<< <i>"Who can be unhappy with the arrangements such as seen above?"
I can think of two:
#1.The Government; and
#2. The Langbords.
>>
I think that this is an all or nothing deal. Even if the Langbords wanted to deal, I don't think that the government would.
Need the following OBW rolls to complete my 46-64 Roosevelt roll set: 1947-P & D; 1948-D; 1949-P & S; 1950-D & S; and 1952-S. Any help locating any of these OBW rolls would be gratefully appreciated!
This person will have a dilemma if the Langbord coins go to the family. The Farouk coin owner has carefully guarded his identity, but will have to go public if they wish to litigate against the government for violating the terms of sale.
This person will have a dilemma if the Langbord coins go to the family. The Farouk coin owner has carefully guarded his identity, but will have to go public if they wish to litigate against the government for violating the terms of sale. >>
The Government promised no others would be monetized. I see no reason for them to again put on the charade of collecting $20 at the sale. They can easily keep that promise.
<< <i>This person will have a dilemma if the Langbord coins go to the family. The Farouk coin owner has carefully guarded his identity, but will have to go public if they wish to litigate against the government for violating the terms of sale. >>
The Government promised no others would be monetized....They can easily keep that promise. >>
Regardless of what was put into writing, the Farouk buyer had a reasonable expectation that the coin would remain "unique." Whether that can be enforced I am not sure, but there is no doubt it can be litigated, probably for a long time.
<< <i>This person will have a dilemma if the Langbord coins go to the family. The Farouk coin owner has carefully guarded his identity, but will have to go public if they wish to litigate against the government for violating the terms of sale. >>
The Government promised no others would be monetized....They can easily keep that promise. >>
Regardless of what was put into writing, the Farouk buyer had a reasonable expectation that the coin would remain "unique." Whether that can be enforced I am not sure, but there is no doubt it can be litigated, probably for a long time. >>
The only uniqueness was the monetization - there are others in the Smithsonian
<< <i>This person will have a dilemma if the Langbord coins go to the family. The Farouk coin owner has carefully guarded his identity, but will have to go public if they wish to litigate against the government for violating the terms of sale. >>
The Government promised no others would be monetized....They can easily keep that promise. >>
Regardless of what was put into writing, the Farouk buyer had a reasonable expectation that the coin would remain "unique." Whether that can be enforced I am not sure, but there is no doubt it can be litigated, probably for a long time. >>
The only uniqueness was the monetization - there are others in the Smithsonian >>
If the coins passed assay muster [which I believe they did] and the results forwarded to the coiner at the Philly mint then they are already monetized, just as all previously struck DEs were. Nobody has apparently answered my previous query about whether the coins had to be released for/to circulation in order to complete the monetizing process.
<< <i> Nobody has apparently answered my previous query about whether the coins had to be released for/to circulation in order to complete the monetizing process. >>
It's my understanding that the concept of "monetizing" didn't exist when the '33 double eagles were minted (the concept may have been invented as part of the Farouk specimen deal).
So I think the question is unanswerable in the context of standard practice when the '33 double eagles were minted.
<< <i> Nobody has apparently answered my previous query about whether the coins had to be released for/to circulation in order to complete the monetizing process. >>
It's my understanding that the concept of "monetizing" didn't exist when the '33 double eagles were minted (the concept may have been invented as part of the Farouk specimen deal).
So I think the question is unanswerable in the context of standard practice when the '33 double eagles were minted. >>
According to member Deepcoin, they were monetized. All DEs struck and put into circulation were monetized, it was just never stated as such.
Also, since none were ever reported to be missing I'd say it's a strong possibility that the mint got their $20 in exchange for the ones that got out.
From Merriam-Webster........
Monetize
1 : to coin into money; also : to establish as legal tender
Monetizing I am so sorry to laugh, or scoff at this word. Assigning a value is what the U.S. Treasury did after requiring all gold coinage to be turned in except for those "collectibles" which were already monetized, but collectible. The government is trying to skirt ex post facto laws with writers for them , doing a great job of suggesting that COIN DEALERS are to blame.
$20 minted on these specimens is monetization. What's done is done. What's out is out. A little off topic, but hey….. Let's burn a confederate flag today .
Numismatist. 50 year member ANA. Winner of four ANA Heath Literary Awards; three Wayte and Olga Raymond Literary Awards; Numismatist of the Year Award 2009, and Lifetime Achievement Award 2020. Winner numerous NLG Literary Awards.
Bottom of the Eighth, and the Mint is trying a suicide squeeze!
Numismatist. 50 year member ANA. Winner of four ANA Heath Literary Awards; three Wayte and Olga Raymond Literary Awards; Numismatist of the Year Award 2009, and Lifetime Achievement Award 2020. Winner numerous NLG Literary Awards.
Quiet time is almost over. The Langbords response to the government's petition is due by this Monday, July 20th. I'll be interested in what it says, particularly if it will vigorously be defending the CAFRA decision of the panel and pointing out that there is NO proof that the coins were stolen from the US Mint. Steve
Sydney Greenstreet. And if he is not available, Victor Buono.
Numismatist. 50 year member ANA. Winner of four ANA Heath Literary Awards; three Wayte and Olga Raymond Literary Awards; Numismatist of the Year Award 2009, and Lifetime Achievement Award 2020. Winner numerous NLG Literary Awards.
Sydney Greenstreet. And if he is not available, Victor Buono.
I did a double take there captain.I thought you wrote Victor (D) Brenner playing King Farouk.
if it will vigorously be defending the CAFRA decision of the panel and pointing out that there is NO proof that the coins were stolen from the US Mint
For gov,the Langbord case has overwhelming circumstantial evidence resulting in a preponderance going for it.Do you know if those 10 Langbord pieces were dusted when gov got ahold of them?
Great spirits have always encountered violent opposition from mediocre minds.-Albert Einstein
<< <i> if it will vigorously be defending the CAFRA decision of the panel and pointing out that there is NO proof that the coins were stolen from the US Mint
For gov,the Langbord case has overwhelming circumstantial evidence resulting in a preponderance going for it.Do you know if those 10 Langbord pieces were dusted when gov got ahold of them? >>
Not relevant as the courts have already decided [whether anyone else agrees with them or not] that the coins were stolen. The government improperly confiscated the coins without due process. Funny thing about technicalities is that they're great when they work for you but suck when they work agin ya. Methinks that in spite of previous rulings that the Government could not meet the burden of proof in order to prevail in a CAFRA hearing.
The gov did use some pretty blunt language in their last petition.I was expecting their petition to be less aggressive than it was.When it comes to spinning a yarn the gov has a huge advantage over Langbords.Really,there isn't much of a story for the Langords to tell.I'm confused about what kind of box the coins were found in.I thought for the longest time the coins were discovered in a bank safety deposit box.
The coins were found in the jewelry shop? I was reading that the shop is junky and cluttered.Izzy could have had more than one hiding place.The bench should be checked thoroughly.There are many hiding places in the bench.
Great spirits have always encountered violent opposition from mediocre minds.-Albert Einstein
<< <i>The gov did use some pretty blunt language in their last petition.I was expecting their petition to be less aggressive than it was.When it comes to spinning a yarn the gov has a huge advantage over Langbords.Really,there isn't much of a story for the Langords to tell.I'm confused about what kind of box the coins were found in.I thought for the longest time the coins were discovered in a bank safety deposit box.
The coins were found in the jewelry shop? I was reading that the shop is junky and cluttered.Izzy could have had more than one hiding place.The bench should be checked thoroughly.There are many hiding places in the bench. >>
I was under the impression that Joan Langbord visited the SDB numerous times. The coins may well have been in the SDB and she played musical hiding places.
THE CLOCK STOPS TICKING AGAIN AT MIDNIGHT TONIGHT. Yes, the second of the 15 days of quiet time is quickly coming to an end. The 3rd circuit appeals court gave the government the required 45 days after the panel's decision to appeal. Then, at the governments request, the appeals court gave the government 30 more days to officially file their appeal. Now the Langboards are on the last day of their 14 days in which to file their response to the governments appeal. And so we have a little over a quarter of a year gone by since the April 17th decision. Those here with access to PACER, please send us a link to the Langboards response so we can again enjoy the back and forth arguments of the lawyers. I do wonder how long it will be AFTER today, before we hear again from the appeals court with their BIG decision. Do they support the CAFRA law and therefore reaffirm the Langboard WIN? Or do they say lets hear more arguments in which case I predict it is a indication that the court will ultimately reverse the panels decision. WE SHALL SEE! Steve
Skimmed the Langbords' answer to the government's petition for rehearing.
It opens by stating:
"It is often said in legal circles that when the facts are against you, pound the law; when the law is against you, pound the facts; and when the facts and the law are against you, pound the table. The government's Petition For Rehearing (the "Petition") contains much table pounding. Along the way , the government omits critical facts and misstates others, presents an inaccurate, distorted and misleading picture of the law, and improperly raises new arguments and cases not presented to the original Panel."
The answer asserts that the Petition For Rehearing should be denied. It asserts that the Petition For Rehearing does not meet the standards required for such a Petition (the standards are set forth in the 3rd District Court Of Appeal Local Appellate Rules, Rule 35.1 which states:
L.A.R. 35.0 DETERMINATION OF CAUSES BY THE COURT EN BANC
35.1 Required Statement for Rehearing En Banc
Where the party seeking rehearing en banc is represented by counsel, the petition must contain, so far as is pertinent, the following statement of counsel: "I express a belief, based on a reasoned and studied professional judgment, that the panel decision is contrary to decisions of the United States Court of Appeals for the Third Circuit or the Supreme Court of the United States, and that consideration by the full court is necessary to secure and maintain uniformity of decisions in this court, i.e., the panel's decision is contrary to the decision of this court or the Supreme Court in [citing specifically the case or cases], OR, that this appeal involves a question of exceptional importance, i.e., [set forth in one sentence].")
The Langbords answer asserts that nothing in the majority opinion of the court issued on 4-17-2015 is “contrary to decisions of the United States Court of Appeals for the Third Circuit or the Supreme Court of the United States” (a basis under Rule 35.1 for en banc review).
The Langbords answer also asserts that nor is “consideration by the full court [] necessary to secure and maintain uniformity of decisions in this court,” (a basis under Rule 35.1 for en banc review); and that the government concedes as much by failing to specify the required case citations in its L.A.R. Rule 35.1 statement.
The Langbords answer asserts that the 4-17-2015 decision will not cause the sky to fall in the world of forfeiture or prevent the government from recovering its own property in future cases and thus does not involve a "questions of exceptional importance under L.A.R. Rule 35.1; and further asserts that to the extent that the government is blocked, IN THIS CASE, from seeking certain remedies it is because of the government's own, intentional, knowing behavior in this case (unconstitutionally seizing the ten double eagles and then refusing to commence a judicial forfeiture proceeding on the preposterous theory [rejected by the trial court judge and by the majority decision of the court of appeal] that the government may simply help itself, and need not follow the law, whenever it acts to confiscate what it believes to be stolen government property.).
The answer then proceeds to present detailed legal arguments on various topics as to why the 4-17-2015 decision is correct and why rehearing is not necessary.
The tenor of the answer focuses on the Mint's decision to not file a forfeiture proceeding against the recommendation of multiple other government agencies and to refuse to comply with the obligations placed upon it by Congress when it enacted CAFRA; that the government should be required to follow the law; and that the government should be subjected to the consequences of not following the law.
The answer, in a footnote, briefly responded to the government's characterization of Mr. Switt as a thief in its Petition. The Langbords answer cites to government reports which do not support the characterization of Mr. Switt as a thief; and points out that they argued in their appeal that the jury verdict should be overturned because of trial court error in admitting hearsay and other objectionable material into evidence that should have been excluded.
It will be interesting to see how the court rules on the Petition For Rehearing. Statistically very few of these petitions are granted. If the Petition is denied then the next stop (if the government decides to press on) is a Petition by the government to the US Supreme Court requesting that it review the case. If the Petition For Rehearing is granted further proceedings will take place before the full panel of Justices on the 3rd Circuit Court Of Appeal. I do not know what those further proceedings will consist of but presume that they would include at least one hearing before the court where the attorneys would present oral argument. They may even include a further round of briefing.
If anyone wants a copy of the answer send me a PM with your email.
Numismatist. 50 year member ANA. Winner of four ANA Heath Literary Awards; three Wayte and Olga Raymond Literary Awards; Numismatist of the Year Award 2009, and Lifetime Achievement Award 2020. Winner numerous NLG Literary Awards.
BAJJER I think it was admitted that the Langbords lied about the SDB, but that wasn't relevant to the case. Supposedly the coins sat in an SDB that was 10 years old for 50 years. That makes as much sense as anything else in this shebang.
