This case is far from over and thus this thread is far from being finished.
If the government is successful in its efforts to overturn the 4-17-2015 decision the case will have along way to go. If the government is unsuccessful the case will return to the trial court for further proceedings, including have the trial court issue a judgment in favor of the Langbords, having the government return the coins to the Langbords and having the Langbords file additional documents seeking an award of their costs of suit and attorney fees.
<< <i>Sanction II, only if you could recover lawyer fees for your time put into this case for us. Thanks for keeping us informed. >>
+1
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
<< <i>Brilliant Langbord lawyering is not how the Langbords win. A miscalculation of possible dire consequences is what screwed this case up for gov. >>
Mr. Berke can't talk but I rather expect he anticipated all of this.
Whether the lawyering of Mr. Berke and the law firm he works at has or has not been "brilliant" is of little significance.
Out of all of the lawyers and law firms that exist in the USA today, there are, by percentage, relatively few would have the skill set, knowledge, experience and resources to competently handle [from initial client intake, through pre litigation events, through initiating litigation, through years of pretrial litigation at the trial court level, through the preparation for and conduct of a trial, through post trial/pre judgment litigation in the trial court, through the first level of appeal before the US Court Of Appeals, through the current post Court Of Appeal decision appellate litigation and through what will likely be post appeal proceedings in the trial court once the case returns to the trial court and possibly judgment enforcement proceedings] a case such as the one now winding its way through the federal court system.
Mr. Berke and his firm provided services to Mr. Fenton that ultimately resulted in a settlement, in the Fenton coin being legal to own in the private sector and the sale of same to the benefit of Mr. Fenton. Mr. Berke and his firm have provided services to the Langbord family that may very well result in an additional 10 1933 double eagles being legal to own. I suspect that if a client satisfaction survey was provided by Mr. Fenton and the Langbords to Mr. Berke and his firm a number of Gold Star stickers would be affixed to same [Maybe someone should open a CAC type business that gives out green and gold stickers to lawyers ].
Does anyone suppose Izzy ever thought about all the anguish and headaches these ten discs of gold would eventually cause for his survivors?
Proceeding as they did,not taking recommendations of multiple government agencies,the Mint acted recklessly,in my opinion.Setting a base price of $40M for the ten gold discs,as my share being one of 400M Americans,i expect a check from gov for:
40,000,000/400,000,000=$.10
Actually,cash would be better.I collect dimes.
Great spirits have always encountered violent opposition from mediocre minds.-Albert Einstein
<< <i>Whether the lawyering of Mr. Berke and the law firm he works at has or has not been "brilliant" is of little significance.
Out of all of the lawyers and law firms that exist in the USA today, there are, by percentage, relatively few would have the skill set, knowledge, experience and resources to competently handle [from initial client intake, through pre litigation events, through initiating litigation, through years of pretrial litigation at the trial court level, through the preparation for and conduct of a trial, through post trial/pre judgment litigation in the trial court, through the first level of appeal before the US Court Of Appeals, through the current post Court Of Appeal decision appellate litigation and through what will likely be post appeal proceedings in the trial court once the case returns to the trial court and possibly judgment enforcement proceedings] a case such as the one now winding its way through the federal court system.
Mr. Berke and his firm provided services to Mr. Fenton that ultimately resulted in a settlement, in the Fenton coin being legal to own in the private sector and the sale of same to the benefit of Mr. Fenton. Mr. Berke and his firm have provided services to the Langbord family that may very well result in an additional 10 1933 double eagles being legal to own. I suspect that if a client satisfaction survey was provided by Mr. Fenton and the Langbords to Mr. Berke and his firm a number of Gold Star stickers would be affixed to same [Maybe someone should open a CAC type business that gives out green and gold stickers to lawyers ]. >>
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.
<< <i>Brilliant Langbord lawyering is not how the Langbords win. A miscalculation of possible dire consequences is what screwed this case up for gov. >>
Mr. Berke can't talk but I rather expect he anticipated all of this. >>
As I suggested in my most recent COINage article on the Langbord Ten.
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.
Something very interesting is happening to me at this time.
While I continue to keep current on the events unfolding in the federal court case concerning the 10 1933 double eagles (including the issuance of the 4-17-2015 decision of the Court Of Appeal and subsequent Petition For Rehearing, en banc), I find myself helping out another attorney I know who is involved in a real estate case in the California courts that is taking a parallel path to the double eagle case. The other attorney does not have much appellate experience and I am helping him out in navigating the procedural and substantive law applicable to California appellate practice.
In his case the other side filed an appeal after losing a case at the trial court level in April, 2014. The trial was held at the limited jurisdiction superior court level and the appeal was filed in and decided by the Appellate Department of the superior court. The appeal was decided on June 5, 2015 in favor of the my colleague's client. The other side on 6-19-2015 petitioned the Appellate Department of the Superior Court to rehear the case or order the case transferred to the California Court Of Appeal. My colleague answered that petition. The Appellate Department of the Superior Court never ruled on the Appellant's petition and the time deadline for doing so passed (which the the equivalent of a denial of the petition). Last Friday the Appellant filed another Petition. This newest Petition was filed in the California Court Of Appeal and it requests that the California Court Of Appeal order the case transferred to it from the Appellate Department of the Superior Court. I am helping my colleague in preparing an Answer to this latest petition. If it is denied then the Appellant can petition the Court Of Appeal for a rehearing, en banc; and can thereafter petition the California Supreme Court to review the case. I suppose that thereafter the Appellant could even seek to have the US Supreme Court review the case.
Very strange that two cases I have an interest in are proceeding down similar paths at roughly the same time.
<< <i>Something very interesting is happening to me at this time.
While I continue to keep current on the events unfolding in the federal court case concerning the 10 1933 double eagles (including the issuance of the 4-17-2015 decision of the Court Of Appeal and subsequent Petition For Rehearing, en banc), I find myself helping out another attorney I know who is involved in a real estate case in the California courts that is taking a parallel path to the double eagle case. The other attorney does not have much appellate experience and I am helping him out in navigating the procedural and substantive law applicable to California appellate practice.
In his case the other side filed an appeal after losing a case at the trial court level in April, 2014. The trial was held at the limited jurisdiction superior court level and the appeal was filed in and decided by the Appellate Department of the superior court. The appeal was decided on June 5, 2015 in favor of the my colleague's client. The other side on 6-19-2015 petitioned the Appellate Department of the Superior Court to rehear the case or order the case transferred to the California Court Of Appeal. My colleague answered that petition. The Appellate Department of the Superior Court never ruled on the Appellant's petition and the time deadline for doing so passed (which the the equivalent of a denial of the petition). Last Friday the Appellant filed another Petition. This newest Petition was filed in the California Court Of Appeal and it requests that the California Court Of Appeal order the case transferred to it from the Appellate Department of the Superior Court. I am helping my colleague in preparing an Answer to this latest petition. If it is denied then the Appellant can petition the Court Of Appeal for a rehearing, en banc; and can thereafter petition the California Supreme Court to review the case. I suppose that thereafter the Appellant could even seek to have the US Supreme Court review the case.
Very strange that two cases I have an interest in are proceeding down similar paths at roughly the same time. >>
If Barry Berke makes an untimely visit to that great courtroom in the sky, you may get a chance to battle the Guvmint for some 1933 DEs. You just never know when another may surface.
I expect to hear either a) the night janitor accidentally melted them or b) while investigating for this case they found five more rolls and will release them the day before they give back the 10.
While checking back on the Court of Appeals threads posted by SanctionII BEFORE this thread, I found two which might be of interest now as we await the courts decision concerning the government petition for a rehearing. Since it took about 5 months between the oral arguments and the decision, I wonder how long before we hear back from the court? Steve
For those interested in learning more about the US 3rd Circuit Court Of Appeals Internal Operating Procedures governing Petitions For Rehearing please review Chapter 9 of the Court's 2015 Internal Operating Procedures:
CHAPTER 9. EN BANC CONSIDERATION
9.1 Policy of Avoiding Intra-circuit Conflict of Precedent.
It is the tradition of this court that the holding of a panel in a precedential opinion is binding on subsequent panels. Thus, no subsequent panel overrules the holding in a precedential opinion of a previous panel. Court en banc consideration is required to do so.
9.2 Hearing En banc.
Initial en banc hearing is extraordinary; it is ordered only when a majority of the active judges who are not disqualified, determines that the case is controlled by a prior decision of the court which should be reconsidered and the case is of such immediate importance that exigent circumstances require initial consideration by the full court.
