Huff v. United States

• Decision Date: 14 December 1959
• Docket Number: No. 17690.,17690.
• Parties: Robert Frederick HUFF, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

273 F.2d 56 (1959)

Robert Frederick HUFF, Appellant, v. UNITED STATES of America, Appellee.

No. 17690.

United States Court of Appeals Fifth Circuit.

December 14, 1959.

COPYRIGHT MATERIAL OMITTED

Joseph A. Calamia, Daniel Y. Garbern, El Paso, Tex., Gerald Weatherly, Laredo, Tex., for appellant.

James E. Hammond, Asst. U. S. Atty., El Paso, Tex., Russell B. Wine, U. S. Atty., San Antonio, Tex., Lawrence L. Fuller, Asst. U. S. Atty., El Paso, Tex., for appellee.

Before RIVES, Chief Judge, and HUTCHESON and TUTTLE, Circuit Judges.

RIVES, Chief Judge.

The jury returned a verdict of guilty on two counts charging violations of Section 545, Title 18 United States Code.¹ Upon the judgment of conviction on that verdict, the defendant was sentenced to two years' imprisonment on each count, the sentences to run concurrently. This appeal ensued.

The first count was based upon the first paragraph of Section 545, quoted in footnote 1, supra, and charged that on or about September 4, 1958, in El Paso County, Texas, the defendant "with intent to defraud the United States, knowingly and wilfully smuggled and clandestinely introduced into the United States certain merchandise which had not been invoiced as required by law, to wit, One Lady's Diamond Ring, Emerald cut, approximately 2¼ carat in an iridium platinum setting; One Man's Diamond Ring, approximately 2 carats, in white gold setting; One Man's Diamond Ring, approximately 1 carat, in white gold setting; Four Lady's Rings with semiprecious stones and Four Man's Rings with semi-precious stones, and One 21 Jewel Man's Longines Wrist Watch in platinum case with platinum bracelet."

The second count was based upon the second paragraph of Section 545, quoted in footnote 1, supra. The time, place, and the description of the jewelry or merchandise were the same as in the first count. The second count charged that the defendant "fraudulently and knowingly concealed and facilitated the transportation and concealment after importation of" said described jewelry or merchandise "knowing the same to have been imported and brought into the United States contrary to law, and without having been invoiced as required by law."

The appellant's first insistence on error is in the denial of his motion to dismiss the indictment because each count failed to show that any particular law required that the articles be invoiced, and the words "contrary to law" in the second count were insufficient without the allegation of additional facts coupled with the violation of some specific law claimed to be violated. The Government filed what it termed a "controverting motion," paragraph numbered III of which reads as follows:

"If the defendant desired additional information or facts concerning the alleged violation, the said defendant should have made his motion for a bill of particulars as to the desired information, which was not done; that the defendant and his attorneys are well aware that the merchandise was smuggled and introduced into this country and was transported and concealed in this country without having been invoiced as required under Title 19, Section 1484, United States Code."

In Dunbar v. United States, 1895, 156 U.S. 185, 193, 15 S.Ct. 325, 328, 39 L.Ed. 390, the Court approved as the general understanding of the meaning of "smuggling," Bouvier's definition, "The fraudulent taking into a country, or out of it, merchandise which is lawfully prohibited." In the leading case of Keck v. United States, 1899, 172 U.S. 434, 455, 19 S.Ct. 254, 43 L.Ed. 505, the Court construed the predecessor to Title 18, Section 545, United States Code, and commented at great length on the meaning of "smuggles, or clandestinely introduces" in part as follows:

"A reference to the English statutes sustains the statement of the text writers above quoted that the words `smuggling\' and `clandestine introduction,\' so far at least as respected the introduction of dutiable goods from without the kingdom, signified the bringing of the goods on land, without authority of law, in order to evade the payment of duty; thus illegally crossing the line of the customs authorities." Keck v. United States, supra, 172 U.S. at pages 446, 447, 19 S.Ct. at page 258.