12-4574 IN THE United States Court of Appeals FOR THE THIRD CIRCUIT ROY LANGBORD, DAVID LANGBORD, JOAN LANGBORD Plaintiffs-Appellants, —v.— UNITED STATES DEPARTMENT OF THE TREASURY, UNITED STATES BUREAU OF THE MINT, SECRETARY OF THE UNITED STATES DEPARTMENT OF THE TREASURY, ACTING GENERAL COUNSEL OF THE UNITED STATES DEPARTMENT OF THE TREASURY, DIRECTOR OF THE UNITED STATES MINT, CHIEF COUNSEL UNITED STATES MINT, DEPUTY DIRECTOR OF THE UNITED STATES MINT, JOHN DOE NOS. 1 TO 10 “John Doe” Being Fictional First and Last Names, UNITED STATES OF AMERICA, Defendants-Appellees. _______________________________ UNITED STATES OF AMERICA, Third Party Plaintiff, —v.— TEN 1933 DOUBLE EAGLE GOLD PIECES, ROY LANGBORD, DAVID LANGBORD, JOAN LANGBORD, Third Party Defendants, ROY LANGBORD, DAVID LANGBORD, JOAN LANGBORD, Appellants. ____________ ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA ANSWER TO GOVERNMENT’S PETITION FOR REHEARING EN BANC BARRY H. BERKE, ESQ. ERIC A. TIRSCHWELL, ESQ. ROBINWILCOX, ESQ. KRAMER LEVIN NAFTALIS &FRANKEL LLP 1177 Avenue of the Americas New York, New York 10036 (212) 715-9100 Attorneys for Plaintiffs-Appellants
Case: 12-4574 Document: 003112022832 Page: 1 Date Filed: 07/20/2015
It is often said in legal circles that when the facts are against you, pound the law; when the law is against you, pound the facts; and when the facts and the law are against you, pound the table. The government’s Petition for Rehearing (the “Petition”) contains much table pounding. Along the way, the government omits critical facts and misstates others, presents an inaccurate, distorted and misleading picture of the law, and improperly raises new arguments and cases not presented to the original Panel. The Petition should be denied. The Panel majority recognized that this case is about an unconstitutional abuse of power and holding the government accountable for its unlawful acts. The majority opinion is a meticulously reasoned, logical, and correct application of the clear dictates of the Civil Asset Forfeiture Reform Act (“CAFRA”). Nothing in it is “contrary to decisions of the United States Court of Appeals for the Third Circuit or the Supreme Court of the United States,” nor is “consideration by the full court [] necessary to secure and maintain uniformity of decisions in this court,” 3d Cir. L.A.R. 35.1 (2008); indeed, the government concedes as much by failing to specify the required case citations in its L.A.R. 35.1 statement. The government’s table-pounding notwithstanding, the decision will not cause the sky to fall in the world of forfeiture or prevent the government from recovering its own property in future cases, and thus does not involve a “question of exceptional importance” under L.A.R. 35.1. To the extent the government in this case is blocked from seeking certain remedies, it is because of the government’s own intentional, knowing behavior in this case – i.e., unconstitutionally seizing the 1933 Double Eagles (the “Coins”), and then refusing to commence a judicial forfeiture proceeding on the preposterous theory, rejected by the District Court and the Panel majority and dissent
alike, that the government may simply help itself, and need not follow the law, whenever it acts to confiscate what it believes to be stolen government property. The Government’s Unconstitutional Conduct. We begin with the central findings – never mentioned in the Petition – that were unanimously agreed on by the District Judge, the Panel majority and the dissent (and which the government chose not to cross-appeal): the government seized the Co/u]ins from the Langbords, and in doing so, the government violated their constitutional rights. (Maj. Op. 14 (“the Government’s seizure of [the Double Eagles] was unconstitutional, as the District Court determined”); Diss. Op. 1 (“The Government . . . acted unconstitutionally when it seized the ten Golden Eagle coins . . .”)). This illegal act by the government followed the Langbords’ decisions to (a) voluntarily come forward in 2004, knowing 1933 Double Eagles had been the subject of controversy, (b) apprise the government that they had found the ten Coins, (c) turn the Coins over (at the government’s request) for the limited purpose of authentication while reserving all rights, and (d) explore whether an agreement could be worked out, perhaps along the lines of the settlement the government had recently entered into with another owner of a contested 1933 Double Eagle. (Maj. Op. 6-7 (describing the 2002 Fenton settlement, where one 1933 Double Eagle was auctioned and the proceeds split evenly between the owner and the government)). Once the Coins were authenticated, instead of discussing the issues and a possible resolution with the Langbords, the government instead unilaterally decided to confiscate and keep the Coins – without following the law or affording the Langbords any process whatsoever. Why? Because the government believed (but had not proven) that the Coins had somehow been “taken out of the United States Mint in Philadelphia
in an unlawful manner” in the 1930s (JA143-44; JA 823). When the United States Mint made this intentional, unlawful and unconstitutional decision not to seek forfeiture in court or pursue any other lawful avenue to retain the seized Coins – even after the Langbords submitted a “seized asset claim” under 18 U.S.C. § 983(a)(2)(A) – it knew that it was flouting the requirements of CAFRA because its actions contradicted the advice of senior legal officials from “‘[a]ll the agencies involved,’” including the U.S. Attorney’s Office, the Treasury Executive Office for Asset Forfeiture, and the Secret Service, which were “‘in favor of pursuing forfeiture’”; only the U.S. Mint wanted to try to keep the Coins “‘without the need for forfeiture.’” (Maj. Op. 7 (quoting JA818)). In other words, as the Panel majority wrote, the record shows that “the Government knew that it was obligated to bring a judicial civil forfeiture proceeding or to return the property, but refused to do so.” (Id. at 27). As a result, the government violated not only CAFRA, but the Fifth Amendment as well. The government’s failure to even acknowledge its own unconstitutional actions is no immaterial omission. It is the inconvenient truth that the government cannot avoid, and the answer to many of the government’s fallacious arguments.1
1Although not directly relevant to the issues in the Petition, the government’s repeated references to Israel Switt as a “thief” – and its claim that the Langbords “never challenged” this point on appeal – demand a response. (Pet. 1-2 & n.1). As its own reports make clear, the Secret Service investigation in the 1940s did “not conclusively establish when, how, or by whom the coins found in circulation were taken from the Philadelphia Mint, although the evidence pointed very strongly toward [former Mint cashier] George A. McCann….” (JA4928; JA5007). Switt was identified not as the thief but as the source of 1933 Double Eagles sold to various collectors. (JA22-23; JA4928). While the jury’s 2010 forfeiture verdict may have reflected a determination that the Coins were stolen from the Mint, there was no specific finding that Switt was the “thief.” Moreover, the Langbords argued at length in their appeal that the jury’s verdict should be overturned because, inter alia, the District Court erred in admitting a large volume of inadmissible, unimpeachable hearsay and other unfairly prejudicial material, and had erroneously instructed the jury on various key issues. (Appellants’ Br. 40-70). Although
Declaratory Judgment. The government begins by trying to resuscitate its declaratory judgment claim, arguing that the Panel majority “erred in not recognizing that the government acted in this case not as law enforcer, but as property owner.” (Pet. 3-4). That is simply false. The government here seized the coins, it did so unconstitutionally, and it is precisely because the government acted as law enforcer, and did so illegally, that certain consequences follow. Having seized the Coins and notified the Langbords of its intention to keep them, the government cannot now cry foul because the panel majority held it to the timelines Congress put in place through CAFRA to protect individuals from whom the government seizes and confiscates property. The government continues to peddle the fiction that “[w]hen the government finds and recovers actual property stolen from it (as opposed to proceeds), it does not ‘forfeit’ it. It instead acts to recover it.” (Pet. 4). It is difficult to understand what this is supposed to mean – but what is clear is that in this case the government did not “find” or “recover” the Coins, it unconstitutionally seized them, and then made a decision to permanently keep them without affording the Langbords any process whatsoever. The Panel majority therefore correctly rejected the government’s argument that “stolen government property falls outside the protections of CAFRA,” explaining that “Congress
footnote 1 continued it did not reach any of these trial error issues, the Panel majority agreed with the Langbords that the District Court had erred in admitting into evidence multiple layers of hearsay from the Secret Service reports from the 1940s. (Maj. Op. at 10-11 & n.5). In sum, to this day there is no reliable verdict as to how these Coins left the Mint. In that regard, the government continues to misstate and oversimplify the facts when it claims that President Roosevelt “directed that the 445,500 1933-dated Double Eagles that had recently been minted in Philadelphia not be issued.” (Pet. 1). In fact, for several weeks after President Roosevelt took office, the Mint was authorized to release gold coins in exchange for gold deposits. (See Appellants’ Br. 5).
has specifically enumerated theft or embezzlement of government property [under 18 U.S.C. § 641] as one of the crimes to which CAFRA applies.” (Maj. Op. 12).2 The government next argues that the panel majority opinion would limit the government to forfeiture as the “only remedy” with respect to “the government’s own stolen property” (Pet. 5) – “even the greatest national treasures” (Pet. 9). This grossly misstates what the Panel majority held. In throwing out the declaratory judgment claim, the Panel majority ruled out only one non-forfeiture remedy in this case – the discretionary and equitable declaratory judgment remedy. The government fails to acknowledge that there were other non-forfeiture remedies besides declaratory judgment that the government might have pursued here, but chose not to in furtherance of its unconstitutional effort to deprive the Langbords of any process whatsoever. For example, as the District Court observed, had the government not illegally seized the Coins, it could have pursued a replevin claim, the very claim it brought over 60 years ago in seeking to recover another 1933 Double Eagle in the Barnard case. (JA156 (“Barnard serves as an example of a reasonable course of action available to the Government to recover a coin that it believed to have been stolen.”)). But in this case, the government’s decision to break the law instead of following it has consequences. As the District Court correctly held, in a ruling the government did not challenge on appeal, having seized and retained possession of the Coins (in violation
2 Similarly unavailing is the government’s related argument that forfeiture “transfers title to the government,” and therefore was in this case “unnecessary, given that the government retains title to property that has been stolen from it.” (Pet. 2-3). If adopted, the government’s “transfer of title” argument would lead to the absurd result that any time the government asserts property was stolen from it, it could simply take it back (through a seizure or otherwise) and keep it, without affording the individual who possessed it with any process whatsoever. The Panel majority correctly rejected this spurious argument, as did the three government agencies with forfeiture expertise.
of the Langbords’ constitutional rights), the government lost the ability to bring a replevin claim. (JA126-27). In other words, it was the government’s own unconstitutional conduct, not the Panel majority’s opinion, that deprived it of this common law avenue to attempt to recover the Coins.3 The government claims that “[n]umerous doctrines . . . provide that the government cannot inadvertently or through negligence lose title to its property.” (Pet. 5-6). But this is not a case about “inadvertence” or “negligence.” The authorities cited – only some of which were cited to the Panel – are in no way inconsistent with Congress prescribing through CAFRA that where the government seizes property (unconstitutionally), where a claim to that property is promptly filed, and where the government then makes a calculated and knowing decision not to commence a judicial forfeiture proceeding within 90 days, the government’s right to seek forfeiture of that property is forever lost. See 18 U.S.C. § 983(a)(3)(B). The government argues that its declaratory judgment action “was in the nature of a quiet title claim” and therefore was not merely a mechanism to “circumvent CAFRA’s 90-day deadline.” (Pet. 7). But the Panel majority correctly recognized that in this case, the government’s forfeiture theory that the Coins were stolen from the Mint was indistinguishable from its request for a declaratory judgment that the Coins “were not lawfully removed from the United States Mint.” (Maj. Op. 30). As the Panel majority
3 For these reasons, the government’s hypothetical at pages 4-5 of its Petition is based on a flawed premise. In this case the government did something a private owner could not do – it put on its law enforcement hat and unconstitutionally seized the Coins. Having done so, it lost the right to pursue other remedies that the government might otherwise have had. The Panel majority’s decision erects no barrier to the government acting differently with respect to different property in future cases. In fact, where the statute of limitations has not run, the government also will continue to be free to pursue criminal forfeiture to recover stolen government property. Thus, far from having fewer rights than a private person to recover stolen property, the government has more.
correctly decided, surely Congress did not intend to allow the government to employ a declaratory judgment to so easily do an end-run around CAFRA’s important deadlines that were central to Congress’ intent to protect citizens from exactly the type of government abuse of power that occurred here. As to the Panel majority’s alternative holding that the declaratory judgment claim “cannot be recognized because CAFRA amounts to a ‘special statutory proceeding’” (id. at 31), the government’s argument that this ruling is “unprecedented” (Pet. 8) falls far short of meeting the rehearing standards where – as the Panel majority pointed out – no court has ruled to the contrary.4 The government’s additional argument that “Congress never stated that CAFRA displaces all other remedies” (Pet. 8) misstates the limited scope of the majority’s ruling on this point, which bars the government only from pursuing one other remedy – declaratory judgment. And it does so not by holding that CAFRA preempts or displaces that equitable remedy, but instead by applying the wellestablished doctrine that courts will not entertain declaratory judgment claims where
4 The government cites Mantilla v. United States, 302 F.3d 182, 187 (3d Cir. 2002), as being in “conflict[] with” the panel majority’s ruling on declaratory judgment (Pet. 8-9), but that decision has nothing to do with CAFRA, whether it is “a special statutory proceeding,” or declaratory judgment. It simply holds that an entirely different statute (21 U.S.C. § 881(a)) did not displace the common law doctrine of in pari delicto that prevented the defendant in that case from “using the courts to recover” drug buy money “voluntarily transferred to Customs agents.” 302 F.3d at 186-87. Perhaps this is why the government did not mention this case in its brief to the Panel, providing an additional reason to disregard it. See Royce v. Hahn, 151 F.3d 116, 125 (3d Cir. 1998) (refusing on rehearing en banc to consider matters not discussed in briefs to panel). The argument and authorities cited in fn. 4, p.7 of the Petition are also inapposite, as the majority decision does not apply a statute of limitations and does not address a suit against the United States or sovereign immunity; moreover, none were cited to the panel, and thus are not properly considered now. The same is true of the government’s new argument on page 6 of the Petition based on Linwood Harvestore, Inc. v. Cannon, 235 A.2d 377, 380 (Pa. 1967). That case too was not argued to the original panel, and is about Pennsylvania law relevant to replevin – a claim not at issue here.
