# United States v. Mersky/Opinion of the Court

* Court Documents
* Case Syllabus
* Opinion of the Court
* Concurring Opinion Brennan
United States Supreme Court
361 U.S. 431
United States v. Mersky
Argued: Nov. 10, 1959. --- Decided: Feb 23, 1960
The Congress has provided in the Tariff Act of 1930, 46 Stat. 590, as amended, that imported articles be marked to indicate to an ultimate purchaser in the United States the English name of the country of origin. 19 U.S.C. § 1304, 19 U.S.C.A. § 1304. Pursuant to the Act, the Secretary of the Treasury adopted implementing regulations. This case tests the application of these provisions to the importation of 10 violins from the Soviet Zone of Germany. Appellees were charged with removing the labels from the violins with intent to conceal from the ultimate purchasers in the United States the identity of the violins' country of origin. The District Court dismissed the information, holding that the changing of the labels did not violate the Act because the applicable regulation appeared to require the Soviet Zone marking only for tariff purposes rather than to apprise the ultimate purchasers of the place of origin. In any event, the court found, the intent of the regulation was not 'manifested in a manner sufficiently clear and unambiguous to justify a criminal prosecution.' On appeal by the Government, the Court of Appeals held that the District Court's opinion, interpreting the regulation, was tantamount to a construction of the statute upon which the information was founded; and hence, under the Criminal Appeals Act, 18 U.S.C. § 3731, 18 U.S.C.A. § 3731, the order of dismissal was appealable directly to this Court, rather than to the Court of Appeals. It was also of the opinion that the effect of the dismissal was to sustain a motion in bar, which, under s 3731, likewise required appeal to this Court. Accordingly, it certified the appeal, 2 Cir., 261 F.2d 40, and we postponed the question of jurisdiction to a hearing on the merits, 359 U.S. 951, 79 S.Ct. 740, 3 L.Ed.2d 760. We have concluded to accept the certification of the Court of Appeals and, on the merits, to affirm the District Court judgment dismissing the information.
Appellees, dealers in musical instruments in the United States, had purchased the violins from importers and thereafter sold them to other dealers. Upon obtaining possession of the violins from the importers, appellees replaced labels marked 'Germany/USSR Occupied,' then on each of the violins, with others inscribed 'Made in Germany.' After resale of the violins, an information was filed against appellees, charging that they removed the original labels attached to the violins with intent to conceal from the ultimate purchasers the identity of the country of origin. The Government's theory was that the removal of the labels violated 19 U.S.C. § 1304, 19 U.S.C.A. § 1304, and its implementing regulations.
Our first consideration is the jurisdictional issue. The Criminal Appeals Act specifies several conditions, any one of which permits a direct appeal by the Government to this Court, and makes our jurisdiction in such cases exclusive. In the event that an appeal which should have been taken here is erroneously effected to a Court of Appeals, that court is directed to certify it here. Prior to 1907, the date of the original Act, the United States had no appeal whatever in criminal cases. As passed by the House, the bill gave the Government 'the same right of review by writ of error that is given to the defendant.' However, in the Senate, the bill was amended so as to allow review from judgments setting aside indictments, 'where the ground for such motion or demurrer is the invalidity or construction of the statute upon which the indictment is founded.' 41 Cong.Rec. 2819. The final language emerged from the Conference Committee of the two Houses. See H.R.Conf.Rep. No. 8113, 59th Cong., 2d Sess. As was stated by Senator Knox, one of the proponents of the measure, a member of the Judiciary Committee and a former Attorney General of the United States, the bill 'only proposed to give it (the Government) an appeal upon questions of law raised by the defendant to defeat the trial * * *.' 41 Cong.Rec. 2752. The bill was intended to create 'the opportunity to settle important questions of law,' its 'great purpose' being 'to secure the ultimate decision of the court of final resort on questions of law.' The situation sought to be remedied was outlined by Senator Patterson, also of the Judiciary Committee and a proponent of the bill, in these words:
'We have a district court in one jurisdiction holding that a law is ineffective for one reason or another-it may be that it is unconstitutional, or for some other reason-and we have a district court in another jurisdiction holding the reverse; and as the cases multiply in the several sections of the country we may find one half of the courts of the country arrayed against the other half of the courts of the country upon the same identical law; one half holding that it is entirely constitutional and the other half holding that it is unconstitutional. So, Mr. President, that confusion, that ridiculous condition, exists and must continue to exist, because, as the law now stands, until a case involving the question shall go to the Supreme Court and it is brought there by the defendant, there can be no adjudication by a court whose decision and judgment is controlling. * * * The bill is intended to cure a defect in the administration of justice * * *.'