9.3 Criteria for Rehearing En banc.
9.3.1 This court strictly follows the precept of Fed.R.App.P. 35(a) and Local Appellate Rule 35.4 that rehearing en banc is not favored and will not be ordered unless consideration by the full court is necessary to secure or maintain uniformity of its decisions or the proceeding involves a question of exceptional importance.
9.3.2 This court does not ordinarily grant rehearing en banc when the panel's statement of the law is correct and the controverted issue is solely the application of the law to the circumstances of the case.
9.3.3 Rehearing en banc is ordinarily not granted when the only issue presented is one of state law.
9.4 Court Originated Rehearing En banc.
9.4.1 If, during the circulation of draft opinions pursuant to I.O.P. 5.5.2 and 5.6, a majority of the active judges who are not disqualified, votes that the case be considered en banc, the chief judge enters an order for rehearing en banc.
9.4.2 If, during the period for circulation of draft opinions, one judge has timely voted for rehearing, another judge may obtain an extension of time to consider en banc rehearing by circulating a letter asking that the time for voting be extended for a period not to exceed 5 working days beyond the 8 day (10 day in August) time period. This request results in an automatic extension. Irrespective of the number of such requests, the voting time automatically is extended this one period only, unless the chief judge, upon application, grants a further extension of time. In death penalty cases, the times set forth herein may be reduced pursuant to Local Appellate Rule Misc. 111.7(b).
9.4.3 During the circulation of draft opinions, a judge who does not desire rehearing or who has no comment is not expected to respond. The active judge who has written a dissenting opinion is presumed to have voted for rehearing en banc absent a notification in writing to the contrary.
9.5 Rehearing En banc on Petition by Party.
9.5.1 It is presumed that a petition for rehearing before the panel or suggestion for en banc rehearing filed by a party as provided by Fed.R.App.P. 40(a) or 35(b) requests both panel rehearing and rehearing en banc, unless the petition for panel rehearing under Rule 40(a) states explicitly that it does not request en banc rehearing under Rule 35(b).
9.5.2 When a petition for rehearing is filed, a copy of the petition is transmitted by the clerk to each member of the panel which heard and decided the case and to the other active judges of the court with a request that they respond to the authoring judge if they desire rehearing or an answer. When the author is not a member of the court, the clerk requests that responses be directed to the ranking judge of the majority. Any member of the panel majority may direct the clerk to request an answer.
9.5.3 Pursuant to 28 U.S.C. ' 46(c), only active judges of this court may vote for rehearing en banc. Therefore, rehearing en banc shall be ordered only upon the affirmative votes of a majority of the judges of this court in regular active service who are not disqualified.
9.5.4 An active judge who does not communicate with the authoring judge concerning rehearing within 10 calendar days after the date of the clerk's letter transmitting the petition for rehearing is presumed not to desire rehearing en banc or that an answer be filed. In death penalty cases, the times set forth herein may be reduced pursuant to Local Appellate Rule Misc. 111.7(b).
9.5.5 If, during the 10 day period for circulation of petitions for rehearing, one judge has timely voted for rehearing, another judge may obtain an extension of time to consider en banc rehearing by circulating a letter asking that the time for voting be extended for a period not to exceed 5 working days beyond the 10 day time period. This request results in an automatic extension. Irrespective of the number of such requests, the voting time automatically is extended this one period only, unless the chief judge, upon application, grants a further extension of time. In death penalty cases, the times set forth herein may be reduced pursuant to Local Appellate Rule Misc. 111.7(b).
9.5.6 If four active judges vote to request an answer to the petition or if there are a total of four votes for an answer or for rehearing, provided that there is at least one vote for an answer, the authoring judge enters an order directing such an answer within 14 calendar days from the date of the order. The clerk forwards the answer to the active judges with the request that they notify the authoring judge within 10 calendar days if they vote to grant the petition. A judge who does not desire rehearing is not expected to respond. Copies of the answer are sent as a courtesy to any senior judge or visiting judge who was a member of the panel which heard and decided the case. In death penalty cases, the times set forth herein may be reduced pursuant to Local Appellate Rule Misc. 111.7(b).
9.5.7 The authoring judge enters an order denying rehearing before the panel, and denying rehearing en banc if a majority of the active judges who are not disqualified, does not vote for rehearing. Separate orders may be entered if appropriate. When the panel grants a petition for rehearing and a petition for rehearing en banc is also pending, the judge who enters the order granting panel rehearing notifies the active judges of the vacatur of the panel opinion, and all action on the petition for rehearing en banc is suspended. Following panel rehearing, the authoring judge notifies the active judges of the disposition and whether any further vote on the petition for rehearing en banc is required.
9.5.8 If there is a dissent from the denial of rehearing and no dissenting opinion is filed, a notation will be added to the dispositive order, at the affirmative request of the dissenting judge, that "Judge would grant rehearing by the court en banc." Any active judge may file an opinion sur denial of the petition and direct its publication.
9.5.9 If a majority of the active judges of the court who are not disqualified votes for rehearing en banc, the chief judge enters an order which grants rehearing as to one or more of the issues, vacates the panel's opinion in full or in part and the judgment entered thereon, and assigns the case to the calendar for rehearing en banc.
9.6 Procedure.
9.6.1 If the author is a visiting judge, justice, or a senior circuit judge, the ranking active or senior judge of this court on the panel majority receives responses to the petition, communicates with the clerk, signs the necessary orders, and has all the administrative responsibility set forth in this I.O.P.
9.6.2 An en banc hearing is held only at a regularly scheduled en banc session of the court, unless a majority of the active judges who are not disqualified, votes to expedite.
9.6.3 The chief judge, when requested by a majority of the en banc court, directs the clerk to advise counsel to submit supplemental briefs on specific issues or to be prepared to discuss at oral argument any other relevant issues.
9.6.4 A senior judge of this court may elect, pursuant to 28 U.S.C. ' 46(c), to participate as a member of the en banc court reviewing a decision of a panel on which the senior judge was a member. That election may be made by letter to the clerk, with copies to all active judges, covering all cases on which the senior judge may thereafter sit, or may be made on a case by case basis. Any judge participating in an en banc poll, hearing, or rehearing while in regular active service who subsequently takes senior status may elect to continue participating in the final resolution of the case.
If any of you have trouble sleeping at night, just read Chapter 9 and you will quickly lose focus and nod off.
I do not know what the required or customary deadline (if any) is for the court to issue a decision on a Petition For Rehearing En Banc.
SO...what's the over/under on the legal fees for this when all's said and done? And...Am I the only one who has the sneaking suspicion that the Langbords might just own more than ten pieces?
<< <i>For those interested in learning more about the US 3rd Circuit Court Of Appeals Internal Operating Procedures governing Petitions For Rehearing please review Chapter 9 of the Court's 2015 Internal Operating Procedures:
CHAPTER 9. EN BANC CONSIDERATION
9.5.6 If four active judges vote to request an answer to the petition or if there are a total of four votes for an answer or for rehearing, provided that there is at least one vote for an answer, the authoring judge enters an order directing such an answer within 14 calendar days from the date of the order. The clerk forwards the answer to the active judges with the request that they notify the authoring judge within 10 calendar days if they vote to grant the petition. A judge who does not desire rehearing is not expected to respond. Copies of the answer are sent as a courtesy to any senior judge or visiting judge who was a member of the panel which heard and decided the case. In death penalty cases, the times set forth herein may be reduced pursuant to Local Appellate Rule Misc. 111.7(b).
>>
It appears to me, based on the above 9.5.6 procedure, that at least four active judges requested an answer from the Langbords lawyer to the petition for rehearing made by the government. That answer is what was issued on Monday, correct? I don't place any negative to this request as I would think these judges wanted to hear very clearly what the Langbord arguments were.
Some of the day counting per the procedures may have already occurred so maybe, just maybe we will hear from the court sooner than we expect. Steve
<< <i>I expect to hear either a) the night janitor accidentally melted them or b) while investigating for this case they found five more rolls and will release them the day before they give back the 10. >>
I'm going with, "Oops, they were destroyed along with the IRS hard drives".
And...Am I the only one who has the sneaking suspicion that the Langbords might just own more than ten pieces?
I have a theory that there could be up to hundreds of 1933 double eagles in existence.There could be some more '33's hidden in the old shop.I would check the jeweler's bench first.All kinds of hiding places there.
An interesting question to speculate on is what would gov "do about it" if more pieces were to come from the Langbords?
