Maryland District Court Rejects ACCG's Attempt to Relitigate Matters Already Decided in Ancient Coins Case

The United States District Court for the District of Maryland has said no to the Ancient Coin Collectors Guild’s (ACCG) request to challenge issues previously argued in the case of Ancient Coin Collectors Guild v. U.S. Customs and Border Protection.

Judge Catherine Blake, writing a June 3 memorandum opinion in the matter of U.S. v. Three Knife-Shaped Coins Et al., rejected the ACCG’s plea to relitigate a challenge to the validity of import regulations authorized by the Cultural Property Implementation Act (CPIA). Her decision also halts a repeat of arguments concerning the decision made by U.S. authorities to enact import protections covering ancient Chinese and Cypriot coin artifacts in jeopardy of pillage, saying this matter had already been addressed.

In fact, the Fourth Circuit Court of Appeals decided in 2012 that the federal government properly identified Chinese and Cypriot coins subject to U.S. import restrictions under the CPIA and that the detention of the coins by customs officials was proper. The appeals court pointed out that, under these circumstances, the burden shifted to the ACCG to prove that the import of the coins was lawful.

Judge Blake’s two page opinion declared that “it is abundantly clear that the claimant, Ancient Coin Collectors Guild (“the Guild”) seeks to expand the scope of this [federal district court] forfeiture action well beyond the limits set by the Fourth Circuit …. The Fourth Circuit’s opinion forecloses any further challenge to the validity of the regulations.” The judge added:

As the government notes in its motion to strike the initial answer, much of the [ACCG’s] answer and most if not all of the affirmative defenses seek to relitigate issues concerning the validity of the regulations and the government’s decision to impose import restrictions on certain Cypriot and Chinese coins. For example, in its Surreply opposing the motion to strike, the Guild suggests that the government will be required to establish that the coins were “first discovered within” and  “subject to the export control” of either Cyprus or China. (Surreply, ECF No. 18, at 1-2.) The Guild is not correct. This argument also is foreclosed by the Fourth Circuit’s opinion. Ancient Coin Collectors, 698 F.3d at 181-82.

The ACCG has responded by filing a motion to reconsider. In court papers filed this week, the Guild has contended that the “first discovered” argument is central to due process and must be litigated:

Due process afforded under the U.S. Constitution, the governing statute, and general principles of forfeiture law, all place the burden on the government to establish a factual basis for its contention that the coins at issue were “first  discovered within” and “subject to the export control” of either Cyprus or China.

The ACCG’s “first discovered” claim maintains that the U.S. State Department and CBP acted outside their authority by placing CPIA import restrictions on coins of certain types without initially showing that they were "first discovered" within their countries of origin. The Fourth Circuit has already struck down this claim, saying “We are not persuaded,” explaining that "State and CBP are under no obligation to list restricted items with more specificity than the [CPIA] statute commands, and they are certainly not required to impose restrictions on a coin-by-coin basis. Such a requirement would make the statutory scheme utterly unworkable in practice.”

The battle of U.S. v. Three Knife-Shaped Coins traces its roots to 2009 when the Guild transported ancient coins from London to Baltimore to start a test case. The ACCG declared to U.S. Customs and Border Protection (CBP) that the coins were from China and Cyprus but failed to offer information about any known provenance. CBP took custody of the coins, and the Guild started litigation to challenge the validity of the CPIA’s cultural heritage import protections. After the ACCG lost, the U.S. Attorney in Maryland filed a forfeiture complaint in May 2013 to retain the coins. The ACCG filed a response soon thereafter.

The Maryland federal court is expected to rule on the ACCG’s motion to reconsider once a reply is offered by the government. The court will also set a discovery schedule as the case proceeds to trial.

Meanwhile, the ancient coin lobby has raised the possibility of a "coin looter's exemption" being proposed by Congress while the present district court action continues. Such an exemption to the CPIA could potentially affect the current litigation. The Lawyer's Committee for Cultural Heritage Preservation and the Archaeological Institute of America have issued calls to action in response.

A copy of the court's decision and the ACCG's motion to reconsider may be found on the Guild's web page here.

