United States v. Trek Leather, Inc. , 767 F.3d 1288 ( 2014 )

United States Court of Appeals
for the Federal Circuit
______________________
UNITED STATES,
Plaintiff-Appellee,
v.
TREK LEATHER, INC.,
Defendant,
AND
HARISH SHADADPURI,
Defendant-Appellant.
______________________
2011-1527
______________________
Appeal from the United States Court of International
Trade in No. 09-CV-0041, Senior Judge Nicholas Tsou-
calas.
______________________
Decided: September 16, 2014
______________________
STEPHEN C. TOSINI, Senior Trial Counsel, Commercial
Litigation Branch, Civil Division, United States Depart-
ment of Justice, of Washington, DC, argued for plaintiff-
appellee. With him on the brief were STUART F. DELERY,
Assistant Attorney General, JEANNE E. DAVIDSON, Direc-
tor, and FRANKLIN E. WHITE, JR., Assistant Director.
2 U.S. v. TREK LEATHER, INC.
JOHN J. GALVIN, Galvin & Mlawski, of New York, New
York, argued for defendant-appellant.
______________________
Before PROST, Chief Judge, NEWMAN, LOURIE, DYK,
MOORE, O’MALLEY, REYNA, WALLACH, TARANTO, and
CHEN, Circuit Judges. ∗
Opinion for the court filed by Circuit Judge TARANTO.
TARANTO, Circuit Judge.
Harish Shadadpuri transferred ownership of mer-
chandise, while it was in transit to the United States, to a
company he chose to be the importer of record for its entry
into United States commerce. He also furnished to the
hired customs broker, for use in completing and submit-
ting the entry documents required for clearance through
the Bureau of Customs and Border Protection (CBP),
commercial invoices that materially understated the
value of the merchandise, thereby reducing the calculated
customs duties. We hold that, by those actions, Mr.
Shadadpuri “introduced” the merchandise into United
States commerce by means of the undervaluation within
the meaning of 19 U.S.C. § 1592(a)(1)(A). Because it is
undisputed that he was grossly negligent in his actions,
Mr. Shadadpuri violated section 1592(a)(1)(A). We affirm
∗
Sharon Prost assumed the position of Chief Judge
on May 31, 2014. Pursuant to statute, Circuit Judge
Plager, who was a member of the original panel in this
case, elected not to participate in the decision of the en
banc court. Circuit Judge Hughes did not participate in
the consideration or decision of this case. Randall R.
Rader, who was Chief Judge when en banc review was
granted, retired from the position of Circuit Judge on
June 30, 2014, and did not participate in this decision.
US v. TREK LEATHER, INC. 3
the judgment of the Court of International Trade holding
him liable.
BACKGROUND
Section 1592(a)(1) of Title 19, U.S. Code, provides:
(1) General rule
Without regard to whether the United States is
or may be deprived of all or a portion of any lawful
duty, tax, or fee thereby, no person, by fraud,
gross negligence, or negligence—
(A) may enter, introduce, or attempt to enter
or introduce any merchandise into the commerce
of the United States by means of—
(i) any document or electronically
transmitted data or information, written
or oral statement, or act which is material
and false, or
(ii) any omission which is material, or
(B) may aid or abet any other person to violate
subparagraph (A).
19 U.S.C. § 1592(a)(1). That provision was the same in
2004, when the merchandise at issue here was imported.
Section 1592 goes on, among other things, to specify
procedures for enforcement of the quoted prohibitions and
to provide penalties for violations, the authorized penal-
ties depending on whether a violation involves fraud,
gross negligence, or negligence. Id. § 1592(b), (c).
A
This case began in 2009, when the government filed a
complaint in the Court of International Trade, invoking
that court’s jurisdiction under 28 U.S.C. § 1582 and
alleging a violation of section 1592(a)(1). The complaint
names Trek Leather, Inc., and Mr. Shadadpuri as defend-
4 U.S. v. TREK LEATHER, INC.
ants, alleging that Mr. Shadadpuri was Trek’s president,
and directed its business, at the time at issue. It charges
that, between February 2, 2004, and October 8, 2004, the
two defendants “entered or introduced or attempted to
enter or introduce men’s suits into the commerce of the
United States” by means of “false acts, statements and/or
omissions” that “understated the dutiable value of the
imported merchandise” for the 72 itemized entries, result-
ing in an underpayment of $133,605.08 in duties. Com-
plaint, United States v. Trek Leather, Inc., Case No. 1:09-
cv-00041-NT (Ct. Int’l Trade Jan. 28, 2009), at 1–2.
According to the complaint, CBP had issued a penalty
notice, and some of the properly calculated duties, and all
of the penalties CBP sought to impose, remained unpaid.
