1. The crime of smuggling, as defined by § 593(a) of the Tariff
Act of 1922, is consummated if dutiable merchandise is
clandestinely
Page 273 U. S. 262
brought into the United States concealed in the owner's baggage
after the owner has fraudulently procured a waiver of inspection in
the United States by false statement to a customs officer stationed
abroad. So
held where the waiver was rescinded after the
owner and baggage had crossed the international boundary, and the
owner, upon arrival at the first port of entry, fraudulently failed
to declare dutiable articles when called upon.
Keck v. United
States, 172 U. S. 434,
distinguished. P.
273 U. S.
268.
2. Confession in the customs house when the dutiable articles
were about to be discovered did not purge the owner of the offense.
P.
273 U. S. 269.
3. Under the above stated circumstances, the owner was not
entitled to forty-eight hours, or any time, to change his mind and
make entry of the goods. P.
273 U. S. 269.
12 F.2d 849 reversed.
Certiorari (
post, p. 685) to a judgment of the circuit
court of appeals which reversed a conviction of the respondent for
smuggling diamonds into the United States from Canada.
Page 273 U. S. 265
MR. JUSTICE HOLMES delivered the opinion of the Court.
The respondent was indicted for smuggling and clandestinely
introducing into the United States from Canada, merchandise,
viz., 1,022.85 carats of unset cut diamonds, without
making any declaration to enter the same and without causing them
to be invoiced for the purpose of ascertaining the duties upon them
and without paying or accounting for the duties to which they were
subject, although he had an opportunity to do so, with intent to
evade payment of such duties. He was convicted in the district
court, but the judgment was reversed by the circuit court of
appeals.
Ritterman v. United States, 12 F.2d 849. A writ
of certiorari was granted by this Court under the Act of February
13, 1925, c. 229, amending § 240(a) of the Judicial Code, 43 Stat.
936, 938.
Page 273 U. S. 266
On January 28, 1926, the respondent bought a ticket in Montreal
for New York and sought to have a Gladstone bag that he carried
checked through to New York. A customs inspector sent there by the
United States for the convenience of travelers asked him about the
contents and he answered, "Just my own personal wearing apparel."
Such examination as the inspector made disclosed nothing but
clothing and personal effects. The inspector thereupon tied and
sealed the bag and attached the requisite manifest. In the ordinary
course of events, the strings would have been cut after crossing
the boundary line and the bag would have gone on to New York and
then would have been delivered to the owner without more. Some
suspicion was felt, however, and the respondent was again
questioned after entering the United States and repeated that he
had nothing to declare. On the train's arrival at St. Albans,
Vermont, which is the port of entry, he was called into the custom
house and there again stated that he had nothing, and more
specifically, no diamonds, to declare, and on the suggestion that
he had a quantity in his possession the day before, in Montreal,
said that he had, but placed them in a bank there, named. An
examination of his person was begun, and, while he was removing his
clothes, he was asked for the key to the Gladstone bag and handed
it over. The respondent continued undressing, but, before
finishing, said to the assistant collector, "I haven't any diamonds
on my person; they are in my grip." Within a few minutes, officers
who had been examining the bag in another room reported that
diamonds had been found hidden there. They were of the amount
alleged, were valued at $122,492.43, United States valuation, and
were subject to a duty of twenty percent Act of 1922, c. 356, Tit.
1, Schedule 14, Par. 1429, 42 Stat. 858, 917. It does not appear
that the discovery was brought about by the confession. It seems to
have been the result of search alone.
Page 273 U. S. 267
The Tariff Act of 1922, c. 356, § 593(a); 42 Stat. 858, 982 is
as follows:
"
Smuggling and Clandestine Importations. -- (a) If any
person knowingly and willfully, with intent to defraud the revenue
of the United States, smuggles, or clandestinely introduces, into
the United States any merchandise which should have been invoiced,
or makes out or passes, or attempts to pass, through the
customhouse any false, forged, or fraudulent invoice, every such
person, his, her, or their aiders and abettors, shall be deemed
guilty of a misdemeanor, and on conviction thereof shall be fined
in any sum not exceeding $5,000, or imprisoned for any term of time
not exceeding two years, or both, at the discretion of the
court."
The judge gave the following instructions to the jury:
"If you find that the defendant falsely and fraudulently,
intending to defraud the revenue of the United States, told
Collector Whitehill and Assistant Collector Walsh at the customs
house that he did not have any diamonds to declare, this completed
the offense of smuggling, notwithstanding that later, while his
person was being searched by Assistant Collector Walsh at the
customs house, he admitted that he had some diamonds in his
Gladstone bag."
"If the defendant intended to smuggle the merchandise in
question, he had an opportunity to change his mind up to the time
when the obligation to pay or account for duties arose, and if you
believe that the defendant did so change his mind and did so
declare, then it is your duty to find him not guilty."
"If you find as a fact that the defendant had no opportunity to
declare the Gladstone bag because it was seized or taken from him,
and that his first opportunity to declare the diamonds came at the
time when he was asked for the key and before his examination was
completed;
Page 273 U. S. 268
if you believe that he then availed himself of this opportunity,
then your verdict should be not guilty."
The first paragraph of the charge was excepted to and was held
erroneous by the circuit court of appeals. It was held that the
respondent could not be convicted under § 593.
Keck v. United
States, 172 U. S. 434, was
taken to establish that smuggling could not be committed before the
moment when the obligation to pay arose -- that is, after the duty
was established at the custom house.
Keck v. United States did not decide that a man who
wishes to smuggle must wait until he can find a custom house. Its
effect is simply that the customs line is not passed by goods at
sea when they pass the three-mile limit and have not yet been
landed. The statute then in force (R.S. § 2865), after the words
"which should have been invoiced." added "without paying or
accounting for the duty." The omission of the later words is
explained in different ways by the two sides, but, for the purposes
of this decision, we treat it as immaterial. Here, diamonds were
clandestinely introduced upon the soil of the United States, and
although they would pass a point at which they ought to be
examined, they would not have been, but on the contrary would have
been secure from further inspection had the trick succeeded. If
they had been carried across the boundary in such a way as to avoid
a port of entry, we suppose that the offence of smuggling would
have been complete when they passed the line, although the smuggler
might repent and afterwards report for payment of duties. We
perceive no difference because of the accident that the goods had
to pass a custom house which the respondent's fraud had deprived of
further function if it had not been found out.
It does not appear to us to need argument that the diamonds were
"merchandise which should have been invoiced," and appeared to be
such on the face of the
Page 273 U. S. 269
indictment. The respondent could not get rid of the duty by
hiding them in his stockings and other personal luggage. He could
not purge himself of the consequences of his fraud by confessing
when he saw that he was on the point of being discovered or, as
might have been found, after he had been. The argument that, in
such circumstances, he was entitled to forty-eight hours, § 484(a),
or any time to change his mind and make entry of the goods, seems
to us extravagant. Repentance came too late.
Judgment reversed.