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Judge Miner's dissent begins on page 153

Matthew Yip appeals from a judgment entered on May 5, 1989 in the United States District Court for the Eastern District of New York (Costantino, J.), convicting him, after a jury trial, of 14 counts of mail fraud in violation of 18 U.S.C. § 1341 (1988), and 59 counts of depriving the United States of lawful duty payments in violation of 18 U.S.C. § 542 (1988). On appeal he contends, inter alia, there was insufficient evidence to support the § 1341 mail fraud convictions, and that the importation of goods using non-fraudulent invoices, followed by the failure to pay customs duties owed on those goods, is not a criminal act within the meaning of § 542. As the principal owner of a customs brokerage house (Airway Shipping), Yip admits he made personal use of funds his clients turned over to him to satisfy their customs obligations to the government. He claims those practices of diverting funds to other businesses and to his own personal use — practices which eventually helped to drive his business into bankruptcy — may have been those of an irresponsible businessman, but did not constitute criminal conduct.

The government responds that under the statute all acts that may deprive the Customs agency of duties are made criminal. Our principal task on this appeal is to determine whether the statute is so all-encompassing. We affirm the mail fraud convictions, but reverse the convictions under the customs counts and remand those counts for a new trial.


930 F.2d 142 (1991)

UNITED STATES of America, Appellee,


Matthew YIP, Defendant-Appellant.

No. 489, Docket 89-1223. United States Court of Appeals, Second Circuit.

Argued October 2, 1990. Decided April 4, 1991.

New York Law School location: File #1079, Box #126