Congress has devised “procedures and remedies tailored to a limited subset of cases and [to] preserv[ing] individual rights.” (Maj. Op. 32). The government offers no explanation as to how or why the majority erred in its alternative holding on declaratory judgment that CAFRA satisfies this standard.5 CAFRA and Forfeiture. Turning from declaratory judgment to forfeiture, the government takes issue with the Panel majority’s holdings under CAFRA that (1) “the presentation of a claim under Section 983(a)(2) is independent of the government’s presentation of notice of a nonjudicial forfeiture” and (2) “a ‘nonjudicial civil forfeiture proceeding’ commences when the Government has seized property.” (Pet. 10 (citing Maj. Op. 19, 22)). As to the first point, the Panel majority was absolutely correct in reading the plain language of CAFRA, and § 983(a)(2)(A) in particular, to mean that “a person claiming seized property can file a seized asset claim, whether or not the Government has sent or is required to send notice.” (Maj. Op. 15-16). Far from being “unprecedented” or “inconsistent with judicial authority,” this interpretation is supported by pre- and post-CAFRA forfeiture decisions, as well as the two leading forfeiture treatise authors, and a decision issued earlier this year.6
5 There is an additional ground for dismissing the declaratory judgment claim, which the Panel did not reach: that claim was filed too late. (See Appellants’ Br. 35 (arguing the declaratory judgment claim should not have been allowed due to undue delay, where the government made a strategic choice not to bring the claim earlier); see also Maj. Op. 27 (noting government’s complaint, including declaratory judgment claim, was not filed until “four years and nineteen days after the Langbords filed their seized asset claim”)).
6 See Appellants’ Br. at 26-27 (citing United States v. $10,000 in United States Currency, No. 06CV2439-L(AJB), 2007 U.S. Dist. LEXIS 58999, at *9 (S.D. Cal. Aug. 13, 2007) (“Section 983(a)(2) is unambiguous. It sets forth the earliest and the latest time to file a claim, with ‘after the seizure’ being the earliest. . . . It does not include a requirement for a written notice prior to filing a claim.”), vacated following settlement, 2007 U.S. Dist. LEXIS 70107 (S.D. Cal. Sept. 21, 2007); Stefan D. Cassella, The Civil
Not only does the government thus misrepresent the state of the decisional law; it also blatantly and repeatedly misstates the text of the relevant provision. Thus, whereas § 983(a)(2) states “[a]ny person claiming property seized in a nonjudicial forfeiture proceeding under a civil forfeiture statute may file a claim with the appropriate official after the seizure . . . ” (emphasis added), the government changes the critical words “after the seizure” to “after receiving notice,” perhaps hoping nobody would notice where it closed its quotation marks. (See Pet. 10 (stating – incorrectly – that “Section 983(a)(2) allows ‘[a]ny person claiming property seized in a nonjudicial forfeiture proceeding’ to file a claim after receiving notice”) (emphasis added)). Similarly, the government writes that § 983(a)(2)(B) “contemplates that a seized asset claim will not be filed until notice is provided” (Pet. 12), wholly ignoring that this subsection (B) deals with the latest a claim can be filed, whereas subsection (A) of § 983(a)(2) provides the earliest a claim can be filed, i.e., at any point “after the seizure.” In the face of this
footnote 6 continued Asset Forfeiture Reform Act of 2000: Expanded Government Forfeiture Authority and Strict Deadlines Imposed on All Parties, 27 J. Legis. 97, 141 (2001) (“While most claimants will wait until they receive formal notice of the administrative forfeiture proceeding to file a claim, nothing in the statute suggests they must do so. In fact, interpreting paragraph [(a)](2)(A) to permit a person to file a claim without waiting to receive formal written notice is consistent with pre-CAFRA case law which held that a person could file a claim any time after the property was seized.”) (citing United States v. $52,800 in U.S. Currency, 33 F.3d 1337, 1340-41 (11th Cir. 1994) (“nothing prevented claimants from filing a claim . . . before issuance of the notice.”)); David B. Smith, Prosecution and Defense of Forfeiture Cases § 6.02[2][.B] at 6-22 (2012) (“A person with an interest in the seized property may file a claim letter . . . prior to receiving written notice . . ., thus starting the government’s 90-day clock for filing a complaint.”)). Accord United States v. Ali, Nos. 6:15-cr-00094-LSC-JEO, 2:15-mj-00079-JHE, 2015 WL 2159335, at *3 (N.D. Ala. May 5, 2015) (“although [the person from whom property was seized] has not received notice of either agency’s intent to seek administrative forfeiture, he is entitled to file a claim any time after the seizure, which would set the legal machinery in motion”). The government cites United States v. $200,255.00 in U.S. Currency, No. 7:05-CV-27(HL), 2006 WL 1687774 (M.D. Ga. June 16, 2006), but that decision fails to grapple with the plain language of § 983(a)(2)(A), and is, we respectfully submit, wrongly decided.
egregious misstatement of the plain language of the statute, reflective of the overzealous advocacy that has characterized the government’s approach to this case from day one, the government’s accusation that it is the Panel majority that “rewrites an important part of the forfeiture laws” (Pet. 9) is ironic at best. The government claims that “the majority erases the period afforded by Congress for the government to determine whether and how to seek forfeiture.” (Pet. 12). In fact, it is Congress, not the Panel majority, that enacted the timing reforms set out in CAFRA, including giving claimants the right and ability to expedite the process when the government has seized property. While Congress thus required the government to provide written notice where required within 60 after the date of a seizure (or 90 days if a state or local agency seized the property), §§ 983(a)(1)(A)(i), (A)(iv), it also allowed for – and the majority decision in no way interferes with – the possibility of extending the notice period, which is explicitly authorized, §§ 983(a)(1)(B)-(D). And while Congress also allowed claimants to challenge a forfeiture in court by requiring that the government bring a judicial forfeiture action within 90 days of a seized asset claim being filed, § 983(a)(3)(A), it again provided for – and the majority opinion does not interfere with – the government seeking to extend the 90- day period before it expires for “good cause shown or upon agreement of the parties.” Id. CAFRA’s congressional sponsors believed the 90-day deadline—which the government chose to ignore here – was one of the statute’s “most important reforms”: Previously, there was no statutory deadline compelling the Government to commence a judicial forfeiture action within any fixed period of time. This caused frequent complaints from defense attorneys who did all they could to force the Government to commence a judicial forfeiture action by filing a claim . . ., yet were forced to wait months or even years before the Government gave their clients their ‘day in court’ by filing a forfeiture complaint.
Stefan D. Cassella, Asset Forfeiture Law in the United States § 7-4 at 243-44 (2d. ed. 2013). CAFRA changed this: “[.U]nder Section 983(a)(3), the Government no longer has the luxury in most cases of delaying the commencement of a judicial forfeiture action as long as it sees fit.” Id. § 7-4 at 245. Congress also provided that a claimant could file a claim at any time “after the seizure,” § 983(a)(2)(A), as the majority correctly held. (Maj. Op. 22 (“When the government has seized property, then the person from whom the property was seized has the right to file a seized asset claim pursuant to § 983(a)(2)(A), thereby triggering the 90-day deadline in § 983(a)(3)(A).”)). But this does not erase the time the government has to decide how to proceed; it just potentially shortens it to no less than 90 days, with the option of the government getting more time for “good cause shown or upon agreement of the parties,” where the government has seized property. In this case, the Mint clearly knew of the 90-day deadline, waiting 87 days from receipt of the Langbords’ seized asset claim before proclaiming – over the advice of all the other agencies involved – that it had “no intention of seeking [] forfeiture.” (JA837-38). To the extent the government has complaints about these central timeframe reforms reflected in CAFRA, notwithstanding the provisions for extensions, it should direct its complaints to Congress, not this Court.7 The government relatedly argues that the Panel majority erred in not recognizing that “not every seizure commences a nonjudicial (administrative) forfeiture” (Pet. 10), claiming that there are cases where property is seized for investigation purposes and not
7 The government can always choose not to seize property, and then would have the full five years to decide how to proceed under the statute of limitations in 19 U.S.C. § 1621.
forfeiture, or where the type of property seized is not subject to administrative forfeiture at all. (Pet. 10-11 & n.6). According to the government, it is therefore notice, not seizure, that begins a nonjudicial forfeiture triggering CAFRA’s timelines, and here, the government contends, no such notice was sent. (Pet. 12-13). The government’s argument that notice, not seizure, is always what commences a nonjudicial forfeiture proceeding, in addition to being wrong, would not change the analysis and outcome in this case. The record is clear that the government both seized the Coins (unconstitutionally) and, at the same time, provided written notice to the Langbords that it intended to keep the Coins because it believed they were stolen property. (JA152; JA823). A nonjudicial forfeiture proceeding – i.e., the confiscation of property outside of any judicial process – therefore had been commenced under either interpretation. The Langbords then timely filed a seized asset claim, and the government failed to commence a judicial forfeiture proceeding within the 90-day limit. As the Panel majority correctly held, the fact that the notice also included the words the “Mint has no intention of seeking forfeiture” (JA143-44) does not alter the reality of what the government actually did (act nonjudicially to forfeit the Coins) and then failed to do (timely file a civil action following receipt of a seized asset claim). To rule otherwise would lead to the absurd result that the government could “avoid the protections Congress sought to put in place simply by saying ‘we are not seeking forfeiture.’” (Maj. Op. 14). Beyond the fact that the notice vs. seizure debate is academic in this case, and therefore does not warrant rehearing en banc, the government offers no explanation for why the Panel majority’s textual analysis of §§ 983(a)(1)-(a)(3) is wrong. If notice, and
not just seizure, is required to start a nonjudicial forfeiture proceeding, why would § 983(a)(1)(A)(i) talk about “any nonjudicial civil forfeiture proceeding under a civil forfeiture statute, with respect to which the Government is required to send written notice to interested parties”? (Maj. Op. 20). Also, as the majority explained, § 983(e)(1) – which permits a motion to set aside a declaration of forfeiture where written notice has not been received – further supports the finding that notice is not required to commence a nonjudicial forfeiture proceeding. (Id. at 20-21). And, § 983(a)(2)(A) – which provides that “any person claiming property seized in a nonjudicial civil forfeiture proceeding . . . may file a claim with the appropriate official after the seizure” (emphasis added) – would similarly be nonsensical if such a proceeding is not commenced until the necessarily post-seizure step of the government sending written notice. In addition, the government again misreads the majority opinion on this point. The majority holds only that a nonjudicial forfeiture proceeding “begins” or is “commenced” by a seizure and that “[.H]ere” – i.e., in this case – “the Government’s seizure of the property is rightfully considered a nonjudicial civil forfeiture proceeding.” (Maj. Op. 19-22). This makes perfect sense, especially since, under the facts of this case, the seizure and the notice occurred at the same moment – when the government announced in writing that it would not return the Coins and would be keeping them on the theory that they were stolen government property. (JA152; JA823). But saying that a nonjudicial forfeiture proceeding is “commenced” by a seizure does not mean – and the majority opinion is not reasonably read to hold – that every seizure in every case therefore is a nonjudicial forfeiture proceeding triggering the time limits in § 983. For example, if property is lawfully seized pursuant to a search warrant for investigative or
evidentiary purposes, and not for the purpose of confiscating, forfeiting or keeping the property permanently, nothing in the majority opinion holds that CAFRA’s protections apply. (See Pet. 13 n.10). But that is not this case, where the property was seized unlawfully, the government maintained from that moment on that it was entitled and intended to permanently retain the Coins because it believed they were stolen, and the government never articulated an evidentiary or non-forfeiture basis for the seizure. (See Appellants’ Br. 27-29). In its petition, the government even tries to resuscitate an argument based on 19 U.S.C. § 1607 that was barely mentioned and buried in a footnote in its brief before the Panel: i.e., that the Coins were worth too much to be administratively forfeited. (Pet. 11; Gov’t Br. 26 n.13). This argument fails. The Coins clearly were eligible for nonjudicial forfeiture under §1607(a)(4), which includes “any monetary instrument within the meaning of” 31 U.S.C. § 5312(a)(3). Section 5312(a)(3) in turn defines “monetary instruments” to include “United States coins.” By any reasonable understanding, the 1933 Double Eagles – created by the Mint, bearing the name and symbols of the United States, and denominated as having a $20 value – are “United States coins.”8 In addition, the government has asserted from the beginning that the Coins are stolen government property, which also would render them subject to administrative forfeiture under § 1607(a)(2), which authorizes nonjudicial forfeiture for any property, the importation of which would be prohibited. On the government’s theory that the Coins
8 Indeed, the 1933 Double Eagles are referred to as “coins” by the government throughout the pre-litigation record, including in the caption and body of the judicial forfeiture complaint the government brought in its earlier attempt to forfeit the 1933 Double Eagle coin seized from Stephen Fenton. (See United States v. One 1933 United States Double Eagle Gold Coin, at JA5233-242).
