United States v. Wittemann
| Decision Date | 07 January 1907 |
| Docket Number | 258. |
| Parties | UNITED STATES v. WITTEMANN. |
| Court | U.S. Court of Appeals — Second Circuit |
The case, which was submitted without argument, involves the construction of section 22, Act June 22, 1874, c. 391, 18 Stat. 190 (U.S. Comp. St. 1901, p. 727), providing a three-year statute of limitations for proceedings for the recovery of 'any pecuniary penalty or forfeiture of property." The government contended that the forfeiture of the value of undervalued merchandise provided in section 9, Customs Administrative Act June 10, 1890, c. 407, 26 Stat 135 (U.S. Comp. St. 1901, p. 1895), is not a 'pecuniary penalty' or a 'forfeiture of property,' within the meaning of said section 22. The argument on this point is set forth as follows in the government's brief: 'It is respectfully submitted that when section 9 provides that the merchandise or the value thereof, to be recovered from the person making the entry, shall be forfeited, it is providing that the merchandise, if seized, may be proceeded against by an action in rem, but if, on the contrary, the goods have been delivered, that then an action at law may be brought for the damage which the government has sustained by the fact that it cannot recover and sell the goods. This damage, it is submitted, would be equivalent to the home value of the goods themselves. This is not, it is submitted such 'pecuniary penalty' as is contemplated by section 22. The pecuniary penalty attached to section 9 might seem to be the fine not exceeding $5,000, which is imposed upon conviction for such an offense. Or, again, inasmuch as the goods have been released and cannot be found or recovered, and inasmuch as the government is suing for a sum of money in the form of damages, it is respectfully submitted that such a suit could not be called one the object of which is to work a 'forfeiture of property.' Pecuniary penalties are specific sums of money which in a liquidated amount are set forth as the penalty for a certain act. A fine, the penalty for breaking a game law, the amount collected by a justice of the peace under a police statute it is submitted, are the ordinary sorts of penalty. The object against which an action in rem may be brought is properly the subject of a 'forfeiture of property."
This cause comes here by writ of error to review a judgment of the United States District Court for the Eastern District of New York. dismissing the complaint in an action brought by the government, under the provisions of section 9 of the customs administrative act of June 10, 1890, for forfeiture of the value of goods comprised in 28 separate importations received at the port of New York between November 13, 1900, and June 23, 1902.
Thomas Ives Chatfield, Asst. U.S. Atty., and William J. Youngs, U.S atty.
Straley & Hasbrouck (John A. Straley, of counsel), for the importer.
Before WALLACE, LACOMBE, and TOWNSEND, Circuit Judges.
TOWNSEND Circuit Judge (after stating the facts).
The complaint alleges that the invoices in question were false and fraudulent, in that the statement of the market value of the goods comprised therein was far below the true market value of said goods at the time of exportation in the principal markets of the country from which they were imported, and that said undervaluation was willfully made on the part of the defendant, with the intent to defraud the United States out of a portion of the lawful duty due to it, and that the goods were delivered to the defendant upon the payment of duty based upon said false, fraudulent, and undervalued valuation.
Section 9 of the customs administrative act of 1890 (Act June 10, 1890, c. 407, 26 Stat. 135 (U.S. Comp. St. 1901, p. 1895)) provides for a forfeiture, in such cases, either of the merchandise or of the value thereof, and for a fine for each offense. The defendant interposed as a defense the statute of limitations of section 22, Act June 22, 1874, c. 391, 18 Stat. 190 (U.S. Comp. St. 1901, p. 727), which provides as follows:
'That no suit or action to recover any pecuniary penalty or forfeiture of property accruing under the customs revenue laws of the United States shall be instituted unless such suit or action shall be commenced within three years after the time when such penalty or forfeiture shall have accrued: provided, that the time of the absence from the United States of the person subject to such penalty or forfeiture, or of any concealment or absence of the property, shall not be reckoned within this period of limitation.'
The single question presented is as to the construction and application of this statute of limitations. Counsel for the government admitted that 'all of the causes of action were saved from the effects of a five-year statute of limitations, but that a three-year statute of limitations would have been a defense to all, if valid as to any' and that 'more than three years had elapsed before the attorneys for the government in this case received the papers or learned of the action,' and 'that the property imported * * * was not concealed or absent within the said period of three years,' and that the government ...
To continue reading
Request your trial
-
US v. $47,409.00 IN US CURRENCY
...replete with examples of court rulings that civil forfeitures attendant to criminal acts are penalties in nature. In United States v. Wittemann, 152 F. 377 (2d Cir.1907), an importer of spirits was accused of undervaluing goods in an attempt to evade customs duties. The government brought a......