Siquier, Enrique F. s/ 863, TOPE Nº 1, cause 78/96

Buenos Aires, December 3, 1996.-

AND SEEN:

This case No. 78, which is being processed before this Economic Criminal Court No. 1, composed of Drs. Enrique Carlos Schlegel, in his capacity as president, and Jorge Pisarenco and Susana Pellet Lastra, as members, with the assistance of the Secretary Dr. Elizabeth A. Marum, is prosecuted for the crime of smuggling to ENRIQUE FRANCISCO SIQUIER, Argentine, born in the city of Buenos Aires on November 26, 1948, married, customs broker, DNI 7.374.805, CIPF 6.133.387, son of Francisco and Josefa Ugarte, residing at Lima 265, 7th floor, Dto. «48» of this city.- The Public Prosecutor's Office is represented by Dr. Marta Inés Benavente, head of the Trial Prosecutor's Office No. 3, and the Defense is represented by Drs. Oscar Luis Roson and Gustavo Alberto LLaver, with address at 755 Paraná Street, 2nd floor, Apartment «B» of this city; and of which,

RESULTS:

A) On pages 1797/1818, the investigating prosecutor, Dr. Emilio Marcelo Guerberoff, requested that these proceedings be brought to trial, considering Enrique Francisco Siquier to be criminally responsible for the crime of qualified smuggling, provided for and punished by art. 865, paragraph "f" of the Customs Code, in accordance with arts. 863 and 864 of the same legal body, as author (art. 45 of the CP), by carrying out the entry into the country of 77 vehicles documented in import dispatches Nos. 203.360-9, 16.907-7, 23.847-4 and 210.671-8, carried out by the importing firm "Opalsen SA", which in turn carried out the same on behalf of and at the order of third parties.

B) On pages 1839/1845, the Examining Magistrate, in the absence of any opposition from the defense, decided to refer the present case to trial, for the facts that were the subject of the fiscal request that were imputed to Enrique Francisco Siquier, classifying them within the provisions of articles 864 incs. "b" and "e" and 865 inc. "f" of the Customs Code, in ideal competition.

C) In her argument, the trial prosecutor requested, for the reasons of fact and law set forth therein, that the defendant be sentenced to four years and six months in prison and those provided for in article 876, paragraphs "d", "e" - five years of disqualification -, "f" and "h" of the Customs Code, considering him criminally responsible for the crime of qualified smuggling for presenting adulterated documentation to the customs service, said documentation being necessary for the purposes of completing the customs operation, with the aim of obtaining a customs or tax treatment other than that which corresponded (articles 864 paragraph "b" and 865 paragraph "f" of the Customs Code and article 45 of the Penal Code), with costs.

D) In ​​the same procedural instance, the defense of the accused petitioned the Court, based on the arguments that it raised, the acquittal of its client considering that he is not criminally responsible for the facts that are the subject of the charge. - The defense understood that the maneuver was deployed by employees of the firm "Conasiq" in conjunction with customs personnel, with Siquier being oblivious to all of this. It added that the instruction was incomplete; that the Prosecutor based her charge on a mere calculation of probabilities, without finding a concrete evidentiary basis in the records on which to base the charge. - The defense also maintained that beyond the operation carried out in this case by Customs and the DGI, the maneuver would in any case be noticed when one or all of the purchasers of the 77 vehicles came forward to claim their tax credit for the corresponding payment of VAT.
Finally, the defense stated that since there are no concrete objective elements that directly incriminate the defendant, a decision of acquittal must be reached by applying the principle of doubt.

AND WHEREAS:

First:

Materiality of the fact

In the opinion of this Court, it is fully proven that the firm "OPALSEN SA" imported into the country on behalf of and by order of third parties the amount of seventy-seven (77) Fiat brand vehicles, model Type 1.6 SX, 5-door Sedan, year 1994; said operation being carried out through Import Dispatches Nos. 16.907/7; 23.847/4; 203.360/9 and 210.671/8.
To this end, the importer entrusted the processing of the aforementioned commercial transaction to the firm "Conasiq SA", which was responsible for preparing and preparing all the necessary documentation to complete the customs operation.
It was then in such a task that the aforementioned customs clearances were established, declaring, as a global taxable base, a value extremely lower than that which corresponded to the operation actually carried out, a circumstance that, in open evasion by the customs controller, allowed the payment of an amount reduced by almost half for the concept of VAT, duties and statistics.
Now, in order to be able to carry out a more precise and exhaustive examination of the matter at hand, the undersigned consider it pertinent to proceed independently with each import clearance, an analytical method that will allow the particularities of the indicated maneuver to be noted for the purposes of establishing the judgment of typicality.

