Before DUFFY, KNOCH and CASTLE, Circuit Judges.
The government brought this civil action to recover penalties for unlawful importation of merchandise under Title 19 U.S.C.A. § 1595a(b). The District Court denied defendant's motion to strike both the second amended complaint and the government's motion for summary judgment, and granted summary judgment for the government, from which the defendant has appealed.
The second amended complaint sets out defendant's conviction on an indictment in six counts, for smuggling and unlawfully removing from bond, 201 boxes containing dehydrated foods, canned foods, medicine and tea, in violation of Title 18 U.S.C. §§ 545 and 549. The second amended complaint further alleges that on the date in the indictment, May 9, 1956, defendant aided in the importation, removal and concealment of 201 packages of Chinese food stuffs, tea and drugs, which were introduced and smuggled into the United States from Canada contrary to law. It is also alleged that the merchandise was seized in 1956 by the Collector of Customs and appraised under Title 19 U.S.C.A. § 1606 at $5,600, for which judgment was sought and entered.
Defendant's answer admitted the conviction, denied the valuation placed on the merchandise, and asserted that the government could not recover both the merchandise and its value.
In support of its motion for summary judgment, the government filed an Assistant United States Attorney's affidavit which stated that the merchandise "was appraised in accordance with Section 606 of Tariff Act (19 U.S.C. 1606) at a value of $5,600; * * *"
We agree with defendant that summary judgment was not warranted here. The value of the merchandise was contested. The affidavit makes no showing of personal knowledge or competence to testify as to value. The pertinent facts as to the value of the merchandise are peculiarly within the knowledge of the government. The affiant is an interested witness. The appraisal, at best, consists of a quotation of expert opinion, which the trier of the facts would be free to disbelieve. Defendant should have an opportunity to disprove or discredit such evidence, if he can. Sartor v. Arkansas Natural Gas Corp., 1944, 321 U.S. 620, 624, 627, 64 S. Ct. 724, 88 L. Ed. 967, and cases cited therein; Toebelman v. Missouri-Kansas Pipe Line Co., 3 Cir., 1942, 130 F.2d 1016, 1022.
We do not agree with defendant's interpretation of the pertinent statutes as barring this action. Section 1595a reads:
"(a) Except as specified in the proviso to section 1594 of this title, every vessel, vehicle, animal, aircraft, or other thing used in, to aid in, or to facilitate, by obtaining information or in any other way, the importation, bringing in, unlading, landing, removal, concealing, harboring, or subsequent transportation of any article which is being or has been introduced, or attempted to be introduced, into the United States contrary to law, whether upon such vessel, vehicle, animal, aircraft, or other thing or otherwise, shall be seized and forfeited together with its tackle, apparel, furniture, harness, or equipment.
"(b) Every person who directs, assists financially or otherwise, or is in any way concerned in any unlawful activity mentioned in the preceding subsection shall be liable to a penalty equal to the value of the article or articles introduced or attempted to be introduced."
Title 18 U.S.C. § 545 reads:
"Whoever knowingly and willfully, with intent to defraud the United States, smuggles, or clandestinely introduces into the United States any merchandise which should have been invoiced, or makes out or passes, or attempts to pass, through the customhouse any false, forged or fraudulent invoice, or other document or paper; or
"Whoever fraudulently or knowingly imports or brings into the United States, any merchandise contrary to law, or receives, conceals, buys, sells, or in any manner facilitates the transportation, concealment, or sale of such merchandise after importation, knowing the same to ...