The Continuing US Trend To Criminalize Customs Violations

Author:Mr Sydney Mintzer, Kelly B. Kramer and Jing Zhang
Profession:Mayer Brown

Keywords: DOJ, customs violations, antidumping duties, import fraud

On October 17, 2012, the US Department of Justice (DOJ) filed a criminal indictment in a Georgia federal district court, accusing nine individual and corporate defendants of operating a fraudulent scheme to evade more than $20 million in antidumping duties imposed on Chinese imports. The indictment continues an approximately two-year old trend in the United States of criminalizing customs violations, which used to be relegated to civil enforcement.

While a variety of violations have been criminalized, several of these cases have focused on importers and consignees that allegedly circumvented antidumping duty orders. (For further information, see our Legal Updates: " The 'Wolff' at Importers' Doors: Criminal Statute Is New Tool in Trade Enforcement Cases," " Imports and Consignees Increasingly Facing Criminal Prosecutions in Trade Remedy and Customs Enforcement Cases" and " The US Criminalization of Import Violations Continues Unabated.") This new indictment demonstrates that antidumping duty-evasion schemes continue to stay on the US Customs and Border Protection's (CBP) radar for potential criminal enforcement referral to the DOJ.

In United States v. Apego, Inc., et. al., the 13-count indictment charged US-based Apego, its Chinese supplier, a Taiwanese company related to Apego, and several key executives or shareholders of these companies with import fraud (18 U.S.C. § 542) and conspiracy to commit import fraud.1 These charges are based on the defendants' alleged involvement in an elaborate duty-evasion scheme to skirt antidumping duties through concealment of the Chinese origin of certain paper products. The detailed indictment includes descriptions of incriminating emails showing the extent of the operation, as well as factual allegations concerning witness tampering.2

As background, in 2006, the US Department of Commerce issued an antidumping order against certain lined paper products imported from China, imposing antidumping duties ranging from 76.7 to 258.21 percent.

The indictment alleges that to evade the special duties, Apego employed several strategies to create the false appearance that lined paper products purchased from its Chinese supplier had been made in Taiwan. Among other things, Apego allegedly obtained warehouse space in Taiwan and hired additional labor to replace the original Chinese-origin marks on the paper products and falsely label them as "Made in...

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