U.S. v. Lespier, Nos. 77-1346

• Decision Date: 28 June 1979
• Docket Number: Nos. 77-1346,77-1347
• Citation: 601 F.2d 22
• Parties: UNITED STATES of America, Appellee, v. Santiago Panzardi LESPIER, Defendant, Appellant. UNITED STATES of America, Appellee, v. Jose Eduardo Panzardi ALVAREZ, Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

Page 22

601 F.2d 22

UNITED STATES of America, Appellee, v. Santiago Panzardi LESPIER, Defendant, Appellant.

UNITED STATES of America, Appellee, v. Jose Eduardo Panzardi ALVAREZ, Defendant, Appellant.

Nos. 77-1346, 77-1347.

United States Court of Appeals First Circuit.

Argued Feb. 5, 1979.

Decided June 28, 1979.

Carlos Perez Olivo, San Juan, P. R., for defendants, appellants.

Daniel F. Lopez Romo, Asst. U. S. Atty., San Juan, P. R., with whom Julio Morales Sanchez, U. S. Atty., San Juan, P. R., was on brief, for appellee.

Before COFFIN, Chief Judge, CAMPBELL, Circuit Judge, JAMESON, Senior District Judge. ^*

JAMESON, District Judge:

Appellants, Santiago Panzardi Lespier and Jose Eduardo Panzardi Alvarez, were convicted of willfully and knowingly, and, with intent to defraud the United States, smuggling and clandestinely introducing into the United States merchandise which should have been invoiced, i. e., 234 cases of liquor, in violation of 18 U.S.C. §§ 2 and 545. ¹ The sole question presented on this appeal is whether the district court erred in denying appellants' motion to dismiss the indictment on the ground that they could not be found guilty of smuggling because the merchandise had not been landed on shore when their vessel was intercepted and they were arrested by United States Customs officers.

Factual Background

The facts are undisputed. On the night of December 7, 1976, United States Customs agents, acting pursuant to a tip, spotted a boat entering the St. Thomas, Virgin Islands area with its lights "extinguished". Through the use of a night scope the agents observed the boat dock and a group of men loading cases of liquor from a truck into the boat. Whenever other boats approached the area the loading was stopped. After the loading was completed, the boat, later identified as the Bomari, left St. Thomas, and headed directly toward Puerto Rico. The running lights were off until the boat was 200 to 300 yards from the dock. The boat was then followed visually by the Customs agents while the lights were on, as well as by night scope and radar. When the Bomari was about one mile from the coast of Culebra, an island off the shore of Puerto Rico and within the United States territorial waters, the running lights were again extinguished. The boat started to change course and use evasive tactics. The Customs boats turned on their sirens and gave chase. The Bomari almost crashed into one of the Customs boats.

After overtaking and boarding the Bomari, the agents found 234 cases of liquor covered by a tarp. Neither of the appellants possessed the required manifest or invoice for the liquor. When a Customs agent asked Panzardi Lespier if he had a manifest or invoice, he replied, "No, I have nothing", and said he had bought the liquor with his own money. Later, after landing, he told the agents that the liquor was owned by a military officer of the Dominican Republic and that the Bomari's final port was the Dominican Republic.

At trial the Government and appellants stipulated that the point at which the Customs agents intercepted the Bomari was one mile offshore Culebra. Appellants then moved to dismiss the indictment for failure to show that they had landed the goods on shore. The district court denied the motion, and both appellants were convicted in a jury trial.

Statutory Provisions

The statute involved, 18 U.S.C. § 545, is a compilation of several earlier statutes. The first paragraph prohibits persons from knowingly and willfully, with intent to defraud the United States, Smuggling or clandestinely introducing into the United States any merchandise which should have been invoiced. The second paragraph prohibits persons from fraudulently or knowingly, Importing or bringing into the United States any merchandise contrary to law. ² These paragraphs have been held to constitute two distinct and separate offenses. ³ Appellants were charged with violating the first paragraph.

Contentions on Appeal

Appellants contend that while they may have been guilty of importing or bringing into the United States merchandise contrary to law, they were not guilty of smuggling or clandestinely introducing merchandise because they did not bring the liquor on shore. This, they argue, is an essential element of the smuggling offense under Keck v. United States, 172 U.S. 434, 19 S.Ct. 254, 43 L.Ed. 505 (1899).