a) Import clearance No. 16.907/7.
The customs office in question carried out the import of 15 units of the vehicles mentioned above, an operation carried out by the firm OPALSEN SA on behalf of and by order of the individuals Brunner, Ruben Arturo; Ledesma, Maria Fabiana; Cuneo, Jorge Alfredo; Hojman, Gustavo Ariel; Filipas, Ruben Matias; Sottile, Gustavo Javier; Abola, Rosa Mabel; Suarez, Angela Cristina; Averza, Juan Carlos; Roda, Francisco Jose; Oderda, Jose Maria; Cabral, Mario; Piccolo, F. Rafael; Bertoia, Juan Carlos; and Dacunto, Juan Jose.
This document was drawn up entirely based on the type of merchandise intended to be introduced into the country, recording all the necessary data for the purpose of presenting it to the customs service so that it can exercise the control regime that is its responsibility; which presentation, moreover, took place.
However, it is essential to clarify that the "crux" of the matter lies in being able to determine which mechanism was used to prepare the aforementioned import clearance, a purpose for which the reconstruction of the process of formation of that instrument must be attempted, making it possible to then establish the judgment of typicality on the factual assumption already unraveled.
In this order of ideas, the undersigned will now carry out a detailed review of the way in which the import operation carried out through customs clearance was documented, to which we are now addressing our analysis.
To this end, we will begin by pointing out that the document in question has been subject to a double process of formation, through the material alteration of the amounts recorded therein.
Indeed, while the import clearance matrix No. 16.907/7 shows a unitary FOB value of only US$ 5.439, it should be noted that the FOB value originally appeared therein as US$ 10.439, which, when the amounts corresponding to freight - US$ 105 - and insurance - US$ 108 - were added, became a unitary CIF value of US$ 10.652, a sum that was also originally recorded in the import clearance.
Now, by multiplying this last amount by the number of documented packages, we arrive at a global CIF value of US$ 159.780, a figure that would form the taxable base on which the corresponding taxes for rights and statistics would be settled, applying the pertinent rates -20% and 10% respectively-.
It should also be noted that the deduction of the value added tax was made based on a taxable base different from that established for the other two concepts mentioned. In this case, it was obtained according to the following formula: 10% of the total value of the duties settled was taken and multiplied by the number of imported packages, arriving at an amount of US$ 47.934. This amount was added to the total CIF value of the import operation documented in the clearance - that is, US$ 159.780, which is the taxable base that serves as a basis for the settlement of duties and statistics - and finally, through this addition, the platform on which the VAT was settled was formed; that is, US$ 207.714.
In accordance with the tax settlement process outlined above, it must be stated that, in this particular case, the amounts for payment of duties, statistics and VAT recorded in the dispatch should have amounted to the sums of US$ 31.956; US$ 15.978 and US$ 37.388,52, respectively.
Certainly, these figures were not the ones finally entered in the customs instrument. In fact, as stated in previous paragraphs, the document holder altered the originally stated FOB value per unit - of US$ 10.439 - by applying correction fluid on each of the pages of the dispatch where that value should have been entered, and then inserting the referred amount on top, although reduced by almost half, that is, US$ 5.439.
This circumstance can be seen first of all by simply observing the customs clearance matrix added to Annex I of the documentation, where on pages 3/15 the previously mentioned trick is clearly visible, by virtue of which the true values ​​of the import commercial operation were concealed from the customs controller. This is so, since the simplicity of the maneuver deployed not only makes it possible to appreciate the adulteration carried out but also allows the FOB unit values ​​originally recorded in the clearance to be observed - in backlight -, a circumstance that shows the misleading nature of the declaration made by the document-holder.
Indeed, if the reverse side of the altered pages of the instrument is examined, the exact amount of the figures that lie beneath the correction fluid can be seen - US$ 10.439 -, thus establishing a margin of difference that resulted in a reduction of the tax base to be delimited, and, therefore, in a significant reduction of the taxes to be liquidated for the concepts mentioned.
In order to clearly assess the margin of difference existing in the clearance based on the real values ​​of the foreign trade operation under analysis, it is illustrative to individualize the amounts that were ultimately deposited in that instrument and that caused the erroneous control by customs on the regular entry into the country of the 15 Fiat brand vehicles, model type 1,6 SX, documented in the clearance in question.
To this end, it should be noted that the reduction of almost 50% in the true values ​​of the import commercial transaction produced a proportional decrease in the tax bases on which the determination of taxes is established. Thus, by declaring the unitary FOB value of US$ 5.439 instead of the real amount of US$ 10.439, the tax base for duties and statistics was reduced from US$ 159.780 to US$ 84.780; and from US$ 207.714 to 110.214 the amount set for the deduction of VAT. Of course, due to the number of vehicles whose import was documented by the office under review and considering the ridiculous nature of the new price declared therein, a difference in value is obtained that decreases the taxable base by US$ 97.500, with respect to VAT, as well as producing a decrease of US$ 75.000, with respect to the other two concepts mentioned.
Consequently, it should be noted that such distortions prevented the customs agency from properly controlling compliance with the obligations for tax payments that the document bearer had to satisfy, since the reduction of the tax bases carried out through the adulteration of the clearance, determined that the customs supervised the payment of duties for US$ 16.956, of statistics for US$ 8.478 and of VAT for 19.839, when in reality the sums of US$ 31.956, US$ 15.978 and US$ 37.388,52 should have been paid for said concepts respectively.
However, it is essential to highlight that the above regarding the existence of an under-invoicing mechanism in the documentation of the customs operation in question is not only supported by the aforementioned adulteration carried out in the matrix of the dispatch in question, but is also supported by other elements of conviction that lead to the accreditation of that mechanism, pieces that also allow us to verify the aforementioned margins of difference in the calculation of the liquidation of taxes that resulted in prejudice to customs.
Indeed, the analysis of the documentation seized from the firm "OPALSEN SA", which appears added to Annex V of the documentation, allows us to confirm that the real values ​​of the import operation are significantly higher than those finally transferred to the respective office, establishing the margins of difference specified "ut supra".
Such statement should be easily verifiable, since from the examination of pages 6/21 of the aforementioned annex of documentation in which a copy of dispatch no. 16.907/7 is included, it is clear that the total of the rights that appear liquidated amounts to the sum of US$ 31.956; that the calculation for the payment of statistics is set at US$ 15.978, and that the VAT is liquidated for a total amount of US$ 37.389 - see specifically in this regard page 6-. For its part, on page 8 of the same annex, the bases that were taken for the purposes of proceeding to the liquidation of the taxes are recorded, delimiting the corresponding amount for the rights and statistics at US$ 159.780, and establishing the base for the arithmetic calculation of the VAT at US$ 207.714. And finally, on page 9, 21/10.439 of Annex V, the FOB value per unit was recorded as US$ XNUMX. Thus, it can be seen that all these values ​​coincide exactly with those already expressed throughout this document, which have been able to be identified from the original matrix of the adulterated shipment, since they are hidden in it.
Now, it is necessary to clarify that the ruse deployed for the purpose of illegally completing the customs operation not only ended with the adulteration of the import clearance but also extended to other complementary documentation, a circumstance that further hindered the adequate exercise of control that the customs service is responsible for.
In this regard, the original of the document called "DECLARATION OF ELEMENTS RELATING TO CUSTOMS VALUE" is more than eloquent, which appears attached to pages 50/51 of Annex I corresponding to dispatch No. 16.907-7, in which the execution of a deceptive procedure identical to that carried out on the matrix of the customs instrument can be appreciated, since it is specifically observed on pages 50 back and 51 back the application of correction fluid in order to conceal the sums of US$ 156.585 - which is the real global FOB value of the transaction -, to replace it with the tiny amount of US$ 81.585. Note that said amount added to the total cost of freight and insurance constitutes the CIF value taken as a basis for the purposes of liquidating the amounts that the document bearer must pay in terms of rights and statistics. It is clear then that such a procedure in the preparation of this complementary documentation leads to further hindering the power of control that the customs service has and must exercise when supervising the entry of goods into National Territory.
However, the fraudulent activity did not stop here either, as it continued to extend to include the import tax payment deposit slips, since while the copies provided by the Banco Nación - originals of slips Nos. 9511270 and 9511271 (attached to pages 52 and 54 of Annex I) - and by the National Customs Administration - duplicate of slip No. 9511270, glossed to pages 56 of the aforementioned documentation annex - contain a stamp of receipt of the deposit by the Banco Nación, "Customs Branch", dated January 11, 1994; and the quadruplicates found in the taxpayer's possession bear a stamp from the same bank, although from a different branch: "Plaza de Mayo" - see pages 58/70 of Annex I.
Of course, the differences in the way in which the deposit slips for payment of import taxes delivered to the Bank and to customs were prepared, compared to those found in the taxpayer's possession, do not end here. In fact, Banco Nación provides the two slips mentioned in the preceding paragraph, which prove the payment of taxes, and from them it can be seen that the taxes were paid in full, since while slip no. 9511270 details the deposit of $5.457, the other one shows the deposit of check no. 20274579 from Banco Río, for a balance of $39.816, this amount added to the previous one gives a total of $45.273 which coincides with the amount that appears in the matrix as "total to pay".
However, the receipts found in the taxpayer's possession record individual payments for each particular transaction documented in the office, with the exception that they detail a deposit of $5688 -see the aforementioned fs. 58/70 of Annex I, and the photocopies glossed at fs. 134/143 of the same Annex- an amount that when multiplied by the number of imported vehicles reaches the figure of $85.320, which coincides with the amount recorded as "total payable" in the copy of the matrix of the office under study, found in the firm "OPALSEN SA", and which appears on fs. 6 of Annex V of documentation.
On the other hand, the existence of three receipts in the name of Hojman that record the deposit of three different amounts - $ 5.457, $ 39.816 and $ 5.688 - in the concept of payment of taxes, also paid in a dissimilar manner - see pages 52, 54 and 60 of Annex I of documentation - is also revealed as extremely strange.
Indeed, the receipt on fs. 52 which records an amount of $5.457 was paid in cash, while the one listed on fs. 60 - a photocopy of which also appears on fs. 136 of the same Annex - was paid by means of a check from Banco Río. In this regard, it should be noted that on fs. 97 of Annex I, there is a list relating to the transaction in question, from which it can be seen that for the operation of Gustavo Ariel Hojman a deposit of $5.688 was made, by means of Banco Río check no. 20274583, issued on January 6, 1994 and debited the following day from the account "Import Tax Collection" opened at the Banco de la Nación Argentina. Added to this is the list on fs. 153 of Annex 1, which specifies the total amount of taxes settled for each operation carried out in the office - $ 5.688 - as well as the form of payment and the use of the checks issued to settle the tax obligations; noting with respect to Hojman the cancellation of taxes with the aforementioned check and for the total amount also indicated.
However, that is not all, since it should be added that when giving testimony before the Examining Magistrate - pages 1.013/14 -, Gustavo Ariel Hojman provided a photocopy of copy No. 4 of the Banco de la Nación Argentina receipt No. 9515515 given to him by the seller, which shows a deposit of $5.688 made by means of Banco Río check No. 20274583, payment made at the Plaza de Mayo Branch of the aforementioned banking entity.
Therefore, it is unthinkable to even imagine that the documenter has deposited funds twice to satisfy the payment of taxes corresponding to the same commercial operation, in relation to the importation of the vehicle in the name of Hojman. By the way, this same conclusion can be extended to the remaining transactions, since, on the one hand, we realize that the cancellation of the taxes corresponding to the accumulation of the same appears to be carried out in a global manner; and, on the other hand, we find that deposits would have been made for each particular operation documented in the dispatch. - With this understanding, it is only appropriate to affirm that the documenter adulterated the photocopy of the import dispatch delivered to the firm "OPALSEN SA", increasing the values ​​by almost 100%, also falsifying the receipts of deposit of funds for payment of import taxes, to adjust their amounts to the values ​​stated in the copies of the dispatch that appear added to fs. 6/21 and 22/35 of the "ANNEX V" of documentation, that is, those in the possession of the importing firm.
In this respect, the photocopy of the documentation provided on pages 802/803 by Dr. Goldaracena -then defense attorney in the proceedings for Raúl Martínez, Vice President of the importing company- and which is included on pages 96/157 of "ANNEX I", consisting of vehicle and dispatch assignments; ROU invoices; tax deposit slips no. 4; unit orders; and checks from the Banco Río de la Plata, Head Office, nos. 20274578/4579 and 20274583/4584, is more than illustrative.
Indeed, as already stated, on page 97 of the annex of documentation referred to in the previous paragraph, a photocopy of the instrument called "Control Payment Dispatch of Units" appears attached, in which the following data is recorded: a) unit FOB value of $ 10.439; b) global FOB value of $ 156.585; c) value of deposit of taxes for each operation that reaches the sum of $ 5.688, resulting in a total of $ 85.320 by virtue of the quantity of imported packages. Thus, it should be noted that all the figures mentioned are those that appear reflected in the copy of the import dispatch no. 16.907-7 that the firm "OPALSEN SA" had in its possession, but they do not turn out to be - as tirelessly maintained - those expressed in the original matrix of the aforementioned office, where extremely lower amounts were inserted, which led to non-compliance with tax obligations by almost 50%; thus violating the function of specifically customs control.
For the sake of completeness, it is worth noting that the commercial invoices issued by the firm "OPALSEN SA", which are photocopied on pages 119/133 of Annex I of the documentation - which, as already stated, were provided by the importing company itself - detail each of the imports that the office documented, stating therein a unit FOB value of US$ 10.439, and declaring under oath that all the data contained in the invoices faithfully reflect the truth and that the prices indicated are those actually paid; It is also declared in the same way that there are no agreements that allow the alteration of these prices. This being so, it is not appropriate to record in the import clearance or in the complementary documentation - Declaration of the elements related to the customs value - a unit FOB value of US$ 5.439, and then calculate on the basis of this ridiculous amount, the figures concerning the payment of taxes, as reported in the originals No. 1 of the import tax deposit slips Nos. 9511270/1271, which appear on pages 52 and 54 of the aforementioned annex, whose amounts added together give a total that is related to a unit FOB value reduced in the manner expressed.
Finally, it should be noted that the individuals Hojman, Cabral, Piccolo, Bertoia, Dacunto, Abola, Averza, Filipas, Suarez, Sottile and Bruner each stated respectively on pages 1.013/14, 1.025/26, 1.054/55, 1.067/69, 1.074/75, 1.188/89, 1.214/15, 1.280/81, 1.302/303, 1.331/31 bis. and 1.385/86 - all statements introduced by reading to the debate - that they paid for each vehicle around $ 19.000; that the signature attributed to them inserted in the office does not belong to them; and that they did not grant authorization for anyone to sign in their name.
All of this confirms what has been expressed so far regarding the existence of a misleading statement made in import clearance No. 16.907-7, with the sum of $19.000 that the individuals claimed to pay for the vehicle they were purchasing being very significant, since this figure appears to be a sale price that is much more compatible with a unitary FOB value of US$10.439 than with US$5.439.
Therefore, there is no doubt for the undersigned that the fact in question carries out all the objective elements of the criminal offense whose consummation is attributed to the accused.