Great spirits have always encountered violent opposition from mediocre minds.-Albert Einstein
I just looked at the case docket. Today the government filed an application for permission to file a reply to the document filed by the Langbords on Monday.
<< <i>For those interested in learning more about the US 3rd Circuit Court Of Appeals Internal Operating Procedures governing Petitions For Rehearing please review Chapter 9 of the Court's 2015 Internal Operating Procedures:
CHAPTER 9. EN BANC CONSIDERATION
9.5.6 If four active judges vote to request an answer to the petition or if there are a total of four votes for an answer or for rehearing, provided that there is at least one vote for an answer, the authoring judge enters an order directing such an answer within 14 calendar days from the date of the order. The clerk forwards the answer to the active judges with the request that they notify the authoring judge within 10 calendar days if they vote to grant the petition. A judge who does not desire rehearing is not expected to respond. Copies of the answer are sent as a courtesy to any senior judge or visiting judge who was a member of the panel which heard and decided the case. In death penalty cases, the times set forth herein may be reduced pursuant to Local Appellate Rule Misc. 111.7(b).
>>
It appears to me, based on the above 9.5.6 procedure, that at least four active judges requested an answer from the Langbords lawyer to the petition for rehearing made by the government. That answer is what was issued on Monday, correct? I don't place any negative to this request as I would think these judges wanted to hear very clearly what the Langbord arguments were.
Some of the day counting per the procedures may have already occurred so maybe, just maybe we will hear from the court sooner than we expect. Steve >>
Perhaps the court just wanted to dot all the t's and cross all the eyes as a courtesy to the gummint, so that the gummint can't complain that they did not get a fair hearing from the en banc court.
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.
<< <i>An interesting question to speculate on is what would gov "do about it" if more pieces were to come from the Langbords? >>
Next time the government will follow the rules and file a proper CAFRA motion, which could lead to the odd situation where they could legally seize some of the 33s, but not all of them.
<< <i>An interesting question to speculate on is what would gov "do about it" if more pieces were to come from the Langbords? >>
Next time the government will follow the rules and file a proper CAFRA motion, which could lead to the odd situation where they could legally seize some of the 33s, but not all of them. >>
Reading Rule 9.5.6 of the Court's IOP indicates that the justices of the court are provided a copy of the Langbords' Answer by the clerk and are required inform the justice who authored the opinion of their vote to either grant or deny the petition for rehearing within 10 days. The petition will be granted if a majority of the court's justices vote to do so. If the clerk provided copies of the Langbords' answer to the justices yesterday they must vote by July 31. The decision to grant or deny the petition will likely be announced in the next 10 to 14 days. Maybe.
<< <i>I just looked at the case docket. Today the government filed an application for permission to file a reply to the document filed by the Langbords on Monday.
I will review same and post a follow up tomorrow. >>
SanctionII, This request to reply to the Langbords answer sounds very unusual to me. Are you aware if this happens sometimes or is the government desperite to fight this case in writing charges back and forth. Thanks for your continuing follow-up. Steve
<< <i>I just looked at the case docket. Today the government filed an application for permission to file a reply to the document filed by the Langbords on Monday.
I will review same and post a follow up tomorrow. >>
SanctionII, This request to reply to the Langbords answer sounds very unusual to me. Are you aware if this happens sometimes or is the government desperite to fight this case in writing charges back and forth. Thanks for your continuing follow-up. Steve >>
Perhaps the government decided that they did not pound the table hard enough the first time.
<< <i>I just looked at the case docket. Today the government filed an application for permission to file a reply to the document filed by the Langbords on Monday.
I will review same and post a follow up tomorrow. >>
SanctionII, This request to reply to the Langbords answer sounds very unusual to me. Are you aware if this happens sometimes or is the government desperite to fight this case in writing charges back and forth. Thanks for your continuing follow-up. Steve >>
Perhaps the government decided that they did not pound the table hard enough the first time. >>
With a little luck they might soon be pounding sand.
<< <i>I just looked at the case docket. Today the government filed an application for permission to file a reply to the document filed by the Langbords on Monday.
I will review same and post a follow up tomorrow. >>
SanctionII, This request to reply to the Langbords answer sounds very unusual to me. Are you aware if this happens sometimes or is the government desperite to fight this case in writing charges back and forth. Thanks for your continuing follow-up. Steve >>
Perhaps the government decided that they did not pound the table hard enough the first time. >>
With a little luck they might soon be pounding sand. >>
+1
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.
Another place to check for '33 doubles are the former residences of Mint Cashier George A. McCann.There could be a whole jar of '33's in the backyard, buried in the ground under where the old dog house used to be.
Great spirits have always encountered violent opposition from mediocre minds.-Albert Einstein
The published procedures say nothing about rebuttals.
I think it's likely very unusual, probably (maybe) subject to a vote, but likely will be denied because it would be too much like hearing arguments via petition requests and the government had their 15 pages and should have chosen words better. Maybe they have something to say about "seizure" v "receiving notice".
Gov might have taken the position that a "seizure" did not occur.The opportunity to present that argument may not be available to them at this point,however.
Great spirits have always encountered violent opposition from mediocre minds.-Albert Einstein
<< <i>Gov might have taken the position that a "seizure" did not occur.The opportunity to present that argument may not be available to them at this point,however. >>
Their failure to return the coins to the Langbords after authentication constitutes seizure pure and simple.
<< <i>Essentially,the Langbords,by not doing their own authentication are saying to gov,"Here's your coins.Can you give us $40M for finding them for you?"
I've wondered why the Langbords didn't take it upon themselves to have a TPG do the authenticating.
Government paid for authentication/encapsulation? Why would gov do this unless they thought the coins were theirs? >>
I guess they thought the court/s would be on their side. The fact that the Government compromised on the Fenton coin instead of pursuing forfeiture told BB that he probably had a really good chance of getting the coins back.
The reply that the government seeks permission to file:
1. points out that if the decision of the Court Of Appeal stands it would stand for the proposition that a failure of the government [acting as a law enforcement agency seeking to forfeit property to the government as opposed to the government acting in its capacity as the owner of the property which it claims is stolen] to comply with the CAFRA deadline to file a forfeiture proceeding would deprive the government [as the owner of stolen property] of the remedy of a claim for declaratory judgment;
2. point out that the Langbords' Answer is incorrect in claiming that the decision of the Court Of Appeal "is not reasonably read to hold.... that every seizure in every case.... is a nonjudicial forfeiture proceeding triggering the time limits in 18 USC Section 983 [triggering the running of the 90 day deadline for filing a forfeiture proceeding], because the majority opinion in the decision said this multiple times. The government asserts that the majority opinion in the Court OF Appeal decision threatens to "vastly extend CAFRA's stringent time limits to circumstances never intended by Congress."; and
3. points out that though the Langbords claim "this case is about an unconstitutional abuse of power and holding the government accountable for its unlawful acts, the government was held accountable for the mistake identified by the district court. The court afforded the Langbords the process they demanded by imposing on the government the burden of proof before a jury in establishing ownership of the stolen Double Eagle coins."
Sounds like the government is saying that if they don't get to do a do-over, a dangerous precedent will have been established that will force the government to follow the rules in the future!
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.
<< <i>The reply that the government seeks permission to file:
1. points out that if the decision of the Court Of Appeal stands it would stand for the proposition that a failure of the government [acting as a law enforcement agency seeking to forfeit property to the government as opposed to the government acting in its capacity as the owner of the property which it claims is stolen] to comply with the CAFRA deadline to file a forfeiture proceeding would deprive the government [as the owner of stolen property] of the remedy of a claim for declaratory judgment;
2. point out that the Langbords' Answer is incorrect in claiming that the decision of the Court Of Appeal "is not reasonably read to hold.... that every seizure in every case.... is a nonjudicial forfeiture proceeding triggering the time limits in 18 USC Section 983 [triggering the running of the 90 day deadline for filing a forfeiture proceeding], because the majority opinion in the decision said this multiple times. The government asserts that the majority opinion in the Court OF Appeal decision threatens to "vastly extend CAFRA's stringent time limits to circumstances never intended by Congress."; and
3. points out that though the Langbords claim "this case is about an unconstitutional abuse of power and holding the government accountable for its unlawful acts, the government was held accountable for the mistake identified by the district court. The court afforded the Langbords the process they demanded by imposing on the government the burden of proof before a jury in establishing ownership of the stolen Double Eagle coins." >>
Thank you, SanctionII for this update.
