Bounds v. United States

24 Cust. Ct. 333, 1950 Cust. Ct. LEXIS 1539

Opinions

The following memorandum, in which Oliver, Chief Judge, concurred, accompanied the order denying motion to set aside submission, reopen the trial for all purposes, and restore the case to the next Laredo, Tex., docket:

Mollison, Judge:

I have carefully examined the record made at the trial of these cases in Laredo and Houston, Tex., as well as the motion and memorandum offered in support thereof on behalf of the respondent and the affidavit in opposition thereto offered by counsel for the petitioner, and conclude that the motion for an order vacating the submission and reopening the case for all purposes should be denied. In so doing, I would like to note the following as reasons for this action:

It is apparent from a reading of the stenographic transcript of the minutes taken at Laredo and at Houston that the respondent’s attorney was apprized of the existence of a certain Jose de Jesus Gomez, and of what he might testify prior to the trial of the case. Government counsel elected to proceed to trial without the testimony of the said Gomez, and in this connection the memorandum submitted for the respondent in support of the motion actually contains many statements which warrant an immediate denial of the motion.

Respondent’s memorandum on page 3 contains the following statement:

* * * The case was then submitted with these vitally necessary facts not before the court.

It is noted that the submission spoken of was wholly voluntary.

It appears that said Gomez was, and no doubt is, beyond the jurisdiction of the United States Customs Court, and there is no showing in the memorandum that the said prospective witness has expressed his unequivocal consent and willingness to come to the United States and submit himself as a witness. There is no definite showing that the respondent or its agents actually know the present whereabouts of the said Gomez and there is nothing which would lead the court to believe that the said Gomez would be available at any definite time and place for the taking of his deposition.

There is nothing in the memorandum offered in support of the motion as to what material and relevant facts the said Gomez would testify to, and no showing that such testimony would help the respondent or that such testimony would make any difference in the result which might be arrived at in the case.

I observe that the matters set forth in the memorandum in support of the motion are such that they should have been included in an affidavit executed by some person having knowledge of the facts.

I find no proper showing of facts which would warrant delaying the completion of the trial and conclusion of the case; and no showing sufficient to justify setting aside the submission and reopening the case for all purposes.