Eighteen Packages of Dental Instruments (D. C. 1915) 222 Fed. 121. Pro forma invoice and bond.-The bond required to be given on the entry of merchandise without a duly-certified invoice, is not intended to secure a penalty for a breach of duty, but only actual damages. U. S. v. Cutajar (1895) 67 Fed. 530, 14 C. C. A. 515. A pro forma invoice is for entry purposes a recognized lawful invoice made under oath as a substitute for a regularly certified invoice; a penalty for undervaluation in such an invoice may be inflicted and an entry on a pro forma invoice is such an entry as the language of section 5527, post, should and must apply to, namely, "the duty shall not, however, be assessed in any case upon an amount less than the entered value." U. S. v. Bennett & Loewenthal (1911) 2 Ct. Cust. App. 249. Reviewing at length the history of the legislation, the practice of the Treasury Department and the decisions of the courts as well, no warrant is found for the statement that an entry upon a pro forma invoice should be held open until the certified invoice is produced or the bond given for its production has been forfeited; nor is any authority found for holding that liquidation is proper on an amount less than the entered value in case an entry is made upon a pro forma invoice, no manifest clerical error or duress appearing. Id. The pro forma invoice for purposes of entry takes the place of the certified invoice and is a complete substitute therefor; and so, the production and filing on some day later than the date of filing the pro forma invoice of papers required by regulations to be produced and "filed with the entry," is not a compliance with articles 570 and 571, Customs Regulations of 1908. McBride v. U. S. (1911) 1 Ct. Cust. App. 293, T. D. 31354; U. S. V. Frank & Lambert (1911) 2 Ct. Cust. App. 239, T. D. 31973; U. S. v. Bennett & Loewenthal (1911) 2 Ct. Cust. App. 249, T. D. 31975; U. S. v. Rettig (1912) 2 Ct. Cust. App. 537. The bond required of an importer entering his goods upon a pro forma invoice stipulates that duties are to be and will be paid upon the certified invoice valuation. In all cases the collector is empowered to reliquidate within one year, the customs regulations governing him in the exercise of this power. In this case authority for the reliquidation by the collector is found both in the law and the express stipulation of the importer's bond. U. S. v. Hobbs (1912) 3 Ct. Cust. App. 256. Cited without definite application, Forbes v. Gracey (1876) 94 U. S. 762, 763, 24 L. Ed. 313; The Laura (1885) 5 Sup. Ct. 881, 883, 114 U. S. 411, 29 L. Ed. 147; U. S. v. Sommers (1909) 171 Fed. 57, 96 C. C. A. 299; U. S. v. Fisher (C. C. 1881) 8 Fed. 414, 416; Insurance Co. of North America v. Willey (1912) 212 Mass. 75, 98 N. E. 677. § 5523. (Act Oct. 3, 1913, c. 16, § III, F.) Declaration to accompany invoice on entry. F. Whenever merchandise imported into the United States is entered by invoice, a declaration upon a form to be prescribed by the Secretary of the Treasury, according to the nature of the case, shall be filed with the collector of the port at the time of entry by the owner, importer, consignee, or agent, which declaration so filed shall be duly signed by the owner, importer, consignee, or agent before the collector, or before a notary public or other officer duly authorized by law to administer oaths and take acknowledgments, under regulations to be prescribed by the Secretary of the Treasury: Provided, That if any of the invoices or bills of lading of any merchandise imported in any one vessel which should otherwise be embraced in said entry have not been received at the date of the entry the declaration may state the fact, and thereupon such merchandise, of which the invoices or bills of lading are not produced, shall not be included in such entry, but may be entered subsequently. That the Secretary of the Treasury and the Secretary of Commerce are hereby authorized and directed to establish from time to time for statistical purposes a list or enumeration of articles in such detail as in their judgment may be necessary comprehending all goods, wares, and merchandise imported into the United States, and that as a part of the declaration herein provided there shall be either attached thereto or included therein an accurate statement specifying, in the terms of the said detailed list or enumeration, the kinds and quantities of all merchandise imported, and the value of the total quantity of each kind of article, and it shall be the duty of the consular officer, to whom the invoice shall be produced, to require such information to be given. (38 Stat. 182.) See notes to subdivision B of this section, ante, § 5519. These provisions, as originally enacted in the Customs Administrative