My take on the government's reply: Re Point 1. "The decision, if it stands, would deprive the government of the property for failing to comply with the CAFRA deadline." That is as I read it, EXACTLY what CAFRA states and intends to do.
Re Point 2. "The decision threatens to vastly extend CAFRA's stringent time limits to circumstances never intended by Congress." What part of "90 days after the seizure" don't they get?
An authorized PCGS dealer, and a contributor to the Red Book.
IN THE UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ROY LANGBORD, et al. : v. : No. 12-4574 UNITED STATES DEPARTMENT : OF THE TREASURY, et al. APPELLEE’S MOTION TO FILE REPLY IN SUPPORT OF PETITION FOR REHEARING The government seeks permission to file a brief reply in support of its petition for rehearing. The reply, which is attached to this motion, is limited to addressing and correcting key assertions made by the Langbords in their response that are inaccurate or misleading. For instance, the persistent theme of the Langbords’ response is an accusation that the government ignored the district court’s finding that the government acted unconstitutionally in seizing the Double Eagle coins without affording more process. Opp. 2. In fact, the government did address this ruling in its petition for rehearing. The government’s attached reply explains that the remedy the district court imposed for this error is one the Langbords themselves proposed, and is not relevant to the draconian sanction the Langbords now attempt to enforce. In another important misstatement that requires correction, the Langbords attempt to rewrite the panel opinion by insisting that it did not “hold . . . that every seizure in every case . . . is a nonjudicial forfeiture proceeding.” Opp. 13. The
attached reply explains that the Langbords’ attempt to circumscribe the panel’s ruling contradicts the decision itself, and so offers no protection against the harms that may flow from the panel’s fundamental misinterpretation of the forfeiture laws. The government seeks leave to present its brief reply addressing these points. Respectfully yours, ZANE DAVID MEMEGER United States Attorney /s Robert A. Zauzmer ROBERT A. ZAUZMER JACQUELINE ROMERO NANCY RUE Assistant United States Attorneys Case: 12-4574 Document: 003112024829 Page: 2 Date Filed: 07/22/2015 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: Barry H. Berke, Esq. Eric A. Tirschwell, Esq. Kramer Levin Naftalis & Frankel LLP 1177 Avenue of the Americas New York, NY 10036 /s Robert A. Zauzmer ROBERT A. ZAUZMER Assistant United States Attorney DATED: July 22, 2015.
Case: 12-4574 Document: 003112024829 Page: 3 Date Filed: 07/22/2015
IN THE UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ROY LANGBORD, et al. : v. : No. 12-4574 UNITED STATES DEPARTMENT : OF THE TREASURY, et al. APPELLEE’S REPLY IN SUPPORT OF PETITION FOR REHEARING The government presents this brief reply solely to address important misstatements made by the Langbords in their opposition to the government’s petition for rehearing. 1. A key basis for the government’s request for rehearing of the panel majority’s erroneous decision is the need to correct the unfair and devastating elimination, applicable only to the government, of a declaratory judgment as a remedy to recover stolen property. The Langbords’ reply largely makes no effort to defend the panel majority’s reasoning on this point, citing no provision of CAFRA that precludes a separate declaratory judgment, and offering no defense of the panel majority’s unsupportable ruling that forfeiture is a “special statutory proceeding” that precludes a declaratory judgment, other than to say that “no court has ruled to the contrary,” Opp. 7. Instead, the gravamen of the Langbords’ current position is that the government must lose any civil remedy for the recovery of its property because it acted unconstitutionally in seizing the property without affording more
process. In this regard, the Langbords accuse the government of ignoring the district court’s finding of unconstitutional action. See Opp. 1-2. That is wrong. The government in fact acknowledged in its petition the district court’s holding that it “should have afforded more process once the Langbords demanded the return of the coins,” and explained that “[a]s a remedy, the court directed the government to present a judicial forfeiture claim, thus shifting the burden of proof to the government.” Pet. 3. The government did not further challenge this remedy. Indeed, although the Langbords do not mention it, this was an “alternative” remedy that the Langbords themselves suggested and requested in their original complaint in the district court. See JA 271. The district court obliged the Langbords, stating: Our holding does not imply that the Government will be required to return the coins immediately. Indeed Plaintiffs concede that return is not required if the Government promptly initiates a judicial forfeiture proceeding. (Pls.’ Mot. Summ. J. Due Process & Illegal Seizure 24 [Docket 77]). Also, it is well established that “illegal seizure of property does not immunize it from forfeiture as long as the government can sustain the forfeiture claim with independent evidence.” United States v. Pierre, 484 F.3d 75, 87 (1st Cir. 2007); see United States v. 47 West 644 Route 38, 190 F.3d 781, 782 (3d Cir. 1999). For the reasons explained in the next section, we will require the Government to promptly initiate a forfeiture action. JA 157 (emphasis added). The Langbords’ present claim, that they were entitled to outright return of the government’s property because of the constitutional error, does not conceivably follow. Once the government complied with the court’s order and the Langbords’ suggestion, there was no further basis to deny the government all means to recover the property that had been stolen from it. The government, like all other property
owners, is surely entitled to quiet title to property through a declaratory judgment. 28 U.S.C. § 2201. Nor does CAFRA purport to displace that remedy for the government alone: in a provision the Langbords and the panel majority do not address, CAFRA explicitly states that the only consequence of failing to file a timely judicial forfeiture action in response to a seized asset claim is that the government “may not take any further action to effect the civil forfeiture of such property in connection with the underlying offense.” 18 U.S.C. § 983(a)(3)(B). In this light, the panel majority’s refusal to allow the government as property owner a timely declaratory judgment action that is available to any other property owner is incorrect. It is that refusal which would produce a miscarriage of justice in this case, and harm the government’s ability to defend its property rights in future cases. The Langbords do not cite any Constitutional, statutory, or judicial rule that would require such a result. Instead, they belittle the denial of a declaratory judgment establishing the government’s title in its own property as “rul[ing] out only one non-forfeiture remedy in this case,” Opp. 5, as if denying one valid statutory remedy is no big deal.1 Of course, it is a very big deal. In this case, the panel majority’s erroneous ruling regarding declaratory relief represents the difference
1 In a related passage, the Langbords chide the government for not seeking a replevin remedy. Id. But the government did present a replevin claim after the district court ordered it to commence a judicial forfeiture proceeding. And the Langbords opposed that claim, successfully asserting that replevin did not lie because the coins were no longer in their possession. See JA 1203 (Langbords’ argument); JA 126 (district court ruling). The district court found that a declaratory judgment action, on which the government bore the burden of proof, was proper instead.
between the government recovering gold pieces which a jury unanimously found were stolen from the Mint, and an illicit windfall to the descendants of the person who stole them. The panel’s decision to erase the declaratory judgment establishing the government’s ownership of its property should be reconsidered. 2. The Langbords are also wrong to oppose rehearing of the erroneous CAFRA ruling on the ground that it is a case-specific determination tied to the particular seizure in this case. The Langbords insist that the “majority opinion is not reasonably read to hold . . . that every seizure in every case . . . is a nonjudicial forfeiture proceeding triggering the time limits in [18 U.S.C.] § 983.” Opp. 13. Yet that is exactly what the panel said – over and over again. Maj. Op. 22 (“[A] ‘nonjudicial civil forfeiture proceeding’ commences when the Government has seized property.”); ibid. (“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).”); ibid. (“It is only when a seizure occurs that there is a ‘nonjudicial civil forfeiture proceeding’ and thus the Government must respond.”); id. at 22-23 (“Here, the Government unquestionably committed a seizure . . . so it was required to respond to the Langbords’ seized asset claim”). By attempting to rewrite the panel opinion, the Langbords apparently realize that the majority’s decision threatens to vastly extend
CAFRA’s stringent time limits to circumstances never intended by Congress. Rehearing en banc of the CAFRA issue is warranted.2 3. To the Langbords, “this case is about an unconstitutional abuse of power and holding the government accountable for its unlawful acts.” Opp. 1. But the government was held accountable for the mistake identified by the district court: The court afforded the Langbords the process they demanded by imposing on the government the burden of proof before a jury in establishing its ownership of the stolen Double Eagle coins. There is nothing in the Constitution or any statute providing that the government could not do even this, and indeed abundant statutory authority, starting with the Declaratory Judgment Act, holding otherwise. The government seeks rehearing en banc in order to correct the wrongful result in
2 With regard to the forfeiture issues, the government does not respond further at this time, other than to observe that the Langbords’ opposition brief misapplies the forfeiture statutes, citing statutory language, cases, and treatises out of context, while never refuting the government’s contentions that not every seizure begins a forfeiture, and even when there is a forfeiture the government may always forego an administrative forfeiture and proceed later by judicial forfeiture only, an option that the majority opinion erases. For instance, the Langbords argue at length that a claimant may file a seized asset claim under § 983(a)(2)(A) – and so put the government on a 90-day clock – any time after a seizure, without waiting for notice. Opp. 8-11. But that argument ignores the statutory mandate that the property be “seized in a nonjudicial forfeiture proceeding.” 18 U.S.C. § 983(a)(2)(A) (emphasis added). A central issue in this case is whether the government’s seizure of its own property, which had been stolen from it, followed by the decision not to commence an administrative forfeiture, constituted “a nonjudicial forfeiture proceeding” in the first place. The Langbords claim that the government acted only in a law enforcement capacity, not as the owner of property, Opp. 6, a claim which is specious given that the Mint is not a law enforcement agency and has no power to begin an administrative forfeiture proceeding. The government prays that the Court rehear this case and permit the government the opportunity to explain further the significant errors of the panel majority and the Langbords in rewriting the longestablished rules of forfeiture.
