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thereof, has, under the well-settled rules of law hereinafter quoted, a right to examine and advert to in decision. That this court has the right to so examine the evidence and all the proceedings in that case, the judgment having been pleaded herein, to determine exactly what issues were passed upon by the jury is well-settled law. (See cases, infra.) The collector, the record of said case before him, as he was bound in good conscience and in due observance of official duty to do, proceeded to action. His powers in this status are well defined and plenary.
It is significant that, commencing with the customs administrative act of 1890 (26 Stat. L., 131), section 13, long after the enactment of section 2890, Revised Statutes, supra, Congress, immediately after legislating finality as to the appraiser's report, provided as to the remaining ascertainments necessary to liquidation, “the collector, or the person acting as such shall ascertain, fix, and liquidate the rate and amount of the duties,” etc. Certainly in case no weigher was provided by law, or where he could not perform his duties because of the absence of the goods or for other cause, this power is broad enough to authorize the collector to ascertain the weight in any satisfactory manner. Here there was no valid weigher's return, the return made having been void because fraudulent.
This view is confirmed by section 16 of the customs administrative act (26 Stat. L., 131), giving collectors the power unlimited in time to cite the "owner, importer, agent, consignee, or other person, examine him under oath and require the production of any letters, accounts, or invoices relating to said merchandise,” “may require such testimony to be reduced to writing, and when so taken it shall be filed in the office of the collector and preserved for use or reference until the final decision of the collector or said board of appraisers
* respecting the valuation or classification of said merchandise." In a decision of great merit by Judge Hand, Southern District of New York, it was held that the provision empowered the collector to “order an examination in aid of a possible reliquidation.”
The collector's action and the record before him is typified by any one of the entries. As officially descriptive we select at random entry No. 160687, covering, and entering as invoiced, an invoice of 120 cases of cheese invoiced at gross kg. 8,127 (17,916 pounds); tare 3,719 pounds; net kg. 6,440 (14,198 pounds). Attached to the entry is the following order: “Reliquidate upon basis of United States weigher's return dated June 29, 1911, attached, in view of fraud disclosed. E. J. Allendorf” (deputy collector). The original fraudulent weigher's certificate recites 120 cases of cheese, gross 17,842 pounds; tare 4,040 pounds; net 13,802 pounds. Thereupon is indorsed:
“120 cases of cheese.' Canceled, declared void. See amended return attached as per collector's order June 27, 1911. Thos. D. Hyatt, U. S. W.” (weigher). The amended return or certificate of the United States weigher "attached” reads:
120 cases cheese. Gross 20,173; tare 4,040; net 16,133. The original liquidation of this entry was made on a false and fraudulent return by the assistant United States weigher. Upon investigation it was found that 42 cases were weighed by the city weigher employed by the importer and returned as weighing 7,113 pounds gross. 20 cases in addition to the above 42 cases were sold by the importer to P. Petri and billed as weighing 3,308 pounds gross, making a total weight for 62 cases of 10,421 pounds gross. It is therefore recommended that the original return of weight, and the liquidation based thereon, be declared null and void; and that the entry be reliquidated on the basis of the weight gross returned by the city weighers and the Petri bill combined and the tare of the United States Assistant Weigher Quinn, that being the highest tare ascertainable. Thos. D. Hyatt, United States weigher. June 29, 1911.
Wherefrom it is clear that the true weights were approximately 2,000 pounds more than the invoice weights, resulting in a difference in duties of approximately $120.
Reliquidation followed accordingly, whereupon the collector by the return above quoted transmitted the papers to the Board of General Appraisers. Therein the collector declared that the reliquidation was prompted by the evidence in the "suit" aforesaid wherein assistant weighers swore they had made fraudulent returns of the weights of the particular merchandise, adverting to the evidence in the suit of United States v. Zucca, the judgment and indictment in which is held in evidence, wherefore, for the reasons hereinafter stated, this court is warranted in examining the evidence and proceedings in that suit. We find that record contains such evidence and shows such weigher's returns were testified by said assistant weighers to have been made fraudulently to correspond approximately with the weight stated in the invoices as given such weighers by a third party. The collector further returned that he had ascertained that the true weights were much greater than the entered and invoiced weights of said merchandise, from which he concluded and found fraud in the entry thereof and accordingly ordered reliquidation. The evidence upon which the collector found the returned true weights of said merchandise, and upon which as a basis reliquidation was made, was by the collector returned to the board, thereby, under the mandate of Congress, was made evidence before the board.