It therefore appears abundantly clear that the remedial purpose of the Act was to avert 'the danger of frequent conflicts, real or apparent, in the decisions of the various district or circuit courts, and the unfortunate results thereof'; and to eliminate 'the impossibility of the government's obtaining final and uniform rulings by recourse to a higher court.' 20 Harv.L.Rev. 219. Moreover, the desirability of expedition in the determination of the validity of Acts of Congress, which is pointed to as a desideratum for direct appeal, applies equally, to regulations. In practical operation correction of a regulation by agency revision invariably awaits judicial action.
The information charged violations of 19 U.S.C. § 1304, 19 U.S.C.A. § 1304, 'and the regulations promulgated thereunder.' This section requires imported articles to be marked 'to indicate to an ultimate purchaser * * * the country of origin,' and imposes criminal sanctions on anyone who removes such a mark with intent to conceal the information contained therein. The Secretary of the Treasury is authorized to implement it by appropriate regulations. The term 'country,' as used by the Congress in requiring the markings, was defined by regulation to mean 'the political entity known as a nation.' 19 CFR § 11.8. By Treasury Decision 51527, August 28, 1946, Germany was to be considered the country of origin of articles manufactured or produced in all parts of Germany. Following a change in duty rates applicable to Soviet Zone products, T.D. 53210 was issued in 1953, providing that articles from Eastern Germany should be 'marked to indicate Germany (Soviet occupied).' The issue posed to the District Court was whether this last regulation carried with it the sanctions of § 1304. As we see it, a construction of the regulation necessarily is an interpretation of the statute.
An administrative regulation, of course, is not a 'statute.' While in practical effect regulations may be called 'little laws,' they are at most but off-spring of statutes. Congress alone may pass a statute, and the Criminal Appeals Act calls for direct appeals if the District Court's dismissal is based upon the invalidity or construction of a statute. See United States v. Jones, 1953, 345 U.S. 377, 73 S.Ct. 759, 97 L.Ed. 1086. This Court has always construed the Criminal Appeals Act narrowly, limiting it strictly 'to the instances specified.' United States v. Borden Co., 1939, 308 U.S. 188, 192, 60 S.Ct. 182, 185, 84 L.Ed. 181. See also United States v. Swift & Co., 1943, 318 U.S. 442, 63 S.Ct. 684, 87 L.Ed. 889. Here the statute is not complete by itself, since it merely declares the range of its operation and leaves to its progeny the means to be utilized in the effectuation of its command. But it is the statute which creates the offense of the willful removal of the labels of origin and provides the punishment for violations. The regulations, on the other hand, prescribe the identifying language of the label itself, and assign the resulting tags to their respective geographical areas. Once promulgated, these regulations, called for by the statute itself, have the force of law, and violations thereof incur criminal prosecutions, just as if all the details had been incorporated into the congressional language. The result is that neither the statute nor the regulations are complete without the other, and only together do they have any force. In effect, therefore, the construction of one necessarily involves the construction of the other. The charges in the information are founded on § 1304 and its accompanying regulations, and the information was dismissed solely because its allegations did not state an offense under § 1304, as amplified by the regulations. When the statute and regulations are so inextricably intertwined, the dismissal must be held to involve the construction of the statute. This, we believe, gives recognition to the congressional purpose to give the Government the right of appeal upon 'questions of law raised by the defendant to defeat the trial' and thus promptly to 'secure the ultimate decision' of this Court, affording a desired 'uniform enforcement of the law throughout the entire limits of the United States.' In view of this conclusion, we need not pass upon the claim that the District Court sustained in effect a 'motion in bar.' Our disposition requires that the case come directly here, and accordingly we accept the certificate of the Court of Appeals and now turn to the merits.
In 1946, the Treasury implemented the country-of-origin provisions of § 1304 by issuance of T.D. 51527, which provided that, 'For the purposes of the marking provisions of the Tariff Act of 1930, * * * Germany shall be considered the country of origin of articles manufactured * * * in all parts of the German area subject to the authority of the Allied Control Commission and the United States, British, Soviet, and French zone Commanders * * *.' Thus the marking on articles produced in the Soviet Zone were required to be labeled 'Made in Germany.'