b) Import Clearance No. 23.847-4.
The import clearance that will be examined below, instrumented the entry into national territory of 18 Fiat brand vehicles, model type 1.6 SX (5-door Sedan); operation carried out by the firm "OPALSEN SA", on behalf and order of the third parties Malaisi, Gerardo Fabian; Ferreyro, Edgardo Manuel; Sanda, Jorge; Aguero Sanchez, LH; Vantome, Gabriel and Cebrian, Carolina; Barmaymon, Gabriel Isidoro; Montserrat de Duran; Danne, Jorge Nazareno; Maga, Alfredo and Gonzalez, Miriam Araceli; Penza, Diego and Cipiciani de Penza; Abate, Jorge Antonio; Lopez de Powasniak; Legal, Carlos and Nicosia, Adriana Silvia; Canal, Alberto Cesar; During, Marcelo Daniel; Romagnoli, Hugo Carlos; La Torre, Juan Carlos; and Menna, Juan Carlos.
From the analysis of the dispatch in question, it is clear that there is a process of conformation similar to that carried out in the previous document. In fact, the document-maker, when preparing the customs instrument, originally inserted the sum of US$ 10.439 as the unitary FOB value, a figure that, due to the number of imported vehicles -18-, reaches a total sum of US$ 187.902. In turn, the addition to said amount of the global amounts paid for freight and insurance -whose individual value remained at US$ 105 and US$ 108, respectively-, leads to a global CIF value of US$ 191.736, this value serving as a taxable base for the purposes of the arithmetic calculation of the taxes to be paid for this transaction.
However, it should be noted that the figures that were originally placed in the customs clearance matrix were modified by adulterating said document, in order to introduce a new unitary FOB value, although reduced by almost half.
This conclusion can be perfectly corroborated by analyzing the dispatch in question included in Annex II of the documentation - the formation of which was ordered on pages 1854 of the main proceedings - specifically with regard to pages 3/18. This is so, since in the aforementioned pages, the application of correction fluid on the sector relative to the declaration of the unitary FOB value can also be appreciated, in order to then show an amount of only US$ 5.439. This circumstance becomes evident because the simplicity of the adulteration mechanism deployed allows observing the exact amount that lies beneath the small amount recorded, because if the reverse of each of the adulterated pages is examined, it can be noted that the value inserted initially reached the sum of US$ 10.439.
It is precisely on the basis of the reduced amount that the figures that served as support for the purposes of the liquidation of import taxes were obtained, a circumstance that can be seen on page 1 of the aforementioned Annex of documentation, where a global CIF value of US$ 101.736 appears, an amount that is arrived at after multiplying the reduced FOB value by the number of packages whose introduction into the country this office documented.
It is thus noted that, based on these figures, the reduced sums of US$ 20.347, US$ 10.174 and US$ 23.806 respectively were settled for rights, statistics and VAT, when in truth, almost 100% more should have been calculated for these purposes, based on the original value of US$ 10.439 that corresponded to each vehicle.
It is more than evident that, as occurred with the case analyzed in point a), the implementation of this double procedure in the configuration of the customs instrument, had a negative impact on the determination of the taxes that had to be settled, producing such a mechanism of under-invoicing the obstruction of the exercise of control that the customs agency is responsible for carrying out on the traffic of goods.
It should be noted that on pages 20/36 and 37/54 of Annex II of the documentation, partials I and 2, respectively, of customs clearance no. 23847-4 appear added, where only the reduced figures can be seen, due to the fact that their copies were taken after the aforementioned adulteration process had been carried out.
In another order of ideas, it should be noted that the deployment of such insidious activity also affected certain complementary documentation that is necessary for the purposes of completing the customs operation, such as the "Declaration of Elements at Customs Value", the original of which is included on pages 56/57 of the aforementioned Documentation Annex.
Indeed, this Court highlights that in this document it is also obvious that correction fluid was applied on pages 56 back and 57 back, where a total value of $97.902 is recorded as the net price actually paid and which is considered for the determination of the customs value, which after the transport and insurance costs are added, forms the final declared value of $101.736. However, it can be seen that below those amounts lie higher figures, which can be specified as $187.902 -in the first case- and 191.736 -in regards to the final declared value-.
Now, these last two figures can only be arrived at based on the original FOB value per unit of US$ 10.439 set in the dispatch, because while one arises from the multiplication of this by the number of imported packages - that of $ 187.902 -, the other is arrived at after adding the total freight and insurance to the product of said multiplication - 191.736 -.
Consequently, and following the rules of logic, it must be stated that -based on the elements of conviction assessed- the operation was documented in the customs clearance under examination, according to values ​​widely higher than those that finally appear in the adulterated matrix of the customs instrument, as well as in its partials I and 2; because they were the ones that adjusted to the real amounts of the commercial transaction. Therefore, if later said amounts were replaced by extremely lower sums, this was due to the fact that through such action a decrease in the calculation bases was obtained that was expressed in a lower liquidation of taxes, which violated the adequate control that the customs must exercise when merchandise enters the country.
On the other hand, it should be noted that on pages 58 and 60 of Annex II of documentation, the originals of the receipts for deposits of funds for the payment of taxes Nos. 9613800 and 9613778, respectively, are attached, which remain in the possession of the Banco de la Nación Argentina and where two deposits made in the "Customs Branch" of said entity are recorded, which, added together, yield a sum of $54.327, this figure exactly matching the amount listed as "total payable" on page 1 of the matrix of the office in question.
However, it is worth noting that on pages 1063 and 1072 of the main proceedings there are attached two photocopies of copy no. 4 of the money deposit vouchers for the payment of import taxes, which correspond to the operations carried out by Juan Carlos Bertoia and Juan José Dacunto, respectively, and which reflect money deposits for the sum of $5.688, in the current account of the Banco de la Nación Argentina, although this time in the "Plaza de Mayo" Branch.
Based on this, it is noted that, on the one hand, two deposit slips are presented to the customs agency, which globally cancel the taxes accrued by the import documented in the clearance, which is carried out at the Customs Branch of the Banco de la Nación Argentina; and on the other hand, a deposit slip is prepared for each of the purchasers of the imported units, in which a deposit of $ 5.688 is recorded, made in the same Bank, although in a different branch: "Plaza de Mayo".
But beyond the differences mentioned, it is worth highlighting that the existence of these "parallel receipts" reveals a very interesting fact, because if we multiply the amount of $ 5.688 by the total number of packages brought into the country -18- through the customs instrument in question, we obtain a figure that reaches the sum of $ 102.384, which, in reality, is what should have been paid in taxes instead of the ridiculous $ 54.327, an amount that, on the other hand, is compatible with a taxable base of $ 191.736, which is only reached if we take the unitary FOB value, a price of $ 10.439.
Added to this is the fact that the statements made by individuals Irma Vicenta López de Powansky, Juan Carlos Menna, Juan Carlos La Torre and Marcelo Daniel Durante, which appear respectively on pages 955/56, 993/94, 1037/39 and 1104/06, all of them agree in stating that they paid around $19.000 for the vehicles; that the signatures attributed to them in the office do not belong to them and that they did not authorize anyone to sign on their behalf.
From all the above, there is no doubt that the operation documented in dispatch no. 23.847-4 was entirely orchestrated in a deceptive manner by materially altering the original of that instrument, so as not to record the real values ​​of the transactions contained therein, after which it was presented to the customs service in such mendacious conditions, thus producing the violation of such a specific function of customs as the control regime over the operations that must be carried out before it.
Consequently, this Court can affirm, based on the considerations made, which are also present in this factual assumption, the objective extremes of the criminal type whose commission is attributed to the accused in this case.

c) Import Clearance No. 203.360-9.
The customs instrument that will be examined on this occasion, documented the entry into national territory of 25 units of the vehicles identified in the first paragraph of point I, an operation that was also carried out by the firm "OPALSEN SA", on behalf and by order of Saenz, Guillermo; Varela, Vicente; Rinaldi, Octavio; Rodriguez, Alberto; Bianciotto, Mateo; Tomasini, Cristina; Maccarone Castro; Pomar, Manuel Eduardo; Pellegrino, Juan Armando; Carunchio, Antonio; Soresi, Juan Carlos; Saul de Pacheco, Maria; Navall, Eduardo Antonio; Guglielmi, Daniel Alberto; Diedrichs, Marcelo; Tymkiw, Juan Carlos; Rigazio, Felix; Macchi, Maria; Gamba, Ytalo Argentino; Chicco, Raul Oscar; Santorufo, Miguel Angel; De Giorgi, Marta Leonor; Capogrosso; Cerrudo, Juan; and Marotta de Dalla, Rosa.
It should be noted that the original matrix of the office under study could not be found, however, the original of partial No. 1 of said document is attached to page 24/2 of Annex III of documentation.
Now, the aforementioned partial also records the FOB value per unit of US$ 5.439 -see pages 3/23 of Annex III-, arriving at a global amount of US$ 135.975 based on the imported packages; and if the total expenses incurred in the concept of transport and insurance are added to this amount, a global CIF value of US$ 141.300 is obtained, amounts that are reflected on pages 1 of partial no. 2 of the dispatch in question -see pages 1 of the aforementioned annex-.-
Certainly, it can be said that the values ​​referred to in the preceding paragraph did not turn out to be the real amounts of the import commercial transaction, since they experience a reduction of almost 50% with respect to the prices that were actually paid by the importing company in order to bring the units into the country.
In this regard, it should be noted that beyond the data that the document holder recorded in partial No. 2 of import clearance No. 203.360-9, it can be seen from the copy of the original matrix glossed on pages 36/60 of Document Annex No. V -which was seized at the headquarters of the firm "OPALSEN SA"-, that the amounts recorded there are much higher than those previously mentioned and contained in the customs document finally submitted to the National Customs Administration.
Indeed, from pages 39/59 included in Annex V and corresponding to the aforementioned copy of the dispatch, it is clear that the amount recorded as the unitary FOB value reaches the sum of US$ 10.439, that is, almost double the amount reported to the customs service for said value, which also brings about a proportional increase in the calculation base on which the import taxes are settled.
In accordance with the above and taking into account the actual FOB value of the transaction, a taxable base for the payment of taxes of $266.300 is obtained -see fs. 36 of Annex V- and based on this, the sums of $53.260, $26.630 and $62.314, respectively, should have been settled in the concept of rights, statistics and VAT, these figures added together give a total to be paid of $142.204, instead of the $75.454 that was finally paid.
In light of the above, it is not hasty to state that the import clearance under analysis was also subject to a double process of conformation, since it was originally configured with the real values ​​of the transaction, which were later modified by a mechanism similar to that used for the adulteration of the two clearances analyzed in points a) and b) of this consideration. Although the original matrix of the clearance in question is missing, it can be seen in any case from the partial No. 2 added to fs. 1/24 of Annex V, that the figures inserted there have been placed on top of a correction fluid, altering those originally entered.
This circumstance can be particularly noted on the first page of the partial - added to page 1 of Annex V - where said copy reveals the box left by the correction fluid in which the reduced amounts were placed - see specifically the table where the summary of the liquidation appears, as well as the "total CIF value", the "total taxable base" and the "total to pay" in numbers and letters. This same situation can also be clearly noted on some of the pages of the partial where the individual amounts were recorded with respect to the vehicles - FOB value. Consequently, customs clearance No. 203.360-9 has also been adulterated in order to be able to deploy the detailed under-invoicing mechanism.
In another order of ideas, it should be noted that on pages 28/50 of Annex III of documentation, there are added 23 photocopies of copies No. 4 of the deposit vouchers for payment of taxes, deposits that were made in the "Plaza de Mayo" Branch of the Banco de la Nación Argentina, for balances of approximately $ 5.688. Now, if said amount is multiplied by the number of imported vehicles, the total figure is $ 142.204, which exactly matches the amount that appears as "total to pay" on the first page of the photocopy of the office that was seized from the firm "OPALSEN SA" and that is listed on page 1 of Annex V.
However, on page 25 of Annex III, there is a certification of payment of taxes with a total amount of $73.929,48 paid through receipt No. 9490560, and on page 27 of the same annex, there is another certification in this regard where a total accumulated payment of $75.529,51 is recorded, paid through receipt No. 9490561, which is approximately the amount recorded in partial No. 2 of the office under analysis.
Thus, two deposits were made in the Import Tax Collection account, opened at the Banco de la Nación Argentina: one was made effective by means of check No. 20274540 from the Banco Río de la Plata, Head Office, for an amount of $73.931, a photocopy of which is on page 212 of the main proceedings - see also in this regard, the account summary that appears on page 27, where the deposit of the check in question in the account of the Banco Río de la Plata is credited on 16/12/93 - an amount that practically coincides with that reflected in the first certification mentioned; while the other was made for the sum of $1600,03. Consequently, the sum of both deposits satisfied the payment of the total of the taxes liquidated and the figure of which appears inserted on page 1 of partial 2; therefore, the payment of taxes was integrated before customs in a global form.
This circumstance highlights the mendacity of the aforementioned copies No. 4 of the deposit receipts glossed on pages 28/50 of Annex III, since they were prepared for the sole purpose of supporting the data recorded in the copy of the dispatch existing at the headquarters of "OPALSEN SA", since the only payments certified at customs with respect to the operations pertaining to this dispatch only reach the total shown on pages 27 - that is, $75.529,51-, while the sum of the individual amounts reflected in the apocryphal receipts almost doubles that amount. On the other hand, it should be noted that on pages 54/78 of Annex III appear the commercial invoices issued by the firm "Opalsen SA" relating to each of the transactions documented in the dispatch in question, from which a unitary FOB value of US$ 10.439 can be seen. In turn, on pages 82/100 of the aforementioned Documentation Annex, the "unit order" forms corresponding to the operations carried out in the office in question appear, where a unit CIF value of US$ 10.652 is recorded, a figure arrived at by taking as a basis a FOB price of US$ 10.439 to which are added the cost related to transportation and insurance (US$ 105 and US$ 108, respectively).
In this regard, it can only be stated that customs clearance No. 203.360-9 was originally drawn up, recording the true amounts of the commercial transaction, figures which were later modified in order to enable the implementation of an under-invoicing mechanism which reduced the real prices by almost half their value; this procedure was carried out by means of the ruse which was already detailed in previous paragraphs.
Finally, it should be noted that there is another difference between the data recorded in the aforementioned partial 2 of the office under analysis and those that were entered in the copy seized at the headquarters of the firm "Opalsen SA", since, while the former bears a stamp that assigns the green verification channel, the latter bears a stamp that assigns the red channel, that is, the mandatory verification. - This circumstance confirms the maneuver hatched in the instrumentation of the operations that the customs office in question documents, since the data recorded do not turn out to be those that adjust to the reality of the indicated operation. -
Consequently, the examination of all the elements indicated and the assessments thereof carried out throughout this document allow this Court to establish the existence of all the elements required by the objective type in question with respect to this particular fact.

