Buckley v. United States

Mr. Justice WAYNE delivered the opinion of the court; Nine exceptions were taken, upon the trial of this cause, to the admissibility of the testimony which was offered on the part of the United States. The first, second, third, fourth, and fifth are objections to the introduction of the appraisements which were made of the goods entered by the claimant, to the introduction of the persons who made them, to the affidavits of-Ross and Lewis, the appraisers updn the claimant’s appeal from the official valuation, and to the admissibility of an experienced judge and importer of goods, who was put upon the stand, to prove the value of the goods in the English market, at the date of the invoice, upon which they were entered. The objection in each instance is, that the appraisements had not been made in the presence of the jury. The goods were subject to ad.valorem rates of duty. The collector, having cause, to suspect that they were invoiced below their true, value or actual cost, with an intent to evade or defraud the revenue, directed them to be appraised by the official appraisers. From their valuation, the claimant appealed.. Ross and Lewis acted as appraisers upon the appeal, and made their estimate of the value or cost of the goods. The originals of both appraisements, were returned to the custom-house. It is not denied, that they were made according to the provisions of the acts of Congress. They were so made. From the character of those papers,'we think they wer.e, admissible. They are documents or public writings, not judicial. As such they may be used as evidence, subject to the rules applicable to the admissibility of such writings as evidence. The originals or examined copies were admissible, as is the case wherever the original is, of a public nature. They are within the reach ofeither party in a cause ; either for inspection or for copies, when a copy is wanted to be used as evidence. We need not enumerate the classes of such writings, or the particular- kinds of them which from analogy have been adjudicated to be such, as both may be found in any of the elementary treatises upon evidence. There is authority for so classing these appraisements. It has been decided, that á copy of an of.ficial document, containing an account of the cargo of a ship, made in pursuance of an act of parliament by an. officer of the customs and lodged there as an official document, should be admitted as proof that the property mentioned in it was put on board of a vessel. So, also, the copy of an official document containing the names, capacities, and descriptions of passengers on board a vessel, made in pursuance of an act of parliament, has- been received as *259 proof of such persons being on board. Richardson v. Mellish, 1 Ryan & Moody, 68 ; 2 Bing. 229. In this instance, the counsel for the United. States offered the originals of the appraisements, at the same time introducing the persons by whom they were made, as witnesses to authenticate them. They were not offered as conclusive of the cost or value of the goods, or as conclusive that an attempt had -been made to enter, them with an intent to evade or defraud the revenue. They might, with other evidence, conduce to establish those facts, and there is no doubt they were in part used for such a purpose in this case. But the primary object was to show from them, with other testimony, that there was probable cause for the seizure, that a course had been taken by the collector which the law permitted, and that every thing jtad been done to give to the claimant the opportunity of establishing the fairnpss of his suspected entry. What we have said of the character of the appraisements is equally applicable to the objection to the admissibility of the affidavits of Ross and Lewis, by whom the goods were appraised upon the appeal. There, is no force, then, in the objection, that the appraisements were not made in the presence of the jury. We have thus disposed of the first five exceptions to the admissibility of. the evidence, for we do not understand that any objection was made to Stewart and Huntingdon as witnesses to prove, from their knowledge of the value of goods, what was the value of the goods in question, but that they were objected to, as it is expressed in the exception, because the appraisements made by them were not made in the presence of the jury. As experienced judges of goods and of their value, they were certainly good witnesses to testify what in their •belief was the value of the goods in the . English market, at the date of the invoice «pon which they were entered. The sixth, seventh, aneleigfaih exceptions were objections to the admissibility as evidence of-other invoices of other importations made by the .claimant, to show.fraud in this case.. Such invoices for the same purpose were decided by the court in Wood’s case (16 Pet. 359, 360) to be . admissible.' It is not necessary to repeat what was then said upon the subject. The ninth exception is an objection to the. introduction of -any evidence to show that the factors of the claimant had sold. goods for him at more than one hundred and twenty per cent, above the invoice prices. We know that the prices of commodities fluctuate from many causes, and that enhanced prices can of themselves be ho proof of unfair dealing, or of an entry having been made at the custom-house upon an undervalued invoice. But if .in a particular-business testimony can be found to. establish that- an importer has received prices extravagantly above invoice prices, such as others engaged in the same trade, at the same time, declare could hot have been made in the state of the market during the time, a strong presumption arises that unfair means have been used *260 to produce effects contrary to the usual results of contemporary trade. Such a fact may well, then, be considered as good evidence, when the issue in a case is fraud or no fraud in the importation of goods. The exceptions taken to the evidence having been disposed of, we proceed, to examine such as were taken to the charge of the court. The first, that the court had undertaken to determine from the evidence, that there was probable cause for the seizure, without submitting it to the jury, was abandoned in the argument. .This couri had ruled in Taylor v. The United States, 3 Howard, 211, that the judge, and not the jury, was to determine whether there was probable cause, so as to throw on the claimant the onus probandi to establish the fairness of the importation. The second exception is an objection to so much of the charge of the court as instructed the juryi that, under the present information, they were not restricted in their condemnation to such goods as they should find had been undervalued, but that they might find either the whole package or the invoice forfeited, though it contained other goods correctly valued,, if they were of the opinion, that such package or invoice had been made up with