Ritterman v. United States

• Decision Date: 10 June 1926
• Docket Number: No. 392.,392.
• Citation: 12 F.2d 849
• Parties: RITTERMAN v. UNITED STATES.
• Court: U.S. Court of Appeals — Second Circuit

12 F.2d 849 (1926)

RITTERMAN v. UNITED STATES.

No. 392.

Circuit Court of Appeals, Second Circuit.

June 10, 1926.

Barnes, McKenna & Halstead, of New York City (Albert MacC. Barnes, Jr., and James M. Snee, both of New York City, of counsel), for plaintiff in error.

Harry B. Amey, U. S. Atty., of Island Pond, Vt., and Allen Martin, Asst. U. S. Atty., of Essex Junction, Vt.

Before ROGERS, MANTON, and HAND, Circuit Judges.

MANTON, Circuit Judge.

The indictment charged the defendant with crime in eight counts, but one of which was submitted to the jury. That count charged that on the 28th of January, 1926, while the plaintiff in error was a passenger on an international train from Montreal to New York, he did, within the district of Vermont, with intent to evade the payment of certain duties on some unset cut diamonds of great value, unlawfully, willfully, knowingly, and feloniously smuggle and clandestinely introduce them into the United States, without making any proper declaration to any customs officer of the United States, and without causing the diamonds to be invoiced for the purpose of ascertaining the duties thereon. It set forth that the plaintiff in error had an opportunity so to do and failed.

Before leaving Montreal, he went to the United States customs office there and offered a traveling bag for inspection prior to checking it through to New York City. He was asked if it contained his personal effects, to which he answered in the affirmative. The bag was inspected, corded, and sealed, and the manifest was marked with baggage check number by the customs officer, and it was sent on the same evening train over the international railroad on which the plaintiff in error traveled. The customs officer was instructed to watch the plaintiff in error. On the train, plaintiff in error was asked by the customs inspector whether he had anything to declare, first in Canada and later in Vermont, to which he answered, "No." The inspector went to the baggage car and verified the fact that the traveling bag was there by looking at the number on the manifest and saw that the seal was intact. One of the government inspectors testified that, while in Canada, on the first inquiry of the plaintiff in error whether he had anything to declare, he said, "No, there it is," pointing to a small handbag at his berth, and, on the second inquiry as to whether he had anything to declare, he said, "No."

When the train arrived at Swanton Junction, Vt., the plaintiff in error was asked by the deputy inspector of customs if he had anything to declare, and replied that he had not. However, at this time no reference was made to the bag in the baggage car. When the train arrived at St. Albans, Vt., which was the first port of entry and the first opportunity to declare the diamonds, the plaintiff in error was requested to leave the train, and there was confronted by the collector of customs, and the bag was removed from the baggage car to his office. But this was without the knowledge of the plaintiff in error. He was then asked if he had anything to declare, to which he answered, "No." Asked if he had any diamonds to declare, he answered, "No, sir." He was asked, "Are you sure you have nothing to declare?" and he said, "I have nothing to declare." A third question was asked, "Have you any diamonds to declare?" to which he answered, "No, sir." He was then asked if he had in his baggage or on his person any articles intended for any other person or for sale, or purchase by him on commission for others, which he had not declared to the collector, and he answered, "No." Further, he was asked, "Have you any articles in your baggage or on your person that belongs to any other person?" and his answer was, "No." He was then told that the officers had information to the effect that he had a quantity of diamonds in his possession the day before in Montreal, and he replied, "I did; I placed those diamonds in the safety deposit box of the Bank of Nova Scotia in Montreal."

Thereupon the customs inspector told him it would be necessary to examine his person. He stepped into an adjoining room and an examination was thereupon made. He was asked to remove his hat, coat, overcoat, collar, and necktie. He was asked for the key of his bag, which he gave after the second request. While removing his clothing, he said that he would like to talk to one of the inspectors alone. He said to one of the inspectors, "I have got to speak to you alone," to which the inspector said, "Come into the other room;" and he said, "I haven't the diamonds on my person; they are in my grip." This was then repeated in the presence of another inspector. The bag was opened and the diamonds were found; some in a pocket inside the collar box, others in socks, and still more in a talcum powder box. The diamonds thus found were valued at $122,492.43, and these were seized. No evidence was offered on behalf of the defendant. Upon these facts he was convicted of the charge submitted to the jury.

The court charged the jury that "if you find that the defendant falsely and fraudulently, intending to defraud the revenue of the United States, told Collector Whitehill and Assistant Collector Walsh at the customs house that he did not have any diamonds to declare, this completed the offense of smuggling, notwithstanding that later, while his person was being searched by Assistant Collector Walsh at the customs house, he admitted that he had some diamonds in his Gladstone bag." Exception was taken to this charge, and it is assigned as error.

If the facts, as thus proven by the government, did not constitute the offense of smuggling under section 593 of the Tariff Act of 1922, this charge was erroneous. We think it did not. That section provides:

"(a) If any person knowingly and willfully, with intent to defraud the revenue of the United States, smuggles, or clandestinely introduces, into the United States any merchandise which should have been invoiced, or makes out or passes, or attempts to pass, through the customhouse any false, forged, or fraudulent invoice, every such person, his, her, or their aiders, and abettors, shall be deemed guilty of a misdemeanor. * * *

"(b) If any person fraudulently or knowingly imports or brings into the United States, or assists in so doing, any merchandise, contrary to law, or receives, conceals, buys, sells, or in any manner facilitates the transportation, concealment, or sale of such merchandise after importation, knowing the same to have been imported or brought into the United States contrary to law, such merchandise shall be forfeited and the offender shall be fined in any sum not exceeding $5,000 nor less than $50, or be imprisoned for any time not exceeding two years, or both."

42 Stat. 858 (Comp. St. Ann. Supp. 1923, §§ 5841h12, 5841h13).

In Keck v. United States, 172 U. S. 434, 19 S. Ct. 254, 43 L. Ed. 505, it was held that an offense under subdivision (a) of this section is not committed by an act done before the obligation to pay or account for the duties arises, although acts on the part of the prisoner may indicate a future purpose to evade when the period of payment or securing the payment of duties has been reached. Keck, through a confederate in Europe, gave a package of diamonds to a ship's captain to bring to the United States and send to him at Cincinnati. The package was taken by the captain, and when the vessel arrived at Philadelphia it was boarded by a Treasury agent, who had information that the captain was endeavoring to smuggle diamonds at the instance of Keck. The captain was asked if he had a package of diamonds for Coaterman Diamond Company, 24 West Fourth street,...