U.S. v. One 1976 Mercedes 450 SLC

• Decision Date: 16 February 1982
• Docket Number: No. 80-5158,80-5158
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. ONE 1976 MERCEDES 450 SLC, Etc., Defendant-Appellant. . Unit B *
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1171

667 F.2d 1171

UNITED STATES of America, Plaintiff-Appellee, v. ONE 1976 MERCEDES 450 SLC, Etc., Defendant-Appellant.

No. 80-5158.

United States Court of Appeals, Fifth Circuit.

Unit B ^*

Feb. 16, 1982.

Datz, Jacobson & Lembcke, Albert J. Datz, Jacksonville, Fla., for defendant-appellant.

Robert S. Yerkes, Asst. U. S. Atty., Jacksonville, Fla., for plaintiff-appellee.

Before JONES, FAY and HENDERSON, Circuit Judges.

JONES, Circuit Judge:

Claude Harold was convicted in the district court on charges of unlawfully removing five cartons of chinaware from United States Customs' custody and control in violation of 18 U.S.C. § 549 (1976). ¹ Following Harold's conviction, the government commenced these 19 U.S.C. § 1595a (1976) proceedings to obtain the forfeiture of a Mercedes-Benz automobile Harold used in the theft. On cross motions for summary judgment, the district court granted the government's motion and ordered the automobile condemned as forfeited.

In this appeal, Harold claims that he was entitled to summary judgment on two grounds: first, his automobile was not subject to forfeiture under section 1595a because the chinaware he attempted to steal had not been and was not being introduced into the United States contrary to law; second, the ten and one-half month delay between the seizure of the automobile and the institution of these forfeiture proceedings unjustifiably deprived Harold of his right to due process and bars forfeiture in this case. Harold claims that if he is not entitled to summary judgment, he is entitled to proceed to trial before a jury because a material fact is in dispute.

For the reasons stated below, we find that none of Harold's claims has merit. We therefore affirm.

I.

On November 4, 1977, the TYLSA, a Norwegian cargo ship, arrived at the Jacksonville, Florida, Port Authority facility on Blount Island. After properly making entry and presenting the required documentation to U. S. Customs, the TYLSA received permission to offload cargo. On November 7, a portion of this cargo, including 297 cartons of Japanese chinaware, was brought ashore.

Harold, a Port Authority employee, and three others were working on the dock when the cargo was offloaded. They "stripped" the cartons of chinaware from the containers in which they had been shipped and stacked them on wooden pallets. The cartons were then taken to a warehouse where Customs officers were to examine and appraise the chinaware and assess a duty to be paid by the consignee. See 19 U.S.C. § 1499 (1976). Five of these cartons never reached the warehouse, however. Instead, they were diverted to the pumphouse of an adjacent warehouse where they were hidden.

Customs and Port Authority security officers soon discovered the five cartons in the pumphouse and set up surveillance of the area. At approximately 12:10 p. m. on November 7, Harold drove up to the site in a forklift, went into the pumphouse, and then drove away. Within minutes he returned to the area in his Mercedes-Benz automobile. As a Port Authority security officer looked on, Harold went into the pumphouse and then emerged with four cartons of chinaware which he placed at the rear of his Mercedes. He opened the trunk of the car and was loading the cartons into it when he was arrested. Harold was subsequently indicted under 18 U.S.C. § 549 (1976), which prohibits the unlawful removal of merchandise from Customs' custody and control.

In his criminal jury trial, which began March 20, 1978, Harold raised two defenses: first, he was not stealing the cartons, but was in the process of retrieving them for proper storage by Customs; second, the goods were not in the control of Customs, and he therefore had not acted in violation of 18 U.S.C. § 549. These defenses were rejected and Harold was convicted. He appealed, and in February, 1979, we affirmed his conviction. United States v. Harold, 588 F.2d 1136 (5th Cir. 1979).

Sometime during or shortly after his trial, Harold received a Notice of Seizure from Customs informing him of Customs' intent to seek forfeiture of his Mercedes and of his right to petition for administrative relief. On April 18, Harold filed such a petition, and Customs instituted an investigation of the matter. On May 18, 1978, as the result of that investigation, Customs amended the Notice of Seizure. In June, Harold responded with an amended petition for administrative relief, and Customs again investigated the matter. On July 31, 1978, Customs completed its investigation and on August 2, 1978, Customs denied Harold's petition. On September 20, 1978, these forfeiture proceedings commenced.

