Wong Bing Nung, Appellant, v. United States of America, Appellee, 221 F.2d 917 (9th Cir. 1955)

This is an appeal from a judgment of the District Court in a judge tried case convicting appellant of knowingly and wilfully, to defraud the United States, smuggling and clandestinely introducing into the United States certain merchandise, in violation of 18 U.S.C. § 545.

Appellant, a seaman aboard an American vessel, transported merchandise from the Orient half of which he declared and removed from the ship when it docked at San Francisco. Appellant left the other half aboard ship and did not declare it. He had a fellow seaman ask a Customs agent if the undeclared merchandise could be landed. Upon receiving a negative answer, appellant's seaman friend said appellant would take the goods to Manila. Earlier on the same day appellant had signed back on the ship as a crewmember. After this conversation Customs agents seized the merchandise aboard ship. It was this merchandise which appellant was convicted of smuggling into the United States. Appellant from the beginning has maintained that he intended to take the goods to Manila, if customs would not allow them to be landed here.

The indictment charges that:

"Wong Bing Nung * * * at the City and County of San Francisco * * * did knowingly and wilfully, with intent to defraud the United States, smuggle and clandestinely introduce into the United States, merchandise which should have been invoiced, to wit, * * *"

The indictment is laid under the first paragraph of 18 U.S.C. § 545, which provides: "Whoever knowingly and wilfully, with intent to defraud 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, or other document or paper; * * *."

Appellant, having advised the customs officials through his friend that he owned the goods in question nevertheless later, believing he had violated the Act, stated to customs agents who came aboard the vessel and saw the goods, that they were not his. The question is not whether he so attempted to deceive customs but whether he had in fact smuggled the goods in violation of the first paragraph of the statute. We believe that he did not smuggle the goods.

The leading case which defines the terms "smuggle" and "clandestinely introduce" is Keck v. United States, 172 U.S. 434, 19 S. Ct. 254, 43 L. Ed. 505. In the Keck case as in the instant case goods were seized aboard a vessel in an American port, the merchandise not having been unladen. The Supreme Court, called upon to interpret the predecessor to § 545, held that smuggle and clandestinely introduce were synonymous phrases and that goods must actually be brought across the customs line in order to be smuggled.¹  This court in a case identical with the instant appeal following the Keck case held there had been no smuggling. McGill v. United States, 9 Cir., 28 F.2d 572.

Later the Supreme Court clearly established that smuggling could occur by one who evaded a customs house by successfully carrying merchandise inside the land boundaries of the country, but this was implicit in the Keck case. United States v. Ritterman, 273 U.S. 261, 47 S. Ct. 371, 71 L. Ed. 636.

In the case of United States v. Merrell, 2 Cir., 73 F.2d 49 the goods were brought into a harbor as in the instant case. The evidence is that Merrell intended so to bring them into the United States without the payment of the duty on them. By so doing he violated paragraph (b) of 19 U.S.C. § 1593 creating a crime. So far as pertinent it reads, Whoever "fraudulently or knowingly imports or brings into the United States * * * contrary to law * * *" a provision practically identical with the second paragraph of 18 U.S.C. § 545. That is to say the law may be violated without committing the crime of smuggling which requires by-passing the good by the customs and entering the land of the United States. While the opinion also describes the goods as smuggled, we regard this as dictum for otherwise the decision violates the Keck case.

That the court in United States v. Merrell was well aware of the distinction between "importing contrary to law" and "smuggling" is manifest from its citation of authority. Gillespie v. United States, 2 Cir., 13 F.2d 736, 738, cited by the court, discussed the distinction between paragraphs one and two of the statute and held that the indictment there involved was laid under the second paragraph. The court stated: "Smuggling is a word to be interpreted by reference to Keck v. United States * * *, a case decided upon unusual consideration." The Merrell opinion also cited The J. Duffy, 2 Cir., 18 F.2d 754, which recognized the distinction between the two offenses and held that the offense under consideration was laid under the second paragraph.

The last case cited by the Merrell opinion is Tomplain v. United States, 5 Cir., 42 F.2d 203, which is strongly relied upon by appellee. The Tomplain indictment charged a violation of the second paragraph of the statute. It was in fact a true case of smuggling, however. Liquor was there seized aboard a motor boat on a Louisiana river called Bayou Boeuf, at a location more than sixty miles inland from New Orleans in the State of Louisiana, which is like a ship going up the San Joaquin River to Stockton in the interior of California.

Finally, appellee relies on the fourth paragraph of 18 U.S.C. § 545 which provides:

"Proof of defendant's possession of such goods, unless explained to the satisfaction of the jury, shall be deemed evidence sufficient to authorize conviction for violation of this section." (Emphasis supplied.)

Since the indictment was based solely on smuggling, the answer to this contention is that the goods are not "such goods", i. e., smuggled goods.

There is no evidence proving a commission of the crime charged in the indictment, and the judgment is ordered reversed, and judgment entered for Wong Bing Nung.