were stolen, importation would be prohibited by 18 U.S.C. § 2314 and 19 U.S.C. § 1595a(c)(1)(A). Indeed, by refusing to go to court, and instead forfeiting the Coins nonjudicially, the government effectively admitted by its conduct that §§ 1607 and 1610 erected no barrier to its actions. The government should not be heard to reverse course now in a last-ditch effort to raise § 1607 as a shield against the consequences of its unlawful acts. Moreover, to the extent the purpose of §§ 1607 and 1610 is to require that forfeitures of certain high-value property be brought in court, not through an abbreviated administrative process, § 1607 cannot be used to evade the procedures governing administrative forfeiture where – as here – the government refused the more protective judicial route and effectuated a nonjudicial forfeiture. Conclusion. For all of these reasons, the Petition for Rehearing en banc should be denied. The Panel majority’s decision is not “contrary to unanimous authority” – or any authority – “regarding the property interests of the United States.” (Pet. 1). It will not upend the government’s forfeiture efforts. And it correctly finds that the Coins must be returned to the Langbord family as a result of the government’s illegal actions and a straightforward application of CAFRA’s clear timelines and penalties. Dated: July 20, 2015 Respectfully submitted, /s/ Barry H. Berke Barry H. Berke Eric A. Tirschwell RobinWilcox Kramer Levin Naftalis & Frankel LLP 1177 Avenue of the Americas New York, NY 10036 (212) 715-9100
CERTIFICATE OF SERVICE I hereby certify that this pleading has been served on the Filing Users identified below through the Electronic Case Filing (ECF) system: Robert A. Zauzmer, Esq. Nancy Rue, Esq. Jacqueline C. Romero, Esq. Office of United States Attorney 615 Chestnut Street, Suite 1250 Philadelphia, PA 19106 /s Eric A. Tirschwell Eric A. Tirschwell DATED: July 20, 2015. Case: 12-4574 Document: 003112022832 Page: 17 Date Filed: 07/20/2015
Thank you to SanctionII for your expert analysis of the Langboards reply to the government petition for rehearing and thank you again Ms.Morrisine for reprinting the complete Langboards lawyer reply to the government petition for rehearing. The documentation this case has had in the last three months thru now of almost NINE HUNDRED posts to this thread is truly a reflection of the interest the case has had. I'm NO legal geek but I am impressed with how the Langbord lawyer presented his arguments. I'm one who would like to see the court reaffirm the panel's decision and then hopefully see the coins returned. I hope we can get the court's decision in the next couple of weeks. Anyone have any ideas WHEN the court will rule? Steve
From reading the government's brief on this (it was summarized and quoted from extensively in this week's Coin World), you would think that the entire government of the United States is in imminent danger of collapse if these 10 metal disks are not kept in the drawer of some bureaucrat's desk.
I'm glad the Langbord's lawyer used gentle humor to point out the desperation of the government's attorneys.
Dave Wnuck. Redbook contributor; long time PNG Member; listed on the PCGS Board of Experts. PM me with your email address to receive my e-newsletter, and visit DaveWcoins.com Find me on eBay at davewcoins
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One can not place too much importance on the April 17, 2015 decision of the three Justice Panel of the 3rd District Court Of Appeal in the Langbords' case over the 10 1933 Double Eagles.
The impact of that decision on the case is major. It gave a 100% victory to the Langbords by concluding that the 10 Double Eagles should be returned to them. That decision did not give only partial relief (such as vacating the trial court judgment and sending the case back to the trial court with instructions to have a new trial of the case).
Given the statistical data on the very low percentage of Petitions For Rehearing that are granted and given the very low percentage of Petitions to the US Supreme Court that are granted the Langbords are currently positioned very well in this case. Even if the current Petition For Rehearing is granted and even if the US Supreme Court would grant a Petition asking it to take up the case, there is no assurance that either court would set aside the April 17, 2015 decision.
The fat lady has not taken the stage yet, but she is in her dressing room warming up her pipes.
Why was Izzy so evasive when questioned by SS agents about how he obtained the coins? Legitimate exchange of old for new at the Mint window didn't happen or Izzy would have told SS that's how he obtained the coins.The coins are stolen.Favorable ruling for the Langbords doesn't change the history of what happened in the '30's at the Mint. Preponderance of evidence standard was met in trial court. Brilliant Langbord lawyering is not how the Langbords win. A miscalculation of possible dire consequences is what screwed this case up for gov.
Great spirits have always encountered violent opposition from mediocre minds.-Albert Einstein
<< <i>Why was Izzy so evasive when questioned by SS agents about how he obtained the coins? Legitimate exchange of old for new at the Mint window didn't happen or Izzy would have told SS that's how he obtained the coins.The coins are stolen.Favorable ruling for the Langbords doesn't change the history of what happened in the '30's at the Mint. Preponderance of evidence standard was met in trial court. Brilliant Langbord lawyering is not how the Langbords win. A miscalculation of possible dire consequences is what screwed this case up for gov. >>
As I said before they probably couldn't meet the burden of proof to prevail in a CAFRA proceeding. They were doomed if they did and doomed if they didn't file a CAFRA forfeiture action.
To the extent that the use of the word "miscalculation" by Mr1874 implies a mistake or negligence on the part of the government, that is incorrect. The decision to not file a timely forfeiture proceeding was the result of conscious, intentional, choice by people at the Mint. It was made against the positions taken by other government agencies that a forfeiture proceeding should have been filed (as it was in the Fenton case).
In hind sight the decision to not file a timely forfeiture proceeding was a wrong one. Both the trial court judge and two (or even three) Justices of the Court Of Appeal that issued the 4-17-2015 decision concluded that a forfeiture proceeding should have been filed. However, no one can say the Mint's decision was the result of a mistake or of negligence.
<< <i>To the extent that the use of the word "miscalculation" by Mr1874 implies a mistake or negligence on the part of the government, that is incorrect. The decision to not file a timely forfeiture proceeding was the result of conscious, intentional, choice by people at the Mint. It was made against the positions taken by other government agencies that a forfeiture proceeding should have been filed (as it was in the Fenton case).
In hind sight the decision to not file a timely forfeiture proceeding was a wrong one. Both the trial court judge and two (or even three) Justices of the Court Of Appeal that issued the 4-17-2015 decision concluded that a forfeiture proceeding should have been filed. However, no one can say the Mint's decision was the result of a mistake or of negligence. >>
A few days before the scheduled start of the Fenton forfeiture trial (the Fenton case was filed by the government in the 1990's, prior to the enactment of CAFRA) the government attorney called Fenton's attorney and proposed that the case be settled with the coin being auctioned and the sales proceeds split equally between the government and Fenton.
<< <i>Why was Izzy so evasive when questioned by SS agents about how he obtained the coins? Legitimate exchange of old for new at the Mint window didn't happen or Izzy would have told SS that's how he obtained the coins.The coins are stolen.Favorable ruling for the Langbords doesn't change the history of what happened in the '30's at the Mint. Preponderance of evidence standard was met in trial court. Brilliant Langbord lawyering is not how the Langbords win. A miscalculation of possible dire consequences is what screwed this case up for gov. >>
He invoked his Fifth Amendment right to obfuscate!
Numismatist. 50 year member ANA. Winner of four ANA Heath Literary Awards; three Wayte and Olga Raymond Literary Awards; Numismatist of the Year Award 2009, and Lifetime Achievement Award 2020. Winner numerous NLG Literary Awards.
Just finished reading the Langbords' answer in detail.
It is an example of very good legal writing.
It addresses the points and arguments made by the government in its Petition For Rehearing (which has a tenor of "the Langbords are the family members and descendants of a thief who will obtain a windfall of millions of dollars if the decision of the Court Of Appeal stands"; and "the Government will be hog tied and put in a place of extreme disadvantage in the area of Asset Forfeiture and deprived of the ability to effectively take action to recover stolen government property if the decision of the Court Of Appeal stands"; and "we need to look at the bigger picture and not trouble ourselves with the facts of this specific case") and it refutes each and every one. The Langbords' answer directs one's attention to the specific facts of this case, points out the government's failure to follow the law and explains why the decision of the Court Of Appeal will not result in the sky falling over the USA if it is not vacated and set aside. It further explains why the government's Petition For Rehearing and its Rule 35.1 Statement does not set forth the content required by Rule 35.1 [including it does not contain the required citation to published 3rd Circuit Court Of Appeal and/or US Supreme Court cases that are in conflict with the Court Of Appeal decision of 4-17-2015].
<< <i>Why was Izzy so evasive when questioned by SS agents about how he obtained the coins? Legitimate exchange of old for new at the Mint window didn't happen or Izzy would have told SS that's how he obtained the coins.The coins are stolen.Favorable ruling for the Langbords doesn't change the history of what happened in the '30's at the Mint. Preponderance of evidence standard was met in trial court. Brilliant Langbord lawyering is not how the Langbords win. A miscalculation of possible dire consequences is what screwed this case up for gov. >>
He invoked his Fifth Amendment right to obfuscate!
>>
speaking of which...
here is as cut-n-paste directly from the reply @ the top of page 9:
<< <i>Not only does the government thus misrepresent the state of the decisional law; it also blatantly and repeatedly misstates the text of the relevant provision. Thus, whereas § 983(a)(2) states “[a]ny person claiming property seized in a nonjudicial forfeiture proceeding under a civil forfeiture statute may file a claim with the appropriate official after the seizure . . . ” (emphasis added), the government changes the critical words “after the seizure” to “after receiving notice,” perhaps hoping nobody would notice where it closed its quotation marks. (See Pet. 10 (stating – incorrectly – that “Section 983(a)(2) allows ‘[a]ny person claiming property seized in a nonjudicial forfeiture proceeding’ to file a claim after receiving notice”) (emphasis added)). >>
this is no joke.
the lawyers for the government quoted this from the CAFRA statute word for word: "[a]ny person claiming property seized in a nonjudicial forfeiture proceeding"
keep in mind that is what the government lawyers chose to quote for their case.
they then follow with (emphasis mine): to file a claim after receiving notice
if the government was so honest, why did they quote the uncontested and trivial portion of the CAFRA statute and CHANGE the precise wording of the latter portion of the relevant text -- a change from "after seizure" to “after receiving notice"?
This is no joke. They flat out edited the relevant wording of the statute to words in their choosing and favor.
The fact that the government did this does two things it reaffirms CAFRA was needed and it frightens the hell out of me
now suddenly I'm not so worried about the fate of 10 or any other number of contested 1933 Double Eagles.
How do they get away with this, especially at this level? This is not Podunk County Traffic Court!
<< <i>Why was Izzy so evasive when questioned by SS agents about how he obtained the coins? Legitimate exchange of old for new at the Mint window didn't happen or Izzy would have told SS that's how he obtained the coins.The coins are stolen.Favorable ruling for the Langbords doesn't change the history of what happened in the '30's at the Mint. Preponderance of evidence standard was met in trial court. Brilliant Langbord lawyering is not how the Langbords win. A miscalculation of possible dire consequences is what screwed this case up for gov. >>
If you were Izzy...place yourself in the timeframe.....would you tell the overbearing SS agents how you got the coins?????? There was no theft!
I read the entire response and summarized my thoughts above. But must further comment on the misquote by the government. I hope someone spends a weekend in jail over that little trick
As is often attributed to Sherlock Holmes, "The game is afoot!"
IMHO and I am NOT a lawyer, the Mint attorneys overstated their position and thus refused to respond as required by law. I am NOT surprised by this, knowing the participants on the Mint side. FYI, I do not believe there was any outside influence from Treasury to that decision. The arrogance regarding the government and the treatment of the 1933 DEs has been consistent over the year and also NOT influenced by the resident in the White House or his party. The Mint is the sleepy backwater of government and the lawyers there rarely deal in complex sophisticated cases.