Act of June 10, 1890, c. 407, § 5, 26 Stat. 132, prescribing various forms of declarations, were amended by provisions prescribing different forms by the PayneAldrich Tariff Act of Aug. 5, 1909, c. 6, § 28, 36 Stat. 95, which was further amended by provisions requiring instead of the forms prescribed, "a declaration upon a form to be prescribed by the Secretary of the Treasury," and by the addition of the provision "that the Secretary of the Treasury and the Secretary of Commerce are hereby authorized," etc., to the end of the paragraph, making the provisions read as set forth here, by this act. A declaration on entry of merchandise consigned for sale was provided for by subdivision J of this section, post, § 5528. Provisions requiring an oath on entry of merchandise by invoice, to be administered by the collector, were made by R. S. § 2841, which was repealed by the Customs Administrative Act of June 10, 1890, c. 407, § 29, 26 Stat. 141, amended by the Payne-Aldrich Tariff Act of Aug. 5, 1909, c. 6, § 28, 36 Stat. 104; and all oaths administered by officers of the customs, except as provided in the Customs Administrative Act, were abolished by section 22 thereof. The provisions for abolition of oaths made by the Customs Administrative Act of June 10, 1890, c. 407, § 22, 26 Stat. 140, amended by the Payne-Aldrich Act of Aug. 5, 1909, c. 6, § 28, 36 Stat. 102, were superseded by a proviso annexed to section IV, S, of the Underwood Tariff Act, set forth ante, § 5316, that nothing in the act should be construed to permit any oaths to be demanded except as provided. Provisions for entry of separate packed packages of which no invoice has been received, were made by Act May 1, 1876, c. 89, §§ 1, 2, ante, §§ 5482, 5483. Provisions relating to representatives of deceased or insolvent owners were made by R. S. § 2846, post, § 5538. The collector's certification of the invoice was required by R. S. § 2852, post, § 5540. Notes of Historical-As to former laws governing appraisal of goods imported and entered by the manufacturer, see Belcher v. Lawrason (1858) 21 How. 251, 254, 16 L. Ed. 123. Declaration in general.-Section 5519, ante, confers no right upon a mere consignee to make a declaration as "owner" under this section, but he must make the declaration as consignee, and in the declaration must state truly the name of the owner. U. S. v. Fawcett (C. C. 1897) 86 Fed. 900, 901. Under section 5, Customs Administrative Act, the practice of having declarations signed in blank by an importer, to be filled in later by a customs broker, and the practice of notaries public in falsely certifying such declarations as having been made and sworn to in their presence, are illegal, and to be condemned in law as in morals. U. S. v. Cohn (C. C. 1904) 128 Fed. 615, judgment affirmed Browne v. U. S. (1905) 145 Fed. 1, 76 C. C. A. 31, writ of certiorari denied (1906) 26 Sup. Ct. 755, 200 U. S. 618. 50 L. Ed. 623. Under R. S. § 2841, an oath, by a person entering merchandise, that he does not know of or believe in the existence of any invoices or bills of lading other than those produced by him, does not constitute a false oath, although he knew of the existence of copies. U. S. v. Harrison (D. C. 1887) 32 Fed. 386. On entering an importation of certain merchandise, the importer made "the declaration of owner in cases where Decisions merchandise has been actually purchased," which is set forth in section 5, Customs Administrative Act, but it later appeared that the importation was made pursuant to an agreement under which the importer might, after examination, retain and pay for, or return, any part or all of the goods, and the importer admitted that he did not consider himself the actual owner, but made the entry as an accommodation to the parties who caused the goods to be shipped to him. Held that, as he had full dominion over the property, with the right to sell or otherwise dispose of it without accountability to any one, he should be considered the "owner," and might properly make the declaration aforesaid. U. S. v. NinetyNine Diamonds (D. C. 1904) 132 Fed. 579, judgment affirmed (1905) 139 Fed. 961, 72 C. C. A. 9, 2 L. R. A. (N. S.) 185, writ of certiorari denied (1906) 26 Sup. Ct. 760, 201 U. S. 645, 50 L. Ed. 903. Evidence.