UNITED STATES, Plff. in Err., v. HERMAN A. SALEN.
235 U.S. 237 (35 S.Ct. 51, 59 L.Ed. 210)
UNITED STATES, Plff. in Err., v. HERMAN A. SALEN.
Argued: October 23, 1914.
Decided: November 30, 1914.
- opinion, Lamar [HTML]
Salen was indicted for making false statements in the sworn declaration required if consignees by the Tariff act of 1909. (36 Stat. at L. 93, chap. 6, U. S. Comp. Stat. Supp. 1911, p. 899.) The first five counts charged that, in entering laces in February, 1910, and January and February, 1913, he had falsely sworn that the consular invoices attached were the only invoices covering the shipments, when he well knew that there were others in existence. The court overruled the demurrer to these counts and they are not involved in this case.
The sixth count related to a declaration made by Salen on March 17, 1913, in making an entry of foreign laces covered by consular invoice No. 7893. Salen was therein charged with having fraudulently concealed from the collector the existence of certain material facts, and thereby had falsified the required statement in the sworn declaration 'that nothing has been on my part, nor, to my knowledge, on the part of any other person, concealed or suppressed, whereby the United States may be defrauded of any part of the duty due on said goods.' This count sets out at great length and in narrative form certain evidentiary facts which may be thus summarized:
Salen was the New York agent and primary consignee of Goetz, a French exporter, who, for eight years, had been shipping laces to Salen for sale and delivery to Robinson, the purchaser and ultimate consignee.
When the last consignment arrived in New York, Salen presented the declaration to the collector, attaching thereto, as required by law, the bill of lading; a list or entry account of the goods; and the consular invoice No. 7893. He paid the duty assessed on the basis of the foreign values as given in the invoice, and thereupon removed the goods and delivered them to Robinson, the purchaser. This count of the indictment further charged that Salen knew that the foreign values had been falsely and fraudulently stated in the previous invoices; that such foreign values named in those invoices were uniformly greatly below the prices at which the laces were sold in the United States; that, in making the declaration as to the shipment represented by consular invoice No. 7893, Salen concealed the fact that it was one of the series of shipments in which Goetz and Robinson had fraudulently concealed the great and uniform discrepancy between the foreign values named in the invoices and the prices at which the lace was sold in the United States.
It was charged that this concealment was the suppression of a fact by which the United States may have been defrauded of its lawful duty, for if Salen had communicated the facts, the collector would have called for a reappraisement of the laces, and their undervaluation would have been disclosed.
The defendant demurred on the ground that there was no positive averment that the goods were undervalued, but only an argumentative statement of facts the existence of which did not raise the legal conclusion that there was any undervaluation, and that the count failed to charge facts sufficient to constitute an offense under subsection 6 of § 28 of the act of August 5, 1909, or any other statute of the United States. The demurrer was sustained on the ground that the facts stated did not constitute an offense under the statute, and the case was then brought here by the government under the criminal appeals act.
Assistant Attorney General Warren for plaintiff in error.
Argument of Counsel from pages 239-242 intentionally omitted
Messrs. Marion Erwin and Frederick M. Czaki for defendant in error.
Statement by Mr. Justice Lamar:
Argument of Counsel from pages 242-244 intentionally omitted
Mr. Justice Lamar, after making the foregoing statement of facts, delivered the opinion of the court:
This writ of error raises the question as to whether the suppression clause in the declaration required to be made by agent consignees of imported goods (36 Stat. at L. 95, chap. 6, U. S. Comp. Stat. Supp. 1911, p. 902) relates to the omission of matter proper to be included in the invoice and account attached, or to independent facts which, if brought to the attention of the collector, would have excited his suspicion and induced him to institute a special inquiry as to the value of the merchandise mentioned in the account and invoice.
No case directly in point has been cited; but counsel have traced the history of the clause from the act of 1799, which required only one form of declaration from all importers, through the subsequent statutes, which, like the tariff act of 1909, provide for slightly different forms, according as the entry is made by owner, manufacturer, consignee, or agent. (1 Stat. at L. 656, chap, 22; 3 Stat. at L. 730, chap. 21; 22 Stat. at L. 524, chap. 121; 26 Stat. at L. 132, chap. 407, U. S. Comp. Stat. 1901, p. 1890; 36 Stat. at L. 93, chap. 6, U. S. Comp. Stat. Supp. 1911, p. 899.) Under the act of 1799 every importer had to attach the consular invoice and entry account and swear that he 'had not in the said entry or invoice concealed or suppressed anything' whereby the government might be defrauded of its duty. This clause is still retained in the form required to be signed by owner and manufacturer. Where the goods are entered by an agent consignee he makes declaration that 'nothing has been on my part, nor, to my knowledge, on the part of any other person, concealed or suppressed, whereby the United States may be defrauded of any part of the duty lawfully due on the said goods, wares, and merchandise.' Much of the argument was addressed to the effect of this difference in the language in the respective forms of the several declarations. 36 Stat. at L. 93-95, chap 6; U. S. Comp. Stat. Supp. 1911, pp. 899-902.