Retired United States Mint guy, now working on an Everyman Type Set.
Comments
<< <i>"Who can be unhappy with the arrangements such as seen above?"
I can think of two:
#1.The Government; and
#2. The Langbords.
I think that this is an all or nothing deal. Even if the Langbords wanted to deal, I don't think that the government would.
1947-P & D; 1948-D; 1949-P & S; 1950-D & S; and 1952-S.
Any help locating any of these OBW rolls would be gratefully appreciated!
<< <i>"Who can be unhappy with the arrangements such as seen above?"
I can think of two:
#1.The Government; and
#2. The Langbords.
And the owner of the Farouk specimen.
http://www.shieldnickels.net
<< <i>And the owner of the Farouk specimen. >>
This person will have a dilemma if the Langbord coins go to the family. The Farouk coin owner has carefully guarded his identity, but will have to go public if they wish to litigate against the government for violating the terms of sale.
<< <i>
<< <i>And the owner of the Farouk specimen. >>
This person will have a dilemma if the Langbord coins go to the family. The Farouk coin owner has carefully guarded his identity, but will have to go public if they wish to litigate against the government for violating the terms of sale. >>
The Government promised no others would be monetized. I see no reason for them to again put on the charade of collecting $20 at the sale. They can easily keep that promise.
<< <i>
<< <i>This person will have a dilemma if the Langbord coins go to the family. The Farouk coin owner has carefully guarded his identity, but will have to go public if they wish to litigate against the government for violating the terms of sale. >>
The Government promised no others would be monetized....They can easily keep that promise. >>
Regardless of what was put into writing, the Farouk buyer had a reasonable expectation that the coin would remain "unique." Whether that can be enforced I am not sure, but there is no doubt it can be litigated, probably for a long time.
<< <i>
<< <i>
<< <i>This person will have a dilemma if the Langbord coins go to the family. The Farouk coin owner has carefully guarded his identity, but will have to go public if they wish to litigate against the government for violating the terms of sale. >>
The Government promised no others would be monetized....They can easily keep that promise. >>
Regardless of what was put into writing, the Farouk buyer had a reasonable expectation that the coin would remain "unique." Whether that can be enforced I am not sure, but there is no doubt it can be litigated, probably for a long time. >>
The only uniqueness was the monetization - there are others in the Smithsonian
<< <i>
<< <i>
<< <i>
<< <i>This person will have a dilemma if the Langbord coins go to the family. The Farouk coin owner has carefully guarded his identity, but will have to go public if they wish to litigate against the government for violating the terms of sale. >>
The Government promised no others would be monetized....They can easily keep that promise. >>
Regardless of what was put into writing, the Farouk buyer had a reasonable expectation that the coin would remain "unique." Whether that can be enforced I am not sure, but there is no doubt it can be litigated, probably for a long time. >>
The only uniqueness was the monetization - there are others in the Smithsonian >>
If the coins passed assay muster [which I believe they did] and the results forwarded to the coiner at the Philly mint then they are already monetized, just as all previously struck DEs were. Nobody has apparently answered my previous query about whether the coins had to be released for/to circulation in order to complete the monetizing process.
MY COINS FOR SALE AT https://www.pcgs.com/setregistry/collectors-showcase/other/bajjerfans-coins-sale/3876
<< <i> Nobody has apparently answered my previous query about whether the coins had to be released for/to circulation in order to complete the monetizing process. >>
It's my understanding that the concept of "monetizing" didn't exist when the '33 double eagles were minted (the concept may have been invented as part of the Farouk specimen deal).
So I think the question is unanswerable in the context of standard practice when the '33 double eagles were minted.
http://www.shieldnickels.net
<< <i>Langbords win. >>
I dunno. It sure doesn't seem that way.
<< <i>
<< <i>Langbords win. >>
I dunno. It sure doesn't seem that way. >>
They haven't lost yet either.
MY COINS FOR SALE AT https://www.pcgs.com/setregistry/collectors-showcase/other/bajjerfans-coins-sale/3876
<< <i>
<< <i> Nobody has apparently answered my previous query about whether the coins had to be released for/to circulation in order to complete the monetizing process. >>
It's my understanding that the concept of "monetizing" didn't exist when the '33 double eagles were minted (the concept may have been invented as part of the Farouk specimen deal).
So I think the question is unanswerable in the context of standard practice when the '33 double eagles were minted. >>
According to member Deepcoin, they were monetized. All DEs struck and put into circulation were monetized, it was just never stated as such.
Also, since none were ever reported to be missing I'd say it's a strong possibility that the mint got their $20 in exchange for the ones that got out.
From Merriam-Webster........
Monetize
1 : to coin into money; also : to establish as legal tender
MY COINS FOR SALE AT https://www.pcgs.com/setregistry/collectors-showcase/other/bajjerfans-coins-sale/3876
I am so sorry to laugh, or scoff at this word. Assigning a value is what the U.S. Treasury did after requiring all gold coinage to be turned in except for those "collectibles" which were already monetized, but collectible. The government is trying to skirt ex post facto laws with writers for them , doing a great job of suggesting that COIN DEALERS are to blame.
$20 minted on these specimens is monetization. What's done is done. What's out is out.
A little off topic, but hey….. Let's burn a confederate flag today .
<< <i>
<< <i>
<< <i>Langbords win. >>
I dunno. It sure doesn't seem that way. >>
They haven't lost yet either. >>
They are leading in the home stretch.
The Mysterious Egyptian Magic Coin
Coins in Movies
Coins on Television
An who will play King Farouk in the film?
The Mysterious Egyptian Magic Coin
Coins in Movies
Coins on Television
My film only references Farouk.Farouk is important to the story.Really,a big story within a much bigger story.
Besides,do you have any idea how much it costs to shoot a movie in Egypt?
Great spirits have always encountered violent opposition from mediocre minds.-Albert Einstein
My Complete PROOF Lincoln Cent with Major Varieties(1909-2015)Set Registry
My Complete PROOF Lincoln Cent with Major Varieties(1909-2015)Set Registry
<< <i>"It ain't over till it's over" - Yogi Berra
An who will play King Farouk in the film?
Sydney Greenstreet. And if he is not available, Victor Buono.
Sydney Greenstreet. And if he is not available, Victor Buono.
I did a double take there captain.I thought you wrote Victor (D) Brenner playing King Farouk.
if it will vigorously be defending the CAFRA decision of the panel and pointing out that there is NO proof that the coins were stolen from the US Mint
For gov,the Langbord case has overwhelming circumstantial evidence resulting in a preponderance going for it.Do you know if those 10 Langbord pieces were dusted when gov got ahold of them?
Great spirits have always encountered violent opposition from mediocre minds.-Albert Einstein
<< <i>
if it will vigorously be defending the CAFRA decision of the panel and pointing out that there is NO proof that the coins were stolen from the US Mint
For gov,the Langbord case has overwhelming circumstantial evidence resulting in a preponderance going for it.Do you know if those 10 Langbord pieces were dusted when gov got ahold of them? >>
Not relevant as the courts have already decided [whether anyone else agrees with them or not] that the coins were stolen. The government improperly confiscated the coins without due process. Funny thing about technicalities is that they're great when they work for you but suck when they work agin ya. Methinks that in spite of previous rulings that the Government could not meet the burden of proof in order to prevail in a CAFRA hearing.
MY COINS FOR SALE AT https://www.pcgs.com/setregistry/collectors-showcase/other/bajjerfans-coins-sale/3876
I wonder if they get into the theft and hearsay aspects or just stick to the 4.5 years and CAFRA.
They could likely stick to just CAFRA, but if I had room in the 15 pages, I'd throw all I could in there.
and this is going to be the same deal as the gov't request. they have until midnight Monday, barring tech problems, to e-file.
The coins were found in the jewelry shop? I was reading that the shop is junky and cluttered.Izzy could have had more than one hiding place.The bench should be checked thoroughly.There are many hiding places in the bench.
Great spirits have always encountered violent opposition from mediocre minds.-Albert Einstein
<< <i>The gov did use some pretty blunt language in their last petition.I was expecting their petition to be less aggressive than it was.When it comes to spinning a yarn the gov has a huge advantage over Langbords.Really,there isn't much of a story for the Langords to tell.I'm confused about what kind of box the coins were found in.I thought for the longest time the coins were discovered in a bank safety deposit box.
The coins were found in the jewelry shop? I was reading that the shop is junky and cluttered.Izzy could have had more than one hiding place.The bench should be checked thoroughly.There are many hiding places in the bench. >>
I was under the impression that Joan Langbord visited the SDB numerous times. The coins may well have been in the SDB and she played musical hiding places.
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My Complete PROOF Lincoln Cent with Major Varieties(1909-2015)Set Registry
It opens by stating:
"It is often said in legal circles that when the facts are against you, pound the law; when the law is against you, pound the facts; and when the facts and the law are against you, pound the table. The government's Petition For Rehearing (the "Petition") contains much table pounding. Along the way , the government omits critical facts and misstates others, presents an inaccurate, distorted and misleading picture of the law, and improperly raises new arguments and cases not presented to the original Panel."
The answer asserts that the Petition For Rehearing should be denied. It asserts that the Petition For Rehearing does not meet the standards required for such a Petition (the standards are set forth in the 3rd District Court Of Appeal Local Appellate Rules, Rule 35.1 which states:
L.A.R. 35.0 DETERMINATION OF CAUSES BY THE COURT EN BANC
35.1 Required Statement for Rehearing En Banc
Where the party seeking rehearing en banc is represented by counsel, the petition must
contain, so far as is pertinent, the following statement of counsel:
"I express a belief, based on a reasoned and studied professional judgment,
that the panel decision is contrary to decisions of the United States Court of
Appeals for the Third Circuit or the Supreme Court of the United States, and
that consideration by the full court is necessary to secure and maintain
uniformity of decisions in this court, i.e., the panel's decision is contrary to
the decision of this court or the Supreme Court in [citing specifically the case
or cases], OR, that this appeal involves a question of exceptional importance,
i.e., [set forth in one sentence].")
The Langbords answer asserts that nothing in the majority opinion of the court issued on 4-17-2015 is “contrary to decisions of the United States Court of Appeals for the Third Circuit or the Supreme Court of the United States” (a basis under Rule 35.1 for en banc review).
The Langbords answer also asserts that nor is “consideration by the full court [] necessary to secure and maintain uniformity of decisions in this court,” (a basis under Rule 35.1 for en banc review); and that the government concedes as much by failing to specify the required case citations in its L.A.R. Rule 35.1 statement.
The Langbords answer asserts that the 4-17-2015 decision will not cause the sky to fall in the world of forfeiture or prevent the government from recovering its own property in future cases and thus does not involve a "questions of exceptional importance under L.A.R. Rule 35.1; and further asserts that to the extent that the government is blocked, IN THIS CASE, from seeking certain remedies it is because of the government's own, intentional, knowing behavior in this case (unconstitutionally seizing the ten double eagles and then refusing to commence a judicial forfeiture proceeding on the preposterous theory [rejected by the trial court judge and by the majority decision of the court of appeal] that the government may simply help itself, and need not follow the law, whenever it acts to confiscate what it believes to be stolen government property.).
The answer then proceeds to present detailed legal arguments on various topics as to why the 4-17-2015 decision is correct and why rehearing is not necessary.
The tenor of the answer focuses on the Mint's decision to not file a forfeiture proceeding against the recommendation of multiple other government agencies and to refuse to comply with the obligations placed upon it by Congress when it enacted CAFRA; that the government should be required to follow the law; and that the government should be subjected to the consequences of not following the law.
The answer, in a footnote, briefly responded to the government's characterization of Mr. Switt as a thief in its Petition. The Langbords answer cites to government reports which do not support the characterization of Mr. Switt as a thief; and points out that they argued in their appeal that the jury verdict should be overturned because of trial court error in admitting hearsay and other objectionable material into evidence that should have been excluded.
It will be interesting to see how the court rules on the Petition For Rehearing. Statistically very few of these petitions are granted. If the Petition is denied then the next stop (if the government decides to press on) is a Petition by the government to the US Supreme Court requesting that it review the case. If the Petition For Rehearing is granted further proceedings will take place before the full panel of Justices on the 3rd Circuit Court Of Appeal. I do not know what those further proceedings will consist of but presume that they would include at least one hearing before the court where the attorneys would present oral argument. They may even include a further round of briefing.
If anyone wants a copy of the answer send me a PM with your email.