In 1951 the Congress directed the President to suspend or withdraw any reduction in the rates of custom duties or other concessions then applicable to the importation of articles manufactured in any areas dominated by the Soviet Union. 65 Stat. 73; 19 U.S.C. § 1362, 19 U.S.C.A. § 1362. In Proclamation No. 2935, 65 Stat. C25, 19 U.S.C.A. § 1362 note, the President suspended any reduction in rates of duty applicable to any articles manufactured in the Soviet Zone of Germany and the Soviet Sector of Berlin. Treasury Decision 52788, issued the same day, changed the rate of duty as provided in this proclamation. In 1953 the Secretary issued T.D. 53210, the regulation in controversy. This Treasury Decision is headed: 'Tariff status, marking to indicate the name of the country of origin, and customs valuation of products of Germany, Poland, and Danzig.' The first paragraph of T.D. 53210 refers to the presidential proclamation changing the structure of the rates of duty. The second paragraph specifies that, 'For the purposes of the value provisions of section 402, Tariff Act of 1930 (19 U.S.C.A. § 1402),' Western Germany shall be treated as one country, and 'the Soviet Zone * * * shall be treated as another 'country." The third paragraph is the one crucial to this prosecution: it provides that products of Western Germany shall be 'marked to indicate Germany as the 'country of origin,' but products of the Soviet Zone * * * shall be marked to indicate Germany (Soviet occupied) as the 'country of origin." The District Court concluded that T.D. 53210 was 'issued primarily to establish markings for purposes of the differences in the duties applicable'; thus the indication of Soviet Zone origin would not be required beyond entry into this country, the stage at which duty is payable.
We agree with the District Court. It appears that T.D. 53210, unlike T.D. 51527, is aimed at the collection of duties rather than the protection of the ultimate purchaser in the United States. Its caption indicates that it deals with 'tariff status' and 'customs valuation,' and the marking requirements are but aids thereof. Taking up the body of the document, we note that the first paragraph deals entirely with the fact that Soviet-dominated areas 'shall not receive reduced rates of duty,' while Western Germany and the Western Sectors of Berlin shall 'continue to receive most-favored-nation treatment.' The second paragraph is introduced by the phrase, 'For the purposes of the value provisions' of the Tariff Act, and provides that 'the Soviet Zone * * * shall be treated as another 'country." This language, as well as the make-up of the regulation, suggests that the third paragraph (the one involved here), requiring distinctive marking for Soviet Zone products, is but another step in the implementation of the tariff changes. It contains no reference to the requirement of § 1304 that the article be marked in a 'conspicuous place,' 'legibly, indelibly, and permanently,' so that an 'ultimate purchaser in the United States' would be on notice. We note that appellees placed on the violins the labels 'Made in Germany' as required by T.D. 51527.
In the context of criminal prosecution, we must apply the rule of strict construction when interpreting this regulation and statute. United States v. Halseth, 1952, 342 U.S. 277, 280, 72 S.Ct. 275, 277, 96 L.Ed. 308; United States v. Wiltberger, 1820, 5 Wheat. 76, 95-96, 5 L.Ed. 37. A reading of the regulation leaves the distinct impression that it was intended to protect and expedite the collection of customs duties. Certainly its emphasis on duties and its silence on the protection of the public from deceit support the conclusion that the old provisions were to continue insofar as markings after importation are concerned. If the intent were otherwise, it should not have been left to implication. There must be more to support criminal sanctions: businessmen must not be left to guess the meaning of regulations. The appellees insist that they changed the labels in good faith, believing their actions to be permissible under the law. There is nothing in the record to the contrary. A United States district judge concurred in their reading of the regulation. In the framework of criminal prosecution, unclarity alone is enough to resolve the doubts in favor of defendants.
Accordingly, the judgment of the District Court is affirmed.
Affirmed.

## Notes

* ↑ '19 U.S.C. § 1304. Marking of imported articles and containers.
* ↑ 18 U.S.C. § 3731, 18 U.S.C.A. § 3731 provides, in part:
* ↑ In addition to the substantive charges, there was a count alleging conspiracy so to alter the labels.
* ↑ Senator Bacon, a member of the Judiciary Committee. 41 Cong.Rec. 2195-2196.
* ↑ 41 Cong.Rec. 2753. See also comments of Senator Clarke, who, after discussing the matter with Senator Nelson, the manager of the bill on the floor, stated:
* ↑ Several months later, T.D. 53281 was issued, providing alternative wordings for the Soviet Zone labels.
* ↑ Vom Baur, Federal Administrative Law, § 490, at 489.
* ↑ Since we hold that T.D. 53210 deals only with the collection of duties its marking provisions supersede those of T.D. 51527 only as the latter relate thereto.
This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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