In conformity with the foregoing the collector of customs at the port of New York retained in his possession $3,269.52, money of Zucca & Co., in the possession of the collector, being a sufficient amount to meet the reliquidations stated.
In order to secure a mandate of the Board of General Appraisers directing said collector of customs to pay over to Zucca & Co. said retained sum of $3,269.52, the importers elected to proceed to protest therefor under the terms of the customs administrative act of 1890, as amended. Accordingly they duly filed protest in the words and figures as follows:
New YORK CITY, July 27, 1911. Hon. WILLIAM LOEB, Jr.,
Collector of Customs, Port of New York. Sır: We hereby protest against the reliquidation and assessment of duty upon cheese, etc., imported in the vessels and on the dates named in the schedule annexed hereto and marked “Exhibit A" upon the following grounds:
I. That the reliquidation was made without warrant of law and in violation of section 21 of the act of June 22, 1874 (18 Stat., 190), for the following reasons:
A. That said reliquidation of each and every of the importations mentioned and set forth in said schedule A was made more than one year from the time of entry of said importations, respectively, and after the expiration of more than one year after the importation, entry, passage, and delivery of all of said goods, and after liquidation and payment of duties thereon.
B. That there was no fraud in connection with any of said importations, and that there was no protest by the owner, importer, agent, or consignee or any other person pending at the respective times of the liquidation of said importations, respectively.
C. That by reason of the grounds set forth in A and B above, the entry and settlement of duties upon each and all of said importations became, prior to and was at the time of the reliquidation of July 12, 1911, final and conclusive upon all parties.
D. That the liquidation or reliquidation of the entries in question made by the collector prior to the reliquidation of July 12, 1911, is final and conclusive upon all parties.
II. That the issue of fraud in connection with importations of merchandise was finally and conclusively determined in favor of the defendant in a certain criminal prosecution by the United States of America against Antonio Zucca by the return of a verdict of acquittal, and the entry of judgment thereon in the United States Circuit Court for the Southern District of New York, on the 14th day of April, 1911, and that the said Antonio Zucca was at all of the times of the importations covered by the respective entries set forth in said schedule A, the sole proprietor and the sole person doing business as Zucca & Co., the protestant herein, and that by reason of said acquittal and judgment, any question or issue of fraud against the said Antonio Zucca or Zucca & Co. is res adjudicata.
III. That the collector is legally bound and concluded by the weights returned by the weigher in his original special return of weights on each and all of said importations.
IV. That there is no warrant or authority at law to justify the cancellation of the original weights as noted upon the weigher's return attached to the entries and upon the entries themselves.
V. That the collector has no power or authority under any provision of law to order the cancellation of the weigher's return or to cause the weigher to make a return of weight not based upon the actual weighing of the goods by an official United States weigher; and that each and every of the said reliquidations was made upon weights other than those returned after actual weighing of the goods by any United States weigher.
VI. That the weights assumed by the Government for the purpose of reliquidation are erroneous and speculative, and that no lawful reliquidation of duties could at any event and irrespective of the foregoing objections be based upon such weights; and that there is no provision or warrant of law authorizing or justifying the computation of duty for the purpose of reliquidation upon any of the weights taken by the Government as a basis of the reliquidation of the respective entries herein.
VII. That in making some of the said reliquidations of July 12, 1911, the computations are based upon alleged weights of only a portion of the respective importations, and that the alleged entire weight of said importations respectively was computed upon the basis of said portions thereof. That there is no provision or authority of law warranting such procedure in the determination of weight of cases of merchandise varying in weight.
VIII. That the amended return of weights for the reliquidation of each and all of said importations fails to comply with and is in violation of article 1484 of the customs regulations of 1908.