d) Import clearance No. 210.671-8.
The customs instrument, which we will now analyze, formalized before the customs service the entry into the country of 19 of the vehicles already identified; operation carried out by the firm "Opalsen SA" on behalf and order of the individuals Marinkovich, Silvia; Novello, Sonia Raquel; Catalano, Victor Manuel; Alonso, Hugo Alberto; Costa, Miguel Angel; Bacchiddu, Rafael Mario; Labat, Marta Graciela; Toscano, Patricia Cecilia; Bigi, Cesar; Gianonne, Jose Luis; Dibidino, Benito; Cousido, Jose Luis; Paglieri, Juan Lorenzo; Mayero, Jose Alberto; Garro, Monica Liliana; Valentini Paz, Eduardo and Pullido Estela; Bugiolachi, Jorge Adrian; Ferrario de Ferrari, Maria Susana; and Bianchi, Alberto Armando.
Also on this occasion, partial No. 2 of the dispatch - since the original matrix could not be found - which appears glossed on page 1/21 of Annex IV of documentation, reflects a unit FOB value of only US$ 5.439, an amount that, based on the number of imported packages, becomes a global price of US$ 103.341. By adding to this figure the expenses produced by freight and insurance, a global CIF value of US$ 107.388 is obtained, basis on which the arithmetic calculation of the taxes to be paid was carried out; figures all of which appear on page No. 1 of the aforementioned partial.- Based on the established tax base, the document holder liquidated the amounts of $21.478, $10.739 and $25.129, respectively, in the concept of rights, statistics and VAT, amounts that added together reach a total of $57.346, an amount that appears recorded as "total to pay" in the instrument that was presented to the customs agency.-
However, similar elements of conviction to those already assessed in the previous points allow the undersigned to arrive at the conclusion that those values ​​did not turn out to be those originally reflected in the dispatch in question.
Indeed, on pages 81/100 of Annex V of the documentation, there is a photocopy of office number 210.671-8 that was seized at the facilities of the firm "OPALSEN SA", in which the existence of a FOB value per unit of US$ 10.439 can be seen -see specifically pages 84/100-, an amount based on which a global CIF value of US$ 202.388 is arrived at, with a total of US$ 108.176 being settled in taxes -see pages 81 of Annex V of the documentation-.-
From the above it can be deduced that in this customs instrument a double process of conformation was also carried out, initially establishing the real values ​​of the commercial transactions contained in the clearance, then modifying them by adulterating the original matrix to insert the new amounts reduced by almost 50% of the original figures.
This conclusion is supported not only by the existence of parallel copies of the same import clearance that reflect different data, but is also supported by the existence of commercial invoices, "unit order" forms and the list of vehicle assignments, all of which start from a unitary FOB value of US$ 10.439. In fact, on pages 72/90 of Annex IV of the documentation, the 19 commercial invoices issued by the company "Opalsen SA" are listed, based on the 19 vehicles brought into the country, in which the aforementioned FOB value is recorded, which, by the way, is almost double the value recorded in Part 2 of the import clearance that was submitted to customs.
In this regard, it should be noted that the actual determination of the price actually paid by the importing firm for each of the vehicles in question, at a value that is widely higher than that entered in the customs clearance, leads to a proportional increase in the taxable base on which the taxes to be paid are calculated. Thus, when adulterated documentation is presented to the customs service for the purposes of the respective control, which reduces the true amounts of the operation, it produces a mechanism of under-invoicing that hinders the adequate exercise of control that customs is responsible for carrying out on the international traffic of goods.
In order to illustrate the difference between what was actually settled and paid in taxes, and what should have been calculated and paid given the magnitude of the operation carried out, it is appropriate to compare the total figure recorded in Part No. 2 of the customs clearance under study - US$ 57.346 - with the final figure recorded in the copy of the clearance obtained at the importer's own headquarters - US$ 108.176.
Although it is a simple photocopy that was seized from "Opalsen SA", it should be noted that Dr. Goldaracena provided on pages 802/3 a photocopy of office 210.671-8, which reflects exactly the same values ​​as those expressed in the copy obtained in due time at the facilities of the aforementioned company.
In another order of ideas, it should be noted that on pages 2 and 3 of Annex 4 of the documentation there are two payment certificates issued by the customs office, which show an accumulated deposit of $57.403,38, made by means of two receipts: No. 9488115/116. There is no doubt that the accumulated amount allowed the cancellation of the payment of the reduced total of taxes liquidated, since it is sufficient to cover the amount of US$57.346 that appears on the first page of the repeatedly cited partial No. 2.
However, on pages 91/104 of Annex IV, the photocopies of copy No. 4 of the receipts for deposits of funds for the payment of import taxes appear attached, in which a unit value to be paid in the form of taxes is recorded that reaches the sum of $ 5.688. The fact that the product of the multiplication of this last amount by the number of imported vehicles reaches exactly the total figure of $ 108.076 is more than eloquent, which is the amount that appears inserted in the photocopy of the office seized at the headquarters of the firm "Opalsen SA" (although there is a difference of $ 4, it is noted in the aforementioned documentation that four of the receipts record one peso more of tax payment per unit).
In this regard, it can only be stated that a procedure such as the one deployed in this case has caused erroneous customs control when supervising the entry of the 19 vehicles into national territory, thus demonstrating the existence of the objective extremes that the criminal offense in question demands for the purposes of its execution.

Second:

Evidence elements common to all import operations
The conclusions reached by the undersigned in the previous Consideration, regarding each of the customs offices, are corroborated by certain elements of proof that provide certainty to the description of the criminal maneuvers already expressed.
Among these elements, it is worth highlighting, first of all, the technical report prepared by the National Customs Administration, which is attached to pages 1496/1501 of these proceedings, by virtue of which it is made known that the values ​​declared in each of the import dispatches in question must be adjusted by 95,20% on the FOB prices stated.
Secondly, it should be noted that the Analysis and Information Division of the National Customs Administration (Machinery and Transport Branch) made it known on pages 77/89 of Annex "K" that the values ​​declared in the incriminated customs clearances are not related to the reasonableness parameters that they have with respect to the merchandise in question and that they estimate them to be between US$8.000 and US$10.000.
In turn, the notes issued by the firm FIAT, Turin (Italy), at pages 1625/1626, which respond to the letter of request appearing at pages 1623/1626, cannot be overlooked, arising from the corresponding translation added at pages 1633/1634, that the free sale price, ex factory, for the year 1994, with respect to the vehicle Fiat, Tipo, SX, five doors, without radio, not for sale in Europe, is set at 12.036.000 Italian lire, which added to freight, insurance and accessories for sale to the public, makes up an amount that is related to that produced by the National Customs Administration in the aforementioned report at pages 77/89 of Annex "K".
It should be noted that in the aforementioned report from FIAT Torino (Italy) it is expressly stated that the price referred to is applied without differences to both "SEVEL Argentina SA" and "SEVEL Uruguay SA", that is, the firm "Opalsen SA".
The corollary of all this is the under-invoicing mechanism developed in the various customs offices by recording in them a price reduced by almost half of the value established in the previous reports.

Third:

Statement of the test:
The conclusions reached in points a), b), c) and d) of the First Consideration, in addition to those listed above, are based on the evidence produced during the course of the debate, which is listed below:

1.- Complaint on pages 29/30 and extension of pages 216/218, made by the DGI in which the anomalies existing in the four import dispatches in question that were presented to the Customs regarding the FOB price stated; amount of taxes settled and tax deposit slips made, adding a photocopy of the relevant documentation.