Counsel for Salen insist that this difference is due to the fact that the suppression clause in the consignee's declaration was included in a sentence all the terms of which related to invoice and entry. The declaration to be signed by owner and manufacturer (36 Stat. at L. 94, 95, chap. 6, U. S. Comp. Stat. Supp. 1911, pp. 900, 902) was in two sentences, and as the last of the two contained the suppression clause, it was necessary, from a grammatical point of view, to mention invoice and account as antecedents. It is argued that the owner's statement conveyed the same meaning as was otherwise expressed in the suppression clause of the consignee's declaration. On the other hand, the government contends that the difference in phraseology indicated an intent to require the consignee to disclose matters as to which no requirement was made where the goods were entered by owner or manufacturer.
Congress, of course, could have legislated in the same statute so as to make a distinction between consignor and consignee. But no satisfactory reason is given why Congress should have imposed no penalty upon an owner for concealing a great and uniform difference between invoice values and selling prices, while at the same time making the agent guilty of a felony for suppressing exactly the same fact. The moral quality of the act was the same whether the concealment was by owner or agent; the result to the government was the same, and all doubtful or ambiguous language in a statute covering the same subject should be construed on the natural supposition that Congress required identity of disclosures and provided identity of punishment for identity of concealment.
In arriving at the meaning of the clause on which this indictment is founded it may be helpful to consider the purpose of the statute, in the light of the customs regulations applicable to the entry of foreign merchandise at a domestic port.
Foreign value is the basis on which ad valorem duties are imposed (36 Stat. at L. 101, subsec. 18, chap. 6, U. S. Comp. Stat. Supp. 1911, p. 914), and Congress has made various provisions to enable collectors and appraisers to obtain information as to such foreign values. To that end it authorizes them to examine all importers or consignees under oath, so as to secure from them a statement of any facts which might shed light on the amount of duty to be paid. Any false statement made on such examination subjects them to indictment and punishment as for a felony (26 Stat. at L. 139, §§ 16, 17, chap. 407).
But the documents attached to the declaration are the primary source of information as to value. They consist of a consular invoice prepared by the consignor, showing a list of the goods and their foreign value at the date of exportation; an entry or account prepared by the consignee, showing marks, numbers, contents, quantity, invoice value, dutiable value, and the rate of duty of the goods. Customs Regulations 217; and also the bill of landing prepared by the master of the vessel. If these three papers, prepared by three different persons, have been truly and correctly made, they contain all the information needed to assess the duties. In view, therefore, of the importance of these documents, the statute makes specific provisions by which they are to be verified, and, as will appear from an analysis of the declaration (36 Stat. at L. 93, chap. 6, U. S. Comp. Stat. Supp. 1911, p. 899), the consignee states in the first sentence1 of the declaration: (1) That he is the consignee of the merchandise described in the annexedentry and invoice;
'(2) that the invoice and bill of lading are the true and only invoice and bill of lading;
'(3) that they are in the state in which they were actually received by him;
'(4) that he does not know or believe in the existence of any other invoice or bill of lading;
'(5) that the entry delivered to the collector contains a just and true account of the merchandise according to the invoices;
'(6) that nothing has been suppressed by him, or, to his knowledge, on the part of any other person, whereby the United States may be defrauded of any part of the duty lawfully due on the merchandise;
'(7) that the said invoice and the declaration therein are in all respects true, and were made by the person by whom they purport to have been made;
'(8) that if at any time he discovers any error in the said invoice or in the account now rendered, he will immediately make the same known to the collector, . . .'