this case and to preserve the government’s full rights in future cases to recover stolen government property. Respectfully yours, ZANE DAVID MEMEGER United States Attorney /s Robert A. Zauzmer ROBERT A. ZAUZMER JACQUELINE ROMERO NANCY RUE Assistant United States Attorneys Case: 12-4574 Document: 003112024829 Page: 9 Date Filed: 07/22/2015 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: Barry H. Berke, Esq. Eric A. Tirschwell, Esq. Kramer Levin Naftalis & Frankel LLP 1177 Avenue of the Americas New York, NY 10036 /s Robert A. Zauzmer ROBERT A. ZAUZMER Assistant United States Attorney DATED: July 22, 2015.
Case: 12-4574 Document: 003112024829 Page: 10 Date Filed: 07/22/2015
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 OPPOSITION TO GOVERNMENT’S MOTION TO FILE A REPLY ON REHEARING EN BANC BARRY H. BERKE, ESQ. ERIC A. TIRSCHWELL, ESQ. ROBIN WILCOX, 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: 003112025940 Page: 1 Date Filed: 07/23/2015
The Langbords oppose the government’s motion for leave to file a reply. Nothing in the Federal Rules of Appellate Procedure or this Court’s Local Appellate Rules contemplate such a filing. The government claims its purpose is “solely to address important misstatements made by the Langbords in their opposition.” In fact, the government’s proposed reply consists almost entirely of reargument of points already discussed at length in the merits and rehearing briefs. In addition, the government’s proposed reply further misstates, rather than corrects, the record. As just one example, the government argues that the filing of a judicial forfeiture claim was an alternative “remedy that the Langbords themselves suggested and requested.” (Emphasis in original.) This is misleading. The Langbords moved in the District Court for relief under CAFRA, specifically requesting “an order (1) directing that defendants return these Coins to plaintiffs; and (2) barring defendants from instituting any future civil forfeiture proceedings against these Coins.” (JA788). In the alternative, to the extent that remedy was not granted, the Langbords separately requested relief on their Fourth and Fifth Amendment claims requiring that the government either return the Coins or commence a judicial forfeiture action. (See JA211, Doc. 77 (requesting the District Court to “direct that defendants either return these Coins to the plaintiffs or, to the extent plaintiffs’ claims for relief under CAFRA do not preclude such an action, promptly commence a civil forfeiture proceeding”) (emphasis added)). Of course, the Panel majority has now held that the government’s violations of CAFRA did preclude such a forfeiture complaint. For these reasons, the Langbords oppose the government’s motion for permission to file a reply on the issue of rehearing.
Dated: July 23, 2015 Respectfully submitted, /s/ Barry H. Berke Barry H. Berke Eric A. Tirschwell Robin Wilcox 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 23, 2015.
Case: 12-4574 Document: 003112025940 Page: 4 Date Filed: 07/23/2015
Langbords may have settled for as little as $1M. They went from $40M to $8M.In hindsight,if gov would have flashed a million tax free dollars to the Langbords,in the Old Man's favorite denomination,$100 bills,($1M in $100 bills weighs 22 lb. and fits in a single standard-sized briefcase according to the Old Man) i would bet my entire coin collection that they would have taken it.
It probably would have taken an act of Congress to accomplish this but look at the savings to both sides.Gov could have argued before Congress that "We don't know how many of these things are still out there.Obviously,they didn't all get melted as we intended to happen in 1937.Paying $1M to Langbords is the most cost effective way to settle this dispute."
Look what's happening now.We are all getting buried under a mountain of words and both sides are equally culpable.Langbords may not even get the historic holders the ten '33 doubles are housed in if gov is forced to give the coins back to them.The holders are definitely government property if gov paid for them which I suspect they did.Yes,i'm sensing a lot of gov bitterness.For all its foibles,government is made of people too,sports fans.
"Bring your own holders,Langbords.We are keeping the ten recloseable,museum quality holders WE THE PEOPLE paid for."
Litigation: A machine which you go into as a pig and come out of as a sausage. Ambrose Bierce
Great spirits have always encountered violent opposition from mediocre minds.-Albert Einstein
It's interesting to me that both sides respond to a rehash of arguments on July 23rd. (today) LIVE with lots of legal mumbo jumbo about the same things they both said on July 1st and July 20th. Like I said before, if the court allows a rehearing en banc, the government will eventually win. If the court rejects the government request and supports CAFRA, then I believe the Langbords will get their coins back. We should all know the courts decision shortly. Steve
<< <i>It probably would have taken an act of Congress to accomplish this but look at the savings to both sides. >>
The last time Congress got involved in something like that they got burned. They legislated a tax deduction to the Lilly estate based on a donation of gold coins to the Smithsonian, some of which later turned out to be fakes.
Anything less than a billion dollars I don't think Congress is much interested in anyway. The only expense to the government here is for their attorneys who are all salaried, sunk cost. I suspect Berke, et al will make a ton more than the government attorneys.
I've wondered why the Langbords didn't take it upon themselves to have a TPG do the authenticating. >>
Because the Langbords would then have been at the mercy of whatever the TPG decided to do with them? A TPG encapsulation would not have helped the Langbords establish ownership.
I've wondered why the Langbords didn't take it upon themselves to have a TPG do the authenticating. >>
Because the Langbords would then have been at the mercy of whatever the TPG decided to do with them? A TPG encapsulation would not have helped the Langbords establish ownership. >>
Plus they would have shown up in the POP reports and raised eyebrows among other things.
I've wondered why the Langbords didn't take it upon themselves to have a TPG do the authenticating. >>
Because the Langbords would then have been at the mercy of whatever the TPG decided to do with them? A TPG encapsulation would not have helped the Langbords establish ownership. >>
I wonder if the TPG would have a duty to notify the Secret Service?
I've wondered why the Langbords didn't take it upon themselves to have a TPG do the authenticating. >>
Because the Langbords would then have been at the mercy of whatever the TPG decided to do with them? A TPG encapsulation would not have helped the Langbords establish ownership. >>
I wonder if the TPG would have a duty to notify the Secret Service? >>
Why? The coins were never reported as stolen. PCGS has said that they would grade them and stuff like a 1964 Peace dollar and return them to their owner/submitter.
Comments
This case is far from over and thus this thread is far from being finished.
If the government is successful in its efforts to overturn the 4-17-2015 decision the case will have along way to go. If the government is unsuccessful the case will return to the trial court for further proceedings, including have the trial court issue a judgment in favor of the Langbords, having the government return the coins to the Langbords and having the Langbords file additional documents seeking an award of their costs of suit and attorney fees.
<< <i>Sanction II, only if you could recover lawyer fees for your time put into this case for us. Thanks for keeping us informed. >>
+1
<< <i>Brilliant Langbord lawyering is not how the Langbords win. A miscalculation of possible dire consequences is what screwed this case up for gov. >>
Mr. Berke can't talk but I rather expect he anticipated all of this.
Out of all of the lawyers and law firms that exist in the USA today, there are, by percentage, relatively few would have the skill set, knowledge, experience and resources to competently handle [from initial client intake, through pre litigation events, through initiating litigation, through years of pretrial litigation at the trial court level, through the preparation for and conduct of a trial, through post trial/pre judgment litigation in the trial court, through the first level of appeal before the US Court Of Appeals, through the current post Court Of Appeal decision appellate litigation and through what will likely be post appeal proceedings in the trial court once the case returns to the trial court and possibly judgment enforcement proceedings] a case such as the one now winding its way through the federal court system.