intent to defraud the revenue of the United States. The information contained four counts. The first, upon the sixty-sixth section of the act of 1799, to which the exception does not apply. The second and third counts: were 'framed upon the fourth section of the act of 1830, cji. 147 ; and the fourth upon the fourteenth section of the act of Í832, ch. 227. The objection is not meant to deny the liability of the goods to forfeiture in a case made out under either of those acts, from any Conflict between them, or from either being a repeal of the other in any particular, so as to exempt the goods from condemnation. But the exception is confined to the insufficiency of the averments in the second, third, and fourth counts to enforce a forfeiture. The language of the counsel in argument was, that the second, third, and fourth counts of the information are defective on account of the uncertainty and generality of the averments in each and every of them, and that the judgment ought therefore to be reversed. . The uncertainty complained of is, that there is not in either of the three, counts- an. averment ' of the special circumstances of the examination of the. goods and detection of the fraud, under the authority of the collector. In support of the objection, the counsel relied chiefly upon this court having said in Wood’s case, that such an* averment was necessary to enforce á forfeiture under the fourth or fourteenth sections of the acts of 1830 and 1832. Pressed as it was with other arguments in support of the position, the preparation of this opinion has been delayed, with the view of giving to the objection the most deliberate enamination. Having made it, by a close scrutiny of all the acts of Congress which have been passed to prevent frauds upon the revenue ; by a comparison of what has been the practice in our own courts, *261 upon informations of a like character under those acts, and of what have been, both in England and in our own country, declared to be essential allegations in informations for offences against the revenue arising from foreign trade, we have concluded that the language in Wood’s case is stronger than it should have been. It was used argumentatively to show that thé sixty-sixth section of the act of 1799 had not been repealed by the fourth and fourteef^i sections <5f the acts of 1830 and 1832 ; and it was assumed in the argument, that certain allegations were proper in a count under the last two sections, which were not necessary and would not be suitable in a count under the sixty-sixth section. In that section, goods not invoiced according to the actual cost thereof at the place of exportation, with design to evade the duties, are subject to forfeiture. They are so, whether the undervaluation shall be discovered after they have been entered arid passed from the custom-house, or whether there has or has not been an examination of them. But then, under that section, only such of the goods not invoiced according to actual cost, without any reference to the contents of the package in which they may be, or to the entire invoice of which they may form a part, are subject to forfeiture. It is neither necessary nor proper, then, as was said in Wood’s case, in a count under that section, to allege the circumstances which led to the detection of the fraud. But it is said that previous examination and a consequent appraisement must be made under the fourth section of. the act of 1830, and under the fourteenth section of the act of 1832, in the manner directed in the former; and therefore.it is necessary, in a count under either of them, to aver that both were done. That, however, is only one of the ways which the collector may pursue, under existing laws, for the purpose of securing the payment of lawful duties, by detecting intended fradds upon the revgnue. The object of an ex-' amination- by packages, under the fourth section of the act of 1830, is for the purpose of ascertaining whether or not either of thé causes mentioned in it exist to make it the duty of the collector to have all the goods in the same entry inspected and appraised, but he is not confined to one package out of every invoice, or to one out of every twenty packages of each invoice. He may examine a “greater number” of packages should he deem it necessary, extending the examination to every package in the invoice. If, before that course has been taken, the collector suspects the entry to be fraudulent as a whole, or any package of it to be falsely charged, he can, without any designation of particular packages, have all the goods inspected and appraised. Or, in making an appraisement under the seventh and eighth sections of the act of 1832, ch. 227, he may direct it to be done with reference to the detection of ah apprehended fráud of any kind whatever, as well as to those particulars mentioned in the fourth and fourteenth section's of the acts of 1830 and 1832, which, when discovered and proved to the satis *262 faction of a jury, attaches a forfeiture either to a package of an entry, or to the entire invoice. The fourth and fourteenth sections direct the collector how he is to act in one way to detect frauds upon the revenue. But one mode of prevention, without restrictive terms, limiting an examination and appraisement, of goods to that mode, does not imply that other, lawful means shall not be used to produce the same result. If the frauds, for which the fourth and fourteenth sections declare theré" shall be a forfeiture, shall be discovered, in any way of making an appraisement differing from the manner of examining goods under the fourth section of the act of .1830, no one. can be found to say that the forfeiture would not attach, without any reference to the means by which the fraud was discovered. It follows, then, that the mode of making an examination is not confined to that mentioned in the fourth section of the act of 1830, and that the averment of it is not essential in a count under either of the sections of the law upon which the present information lygs framed. Without such an averment, a count under the fourth' section of the act of 1830, and fourteenth section of the act of 1832, stating time and place, and such circumstances. or particulars of those sections that a correction or acquittal might be given in evidence to prevent another information for the same offence, would be sufficient to prevent the judgment from being arrested upon a motion for’ that purpose. We think there was no error in the court having instructed the jury, that, under the information in this cáse, they were not restricted in the condemnation of the goods to any entered goods which they found undervalued, but that they might find either the whole package or the invoice forfeited, though cogtaining qther goods correctly valued, if they should find that such package or invoice had been made up with intent to defraud the revenue óf “the United States. The judgment in the court below is affirmed.