2.- Written documents on pages 584/585 by which the DGI attaches the minutes drawn up when delivering, by order of the Criminal and Correctional Court No. 1 of San Isidro, the certificates of nationalization of vehicles, corresponding to Gustavo Adolfo Briones, Juan Carlos La Torre and Irma López de Powasniak; purchasers of vehicles whose income was documented through dispatch 23.847-4.-

3.- Original of the matrix; partial 1 and partial 2, corresponding to DI N? 16.907-7/94 appearing on pages 1/15, 16/30 and 31/48 of Annex I, respectively; and the following documentation also appearing in Annex I: declaration of the elements relating to the value in ANA (pages 50/1); originals of the deposit slips and certifications provided by Banco Nación (pages 52/5); originals of the deposit slip provided by ANA (pages 56); certified photocopies of the Banco Nación deposit slips appearing on pages 58/74; photocopy of the pro forma invoice of «Opalsen SA» (pages 75); «Ferri Rios Uruguayos» bill of lading (pages 76); ANA payment certificates (pages 77/78); naturalization certificates (pages 79/94); consultation form on office (pages 95); documentation annex of pages 97/157.-

4.- Original of the matrix, partial 1 and partial 2; corresponding to DI no. 23.847-4/94, appearing on pages 1/18, 19/36 and 37/54 of Annex II, respectively; and the following documentation related to that dispatch appearing in the same Annex: declaration of the declaratory elements at the value in ANA (pages 56/7); originals of deposit slips and certifications (pages 58/61); photocopies of quadruplicates of deposit slips (pages 62/3); photocopies of the pro forma invoice of «Opalsen SA» (pages 64); bill of lading of «Ferry Ríos Uruguayos» (pages 65); ANA payment certificates (pages 66/70); nationalization certificates (pages 71/88); consultation forms on dispatches (pages 89/90); documentation provided by the DGI regarding "CONASIQ SA" (pages 91/118).-

5.- Partial 2 corresponding to DI 203.360-9/93 appearing on pages 1/24 of Annex III; ANA payment certificates (pages 25/7); photocopies of the quadruplicates of deposit slips (pages 28/50); notarized photocopies of invoices from "Opalsen SA" to the buyers (pages 54/79); import unit orders for individuals (pages 80/100); dispatch query form (pages 101), all of them corresponding to DI no. 203.360-9/93.-

6.- Partial 2 corresponding to DI no. 210.671-8/93 appearing on pages 1 and 4/21 of Annex IV; payment certificates to ANA (pages 2/3); nationalization certificates (pages 22/40); photocopy of the daily voucher of «Opalsen SA» no. 07 (pages 41); consultation form on dispatch (pages 42); documentation annex (pages 42 bis/124), all of them related to the aforementioned dispatch and appearing in that annex.

7.- The following documentation seized from «Opalsen SA» and recorded in Annex V: photocopies corresponding to DI no. 16.907-7/94 (pages 1/21); photocopies of DI no. 16907-7/94 -provided by Dr. Goldaracena- (pages 22/35); photocopies corresponding to DI no. 203.360-9/93 (pages 36/60, a copy of which is also recorded on page 1/25 of the main document); photocopies of DI 210.671-8/93 -provided by Dr. Goldaracena- (pages 61/80); photocopies of DI no. 210.671-8/93 (from pages 81/100).-

8.- Documentation related to the nationalization of vehicles included in the described shipments, found on pages 558/583.-

9.- Photocopy of the summary of current account No. 16.584/8 of Banco Río, found on page 27 of these proceedings.

10.- Photocopy of the summary of current account 16.584/8 of Banco Río, fs. 204.-

11.- Photocopies of checks from Banco Río de la Plata No. 20274538/40/43/48/45/46 added to pages 211/212 and 462/463.-

12.- List of Import Clearances in photocopies of pages 206/210 of the National Customs Administration of all vehicles imported by the firm "Opalsen SA" through the port of Buenos Aires, among which are the incriminated clearances.

13.- Photocopies of the documentation provided by Mrs. Powansky on pages 949/954.-

14.- Certified photocopies of payment slip No. 9613778/800, 9511271/70 of the Banco de la Nación Argentina (ANA) of pages 959, 961, 963 and 965 with their corresponding certifications (pages 960, 962, 964 and 966), see DI and add it above.-

15.- Photocopies of the documentation related to the constitution and statutes of «Opalsen SA» added to pages 1671/1688.-

16.- Testimonial statement of Irma Vicenta Powansky, recorded on pages 955/6.-

17.- Testimonial statement of Juan Carlos Menna, pages 993/4. Photocopies of documentation provided by Mr. Menna, found on pages 988/992.-

18.- Testimonial statement of Gustavo Ariel Hojman, pages 1013/14. Photocopy of documentation provided by Mr. Hojman on pages 1003/1012.-

19.- Testimonial statement of Mario Cabral, pages 1025/1026. Photocopy of documentation provided by Mr. Cabral, added to pages 1017/1024.-

20.- Testimonial statement of Juan Carlos La Torre, pages 1037/1039. Photocopies of documentation provided by Mr. De La Torre on pages 1028/1036.-

21.- Witness statement of Francisco Rafael Piccolo, pages 1054/1055. Photocopies of documentation provided by Mr. Piccolo on pages 1044/1053.-

22.- Testimonial statement of Juan Carlos Bertoia, on pages 1067/69. Photocopies of documentation provided by Mr. Bertoia, on pages 1060/1066.-

23.- Testimonial statement of Juan José Dacunto, pages 1074/75. Photocopies of documentation provided by Dacunto, added to pages 1070/1072.-

24.- Testimonial statement of Marcelo Daniel Durante, pages 1104/106. Photocopies of documentation provided by Mr. Durante on pages 1098/1103.-

25.- Testimonial statement of Rosa Mabel Avola, pages 1188/89. Photocopies of documentation provided by Mrs. Avola attached to pages 1185/1187.-

26.- Testimonial statement of Juan Carlos Averza, pages 1214/15. Photocopy of documentation provided by Mr. Averza, found on pages 1200/1213.-

27.- Testimonial statement of Rubén Matías Filipias, pages 1280/81. Photocopies of documentation provided by Mr. Filipias, added to pages 1272/1279.-

28.- Testimonial statement of Angela Cristina Suarez, pages 1302/303. Photocopies of documentation provided by Mrs. Suarez, added to pages 1296/1301.-

29.- Testimonial statement of Gustavo Javier Sottile, pages 1331/1331 bis.- Photocopies of documentation provided by Mr. Sottile attached to pages 1313/1330.-

30.- Technical report from the Technical Analysis and Valuation Department of ANA, pages 1352 and back, which concludes that the transaction value accepted by said Division for imported vehicles in DI No. 16.907-7, of the same origin and provenance and sold by the same supplier (Opalsen SA), amounts to US$ 10.617.

31.- Testimonial statement of Rubén Arturo Brunner, pages 1385/6. Fax copies of documentation provided by Mr. Brunner, attached to pages 1387/1388.-

32.- Testimonial statement of Mirta Graciela Naz, pages 1402/03.-

33.- Fax copy of the report prepared by the machinery branch of the Customs Verification Division, which reports that the market value corresponding to the vehicles in question amounts to the sum of $19.959 per unit (page 1455).-

34.- Technical valuation report prepared by the ANA on pages 1496/1501, which states that the values ​​declared in the import clearances in question must be adjusted by 95.20%, based on the FOB price.

35.- Notes from Fiat Auto, Turin headquarters, on pages 1625/26, responding to the letter of request appearing on pages 1623/26, the corresponding translation of which appears on pages 1633/34.

36.- Handwriting Expertise on pages 1789/91 back, which concludes that the signatures with the clarification “Enrique F. Siquier // Customs Agent” recorded in the incriminated documentation, belong to the defendant.
Same procedural measure practiced on pages 2252/ 2256, which reports that the signatures that bear the clarifications "Enrique F. Siquier - customs broker - registration 1070/3" and/or "P/Opalsen SA", inserted in Annex 2 of documentation (pages 1 back, 2/18, 29, 56/57) correspond to the legitimate ones of Enrique Francisco Siquier. - In turn, it is noted in said expert report that the signatures that bear the clarification "Enrique F. Siquier - customs broker - registration 1070/3" and/or "Enrique Francisco Siquier - reg. No. 010703" of Annex 1 of documentation (pages 1 back, 49 and 50/51), do not correspond to the authentic ones of Enrique Francisco Siquier. -

37.- Report on the operation of the import of motor vehicles, found on pages 276/281 of Annex "C".-

38.- GITE report contained in Annex "C", pages 269/273, from which it is clear that the original matrices corresponding to dispatches 23.847/94 and 16.907/94 were prepared with two different typewriters and the unitary FOB values ​​were corrected; as regards dispatch 203.360/93, it was determined that while partial No. 2 has been assigned a green selectivity channel, the copy exhibited by the DGI, which was opportunely seized from the firm "Opalsen SA", has been assigned the red verification channel. In turn, it is also noted when comparing said copies, that the total of the base values ​​of the tax, which appear in the partial in the possession of the Customs, reach, approximately, half of the figure inserted in the copies seized in the aforementioned firm, noting also that these values ​​were corrected, erased and written again with another typewriter, visibly different.

39.- Report from the Analysis and Information Division of ANA (Machinery and Transport Branch) appearing on pages 77/89 of Annex "K", which reports that with respect to the documented merchandise, the declared values ​​are not related to the reasonableness parameters that it has and that it estimates them at US$ 8.000 to US$ 10.000.

40.- Testimonial statement by Jorge Carlos Clerici, Head of the Technical Import Division of ANA, regarding the mechanism for the entry of vehicles into the country, highlighting that the customs broker is the assistant of the customs service, fulfilling the function of documenting the import process before customs; that for this purpose the user hands him the documentation and once he has it, he prepares the customs clearance matrix and presents it to the Import Division where a number is assigned to the clearance and a verification channel. He added that the broker is responsible before Customs for the presentation of the clearances.

41.- Testimonies of Marcelo Cristian González Giachino and Miguel Meni Bataglia, Inspectors of the Federal Police's Embarcaderos Division, who recognized his signature in the reports drawn up during the search carried out at the headquarters of the firm "Opalsen SA" and which appear added to pages 1936/9. In turn, the first of those named also recognized his signature inserted in the reports appearing on pages 1942/9 and 1951/3.

42.- Testimonial statements of Osvaldo Enrique Rodriguez and Pedro Di Lorenzo, DGI personnel, in which they acknowledged having been present, representing the Department, at the headquarters of the firm "Opalsen SA" on the occasion of the raid carried out on February 11, 1994.-

43.- Testimony of Juan Carlos García, Treasurer of the Banco de la Nación Argentina, Customs Branch, who stated that tax deposit slips are made out in quintuplicate, clarifying that the original remains in the Bank, copy two goes to Customs, copy three is currently retained by the Bank, but at the time of the events it remained in the possession of the branch that the DGI had within the bank, and copies 4 and 5 were kept by the depositor, one for the client and the other for the customs broker. He added, and in relation to the deposit slips, that when payment was made with checks, they were entered in the second line, but when payment was made in cash, the corresponding amount was placed in the first line, with only one exception that could occur when a person paid by check, if it corresponded to that branch and the availability of funds was verified, it was entered in the first line as if it were a cash payment.

44.- Statement by Oscar Pedro Scallabrini, treasurer of the Banco de la Nación Argentina, Plaza de Mayo Branch, who spoke in the same terms as García, clarifying that since he belongs to the Plaza de Mayo Branch of the Banco Nación, where payments to Customs can also be made, when the DGI office of the Customs Branch existed, copy No. 3 of the deposit slip was sent to that branch, once banking hours had ended. This was done for the corresponding comparison with the actual bank deposit, with the exception that the tax control was after the tax was entered, which did not happen at the Customs Branch, where the comparison of the tax by the DGI was before the interested party could enter the amount at the counter.

