Jen Dao Chen v. United States

• Decision Date: 13 November 1967
• Docket Number: No. 20210.,20210.
• Citation: 385 F.2d 939
• Parties: JEN DAO CHEN, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

385 F.2d 939 (1967)

JEN DAO CHEN, Appellant, v. UNITED STATES of America, Appellee.

No. 20210.

United States Court of Appeals Ninth Circuit.

November 13, 1967.

Wayne M. Collins, San Francisco, Cal., for appellant.

William M. Byrne, Jr., U. S. Atty., Donald A. Fareed, Morton H. Boren, Larry L. Dier, Asst. U. S. Attys., Los Angeles, Cal., for appellee.

Before CHAMBERS, POPE and JERTBERG, Circuit Judges.

POPE, Circuit Judge.

This was a proceeding brought by the United States in the court below for the purpose of procuring a forfeiture of certain objects alleged to have been imported into the United States by means of a false declaration in violation of 19 U.S.C. § 1592. Forfeiture is also claimed on the ground that the objects, hereinafter described, were brought into the United States without procuring an import license as required by a Treasury regulation (CFR Title 31, § 500.204), promulgated by the Secretary of the Treasury and which related to the importing or otherwise dealing in merchandise originating in China.

The appellant here, claimant below, Jen Dao Chen, answered the Government's libel; the case was tried to a jury which returned a verdict approving forfeiture of these objects. The objects in question are a painted silk scroll entitled "Pleasure In Fishing", an antique dating from the Sung Dynasty, (A. D. 960-1127), and a bronze tortoise, also an antique. Chen is a resident of Hong Kong. He purchased the scroll in 1946 and he purchased the bronze tortoise in the United States in 1953, and had it shipped to Hong Kong. Chen undertook to arrange for delivery of these two objects to the Boston Museum of Fine Arts with a view of possible future sale.

On March 22, 1960, in Hong Kong, Chen delivered these two objects to one Paul Yang who was about to emigrate to the United States. Yang signed a receipt for the objects. Chen instructed Yang to deliver the objects to a Mr. or Mrs. Shu in San Francisco who were to arrange delivery of the objects to the Boston Museum. Chen had exhibited these antiques to Yang and explained to him that they were art objects of considerable value. (The bronze was valued at $12,000 and the painting at from $10,000 to $12,000.) Yang was given photostatic copies of documents to show where and when Chen had purchased these items in order to enable Yang to show United States officials that they did not originate in Red China at a time which would prohibit their importation and to establish that they were nondutiable.

Yang was instructed that if the United States custom officers refused entry of the two items, Yang was to ship them back to Hong Kong C.O.D. Yang boarded the plane in Hong Kong, flew to Tokyo and then after a few hours lay-over, during which he unwrapped the packages and examined the articles, he flew on to Seattle via Anchorage. During the flight, and before reaching Seattle, an airline stewardess handed out a form (U. S. Customs Baggage Declaration Entry Form #6063) to each of the passengers including Yang. One of the questions on the form was as follows:

"Do you have articles for sale or carried as an accommodation for others? Commercial samples?

Yes No ."

Yang, with the help of a fellow passenger and an airline employee, filled out the form and placed a check mark in the "No" square.

After Yang's baggage was checked by U. S. custom officials in Seattle, he flew on to San Francisco where he was met by the Shus at the airport. However, Yang refused to hand the art objects over to them at that time. He continued to refuse delivery to the Shus during his stay in San Francisco of six months, and even after he moved to Los Angeles taking the two art objects with him. Yang stored the antiques with various friends in Los Angeles until he deposited them in a vault at the Bank of America in Hollywood. The vault receipt was made out in the name of one of Yang's friends. A jury would be warranted in inferring from this conduct that not only then but during his trip to the United States Yang had determined to steal and convert these two objects to his own use.

The claimant Chen notified officers that he had given these art objects to Yang who had not given them to the Shus as directed, and had not sent him the proceeds of their sale. On November 4, 1960, Yang was arrested in Los Angeles and the two art objects were seized. The libel of information was then filed seeking their forfeiture. The amended libel of information on which the case was tried was in two counts. The first count alleged that the painted scroll and bronze tortoise were imported in the United States by means of a false Customs Baggage Declaration and Entry Form 6063, in violation of 19 U.S.C. § 1592; the second count alleged that these art objects were imported into the United States without obtaining the specific authorization of the Secretary of the Treasury in violation of the provisions of the regulation requiring an import license as provided in 31 C.F.R. § 500.204. Upon trial and hearing Chen appeared as claimant and requested the giving of certain instructions hereafter referred to. The jury found in favor of the United States and forfeiture was adjudged based upon the jury's verdict.

With respect to the first count, which is based on the alleged false declaration, the principal contention of the appellant is that the court was in error in refusing to give certain instructions requested by the claimant Chen. Several such requested instructions, which were substantially the same in meaning, were offered and rejected by the court. Requested Instruction No. 17(a) is fairly representative of these refused instructions. It reads as follows:

"You are instructed that if you find that Paul C. Yang was entrusted by the claimant Jen Dao Chen to bring the `Bronze Tortoise' and the painting entitled `Pleasure in Fishing' to the United States and deliver them to Mrs. C. Y. Shu in San Francisco, he became the agent of the owner Jen Dao Chen for such purpose at the time the goods were delivered to him. If you also find that after receiving the two articles from him the said Paul C. Yang stole, embezzled or converted the two art objects to his own use and deprived Jen Dao...