-As to evidence required to convict of perjury at custom house, see U. S. v. Wood (1840) 14 Pet. 430, 10 L. Ed. 527. Cited without definite application, Forbes v. Gracey (1876) 94 U. S. 762, 763, 24 L. Ed. 313; Oberteuffer v. Robertson (1886) 6 Sup. Ct. 462, 469, 116 U. S. 499, 29 L. Ed. 706; U. S. v. Sommers (1909) 171 Fed. 57, 96 C. C. A. 299; U. S. v. Auffmordt (D. C. 1884) 19 Fed. 893, 894 (affirmed [1887] 7 Sup. Ct. 1182, 122 U. S. 197, 30 L. Ed. 1182). § 5524. (Act Oct. 3, 1913, c. 16, § III, G.) Punishment for entry or introduction of goods by means of false invoice, etc. G. If any consignor, seller, owner, importer, consignee, agent, or other person or persons, shall enter or introduce, or attempt to enter or introduce, into the commerce of the United States any imported merchandise by means of any fraudulent or false invoice, declaration, affidavit, letter, paper, or by means of any false statement, written or verbal, or by means of any false or fraudulent practice or appliance whatsoever, or shall make any false statement in the declarations provided for in paragraph F without reasonable cause to believe the truth of such statement, or shall aid or procure the making of any such false statement as to any matter material thereto without reasonable cause to believe the truth of such statement, or shall be guilty of any willful act or omission by means whereof the United States shall or may be deprived of the lawful duties, or any portion thereof, accruing upon the merchandise, or any portion thereof, embraced or referred to in such invoice, declaration, affidavit, letter, paper, or statement, or affected by such act or omission, such person or persons shall upon conviction be fined for each offense a sum not exceeding $5,000, or be imprisoned for a time not exceeding two years, or both, in the discretion of the court: Provided, That nothing in this section shall be construed to relieve imported merchandise from forfeiture by reason of such false statement or for any cause elsewhere provided by law. (38 Stat. 183.) See notes to subdivision B of this section, ante, § 5519. These provisions were substituted for provisions of the same nature made by the Customs Administrative Act of June 10, 1890, c. 407, §§ 6, 9, 26 Stat. 134, 135, amended and re-enacted by the Payne-Aldrich Tariff Act of Aug. 5, 1909, c. 6, § 28, 36 Stat. 95, 97. Smuggling merchandise, or making or passing false invoice, was punishable by R. S. § 2865, post, § 5548. Securing false entry of goods was punishable by R. S. § 5445, incorporated into the Criminal Code, in section 69 thereof, post, § 10237, and was repealed by section 341 thereof, post, § 10515. Forging customs entry certificates was punishable by R. S. § 5417, incorporated into the Criminal Code in section 63 thereof, post, § 10231, and repealed by section 341 thereof, post, § 10515. Penalty for false entry for benefit of drawback was provided for by R. S. § 3050, post, § 5753. Importing or bringing goods into the United States, contrary to law, or receiving, buying, etc., such goods, after importation, was punishable by R. S. § 3082, post, § 5785. Notes of Decisions who 1. Construction.-The party makes an entry, using the term entry in its narrower sense, is the owner, importer, consignee, or agent.-U. S. v. Mescall (1909) 30 Sup. Ct. 19, 21, 215 U. S. 26, 54 L. Ed. 77, reversing (C. C. 1908) 164 Fed. 584, 587. Construction of Act March 3, 1863, § 3, in relation to the fraudulent entry of goods.-U. S. v. Ballard (D. C. 1871) Fed. Cas. No. 14,506. 2. False entry-In general.-Concealment by agent consignee of imported goods of facts not proper to be included in the invoice, account, and bill of lading, but which would have excited the suspicion of a collector, is not a violation of Act 1909, making it a felony to state falsely in declaration of an agent consignee that nothing has been suppressed or concealed, whereby the United States may be defrauded of duties lawfully due. U. S. v. Salen (1914) 35 Sup. Ct. 51, 235 U. S. 237, 59 L. Ed. 210. No offense is complete until the false declaration referred to is filed or offered to be filed with the collector when making or attempting to make entry of the goods. U. S. v. Fawcett (C. C. 1897) 86 Fed. 900. The offense is committed by presenting an invoice containing false statements as to the weight of the merchandise, knowing that, under the practice of the office, such invoice would be used for the purpose of the first entry, and, if approved by the examiner, as the basis for the liquidation of the duties, and intending it to be so used; and it is immaterial whether or not a statement of such weight was required by law. U. S. v. Rosenthal (C. C. 1903) 126 Fed. 766, judgment affirmed Browne v. U. S. (1905) 145 Fed. 1, 76 C. C. A. 31, writ of certiorari denied (1906) 26 S. Ct. 755, 200 U. S. 618, 50 L. Ed. 623. Entering goods by a false invoice is an illegal importation. U. S. v. Jordan (D. C. 1876) Fed. Cas. No. 15,498. Importer, making affidavit that nothing had been concealed or suppressed whereby the United States might be defrauded, held guilty of perjury if he had knowledge of any document which, if known, would have led the United States to fix the customs duties higher than those based on the values stated in the consular invoice. U. S. v. Salen (D. C. 1914) 216 Fed. 420. Where the value in an entry is falsely stated or concealed, with a view to defraud the revenue, this would be an offense. (1878) 16 Op. Atty. Gen. 158. 