IN THE
United States Court of Appeals
FOR THE THIRD CIRCUIT
ROY LANGBORD, DAVID LANGBORD, JOAN LANGBORD
Plaintiffs-Appellants,
—v.—
UNITED STATES DEPARTMENT OF THE TREASURY, UNITED STATES BUREAU OF THE
MINT, SECRETARY OF THE UNITED STATES DEPARTMENT OF THE TREASURY,
ACTING GENERAL COUNSEL OF THE UNITED STATES DEPARTMENT OF THE
TREASURY, DIRECTOR OF THE UNITED STATES MINT, CHIEF COUNSEL UNITED
STATES MINT, DEPUTY DIRECTOR OF THE UNITED STATES MINT, JOHN DOE NOS. 1
TO 10 “John Doe” Being Fictional First and Last Names, UNITED STATES OF AMERICA,
Defendants-Appellees.
_______________________________
UNITED STATES OF AMERICA,
Third Party Plaintiff,
—v.—
TEN 1933 DOUBLE EAGLE GOLD PIECES,
ROY LANGBORD, DAVID LANGBORD, JOAN LANGBORD,
Third Party Defendants,
ROY LANGBORD, DAVID LANGBORD, JOAN LANGBORD,
Appellants.
____________
ON APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
ANSWER TO GOVERNMENT’S PETITION
FOR REHEARING EN BANC
BARRY H. BERKE, ESQ.
ERIC A. TIRSCHWELL, ESQ.
ROBINWILCOX, ESQ.
KRAMER LEVIN NAFTALIS
&FRANKEL LLP
1177 Avenue of the Americas
New York, New York 10036
(212) 715-9100
Attorneys for Plaintiffs-Appellants
Case: 12-4574 Document: 003112022832 Page: 1 Date Filed: 07/20/2015
It is often said in legal circles that when the facts are against you, pound the law;
when the law is against you, pound the facts; and when the facts and the law are against
you, pound the table. The government’s Petition for Rehearing (the “Petition”) contains
much table pounding. Along the way, the government omits critical facts and misstates
others, presents an inaccurate, distorted and misleading picture of the law, and
improperly raises new arguments and cases not presented to the original Panel.
The Petition should be denied. The Panel majority recognized that this case is
about an unconstitutional abuse of power and holding the government accountable for
its unlawful acts. The majority opinion is a meticulously reasoned, logical, and correct
application of the clear dictates of the Civil Asset Forfeiture Reform Act (“CAFRA”).
Nothing in it is “contrary to decisions of the United States Court of Appeals for the Third
Circuit or the Supreme Court of the United States,” nor is “consideration by the full
court [] necessary to secure and maintain uniformity of decisions in this court,” 3d Cir.
L.A.R. 35.1 (2008); indeed, the government concedes as much by failing to specify the
required case citations in its L.A.R. 35.1 statement.
The government’s table-pounding notwithstanding, the decision will not cause
the sky to fall in the world of forfeiture or prevent the government from recovering its
own property in future cases, and thus does not involve a “question of exceptional
importance” under L.A.R. 35.1. To the extent the government in this case is blocked
from seeking certain remedies, it is because of the government’s own intentional,
knowing behavior in this case – i.e., unconstitutionally seizing the 1933 Double Eagles
(the “Coins”), and then refusing to commence a judicial forfeiture proceeding on the
preposterous theory, rejected by the District Court and the Panel majority and dissent
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alike, that the government may simply help itself, and need not follow the law, whenever
it acts to confiscate what it believes to be stolen government property.
The Government’s Unconstitutional Conduct. We begin with the central findings
– never mentioned in the Petition – that were unanimously agreed on by the District
Judge, the Panel majority and the dissent (and which the government chose not to
cross-appeal): the government seized the Co/u]ins from the Langbords, and in doing so,
the government violated their constitutional rights. (Maj. Op. 14 (“the Government’s
seizure of [the Double Eagles] was unconstitutional, as the District Court determined”);
Diss. Op. 1 (“The Government . . . acted unconstitutionally when it seized the ten Golden
Eagle coins . . .”)). This illegal act by the government followed the Langbords’ decisions
to (a) voluntarily come forward in 2004, knowing 1933 Double Eagles had been the
subject of controversy, (b) apprise the government that they had found the ten Coins, (c)
turn the Coins over (at the government’s request) for the limited purpose of
authentication while reserving all rights, and (d) explore whether an agreement could be
worked out, perhaps along the lines of the settlement the government had recently
entered into with another owner of a contested 1933 Double Eagle. (Maj. Op. 6-7
(describing the 2002 Fenton settlement, where one 1933 Double Eagle was auctioned
and the proceeds split evenly between the owner and the government)).
Once the Coins were authenticated, instead of discussing the issues and a
possible resolution with the Langbords, the government instead unilaterally decided to
confiscate and keep the Coins – without following the law or affording the Langbords
any process whatsoever. Why? Because the government believed (but had not proven)
that the Coins had somehow been “taken out of the United States Mint in Philadelphia
Case: 12-4574 Document: 003112022832 Page: 3 Date Filed: 07/20/2015
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in an unlawful manner” in the 1930s (JA143-44; JA 823).
When the United States Mint made this intentional, unlawful and
unconstitutional decision not to seek forfeiture in court or pursue any other lawful
avenue to retain the seized Coins – even after the Langbords submitted a “seized asset
claim” under 18 U.S.C. § 983(a)(2)(A) – it knew that it was flouting the requirements of
CAFRA because its actions contradicted the advice of senior legal officials from “‘[a]ll
the agencies involved,’” including the U.S. Attorney’s Office, the Treasury Executive
Office for Asset Forfeiture, and the Secret Service, which were “‘in favor of pursuing
forfeiture’”; only the U.S. Mint wanted to try to keep the Coins “‘without the need for
forfeiture.’” (Maj. Op. 7 (quoting JA818)). In other words, as the Panel majority wrote,
the record shows that “the Government knew that it was obligated to bring a judicial
civil forfeiture proceeding or to return the property, but refused to do so.” (Id. at 27).
As a result, the government violated not only CAFRA, but the Fifth Amendment as well.
The government’s failure to even acknowledge its own unconstitutional actions is
no immaterial omission. It is the inconvenient truth that the government cannot avoid,
and the answer to many of the government’s fallacious arguments.1
1Although not directly relevant to the issues in the Petition, the government’s repeated
references to Israel Switt as a “thief” – and its claim that the Langbords “never
challenged” this point on appeal – demand a response. (Pet. 1-2 & n.1). As its own
reports make clear, the Secret Service investigation in the 1940s did “not conclusively
establish when, how, or by whom the coins found in circulation were taken from the
Philadelphia Mint, although the evidence pointed very strongly toward [former Mint
cashier] George A. McCann….” (JA4928; JA5007). Switt was identified not as the thief
but as the source of 1933 Double Eagles sold to various collectors. (JA22-23; JA4928).
While the jury’s 2010 forfeiture verdict may have reflected a determination that the
Coins were stolen from the Mint, there was no specific finding that Switt was the “thief.”
Moreover, the Langbords argued at length in their appeal that the jury’s verdict should
be overturned because, inter alia, the District Court erred in admitting a large volume of
inadmissible, unimpeachable hearsay and other unfairly prejudicial material, and had
erroneously instructed the jury on various key issues. (Appellants’ Br. 40-70). Although
Case: 12-4574 Document: 003112022832 Page: 4 Date Filed: 07/20/2015
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Declaratory Judgment. The government begins by trying to resuscitate its
declaratory judgment claim, arguing that the Panel majority “erred in not recognizing
that the government acted in this case not as law enforcer, but as property owner.” (Pet.
3-4). That is simply false. The government here seized the coins, it did so
unconstitutionally, and it is precisely because the government acted as law enforcer, and
did so illegally, that certain consequences follow. Having seized the Coins and notified
the Langbords of its intention to keep them, the government cannot now cry foul
because the panel majority held it to the timelines Congress put in place through CAFRA
to protect individuals from whom the government seizes and confiscates property.
The government continues to peddle the fiction that “[w]hen the government
finds and recovers actual property stolen from it (as opposed to proceeds), it does not
‘forfeit’ it. It instead acts to recover it.” (Pet. 4). It is difficult to understand what this is
supposed to mean – but what is clear is that in this case the government did not “find”
or “recover” the Coins, it unconstitutionally seized them, and then made a decision to
permanently keep them without affording the Langbords any process whatsoever. The
Panel majority therefore correctly rejected the government’s argument that “stolen
government property falls outside the protections of CAFRA,” explaining that “Congress
footnote 1 continued
it did not reach any of these trial error issues, the Panel majority agreed with the
Langbords that the District Court had erred in admitting into evidence multiple layers of
hearsay from the Secret Service reports from the 1940s. (Maj. Op. at 10-11 & n.5). In
sum, to this day there is no reliable verdict as to how these Coins left the Mint.
In that regard, the government continues to misstate and oversimplify the facts when it
claims that President Roosevelt “directed that the 445,500 1933-dated Double Eagles
that had recently been minted in Philadelphia not be issued.” (Pet. 1). In fact, for
several weeks after President Roosevelt took office, the Mint was authorized to release
gold coins in exchange for gold deposits. (See Appellants’ Br. 5).
Case: 12-4574 Document: 003112022832 Page: 5 Date Filed: 07/20/2015
- 5 -
has specifically enumerated theft or embezzlement of government property [under 18
U.S.C. § 641] as one of the crimes to which CAFRA applies.” (Maj. Op. 12).2
The government next argues that the panel majority opinion would limit the
government to forfeiture as the “only remedy” with respect to “the government’s own
stolen property” (Pet. 5) – “even the greatest national treasures” (Pet. 9). This grossly
misstates what the Panel majority held. In throwing out the declaratory judgment
claim, the Panel majority ruled out only one non-forfeiture remedy in this case – the
discretionary and equitable declaratory judgment remedy. The government fails to
acknowledge that there were other non-forfeiture remedies besides declaratory
judgment that the government might have pursued here, but chose not to in furtherance
of its unconstitutional effort to deprive the Langbords of any process whatsoever. For
example, as the District Court observed, had the government not illegally seized the
Coins, it could have pursued a replevin claim, the very claim it brought over 60 years
ago in seeking to recover another 1933 Double Eagle in the Barnard case. (JA156
(“Barnard serves as an example of a reasonable course of action available to the
Government to recover a coin that it believed to have been stolen.”)).
But in this case, the government’s decision to break the law instead of following it
has consequences. As the District Court correctly held, in a ruling the government did
not challenge on appeal, having seized and retained possession of the Coins (in violation
2 Similarly unavailing is the government’s related argument that forfeiture “transfers
title to the government,” and therefore was in this case “unnecessary, given that the
government retains title to property that has been stolen from it.” (Pet. 2-3). If
adopted, the government’s “transfer of title” argument would lead to the absurd result
that any time the government asserts property was stolen from it, it could simply take it
back (through a seizure or otherwise) and keep it, without affording the individual who
possessed it with any process whatsoever. The Panel majority correctly rejected this
spurious argument, as did the three government agencies with forfeiture expertise.
Case: 12-4574 Document: 003112022832 Page: 6 Date Filed: 07/20/2015
- 6 -
of the Langbords’ constitutional rights), the government lost the ability to bring a
replevin claim. (JA126-27). In other words, it was the government’s own
unconstitutional conduct, not the Panel majority’s opinion, that deprived it of this
common law avenue to attempt to recover the Coins.3
The government claims that “[n]umerous doctrines . . . provide that the
government cannot inadvertently or through negligence lose title to its property.” (Pet.
5-6). But this is not a case about “inadvertence” or “negligence.” The authorities cited –
only some of which were cited to the Panel – are in no way inconsistent with Congress
prescribing through CAFRA that where the government seizes property
(unconstitutionally), where a claim to that property is promptly filed, and where the
government then makes a calculated and knowing decision not to commence a judicial
forfeiture proceeding within 90 days, the government’s right to seek forfeiture of that
property is forever lost. See 18 U.S.C. § 983(a)(3)(B).
The government argues that its declaratory judgment action “was in the nature of
a quiet title claim” and therefore was not merely a mechanism to “circumvent CAFRA’s
90-day deadline.” (Pet. 7). But the Panel majority correctly recognized that in this case,
the government’s forfeiture theory that the Coins were stolen from the Mint was
indistinguishable from its request for a declaratory judgment that the Coins “were not
lawfully removed from the United States Mint.” (Maj. Op. 30). As the Panel majority
3 For these reasons, the government’s hypothetical at pages 4-5 of its Petition is based
on a flawed premise. In this case the government did something a private owner could
not do – it put on its law enforcement hat and unconstitutionally seized the Coins.
Having done so, it lost the right to pursue other remedies that the government might
otherwise have had. The Panel majority’s decision erects no barrier to the government
acting differently with respect to different property in future cases. In fact, where the
statute of limitations has not run, the government also will continue to be free to pursue
criminal forfeiture to recover stolen government property. Thus, far from having fewer
rights than a private person to recover stolen property, the government has more.
Case: 12-4574 Document: 003112022832 Page: 7 Date Filed: 07/20/2015
- 7 -
correctly decided, surely Congress did not intend to allow the government to employ a
declaratory judgment to so easily do an end-run around CAFRA’s important deadlines
that were central to Congress’ intent to protect citizens from exactly the type of
government abuse of power that occurred here.
