Rogers v. United States

• Decision Date: 13 July 1910
• Docket Number: 2,009.
• Citation: 180 F. 54
• Parties: ROGERS v. UNITED STATES.
• Court: U.S. Court of Appeals — Sixth Circuit

180 F. 54

ROGERS v. UNITED STATES.

No. 2,009.

United States Court of Appeals, Sixth Circuit.

July 13, 1910

[Copyrighted Material Omitted]

John W Shine, for plaintiff in error.

George G. Covell, U.S. Atty., and Wm. K. Clute, Asst. U.S. Atty.

Before SEVERENS and WARRINGTON, Circuit Judges, and SANFORD District judge.

WARRINGTON Circuit Judge.

Plaintiff in error was prosecuted and convicted under an indictment of one count returned June 8, 1909, in which it was charged that Rogers on December 9, 1908, at Sault Ste. Marie, Mich.,

' * * * did unlawfully, knowingly and fraudulently import and bring into the United States certain merchandise, to wit, 3 1/2 yards of black woolen suiting cloth of the value of, to wit, $10, contrary to law, that is to say, clandestinely and without entering the same at the United States Customs Office and port of entry with the United States Collector of Customs * * * and paying the duty thereon; the same being foreign merchandise subject to an import duty as provided in act July 24, 1897 (30 Stat. 151, c. 11 (U.S. Comp. St. 1901, p. 1626)). * * * '

The verdict was rendered June 15, 1909, and sentence to pay a fine of $100 was pronounced on the following day. Proceedings in error were instituted to have the case reviewed here. Eight assignments of error are made, but only one exception appears to have been taken before the jury was discharged, and that was to the refusal of the court to grant certain special instructions.

It is disclosed by the evidence that on December 9, 1908, Dr. Rogers, who was a resident and practicing physician of Sault Ste. Marie, Mich., took passage upon the ferryboat at Sault Ste. Marie, Ontario, and crossed the river to his own city; that upon arrival of the boat at the dock in the latter city he entered a footway leading southwestwardly toward the northwest corner of the ferry ticket office and to a point within a few feet of the northeast corner of the customs office maintained there, the footway leading thence through a gate opening into a fenced inclosure and extending along the north, east, and south sides of the ticket office to a point opposite the southerly portion of the customs office, where the footway turned southwardly into a passageway extending along the east side of the immigrant office through another gateway and southwardly to an adjacent street car line. The distance between the west side of the ferry ticket office and the east side of the customs office is 14 feet; the former abutting on the east side and the latter on the west side of this 14-foot way.

This way is generally used for vehicles and foot passengers alike, but at the time in question the passengers taking the ferry on the Ontario side, as well as those taking it on the Michigan side, were required to pay their fares on the Michigan side of the river; and gates were maintained in addition to those before mentioned, at the northeast and southwest corners of the ticket office, and a turnstile was in the footway upon the south side of that office.

Dr. Rogers had passed along the footway to and through the gate first mentioned to a point about one-half the width of the ticket office, when he was successfully hailed by a call from a customs deputy collector and inspector, who, standing within a few feet of the gate at the first turn in the footway, had vainly called to him (Rogers) three times before. Rogers then turned from an eastward to a westward course and walked to the customs office, where, being asked by the deputy 'if he had any dutiable merchandise about him,' he answered, 'Yes, I have.' Upon request of the deputy to let him have it, Rogers 'took the cloth from under his overcoat and gave it' to the deputy. The latter testified that:

'It was pinned on his breast outside of his undercoat and under his fur coat with safety pins, and his overcoat was completely buttoned over it.'

There are two customs offices in the city of Sault Ste. Marie, Mich. The main office is some distance, perhaps a mile, from the dock. The branch office is the customs office first mentioned herein and at the time had a sign 'United States Customs Office' conspicuously posted at the door and in public view. The testimony of Rogers was in substance the same as that of the deputy. Rogers explained that his brother had given him the cloth to be made into a suit; that the reason he carried the cloth under his coat was that he intended to take it to the main customs office to have it appraised and to pay the duty there; that he had had a difficulty with a government immigration officer who was stationed at the dock, and he supposed he would be the one to appraise the goods; that, while he heard the customs deputy say 'Doctor,' he supposed he was saluting him and claimed to have said 'Good day' in response, but when he heard him call out 'Dr. Rogers' he stopped, and then walked to the customs office, where the conversation and giving up of the cloth took place as stated by the deputy. Rogers also made these statements:

'I had no intention to evade payment of the duty on the goods whatever. * * * It was not my intention to enter the goods at the customs office at the dock, and I had them under my coat so I could get them by and go on up to the main office. I knew they were dutiable and that the customs office at the dock was located there as described.'