Mr. Berke and his firm provided services to Mr. Fenton that ultimately resulted in a settlement, in the Fenton coin being legal to own in the private sector and the sale of same to the benefit of Mr. Fenton. Mr. Berke and his firm have provided services to the Langbord family that may very well result in an additional 10 1933 double eagles being legal to own. I suspect that if a client satisfaction survey was provided by Mr. Fenton and the Langbords to Mr. Berke and his firm a number of Gold Star stickers would be affixed to same [Maybe someone should open a CAC type business that gives out green and gold stickers to lawyers
Proceeding as they did,not taking recommendations of multiple government agencies,the Mint acted recklessly,in my opinion.Setting a base price of $40M for the ten gold discs,as my share being one of 400M Americans,i expect a check from gov for:
40,000,000/400,000,000=$.10
Actually,cash would be better.I collect dimes.
Great spirits have always encountered violent opposition from mediocre minds.-Albert Einstein
<< <i>Whether the lawyering of Mr. Berke and the law firm he works at has or has not been "brilliant" is of little significance.
Out of all of the lawyers and law firms that exist in the USA today, there are, by percentage, relatively few would have the skill set, knowledge, experience and resources to competently handle [from initial client intake, through pre litigation events, through initiating litigation, through years of pretrial litigation at the trial court level, through the preparation for and conduct of a trial, through post trial/pre judgment litigation in the trial court, through the first level of appeal before the US Court Of Appeals, through the current post Court Of Appeal decision appellate litigation and through what will likely be post appeal proceedings in the trial court once the case returns to the trial court and possibly judgment enforcement proceedings] a case such as the one now winding its way through the federal court system.
Mr. Berke and his firm provided services to Mr. Fenton that ultimately resulted in a settlement, in the Fenton coin being legal to own in the private sector and the sale of same to the benefit of Mr. Fenton. Mr. Berke and his firm have provided services to the Langbord family that may very well result in an additional 10 1933 double eagles being legal to own. I suspect that if a client satisfaction survey was provided by Mr. Fenton and the Langbords to Mr. Berke and his firm a number of Gold Star stickers would be affixed to same [Maybe someone should open a CAC type business that gives out green and gold stickers to lawyers
<< <i>
<< <i>Brilliant Langbord lawyering is not how the Langbords win. A miscalculation of possible dire consequences is what screwed this case up for gov. >>
Mr. Berke can't talk but I rather expect he anticipated all of this. >>
As I suggested in my most recent COINage article on the Langbord Ten.
While I continue to keep current on the events unfolding in the federal court case concerning the 10 1933 double eagles (including the issuance of the 4-17-2015 decision of the Court Of Appeal and subsequent Petition For Rehearing, en banc), I find myself helping out another attorney I know who is involved in a real estate case in the California courts that is taking a parallel path to the double eagle case. The other attorney does not have much appellate experience and I am helping him out in navigating the procedural and substantive law applicable to California appellate practice.
In his case the other side filed an appeal after losing a case at the trial court level in April, 2014. The trial was held at the limited jurisdiction superior court level and the appeal was filed in and decided by the Appellate Department of the superior court. The appeal was decided on June 5, 2015 in favor of the my colleague's client. The other side on 6-19-2015 petitioned the Appellate Department of the Superior Court to rehear the case or order the case transferred to the California Court Of Appeal. My colleague answered that petition. The Appellate Department of the Superior Court never ruled on the Appellant's petition and the time deadline for doing so passed (which the the equivalent of a denial of the petition). Last Friday the Appellant filed another Petition. This newest Petition was filed in the California Court Of Appeal and it requests that the California Court Of Appeal order the case transferred to it from the Appellate Department of the Superior Court. I am helping my colleague in preparing an Answer to this latest petition. If it is denied then the Appellant can petition the Court Of Appeal for a rehearing, en banc; and can thereafter petition the California Supreme Court to review the case. I suppose that thereafter the Appellant could even seek to have the US Supreme Court review the case.
Very strange that two cases I have an interest in are proceeding down similar paths at roughly the same time.
<< <i>Something very interesting is happening to me at this time.
While I continue to keep current on the events unfolding in the federal court case concerning the 10 1933 double eagles (including the issuance of the 4-17-2015 decision of the Court Of Appeal and subsequent Petition For Rehearing, en banc), I find myself helping out another attorney I know who is involved in a real estate case in the California courts that is taking a parallel path to the double eagle case. The other attorney does not have much appellate experience and I am helping him out in navigating the procedural and substantive law applicable to California appellate practice.
In his case the other side filed an appeal after losing a case at the trial court level in April, 2014. The trial was held at the limited jurisdiction superior court level and the appeal was filed in and decided by the Appellate Department of the superior court. The appeal was decided on June 5, 2015 in favor of the my colleague's client. The other side on 6-19-2015 petitioned the Appellate Department of the Superior Court to rehear the case or order the case transferred to the California Court Of Appeal. My colleague answered that petition. The Appellate Department of the Superior Court never ruled on the Appellant's petition and the time deadline for doing so passed (which the the equivalent of a denial of the petition). Last Friday the Appellant filed another Petition. This newest Petition was filed in the California Court Of Appeal and it requests that the California Court Of Appeal order the case transferred to it from the Appellate Department of the Superior Court. I am helping my colleague in preparing an Answer to this latest petition. If it is denied then the Appellant can petition the Court Of Appeal for a rehearing, en banc; and can thereafter petition the California Supreme Court to review the case. I suppose that thereafter the Appellant could even seek to have the US Supreme Court review the case.
Very strange that two cases I have an interest in are proceeding down similar paths at roughly the same time. >>
If Barry Berke makes an untimely visit to that great courtroom in the sky, you may get a chance to battle the Guvmint for some 1933 DEs. You just never know when another may surface.
My 1866 Philly Mint Set
The oral arguments thread (Nov,2014)
The waiting for the appeal decision thread (Jan, Feb, Mar, 2015)
My Complete PROOF Lincoln Cent with Major Varieties(1909-2015)Set Registry
CHAPTER 9. EN BANC CONSIDERATION
9.1 Policy of Avoiding Intra-circuit Conflict of Precedent.
It is the tradition of this court that the holding of a panel in a precedential opinion
is binding on subsequent panels. Thus, no subsequent panel overrules the
holding in a precedential opinion of a previous panel. Court en banc
consideration is required to do so.
9.2 Hearing En banc.
Initial en banc hearing is extraordinary; it is ordered only when a majority of the
active judges who are not disqualified, determines that the case is controlled by a
prior decision of the court which should be reconsidered and the case is of such
immediate importance that exigent circumstances require initial consideration by
the full court.
9.3 Criteria for Rehearing En banc.
9.3.1 This court strictly follows the precept of Fed.R.App.P. 35(a) and Local
Appellate Rule 35.4 that rehearing en banc is not favored and will not be
ordered unless consideration by the full court is necessary to secure or
maintain uniformity of its decisions or the proceeding involves a
question of exceptional importance.
9.3.2 This court does not ordinarily grant rehearing en banc when the panel's
statement of the law is correct and the controverted issue is solely the
application of the law to the circumstances of the case.
9.3.3 Rehearing en banc is ordinarily not granted when the only issue presented
is one of state law.
9.4 Court Originated Rehearing En banc.
9.4.1 If, during the circulation of draft opinions pursuant to I.O.P. 5.5.2 and 5.6,
a majority of the active judges who are not disqualified, votes that the case
be considered en banc, the chief judge enters an order for rehearing en
banc.
9.4.2 If, during the period for circulation of draft opinions, one judge has timely
voted for rehearing, another judge may obtain an extension of time to
consider en banc rehearing by circulating a letter asking that the time for
voting be extended for a period not to exceed 5 working days beyond the
8 day (10 day in August) time period. This request results in an automatic
extension. Irrespective of the number of such requests, the voting time
automatically is extended this one period only, unless the chief judge, upon
application, grants a further extension of time. In death penalty cases, the
times set forth herein may be reduced pursuant to Local Appellate Rule
Misc. 111.7(b).
9.4.3 During the circulation of draft opinions, a judge who does not desire
rehearing or who has no comment is not expected to respond. The active
judge who has written a dissenting opinion is presumed to have voted for
rehearing en banc absent a notification in writing to the contrary.
