United States v. Zavala, 173.

• Decision Date: 03 January 1944
• Docket Number: No. 173.,173.
• Parties: UNITED STATES v. ZAVALA.
• Court: U.S. Court of Appeals — Second Circuit

139 F.2d 830 (1944)

UNITED STATES v. ZAVALA.

No. 173.

Circuit Court of Appeals, Second Circuit.

January 3, 1944.

Harry G. Herman, of New York City, for Antonio Zavala, defendant-appellant.

Harold M. Kennedy, U. S. Atty., of Brooklyn, N. Y. (Vine H. Smith, Asst. U. S. Atty., of Brooklyn, N. Y., of counsel), for plaintiff-appellee.

Before SWAN, AUGUSTUS N. HAND, and CLARK, Circuit Judges.

AUGUSTUS N. HAND, Circuit Judge.

The defendant, a native of Spain and Spanish subject who had lived for some seventeen years in Mexico, arrived at the port of New York from Lisbon, Portugal, on or about April 16, 1942, and presented a baggage declaration in which he omitted to state that he was bringing in any currency. One of the customs inspectors informed him that if he had anything which had not been noted in his declaration he could amend it and he thereupon caused it to be amended by declaring nine pieces of jewelry and $850 in United States currency, items which the inspector added to the declaration in his presence. When the defendant was asked "if he was certain he did not have any more money, and if he did want to declare more money that was the opportunity", he replied that "all the money he had was declared". But in fact he had $19,500 in currency in addition to the $850 declared. This was found in a small suitcase containing ten $1000 bills and nineteen $500 bills. In the course of the examination of the defendant and his baggage, one of the government agents said to him: "There is a law which has been enacted, a Presidential proclamation of April 6, 1940, which prohibits the bringing in of currency into the United States of any denomination, either this country or foreign, without first declaring it, so that it can be run through the Federal Reserve channels to be checked. If you do not declare your currency, all of it, you will be prosecuted, according to the violations and the penalties set forth in this Presidential proclamation."

When the $19,500 of currency was found in his suitcase he said: "Now 20 years of my earnings have gone in a moment", and after being asked why he had not declared this money and being interrogated on two or three occasions he replied: "When I arrived in Bermuda I was advised there that I could only bring into this country a certain amount of money and that I must declare all of the other, and have it go through the proper channels if I wish to take it with me and go out of the United States. When I left Bermuda we entered the Port of Havana. I attempted at that time to cable the money to Mexico City, and due to the facilities there I was unable to cable my money to Mexico City, and, therefore, I decided to hide it and bring it into the United States illegally, take it through the Customs and run my chances of getting it into Mexico."

Whether or not the vicarious amendment of the declaration was not technically in accord with the Tariff Act, it is evident that the defendant thereby caused a false representation to be made to customs authorities and thus violated Section 80 of Title 18.

The defendant was indicted for knowingly making a false and fraudulent baggage declaration, in violation of the provisions of Title 18, Section 80 of the United States Code Annotated wherein he set forth that he possessed $850 in United States currency and no more, whereas he had brought into the country and then had in his possession the further sum of $19,500 in such currency which he did not mention in his declaration or otherwise. The currency represented sales in Spain and Portugal converted in Portugal into United States money.

Section 80 of Title 18 provides that: "Whoever shall make or cause to be made or present or cause to be presented for payment or approval, to or by any person or officer in the civil, military, or naval service of the United States, or any department thereof, * * * any claim upon or against the Government of the United States, or any department or officer thereof, * * *, knowing such claim to be false, fictitious, or fraudulent; or whoever shall knowingly or willfully falsify or conceal or cover up by any trick, scheme, or device a material fact, or make or cause to be made any false or fraudulent statements or representations, or make or use or cause to be made or used any false bill, receipt, voucher, roll, account, claim, certificate, affidavit, or deposition, knowing the same to contain any fraudulent or fictitious statement or entry in any matter within the jurisdiction of any department or agency of the United States * * * shall be fined not more than $10,000 or imprisoned not more than ten years, or both."

We feel no doubt that Section 80 covers both the use of documents to defraud the government and also the use of any false statement, whether oral or written, as to any matter within the jurisdiction of any department or agency of the United States. Here the proof shows that false oral representations were made and also that the declaration in writing was...