Zucca v. United States

Barber, Judge, delivered tbe opinion of the court: This case was first heard by the Board of General Appraisers in October, 1912. Such proceedings were had before the board that judgment was not therein rendered until October, 1917. That judgment being adverse to the importer, the latter duly prayed for a review in this court. One of the questions raised is the right of the collector to reliquidate for fraud under the provisions' of section 21 of the act of June 22, 1874, and the effect of such reliquidation, if made. A like question was involved in United States v. Vitelli & Son (5 Ct. Cust. Appls., 151; T. D. 34194), and Vitelli & Son v. United States (7 Ct. Cust. Appls., 243; T. D. 36544), and the instant case was apparently suspended before the board to await the result of a review of our judgment in the last mentioned Vitelli case by the Supreme Court of the United States That court upon consideration was of opinion that our judgment in the Vitelli case was erroneous and in disposing of the matter said: It follows that the judgment of the Court of Customs Appeals must be and it is reversed and the case remanded to the Board of General Appraisers for further proceedings not inconsistent with this opinion. See United States v. Vitelli (39 U. S. Sup. Ct. Rep., 544; T. D. 38179). Were the only question here identical with that in the Vitelli case, this case, following the judgment of the Supreme Court should of course in like manner be remanded to the Board of General Appraisers, and that is one of importer’s claims. The Government asks that the case be remanded for a new trial. There is, however, another question raised by this appeal not involved in the Vitelli cases, namely, th'e effect of the verdict of the jury and the judgment of acquittal thereon in certain criminal proceedings against the appellant here, which verdict and judgment the importer has offered in evidence and which he contends are so far res adjudicate or stare decisis on the issue of fraud here that the judgment of the Board of General Appraisers should be reversed and the protest sustained. All the pertinent facts on that issue are set forth in the concurring opinion of De Vries, judge, filed herewith. Upon those facts we are satisfied that the importer’s contention last above mentioned ought not toijbe sustained, and refer to the concurring opinion for a presentation|of the views that lead to such a conclusion. The result is that the judgment|of thejBoard of General Appraisers is reversed and the case remanded for further proceedings according to law.