45.- Testimony of Raul Martinez, who at the time of the events was Vice-president of the firm "Opalsen SA", and stated that the processing of the clearances corresponding to the import of vehicles that entered through the port of Buenos Aires was entrusted, in its entirety, to the firm "Conasiq" with the negotiations being carried out with Enrique Siquier. The import duties were paid, in all cases, with a check from Banco Río, issued in the name of Banco de la Nación Argentina, for an amount equivalent to the number of units that were to be released. That "Opalsen" knew the exact amount of the duties that had to be paid at Customs, and the administrative manager prepared the check for that amount based on the number of vehicles to be released. That on some occasions a check was issued for several clearances, but always for the exact amount of the number of vehicles whose duties had to be settled at Customs. The witness stressed that these checks were always made out to the name of the Banco de la Nación, which was the only institution authorized to collect the amount of these documents. The amounts were exact because that was how they were recorded in the company's accounting and to prove the payment to each of the clients. He also stressed that the checks were given to Siquier or an employee of his company, but they never made cash payments, either in full or in part, and that two checks were never issued for the same shipment. The vehicles referred to in the incriminated shipments and which were shown to him are all of Italian origin and after their entry into the country, they were sent to the bonded warehouse, located in the headquarters of the company "Opalsen", a bonded warehouse that operated exclusively for this import. The release of the vehicles in this bonded warehouse was carried out by the intervening dispatcher without the participation of any employee of the company he represents.

46.- Testimonial statement by Angel Carlos Giannatasio, head of the Fiscal Audit Department of the DGI, who stated that the origin of the complaint was a case from the Federal Court of San Isidro. Such procedures were carried out for the sole purpose of controlling the payment of taxes on gross income and VAT by "Opalsen SA", which was carried out through the concealment of the sales chain between "Opalsen" and the dealers by making third parties appear as direct importers. From the comparison of the seized documentation with that existing in Customs, the existence of significant differences between the actual payment of taxes and the one that should have been finally made based on the operation is noted.

47.- Testimonial statement by Samuel Bernardino Félix Bustos Harm, public accountant of the National Customs Administration, who stated that DGI personnel showed him a copy of a customs clearance seized at the headquarters of the firm "Opalsen", and noted that it did not seem legitimate due to a number of particularities, for which reason he compared it with the partial copy of the same clearance existing at customs, detecting marked differences between the liquidated values. On this basis, he compared the lists that recorded the imports made by the aforementioned firm at customs in Buenos Aires, noting that, when it was a question of multiple clearances - that is, the entry of several vehicles documented in the same clearance - the purchase price per unit, and therefore, the tax to be liquidated, was significantly reduced. That for this reason, the documentation that was judged to be abnormal was sent to the intervening Court, recognizing it in the hearing of the debate, as the one that was exhibited.

48.- Testimony produced by Horacio Wernicke in regards to the fact that he had a company with Siquier to bring cars from abroad, on behalf of third parties, with headquarters on Francisco Beiró Street, but only to serve clients, because the documentation was done at the address of the firm "Conasiq".-

49.- Testimonial statement by Enrique Márquez de la Serna, who stated that he was an employee of the firm “Asotrade”, who was hired along with “Rollpac” by the firm “Opalsen SA” to bring in vehicles and sell them directly to individuals; that Asotrade decided to hire Siquier, because he was suitable for importing cars, and he was in charge of organizing the system to carry out all the relevant procedures. That “Opalsen” provided Siquier directly with all the data necessary to prepare the customs clearances. That the witness knows that Siquier received the data of the operation directly from “Opalsen” because said firm issued the forms with the same and they passed through his hands, after they were received by “Conasiq”. The witness clarified that he was the representative of the firm “Asotrade” and his function was to control Siquier’s work.

50.- Statement of Enrique Francisco Siquier. The defendant stated before the Court that the firm "Asotrade" was hired by "Opalsen" to carry out 50% of the customs clearances for import operations; that this company proposed to "Conasiq" the management of this percentage of operations given that it lacked the capacity to process clearances. After being shown the documentation in the case, he stated that the crudeness of the maneuver he is accused of is evident and that it was carried out, without a doubt, by one of his employees in complicity with customs employees. The maneuver could not have been carried out by someone with seniority in the profession because the third copy of the bank deposit slip corresponded to the DGI and, at some point, one of the third-party purchasers would claim the tax credit that emanates from it, thus exposing the maneuver. He stated that at "Opalsen" he was in contact with Martínez, who was the attorney of the firm. That he did not prepare the dispatches nor did he go to the Bank to pay the corresponding taxes, since that was the responsibility of Wernicke, Insaurralde and Salvador Ferrigno, who then delivered the receipts to Márquez de la Serna or another person. He added that the company "Asotrade" subcontracted "Conasiq" for the purposes of processing the import dispatches, with Márquez de la Serna being designated by that company to collaborate with the latter. That the dispatcher keeps partial No. 3 of the import dispatch. After the four incriminated dispatches were shown to him, he acknowledged that they are crudely falsified, and that the signatures existing on instrument No. 23.847/4 belong to him, but not with respect to the remaining ones, which do not belong to him. Regarding the aforementioned office, he alleged in his defense that he signed blank offices countless times due to the volume of operations he processed for "Opalsen."

Fourth:

Legal qualification:
The conduct displayed by Enrique Francisco Siquier, on the occasions described above, constitutes the crime of qualified smuggling, provided for and punished in art. 865 inc. "f", in accordance with article 864 inc. "b" of the Customs Code, committed repeatedly -four events- (art. 55 of the Penal Code).
This is so because, first of all, it should be noted that the conduct carried out by the document holder for the purposes of preparing customs clearances - which have already been the subject of analysis - has prevented the proper exercise of control that the customs service is responsible for carrying out over the international traffic of goods, in order to subject the merchandise in question to a customs and tax treatment different from that which would have corresponded if the operations had been carried out correctly.
In effect, through each action in question, the import dispatches were adulterated as well as certain complementary documentation, such as the declaration of the elements related to the customs value, where the net price actually paid is recorded, which will serve as a calculation basis for the purposes of determining the taxes to be paid.
It is precisely in the modification of the tax bases recorded in the customs instruments mentioned, where the purpose of obtaining a tax and customs treatment different from that which should have been carried out based on the commercial transactions carried out was reflected.
In this order of ideas, it should be noted that the use of the adulterated documents constituted the ruse used to perpetrate the illicit act, thereby affecting the primary function of essentially customs control over imports and exports, to subject the merchandise to a tax regime other than that which would have corresponded.
On the other hand, and based on the considerations made above, the figure contained in art. 865 inc. "f" of the Customs Code is also applicable, since the relationship between both illegal acts is highlighted in that, from the objective point of view and in accordance with the specific circumstances of the case, it is evident that the presentation of the adulterated documents was necessarily intended for the commission of the crime of smuggling, defined in art. 864 inc. "b" of the Customs Code.
Indeed, there is no doubt that, as stated in the type under analysis, both the customs clearance and the declaration of the elements related to the customs value are necessary documents to complete the customs operation; therefore, their adulteration or falsification is caught by the aggravating circumstance provided for in the rule of section "f" of art. 865 of the aforementioned legal body.
Consequently, the use of such documents in such a state constitutes the effective means for the stated purpose, and it is not relevant to distinguish whether it is a public or private instrument at the time of its preparation. This is so, since what is important is that such instruments reveal a falsehood by recording inaccurate data and are also essential to complete the customs operations in question, which is relevant in customs criminal matters, regardless of the traditional classification of instruments in terms of falsehood; that is, there is no distinction between public and private documents within the structure of the criminal types of the Customs Code.
Finally, it should be noted that the conducts carried out constitute four units of injustice that are independent of each other, which means that the different effects on the protected legal asset occur in a real way.
Although the 77 vehicles entered the country together, it should be noted that the entry was documented by different customs instruments, which underwent their own process of conformation, each of them complying with the requirements demanded by the criminal types.
It is relevant that each customs office records a global payment independent of the taxes settled for the transactions documented therein, without confusing them in a single act through which the relevant funds were deposited for the payment of the taxes accrued by the entry of the 77 vehicles into national territory.
On the other hand, it is true that the presentation of each of the deceptive import dispatches before the control authority activated the error that motivated the inadequate exercise of customs control, a circumstance that also leads to maintaining that each typical action contains a criminal unit closed in itself, which occur as autonomous facts.

Fifth:

Authorship and Responsibility of Siquier:
Certainly, the conduct described in the First Consideration has been displayed by Enrique Francisco Siquier, who was the customs agent involved in the import operations that concern us.
In this regard, it should be noted, first of all, that the importing firm "Opalsen SA" entrusted a grouping company of customs brokers called "Conasiq SA" with the management and customs clearance of the 77 Fiat brand vehicles, model Tipo 1.6 SX, 5-door sedan, whose introduction into the country was documented through import clearances Nos. 16.907/7, 23.847/4, 203.360/9 and 210.671/8.
Now, the last of the aforementioned firms conferred on Siquier the necessary process and diligence relating to the importation of the aforementioned merchandise, a circumstance which is reported in the first copy of deed no. thirty-five dated 23/2/93, annotated on page 1.515 of case no. 36, entitled: «Macri, Francisco and Martínez, Raúl s/inf. law 23.771» -incorporated into the debate as evidence-, by virtue of which Raúl Martínez grants, in his capacity as attorney and representative of the firm «OPALSEN SA», «SPECIAL POWER», among others, to «Enrique SIQUIER» so that, acting on behalf and representing the principal company, he may sign all types of customs documentation within the scope of the National Customs Administration.
In this way, the defendant assumed the role of customs broker by order of the firm "Opalsen SA", in order to be able to prepare the aforementioned import clearances and their complementary documentation, which are essential to complete the customs import operation, and thus, the clearance of the merchandise in question.
The above is corroborated by the opinion in point I) of the conclusion of the handwriting appraisal glossed on pages 2.252/6, which concludes with respect to import clearance No. 23.847/4 that the signature inserted on pages 1 back, 2/18, 29 and 56/57 on the stamp that reads "Enrique F. Siquier" belongs to the defendant. In other words, Siquier is the one involved in the preparation of the customs clearance in question, thereby stamping his signature on it.
This circumstance can only be evaluated taking into account the peculiar method used to prepare the aforementioned import instrument that was later presented to the customs service.
Indeed, as has been duly demonstrated, dispatch No. 23.847/4 was subjected to a double process of conformation, being materially adulterated in order to declare ridiculous purchase prices to customs, which ended up mutilating the tax base in order to achieve a lower tax settlement. It is also worth pointing out the very particular way in which said adulteration was carried out, by applying correction fluid on the pages of the dispatch where the real sums paid for the purchase of the vehicles are declared in order to be able to stamp, on them, the reduced or falsified values.
In this order of ideas, it can only be concluded that Siquier prepared the import clearance referred to in a deceptive manner to allow for the implementation of an under-invoicing mechanism that would enable it to evade customs control over the delimitation of the taxes to be collected by the administrative body.
It is also worth noting that an identical procedure is observed in the preparation of dispatches Nos. 203.360/9 and 210.671/8, which also appear signed by Siquier as customs agent, leaving aside the fact that those were not subject to calligraphic expertise because the original matrices were not found. Nevertheless, it is worth emphasizing that the mechanism of adulteration and under-invoicing has been the same as that deployed by Siquier in the preparation of customs dispatch No. 23.847/4.
However, in point II) of the aforementioned calligraphic expertise, the experts involved conclude that the signatures inserted on pages 1 back, 49 and 50/51 of import dispatch No. 16.907/7, located above the stamps referring to Siquier, do not correspond to that of the defendant in this case.
It is therefore worth asking what degree of relevance should be assigned to the aforementioned expert conclusion in relation to other elements incorporated into the process for the purposes of establishing whether the accused was involved in preparing the dispatch, as well as the nature of the same. Because assigning the expert report a determining probative value and excluding others, would lead to the existence of doubt regarding Siquier's authorship in the preparation of this specific customs instrument.
On this topic, it should be noted that if the adoption of the system of sound criticism in the assessment of evidence allows the judge to carry out a critical work on the expert opinion by which he can observe it and even separate himself from it when he has the contrary conviction, it will even allow him to remove the exclusive character of the expert evidence in order to prove one aspect of the charge - such as authorship - if the process offers other elements of conviction in this regard.
The above-mentioned caveat is intended to highlight that the accumulation of evidence incorporated into the debate proves, by itself, Siquier's responsibility in the events analyzed, despite the fact that in one of the reports the handwriting expert maintains that his signature is not included in them.
But aside from the fact that such a conclusion is in no way decisive in excluding Siquier's liability with respect to dispatch No. 16.907/7, it should be noted that, in the light of sound rational criticism, the aforementioned expert conclusions deserve some criticism on the part of the Court, since a simple analysis of the handwriting used by the defendant throughout this process reveals notable differences between them, not only in relation to those printed on different procedural documents, but even in relation to those inserted in the same procedural act. It should be noted in this regard, as an example, that although the expert took into account the evolution of the signature over the years (see copies of fs. 2.252), they lack uniformity, since in the investigation he provided in case No. 36 of TOPE 2 (see fs. 1646/1648 back), in the first of them he crosses his signature with four horizontal strokes, and yet in the last, he only does so with three.
Now, these circumstances must be assessed by the Court in order to arrive at a full conviction of the facts, since the assessment of the results of the evidence for a complete conviction must not be fragmentary or isolated, nor must it be carried out by considering each of them in isolation, nor separated from the rest of the process, but rather it must include each of the elements of evidence and their whole, that is, the evidentiary web that arises from the investigation.
In all fairness, the evidence in the case provides sufficient elements to support the claim that Siquier is the author of the maneuver to evade the customs controller by preparing or having prepared and then presenting - by himself or by others - customs clearance No. 16.907/7 in the circumstances that were duly detailed.
Indeed, the fact that there is an identical modus operandi in the preparation of the aforementioned import clearance and its complementary documentation in relation to the way in which the remaining customs clearances were integrated cannot be overlooked. This is so because if one takes into account that Siquier prepared and signed clearance No. 23.847/4 using devices that turn out to be the same as those existing in the other import instruments, with his seal appearing inserted in each one of them and being, in addition, he who had the power to manage the clearance of the merchandise corresponding to the four import instruments before customs, it is only appropriate to affirm that it was the defendant who prepared or ordered the preparation of each one of said instruments, with the characteristics of falsehood and under-invoicing that they presented, through an identical mechanism of adulteration.
On the other hand, it cannot be overlooked that the magnitude of the operations in question, added to the hierarchy of the importing firm and the quality of the merchandise whose import was documented in the relevant customs clearances, forms a set of elements that exclude any possibility of rationally maintaining that the clearing agent who was entrusted with the processing of the operation was completely unrelated to the preparation of the documentation and its presentation to customs, delegating it to employees whose management he did not supervise either.
Thus, it must be concluded that, beyond the possible intervention in the events of employees or dependents of Siquier, in charge of whom he left the performance of acts linked to his professional practice in the preparation of customs documentation, the effective and current exercise of the domain of configuration of the typical fact has been exercised in this case by the accused, who, as has already been demonstrated throughout this case, exercised a relevant sovereignty of typical configuration.
On this basis, we can affirm that the accused had a superior control over the facts than the other possible parties involved, based on the significantly unequal decision-making power situation in which the accused found himself by virtue of the greater power conferred upon him by his status as a customs agent in charge of documenting the legal entry into the country of the merchandise imported by the firm "Opalsen SA". As a consequence of this, the facts are presented as the work of a will that directs the event towards its typical consummation.
In this regard, all the testimonies referring to this point are in agreement, in the sense that Siquier was hired as a customs agent due to the excellent professional knowledge that the accused had on the subject. A company was not hired for its administrative structure -which Siquier did have to set up later- but the services of the accused were required, purely and simply, by virtue of his knowledge. This brings with it, as a logical consequence, that the strategy for this section of the import was devised and carried out by the accused, who is why he was undoubtedly the one who programmed the work and calculated, in an exact manner, the taxes to be paid for the import of the vehicles, a circumstance that shows the fact that Siquier could not have ignored, in any way, what each car had to pay in taxes.
To this we must add that Opalsen's dealings were direct with Siquier in the operations that concern us, despite being subcontracted - as stated by Martinez (administrator of Opalsen) and De la Serna (employee of Asotrade), and even by Siquier himself - which proves that he was the one who had control over the entire operation.
Therefore, the accused cannot claim that the maneuvers were carried out by some unfaithful employee of his company in conjunction with Customs employees, because - it should be noted again - he was hired to carry out the procedure based on his professional mastery of handling customs documentation.
This does not mean that certain administrative tasks were not carried out by its employees, which was their job, such as filling out the forms with all the information provided by "Opalsen", filling out the invoices, searching for and taking documentation to both the importer and customs, and even making payments to the respective banks. However, it should be noted that controlling the amount to be taxed on each vehicle, verifying that the importer gave the corresponding amount, making the deposit, and controlling the final documentation for the nationalization of the vehicle and its delivery to the purchaser, are non-delegable tasks since they are the responsibility of the intervening dispatcher.
In this sense, the excuse given by the accused when he tries to attribute responsibility to one of his employees is unacceptable due to the crudeness of both the forgery and the maneuver in general, since the documentation used necessarily had to pass through his hands, both on the way to and from Customs, and if it was made by some unfaithful employee he cannot claim ignorance of what happened; especially when the ruse was visible to the naked eye, which was acknowledged by the accused when he made his statement during the trial hearing.
The detailed analysis of the operation supports this, if we take into account that, in compliance with the agreement between the parties, "Opalsen SA" gave Siquier (or some employee) a check drawn in favor of the Banco de la Nación Argentina for the payment of the full taxes on a certain number of cars. This check had only one purpose and was to pay the taxes corresponding to a specific number of cars. This circumstance was perfectly clarified by the witness Martinez during the debate, and is corroborated by other records in the case that will be analyzed later.
Now, if one takes into account that the importing firm only issued checks at Siquier's request, which were issued to the order of the Banco de la Nación Argentina, to be deposited into the tax collection account that the Customs has in said entity, how could it be argued, rationally, that an employee of the accused could obtain some economic benefit by using documents that could never be collected.
However, the irrationality of this allegation does not end with the argument set out above, since it should be noted that in the offices under analysis, the deposits were made through two receipts, one containing a global amount identical to the sum for which the check was issued, and the other containing a cash balance that was not supplied by the importer but was essential to complete the liquidation of the relevant taxes in order to release all the vehicles, based on the low values ​​declared to the National Customs Administration.
From the above it can be concluded that it is totally absurd to think that an employee of Siquier would make expenditures on his own account to carry out a criminal operation from which he could never obtain any profit. This conclusion is based on two circumstances already described: on the one hand, "Opalsen" never gave out cash, and on the other, the checks issued by this firm had a single beneficiary: the Banco de la Nación Argentina.
It should be noted in this regard that the documentation existing in each of the customs offices allows us to specifically note that all the checks drawn by "Opalsen SA" to the order of the Banco de la Nación Argentina to be used to pay the taxes that the operations in question required, were effectively deposited into the import tax collection account that Customs has in the aforementioned bank. Consequently, this implies that the documents could not be collected in any other way than through import operations, which obviously, are beyond the scope of the organization of mere employees.
It is suggestive in this regard that the documents entered into the bank but not attributed to the offices in question appear to have been cashed at the Plaza de Mayo branch of the Banco de la Nación, while the check that was affected by the transactions in question was cashed the same day or the next day at the Aduana branch of the same financial institution.
The accuracy with which the checks were issued by the firm "Opalsen SA" clearly emerges from the analysis of the numerous elements of evidence incorporated into the process and which were detailed in the Third Recital.
Thus, with respect to office No. 16.907-7, whose documentation is found in Annex I, it is worth highlighting the tax deposit slip No. 9511271, glossed on fs. 54, where the deposit of check No. 20274579 from Banco Río is detailed, for an amount of $39.816. The tax to be paid being $45.273 based on the false declaration recorded in the office matrix, that other amount was completed with a cash payment of $5.457, according to deposit slip No. 9511270 which appears on fs. 52.
In said office, taxes corresponding to 15 cars were paid, and taking into account that each of them had to pay taxes in the amount of $ 5.688, the firm "Opalsen" issued, for this operation, checks Nos. 20274578/79/83 and 84, for $ 22.752, $ 39.816, $ 11.376 and $ 11.376m respectively, which totals the sum of $ 85.323. However, Siquier paid for this operation only with the second of the checks, that is, for an amount of $ 39.816, plus the cash bonus reported in the receipt on fs. 52.
These four checks, photocopies of which appear on pages 154/155 of the aforementioned annex, are issued in the name of the Banco de la Nación Argentina and cashed according to the stamps inserted therein, also appearing as deposited in the respective account, as shown in the Banco Río statement, glossed on pages 204.
If the value of each of the checks is compared and divided by the actual tax that each car had to pay - $5.688 - it can be seen that each of them corresponds to the cancellation of an exact number of vehicles. Thus, the first one corresponds to 4 vehicles, the second to 7, and the remaining two to 2 each, which totals 15 cars, which is the amount recorded in the dispatch.
Once the checks have been issued by the company "Opalsen SA" and delivered to Siquier -or to one of his employees- the falsification operation begins. To do this -and as already stated-, first the amounts of the matrix are changed, reducing the price of the vehicle by approximately 92% and the amount corresponding to the new figures is paid into the Banco de la Nación Argentina.
The reduction in the price paid for the vehicles totaled a global amount that was widely exceeded by the sum of the checks issued by the importing firm, since the latter issued documents to pay taxes for almost 100% more than those actually paid to customs for the operation. This circumstance was obviously planned in advance by the document-holder to pay all the taxes corresponding to the clearance, in order to use only one of the checks, integrating a small amount in cash, to use the remaining documents in another import operation.
Once the reduced fees had been paid and Siquier had the documentation in his possession, the last step was to settle the transaction for the firm "Opalsen" and release the car for delivery to the buyer.
The first step, that is, the liquidation to «Opalsen SA» was carried out in the following manner: for each released car, a bank deposit slip is drawn up, which shows that all taxes were paid and on each of them the number of the check that was given to it at the time and with which the taxes corresponding to each unit were paid is recorded. If each of these slips is analyzed in detail, it will be observed that the sum of them shows the four checks that the importer issued, charged to the respective units that would be released, a circumstance that eliminates any trace of suspicion on the part of those who keep the accounts of the issuing firm with respect to the use of documents and the incorrect payment of taxes. The spreadsheet provided by «Opalsen SA» and which appears attached on pages 153 and XNUMX is more than illustrative. XNUMX of the aforementioned Annex I, which details the application of each of the checks to the released units, even recording the name of the clients to whom those units belonged.
It should also be noted that only Siquier was authorized to release the units stored in bonded warehouses in each of these offices, which ensured control of the entire operation.
It is also essential to highlight that a similar maneuver to the one described above arises from the comparison of the documentation existing in the other customs instruments, and the elements of conviction on which said conclusion is based must be indicated in this regard.
Thus, in office No. 203.360-9, whose documentation appears added in Annex III, corresponding to the import of 25 cars, "Opalsen", to pay the corresponding taxes, issued the checks from Banco Rio to the order of Banco de la Nación Argentina, Nos. 20274548/4540/4546/4545, for the amount of $17,064, $73.931, $25.596 and $25.596, respectively (see photocopies of pages 462/463), which totals the sum of $142.187.
However, for this operation the sum of $75.454 was paid, through the second of the mentioned checks (see payment certificate on fs. 27 of annex III), and a cash deposit, that is, the sum of $1.523 (certificate glossed on fs. 25).
There is no doubt that "Opalsen" issued checks to pay the taxes corresponding to the importation of the 25 vehicles for a unit value of $5.687 (13 cars) and $5.688 (12 cars), which totals an amount of $142.187.
In relation to office No. 210.671-8, the documentation for which is attached in Annex IV, "Opalsen SA" issued Banco Río checks Nos. 20274547 ($17.864), 20274549 ($17.864), 20274859 ($45.584), and 20274538 ($28.435), totaling the sum of $108.067, in order to pay the liquidation of 14 vehicles at an amount of $5.688 each, and the remaining five, at $5.687.
The checks provided by "Opalsen" for an amount of $ 14.220 and 25.596, which, among others, appear added to pages 120/121, do not correspond to the transaction in question. From the analysis of the rest of the documentation in the aforementioned annex, in particular, from the study of the copies of the bank deposit slips, as well as the current account statement that appears on page 27 of the principal, it is concluded that the checks used to pay this transaction were those mentioned in the preceding paragraph, highlighting that the document No. 20274538 for an amount of $ 28.435 was omitted to be included in the documentation, which coincides with the liquidation of the five vehicles that paid $ 5.687 each.
In relation to customs clearance No. 23.847-4, the documentation in the case and in Annex II only allows us to prove that "Opalsen SA" issued check No. 23215818, for the amount of $51.192, to be charged to the payment of taxes on nine of the vehicles documented at a unit price of $5.688. Nevertheless, the undersigned have no doubt about the existence of other checks issued by the importer to pay for the remaining nine vehicles at a unit amount identical to that already indicated. The existence of the same "modus operandi" in this particular operation, with respect to those already detailed, is made clear by the fact that here there is also a cash deposit to be used to pay taxes, as can be seen from the original deposit receipt No. 9613800 listed on page 58 of Annex II.
On the other hand, Siquier stated in his statement that he recognized the existence of a maneuver by which the four import dispatches were adulterated, but that this did not imply his responsibility in the events, since he transferred it to some unfaithful employee who surely carried it out in conjunction with Customs employees. However, taking into account that in order to close the operations under study, the payment vouchers were falsified with the stamp of the Banco de la Nación Argentina, in order to insert the values ​​​​actually delivered by the importer, to justify before the same the destination of the cards, it is suggestive that it is precisely the defendant who had official stamps, including from banking institutions, at his home, as documented in the search carried out there (see pages 392/393 of case No. 36 of TOPE 2 that runs by rope), in the report of the Legal Department of the General Tax Directorate (see pages 1641/1642 of the aforementioned file).
On the other hand, the defense argued, based on Siquier's statements, that the maneuver deployed in the present proceedings would be clearly noticed by the corresponding agencies, beyond the investigation jointly carried out by Customs and the DGI, since this would necessarily occur when each of the participating individuals appeared before the tax collection agency to deduct their tax credit generated by the payment of VAT on the purchase of their respective vehicles.
This argument lacks any basis for the undersigned, since the purchasers were the final consumers of the foreign trade operation that was carried out through the aforementioned import offices, and since said tax was indirect in nature, and therefore burdensome for the consumer, individuals could not have any tax credit to claim before the DGI.
The invoices given to individuals by the various vehicle dealerships - intermediaries in the transaction in question - are very illustrative in this regard, and are added to pages 523, 991, 1021, 1047, 1062, 1209 and 1324, which are taken as an example to prove that the purchasers Holowati, Menna, Cabral, Piccolo, Bertoia, Averza and Sottile, respectively, appear in said documents as final consumers.
Finally, it should be noted that these maneuvers were carried out only in multiple offices, that is, those where the procedure was carried out globally for several vehicles, and in this regard Siquier alleged that such type of operation was done to facilitate the work of Customs due to the large number of car imports made by "Opalsen SA". Nothing could be further from the truth than this argument, since, from the simple observation of the customs list referring to the operations of the importing firm, it is observed that the majority of the vehicles entered individually - or at most two at a time - and that it is precisely the four incriminated offices - those that documented the entry of a large number of cars - where the under-invoicing was carried out, and the only vehicles, on the other hand, in which the headquarters of the firm "Opalsen SA" functioned as a bonded warehouse.
From all the above and from the application of the rules of logic and experience, based on objective evidence, the undersigned are certain that Enrique Francisco Siquier is the author of the maneuvers deployed in the proceedings, through the preparation of the four import dispatches, repeatedly mentioned, as well as the complementary documentation of the same, in such a way as to fraudulently conceal from the customs comptroller the real values ​​of the import operation in question in order to liquidate a smaller amount of taxes.

