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Import / Export Crimes - Federal Criminal Defense Lawyer

This is a particularly fascinating category. On one hand, there are the fairly obvious applications of United States law to activity that attempts to prevent the United States from collecting taxes on the importation of goods. That's quite self-explanatory. But one act can be punished under multiple statutes, which makes the case law in this category fairly dense. See United States v. Zhang, 833 F. Supp. 1010 (S.D.N.Y. 1993), below. What makes this field so interesting is that the United States has begun using provisions like the wire fraud statute to penalize people who do not pay excise taxes in other countries for defrauding foreign governments.

These pages first address crimes that revolve around the importation of goods, and then it addresses crimes that revolve around the exportation of goods.

Import Crimes

The discussion here begins with United States customs statutes and then explores recent developments in enforcement of foreign countries' tax laws, noting that the Supreme Court denies that it is doing so.

Title 18, Chapter 27 of the United States Code covers customs and duty obligations. The statutes, found at 18 U.S.C. §§ 541-553, criminalize such behavior as falsely classifying goods, making false statements, paying less duty on goods than is owed, and even falsely claiming a refund of duties.

18 U.S.C. § 541 (2007).

The Crime
Under this section it is a crime to "knowingly":

• effect any entry of goods, wares, or merchandise, at less than the true weight or measure thereof.
• effect the entry of goods upon a false classification of their quality or value.
• effect the entry of goods by the paying less than the amount of duty legally due. 18 U.S.C. § 541.

The Punishment
The punishment for a violation of section 541 is

• a fine, imprisonmnet for not more than two years, or both. 18 U.S.C. § 541.

Case Law Interpreting Section 541
United States v. Godinez, 922 F.2d 752 (11th Cir., 1991)
In Godinez, the defendants imported a shipment of Latin American plywood that had been classified as softwood, but which customs officials determined was actually hardwood. Godinez at 753. By attempting to classify the plywood as softwood, no duties would need to be paid, whereas hardwood plywood required a duty be paid. Id. The defendants were ultimately convicted for falsely classifying imported goods in violation of 18 U.S.C. § 541 and for making false statements in connection with imported goods in violation of 18 U.S.C. § 1001. (Section 1001 is discussed below.)

The issue concerning section 541 in this case was whether there was sufficient evidence to prove that the goods actually entered the country. The defendants claimed that since entry, as interpreted by 19 C.F.R. §§ 141.0a(a) and 142.3, requires several documents to be filed, none of which were introduced at trial, then the goods never entered the country. Godinez at 756. The court ultimately determined that such documents did not need to be introduced at trial, and there was substantial proof that the goods actually made it into the country and had been sold. Id.

United States v. Zhang, 833 F. Supp. 1010 (S.D.N.Y., 1993)
In Zhang, the defendants were charged with conspiring to defraud the United States Customs Service in connection with various imports of clothing from China in the late 1980s and early 1990s. Zhang at 1012. The defendants challenged the indictment as "impermissibly multiplicitous, arguing that it improperly charges a single course of conduct in multiple counts. [They claimed] this multiplicity is achieved … by charging single acts as violations of multiple statutory provisions." Id. The indictment charged the defendants with violating sections 541, 542, and 545, which the defendants objected to because they claimed "each count does not require proof of facts in addition to facts required to be proved under the other counts." Id. 1016-17. The court noted that "[w]hether a defendant can [be] charged under multiple statutory provisions for a single act depends upon whether the legislature intended multiple punishments for a single act." Id. at 1017 (citing Missouri v. Hunter, 459 U.S. 359, 368-69 (1983)).

Determining legislative intent requires a three-step inquiry.

• If the offenses charged are found in different statutes, or distinct sections of a statute, and each section authorizes punishment for a violation of its terms, the court can infer that Congress intended to authorize multiple punishments for each provision.
• Using the "Blockburger Test," Blockburger v. United States, 284 U.S. 299 at 304 (1932), the court determines whether the offenses are sufficiently distinguishable from one another to show that the inference that Congress intended multiple punishments is a reasonable one. The Blockburger test is as follows:
  • The applicable rule is that where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not.
• If the Blockburger test is satisfied, the final step is to examine the legislative history to discover whether a contrary Congressional intent exists; if the history reveals an intent to authorize multiplicity or is silent, there is a presumption that Congress intended to authorize multiple punishments. Zhang at 1017 (citing United States v. Nakashian, 820 F.2d 549, 551 (2nd Cir. 1987)).

The court in Zhang found that each statute the defendants were indicted under punished distinct offenses. Following the three-step inquiry, the court found: first, that each separate statutory provision carried an express penalty for its violation, which satisfied the first step; second, that each statute constituted a separately punishable crime; and third, that the defendant provided no evidence to that Congress did not intend to provide multiple punishments. Id. at 1017-19. Therefore, it is clear to see that one act can be punished multiple times.

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