United States v. Ury
| Decision Date | 26 July 1939 |
| Docket Number | No. 381.,381. |
| Citation | 106 F.2d 28 |
| Parties | UNITED STATES v. URY. |
| Court | U.S. Court of Appeals — Second Circuit |
Isaac C. Donner, of New York City, for appellant.
John T. Cahill, U. S. Atty., of New York City (John C. Walsh, Asst. U. S. Atty., of New York City, of counsel), for the United States.
Before SWAN, CHASE, and PATTERSON, Circuit Judges.
The appellant was charged by information filed by the United States attorney with having violated section 304(d) of the Tariff Act of 1930, 19 U.S.C. § 1304(d), 19 U.S.C.A. § 1304(d), by removing from a number of generators imported from Germany the mark "Germany", indicating the country of origin, with intent to conceal the information given by the mark. The information followed the language of the statute and did not allege what interest the appellant had in the generators, merely describing him as "doing business as the Auto Lectric Distributors," nor did the information charge that the generators were then in commerce.
The appellant, after pleading not guilty, was permitted to withdraw his plea and to file a demurrer on the grounds that the statute was unconstitutional, that no allegations brought him within its permissible scope as a federal penal law, that it was not alleged that the generators were in foreign or interstate commerce when the marks were removed, and that the information did not charge a crime. The demurrer was overruled. The appellant later pleaded guilty and filed a motion in arrest of judgment raising the same points as had his demurrer. The motion was denied, judgment on the plea entered and a fine of $1,500 imposed. This appeal followed.
The questions presented put in issue whether the statute is constitutional and whether the information charged a crime. The plea of guilty did not foreclose the appellant from the review he now seeks. Hocking Valley R. Co. v. United States, 6 Cir., 210 F. 735; Oesting v. United States, 9 Cir., 234 F. 304; certiorari denied, 242 U.S. 647, 37 S.Ct. 241, 61 L. Ed. 544.
The statute which the appellant was charged to have violated is section 304(d) of the Tariff Act of 1930, 19 U.S.C. § 1304 (d), 19 U.S.C.A. § 1304(d). At the time of the alleged offense section 304, in subdivision (a), required that every article imported into the United States and its container and package be conspicuously marked, stamped, branded or labelled in English to indicate the country of origin. Subdivision (b) imposed additional duties on articles not so marked. Subdivision (c) provided for withholding of delivery until marks should be affixed. Subdivision (d) made it an offence to remove or deface any such mark with intent to conceal the information given by it. The words are these: "(d) If any person shall, with intent to conceal the information given thereby or contained therein, deface, destroy, remove, alter, cover, obscure, or obliterate any mark, stamp, brand, or label required under the provisions of this chapter, he shall, upon conviction, be fined not more than $5,000 or imprisoned not more than one year, or both."
The appellant's argument is that the offence which section 304(d) purports to create would cover the defacing of the mark after the goods have passed from foreign commerce or interstate commerce into local commerce or into the consumer's hands, and that it thus covers acts beyond the power of Congress to regulate. We agree that the defacing that is forbidden is not limited to defacing while the goods are still in foreign or interstate commerce. The statute is broader. It forbids defacing or removal of the mark generally, including a defacing or removal after the goods have come to rest in a state. Congress certainly intended to prevent removal or obliteration of a mark by a retailer while the imported article was on his shelf for sale, and yet the article in such a case has passed from foreign commerce to local commerce. So too the act is comprehensive enough to forbid removal of the mark by the ultimate consumer in a case where the intent in removing is to conceal the information given. But the argument that the statute goes beyond the power of Congress leaves us unconvinced.
The requirement that goods at the time of...
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