In contending that appellants were properly charged under the first paragraph of § 545, the Government argues that it is not required in every case to show that the goods were actually landed on shore. It contends that (1) the smuggling of goods into the United States must be considered with reference to the "place, circumstances, and intention where the goods were found"; (2) smuggling refers to any method of introducing goods into the United States "surreptitiously by concealment or fraud"; and (3) this case, unlike Keck, involved a "commercial shipment" of liquor that could not be brought into Puerto Rico because it was prohibited by law.

Definition of Smuggling under "Keck"

In Keck v. United States, supra, the Court held that the offense of smuggling or clandestine introduction of goods into the United States is not committed until the goods are landed on shore. It is necessary to review the holdings in Keck and its progeny in the light of the facts in this case to determine whether, as the Government contends, factual and statutory differences will sustain appellants' convictions, even though the goods had not been landed on shore when the vessel was intercepted and the appellants placed under arrest.

In Keck the defendant Keck persuaded Loesewitz, the captain of the steamer Rhynland, to carry a small package with him from Holland to Philadelphia, and from there to send it by mail to an address in Cincinnati. Keck told Loesewitz that the package did not contain any valuables, when in fact it contained diamonds. When the Rhynland docked in Philadelphia, Treasury agents immediately went aboard and asked the captain for the package. After obtaining identification from the agents, Loesewitz turned the package over to them. Keck was charged with smuggling in violation of section 2865 of the Revised Codes. ⁴ In appealing his conviction, Keck contended that while his acts may have constituted an attempt to smuggle, the offense was not completed because his obligation to pay the customs duties had not yet arisen at the time Loesewitz turned the diamonds over to the authorities.

The Supreme Court drew two conclusions as to the definitions of "smuggling or clandestine introduction" from the text of section 2865: (1) the statute did not include mere attempts to smuggle or clandestinely introduce; and (2) the smuggling or clandestine introduction of goods referred to in section 2865 must be "without paying or accounting for the duty". From the first conclusion the Court reasoned that "mere acts of concealment of merchandise on entering the waters of the United States, however preparatory they may be and however cogently they may indicate an intention of thereafter smuggling or clandestinely introducing, at best are but steps or attempts not alone in themselves constituting smuggling or clandestine introduction". From the second conclusion the court reasoned that "as the words, 'without paying or accounting for the duty', imply the existence of the obligation to pay or account at the time of the commission of the offense, which duty is evaded by the guilty act, it follows that the offense is not committed by an act done before the obligation to pay or account for the duty arises, although such act may indicate a future purpose to evade when the period of paying or securing the payment of duties has been reached". 172 U.S. at 444-45, 19 S.Ct. at 257-58.

The Court buttressed its interpretation of section 2865 by looking to the common law definition of smuggling. In English law "smuggling" and "clandestine introduction" signified the "bringing of (dutiable) goods on land, without authority of law, in order to evade the payment of duty, thus illegally crossing the line of the customs authorities". 172 U.S. at 446-47, 19 S.Ct. at 258. ⁵ A review of prior English and American statutes convinced the Court that a distinction had always been drawn between smuggling the ultimate result and the means leading up to its accomplishment. ⁶ Because the package of diamonds was not passed through the lines of customs authorities but was delivered to them on board the boat "at a time when or before the obligation to make entry and pay the duties arose", the Court concluded Keck had not committed the offense of smuggling within the meaning of section 2865, 172 U.S. at 459, 19 S.Ct. at 263. ⁷

In United States v. Ritterman, 273 U.S. 261, 47 S.Ct. 371, 71 L.Ed. 636 (1927), the defendant left Montreal, Canada, for New York, with diamonds hidden in his hand bag. He did not declare the diamonds to a United States Customs inspector in Montreal, nor did he declare them to the Customs inspector when he crossed the border from Canada into Vermont. Only when Customs agents began a personal search of the defendant did he inform the agents he had diamonds in his bag. The Second Circuit Court of Appeals reversed defendant's conviction, holding that Keck established smuggling could not be committed before the moment the obligation to pay the duty arose, that is, after the duty was established at the custom house. The Supreme Court reversed, stating: "Keck v. United States Did not decide that a man who wishes to smuggle must wait until he can find a custom house". Rather, "(i)ts effect is simply that the customs line is not passed by goods at sea when they pass the three-mile limit and have not yet been landed". ⁸

In addition to Keck, appellants rely heavily on Wong Bing Nung v. United States, 221 F.2d 917 (9 Cir. 1955). The defendant, a seaman aboard an American vessel, transported merchandise from the Orient, half of which he declared and...