3. Entry. The word "entry" does not refer alone to the act of filing at the custom house the written paper known as an "entry," but embraces the entire transaction of passing the goods through the custom house, among the various steps of which would be the official returns of customs weighers. U. S. v. Mescall (C. C. 1908) 164 Fed. 580, judgment reversed (1909) 30 Sup. Ct. 19, 215 U. S. 26, 54 L. Ed. 77. 4. Intent. The law punishes the attempt, not the intention, to defraud the revenue laws by false invoices. U. S. v. Riddle (1809) 9 U. S. (5 Cranch) 311, 3 L. Ed. 110. An intent to defraud the United States is not an essential ingredient of the offense. U. S. v. Fawcett (C. C. 1897) 86 Fed. 900. 5. Loss of duties.-As the right to duties accrues by the importation of merchandise with an intent to unlade, and immediately upon the importation the duties become a personal charge and debt upon the importer, the United States is deprived of duties, within the provision for the punishment of any person "who shall be guilty of any willful act or omission by means whereof the United States shall be deprived of the lawful duties," etc., the moment it becomes entitled to them and they are withheld by the importer, and it is immaterial whether its officers retain the merchandise or not. U. S. v. Boyd (C. C. 1885) 24 Fed. 692, judgment reversed Boyd v. U. S. (1886) 6 Sup. Ct. 524, 116 U. S. 616, 29 L. Ed. 746. 6. Limitations.-A prosecution under R. S. § 5445, post, § 10237, for effecting an entry of goods at the custom house by means of a fraudulent invoice of them and a false classification as to their quality and value, is a prosecution of an offense arising under the revenue laws, within the meaning of R. S. § 1046, ante, § 1710, and such prosecution is not barred where an indictment is found within five years, next after the committing of the offense. U. S. v. Hirsh (1879) 100 U. S. 33, 25 L. Ed. 539. 7. Indictment-Sufficiency.-An indictment charging a customs examiner with knowingly passing invoices containing false statements as to the weight of imported merchandise will not be held insufficient on the theory that the law provides that weighing is to be done by officers known as weighers, and that therefore the examiner could not legally pass the invoices. Browne v. U. S. (1905) 145 Fed. 1, 76 C. C. A. 31, affirming judgments U. S. v. Rosenthal (C. C. 1903) 126 Fed. 766, and Same v. Cohn (C. C. 1904) 128 Fed. 615, and writ of certiorari denied (1906) 26 Sup. Ct. 755, 200 U. S. 618, 50 L. Ed. 623. An indictment considered, and held to charge the offense of conspiracy to commit an offense under Customs Administrative Act, § 9. Heike v. U. S. (1911) 192 Fed. 83, 112 C. C. A. 615, affirming judgment U. S. v. Heike (C. C. 1910) 175 Fed. 852, writ of certiorari granted Heike v. U. S. (1912) 32 Sup. Ct. 527, 223 U. S. 730, 56 L. Ed. 633, and judgment affirmed (1913) 33 Sup. Ct. 226, 227 U. S. 131, 57 L. Ed. 450, Ann. Cas. 1914C, 128. In an indictment an averment that the defendant "willfully declared that he was the owner of the goods, whereas in fact he was not the owner, as he then and there well knew," is sufficient upon demurrer. U. S. v. Fawcett (C. C. 1897) 86 Fed. 900. An indictment charging that persons, intending to defraud the customs revenue, used a false invoice, that in its nature would tend to effect the fraud, sufficiently charges that they knew the false nature of such invoice, and its capacity for effecting the fraud. U. S. v. Rosenthal (C. C. 1903) 126 Fed. 766, judgment affirmed Browne v. U. S. (1905) 145 Fed. 1, 76 C. C. A. 31, and writ of certiorari denied (1906) 26 Sup. Ct. 755, 200 U. S. 618, 50 L. Ed. 623. It is not necessary to aver that the United States was in fact deprived of duties by the acts of defendants. Id. In an indictment in a federal court it is not necessary to allege the tenor of an instrument unless it touches the very pith of the crime itself, as in forgery, or counterfeiting. An indictment for conspiracy to defraud the United States by obtaining the entry of im ported merchandise without payment of the legal duty thereon need not allege the tenor of an instrument by means of which, as charged, it was intended to accomplish the fraudulent entry. U. S. v. Grunberg (C. C. 1904) 131 Fed. 137. An indictment under section 10201, post, for conspiracy to defraud the United States by means of a false invoice, is sufficient which sets forth such a conspiracy, notwithstanding that it does not set forth the consummation of the fraud, nor include an allegation that the fraud