United States v. Murray

• Citation: 5 CIT 102,561 F. Supp. 448
• Decision Date: 21 March 1983
• Docket Number: Court No. 82-2-00235.
• Parties: UNITED STATES, Plaintiff, v. John E. MURRAY, Jr., Stephen P. Hopkins and Paul C. Ryan, Defendants.
• Court: U.S. Court of International Trade

561 F. Supp. 448

5 CIT 102

UNITED STATES, Plaintiff, v. John E. MURRAY, Jr., Stephen P. Hopkins and Paul C. Ryan, Defendants.

Court No. 82-2-00235.

United States Court of International Trade.

March 21, 1983.

COPYRIGHT MATERIAL OMITTED

J. Paul McGrath, Asst. Atty. Gen., David M. Cohen, Director, Commercial Litigation Branch (A. David Lafer, Washington, D.C., on briefs), for plaintiff.

Widett, Slater & Goldman, Boston, Mass. (Jerome Gotkin and Steven M. Sayers, Boston, Mass., on briefs), for defendant John E. Murray, Jr.

Mahoney, Hawkes & Goldings, Boston, Mass. (Morris M. Goldings, Boston, Mass., on briefs), for defendants Stephen P. Hopkins and Paul C. Ryan.

Opinion and Order

MALETZ, Senior Judge.

The United States brought this action against defendants John E. Murray, Jr., Stephen P. Hopkins and Paul C. Ryan to recover the value of merchandise allegedly entered in violation of section 592 of the Tariff Act of 1930, as amended, 19 U.S.C. § 1592 (1976).¹ The Government alleges that defendants submitted false statements in 83 separate entries as to the value and country of origin of animal glue. Defendants Murray and Hopkins were indicted in connection with 21 of those 83 entries. Murray was convicted of violating 18 U.S.C. §§ 371 and 542.² His conviction was affirmed by the First Circuit Court of Appeals. United States v. Murray, 621 F.2d 1163 (1st Cir.1980). Hopkins was acquitted of all criminal charges. Defendant Ryan was not a party to these criminal proceedings.

Defendants have moved to dismiss the action on four grounds: (1) lack of subject matter jurisdiction; (2) insufficiency of process; (3) failure to state a claim upon which relief can be granted; and (4) insufficiency of service of process.³ For the reasons that follow, the court concludes that defendants' motion must be denied.

I

In support of their contention that this court lacks subject matter jurisdiction, defendants make a two-pronged argument. First, according to defendants, former section 592 authorized the commencement of in rem actions only. They continue that this court only possesses in personam jurisdiction over actions such as this which have been brought pursuant to 28 U.S.C. § 1582.⁴ Consequently, defendants conclude, the court lacks jurisdiction over the present action since it must necessarily be in rem in nature. However, it is now established that this court may exercise jurisdiction over all section 592 actions — in rem as well as in personam — regardless of whether such actions are brought under the pre- or post-1978 version of that statute. Thus, in United States v. Accurate Mould Co., Ltd. 4 CIT ___, 546 F.Supp. 567 (1982), this court rejected the argument that it lacked jurisdiction over an in rem forfeiture proceeding brought under former section 592, stating:

The jurisdictional grant to this court over actions under section 592 is clear and without limitation. 28 U.S.C. § 1582, as amended by the Customs Courts Act of 1980, is not limited by the date of the import transaction. Nor is that section limited to actions which are brought under the present provisions of section 592. To the contrary, it is simply a grant over any action brought under section 592 irrespective of whether it is brought under the present provision of section 592 or under the provision which was in effect prior to the amendments made by the Customs Procedure Reform and Simplification Act of 1978.

* * * * * *

In sum, Congress in enacting the Customs Courts Act of 1980 provided this court, in plain and unambiguous language, with exclusive jurisdiction over all section 592 actions commenced on or after January 30, 1981.

Id. at ___, 546 F.Supp. at 568 (emphasis in original). Accord United States v. Shineman, 4 CIT ___, Slip Op. 82-77 (September 17, 1982).

In short, regardless of whether an action is commenced under former or present section 592, this court has jurisdiction over such an action pursuant to 28 U.S.C. § 1582, as amended by the Customs Courts Act of 1980.

II

Defendants next claim that the process in this action is defective because the summons did not bear the signature of the clerk or deputy clerk of the court, or the seal of the court. Defendants contend that this is mandated by Form 4 of the Appendix of Forms to the rules of this court.

