United States v. 218 1/2 Carats Loose Emeralds

• Decision Date: 11 January 1907
• Docket Number: 219.
• Parties: UNITED STATES v. 218 1/2 CARATS LOOSE EMERALDS
• Court: U.S. District Court — Southern District of New York

153 F. 643

UNITED STATES v. 218 1/2 CARATS LOOSE EMERALDS

No. 219.

United States District Court, S.D. New York.

January 11, 1907

Henry L. Stimson, U.S. Atty., and Winfred T. Denison and Felix Frankfurter, Asst. U.S. Attys.

Louis S. Phillips, for claimant.

HOLT District Judge.

This action is brought for the forfeiture of certain emeralds alleged to have been brought into this country in violation of the customs laws. The claimant, Manuel J. Suarez, a resident of Bogota, in the republic of Colombia, South America, arrived at New York on October 3, 1906, on the steamship Oceanic, from England. His native language was Spanish. He could not speak English, but had some knowledge of the French language, although how much does not clearly appear. On the arrival of the ship the customs officer who took the declarations of the passengers asked him, in French if he understood French, and he said that he did. He asked him how many pieces of baggage he had, and he answered 'Three.' The examiner testified that he did not seem to clearly understand his questions as to what particular kind of baggage he had. The examiner thereupon drew his pen through the printed form on the declaration for the insertion of the number of trunks, bags, or valises, boxes, and other packages, and wrote under the head of 'Total,' at the end, the figure '3.' The officer asked him, in French, whether he had anything to declare, whether he had any gifts for other persons, and whether he had anything to sell, to all of which he answered, 'No.' Thereupon Suarez signed his name at the end of the declaration, and swore to it before the officer. Suarez then left the ship and went on the dock. He had as baggage a trunk, a box, and two handbags tied together. He stated to the customs officer on the dock that he was going to Colombia, that he wished to leave with the collector the trunk and the box, and that he wished to take with him while in this country the two bags. They were thereupon opened, the contents examined and found to contain nothing dutiable, and were labeled by the customs inspector as being passed. The customs inspector then called another inspector, who spoke Spanish, and directed him to ask Suarez whether he had any precious stones or jewelry upon his person or in his pockets. The inspector did so in Spanish putting various specific and particular inquiries, and to all of them Suarez answered in the negative. He was then taken on board the steamer and searched, and in the pocket of his overcoat was found a package which contained cut emeralds, loose and unpierced, weighing 218 1/2 carats, which were thereupon seized by the government and which are the subject of this suit for confiscation. The information claims that these goods should be forfeited on the ground that the merchandise was imported by means of a fraudulent and false written statement and affidavit, to wit, the sworn baggage declaration, and by means of a fraudulent and false verbal statement, to wit, the false statement that he had not any precious stones in his baggage, and by means of a false and fraudulent practice, to wit, that he had the emeralds concealed on his person at the time of landing, in violation of section 9 of Act Cong. June 10, 1890, c. 407, 26 Stat. 135 (U.S. Comp. St. 1901, p. 1895), commonly called the 'Customs Administration Act.' The essential part of such section is as follows:

'That if any owner, importer, consignee, agent, or other person shall make or attempt to make any entry of imported merchandise by means of any fraudulent or false statement, written or verbal, or by means of any false or fraudulent practice or appliance whatsoever, or shall be guilty of any willful act or omission by means whereof the United States shall be deprived of the lawful duties, or any portion thereof, accruing upon the merchandise, or the portion thereof, embraced or referred to in such invoice, affidavit, letter, paper, or statement, or affected by such act or omission, such merchandise, or the value thereof, to be recovered from the person making the entry, shall be forfeited.'

In my opinion the first part of section 9 relates to fraudulent or false invoices or other papers or statements, written or verbal, or practices or appliances, resorted to or employed in connection with the entry of merchandise, the entry of which itself is not concealed. I think, therefore, that the evidence in this case does not establish the charge contained in the original first cause of forfeiture alleged in the information. Upon the trial, however, the first cause of information was amended by alleging that Suarez was guilty of a willful act and omission by means whereof the United States might be and was deprived of lawful duties accruing upon the said merchandise, to wit, in willfully omitting to mention said merchandise in the declaration and statements, written and oral, made by him to the customs officers. This amendment states a case covered by the latter part of section 9 of the customs administration act, and, in my opinion, is established by the evidence. The baggage declaration which Suarez signed and swore to states, in its printed form, that he arrived with the total of three pieces of baggage, and regarding the two handbags which were fastened together as one, this statement was correct. I think that, strictly speaking, this package of emeralds was not baggage or a part of baggage. It may, however, have been brought over in one of the trunks, boxes, or bags of Suarez, in which case it would have been his duty to declare it in the declaration. The fact that French was not his native language, and that he was not examined in Spanish at the time the declaration was made, would make it proper not to lay too much weight on his omission to declare these emeralds as part of his baggage, although the inspector testified that he asked him whether he had anything to declare or any gifts, or anything to sell. But the evidence of Hawes, the inspector who spoke Spanish, that he explicitly and repeatedly asked him whether he had any jewelry or precious stones in his pockets or about his person, to all of which questions he replied, 'No,' satisfies me that Suarez understood the purpose of the inquiry, and was intentionally...