Id. at 2–3. The complaint includes separate counts alleg-
ing fraud, gross negligence, and negligence, and it seeks
to recover penalties, unpaid duties, and interest. Id. at 3–
5.
In late 2010, after discovery took place, the govern-
ment filed a motion for summary judgment of liability.
The defendants opposed the motion; they also moved to
dismiss the fraud count and argued that Mr. Shadadpuri
personally could not be liable without fraud. The filings
and accompanying evidence establish the following facts
beyond genuine dispute. We rely mainly on the govern-
ment’s statement of uncontested facts (“Gov’t Facts”) and
the defendants’ response, which admits most of the gov-
ernment’s stated facts (“Def. Facts”).
Trek “is the importer of record for men’s suits reflect-
ed in the 72 entry lines at issue in this case,” and Mr.
Shadadpuri is the president and sole shareholder of Trek,
whose activities he directed from January 2003 to Decem-
ber 2004. Gov’t Facts at 1, 6. 1 From February 2, 2004, to
1 19 U.S.C. § 1484, titled “Entry of merchandise,”
defines “importer of record.” Paragraph (a)(1) states that
US v. TREK LEATHER, INC. 5
October 8, 2004, “Mr. Shadadpuri imported men’s suits
through one or more of his companies, including Trek.”
Id. at 1. “Mr. Shadadpuri, through Trek and/or one of his
other companies, provided” fabric to the manufacturer of
the suits at issue free of charge or at reduced cost. Id.; see
id. at 6. The statute labels such a subsidized component
an “assist.” 2
“one of the parties qualifying as ‘importer of record’ under
paragraph (2)(B), either in person or by an agent author-
ized by the party in writing, shall, using reasonable
care—(A) make entry therefor by filing with [CBP]”
documentation or information needed for CBP “to deter-
mine whether the merchandise may be released from
custody of [CBP]; (B) complete the entry . . . by filing with
[CBP] the declared value, classification and rate of duty
applicable to the merchandise, and such other documen-
tation or . . . information as is necessary to enable [CBP]
to—(i) properly assess duties on the merchandise . . . .”
Id. § 1484(a)(1). Paragraph (2)(B) requires that the
documentation be filed “either by the owner or purchaser
of the merchandise or, when appropriately designated by
the owner, purchaser, or consignee of the merchandise, a
person holding a valid license under” 19 U.S.C. § 1641,
i.e., a customs broker, and adds: “For the purposes of this
chapter, the importer of record must be one of the parties
who is eligible to file the documentation or information
required by this section.” Id. § 1484(a)(2)(B).
2 The statute defines an “assist” to include materi-
als incorporated into the ultimately imported merchan-
dise “if supplied directly or indirectly, and free of charge
or at reduced cost, by the buyer of imported merchandise
for use in connection with the production or the sale for
export to the United States of the merchandise.” 19
U.S.C. § 1401a(h)(1). See also 19 C.F.R. § 152.102(a).
6 U.S. v. TREK LEATHER, INC.
By providing the manufacturer free or subsidized
components, like the “fabric assists” here, an importer
reduces the manufacturer’s costs, and the manufacturer
may then reduce the price it charges for the merchandise
once manufactured. A suit maker, if it obtains its fabric
for free, might shave $100 off the price it charges for a
suit. In this case, “[t]he material assists . . . were not part
of the price actually paid or payable to the foreign manu-
facturers of the imported apparel.” Def. Facts at 2. In
such circumstances, the manufacturer’s invoice price
understates the actual value of the merchandise, and if
the artificially low invoice price is used as the merchan-
dise’s value when calculating customs duties based on
value, disregarding assists results in understating the
duties owed. To address such an artificial reduction of
customs duties, the statute and regulations expressly
require that the value of an “assist” be incorporated in
specified circumstances into the calculated value of im-
ported merchandise used for determining the duties owed.
19 U.S.C. § 1401a(a)(1), (b)(1), (e)(1); 19 C.F.R.
§§ 152.101(b)(1), 152.103(a), (b), (d); see generally 19
U.S.C. §§ 1401a (value), 1500 (appraisal), 1503 (dutiable
value).
Initially, all of the 72 shipments at issue here “were
invoiced and shipped to non-party Mercantile Electronics,
LLC,” of which Mr. Shadadpuri was president and 40%
shareholder. Gov’t Facts at 1. But “[w]hile the subject
men’s suits were in-transit, Mr. Shadadpuri caused the
shipments of the imported merchandise to be transferred
from Mercantile Electronics to Trek.” Id. at 1–2. Mr.