could have been accomplished, if not detected. U. S. v. Stamatopoulos (C. C. 1908) 164 Fed. 524. An allegation of conspiracy to defraud the government of customs duties is sufficiently made in an indictment that alleges conspiracy with respect to merchandise to be imported into the United States without invoicing or entering the same and without paying the duties then and there accruing thereon. S. v. White (C. C. 1909) 171 Fed. 775. U. Since § 5665, post, providing that any owner or importer of merchandise on which the duties have not been paid on giving satisfactory security and obtaining a permit may re-export the same without the payment of duty under inspection of the proper officers, not only contemplates that the goods be deposited on ship within the time limited after their removal, but also requires that the shipment shall be under the continued inspection of the customs officers, and Act 1890 makes it a crime for any owner or importer to make or attempt to make any entry of goods without payment of duty, and one contemplates a crime who means to deposit, conceal, or withdraw goods removed from a warehouse for exportation and to introduce them unconditionally into the country effecting a surreptitious entry by which the duties would become due instanter, an indictment charging a conspiracy to effect such result sufficiently charged a crime; and where the defendant was charged with having withdrawn certain imported beans from the warehouse for exportation upon bond and permit, all on January 15, 1902, and the indictment then alleged that the goods were not exported "then and there," but were withheld and concealed with the knowledge of the defendants, the goods would be regarded as "entered," and the duties therefrom due when the owners or the truckmen to whom the custody was intrusted disregarded the limitations put on them and introduced the goods into the unrestricted commerce of the country, though the time within which the goods might be properly exported had not arrived; hence the indictment was not objectionable because it did not allege that defendants concealed or withheld the goods, not only at the time of their removal, but for all the period which was allowed to export them. U. S. v. Ehrgott (C. C. 1910) 182 Fed. 267. 8. Duplicity. The offense of effecting an entry and of aiding in effecting an entry of imported goods at less than their true weight or measure, by means of false samples or representations, may be charged conjunctively in the same count of an indictment. U. S. v. Bettilini (C. C. 1871) Fed. Cas. No. 14,587. An indictment for making a false entry of merchandise, is not double because it charges in a single count a false entry by a false and fraudulent affidavit, a false and fraudulent paper, and a false and fraudulent written statement, as the making of these are all acts connected with the same transaction. U. S. v. Cutajar (C. C. 1894) 60 Fed. 744, appeal dismissed Cutajar v. U. S. (1897) 17 Sup. Ct. 993, 41 L. Ed. 1185. 9. Specifying means used.-The acts necessary to effect an entry being prescribed by statute, an allegation that an entry was effected is a specific statement of what acts were done without a specific description of those acts. U. S. v. Moller (C. C. 1879) Fed. Cas. No. 15,794; Same v. Ballard (D. C. 1871) Fed. Cas. No. 14,506. defendant An indictment charging with effecting an entry of goods by fraudulent means must specify what fraudulent means were used; otherwise, it is bad.-U. S. v. Bettilini (C. C. 1871) Fed. Cas. No. 14,587. An indictment for conspiracy to defraud the United States of sums to become due to it as customs duties must allege, to some extent at least, the means intended to be used to defraudas that it was by smuggling, or by forged or false invoices, or the like-although the details of the plan need not be set out, since they may not have been known to the grand jury or to the conspirators themselves. U. S. v. Grunberg (C. C. 1904) 131 Fed. 137. An indictment for conspiracy to defraud the United States by a false invoice is not vitiated by the particularity with which the overt act is set forth, if the conspiracy of itself be sufficient. U. S. v. Stamatopoulos (C. C. 1908) 164 Fed. 524. 10. Under prior statutes.-See U. S. v. Fawcett (C. C. 1897) 86 Fed. 900; Same v. Platt (D. C. 1840) Fed. Cas. No. 16,054a. 11. Evidence and presumptions.-A defendant, who was an examiner in the custom house, was charged with conspiracy with his codefendants to permit the entry of goods subject to an ad valorem duty at an undervaluation. It was shown that two cases of goods passed by him were throughout of much higher grade than shown by the invoices, and that each contained a number of inclosed packages, and on cross-examination that he examined |