United States v. Mersky

PETITIONER: United States
RESPONDENT: Mersky
LOCATION: Dry Docks at Reed, WV

DOCKET NO.: 31
DECIDED BY: Warren Court (1958-1962)
LOWER COURT: United States Court of Appeals for the Second Circuit

CITATION: 361 US 431 (1960)
ARGUED: Nov 10, 1959
DECIDED: Feb 23, 1960

Facts of the case

Question

Media for United States v. Mersky

Audio Transcription for Oral Argument - November 10, 1959 in United States v. Mersky

Earl Warren:

Number 31, United States of America, Appellant, versus Bernard Mersky, et al.

Mr. Grimm, you may proceed.

Eugene L. Grimm:

Thank you Mr. Chief Justice and may it please the Court.

This case presents an undecided question as to the interpretation of the Criminal Appeals Act, 18 U.S.C. 3731, regarding jurisdiction over the appeal.

If the merits are reached, the question is one of the constructions to be place upon certain customs regulations published by the Treasury Department.

In this case, appellees were charge by information with violating 19 U.S.C. 1304 which requires that articles imported from foreign land be marked with their country of origin and that such marking be maintained until sale of the article to ultimate purchaser.

The District Court dismissed the information on the ground that a Treasury Decision requiring that articles imported from East Germany be marked “Germany Soviet occupied” do not require such making for the purposes of 1304, that is the marking statute.

On Appeal by the Government, the Court of Appeals concluded that the appeal should have been taken to this Court in the first instance since it regarded the construction of the administrative regulation as the construction of a statute within the meaning of Criminal Appeals Act and concluded that in any event, the order sustaining the motion to dismiss was an order sustaining a motion in bar.

It therefore certified the case to this Court.

The Government thinks this case was properly appealed to the Court of Appeal in the first instance.

Cases of course coming here by certificate are fairly unusual.

If I may go rather quickly over the operative facts, the information in this case alleged that between August 1956 and March 1957, the appellees had purchase a certain violins from importers.

Now, at the time they purchased these violins, the violins had been imported from East Germany and they bore label showing that they had been imported from Germany, Soviet occupied or U.S.S.R. occupied.

It was the allegation in the information that the appellees had obliterated and removed these labels and there after sold the violins to someone who was not an ultimate purchaser without disclosing the fact that they have been imported from East Germany and of course, there was a theory of this information that this act on the part of the appellees intentionally done was a violation of the marking statute.

Now, the statute itself requires that every article of foreign origin be marked with the name of the country of origin and the country of origin, that phrase has been defined by appropriate regulation as political entity known as a nation.

Here, let me say of course that the marking statute provides that the Secretary of Treasury may issue regulations establishing just what marking maybe put on various imported articles to indicate specific country from which it came.

So, as I said at the first regulation which is our concern here, defines country of origin as a political entity known as a nation.

Immediately or shortly after World War II in 1946, the Treasury Department permitted articles manufactured in all four zones of Germany to be marked as “made in Germany.”

And this regulation further provided that the specific zone of manufacture could be indicated if thought desirable by the importer.

Felix Frankfurter:

May I ask whether --

Eugene L. Grimm:

Yes, sir.

Felix Frankfurter:

-- whether the Government construes -- construed out order of bringing this case here, following for the consideration here on the merits.

You ask us to (Inaudible), the Court Appealed that discloses this thing on a -- jurisdictional question to which you refer?

Eugene L. Grimm:

That's right, Your Honor.

Felix Frankfurter:

What I want to know is why, assuming jurisdiction point, goes to you want this Court to pass on to substantive issue.

Eugene L. Grimm:

We do not --

Felix Frankfurter:

Is it because we postponed the jurisdictional question to the hearing of the case on the merit and the Government thought that meant that we will consider the merit?

Eugene L. Grimm:

Oh, no Your Honor, oh, no.

It simply that the -- as we say in regard to the questions presented, we first set out -- what we regarded to be the question on the issue of jurisdiction and we --

Felix Frankfurter:

And I suppose -- I suppose that disposed of --