Shadadpuri did so after receiving the manufacturer’s
invoice and deciding “which of his various companies had
the funds to pay for the shipment.” Id. at 4; Def. Facts at
3. “Once he determined that the shipments of the men’s
suits at issue here would be imported by Trek, he contact-
ed his broker, non-party Vandegrift Forwarding Compa-
US v. TREK LEATHER, INC. 7
ny, Inc. (‘Vandegrift’), and directed that the merchandise
be transferred while in transit.” Gov’t Facts at 4.
“The dutiable value of the men’s suits imported by
Trek and Mr. Shadadpuri did not include the value of the
fabric assists.” Id. at 2; see id. at 6. It is undisputed that
the omission of that value violated statutory and regula-
tory obligations to state a proper value when filing the
“entry” documentation required “to secure the release of
imported merchandise from [CBP] custody.” 19 C.F.R.
§ 141.0a (defining “entry”). 3 Moreover, Mr. Shadadpuri
has acknowledged that “[p]rior to importing the men’s
suits at issue in this case, [he] knew that fabric assists
must be included on the import documentation.” Def.
Facts at 2; see Gov’t Facts at 6. Mr. Shadadpuri had been
so informed by CBP (actually, by its predecessor, the U.S.
Customs Service) during an investigation of similar
undervalued importations in 2002. Gov’t Facts at 2–3.
3 While leaving many details to agency specifica-
tion, the statute imposes requirements regarding the
submission of invoices, 19 U.S.C. § 1481; entry documents
or information addressing value, among other facts, id.
§ 1484 (quoted supra n.1); and accompanying declara-
tions, id. § 1485. Regulations require all imported mer-
chandise to be “entered” unless a specific exception exists,
19 C.F.R. § 141.4(a); define “entry” as certain documenta-
tion or its filing, id. § 141.0a; specify that CBP Form 7501,
an “entry summary” containing value information, when
accompanied by commercial invoices and other docu-
ments, satisfies the filing requirement, id. §§ 141.61,
142.3, 142.11; and impose requirements for filing invoices
and/or related documentation showing “[t]he values or
approximate values of the merchandise,” id. § 142.6(a)(3);
see, e.g., id. §§ 141.81, 141.83, 141.86, 141.88, 141.90. See
generally CBP, What Every Member of the Trade Commu-
nity Should Know About: Entry (2004).
8 U.S. v. TREK LEATHER, INC.
The CBP Form 7501 “entry summary” forms used for
entry in this case list Trek as the importer of record, and
they were prepared and submitted to CBP by Vandegrift,
the customs broker “hired by Harish Shadadpuri,” and
signed by a Vandegrift representative. See Decl. of Mi-
chael Toole (Vandegrift vice president), Gov’t Summ. Jdgt.
App. (“SJ App.”) A155; SJ App. A314–78 (corrected
7501s); Def. Summ. Jdgt. App. at CBP1203–2197 (includ-
ing selected original and corrected 7501s). Vandegrift
prepared the submissions based on papers he received
from Mr. Shadadpuri and his aides. When the suit manu-
facturer was ready to ship completed suits, it sent Mr.
Shadadpuri an invoice (SJ App. A419–20), and he and his
aides sent it to Vandegrift: “I would fax, or my person who
would help me would send a fax to the broker and the
broker would file the entry.” SJ App. A409 (Shadadpuri
testimony). See also Def. Facts at 3 (“Upon receipt of a
manufacturer’s invoice, bill of lading and related importa-
tion documentation, Mr. Shadadpuri or one of Trek’s
employees or [the domestic suit seller] or one of its em-
ployees would fax a copy to Trek’s customhouse broker for
the preparation and filing of the required entry.”); SJ
App. A422–23 (“[W]hen we cut the invoice, we, and the
people will send the fax to the broker.”).
The “majority of invoices” sent to Vandegrift “did not
contain any values or information reflecting the fact that
fabric assists had been provided.” Gov’t Facts at 4; Def.
Facts at 3; see SJ App. A166–240 (invoices). 4 When CBP
began investigating, “Vandegrift determined that the
majority of invoices and other information that had been
4 The information sent to Vandegrift included the
suit maker’s “Multiple Country Declarations” identifying
work performed, but those declarations contain no price
or other value information. See, e.g., Def. Summ. Jdgt.
App. at CBP1209, CBP1216, CBP1222.
US v. TREK LEATHER, INC. 9
provided by Mr. Shadadpuri did not disclose that any
fabric assist had been provided.” Gov’t Facts at 4. Mr.