See also Wong Bing Nung v. United States, 9 Cir., 1955, 221 F.2d 917, 919; Hill v. United States, 4 Cir., 1930, 42 F.2d 812, 814; Tomplain v. United States, 5 Cir., 1930, 42 F.2d 203, 204.

In the Keck case, supra, a count was held sufficient which charged:

"* * * in substance that Keck `did knowingly, willfully and unlawfully, and with intent to defraud the revenue of the United States, smuggle and clandestinely introduce into the United States, to wit, into the port of Philadelphia,\' certain `diamonds\' of a stated value, which should have been invoiced, and duty thereon paid or accounted for, but which, to the knowledge of Keck and with intent to defraud the revenue, were not invoiced nor the duty paid or accounted for." 172 U.S. at page 438, 19 S.Ct. at page 255.

In Hill v. United States, supra, the Fourth Circuit said that there could be no question as to the sufficiency of a count charging smuggling and clandestine introduction in the language of the former statute, and commented generally, "The time has passed when convictions will be reversed in the courts of the United States for mere technical defects in pleading." 42 F.2d 812, 814. See also Rules 2 and 7(c) of the Federal Rules of Criminal Procedure, 18 U.S.C. "designed to eliminate technicalities in criminal pleading and to simplify procedure." Contreras v. United States, 5 Cir., 1954, 213 F.2d 96, 99.

The opinion in Babb v. United States, 5 Cir., 1955, 218 F.2d 538, 540, carefully pointed out that the indictment there held insufficient was under the second distinct paragraph of Section 545, quoted in footnote 1, supra, and explained that,

"There is a vast difference between smuggling, clandestinely introducing, using false or forged documents, etc., on the one hand, and importing, bringing in or receiving, etc., merchandise, since the first manifestly is unlawful and evil per se, while importing, bringing in, receiving, etc., after importation, is not."

See also particularly footnotes 3, 4, and 7 to that opinion. In the present case, we conclude that the first count was clearly sufficient as against the motion to dismiss.

When the second count used the phrase, "without having been invoiced as required by law," the omission of the citation of Section 1484 of Title 19, U.S.C.A. supplied by the Government's "controverting motion" did not furnish ground for the dismissal of the count. Rule 7(c), Federal Rules of Criminal Procedure. Under the holding of the last Babb case, 5 Cir., 1958, 252 F.2d 702, we think that the second count also was entirely sufficient as against the motion to dismiss.

As we construe the Government's "controverting motion" from which we have quoted, 273 F.2d at page 58, it relied as to the first count on the well-understood meaning of the words "smuggled and clandestinely introduced into the United States," but, as to the second count, it elected to rely upon the claimed violation of Section 1484, Title 19, U.S.C.A. Unfortunately for the Government, however, no attempt was made to prove one of the requirements of that Section. The Act of August 8, 1953, c. 397, § 16(b), 67 Stat. 509, 517, substituted "five days" for "forty-eight hours" in the second sentence of Section 1484(a) so as to allow entry to be made within five days after the report of the vehicle. According to the Government's evidence, the defendant in his automobile entered the United States from Mexico by way of the Santa Fe Street Bridge at El Paso, Texas, and passed through one of the customs inspection lanes provided at the end of that bridge — all on September 4, 1958. The proof of failure to make entry for the jewelry or merchandise described in the indictment extended only through September 6.²

The defendant moved for a judgment of acquittal at the close of all the evidence on the ground that the evidence was insufficient to sustain a conviction. Rule 29, Federal Rules of Criminal Procedure, does not require the grounds of such a motion to be more specifically stated. See United States v. Jones, 7 Cir., 1949, 174 F.2d 746, 748. Without more, then, we must hold that the denial of defendant's motion for judgment of acquittal as to the second count would require a reversal unless the two-year concurrent sentence can be sustained under the first count. See Abrams v. United States, 1919, 250 U.S. 616, 619, 40 S.Ct. 17, 63 L.Ed. 1173; Sinclair v. United States, 1929, 279 U.S. 263, 299, 49 S.Ct. 268, 73 L.Ed. 692.

The defendant's arrest and prosecution grew out of...