I'm a little late, but here is a summary of the Government's Summary Judgment motion in the Langbord
SanctionII
Posts: 12,592 ✭✭✭✭✭
The Government's motion is directed at the Fourth Cause Of Action and the Fifth Cause Of Action contained in the complaint filed by the Langbords.
The Fourth Cause Of Action of the complaint is titled "Due Process Of Law - Fifth Amendment".
Through same the Langbords assert that the government, by taking possession of the coins on 9-22-2004 violated the Langbords' due process rights in violation of the Fifth Amendment of the Federal Constitution. The Langbords assert that they were deprived of their property (the 10 1933 double eagles) "without any process whatsoever" [Complaint, paragraph 123] and that they are entitled, at a miminium, to "notice of the statutory authority and allegeations of fact pursuant to which the Coins have been seized and confiscated; an opportunity to be heard and present arguments and/or evidence in opposition to the seizure and confiscation; an independent adjudication, by an impartial and duly constituted authority, of the lawfulness or unlawfulness of the seizure and confiscation; and judicial review" [Id.]
Through same the Langbords allege that the federal district court has inherent equitable power and statutory power and authority to declare that the seizure and confiscation of the coins violations the Fifth Amendment and to order the return of the coins; or alternatively to order the government to afford the Langbords due process in connection with the coins.
The Fifth Cause Of Action is titled "Unlawful Seizure - Fourth Amendment".
Through same the Langbords assert that the government ever applied for a warrant authorizing the seizure of the coins, that at no time has the government present proof evidencing probable cause to seize the coins and that by seizing and confiscating the coins the government has violated the Langbords right to be secure in their persons, property and effects in violation of the Fourth Amendment of the Federal Constitution [Complaint, paragraphs 127-129].
Through same the Langbords allege that the federal district court has the inherent equitable power and statutory power and authority to order the return of the coins.
The government's recently filed motion requests that the court grant summary judgment in its favor against the Langbords on the Fourth and Fifth Causes Of Action of the complaint.
In civil lawsuits, trials are designed to have a jury (or a judge) receive evidence and determine what the "facts" of a case are (after which the "law" is applied to the facts and a the result required by the law is determined). Conflicting evidence can be presented at trial [i.e. one eye witness says the light green and another witness says the light was red]. The jury or judge listens to the evidence and decides who to believe [i.e. the witness who said the light was green]. The jury or judge determines what the "true" facts are.
In many cases, facts are discovered which turn out to be undisputed, since all parties to the lawsuit agree to these facts [i.e. that the 10 double eagles are dated 1933 and are genuine].
To avoid the time and expense of trial on some or all claims, a party can bring a summary judgment motion. This type of motion requires that the party bringing the motion present the evidence that has arisen in the case and argue that this "evidence" is undisputed. The opposing party has to agree that the evidence is undisputed, or alternatively disagree and present his/her own evidence which he/she claims creates a factual dispute.
If the evidence is truly undisputed, then the theory goes that there is thus no reason to have a trial [which is designed to determine what the true facts are from conflicting evidence]. All that needs to be done is to have the court simply apply the law to the undisputed facts to come up with the correct result.
So with the above background information about the complaint, the motion and summary judgment in general, below is a summary of what the government is arguing in its motion.
The government is stating that on 9-22-2004 Roy Langbord, Barry Berke and representatives of the government (Mint and Secret Service) met at a bank to open a safe deposit box, view the coins and allow the government to take possession of the coins.
The goverment states that the Langbords argue the government having possession of the coins transferred to it constitutes an illegal seizure and due process violation, since the Langbords claim that before the transfer of the coins, they had an "agreement" [an unwritten and unexpressed implied agreement] with Mint representatives by which the parties would attempt to negotiate an award or other monetary deal for the Langbords, and if no deal was reached, the government would commence a forfeiture action for the coins
The government states that there is no evidence of the creation of an implied in fact agreement committing the government to commence a forfeiture action in the event no reward deal was reached, and that to the government the Langbords' transfer of the coins to it was a "voluntary repatriation of numismatic treasures to their rightful owner-the United States Of America-and the Langbords were citizens returning stolen property to the government who sought a reward for their rectitude."
The government states that the presence of an "agreement" between the government and the Langbords is the "keystone" supporting their Fourth and Fifth Causes of action [which the government claims are the only causes of action that the Langbords may be entitled to a jury trial]; that the purported agreement is not memorialized in writing; that there is no evidence that the parties expressly discussed a forfeiture action; that there is no evidence that parties engaged in a discussion in which the word forfeiture was used; and that the Langbords Fourth and Fifth Causes of action are based upon Mr. Berke's subjective, unilateral belief-never articulated to the government before the transfer of the coins on 9-22-2004-about the kind of litigation that would follow if no deal was struck.