Shadadpuri then “obtained new invoices from the manu-
facturer that revealed the fact that a fabric assist was
provided, and the amount of the fabric assist.” Id. Using
the new invoices, Vandegrift prepared and submitted to
CBP corrected entry documents showing the amount of
duties actually due. Id. at 5; SJ App. A314–78. CBP
calculated that the initial undervaluation had caused a
$133,605.08 underpayment of duties—of which Trek and
its surety paid $88,359.69 between 2005 and 2008, leav-
ing $45,245.39 unpaid. Gov’t Facts at 5, 6.
B
The government sought summary judgment of liabil-
ity, of both defendants, for fraud, for gross negligence, and
for negligence. The government recited the elements of
its liability argument with some generality, including that
“Trek and Mr. Shadadpuri entered, introduced, or at-
tempted to enter or introduce merchandise into the Unit-
ed States” by the proscribed means, Gov’t Summ. Jdgt.
Mot. at 12 (Nov. 1, 2010), and that “Mr. Shadadpuri is a
‘person’ subject to liability under section 1592,” id. at 14.
Although the government, in its motion, several times
invoked the “enter” language of section 1592(a)(1)(A)
without separately mentioning the “introduce” language,
e.g., id. at 9, 11, 15, it also stated its argument more
generally, and the parties’ dispute never focused on the
different terms in subparagraph (A). The government’s
motion focused on establishing the different degrees of
culpability required for fraud, gross negligence, and
negligence, which carry different maximum penalties. Id.
at 17–24, 24–25, 26–28.
In their short response, defendants did not dispute
Trek’s liability for negligence or gross negligence. They
argued, however, that the charge of fraud should be
dismissed because the evidence showed no intent on the
10 U.S. v. TREK LEATHER, INC.
part of Trek or Mr. Shadadpuri that the entry documenta-
tion to be prepared by the customs broker would omit the
value of the assists. Def. Mem. in Opp. to Summ. Jdgt.
and in Support of Partial Dismissal at 4–6 (Dec. 17, 2010).
Defendants then asserted that, where there was no fraud,
Mr. Shadadpuri could not be liable “for negligent or
grossly negligent aiding or abetting.” Id. at 6–7. They
relied on United States v. Hitachi America, Ltd., 172 F.3d
1319, 1336–38 (Fed. Cir. 1999), in which this court held
that liability for aiding or abetting under subparagraph
(B) of section 1592(a)(1) requires that a person have
certain knowledge regarding the unlawfulness under
subparagraph (A) of the action being aided or abetted—a
ruling not dependent on whether the underlying violation
involves fraud, gross negligence, or negligence. Defend-
ants did not separately argue that Mr. Shadadpuri could
not be liable directly for violating subparagraph (A).
In response, the government noted all of the facts that
defendants left undisputed, Gov’t Reply at 1–3 (Jan. 21,
2011), and it argued that it had proved fraud, id. at 4–6.
It then argued that Mr. Shadadpuri had sufficient
knowledge that he could be liable for aiding or abetting
Trek’s violations of subparagraph (A), even if Trek did not
act fraudulently. Id. at 6–12. In reply, defendants re-
prised their argument against any possible finding of
fraud. Def. Reply at 1–7 (Feb. 18, 2011). With respect to
Mr. Shadadpuri, they asserted, for the first time, that no
person other than an importer of record may be liable
under subparagraph (A). Def. Reply at 8–9.
C
The Court of International Trade granted the gov-
ernment’s motion for summary judgment of liability of
both defendants for gross negligence, denied the motion
regarding fraud and negligence as moot, and denied
defendants’ motion to dismiss. United States v. Trek
Leather, Inc., 781 F. Supp. 2d 1306, 1309 (Ct. Int’l Trade
US v. TREK LEATHER, INC. 11
2011). The court began by concluding that the charge of
fraud presented a disputed fact question. Id. at 1310. It
then concluded that Trek conceded gross negligence; that
“[a]ny ‘person’ who engages in the behavior prohibited by
19 U.S.C. § 1592(a) is liable thereunder regardless of
whether that ‘person’ is the importer of record or not”;
that “it was Mr. Shadadpuri who had the responsibility
and obligation to examine all appropriate documents
including all assists within the entry documentation and
to forward these assists to his customs broker”; and so
“Trek’s gross negligence . . . could not have been conceded
but for the direct involvement of Mr. Shadadpuri.” 781 F.
Supp. 2d at 1311–12. For those reasons, the court held
both defendants liable for gross negligence, citing section
1592(a) generally; it did not state its holding as resting
specifically even on paragraph (1) of section 1592(a), let
alone distinguish subparagraph (A) from (B). The court
entered a final judgment imposing liability for $45,245.39
in unpaid duties and $534,420.32 in penalties, plus inter-
est. 781 F. Supp. 2d at 1312–13.
