RATTANCRAFT OF CALIFORNIA v. United States

• Decision Date: 15 December 1972
• Docket Number: A.R.D. 308,Reappraisement R67/1241 and two others.
• Citation: 351 F. Supp. 1401
• Court: U.S. Court of Customs and Patent Appeals (CCPA)
• Parties: RATTANCRAFT OF CALIFORNIA and Harper, Robinson & Co. et al., Appellants, v. UNITED STATES, Appellee.

351 F. Supp. 1401

RATTANCRAFT OF CALIFORNIA and Harper, Robinson & Co. et al., Appellants, v. UNITED STATES, Appellee.

A.R.D. 308; Reappraisement R67/1241 and two others.

United States Customs Court, Second Division, Appellate Term.

December 15, 1972.

Glad & Tuttle, Los Angeles (Edward N. Glad, Los Angeles, Cal., of counsel), for appellants.

Harlington Wood, Jr., Asst. Atty. Gen. (Velta A. Melnbrencis and Andrew P. Vance, New York City, trial attorneys), for appellee.

Before RAO, FORD, and NEWMAN, Judges.

RAO, Judge:

This matter is before the court on application for review for the second time. At issue is the sufficiency of the evidence presented to establish that the imported merchandise was freely sold, or offered for sale, to all purchasers at the invoice unit values. Appraisement was made at said values plus items marked "X", representing inland freight and shipping charges. The appraisement was deemed separable and appellants claim that under the separability rule the proof presented is sufficient.

When this case was originally before the trial court, evidence was introduced in the form of affidavits of the manufacturers, testimony of David L. More, president of the importing firm, and a report and testimony of Perry J. Spanos, who had been senior customs representative in Hong Kong during the relevant period. The affidavits all stated that the manufacturers offered their merchandise to all purchasers at either an f. o. b. price or an ex-factory price at the option of the buyer. The importer's president testified that he instructed the firm's buying agent, Kwong Hop & Co., Ltd., to purchase at ex-factory prices.

Mr. Spanos testified that during the relevant period inland freight and shipping charges in southeast Asia were pretty constant and ran as high as 5 percent of the purchase price for bulky merchandise. The invoices herein set forth amounts which, when computed as percentages of the purchase prices, run from 13 to 39 percent. Mr. Spanos' report sets out information obtained from H. H. Peng, manager of Kwong Hop, to the effect that the inland charges were overstated and included amounts of money paid as bribes to certain admeasurers and surveyors for understating cubic footage for purposes of determining the cost of ocean freight, and that Kwong Hop acted as the exclusive selling agent of one of the manufacturers.

On the record thus presented, the trial court held the evidence insufficient to establish plaintiffs' claims. Rattancraft of Calif., Harper, Robinson & Co. et al. v. United States, 66 Cust.Ct. 538, R.D. 11737 (1971). It stated (pp. 541-542):

While I am in agreement with plaintiffs' basic premise that in this separable appraisement their burden of proof consists of showing that the merchandise is freely offered for sale without the disputed charges, I do not agree that the nature of the disputed charges is of no moment. When the nature of the disputed charges is itself a subject of dispute, I am of the opinion that the entire climate of the case is affected. The fact that there has evidently been a manipulation of the sums attributed to inland freight and shipping gives rise to the need for a rigorous examination of plaintiffs' proof and lessens the impact and weight of the existing proof. Thus, a quantum of proof which, in another case, might be adequate to establish that merchandise is freely sold without disputed charges is not adequate herein. The weight to be given to evidence is a matter peculiarly within the province of the trial judge and is properly influenced by the factual setting. D. C. Andrews & Co., Inc., et al. v. United States, 50 Cust.Ct. 521, A. R.D. 151 (1963). I consider the testimony together with the affidavits of the manufacturers to lack the detail and persuasiveness which the circumstances of this case demand.

* * * The dispute surrounding the nature of the separable charges is relevant insofar as it affects the weight to be given to plaintiffs' proof on the issue of ex-factory price.

On application for review, we examined the evidence in detail, noting the weaknesses of appellants' case, especially in that, as appellants admitted, there was nothing in the record to show that the merchandise was freely offered for sale to all purchasers on an ex-factory basis other than the bare statements in the affidavits, and further noting that the report of Mr. Spanos cast doubt on the credibility of appellants' evidence. Rattancraft of California, Harper, Robinson & Co. et al. v. United States, 68 Cust.Ct. 303, A.R.D. 298, 336 F.Supp. 1401 (1972). The court concluded that on the basis of the record before the trial court, it would have affirmed.

However, subsequent to the date of the trial court's decision, Mr. Spanos was convicted of theft of government property. This court, in view of the fact that the trial judge had laid great stress on Mr. Spanos' report, and that Mr. Spanos' credibility had been put into question by his conviction of a crime involving moral turpitude, remanded the case to the trial court with directions to receive evidence of the conviction, and to reconsider its original determination and make new findings after weighing the testimony and report of Spanos in the light of his conviction.

On remand, the trial court duly received evidence of Spanos' conviction and reconsidered his testimony and report in the light thereof. Rattancraft of California, Harper, Robinson & Co. et al. v. United States, 68 Cust.Ct. 243, R. D. 11764, 340 F.Supp. 978 (1972). The trial judge adhered to his original decision, stating (p. 248, 340 F.Supp. p. 982):

I am still inclined to give the testimony and report a good measure of credence and considerable weight. In so doing I am exercising the prerogative of a trial judge to determine the credibility of witnesses and the weight to be attached to their testimony. See 89 C.J.S. Trial § 593b (1955).

It must be kept in mind that impeachment is an attack on credibility. It is not ipso facto the complete destruction of credibility. State v. Wehde, 226 Iowa 47, 283 N.W. 104, 105 (1938). Impeachment is only one element or factor to be considered in determining a witness' credibility. Walker County Lumber Co. et al. v. Sweet et al., Tex.Civ.App., 40 S.W.2d 225, 227 (1931); cf. Bosserman v. Watson, 230 Iowa 627, 298 N.W. 804, 811 (1941). I do

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