The government seeks summary judgment on the Fourth and Fifth Causes Of Action because-as a matter of law, applied to undisputed material facts-there is no enforceable agreement between the Langbords and the government committing the government to file a forfeiture action. The government states that since there was no enforceable agreement, the transfer of the coins to it on 9-22-2004 was not a seizure and was instead a voluntary surrender.
The government claims that in the alternative, if the court does not grant summary judgment, it wants the court to order Mr. Berke to answer questions at a follow up session of his deposition [he has given a deposition in the case already (which is most unusal) and objected to many questions on the grounds of various privileges].
The evidence presented by the government [in the form of declarations of government (Mint) employees] shows that on 8-25-2004, 9-15-2004 and 9-22-2004 meetings took place between Mr. Berke, Mint representatives, Secret Services representatives and Roy Langbord and that on 9-21-2004 Mr. Berke faxed a reservation of rights letter to a Mint representative. The government asserts that in these meetings no agreement, express or implied, was ever entered into.
The government also asserts that even if an "agreement" was present, it would be unenforceable since the governmental representatives Mr. Berke was dealing with did not have any authority to enter into any agreements on behalf of the government (and that people who deal with the government have the burden to make sure that the governmental representatives that they deal with have the authority to bind the government to a deal; and that failing to do so puts them at risk for having no contractual against the government based upon the lack of an enforceable agreement).
It will be interesting to see what Mr. Berke and the Langbords file in response to the motion. I would find it surprising that Mr. Berke would not have adequately analyzed things and documented things in advance of disclosing the existence of the coins to the government and in advance of the 9-22-2004 transfer of the coins to the government.
The government's motion shows that it does not want to find itself in a position where it has to go into court for a jury trial with the jury having to decide if the 9-22-2004 transfer of the coins was an illegal seizure and confiscation of the coins or simply a voluntary surrender of government property to the government.
Interesting Wot?
The Fourth Cause Of Action of the complaint is titled "Due Process Of Law - Fifth Amendment".
Through same the Langbords assert that the government, by taking possession of the coins on 9-22-2004 violated the Langbords' due process rights in violation of the Fifth Amendment of the Federal Constitution. The Langbords assert that they were deprived of their property (the 10 1933 double eagles) "without any process whatsoever" [Complaint, paragraph 123] and that they are entitled, at a miminium, to "notice of the statutory authority and allegeations of fact pursuant to which the Coins have been seized and confiscated; an opportunity to be heard and present arguments and/or evidence in opposition to the seizure and confiscation; an independent adjudication, by an impartial and duly constituted authority, of the lawfulness or unlawfulness of the seizure and confiscation; and judicial review" [Id.]
Through same the Langbords allege that the federal district court has inherent equitable power and statutory power and authority to declare that the seizure and confiscation of the coins violations the Fifth Amendment and to order the return of the coins; or alternatively to order the government to afford the Langbords due process in connection with the coins.
The Fifth Cause Of Action is titled "Unlawful Seizure - Fourth Amendment".
Through same the Langbords assert that the government ever applied for a warrant authorizing the seizure of the coins, that at no time has the government present proof evidencing probable cause to seize the coins and that by seizing and confiscating the coins the government has violated the Langbords right to be secure in their persons, property and effects in violation of the Fourth Amendment of the Federal Constitution [Complaint, paragraphs 127-129].
Through same the Langbords allege that the federal district court has the inherent equitable power and statutory power and authority to order the return of the coins.
The government's recently filed motion requests that the court grant summary judgment in its favor against the Langbords on the Fourth and Fifth Causes Of Action of the complaint.
In civil lawsuits, trials are designed to have a jury (or a judge) receive evidence and determine what the "facts" of a case are (after which the "law" is applied to the facts and a the result required by the law is determined). Conflicting evidence can be presented at trial [i.e. one eye witness says the light green and another witness says the light was red]. The jury or judge listens to the evidence and decides who to believe [i.e. the witness who said the light was green]. The jury or judge determines what the "true" facts are.
In many cases, facts are discovered which turn out to be undisputed, since all parties to the lawsuit agree to these facts [i.e. that the 10 double eagles are dated 1933 and are genuine].
To avoid the time and expense of trial on some or all claims, a party can bring a summary judgment motion. This type of motion requires that the party bringing the motion present the evidence that has arisen in the case and argue that this "evidence" is undisputed. The opposing party has to agree that the evidence is undisputed, or alternatively disagree and present his/her own evidence which he/she claims creates a factual dispute.