D
Mr. Shadadpuri alone appealed to this court, which
has jurisdiction under 28 U.S.C. § 1295(a)(5). The gov-
ernment initially cross-appealed the dismissal of its fraud
charge as moot, but it dropped the cross-appeal. In this
court, the government has defended the Court of Interna-
tional Trade’s judgment only on the basis of subparagraph
(A) of section 1592(a)(1); subparagraph (B)’s proscription
of aiding or abetting is therefore out of the case. With
respect to subparagraph (A), Mr. Shadadpuri’s contention
on appeal is that liability under that provision is limited
to importers of record in the absence of fraud.
A divided panel of this court reversed the Court of In-
ternational Trade’s judgment. United States v. Trek
Leather, Inc., 724 F.3d 1330 (Fed. Cir. 2013) (later vacat-
ed, as noted infra). The government did not press a claim
12 U.S. v. TREK LEATHER, INC.
for aiding-or-abetting liability, seek to pierce the corpo-
rate veil separating Trek and Mr. Shadadpuri, or make a
separate “introduce” argument in its brief defending the
judgment on review. Reflecting those choices, the majori-
ty focused on the term “enter” in section 1592(a)(1)(A) and
concluded that Mr. Shadadpuri could not be liable for
ordinary or gross negligence in violation of that provision.
It reasoned that, not being the importer of record or an
agent designated in writing, Mr. Shadadpuri was not
subject to and did not violate a duty imposed on those
making entry under 19 U.S.C. §§ 1484, 1485. Trek Leath-
er, 724 F.3d at 1331, 1335–40. Judge Dyk dissented,
reasoning that, even in the absence of fraud, subpara-
graph (A)’s coverage is not limited to importers of record
or obligations defined by 19 U.S.C. §§ 1484, 1485. 724
F.3d at 1340–43.
On the government’s request for rehearing, this court
vacated the panel decision and granted en banc rehearing
of the appeal under Fed. R. App. P. 35. United States v.
Trek Leather, Inc., 2014 WL 843527 (Fed. Cir. Mar. 5,
2014). We review the Court of International Trade’s
grant of summary judgment de novo. See, e.g., NEC
Solutions (Am.), Inc. v. United States, 411 F.3d 1340, 1344
(Fed. Cir. 2005). Statutory interpretation is a question of
law, and the grant of summary judgment is proper if the
facts not genuinely disputed on the summary-judgment
record establish liability under the proper statutory
interpretation, i.e., no factual dispute exists that is mate-
rial to the outcome. Id.
DISCUSSION
The issues for decision may be clarified by noting
what issues are not before us. We are not faced with any
issue about aiding-or-abetting liability under subpara-
graph (B) of section 1592(a)(1); the government relied only
on subparagraph (A) in defending liability here. We are
presented no issue about whether Mr. Shadadpuri was
US v. TREK LEATHER, INC. 13
grossly negligent or whether, if he attempted to or did
enter or introduce the merchandise at issue, he did so by
means of false material statements or material omissions.
Nor do we have any challenge to the amount of the penal-
ty if there is a violation of subparagraph (A).
The only questions presented for decision are whether
Mr. Shadadpuri is a “person” covered by section
1592(a)(1)(A) and whether his actions come within the
“enter, introduce, or attempt to enter or introduce” lan-
guage of that provision. On these issues, moreover, Mr.
Shadadpuri frames his arguments in all-or-nothing terms:
he treats all of the imports of suits identically. Aside from
the threshold “person” issue, therefore, the question
before us is simply whether he engaged in any conduct
respecting any of the suit shipments that constitutes
entering, introducing, or attempting to enter or introduce
merchandise into United States commerce under section
1592(a)(1)(A). We conclude that he did.
A
The threshold issue is straightforward. Mr. Shadad-
puri is indisputably a “person,” and section 1592(a)(1)—
including both of its subparagraphs, (A) and (B)—applies
by its terms to any “person.” There is simply no basis for
giving an artificially limited meaning to this most encom-
passing of terms, which plainly covers a human being.
See, e.g., 1 U.S.C. § 1; 19 U.S.C. § 1401(d) (confirming that
the term “includes” partnerships, associations, and corpo-
rations; no exclusion of individuals).
The origins of the current statutory language confirm,
rather than undermine, the plain broad meaning of
“person.” More than a hundred years ago, in United
States v. Mescall, 215 U.S. 26 (1909), the Supreme Court
rejected a district court’s holding that a predecessor of
section 1592, even apart from its conduct-proscribing
terms, was limited in its reach to a particular subset of
persons, namely, those who make entries. The Court held
14 U.S. v. TREK LEATHER, INC.
that the statutory language—which covered an “owner,
importer, consignee, agent, or other person,” Act of June
10, 1890, § 9, 26 Stat. 131, 135–36 (emphasis added),
quoted at 215 U.S. at 26—applied to persons other than
the listed owners, importers, consignees, or agents. 215
U.S. at 32. The Court rejected the argument that, under
the principle of ejusdem generis, the general term “person”
should be narrowed based on the terms that preceded it in
the provision. Id. at 31–32.