By Rick St. Hilaire Text copyrighted 2010-2014 by Ricardo A. St. Hilaire, Attorney & Counselor at Law, PLLC. Blog url: culturalheritagelawyer.blogspot.com. Any unauthorized reproduction or retransmission of this post is prohibited. CONTACT INFORMATION: www.culturalheritagelawyer.com

Accusations, Embargoes, and More of the Same for Baltimore Coins Test Case

Both the government and the Ancient Coin Collectors Guild (ACCG) have filed new court papers in the bitterly contested case of U.S. v. Three Knife-Shaped Coins, Twelve Chinese Coins, and Seven Cypriot Coins. The new pleadings, filed in Maryland, follow on the heels of last month's round of action.

A Motion to Strike to filed by government lawyers on September 17 criticizes the ACCG for arguing matters already decided by an appeals court last October. The prosecutors write:

Most of Claimant's responses to the Verified Complaint raise issues that were resolved by the Fourth Circuit in its 2012 decision. In particular, in its responses to the allegations in the Complaint, and in most of its affirmative defenses, Claimant seeks to challenge the underlying basis for, and the procedures used to draft and promulgate, the regulations and procedures implementing the Convention on Cultural Property Implementation Act (CPIA). Those issues have been resolved, and the Fourth Circuit's decision now represents the law of this case. Accordingly, the court is no longer concerned with, and Claimants may not re-litigate, why or how the applicable statutes and regulations were enacted. Nor are the parties or the court concerned with whether the defendant property should have been designated as archaeological material covered by those statutes and regulations. The only issue is whether these particular coins are so designated, such that they are subject to forfeiture in this proceeding.

Accordingly, the Government is moving to strike from the Answer any response or affirmative defense that challenges the forfeiture action on the ground that the statute and applicable regulations were not properly implemented. In addition, the Government moves to strike Claimant's attempt to re-litigate, by way of an affirmative defense, whether the Government is required to prove that the defendant property was first discovered in Cyprus and China, and to strike Claimant's attempt to assert an innocent owner defense on the ground that such a defense is not available in this case as a matter of forfeiture law.

The government also charges the ACCG with being ambiguous, asking the court to order the trade group "to provide a more definite statement--or simply to withdraw--the responses" in last month's pleadings "that are so vague and ambiguous that the Government and the court are left to guess at the basis for Claimant's position, or even what that position may be."

On September 27, the ACCG submitted a Response saying that "the Guild respectfully requests that the Court deny the Government's Motion as moot."

The ACCG protests in a companion Amended Answer to the Verified Complaint that it should be allowed to relitigate the legal issues it lost in the appellate court:

In prior litigation between the parties, the Government represented to this Court that the Guild would be entitled to litigate the issue of whether the defendant property was "first discovered within" and "subject to the export control" of either Cyprus or China in the context of a forfeiture action. Moreover, in this litigation, the Government itself has put its own actions at issue by asserting that it complied with the CPIA's procedures in promulgating import restrictions.

The ACCG proceeds to jump on the embargo bandwagon [see also U.S. v. Peruvian Artifacts] by repeating several times that the federal district court has jurisdiction to hear the case but that the "the Court of International Trade also has 'embargo jurisdiction' that may supersede that jurisdiction."

Accusations pepper the ACCG's pleadings as the trade group makes efforts to paint a picture of intrigue and wrongdoing within the U.S. State Department, writing:

Plaintiff s claims are barred in whole or in part because, on information and belief, mid and/or low level employees of the U.S. Department of State, working in concert with members of the archaeological community ideologically opposed to private collecting, engineered the imposition of import restrictions on coins of "Cypriot type" in potential violation of Government standards of conduct, particularly those relating to impartiality.

Plaintiff's claims are barred in whole or in part because, on information and belief, then Undersecretary of State Nicholas Bums ordered import restrictions on coins without regard to the procedures found in the CPIA as a "thank you" for receiving an award from Greek and Greek Cypriot lobbying groups that were working in concert with mid and/or low level State Department employees and/or members of the archaeological community ideologically opposed to private collecting.

The Fourth Circuit in its decision last year gave examples of how government authorities followed the CPIA law with regard to Chinese import restrictions. The appeals court also joined with the lower federal district court, reiterating that the State Department "complied with the statutory requirements in placing import restrictions on Cypriot coins."