In his answer to the government's complaint, Harold made no claim that the government's delay in bringing suit denied him due process and thus required dismissal of the case with prejudice. Harold simply joined issue with the government by denying what the government alleged, that he had introduced the chinaware into the United States contrary to law. Harold's answer also suggested that the reversal of his criminal conviction, then pending on appeal, would foreclose the government's forfeiture claim, implying that a stay of the forfeiture proceedings would be in order. The case laid dormant until five months after Harold's criminal conviction was affirmed by this court and the mandate issued. Harold then amended his answer to the forfeiture complaint to allege that the government's delay in concluding the forfeiture proceedings denied him due process. Both parties moved for summary judgment, and the district court, finding no issue of material fact, entered judgment for the government.

II.

Section 1595a of Title 19, provides, in pertinent part, that:

every ... vehicle ... used in, to aid in, or to facilitate ... the importation, bringing in, unlading, landing, removal, concealing, harboring, or subsequent transportation of any article which is being or has been introduced, or attempted to be introduced, into the United States contrary to law, whether upon such ... vehicle, ... or otherwise, shall be seized and forfeited.... (emphasis supplied).

In this appeal, Harold admits that he attempted to steal the chinaware and that his conduct was contrary to law within the meaning of the statute. ² He contends that his Mercedes-Benz is nevertheless immune from forfeiture because the chinaware had already been introduced into the United States lawfully before he attempted to steal it.

The question for us is a narrow one: was Harold introducing, or attempting to introduce, the chinaware into the United States when he was arrested by the Customs officers?

To determine proper interpretation of "introduced ... into the United States contrary to law," we look to the legislative history of the forfeiture provision. Section 1595a of Title 19 is derived from 19 U.S.C. § 483 (1952) "with no important change in substance." S.Rep. No. 2326, 83rd Cong. 2d Sess. (1954), reprinted in 1954 U.S.Cong. & Adm.News 3900, 3905. Section 483, in turn, was part of the Anti-Smuggling Act of August 5, 1935. Pub.L. No. 74-438, 49 Stat. 517-529 (the Act). This Act, and consequently the present forfeiture statute, was directed at smugglers of large quantities of dutiable goods, primarily alcohol, who sought to "evade our revenue laws," S.Rep. No. 1036, 74th Cong. 1st Sess. 1 (1935), to the extent of some $20 million annually during the 1930's. 81 Cong.Rec. 11937-38 (1935). Such smugglers generally operated from large ships hovering outside the customs waters. These so-called "hovering boats" would offload dutiable merchandise onto small, swift craft that would "introduce" the articles into the United States by making runs to the coast, thus avoiding entirely the Customs revenue laws. See 81 Cong.Rec. 11938 (1935).

The teaching of this legislative history, is that dutiable merchandise is "introduced ... into the United States contrary to law" whenever steps are taken to avoid the payment of a Customs duty. Such evasion occurs if the goods are not entered at the Customhouse upon their arrival in the United States, in accordance with 19 U.S.C. § 1433 (1976), see Lee v. Thorton, 398 F.Supp. 970, 973-74 (D.Vt.1975), rev'd on other grounds, 538 F.2d 27 (2d Cir. 1976); are not declared; or if declared, are undervalued. See 19 U.S.C. §§ 1484 and 1485 (1976). See also 18 U.S.C. § 545 (1976) (it is unlawful clandestinely to introduce merchandise into the United States that ought to have been declared or invoiced). The payment of duties is also avoided when the goods are stolen from the Customhouse, as in this case.

Harold's theft, had it succeeded, would have deprived the United States of the revenue lawfully due it on the chinaware. Harold had no intention of paying the duty, and had the theft been consummated, the consignee would have been relieved of its obligation to pay such a duty. 19 U.S.C. § 1563 (1976). Congress sought to remedy this situation by passing the forfeiture statute. The statute reaches one who deprives the United States of revenue by stealing merchandise just as it reached the rum runner who avoided the Customhouse altogether. The district court correctly held that Harold's theft was an attempt to introduce dutiable merchandise into the United States contrary to law.

III.

Harold argues that the district court should have dismissed this case because of...