In 1976, section 1592, like its predecessor at issue in
Mescall, listed certain persons (expanded to “consignor,
seller, owner, importer, consignee, agent”) and ended with
general terminology, “or other person or persons.” 19
U.S.C. § 1592 (1976). Congress extensively revised sec-
tion 1592 in 1978, and as part of that revision, it replaced
the listing with, simply, the general term, “person.” Id.
§ 1592(a)(1). That simplification certainly does not sug-
gest a narrowing; if anything, by removing the textual
basis for an ejusdem generis argument, it would have
suggested a broadening, if any broadening had remained
possible after Mescall. And the relevant congressional
committees stated that they intended no narrowing. See
H.R. Conf. Rep. 95-1517, at 10 (1978); S. Rep. No. 95-778,
at 17, 18, 20 (1978). There is, in short, no basis for giving
“person” in section 1592(a)(1) less than its ordinary broad
meaning.
Mr. Shadadpuri argues that certain language in Hita-
chi, 172 F.3d at 1336, supports a narrow meaning of
“person” in section 1592(a)(1)(A), limited to an importer of
record. But Hitachi did not interpret “person,” and what
it said in passing in the cited passage about subparagraph
(A) cannot bind this court sitting en banc and, indeed, was
dictum. In Hitachi, the relevant claim (against Hitachi
Japan) was only under subparagraph (B), for aiding or
abetting, not under subparagraph (A); and the claim was
rejected for lack of the knowledge required by subpara-
graph (B). 172 F.3d at 1336–38. Hitachi involved no
US v. TREK LEATHER, INC. 15
attempt to apply subparagraph (A) to a person who was
not an importer of record. Mr. Shadadpuri also cites
United States v. Inn Foods Inc., 560 F.3d 1338, 1346 (Fed.
Cir. 2009), but even the cited language says only that
sections 1484 and 1485 are restricted to importers of
record, not that section 1592(a)(1)(A) is; and Inn Foods,
like Hitachi, involved no claim that subparagraph (A)
applies to a person other than an importer of record. In
any event, we see no basis for departing from the plain
meaning of “person” for section 1592(a)(1). 5
Recognizing that a defendant is a “person,” of course,
is only the first step in determining liability for a violation
of either of the subparagraphs. What is critical is the
defendant’s conduct. The two subparagraphs of section
1592(a)(1) proscribe certain acts and omissions. Deciding
whether a defendant is liable requires applying each
subparagraph’s language specifying the proscribed actions
or omissions to determine if the defendant’s conduct is
within the proscriptions. That inquiry comes after the
simple threshold step of noting that the defendant is a
“person” covered by section 1592(a)(1). We now turn to
the conduct-proscribing language of subparagraph (A) and
how it applies to Mr. Shadadpuri’s conduct.
B
Section 1592(a)(1)(A) forbids any person to “enter, in-
troduce, or attempt to enter or introduce” merchandise
into the United States by certain means with a certain
intent or lack of care. We need not and do not decide
5 We do not address whether Hitachi or other deci-
sions might bear on the scope of “enter” in the conduct-
specifying language of section 1592(a)(1)(A), an issue we
do not decide. As to the “introduce” language of that
provision, our decision today necessarily controls over any
contrary implication that might be drawn from Hitachi.
16 U.S. v. TREK LEATHER, INC.
whether Mr. Shadadpuri attempted to or did “enter” the
merchandise at issue, and we therefore do not address the
relevance to that question of statutory limitations on
what persons are authorized to “enter” merchandise
under 19 U.S.C. § 1484. We rely instead on the “intro-
duce” language of section 1592(a)(1)(A). Controlling
precedent has long established that “introduce” gives the
statute a breadth that does not depend on resolving the
issues that “enter” raises. And the term “introduce”
readily covers the conduct of Mr. Shadadpuri.
The Supreme Court established the breadth of “intro-
duce” in United States v. 25 Packages of Panama Hats,
231 U.S. 358 (1913). The statute at issue was section 9 of
the 1890 Act, 26 Stat. 131, 135, as amended in 1909.
(Mescall involved section 9 before the 1909 amendment.)