Sixth:

Graduation of the sentence:
In order to determine the legal-criminal sanction to be imposed, this Court takes into account the nature of the actions carried out by the accused, the means used, the extent of the damage caused, the quality of the motives that led him to commit the crime and, especially, the undersigned have considered the personality and characteristics of the accused as an aggravating factor.
In this regard, the context in which the conduct that we judged in the hearings held on November 25 and 27 of this year has been carried out must be assessed.
And in this regard we cannot ignore the responsibility qualified by the education, experience and functions specifically assigned to Enrique Francisco Siquier.
Indeed, as a customs broker, the defendant was an indispensable assistant to the customs service, in which - based on the responsibilities conferred by Chapter One, Title II of the Customs Code (articles 36, following and concordant) - the company had entrusted him with an essential task for the effective control of the entry of merchandise into our national territory.
This was so because the responsibility of cooperating so that this control was not circumvented had been placed on the accused, because in these times of severe corruption, it was necessary that the entry of vehicles be duly registered in terms of quantity, quality and cost, so that such entry would not lead to unfair competition that would harm the national production of vehicles.
And what did the accused do? As the perpetrator, he helped to allow cars to enter the market that were being delivered evading the payment of taxes, which should have been paid into the public treasury to help alleviate the budget deficit.
This was the case of an assistant in the customs service, who displayed antisocial behaviour that was highly detrimental not only to the national economy, but also to public morality, as his actions contributed to further discrediting the customs service, which has been called into question by numerous manoeuvres that must be repressed if we want to avoid the collapse of republican institutions.
Since the accused, despite his university and professional training, instead of helping with customs control and the correct payment of taxes, became the author of an evasion that he himself should have helped to avoid, he must endure a prison sentence that will allow him to reflect, both for himself and for those who perform similar functions, and in a broader field for society, taking into account the purpose of prevention, both special and general, of the penalty, that in Argentina justice will continue to inexorably fulfill its role as guardian of citizenship, taking an active role in putting things in their place and in their hinges.

Seventh:

Back:
According to the result of the trial, the costs must be borne by Enrique Francisco Siquier, in accordance with the provisions of arts. 530 et seq. of the Criminal Procedure Code of the Nation.

For all these reasons, and in accordance with the provisions of arts. 396, 399 and 403 of the Code of Criminal Procedure, this Court,

FAILURE:

I) SENTENCEING the accused ENRIQUE FRANCISCO SIQUIER, with the other personal conditions listed "ut supra", as criminally responsible for the crime of IMPORT SMUGGLING aggravated by the presentation to the customs service of adulterated documents necessary to complete the customs operation, with the purpose of subjecting the merchandise to a customs and fiscal treatment different from that to which it corresponded, committed in a REPEATED manner - four events -, to the following penalties: a) FOUR YEARS OF PRISON, TO BE SERVED EFFECTIVELY; b) LOSS of the concessions, special regimes, privileges and prerogatives that he enjoyed; c) SPECIAL DISQUALIFICATION FOR FOUR YEARS from engaging in commerce; d) PERPETUAL SPECIAL DISQUALIFICATION from serving as a member of the security forces; (e) ABSOLUTE DISQUALIFICATION FOR EIGHT YEARS from serving as a public employee or official; and (f) DISQUALIFICATION provided for in article 12 of the Penal Code, for the duration of the sentence, with the person appointed being subject to the guardianship of the Civil Code for the incapacitated (articles 12, 40, 41, 45 and 55 of the Penal Code, and articles 865 paragraph "f", in accordance with 864 paragraph "b", 876 and 1026 of the Customs Code);

II) IMPOSING THE COSTS of the trial on the convicted person, taking into account the result of the same (arts. 530 et seq. of the Criminal Procedure Code of the Nation).-

III) NOT REGULATING the fees of Drs. Oscar Luis Rosón and Gustavo Alberto LLaver, defense attorneys for the convicted person, because the first did not comply with the provisions of art. 2 of law 17.250, and the second, pursuant to the provisions of art. 10 of law 21.839;

IV) NOT REGULATING the fees of the experts Ruben A. Guglielmo (calligrapher), Marisa V. Noceti (Italian language translator) and Annis Syriani (psychiatrist), in all cases for not having complied with the provisions of art. 2 of law 17.250.-
Register, notify, gloss over the incidents that are running on the line, practice the corresponding communications and, opportunely, ARCHIVE.-