If the evidence is truly undisputed, then the theory goes that there is thus no reason to have a trial [which is designed to determine what the true facts are from conflicting evidence]. All that needs to be done is to have the court simply apply the law to the undisputed facts to come up with the correct result.
So with the above background information about the complaint, the motion and summary judgment in general, below is a summary of what the government is arguing in its motion.
The government is stating that on 9-22-2004 Roy Langbord, Barry Berke and representatives of the government (Mint and Secret Service) met at a bank to open a safe deposit box, view the coins and allow the government to take possession of the coins.
The goverment states that the Langbords argue the government having possession of the coins transferred to it constitutes an illegal seizure and due process violation, since the Langbords claim that before the transfer of the coins, they had an "agreement" [an unwritten and unexpressed implied agreement] with Mint representatives by which the parties would attempt to negotiate an award or other monetary deal for the Langbords, and if no deal was reached, the government would commence a forfeiture action for the coins
The government states that there is no evidence of the creation of an implied in fact agreement committing the government to commence a forfeiture action in the event no reward deal was reached, and that to the government the Langbords' transfer of the coins to it was a "voluntary repatriation of numismatic treasures to their rightful owner-the United States Of America-and the Langbords were citizens returning stolen property to the government who sought a reward for their rectitude."
The government states that the presence of an "agreement" between the government and the Langbords is the "keystone" supporting their Fourth and Fifth Causes of action [which the government claims are the only causes of action that the Langbords may be entitled to a jury trial]; that the purported agreement is not memorialized in writing; that there is no evidence that the parties expressly discussed a forfeiture action; that there is no evidence that parties engaged in a discussion in which the word forfeiture was used; and that the Langbords Fourth and Fifth Causes of action are based upon Mr. Berke's subjective, unilateral belief-never articulated to the government before the transfer of the coins on 9-22-2004-about the kind of litigation that would follow if no deal was struck.
The government seeks summary judgment on the Fourth and Fifth Causes Of Action because-as a matter of law, applied to undisputed material facts-there is no enforceable agreement between the Langbords and the government committing the government to file a forfeiture action. The government states that since there was no enforceable agreement, the transfer of the coins to it on 9-22-2004 was not a seizure and was instead a voluntary surrender.
The government claims that in the alternative, if the court does not grant summary judgment, it wants the court to order Mr. Berke to answer questions at a follow up session of his deposition [he has given a deposition in the case already (which is most unusal) and objected to many questions on the grounds of various privileges].
The evidence presented by the government [in the form of declarations of government (Mint) employees] shows that on 8-25-2004, 9-15-2004 and 9-22-2004 meetings took place between Mr. Berke, Mint representatives, Secret Services representatives and Roy Langbord and that on 9-21-2004 Mr. Berke faxed a reservation of rights letter to a Mint representative. The government asserts that in these meetings no agreement, express or implied, was ever entered into.
The government also asserts that even if an "agreement" was present, it would be unenforceable since the governmental representatives Mr. Berke was dealing with did not have any authority to enter into any agreements on behalf of the government (and that people who deal with the government have the burden to make sure that the governmental representatives that they deal with have the authority to bind the government to a deal; and that failing to do so puts them at risk for having no contractual against the government based upon the lack of an enforceable agreement).
It will be interesting to see what Mr. Berke and the Langbords file in response to the motion. I would find it surprising that Mr. Berke would not have adequately analyzed things and documented things in advance of disclosing the existence of the coins to the government and in advance of the 9-22-2004 transfer of the coins to the government.
The government's motion shows that it does not want to find itself in a position where it has to go into court for a jury trial with the jury having to decide if the 9-22-2004 transfer of the coins was an illegal seizure and confiscation of the coins or simply a voluntary surrender of government property to the government.
Interesting Wot?
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Comments
Naturally, the government doesn't want to go to a jury trial just on the preliminaries of transfer. However, I seriously doubt that both the Secret Service agents and Treasury Dept. agents had to be in the bank vault if it was to be a "voluntary surrender".
The injustice regarding the US government stand is that FDR was never taken to trial for his illegal actions concerning his threatening actions (both fines and imprisonment) to all U.S. citizen's "voluntary repatriation" of United States gold coins in 1933.
"Legal-ese" certainly skates around the truth of the issue.
As far as the 1933 gold nationalization, the matter was tried before multiple courts including the Supreme Court. Case files are in NARA and Federal Court archives. Decisions consistently supported the Treasury actions. (The nationalization legality is not directly related to the Langboard’s case since all restrictions on gold ownership ended in 1974. The seizure/voluntary return is based on recovery of personal property.)
No jury in their right mind will ever agree that the Langbord's surrendered these coins purely out of "patriotic duty" with no pre-conditions. The case may not turn on that point, however. As SanctionII has previously mentioned, it will turn on the question of who has the burden of proof to demonstrate ownership.
