Smuggling- Federal


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Smuggling- 18 U.S.C 545

To be convicted of the federal crime of smuggling, the government must prove the following three (3) essential elements beyond a reasonable doubt: (1) the Accused brought or attempted to bring certain merchandise into the United States; (2) the Accused knew that said merchandise should have been reported to customs authorities as required by law; and (3) intending to defraud the United States by avoiding the United States customs laws, the Accused did not report said merchandise to the customs authorities.  It is not necessary, however, to prove that any tax or duty was owed on the merchandise

To act with “intent to defraud” means to act with intent to deceive or cheat someone.

The fourth paragraph of § 545 establishes a presumption of guilt from the unexplained possession of undeclared imported goods. The presumption has not been included here. This presumption has been held unconstitutional. United States v. Kenaan, 496 F.2d 181, 184 (1st Cir.1974). The Fifth Circuit has held it is not plain error to instruct on the presumption in 18 U.S.C. § 545. United States v. Bentley, 875 F.2d 1114 (5th Cir.1989). Nevertheless, relying upon United States Supreme Court jurisprudence critical of these types of presumptions, the Committee recommends that it not be charged. See Leary v. United States, 89 S.Ct. 1532 (1969); Turner v. United States, 90 S.Ct. 642 (1970); Carella v. California, 109 S.Ct. 2419 (1989).

With respect to whether it must be shown that a tax or duty was owed on the merchandise, the Second Circuit, the Fourth Circuit, the Seventh Circuit and the Ninth Circuit have expressly held that 18 U.S.C. § 545 does not require as an element of the crime that the defendant specifically intended to deprive the government of revenue. United States v. Borello, 766 F.2d 46 (2d Cir.1985); United States v. McKee, 220 F.2d 266 (2d Cir.1955); United States v. Ahmad, 213 F.3d 805 (4th Cir.2000); United States v. Kurfess, 426 F.2d 1017 (7th Cir.1970); United States v. Robinson, 147 F.3d 851 (9th Cir.1998). The Third Circuit, in United States v. Menon, 24 F.3d 550 (3d Cir.1994), disagreed and concluded that an intent to deprive the government of revenue is an essential element and the failure to charge the jury in this manner is plain error. The Fifth Circuit has not met the issue directly. In United States v. One 1976 Mercedes 450 SLC, however, the Fifth Circuit spoke of § 545 as prohibiting the smuggling of goods “that ought to have been declared or invoiced.” 667 F.2d 1171, 1175 (5th Cir.1982).


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