We therefore protest against the payment of any and all of the duties not legally chargeable upon said importation, and more specifically of duties in excess of the amount of duties as originally liquidated and paid; and hereby reserve all questions of law or fact that may arise. Respectfully, yours,
Zucca & Co.,
By ANTONIO ZUCCA,
Sole Proprietor, 25 West Broadway, New York City. All the papers in the case having been duly transmitted to the Board of General Appraisers, including the invoices and entries showing the invoiced and entered weights of the imported merchandise, together with the original weigher's returns and the amended weigher's returns, disclosing great and systematic differences in the entered and true weights, and including the direction of the deputy collector to reliquidate on account of the fraud made apparent by these systematic differences in weights, and also including the return of the collector to the Board of General Appraisers approving the same and certifying thereto, and declaring his action was also based upon the testimony in a suit wherein assistant weighers testified that they had falsely certified the weights of these importations, the case was duly set for trial before the board.
The record as thus made up in substance consisted of the aforesaid official return of the collector reliquidating the entries upon the stated ground that there was fraud in the case, accompanied by the evidence of such fraud.
The protest of the importers consisted of their unverified allegations.
Let it be noted that of these were, “B. That there was no fraud in connection with any of said importations *
*", and "V. * * *
that each and every of the said reliquidations was made upon weights other than those returned after actual weighing of the goods by any United States weigher”; and “VI. That the weights assumed by the Government for the purpose of reliquidation are erroneous and speculative * *”; and “VII. That in making some of the said reliquidations of July 12, 1911, the computations are based upon alleged weights of only a portion of the respective importations, and that the alleged entire weight of said importations respectively was computed upon the basis of portions thereof. * * *"
There was pending at the same time before the board the parallel protest of F. Vitelli & Son.
The question principally discussed at the first hearing of that protest was whether the burden was on the protestant to prove the existence of fraud. The board ruled that the burden was on the Government. The Government offered no evidence and the protest was sustained (T. D. 33115, G. A. 7418; January 21, 1913). On appeal the board's decision was reversed, this court holding that the burden was on the importer (United States v. Vitelli, 5 Ct. Cust. Appls., 151; February 10, 1914). The importer failing to sustain the burden of proof upon the new trial, the board overruled the protest (Abstract 36340, T. D. 34742; August 21, 1914). On appeal the board's decision was affirmed (Vitelli v. United States, 7 Ct. Cust. Appls., 243; May 29, 1916). On a writ of certiorari the Supreme Court reversed the decision of this court and remanded the case to the Board of General Appraisers for further proceedings (Vitelli v. United States, 250 U. S., 355, T. D. 38179; June 6, 1919).
The instant protest and Vitelli's protest had come on for hearing together, October 30, 1912. At the conclusion of discussion relative to the burden of proof the trial was continued to a later date with permission to counsel to file briefs. On December 5, 1912, the board decided that the burden of proof was on the Government. The trial under the protest was not proceeded with until June 19, 1917. Seemingly the proceeding had been held in abeyance awaiting the outcome of the Vitelli litigation.
Antonio Zucca was called as a witness for protestant. He testified, without contradiction, that he was then "the only owner of the firm' of Zucca & Co. and that he had been a member of that firm” from 25 to 30 years. He did not testify as to who were the other members in 1906 and 1907. He also testified that he had been “indicted on or about the 26th of November, 1910, for alleged fraudulent entries." There was offered and received in evidence, over the objection of the Government, "the indictment and acquittal.”
The indictment, here in evidence, contained 16 counts. Each count charged, in effect, that on the date therein named Antonio Zucca did knowingly effect and aid in effecting an entry of certain dutiable merchandise then imported by him from a foreign country, said entry being effected by him at less than the true net weight of said merchandise, whereas, in fact, the true net weight of said merchandise was greater, as he then well knew.
At none of the hearings did the Government offer evidence.
At the close of the hearing on June 19, 1917, the case was submitted for decision. Citing the decision of this court in the Vitelli cases holding the burden of proof rested upon the importer, the board overruled the protest, and the case comes here for review.
Two contentions are here made by appellant; the first is that the burden of proof is upon the Government, in the state of this record, to prove fraud.
In both of the Vitelli decisions, United States v. Vitelli & Son (5 Ct. Cust. Appls., 151; T. D. 34194), and Vitelli & Son v. United States