The customs collector testified that:

'Goods below the value of $10 are appraised at the dock office and paid there. Above that amount they are appraised and paid at my head office.'

The cloth was appraised at $7, and the duty amounted to $5.70.

What offense, if any, was charged and committed? The case appears to have been treated below as involving the offense of 'smuggling,' yet, in spite of the familiar legal significance of that word, it is not found in the indictment. Some confusion has arisen in the arguments because of this omission. A portion of the language of the indictment, as well as the indorsement upon it, shows that it was in part drawn under section 3082 of the Revised Statutes (U.S. Comp. St. 1901, p. 2014). But as observed by Mr. Justice White in Keck v. United States, 172 U.S. 434, 437, 19 Sup.Ct. 254, 255, 43 L.Ed. 505, when speaking of the words of that section 'contrary to law':

'The words 'contrary to law' contained in the statute clearly relate to legal provisions not found in section 3082 itself.'

See, also, United States v. Chesbrough (D.C.) 176 F. 778, 780; United States v. Kee Ho (D.C.) 33 F. 333; United States v. Claflin, 13 Blatchf. 178, 186, Fed. Cas. No. 14,798.

Counsel for both sides appear at the trial to have regarded the indictment in its entirety as sufficient to identify and so in effect to incorporate the elements as well as the acts constituting the offense of smuggling, as that offense is defined and denounced by section 2865 (page 1905). The learned trial judge evidently treated the indictment in the same way. It is stated in the record that 'the court charged the jury, among other things, in substance':

'The goods may be said to have been introduced into the country, under this statute, when the respondent arrived at the customs office located on the dock, and if the respondent passed the customs office at that place with the intention of evading the duty, the offense was committed, and he would be guilty of the offense charged in the indictment, even though he was still within the inclosure.'

Neither the form nor the sufficiency of the indictment was questioned by demurrer or motion of any character. Indeed, counsel for the accused in his supplemental brief seems anxious to show that the indictment is sufficient, definitely to charge the offense of smuggling. He says:

'The terms 'smuggling' and to 'clandestinely introduce' into the country mean the same thing, all 'relating to the actual passing of the goods through the customs lines.' Keck v. United States, 172 U.S. 455 (19 Sup.Ct. 261, 43 L.Ed. 505).'

The reason for this contention is doubtless to be found in that portion of the indictment which charges that defendant 'did unlawfully, knowingly, and fraudulently * * * bring into the United States certain merchandise * * * clandestinely and without entering the same at the United States Customs Office * * * and paying the duty thereon. * * * ' Manifestly to 'bring into * * * clandestinely' is the same as to 'clandestinely introduce'; and counsel for the accused rightly contends in effect that, if clandestinely introducing is not the same as smuggling, it is quite as certainly denounced as is smuggling by section 2865. See United States v. Chesbrough (D.C.) 176 F. 782, as to meaning of the word 'bring' as used in the phrase 'import or bring' of section 3082. Moreover, the true test of an indictment is not whether it might have been made definite and certain, but whether it contains every element of the offense intended to be charged and 'sufficiently apprises the defendant of what he must be prepared to meet.' Cochran & Sayre v. United States, 157 U.S. 286, 290, 15 Sup.Ct. 628, 630, 39 L.Ed. 704; Dunbar v. United States, 156 U.S. 185, 190, 15 Sup.Ct. 325, 39 L.Ed. 390.

The effort of the district attorney to sustain the conviction under sections 3098 and 3099 of the Revised Statutes (U.S Comp. St. 1901, p. 2026)--which in substance inhibit and denounce neglect or refusal of masters of certain vessels and other persons coming into this country from adjacent foreign territory with dutiable merchandise, to deliver a manifest thereof at the office of the customs collector nearest to the place of crossing the boundary line-- is not only seemingly inconsistent with his treatment of the indictment at the trial, but if sound is suggestive of fatal vagueness and uncertainty. The...