9.5 Rehearing En banc on Petition by Party.
9.5.1 It is presumed that a petition for rehearing before the panel or suggestion
for en banc rehearing filed by a party as provided by Fed.R.App.P. 40(a)
or 35(b) requests both panel rehearing and rehearing en banc, unless the
petition for panel rehearing under Rule 40(a) states explicitly that it does
not request en banc rehearing under Rule 35(b).
9.5.2 When a petition for rehearing is filed, a copy of the petition is
transmitted by the clerk to each member of the panel which heard and
decided the case and to the other active judges of the court with a request
that they respond to the authoring judge if they desire rehearing or an
answer. When the author is not a member of the court, the clerk requests
that responses be directed to the ranking judge of the majority. Any
member of the panel majority may direct the clerk to request an answer.
9.5.3 Pursuant to 28 U.S.C. ' 46(c), only active judges of this court may vote
for rehearing en banc. Therefore, rehearing en banc shall be ordered
only upon the affirmative votes of a majority of the judges of this court
in regular active service who are not disqualified.
9.5.4 An active judge who does not communicate with the authoring judge
concerning rehearing within 10 calendar days after the date of the clerk's
letter transmitting the petition for rehearing is presumed not to desire
rehearing en banc or that an answer be filed. In death penalty cases, the
times set forth herein may be reduced pursuant to Local Appellate Rule
Misc. 111.7(b).
9.5.5 If, during the 10 day period for circulation of petitions for rehearing, one
judge has timely voted for rehearing, another judge may obtain an
extension of time to consider en banc rehearing by circulating a letter
asking that the time for voting be extended for a period not to exceed 5
working days beyond the 10 day time period. This request results in an
automatic extension. Irrespective of the number of such requests, the
voting time automatically is extended this one period only, unless the
chief judge, upon application, grants a further extension of time. In death
penalty cases, the times set forth herein may be reduced pursuant to
Local Appellate Rule Misc. 111.7(b).
9.5.6 If four active judges vote to request an answer to the petition or if there
are a total of four votes for an answer or for rehearing, provided that
there is at least one vote for an answer, the authoring judge enters an
order directing such an answer within 14 calendar days from the date of
the order. The clerk forwards the answer to the active judges with the
request that they notify the authoring judge within 10 calendar days if
they vote to grant the petition. A judge who does not desire rehearing is
not expected to respond. Copies of the answer are sent as a courtesy to
any senior judge or visiting judge who was a member of the panel which
heard and decided the case. In death penalty cases, the times set forth
herein may be reduced pursuant to Local Appellate Rule Misc. 111.7(b).
9.5.7 The authoring judge enters an order denying rehearing before the panel,
and denying rehearing en banc if a majority of the active judges who are
not disqualified, does not vote for rehearing. Separate orders may be
entered if appropriate. When the panel grants a petition for rehearing and
a petition for rehearing en banc is also pending, the judge who enters the
order granting panel rehearing notifies the active judges of the vacatur of
the panel opinion, and all action on the petition for rehearing en banc is
suspended. Following panel rehearing, the authoring judge notifies the
active judges of the disposition and whether any further vote on the
petition for rehearing en banc is required.
9.5.8 If there is a dissent from the denial of rehearing and no dissenting opinion
is filed, a notation will be added to the dispositive order, at the affirmative
request of the dissenting judge, that "Judge would grant rehearing by
the court en banc." Any active judge may file an opinion sur denial of the
petition and direct its publication.
9.5.9 If a majority of the active judges of the court who are not disqualified votes
for rehearing en banc, the chief judge enters an order which grants
rehearing as to one or more of the issues, vacates the panel's opinion in
full or in part and the judgment entered thereon, and assigns the case to the
calendar for rehearing en banc.
9.6 Procedure.
9.6.1 If the author is a visiting judge, justice, or a senior circuit judge, the
ranking active or senior judge of this court on the panel majority receives
responses to the petition, communicates with the clerk, signs the
necessary orders, and has all the administrative responsibility set forth in
this I.O.P.
9.6.2 An en banc hearing is held only at a regularly scheduled en banc session
of the court, unless a majority of the active judges who are not
disqualified, votes to expedite.
9.6.3 The chief judge, when requested by a majority of the en banc court,
directs the clerk to advise counsel to submit supplemental briefs on
specific issues or to be prepared to discuss at oral argument any other
relevant issues.
9.6.4 A senior judge of this court may elect, pursuant to 28 U.S.C. ' 46(c), to
participate as a member of the en banc court reviewing a decision of a
panel on which the senior judge was a member. That election may be
made by letter to the clerk, with copies to all active judges, covering all
cases on which the senior judge may thereafter sit, or may be made on a
case by case basis. Any judge participating in an en banc poll, hearing,
or rehearing while in regular active service who subsequently takes
senior status may elect to continue participating in the final resolution of
the case.
If any of you have trouble sleeping at night, just read Chapter 9 and you will quickly lose focus and nod off.
I do not know what the required or customary deadline (if any) is for the court to issue a decision on a Petition For Rehearing En Banc.
Does anyone know the answer to the above?
And...Am I the only one who has the sneaking suspicion that the Langbords might just own more than ten pieces?
RIP Mom- 1932-2012
<< <i>For those interested in learning more about the US 3rd Circuit Court Of Appeals Internal Operating Procedures governing Petitions For Rehearing please review Chapter 9 of the Court's 2015 Internal Operating Procedures:
CHAPTER 9. EN BANC CONSIDERATION
9.5.6 If four active judges vote to request an answer to the petition or if there
are a total of four votes for an answer or for rehearing, provided that
there is at least one vote for an answer, the authoring judge enters an
order directing such an answer within 14 calendar days from the date of
the order. The clerk forwards the answer to the active judges with the
request that they notify the authoring judge within 10 calendar days if
they vote to grant the petition. A judge who does not desire rehearing is
not expected to respond. Copies of the answer are sent as a courtesy to
any senior judge or visiting judge who was a member of the panel which
heard and decided the case. In death penalty cases, the times set forth
herein may be reduced pursuant to Local Appellate Rule Misc. 111.7(b).
>>
It appears to me, based on the above 9.5.6 procedure, that at least four active judges requested an answer from the Langbords lawyer to the petition for rehearing made by the government. That answer is what was issued on Monday, correct? I don't place any negative to this request as I would think these judges wanted to hear very clearly what the Langbord arguments were.
Some of the day counting per the procedures may have already occurred so maybe, just maybe we will hear from the court sooner than we expect. Steve
My Complete PROOF Lincoln Cent with Major Varieties(1909-2015)Set Registry
<< <i>I expect to hear either a) the night janitor accidentally melted them or b) while investigating for this case they found five more rolls and will release them the day before they give back the 10.
I'm going with, "Oops, they were destroyed along with the IRS hard drives".
I have a theory that there could be up to hundreds of 1933 double eagles in existence.There could be some more '33's hidden in the old shop.I would check the jeweler's bench first.All kinds of hiding places there.
An interesting question to speculate on is what would gov "do about it" if more pieces were to come from the Langbords?
Great spirits have always encountered violent opposition from mediocre minds.-Albert Einstein
I will review same and post a follow up tomorrow.
<< <i>
<< <i>For those interested in learning more about the US 3rd Circuit Court Of Appeals Internal Operating Procedures governing Petitions For Rehearing please review Chapter 9 of the Court's 2015 Internal Operating Procedures:
CHAPTER 9. EN BANC CONSIDERATION
9.5.6 If four active judges vote to request an answer to the petition or if there
are a total of four votes for an answer or for rehearing, provided that
there is at least one vote for an answer, the authoring judge enters an
order directing such an answer within 14 calendar days from the date of
the order. The clerk forwards the answer to the active judges with the
request that they notify the authoring judge within 10 calendar days if
they vote to grant the petition. A judge who does not desire rehearing is
not expected to respond. Copies of the answer are sent as a courtesy to
any senior judge or visiting judge who was a member of the panel which
heard and decided the case. In death penalty cases, the times set forth
herein may be reduced pursuant to Local Appellate Rule Misc. 111.7(b).
>>
It appears to me, based on the above 9.5.6 procedure, that at least four active judges requested an answer from the Langbords lawyer to the petition for rehearing made by the government. That answer is what was issued on Monday, correct? I don't place any negative to this request as I would think these judges wanted to hear very clearly what the Langbord arguments were.
Some of the day counting per the procedures may have already occurred so maybe, just maybe we will hear from the court sooner than we expect. Steve
Perhaps the court just wanted to dot all the t's and cross all the eyes as a courtesy to the gummint, so that the gummint can't complain that they did not get a fair hearing from the en banc court.