Didn't wanna get me no trade
Never want to be like papa
Working for the boss every night and day
--"Happy", by the Rolling Stones (1972)
That said, my initial reaction is that if the coins were found to have been unlawfully seized, that finding alone would not compel the conclusion that the coins belong to the Langbords. The other claims and defenses in the lawsuit would have to be decided.
If I had unlimited time, I could jump into the law books and educate myself on the substantive and procedural laws that are present in the Langbords case. Unfortunately I do not have the time to do so since I have to keep my nose to the grindstone to pay bills, etc.
If I were the judge hearing the case, I would be inclined to look at the case with an eye towards deciding same based upon the merits (who has the burden to prove what and have they met the burden by producing legally admissable evidence that proves what they have to prove), instead of deciding the case on procedural/technical grounds. I also would not have a preconceived notion of who has a better claim to the coins. I would also consider the information present by the PNG through Mr. Vartian so that I would have an understanding of the bigger picture of the hobby and coin market.
Having the case proceed to a jury trial would be (for me as a collector and a lawyer) very, very interesting.
Now get back to paying those bills.
Didn't wanna get me no trade
Never want to be like papa
Working for the boss every night and day
--"Happy", by the Rolling Stones (1972)
42/92
potd!
Now they are claiming that the government's refusal to return the coins (excuse me, the unmonetized "mere chattel") is an illegal seizure. Well, duh, did you really expect the feds to give them back?? Possession is nine-tenths of the law, as the old saying goes, and this fact set proves it. The Langbords should have kept their mouths shut if they didn't want the coins seized, particularly after the fuss was made to monetize the one auctioned specimen (at which time it was publicly delcared that the one monetized specimen, however fictional the construct of monetization, was the only specimen legal to own).
Of course, I think the government's position on the 1933 double eagles has always been ludicrous ... I mean really, the Secret Service? are these biological weapons or something? Is it their jurisdiction because it was a contravention of an Executive Order (issued by FDR)? But these coins were clearly illegimately removed from the Mint by a wise ass dealer who sought to profit illegally from stolen goods. So I have no sympathy for the Langbords or their forebear, Israel Switt.
Sunnywood
Sunnywood's Rainbow-Toned Morgans (Retired)
Sunnywood's Barber Quarters (Retired)
If no government agreements have to be honored it will certainly put citizens in their place.
<< <i>I maintain what I have said all along, they were utter fools to bring in the feds and give them the coins.
>>
They knew what they were doing - Barry Berke isn't stupid. I expect all will be revealed in a few years.
<< <i>
<< <i>I maintain what I have said all along, they were utter fools to bring in the feds and give them the coins.
>>
They knew what they were doing - Barry Berke isn't stupid. I expect all will be revealed in a few years. >>
I completely agree.
Now, did that response make your head hurt?
Didn't wanna get me no trade
Never want to be like papa
Working for the boss every night and day
--"Happy", by the Rolling Stones (1972)
Concepts of "law of the case" and "compulsory counterclaims" (as opposed to permissive counterclaims) may apply in the existing lawsuit to result in rulings on part of the case [for example a granting of the government's pending partial summary judgment motion] applying to defeat other pending causes of actions or defenses in the same case.
Concepts of "res judicata" (claim preclusion) and "collateral estoppel" (issue preclusion) may apply in future lawsuits (if any) brought by/against the same parties to result in rulings in this present case applying to preclude relitigation of the same claim and/or issue in future litigation.
Ain't the law fun?
Oh yes, I understand Berke's attempt at a legal strategy (inducing wrongdoing on the part of the government, for example) ... but I stand by my assertion that it was naïve and a miscalculation to take this course of action. My bet is on the feds, not on the descendants of the wrongdoer and their scheming attorney.
If I were the owner of the auctioned monetized piece, I would be livid at both the Langbords and the goverment (particularly their display of the ten coins all over the country, touted as 1933 double eagles, when the prior position was that they were "mere chattel" and not U.S. coins).
Sunnywood
Sunnywood's Rainbow-Toned Morgans (Retired)
Sunnywood's Barber Quarters (Retired)
I find it all fascinating, but I have no doubt the Feds will win (and I expect them to get the summary judgment). I look forward to seeing these and the other 33 saints in the Smithsonian one day.
TD
Coin's for sale/trade.
Tom Pilitowski
US Rare Coin Investments
800-624-1870
<< <i>I find it all fascinating, but I have no doubt the Feds will win (and I expect them to get the summary judgment). >>
Since there are disputed facts, I believe the motion will be denied and rightly so.