As to the Panel majority’s alternative holding that the declaratory judgment claim
“cannot be recognized because CAFRA amounts to a ‘special statutory proceeding’” (id.
at 31), the government’s argument that this ruling is “unprecedented” (Pet. 8) falls far
short of meeting the rehearing standards where – as the Panel majority pointed out – no
court has ruled to the contrary.4 The government’s additional argument that “Congress
never stated that CAFRA displaces all other remedies” (Pet. 8) misstates the limited
scope of the majority’s ruling on this point, which bars the government only from
pursuing one other remedy – declaratory judgment. And it does so not by holding that
CAFRA preempts or displaces that equitable remedy, but instead by applying the wellestablished
doctrine that courts will not entertain declaratory judgment claims where
4 The government cites Mantilla v. United States, 302 F.3d 182, 187 (3d Cir. 2002), as
being in “conflict[] with” the panel majority’s ruling on declaratory judgment (Pet. 8-9),
but that decision has nothing to do with CAFRA, whether it is “a special statutory
proceeding,” or declaratory judgment. It simply holds that an entirely different statute
(21 U.S.C. § 881(a)) did not displace the common law doctrine of in pari delicto that
prevented the defendant in that case from “using the courts to recover” drug buy money
“voluntarily transferred to Customs agents.” 302 F.3d at 186-87. Perhaps this is why
the government did not mention this case in its brief to the Panel, providing an
additional reason to disregard it. See Royce v. Hahn, 151 F.3d 116, 125 (3d Cir. 1998)
(refusing on rehearing en banc to consider matters not discussed in briefs to panel).
The argument and authorities cited in fn. 4, p.7 of the Petition are also inapposite, as the
majority decision does not apply a statute of limitations and does not address a suit
against the United States or sovereign immunity; moreover, none were cited to the
panel, and thus are not properly considered now. The same is true of the government’s
new argument on page 6 of the Petition based on Linwood Harvestore, Inc. v. Cannon,
235 A.2d 377, 380 (Pa. 1967). That case too was not argued to the original panel, and is
about Pennsylvania law relevant to replevin – a claim not at issue here.
Case: 12-4574 Document: 003112022832 Page: 8 Date Filed: 07/20/2015
- 8 -
Congress has devised “procedures and remedies tailored to a limited subset of cases and
[to] preserv[ing] individual rights.” (Maj. Op. 32). The government offers no
explanation as to how or why the majority erred in its alternative holding on declaratory
judgment that CAFRA satisfies this standard.5
CAFRA and Forfeiture. Turning from declaratory judgment to forfeiture, the
government takes issue with the Panel majority’s holdings under CAFRA that (1) “the
presentation of a claim under Section 983(a)(2) is independent of the government’s
presentation of notice of a nonjudicial forfeiture” and (2) “a ‘nonjudicial civil forfeiture
proceeding’ commences when the Government has seized property.” (Pet. 10 (citing
Maj. Op. 19, 22)). As to the first point, the Panel majority was absolutely correct in
reading the plain language of CAFRA, and § 983(a)(2)(A) in particular, to mean that “a
person claiming seized property can file a seized asset claim, whether or not the
Government has sent or is required to send notice.” (Maj. Op. 15-16). Far from being
“unprecedented” or “inconsistent with judicial authority,” this interpretation is
supported by pre- and post-CAFRA forfeiture decisions, as well as the two leading
forfeiture treatise authors, and a decision issued earlier this year.6
5 There is an additional ground for dismissing the declaratory judgment claim, which
the Panel did not reach: that claim was filed too late. (See Appellants’ Br. 35 (arguing
the declaratory judgment claim should not have been allowed due to undue delay, where
the government made a strategic choice not to bring the claim earlier); see also Maj. Op.
27 (noting government’s complaint, including declaratory judgment claim, was not filed
until “four years and nineteen days after the Langbords filed their seized asset claim”)).
6 See Appellants’ Br. at 26-27 (citing United States v. $10,000 in United States
Currency, No. 06CV2439-L(AJB), 2007 U.S. Dist. LEXIS 58999, at *9 (S.D. Cal. Aug.
13, 2007) (“Section 983(a)(2) is unambiguous. It sets forth the earliest and the latest
time to file a claim, with ‘after the seizure’ being the earliest. . . . It does not include a
requirement for a written notice prior to filing a claim.”), vacated following settlement,
2007 U.S. Dist. LEXIS 70107 (S.D. Cal. Sept. 21, 2007); Stefan D. Cassella, The Civil
Case: 12-4574 Document: 003112022832 Page: 9 Date Filed: 07/20/2015
- 9 -
Not only does the government thus misrepresent the state of the decisional law; it
also blatantly and repeatedly misstates the text of the relevant provision. Thus, whereas
§ 983(a)(2) states “[a]ny person claiming property seized in a nonjudicial forfeiture
proceeding under a civil forfeiture statute may file a claim with the appropriate official
after the seizure . . . ” (emphasis added), the government changes the critical words
“after the seizure” to “after receiving notice,” perhaps hoping nobody would notice
where it closed its quotation marks. (See Pet. 10 (stating – incorrectly – that “Section
983(a)(2) allows ‘[a]ny person claiming property seized in a nonjudicial forfeiture
proceeding’ to file a claim after receiving notice”) (emphasis added)). Similarly, the
government writes that § 983(a)(2)(B) “contemplates that a seized asset claim will not
be filed until notice is provided” (Pet. 12), wholly ignoring that this subsection (B) deals
with the latest a claim can be filed, whereas subsection (A) of § 983(a)(2) provides the
earliest a claim can be filed, i.e., at any point “after the seizure.” In the face of this
footnote 6 continued
Asset Forfeiture Reform Act of 2000: Expanded Government Forfeiture Authority and
Strict Deadlines Imposed on All Parties, 27 J. Legis. 97, 141 (2001) (“While most
claimants will wait until they receive formal notice of the administrative forfeiture
proceeding to file a claim, nothing in the statute suggests they must do so. In fact,
interpreting paragraph [(a)](2)(A) to permit a person to file a claim without waiting to
receive formal written notice is consistent with pre-CAFRA case law which held that a
person could file a claim any time after the property was seized.”) (citing United States
v. $52,800 in U.S. Currency, 33 F.3d 1337, 1340-41 (11th Cir. 1994) (“nothing prevented
claimants from filing a claim . . . before issuance of the notice.”)); David B. Smith,
Prosecution and Defense of Forfeiture Cases § 6.02[2][.B] at 6-22 (2012) (“A person
with an interest in the seized property may file a claim letter . . . prior to receiving
written notice . . ., thus starting the government’s 90-day clock for filing a complaint.”)).
Accord United States v. Ali, Nos. 6:15-cr-00094-LSC-JEO, 2:15-mj-00079-JHE, 2015
WL 2159335, at *3 (N.D. Ala. May 5, 2015) (“although [the person from whom property
was seized] has not received notice of either agency’s intent to seek administrative
forfeiture, he is entitled to file a claim any time after the seizure, which would set the
legal machinery in motion”). The government cites United States v. $200,255.00 in
U.S. Currency, No. 7:05-CV-27(HL), 2006 WL 1687774 (M.D. Ga. June 16, 2006), but
that decision fails to grapple with the plain language of § 983(a)(2)(A), and is, we
respectfully submit, wrongly decided.
Case: 12-4574 Document: 003112022832 Page: 10 Date Filed: 07/20/2015
- 10 -
egregious misstatement of the plain language of the statute, reflective of the overzealous
advocacy that has characterized the government’s approach to this case from
day one, the government’s accusation that it is the Panel majority that “rewrites an
important part of the forfeiture laws” (Pet. 9) is ironic at best.
The government claims that “the majority erases the period afforded by Congress
for the government to determine whether and how to seek forfeiture.” (Pet. 12). In fact,
it is Congress, not the Panel majority, that enacted the timing reforms set out in CAFRA,
including giving claimants the right and ability to expedite the process when the
government has seized property. While Congress thus required the government to
provide written notice where required within 60 after the date of a seizure (or 90 days if
a state or local agency seized the property), §§ 983(a)(1)(A)(i), (A)(iv), it also allowed for
– and the majority decision in no way interferes with – the possibility of extending the
notice period, which is explicitly authorized, §§ 983(a)(1)(B)-(D). And while Congress
also allowed claimants to challenge a forfeiture in court by requiring that the
government bring a judicial forfeiture action within 90 days of a seized asset claim being
filed, § 983(a)(3)(A), it again provided for – and the majority opinion does not interfere
with – the government seeking to extend the 90- day period before it expires for “good
cause shown or upon agreement of the parties.” Id.
CAFRA’s congressional sponsors believed the 90-day deadline—which the
government chose to ignore here – was one of the statute’s “most important reforms”:
Previously, there was no statutory deadline compelling the Government to
commence a judicial forfeiture action within any fixed period of time. This
caused frequent complaints from defense attorneys who did all they could to
force the Government to commence a judicial forfeiture action by filing a claim
. . ., yet were forced to wait months or even years before the Government gave
their clients their ‘day in court’ by filing a forfeiture complaint.
Case: 12-4574 Document: 003112022832 Page: 11 Date Filed: 07/20/2015
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Stefan D. Cassella, Asset Forfeiture Law in the United States § 7-4 at 243-44 (2d. ed.
2013). CAFRA changed this: “[.U]nder Section 983(a)(3), the Government no longer has
the luxury in most cases of delaying the commencement of a judicial forfeiture action as
long as it sees fit.” Id. § 7-4 at 245.
Congress also provided that a claimant could file a claim at any time “after the
seizure,” § 983(a)(2)(A), as the majority correctly held. (Maj. Op. 22 (“When the
government has seized property, then the person from whom the property was seized
has the right to file a seized asset claim pursuant to § 983(a)(2)(A), thereby triggering
the 90-day deadline in § 983(a)(3)(A).”)). But this does not erase the time the
government has to decide how to proceed; it just potentially shortens it to no less than
90 days, with the option of the government getting more time for “good cause shown or
upon agreement of the parties,” where the government has seized property. In this case,
the Mint clearly knew of the 90-day deadline, waiting 87 days from receipt of the
Langbords’ seized asset claim before proclaiming – over the advice of all the other
agencies involved – that it had “no intention of seeking [] forfeiture.” (JA837-38). To
the extent the government has complaints about these central timeframe reforms
reflected in CAFRA, notwithstanding the provisions for extensions, it should direct its
complaints to Congress, not this Court.7
The government relatedly argues that the Panel majority erred in not recognizing
that “not every seizure commences a nonjudicial (administrative) forfeiture” (Pet. 10),
claiming that there are cases where property is seized for investigation purposes and not
7 The government can always choose not to seize property, and then would have the full
five years to decide how to proceed under the statute of limitations in 19 U.S.C. § 1621.
Case: 12-4574 Document: 003112022832 Page: 12 Date Filed: 07/20/2015
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forfeiture, or where the type of property seized is not subject to administrative forfeiture
at all. (Pet. 10-11 & n.6). According to the government, it is therefore notice, not
seizure, that begins a nonjudicial forfeiture triggering CAFRA’s timelines, and here, the
government contends, no such notice was sent. (Pet. 12-13).
The government’s argument that notice, not seizure, is always what commences a
nonjudicial forfeiture proceeding, in addition to being wrong, would not change the
analysis and outcome in this case. The record is clear that the government both seized
the Coins (unconstitutionally) and, at the same time, provided written notice to the
Langbords that it intended to keep the Coins because it believed they were stolen
property. (JA152; JA823). A nonjudicial forfeiture proceeding – i.e., the confiscation of
property outside of any judicial process – therefore had been commenced under either
interpretation. The Langbords then timely filed a seized asset claim, and the
government failed to commence a judicial forfeiture proceeding within the 90-day limit.
As the Panel majority correctly held, the fact that the notice also included the words the
“Mint has no intention of seeking forfeiture” (JA143-44) does not alter the reality of
what the government actually did (act nonjudicially to forfeit the Coins) and then failed
to do (timely file a civil action following receipt of a seized asset claim). To rule
otherwise would lead to the absurd result that the government could “avoid the
protections Congress sought to put in place simply by saying ‘we are not seeking
forfeiture.’” (Maj. Op. 14).
Beyond the fact that the notice vs. seizure debate is academic in this case, and
therefore does not warrant rehearing en banc, the government offers no explanation for
why the Panel majority’s textual analysis of §§ 983(a)(1)-(a)(3) is wrong. If notice, and
Case: 12-4574 Document: 003112022832 Page: 13 Date Filed: 07/20/2015
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not just seizure, is required to start a nonjudicial forfeiture proceeding, why would
§ 983(a)(1)(A)(i) talk about “any nonjudicial civil forfeiture proceeding under a civil
forfeiture statute, with respect to which the Government is required to send written
notice to interested parties”? (Maj. Op. 20). Also, as the majority explained, § 983(e)(1)
– which permits a motion to set aside a declaration of forfeiture where written notice
has not been received – further supports the finding that notice is not required to
commence a nonjudicial forfeiture proceeding. (Id. at 20-21). And, § 983(a)(2)(A) –
which provides that “any person claiming property seized in a nonjudicial civil forfeiture
proceeding . . . may file a claim with the appropriate official after the seizure” (emphasis
added) – would similarly be nonsensical if such a proceeding is not commenced until
the necessarily post-seizure step of the government sending written notice.