It will be seen that the declaration was not only intended to secure an affirmative statement as to the genuineness of the documents and of the correctness of what was actually therein set out, but the consignee was also required to make a negative averment that nothing had been suppressed or concealed by himself or, so far as he knew, by anyone else,—that is, nothing had been suppressed or concealed in the account prepared by the consignee; in the consular invoice prepared by the exporter; or in the bill of lading prepared by the master of the vessel. Seven of the eight clauses distinctly related to documents. To say that the sixth clause in this enumeration was intended to embrace undefined extraneous matter would be to suddenly depart from the particular to the general, and back again from the general to the particular; —from the particular subject of documents, to which the attention of the affiant had been specially directed by the first five clauses, into a general field of wide and indefinite scope; and—in the seventh clause—again to return to the particular subject of documents. Such an interpretation would give an exceedingly liberal construction to a statute defining a felony. It would ignore the fact that the meaning of words is affected by their context, and violate the settled rule that words which, standing alone, might have a wide and comprehensive import, will, when joined with those defining specific acts, be interpreted in their narrower sense, and understood to refer to things of the same nature as those described in the associated list, enumeration, or class. Cf. Virginia v. Tennessee, 148 U. S. 519, 37 L. ed. 543, 13 Sup. Ct. Rep. 728; United States v. Chase, 135 U. S. 258, 34 L. ed. 118, 10 Sup. Ct. Rep. 756, 8 Am. Crim. Rep. 649; Neal v. Clark (Neal v. Scruggs) 95 U. S. 708, 24 L. ed. 587.
The fact that, under this rule, the general language of the suppression clause is to be restricted to the documents to which all the other clauses in the sentence refer, does not, of course, mean that Congress has deprived the collector of the means of obtaining information as to extraneous facts that might assist him in passing upon questions of value, or in determining whether there had been any violation of the tariff law.
But the method by which that information is to be obtained is the examination of the owner, consignee, or agent under oath. 26 Stat. at L. 139, chap. 407; 36 Stat. at L. 100, subsecs. 15, 16, chap. 6, U. S. Comp. Stat. Supp. 1911, pp. 919, 920; Customs Regulations, 1908, § 865. The very fact that provision is made for such examination is itself a clear indication that there may be material matter, not proper for inclusion in the declaration, but which might still be important in the assessment of the duty. But to say that in signing the statutory form of declaration consignee should in effect answer specific questions and at the same time be required, on peril of committing a felony, to disclose extraneous evidentiary facts as to which no direct question was asked, and to which his attention was not directed, is to make the declaration serve a purpose for which it was not intended, and spread a net that might catch the unwary as well as the fraudulent consignee. United States v. Reese, 92 U. S. 221, 23 L. ed. 565. For, under the contention of the plaintiff in error, it is not necessary that Salen should have intended to defraud, or that the government should have been actually defrauded. The crime was committed if the United States 'may have been defrauded.' So that even if the foreign value on which the duty was assessed had been truly stated in the declaration, the consignee would yet be guilty of a felony if he failed to call attention to facts which would have excited the collector's suspicion and induced him to demand a reappraisement. Such an interpretation of the statute is not only contrary to the rule which restricts the operation of the suppression clause to the particular matters enumerated in all other parts of the printed declaration, but would fix no standard by which to draw the line between innocent silence and felonious concealment.
Mr. Justice McReynolds took no part in the consideration and decision of this case.
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Declaration of Consignee, Importer, or Agent, where Merchandise Has Been Actually Purchased.
I, _____ _____, do solemnly and truly declare that I am the consignee, importer, or agent of the merchandise described in the annexed entry and invoice; that the invoice and bill of lading now presented by me to the collector of $05R are the true and only invoice and bill of lading by me received of all the goods, wares, and merchandise imported in the _____, whereof _____ is master, from _____, for account of any person whomsoever for whom I am authorized to enter the same; that the said invoice and bill of lading are in the state in which they were actually received by me, and that I do not know or believe in the existence of any other invoice or bill of lading of the said goods, wares, and merchandise; that the entry now delivered to the collector contains a just and true account of the said goods, wares, and merchandise, according to the said invoice and bill of lading; that nothing has been on my part, nor, to my knowledge, on the part of any other person, concealed or suppressed, whereby the United States may be defrauded of any part of the duty lawfully due on the said goods, wares, and merchandise; that the said invoice and the declaration therein are in all respects true, and were made by the person by whom the same purport to have been made; and that if at any time hereafter I discover any error in the said invoice, or in the account now rendered of the said goods, wares, and merchandise, or receive any other invoice of the same, I will immediately make the same known to the collector of this district. And I do further solemnly and truly declare that to the best of my knowledge and belief (insert the name and residence of the owner or owners) is (or are) the owner (or owners) of the goods, wares, and merchandise mentioned in the annexed entry; that the invoice now produced by me exhibits the actual cost at the time of exportation to the United States in the principal markets of the country from whence imported of the said goods, wares, and merchandise, and includes and specifies the value of all cartons, cases, crates, boxes, sacks, casks, barrels, hogsheads, bottles, jars, demijohns, carboys, and other containers or coverings, whether holding liquids or solids, which are not otherwise specially subject to duty under any paragraph of the tariff act, and all other costs, charges, and expenses incident to placing said goods, wares, and merchandise in condition, packed ready for shipment to the United States, and no other or discount, bounty, or drawback but such as has been actually allowed on the same.