59, and attached the invoices given to him by the carrier. These invoices indicated that practically all of the items they covered were antiques. The representative wrote on the AID form "antiques." The bag was opened by customs, and it was revealed that the invoices attached to the AID form did not cover the entire contents of the bag, that other invoices were wrapped in small parcels in the bag and one was missing. The agent seized the shipment on April 24, 1969, apparently because all the invoices were not presented. When the owner returned he presented the missing invoice on May 13, 1969. The customs authorities took the position that all the items in the bag were not antiques and there was correspondence on this point. The goods were sent to New York twice for examination as to their antiquity. The invoices did not describe all the items as antique. However, the owner in a letter dated May 26, 1969, did assert to customs that all were antiques, and asked about the status of the matter. This claim that all were antiques was obviously wrong, and he later retracted this as to some of the items. This letter was taken by the officials to be a request for remission or mitigation of penalties under 19 U.S.C. § 1618, and an investigation was conducted. Five of the items were returned to the owner as being antiques. The investigation was concluded on September 16, 1969, and a report submitted. There was later correspondence on the antique subject, and inquiries by the owner as to the status of the matter. The explanations given by the owner as to why one invoice was missing were implausible, but the absence of the invoice was not a real issue in the case although considerable consideration was given to the matter. The regulations do not require all invoices to be presented with the Application for Immediate Delivery. The issue before suit related to the antique question as indicated by the return of some items to the owner.
The owner filed suit on April 28, 1970, to have the goods returned to him, some conferences were had, and the United States Attorney indicated that he would file suit within thirty days if the matter was not resolved. The thirty days expired and no such suit was filed. The trial judge's secretary then called the United States Attorney to remind him of the thirty day period. The Government suit seeking forfeiture was filed a few days thereafter on June 24, 1970. The antique issue continued at the trial, and the Government there acknowledged that some of the remaining items were antiques, and did not contest the claim as to others. However, it continued to assert that some of the jewelry was not antique.
We consider the delay in commencing proceedings by the Government to be the basic issue on appeal. The owner of the goods urges that the delay by the collector in taking action under 19 U.S.C. § 1603 to report to the United States Attorney that the seizure had been made constituted a violation of his constitutional rights, and was also a failure to follow the statutory provisions properly construed. The owner relies on requirements for protection of Fifth Amendment rights mentioned in United States v. United States Coin & Currency, 401 U.S. 715, 91 S.Ct. 1041, 28 L.Ed. 2d 434, concerning a forfeiture sought under 26 U.S.C. § 7302, and the requirements read into 19 U.S.C. § 1305(a) in United States v. Thirty-Seven Photographs, 402 U.S. 363, 91 S.Ct. 1400, 28 L.Ed.2d 822, for its constitutional "salvation" under Freedman v. Maryland, 380 U.S. 51, 85 S.Ct. 734, 13 L.Ed.2d 649.
We view the delay issue here presented as having essentially the same implications, and involving the same principles as were considered in Thirty-Seven Photographs. As hereinafter indicated we consider only one segment of the total time which elapsed.
The pertinent statutory provisions relating to the delay issue are as follows:
19 U.S.C. § 1602 provides in part:
It is apparent that the sections referring to the officer making the initial seizure and to the United States Attorney require immediate action. Section 1603 relating to the collector to whom the seizure is reported contains no language requiring expeditious determination of whether...
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