In addition, the government again misreads the majority opinion on this point.
The majority holds only that a nonjudicial forfeiture proceeding “begins” or is
“commenced” by a seizure and that “[.H]ere” – i.e., in this case – “the Government’s
seizure of the property is rightfully considered a nonjudicial civil forfeiture proceeding.”
(Maj. Op. 19-22). This makes perfect sense, especially since, under the facts of this case,
the seizure and the notice occurred at the same moment – when the government
announced in writing that it would not return the Coins and would be keeping them on
the theory that they were stolen government property. (JA152; JA823). But saying that
a nonjudicial forfeiture proceeding is “commenced” by a seizure does not mean – and
the majority opinion is not reasonably read to hold – that every seizure in every case
therefore is a nonjudicial forfeiture proceeding triggering the time limits in § 983. For
example, if property is lawfully seized pursuant to a search warrant for investigative or
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evidentiary purposes, and not for the purpose of confiscating, forfeiting or keeping the
property permanently, nothing in the majority opinion holds that CAFRA’s protections
apply. (See Pet. 13 n.10). But that is not this case, where the property was seized
unlawfully, the government maintained from that moment on that it was entitled and
intended to permanently retain the Coins because it believed they were stolen, and the
government never articulated an evidentiary or non-forfeiture basis for the seizure. (See
Appellants’ Br. 27-29).
In its petition, the government even tries to resuscitate an argument based on 19
U.S.C. § 1607 that was barely mentioned and buried in a footnote in its brief before the
Panel: i.e., that the Coins were worth too much to be administratively forfeited. (Pet. 11;
Gov’t Br. 26 n.13). This argument fails. The Coins clearly were eligible for nonjudicial
forfeiture under §1607(a)(4), which includes “any monetary instrument within the
meaning of” 31 U.S.C. § 5312(a)(3). Section 5312(a)(3) in turn defines “monetary
instruments” to include “United States coins.” By any reasonable understanding, the
1933 Double Eagles – created by the Mint, bearing the name and symbols of the United
States, and denominated as having a $20 value – are “United States coins.”8 In
addition, the government has asserted from the beginning that the Coins are stolen
government property, which also would render them subject to administrative forfeiture
under § 1607(a)(2), which authorizes nonjudicial forfeiture for any property, the
importation of which would be prohibited. On the government’s theory that the Coins
8 Indeed, the 1933 Double Eagles are referred to as “coins” by the government
throughout the pre-litigation record, including in the caption and body of the judicial
forfeiture complaint the government brought in its earlier attempt to forfeit the 1933
Double Eagle coin seized from Stephen Fenton. (See United States v. One 1933 United
States Double Eagle Gold Coin, at JA5233-242).
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were stolen, importation would be prohibited by 18 U.S.C. § 2314 and 19 U.S.C. §
1595a(c)(1)(A).
Indeed, by refusing to go to court, and instead forfeiting the Coins nonjudicially,
the government effectively admitted by its conduct that §§ 1607 and 1610 erected no
barrier to its actions. The government should not be heard to reverse course now in a
last-ditch effort to raise § 1607 as a shield against the consequences of its unlawful acts.
Moreover, to the extent the purpose of §§ 1607 and 1610 is to require that forfeitures of
certain high-value property be brought in court, not through an abbreviated
administrative process, § 1607 cannot be used to evade the procedures governing
administrative forfeiture where – as here – the government refused the more protective
judicial route and effectuated a nonjudicial forfeiture.
Conclusion. For all of these reasons, the Petition for Rehearing en banc should
be denied. The Panel majority’s decision is not “contrary to unanimous authority” – or
any authority – “regarding the property interests of the United States.” (Pet. 1). It will
not upend the government’s forfeiture efforts. And it correctly finds that the Coins must
be returned to the Langbord family as a result of the government’s illegal actions and a
straightforward application of CAFRA’s clear timelines and penalties.
Dated: July 20, 2015 Respectfully submitted,
/s/ Barry H. Berke
Barry H. Berke
Eric A. Tirschwell
RobinWilcox
Kramer Levin Naftalis & Frankel LLP
1177 Avenue of the Americas
New York, NY 10036
(212) 715-9100
Case: 12-4574 Document: 003112022832 Page: 16 Date Filed: 07/20/2015
- 16 -
CERTIFICATE OF SERVICE
I hereby certify that this pleading has been served on the Filing Users identified
below through the Electronic Case Filing (ECF) system:
Robert A. Zauzmer, Esq.
Nancy Rue, Esq.
Jacqueline C. Romero, Esq.
Office of United States Attorney
615 Chestnut Street, Suite 1250
Philadelphia, PA 19106
/s Eric A. Tirschwell
Eric A. Tirschwell
DATED: July 20, 2015.
Case: 12-4574 Document: 003112022832 Page: 17 Date Filed: 07/20/2015
some footnotes cross over to the next page
these will make for difficult reading, but if you be on guard for footnotes, you hopefully can cope.
My Complete PROOF Lincoln Cent with Major Varieties(1909-2015)Set Registry
I'm glad the Langbord's lawyer used gentle humor to point out the desperation of the government's attorneys.
Set
Match
<< <i>Game
Set
Match >>
as it should be
mark
Fellas, leave the tight pants to the ladies. If I can count the coins in your pockets you better use them to call a tailor. Stay thirsty my friends......
The impact of that decision on the case is major. It gave a 100% victory to the Langbords by concluding that the 10 Double Eagles should be returned to them. That decision did not give only partial relief (such as vacating the trial court judgment and sending the case back to the trial court with instructions to have a new trial of the case).
Given the statistical data on the very low percentage of Petitions For Rehearing that are granted and given the very low percentage of Petitions to the US Supreme Court that are granted the Langbords are currently positioned very well in this case. Even if the current Petition For Rehearing is granted and even if the US Supreme Court would grant a Petition asking it to take up the case, there is no assurance that either court would set aside the April 17, 2015 decision.
The fat lady has not taken the stage yet, but she is in her dressing room warming up her pipes.
Great spirits have always encountered violent opposition from mediocre minds.-Albert Einstein
<< <i>Why was Izzy so evasive when questioned by SS agents about how he obtained the coins? Legitimate exchange of old for new at the Mint window didn't happen or Izzy would have told SS that's how he obtained the coins.The coins are stolen.Favorable ruling for the Langbords doesn't change the history of what happened in the '30's at the Mint. Preponderance of evidence standard was met in trial court. Brilliant Langbord lawyering is not how the Langbords win. A miscalculation of possible dire consequences is what screwed this case up for gov. >>
As I said before they probably couldn't meet the burden of proof to prevail in a CAFRA proceeding. They were doomed if they did and doomed if they didn't file a CAFRA forfeiture action.
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In hind sight the decision to not file a timely forfeiture proceeding was a wrong one. Both the trial court judge and two (or even three) Justices of the Court Of Appeal that issued the 4-17-2015 decision concluded that a forfeiture proceeding should have been filed. However, no one can say the Mint's decision was the result of a mistake or of negligence.
<< <i>To the extent that the use of the word "miscalculation" by Mr1874 implies a mistake or negligence on the part of the government, that is incorrect. The decision to not file a timely forfeiture proceeding was the result of conscious, intentional, choice by people at the Mint. It was made against the positions taken by other government agencies that a forfeiture proceeding should have been filed (as it was in the Fenton case).
In hind sight the decision to not file a timely forfeiture proceeding was a wrong one. Both the trial court judge and two (or even three) Justices of the Court Of Appeal that issued the 4-17-2015 decision concluded that a forfeiture proceeding should have been filed. However, no one can say the Mint's decision was the result of a mistake or of negligence. >>
What was the outcome of the Fenton CAFRA filing?
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<< <i>Why was Izzy so evasive when questioned by SS agents about how he obtained the coins? Legitimate exchange of old for new at the Mint window didn't happen or Izzy would have told SS that's how he obtained the coins.The coins are stolen.Favorable ruling for the Langbords doesn't change the history of what happened in the '30's at the Mint. Preponderance of evidence standard was met in trial court. Brilliant Langbord lawyering is not how the Langbords win. A miscalculation of possible dire consequences is what screwed this case up for gov. >>
He invoked his Fifth Amendment right to obfuscate!
It is an example of very good legal writing.
It addresses the points and arguments made by the government in its Petition For Rehearing (which has a tenor of "the Langbords are the family members and descendants of a thief who will obtain a windfall of millions of dollars if the decision of the Court Of Appeal stands"; and "the Government will be hog tied and put in a place of extreme disadvantage in the area of Asset Forfeiture and deprived of the ability to effectively take action to recover stolen government property if the decision of the Court Of Appeal stands"; and "we need to look at the bigger picture and not trouble ourselves with the facts of this specific case") and it refutes each and every one. The Langbords' answer directs one's attention to the specific facts of this case, points out the government's failure to follow the law and explains why the decision of the Court Of Appeal will not result in the sky falling over the USA if it is not vacated and set aside. It further explains why the government's Petition For Rehearing and its Rule 35.1 Statement does not set forth the content required by Rule 35.1 [including it does not contain the required citation to published 3rd Circuit Court Of Appeal and/or US Supreme Court cases that are in conflict with the Court Of Appeal decision of 4-17-2015].
<< <i>
<< <i>Why was Izzy so evasive when questioned by SS agents about how he obtained the coins? Legitimate exchange of old for new at the Mint window didn't happen or Izzy would have told SS that's how he obtained the coins.The coins are stolen.Favorable ruling for the Langbords doesn't change the history of what happened in the '30's at the Mint. Preponderance of evidence standard was met in trial court. Brilliant Langbord lawyering is not how the Langbords win. A miscalculation of possible dire consequences is what screwed this case up for gov. >>
He invoked his Fifth Amendment right to obfuscate!
speaking of which...
here is as cut-n-paste directly from the reply @ the top of page 9:
<< <i>Not only does the government thus misrepresent the state of the decisional law; it
also blatantly and repeatedly misstates the text of the relevant provision. Thus, whereas
§ 983(a)(2) states “[a]ny person claiming property seized in a nonjudicial forfeiture
proceeding under a civil forfeiture statute may file a claim with the appropriate official
after the seizure . . . ” (emphasis added), the government changes the critical words
“after the seizure” to “after receiving notice,” perhaps hoping nobody would notice
where it closed its quotation marks. (See Pet. 10 (stating – incorrectly – that “Section
983(a)(2) allows ‘[a]ny person claiming property seized in a nonjudicial forfeiture
proceeding’ to file a claim after receiving notice”) (emphasis added)). >>
this is no joke.
the lawyers for the government quoted this from the CAFRA statute word for word:
"[a]ny person claiming property seized in a nonjudicial forfeiture proceeding"
keep in mind that is what the government lawyers chose to quote for their case.
they then follow with (emphasis mine):
to file a claim after receiving notice
if the government was so honest, why did they quote the uncontested and trivial portion of the CAFRA statute and CHANGE the precise wording of the latter portion of the relevant text -- a change from "after seizure" to “after receiving notice"?
This is no joke. They flat out edited the relevant wording of the statute to words in their choosing and favor.
The fact that the government did this does two things
it reaffirms CAFRA was needed
and it frightens the hell out of me
now suddenly I'm not so worried about the fate of 10 or any other number of contested 1933 Double Eagles.
How do they get away with this, especially at this level? This is not Podunk County Traffic Court!
<< <i>Why was Izzy so evasive when questioned by SS agents about how he obtained the coins? Legitimate exchange of old for new at the Mint window didn't happen or Izzy would have told SS that's how he obtained the coins.The coins are stolen.Favorable ruling for the Langbords doesn't change the history of what happened in the '30's at the Mint. Preponderance of evidence standard was met in trial court. Brilliant Langbord lawyering is not how the Langbords win. A miscalculation of possible dire consequences is what screwed this case up for gov. >>
If you were Izzy...place yourself in the timeframe.....would you tell the overbearing SS agents how you got the coins?????? There was no theft!
IMHO and I am NOT a lawyer, the Mint attorneys overstated their position and thus refused to respond as required by law. I am NOT surprised by this, knowing the participants on the Mint side. FYI, I do not believe there was any outside influence from Treasury to that decision. The arrogance regarding the government and the treatment of the 1933 DEs has been consistent over the year and also NOT influenced by the resident in the White House or his party. The Mint is the sleepy backwater of government and the lawyers there rarely deal in complex sophisticated cases.
<< <i>
<< <i>Game
Set
Match >>
as it should be
mark >>
+1