United States v. One Lot Emerald Cut Stones and One Ring

Citation461 F.2d 1189
Decision Date09 June 1972
Docket NumberNo. 71-3584.,71-3584.
PartiesUNITED STATES of America, Plaintiff-Appellant, v. ONE LOT EMERALD CUT STONES AND ONE RING, Defendant-Appellee.
CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)

Robert W. Rust, U.S. Atty., Lloyd G. Bates, Jr., Asst. U.S. Atty., Miami, Fla., for plaintiff-appellant.

E. David Rosen, Miami, Fla., Bernard R. Fleisher, New York City, for defendant-appellee.

Before TUTTLE, MORGAN and RONEY, Circuit Judges.

TUTTLE, Circuit Judge:

The United States appeals from the dismissal by the trial court of a forfeiture action in which the United States sought the forfeiture of One Lot of Emeralds and a Ring based upon a violation of Title 18 U.S.C. Section 545 and Title 19 U.S.C. Section 1497.

The essential facts are not controverted. On June 5th, 1969, Francisco Farkac Klementova, hereinafter called the claimant, entered the United States at the Miami International Airport in Dade County in the Southern District of Florida, without declaring for U.S. Customs, the articles which are the subject matter of this forfeiture complaint. He did, however, declare a few small items like a couple of bottles of liquor and some cigarettes. The claimant was immediately arrested and the articles were seized. The record discloses that the domestic and foreign values of the articles are $30,150.00 and $19,476.00 respectively and the duty on them would have amounted to $335.89.

Klementova was indicted by a Federal Grand Jury charging him as follows:

"On or about June 5, 1969, at Miami, Dade County, in the Southern District of Florida, the defendant,
FRANCISCO FARKAC KLEMENTOVA, a/k/a Francisco Farkac
willfully and knowingly, and with intent to defraud the United States, did smuggle and clandestinely introduce into the United States at the Port of Miami, merchandise, that is, a quantity of cut and polished emeralds, and one ring, contrary to law, as the defendant then knew, in that said merchandise had not been presented for inspection as required by Title 19, United States Code, Section 1461; that the defendant failed to declare said merchandise as required by Title 19 of the Code of Federal Regulations, Chapter 1, Section 10.19; and that the defendant failed to pay duty on said merchandise as required by Title 19 of the Code of Federal Regulations, Chapter 1, Section 8.1; in violation of Title 18, United States Code, Section 545." (emphasis added)

The case was tried to the Honorable Charles B. Fulton, without a jury, who entered a judgment of not guilty of the charge. Of some possible significance, although not determinative of the law, we think it appropriate to quote some of Judge Fulton's language which he used to give the basis for his judgment of acquittal:

"He is, obviously, a sophisticated dealer in emeralds and other jewelry.
"I don\'t condone nor do I approve, for one minute, what he did in this instance. I think he knew that that jewelry—that that ring and those emeralds should have been declared.
"He made a declaration of some cigarettes and some whiskey, several other little odd, meager items there, but I\'m not persuaded beyond a reasonable doubt that he did what he did with the intent to defraud the United States." (emphasis added)

Following this acquittal the Government then filed its action for forfeiture stating that the action was "based upon a violation of Title 18 U.S.C. § 545 and Title 19 U.S.C. § 1497".

In defense of the action the claimant pleaded the acquittal on the charge brought under the clearly criminal sections of Section 5451 as a bar to the forfeiture proceeding: "In that the facts, matters and property described in the indictment are identical with that described in the complaint for forfeiture; (2) that the judgment of acquittal aforesaid constitutes collateral estoppel to the forfeiture proceedings; (3) that the trial and judgment of acquittal constitute former jeopardy, and is a bar to these proceedings; (4) that under the doctrine of res adjudicata this action is barred."

The trial court, discussing only the provisions of the above quoted criminal section, that is Section 545, and without making any reference to U.S.C.A. 19 § 1497,2 agreed with the claimant that such acquittal constituted a bar to the forfeiture proceedings. The court based its judgment on the earlier Supreme Court decision of Coffey v. United States, 116 U.S. 436, 6 S.Ct. 437, 29 L.Ed. 684 (1886), and United States v. Rosenthal, (5th Cir., 1909) 174 F. 652.

The trial court also concluded that forfeiture proceedings per se have now been finally declared punitive by the Supreme Court in United States v. U.S. Coin and Currency, 401 U.S. 715, 91 S.Ct. 1041, 28 L.Ed.2d 434 (1971).

We think it quite clear that if the only basis for the proceeding to forfeit the merchandise here before the court were that contained in Section 545, we would agree with the disposition of the case made by the trial court. This is because the facts of the case would bring it strictly in line with the Supreme Court decision in Coffey and this court's decision in United States v. Rosenthal, supra. However, the appellant makes no effort to answer the Government's contention that the forfeiture provisions of the customs laws, dealing with "collection of duties" as set out in Section 1497 of Title 19 provides for the forfeiture of merchandise of this nature upon the occurrence of entirely different facts and circumstances than are required to constitute a basis of an indictment and/or forfeiture under Section 545 of Title 18. As is clear from the language of the sections quoted in footnotes (1) and (2), supra, the criminal section requires proof beyond a reasonable doubt of a knowing and willful smuggling or clandestinely introducing, into the United States, merchandise with intent to defraud the United States which should have been invoiced. Then it is equally plain that forfeiture provisions of the same section provide for forfeiture only if the merchandise is "introduced into the United States in violation of this section." Thus, to obtain a forfeiture under Section 545, it must be proved that the gems, here in issue, were knowingly and willfully smuggled or clandestinely introduced into the United States with intent to defraud the United States. To the contrary, in order to impose the sanctions contained in 19 U.S.C.A. § 1497, no crime of any sort need be proved. There is not a word about willfully or knowingly with intent to defraud the United States or about smuggling or clandestinely introducing into the United States in this section. It merely provides that if a person brings in an article and makes a written declaration or an oral declaration which does not include a particular item in question, and he fails to mention it before the examination of his baggage has begun, the merchandise is forfeited.

Thus, we do not have a case where proof necessary to cause a forfeiture under Section 1497 would sustain a conviction under Section 545. The cases are, therefore, not controlled by either Coffey or Rosenthal.

A careful reading of these two cases indicates that in both instances the forfeiture could be made only upon proof of willful or knowing conduct and criminal intent. The forfeitures which were there sought were not made under a statute which made the objects subject to seizure through the innocent conduct (that is to say, conduct of less than criminal in nature or definition) of a person whose act would result in the United States losing certain duties or tariffs.

In the Coffey case the Supreme Court said: "The information for forfeiture is founded on sections 3257, 3450, and 3453; and there is no question, on the averments and the answer, that the fraudulent acts and attempts and intents to defraud, alleged in the prior criminal information, and covered by the verdict and judgment of...

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    • April 16, 1985
    ...or second paragraph of this section, shall be forfeited to the United States. (emphasis added) 2 In United States v. One Lot Emerald Cut Stones and One Ring, 461 F.2d 1189 (5th Cir. 1972), aff'd 409 U.S. 232, 93 S.Ct. 489, 34 L.Ed.2d 438 (1972), the defendant had been acquitted of violating......
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    ...forfeiture was barred by collateral estoppel and the Fifth Amendment. The United States Court of Appeals for the Fifth Circuit reversed, 461 F.2d 1189, holding that a forfeiture action pursuant to 19 U.S.C. § 1497 was not barred by an acquittal of charges of violating 18 U.S.C. § 545. We gr......
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