This post is researched, written, and published on the blog Cultural Heritage Lawyer Rick St. Hilaire at culturalheritagelawyer.blogspot.com. Text copyrighted 2010-2013 by Ricardo A. St. Hilaire, Attorney & Counselor at Law, PLLC. Any unauthorized reproduction or retransmission of this post is prohibited. CONTACT INFORMATION: www.culturalheritagelawyer.com

Litigants Remain Far Apart in Ancient Coins Forfeiture Case

"In short, the parties have dramatically different views as to how this case should proceed." That is the conclusion of the U.S. Attorney's Office in Maryland after a July 15 meeting with the Ancient Coin Collectors Guild (ACCG) to discuss court scheduling. The ACCG, meanwhile, slapped the government with discovery requests.

Recent pleadings filed by both parties show just how wide the divide is between the two sides.

The battle of U.S. v. Three Knife-Shaped Coins, Twelve Chinese Coins, and Seven CypriotCoins is the latest round in a seizure and forfeiture contest that began four years ago when the ACCG transported ancient coins from London to Baltimore, declaring to Customs and Border Protection (CBP) that they were from China and Cyprus but with no known provenance or find spots. CBP took custody of the coins, initiating a series of court battles by the ACCG that have dealt the trade organization successive defeats in federal district court, the circuit court of appeals, and the U.S. supreme court.

The current court case restarted in the district court this spring when the U.S. Attorney filed a forfeiture complaint in May. The ACCG, the claimant, filed defenses in a response the following month.

Federal prosecutors in their most recent pleading dated July 16 charge that the ACCG wishes "to attempt to re-litigate many if not all of the issues that were addressed by this court and the Court of Appeals in 2011 and 2012." Yet they add that "none of the issues that were litigated in the previous lawsuit are before the court in this case, and the parties should not have to invest judicial resources in conducting discovery on those issues."

The prosecutors further assert that the ACCG "raises defenses [in the case] that are so vague that it is impossible to know what issue Claimant intends to raise or whether Claimant seriously intends to contest the allegations in the Government’s complaint."

The government's lawyers highlight seemingly stretched defenses by the ACCG that they say should be addressed by the court as a matter of law. "For example, [the ACCG's] Affirmative Defense 2 asserts the innocent owner defense...It is undisputed, however, that Claimant is the perpetrator of the conduct giving rise to the alleged forfeiture. As a matter of law, the perpetrator of the conduct giving rise to the forfeiture cannot be an innocent owner, because such person cannot show that he unaware of that conduct ...."

The ACCG fires back in its own July 16 court filing by demanding discovery from the government. It writes, “This is a far different case. Here, the government seeks the forfeiture of the Guild's coins, presumably so they can be packed off to Cyprus and China as trophies." The trade group argues that it "is allowed discovery as to why the government believes the Guild's coins were 'first discovered within' and 'subject to the export control' of either Cyprus or China ... before the government can take the Guild's coins and pack them off as trophies to cultural bureaucracies in China or Cyprus."

The ACCG adds that "it is entitled to discovery into whether the government complied with the significant substantive and procedural constraints found in the CPIA before imposing import restrictions on Cypriot or Chinese coins." The Claimant contends that "the Guild also has good reason to believe some of the exact same mid and lower level State Department employees who engineered the controversial decisions imposing import restrictions on Cypriot and Chinese coins also guide CBP in deciding whether to detain and seize so-called 'cultural property,' presumably including the Guild's coins."

District Court Judge Catherine Blake issued a simple order on July 26, 2013:

The government is not required to respond to the interrogatories, requests for production, or requests for admission served by defendants’ counsel at this time; no discovery will proceed (unless agreed to) pending the resolution of the government’s motion which will seek to strike defenses and/or clarify the issues to be litigated in this case.

Motions are expected to be filed in the case through November.

This post is researched, written, and published on the blog Cultural Heritage Lawyer Rick St. Hilaire at culturalheritagelawyer.blogspot.com. Text copyrighted 2010-2013 by Ricardo A. St. Hilaire, Attorney & Counselor at Law, PLLC. Any unauthorized reproduction or retransmission of this post is prohibited. CONTACT INFORMATION: www.culturalheritagelawyer.com