In the amended form, the statute provided for forfeiture of
merchandise, and criminal punishment, “if any consignor,
seller, owner, importer, consignee, agent, or other person
or persons, shall enter or introduce, or attempt to enter or
introduce, into the commerce of the United States, any
imported merchandise by means of any fraudulent or
false invoice” or certain other acts or omissions. Tariff Act
of 1909, § 28, 36 Stat. 11, 97 (Aug. 5, 1909), quoted in
Panama Hats, 231 U.S. at 359–60. Consignors shipped
merchandise to the United States with invoices that
“falsely and fraudulently undervalued the merchandise,”
231 U.S. at 359—invoices delivered to an American consu-
late abroad as required for ultimate entry in the United
States, Tariff Act of 1909, § 28, 36 Stat. at 91–92 (amend-
ing Act of June 10, 1890, §§ 3, 4, 26 Stat. at 131–32).
When the merchandise arrived in New York, neither the
consignee nor anyone else called for it or took steps to
enter it, so the merchandise was stored by customs offi-
cials. 231 U.S. at 359. The Supreme Court held that the
statute applied to the “goods not technically entered at
the New York customs house,” id., based on the word
“introduce” added to the statute in 1909.
US v. TREK LEATHER, INC. 17
The Court explained that, before 1909, the statute
provided for forfeiture “if any owner, importer, consignee,
agent, or other person shall make or attempt to make any
entry of imported merchandise by means of any fraudu-
lent or false invoice.” 26 Stat. at 135, quoted at 231 U.S.
at 360. Several district court cases had “held that the
language used did not cover the case of fraud by the
consignor, nor could the goods be forfeited for the wrong-
ful conduct of any person if the act preceded the making of
the documents or taking any of the steps necessary to
enter the goods.” 231 U.S. at 360 (citing United States v.
646 Half Boxes of Figs, 164 F. 778 (E.D.N.Y. 1908), and
United States v. One Trunk, 171 F. 772 (S.D.N.Y. 1909)
(L. Hand, J.)). “In order to close these loopholes and to
make the act more effective,” the Court explained, Con-
gress amended the statute not only to add “consignor or
seller” to the enumerated persons covered (months before
Mescall confirmed that the listing was not restrictive
anyway) but also, of particular importance, to “enlarge[]
the scope of conduct for which the goods should be forfeit-
ed.” 231 U.S. at 361. Specifically: “Instead of punishing
only for entering or attempting to enter on a fraudulent
invoice, it punished an attempt by such means ‘to intro-
duce any imported merchandise into the commerce of the
United States.’ ” Id.
The Court explained that the new language was criti-
cal to broadening the statute’s coverage:
This latter phrase necessarily included more than
an attempt to enter, otherwise the amendment
was inoperative against the consignor against
whom it was specially aimed, for he does not, as
such, make the declaration, sign the documents,
or take any steps in entering or attempting to en-
ter the goods. When he makes the false invoice in
a foreign country there is no extraterritorial oper-
ation of the statute whereby he can be criminally
punished for his fraud. But when the consignor
18 U.S. v. TREK LEATHER, INC.
made the fraudulent undervaluation in the for-
eign country, and on such false invoice the goods
were shipped, and arrived consigned to a mer-
chant in New York, the merchandise was within
the protection and subject to the penalties of the
commercial regulations of this country, even
though the consignor was beyond the seas and
outside the court’s jurisdiction.
Id. The Court concluded:
[I]n the present case when the goods, fraudulently
undervalued and consigned to a person in New
York, arrived at the port of entry there was an at-
tempt to introduce them into the commerce of the
United States. When they were unloaded and
placed in General Order [official custody in a cus-
toms warehouse] they were actually introduced
into that commerce, within the meaning of the
statute intended to prevent frauds on the customs.
Id. at 362. See also United States v. 18 Packages of Dental
Instruments, 230 F. 564 (3d Cir. 1916).
Panama Hats confirms that, whatever the full scope
of “enter” may be, “introduce” in section 1592(a)(1)(A)
means that the statute is broad enough to reach acts
beyond the act of filing with customs officials papers that
“enter” goods into United States commerce. Panama Hats
establishes that “introduce” is a flexible and broad term
added to ensure that the statute was not restricted to the
“technical” process of “entering” goods. It is broad enough
to cover, among other things, actions completed before
any formal entry filings made to effectuate release of
imported goods. We need not attempt to define the reach
of the term. Under the rationale of Panama Hats, the
term covers actions that bring goods to the threshold of
the process of entry by moving goods into CBP custody in
the United States and providing critical documents (such
as invoices indicating value) for use in the filing of papers
US v. TREK LEATHER, INC. 19
for a contemplated release into United States commerce
even if no release ever occurs.
