Newman v. United States, 40.
| Decision Date | 16 November 1921 |
| Docket Number | 40. |
| Citation | 276 F. 798 |
| Parties | NEWMAN v. UNITED STATES. |
| Court | U.S. Court of Appeals — Second Circuit |
Louis C. Whiton, of New York City, for plaintiff in error.
Wallace E. J. Collins, U.S. Atty., of Jamaica, N.Y., and Henry J Walsh, Asst. U.S. Atty., of Brooklyn, N.Y.
Before ROGERS, HOUGH and MAYER, Circuit Judges.
The single question requiring consideration is whether the facts in this case fall within Keck v. United States, 172 U.S. 434, 19 Sup.Ct. 254, 43 L.Ed. 505. In the Keck Case supra, Keck, one Von Hemmebrick and Loesewitz, the captain of the steamer Rynland, arranged in Antwerp, Belgium, that Loesewitz, on Keck's behalf, should bring a package belonging to Keck into the United States. As the Rynland approached its mooring in Philadelphia, Pa., a special agent of the Treasury Department boarded her. After a conversation between the special agent and Loesewitz, the latter delivered the package to the government agent and it was found to contain diamonds. Loesewitz had not put the diamonds on the manifest, but he did not leave the ship, nor had he made any customs declaration, up to the time he produced and delivered the package containing the diamonds. Keck was indicted, one of the counts having been laid under section 2865 of the Revised Statutes of the United States (Comp. St. Sec. 5548). That section reads as follows:
'If any person shall knowingly and willfully, with intent to defraud the revenue of the United States, smuggle, or clandestinely introduce into the United States any goods wares, or merchandise, subject to duty by law, and which should have been invoiced, without paying or accounting for the duty or shall make out or pass, or attempt to pass through the custom house any false, forged, or fraudulent invoice, every such person, his, her, or their aiders and abettors, shall be deemed guilty of a misdemeanor and on conviction thereof shall be fined in any sum not exceeding five thousand dollars, or imprisoned for any term of time not exceeding two years or both, at the discretion of the court.'
The trial court charged the jury.
'If the statements made here under oath by Capt. Loesewitz respecting his receipt of the package of diamonds in Antwerp and bringing them here are true, the defendant is guilty of the offense charged.' Upon the assumption that the acts of Loesewitz were imputable to Keck, the Supreme Court held that the purpose to smuggle was unexecuted, that the various acts were preparatory steps and, thus, that the smuggling denounced by the statute had not reached the stage of consummation. The court said:
'Examining the case made by the record, in the light of the foregoing conclusions, it results that, whether we consider the testimony of the captain alone or all the testimony contained in the record, as it unquestionably establishes that there was no passage of the package of diamonds through the lines of the custom authorities, but that on the contrary the package was delivered to the customs officer on board the vessel itself, at a time when or before the obligation to make entry and pay the duties arose, that the offense of smuggling was not committed within the meaning of the statute, and therefore that the court erred in instructing the jury that if they believed the testimony of the captain they should convict the defendant and in refusing the requested instruction that the jury upon the whole testimony should return a verdict for the defendant.'
In the case at bar, Newman, the defendant below, was a passenger on the steamship Stavangerford which arrived at the Thirtieth Street Pier in the borough of Brooklyn on February 17, 1920. Newman left the ship for the pier. Maxon, an inspector of customs had Newman's baggage declaration, and, on the pier, asked him whether he had declared everything he had purchased or obtained abroad. Newman said he had declared everything. The same question was asked of Newman by Acting Deputy Surveyor of Customs O'Connor, and the same answer was given by Newman. A customs appraiser was then called to appraise the articles set forth in Newman's customs declaration. After...
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...applied in this circuit and in other courts. See United States v. Elksnis, 528 F.2d 236, 239 (9th Cir.1975); Newman v. United States, 276 F. 798, 799-800 (2d Cir.1921), cert. denied, 258 U.S. 623, 42 S.Ct. 317, 66 L.Ed. 796 (1922); Rogers v. United States, 180 F. 54, 60-61 (6th Cir.1910); U......
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