United States v. Salen

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.C.omp. 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: