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UNITED STATES v. STREAMFLO STRAINER

UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF NEW YORK


November 10, 1997

THE UNITED STATES OF AMERICA
v.
STREAMFLO STRAINER, INC., GERALD BROWN, DAVID ISLIP

The opinion of the court was delivered by: ELFVIN

ORDER

 In a 12-count Indictment the abovenamed corporation and individuals (collectively, "the defendants") are charged with having conspired among themselves and with others to violate Section 542 of Title 18 of the United States Criminal Code by introducing merchandise into this country by falsity and fraud and Section 541 thereof by fraud and underpayment of duties and Section 371 thereof by impeding the collection of duties and the enforcement of country-of-origin marking requirements and the "Buy American Act." The particularization of said conspiracy is set forth in paragraphs 2 through 14 of Count I and the overt acts in twenty-seven further paragraphs of Count I. In Counts II - XII the defendants are charged with having fraudulently employed false documents wherein the material employed in the particular merchandise -- strainers and check valves -- was misidentified and an untrue country of origin set forth.

 The undersigned referred all pre-trial matters to Magistrate Judge Carol E. Heckman of this Court. Defendant Brown moved for, among other reliefs, a dismissal of the Indictment due to its failure to allege that the goods would not have been imported -- i.e., would not have been importable -- if the country of origin had been truly set forth.

 On November 5, 1996 Judge Heckman issued her Report and Recommendation (filed November 6th) in which she concluded that defendant Brown's motion to dismiss Counts I(a) -- correctly, subparagraph 1.a of Count I -- and Counts II - XII should be granted. Subcount I.1.a charges the defendants with having conspired to violate 18 U.S.C. ยง 542 by entering and introducing -- and attempting to do so -- certain "strainers and check valves -- by a false marking as to their country of origin -- viz., Canada as opposed to Taiwan.

 The prosecution has timely objected to such Report and Recommendation, the matter has been argued in papers and orally and has received the undersigned's de novo attention.

 Section 542, in essence, makes it a crime to bring into this country any imported merchandise by means of any pertinent falsity. Judge Heckman's conclusion that materiality to the importation is the essence of such aspect of the section is amply supported by the literality of the statute -- strictly construed against the prosecution as criminal statutes must be. The materiality in such an instance must relate to importability. The false marking -- as to country of origin -- affected, not the legality of bringing the goods into the United States, but only the amount of duties to be levied thereupon. False marking as to origin did not affect and could not have affected, importability. Inasmuch as Subcount I.1.a and Counts II - XII concern importability as the end result of false marking, they cannot stand.

 The prosecution's objections to Judge Heckman's Report and Recommendation are OVERRULED .

 DATED: Buffalo, N.Y.

 November 10, 1997

 John T. Elfvin

 U.S.D.J.

19971110

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