What Mr. Shadadpuri did comes within the common-
sense, flexible understanding of the “introduce” language
of section 1592(a)(1)(A). He “imported men’s suits
through one or more of his companies.” Gov’t Facts at 1.
While suits invoiced to one company were in transit, he
“caused the shipments of the imported merchandise to be
transferred” to Trek by “direct[ing]” the customs broker to
make the transfer. Id. at 1–2, 4. Himself and through his
aides, he sent manufacturers’ invoices to the customs
broker for the broker’s use in completing the entry filings
to secure release of the merchandise from CBP custody
into United States commerce. Supra pp. 7–8. By this
activity, he did everything short of the final step of pre-
paring the CBP Form 7501s and submitting them and
other required papers to make formal entry. He thereby
“introduced” the suits into United States commerce.
Applying the statute to Mr. Shadadpuri does not re-
quire any piercing of the corporate veil. Rather, we hold
that Mr. Shadadpuri’s own acts come within the language
of subparagraph (A). It is longstanding agency law that
an agent who actually commits a tort is generally liable
for the tort along with the principal, even though the
agent was acting for the principal. Restatement (Second)
of Agency § 343 (1958); Restatement (Third) of Agency
§ 7.01 (2006). That rule applies, in particular, when a
corporate officer is acting for the corporation. 3A Fletcher
Cyc. Corp. § 1135 (2014). We see no basis for reading
section 1592(a)(1)(A) to depart from the core principle,
reflected in that background law, that a person who
personally commits a wrongful act is not relieved of
liability because the person was acting for another. See
United States v. Matthews, 533 F. Supp. 2d 1307, 1314
(Ct. Int’l Trade 2007), aff’d, 329 F. App’x 282 (Fed. Cir.
2009); United States v. Appendagez, Inc., 560 F. Supp. 50,
54–55 (Ct. Int’l Trade 1983). That is as far as we go or
20 U.S. v. TREK LEATHER, INC.
need to go in this case. We do not hold Mr. Shadadpuri
liable because of his prominent officer or owner status in
a corporation that committed a subparagraph (A) viola-
tion. We hold him liable because he personally committed
a violation of subparagraph (A).
Relatedly, applying the statute to Mr. Shadadpuri in
the circumstances presented is consistent with Congress’s
specification of a separate rule for aiding or abetting,
stated in subparagraph (B) of section 1592(a)(1). That
subparagraph prohibits a person from aiding or abetting
another’s violation of subparagraph (A), thus creating a
form of liability for those who play certain roles in an
underlying violation short of committing the violation.
And this court has recognized a knowledge requirement
inherent in “aiding or abetting.” Hitachi, 172 F.3d at
1338. In this case, however, we hold that Mr. Shadadpuri
himself committed a violation of subparagraph (A). This
ruling does not weaken the requirements for “aiding or
abetting” liability by those who do not violate subpara-
graph (A).
Finally, we may rest the decision here on the “intro-
duce” language of section 1592(a)(1)(A) even though the
parties did not specifically focus on that language in the
Court of International Trade or in their briefs to the
panel. The government invoked the entirety of the sub-
paragraph in the Court of International Trade, without
limiting itself to the “enter” language. The judgment of
that court is not limited to one term within subparagraph
(A), or even to subparagraph (A) as a whole, instead
imposing liability for violating section 1592(a) generally.
And it was not until their last-round brief in that court
that defendants argued, as Mr. Shadadpuri argues in this
court, that only an importer of record can violate subpar-
agraph (A). It is a direct answer to that broad contention
to hold that, whatever may be true for “enter,” the “intro-
duce” language of subparagraph (A) covers acts by per-
sons other than importers of record.
US v. TREK LEATHER, INC. 21
The Supreme Court has made clear that “[w]hen an
issue or claim is properly before the court, the court is not
limited to the particular legal theories advanced by the
parties, but rather retains the independent power to
identify and apply the proper construction of governing
law.” Kamen v. Kemper Fin. Servs., Inc., 500 U.S. 90, 99
(1991); see Allen v. State Bd. of Elections, 393 U.S. 544,
553–54 (1969). The power must be exercised fairly and
prudently, but we see no impediment to relying on the
“introduce” language of section 1592(a)(1)(A) here. Our
doing so addresses the express judgment on appeal and
responds to Mr. Shadadpuri’s contention. The “introduce”
language has a meaning that avoids issues presented by
the “enter” language and that requires liability on the
undisputed (mostly admitted) facts established by the
record. These liability-entailing facts could not change, so
a remand for application of “introduce” would be wasteful.
In these circumstances, affirming liability based on the
“introduce” language is fair, prudent, and efficient.
CONCLUSION
For the foregoing reasons, we affirm the judgment of
the Court of International Trade.
AFFIRMED