But there is no direction in either those rules or the Appendix of Forms which requires that a "Form 4" summons bear either the signature of the clerk or deputy clerk, or the seal of the court. Hence, the court finds no merit in this argument. The cases cited by defendants in support of their contention hold that the absence of both the seal of the court and the signature of the clerk renders the summons void and not amendable. See, e.g., Kramer v. Scientific Control Corp., 365 F.Supp. 780 (E.D.Pa. 1973); Peaslee v. Haberstro, 19 F.Cas. 71 (C.C.N.D.N.Y.1879) (No. 10,844); and Dwight v. Merritt, 4 F. 614 (C.C.S.D.N.Y. 1880). However, these authorities are all district court cases and therefore not relevant to the controversy here. Thus, rule 4(b) of the Federal Rules of Civil Procedure provides that "the summons shall be signed by the clerk, be under the seal of the court, contain the name of the court and the names of the parties, ..." By contrast, this court's rule 4(b) does not require that the summons "be signed by the clerk" or "be under the seal of the court." In addition, 28 U.S.C. § 2632(a) provides in part that:

A civil action in the Court of International Trade shall be commenced by filing concurrently with the clerk of the court a summons and complaint, with the content and in the form, manner, and style prescribed by the rules of the court.

Measured against these provisions, and coupled with the fact that this court is one of nationwide jurisdiction necessitating greater flexibility in its procedures, the absence of a rule expressly requiring the clerk's signature and court seal on the summons of this court evidences an intention to dispense with such requirements. Accordingly, it is concluded that there is no defect in the process in this action.

III

Defendants have further moved for dismissal, pursuant to rule 12(b)(5), asserting various grounds for their position that the Government has failed to state a claim upon which relief can be granted. Among those grounds are autrefois acquit (prior acquittal),⁵ double jeopardy, res judicata, collateral estoppel, and violations of the due process clause. As indicated above, defendants further argue that section 592 only allows in rem actions, thereby barring the present in personam proceedings.

The court considers each of these arguments, beginning with the claim of double jeopardy.

A

In determining whether the double jeopardy clause is implicated in a putatively civil action such as the present one, the following two-tier inquiry is to be used:

The question whether a particular statutorily-defined penalty is civil or criminal is a matter of statutory construction.... First, we have set out to determine whether Congress, in establishing the penalizing mechanism, indicated either expressly or impliedly a preference for one label or the other.... Second, where Congress has indicated an intention to establish a civil penalty, we have inquired further whether the statutory scheme was so punitive either in purpose or effect as to negate that intention.... In regard to this latter inquiry, we have noted that "only the clearest proof could suffice to establish the unconstitutionality of a statute on such a ground."

United States v. Ward, 448 U.S. 242, 248-49, 100 S.Ct. 2636, 2641, 65 L.Ed.2d 742 (1980) (citations omitted). As to the legislative purpose of section 592, it would seem clear that Congress intended that section to be a civil remedial sanction. Indeed, in United States v. Alcatex, Inc., 328 F.Supp. 129 (S.D.N.Y.1971), this very issue was presented for resolution in the context of a claim of double jeopardy. The court, noting Congress' clear intent to provide for both punitive and remedial sanctions by providing for the former in Title 18 of the United States Code and for the latter in Title 19 of the United States Code, found that Congress did not intend to make them mutually exclusive.⁶ The court therefore concluded that section 592 must be viewed as creating a civil action in the context of a double jeopardy claim. Id. at 132-33.

A consideration of related Supreme Court decisions leads to no different conclusion. See, e.g., One Lot Emerald Cut Stones and One Ring v. United States, 409 U.S. 232, 235, 93 S.Ct. 489, 492, 34 L.Ed.2d 438 (1972) (double jeopardy clause does not foreclose a forfeiture action under 19 U.S.C. § 1497 following a smuggling acquittal under 18 U.S.C. § 545 because "neither two criminal trials nor two criminal punishments" are involved); Rex Trailer Co. v. United States, 350 U.S. 148, 151-54, 76 S.Ct. 219, 221-22, 100 L.Ed. 149 (1956); United States ex rel. Marcus v. Hess, 317 U.S. 537, 548-52, 63 S.Ct. 379, 386-88, 87 L.Ed. 443 (1943). Thus, as to the first inquiry regarding congressional intent, Congress intended to impose both criminal and civil penalties upon persons in defendants' position.

The court next considers whether Congress, despite its manifest intention to establish a civil, remedial mechanism, nevertheless provided for sanctions so punitive as to "transform what was clearly intended as a civil remedy into a criminal penalty." Rex Trailer Co., 350 U.S. at 154, 76 S.Ct. at 222. On this score the district court in Alcatex observed that:

The Government is on firm ground when it characterizes the statute here in question section 592 as being broadly "remedial." The Government in cases like this may fairly be presumed to have suffered injury. First, in order to further the purposes of the pertinent statutes, there is the heavy expense of investigating, monitoring and prosecuting alleged lawbreakers. The expense is caused because of the alleged conduct of defendants and others like them. It

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