When the FBI Comes Calling…®
IMPORT / EXPORT CRIMES (Continued)
18 U.S.C. § 545 (2007).
The Crime
There are two distinct provisions of section 545. It is a violation for a person to:
- knowingly and willfully, with intent to defraud the United States,
- smuggles, or
- clandestinely introduces or attempts to smuggle or clandestinely introduce 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; or
- fraudulently or knowingly
- imports or brings into the United States, any merchandise contrary to law, or
- receives, conceals, buys, sells, or in any manner facilitates the transportation, concealment, or sale of such merchandise after importation, knowing the same to have been imported or brought into the United States contrary to law. 18 U.S.C. § 545.
The Punishment
The punishment for violating section 545 is
- a fine, imprisonment for not more than twenty years, or both; and
- the forfeiture of the merchandise, or its value. 18 U.S.C. § 545.
Sufficiency of Evidence
There is a rebuttable presumption that if there is proof that the defendant possessed the goods, that proof will be deemed sufficient evidence to authorize a conviction under section 545. 18 U.S.C. § 545.
Definition
"United States", as used in this section, shall not include the Virgin Islands, American Samoa, Wake Island, Midway Islands, Kingman Reef, Johnston Island, or Guam.
Case Law Interpreting Section 545
As can be expected, there is quite a bit of case law that interprets both section 545 and its predecessor statutes. As a preliminary matter, "smuggling" should be defined. Smuggling has long been defined as "[t]he fraudulent taking into country, or out of it, merchandise which was lawfully prohibited. Dunbar v United States, 156 U.S. 185, 193 (1895). However, section 545 is not solely concerned with smuggling; it also criminalizes illegal importation of goods, and the two acts should be understood as separate offenses. United States v Westover, 511 F.2d 1154, 1155 n.2 (9th Cir. 1975). Finally, in rounding out some of the preliminary considerations, merely importing goods which are subject to a duty without paying the duty is not, in general, an offense against smuggling laws; there must be secrecy or concealment, or intent to defraud the United States of revenue. United States v. Kushner, 135 F.2d 668, 671 (2d Cir. 1943). (Illegal importation, however, does not seem to require an intent to defraud the United States of revenue. Id. at 672.)
United States v. Hassanzadeh, 271 F.3d 574 (4th Cir. 2001).
In Hassanzadeh, the defendant was convicted of illegally importing carpets of Iranian origin, which was prohibited by Executive Order 12,613, 31 C.F.R. § 560.201 (1987). During sentencing, the defendant objected to the inclusion of 42 carpets made before 1935 in the calculation of the loss amount for sentencing purposes. Hassanzadeh at 580. This was certainly a novel argument, because prior to 1935, Iran was known as "Persia." Id. at 580-81. Therefore, the defendant argued, the rugs were not of "Iranian" origin, but "Persian" instead. Id. at 581. But the ban applies to the territory known as Iran, and the court ultimately ruled against the defendant. Id. at 582.
United States v. Boggus, 411 F.2d 110 (9th Cir. 1969).
In Boggus, the defendant was convicted of not properly declaring some gold shavings they had brought into the United States from Mexico. Boggus at 111. The defendant had gone to Mexico to inquire about purchasing some gold bars which he would then sell in America. To test the purity of the gold, he took some shavings back to the United States, and did not declare his possession of the shavings to customs when he returned. Id. A customs agent thereafter contacted the defendant and pretended to be an agent representing the American buyers; when he visited the defendant at the defendant's hotel room, the agent noticed the shavings and then arrested the defendant. Id. at 112. The total weight of the shavings amounted to 6.2 grams. Id. 6.2 grams is about one-fifth of an ounce, which in 1969 was worth roughly seven dollars. Id. at 113.
On appeal the defendant tried to tie 19 U.S.C. § 1484 to section 545 by arguing that there was a five day period for entry. Id. at 112. The court stated however, that 19 U.S.C. § 1484 only applies to a consignee, and furthermore, "[o]nce a person has smuggled something into the country it would be senseless to provide he had five days thereafter to enter and declare it and wash away his crime." Id.
Defintion of Merchandise
The definition of merchandise actually is quite broad. For example, it can refer to obscene photographs of minors that are not intended for commercial purposes. United States v. Meyer, 802 F.2d 348, 351 (9th Cir. 1986). It also includes marijuana, United States v. Garcia-Paz, 282 F.3d 1212, 1214 (9th Cir. 2002); heroin, United States v. Meza-Arcadia, 458 F.2d 31, 31-32 (9th Cir. 1972); cattle, Babb v. United States, 252 F.2d 702 (5th Cir. 1958) (no objection to use of term "merchandise" in relation to cattle); fish and wild life, United States v. Lee, 937 F.2d 1388, 1397 (9th Cir. 1991); and even baggage. United States v. Chesbrough, 176 F. 778, 781 (D.C.D.N.J. 1910).