<< <i>An interesting question to speculate on is what would gov "do about it" if more pieces were to come from the Langbords? >>
Next time the government will follow the rules and file a proper CAFRA motion, which could lead to the odd situation where they could legally seize some of the 33s, but not all of them.
<< <i>
<< <i>An interesting question to speculate on is what would gov "do about it" if more pieces were to come from the Langbords? >>
Next time the government will follow the rules and file a proper CAFRA motion, which could lead to the odd situation where they could legally seize some of the 33s, but not all of them. >>
Assuming they prevail in the CAFRA action.
<< <i>I just looked at the case docket. Today the government filed an application for permission to file a reply to the document filed by the Langbords on Monday.
I will review same and post a follow up tomorrow. >>
SanctionII, This request to reply to the Langbords answer sounds very unusual to me. Are you aware if this happens sometimes or is the government desperite to fight this case in writing charges back and forth. Thanks for your continuing follow-up. Steve
My Complete PROOF Lincoln Cent with Major Varieties(1909-2015)Set Registry
<< <i>
<< <i>I just looked at the case docket. Today the government filed an application for permission to file a reply to the document filed by the Langbords on Monday.
I will review same and post a follow up tomorrow. >>
SanctionII, This request to reply to the Langbords answer sounds very unusual to me. Are you aware if this happens sometimes or is the government desperite to fight this case in writing charges back and forth. Thanks for your continuing follow-up. Steve
Perhaps the government decided that they did not pound the table hard enough the first time.
Join the fight against Minnesota's unjust coin dealer tax law.
<< <i>
<< <i>
<< <i>I just looked at the case docket. Today the government filed an application for permission to file a reply to the document filed by the Langbords on Monday.
I will review same and post a follow up tomorrow. >>
SanctionII, This request to reply to the Langbords answer sounds very unusual to me. Are you aware if this happens sometimes or is the government desperite to fight this case in writing charges back and forth. Thanks for your continuing follow-up. Steve
Perhaps the government decided that they did not pound the table hard enough the first time. >>
With a little luck they might soon be pounding sand.
<< <i>
<< <i>
<< <i>
<< <i>I just looked at the case docket. Today the government filed an application for permission to file a reply to the document filed by the Langbords on Monday.
I will review same and post a follow up tomorrow. >>
SanctionII, This request to reply to the Langbords answer sounds very unusual to me. Are you aware if this happens sometimes or is the government desperite to fight this case in writing charges back and forth. Thanks for your continuing follow-up. Steve
Perhaps the government decided that they did not pound the table hard enough the first time. >>
With a little luck they might soon be pounding sand. >>
+1
Great spirits have always encountered violent opposition from mediocre minds.-Albert Einstein
I think it's likely very unusual, probably (maybe) subject to a vote, but likely will be denied because it would be too much like hearing arguments via petition requests and the government had their 15 pages and should have chosen words better. Maybe they have something to say about "seizure" v "receiving notice".
Great spirits have always encountered violent opposition from mediocre minds.-Albert Einstein
<< <i>Gov might have taken the position that a "seizure" did not occur.The opportunity to present that argument may not be available to them at this point,however. >>
Their failure to return the coins to the Langbords after authentication constitutes seizure pure and simple.
I've wondered why the Langbords didn't take it upon themselves to have a TPG do the authenticating.
Government paid for authentication/encapsulation? Why would gov do this unless they thought the coins were theirs?
Great spirits have always encountered violent opposition from mediocre minds.-Albert Einstein
<< <i>Essentially,the Langbords,by not doing their own authentication are saying to gov,"Here's your coins.Can you give us $40M for finding them for you?"
I've wondered why the Langbords didn't take it upon themselves to have a TPG do the authenticating.
Government paid for authentication/encapsulation? Why would gov do this unless they thought the coins were theirs? >>
I guess they thought the court/s would be on their side. The fact that the Government compromised on the Fenton coin instead of pursuing forfeiture told BB that he probably had a really good chance of getting the coins back.
1. points out that if the decision of the Court Of Appeal stands it would stand for the proposition that a failure of the government [acting as a law enforcement agency seeking to forfeit property to the government as opposed to the government acting in its capacity as the owner of the property which it claims is stolen] to comply with the CAFRA deadline to file a forfeiture proceeding would deprive the government [as the owner of stolen property] of the remedy of a claim for declaratory judgment;
2. point out that the Langbords' Answer is incorrect in claiming that the decision of the Court Of Appeal "is not reasonably read to hold.... that every seizure in every case.... is a nonjudicial forfeiture proceeding triggering the time limits in 18 USC Section 983 [triggering the running of the 90 day deadline for filing a forfeiture proceeding], because the majority opinion in the decision said this multiple times. The government asserts that the majority opinion in the Court OF Appeal decision threatens to "vastly extend CAFRA's stringent time limits to circumstances never intended by Congress."; and
3. points out that though the Langbords claim "this case is about an unconstitutional abuse of power and holding the government accountable for its unlawful acts, the government was held accountable for the mistake identified by the district court. The court afforded the Langbords the process they demanded by imposing on the government the burden of proof before a jury in establishing ownership of the stolen Double Eagle coins."
<< <i>The reply that the government seeks permission to file:
1. points out that if the decision of the Court Of Appeal stands it would stand for the proposition that a failure of the government [acting as a law enforcement agency seeking to forfeit property to the government as opposed to the government acting in its capacity as the owner of the property which it claims is stolen] to comply with the CAFRA deadline to file a forfeiture proceeding would deprive the government [as the owner of stolen property] of the remedy of a claim for declaratory judgment;
2. point out that the Langbords' Answer is incorrect in claiming that the decision of the Court Of Appeal "is not reasonably read to hold.... that every seizure in every case.... is a nonjudicial forfeiture proceeding triggering the time limits in 18 USC Section 983 [triggering the running of the 90 day deadline for filing a forfeiture proceeding], because the majority opinion in the decision said this multiple times. The government asserts that the majority opinion in the Court OF Appeal decision threatens to "vastly extend CAFRA's stringent time limits to circumstances never intended by Congress."; and
3. points out that though the Langbords claim "this case is about an unconstitutional abuse of power and holding the government accountable for its unlawful acts, the government was held accountable for the mistake identified by the district court. The court afforded the Langbords the process they demanded by imposing on the government the burden of proof before a jury in establishing ownership of the stolen Double Eagle coins." >>
Thank you, SanctionII for this update.
My take on the government's reply:
Re Point 1. "The decision, if it stands, would deprive the government of the property for failing to comply with the CAFRA deadline." That is as I read it, EXACTLY what CAFRA states and intends to do.
Re Point 2. "The decision threatens to vastly extend CAFRA's stringent time limits to circumstances never intended by Congress." What part of "90 days after the seizure" don't they get?
An authorized PCGS dealer, and a contributor to the Red Book.
gov't request
IN THE UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
ROY LANGBORD, et al. :
v. : No. 12-4574
UNITED STATES DEPARTMENT :
OF THE TREASURY, et al.
APPELLEE’S MOTION TO FILE REPLY
IN SUPPORT OF PETITION FOR REHEARING
The government seeks permission to file a brief reply in support of its petition
for rehearing. The reply, which is attached to this motion, is limited to addressing
and correcting key assertions made by the Langbords in their response that are
inaccurate or misleading.
For instance, the persistent theme of the Langbords’ response is an accusation
that the government ignored the district court’s finding that the government acted
unconstitutionally in seizing the Double Eagle coins without affording more process.
Opp. 2. In fact, the government did address this ruling in its petition for rehearing.
The government’s attached reply explains that the remedy the district court imposed
for this error is one the Langbords themselves proposed, and is not relevant to the
draconian sanction the Langbords now attempt to enforce.
In another important misstatement that requires correction, the Langbords
attempt to rewrite the panel opinion by insisting that it did not “hold . . . that every
seizure in every case . . . is a nonjudicial forfeiture proceeding.” Opp. 13. The
Case: 12-4574 Document: 003112024829 Page: 1 Date Filed: 07/22/2015
- 2 -
attached reply explains that the Langbords’ attempt to circumscribe the panel’s
ruling contradicts the decision itself, and so offers no protection against the harms
that may flow from the panel’s fundamental misinterpretation of the forfeiture laws.
The government seeks leave to present its brief reply addressing these points.
Respectfully yours,
ZANE DAVID MEMEGER
United States Attorney
/s Robert A. Zauzmer
ROBERT A. ZAUZMER
JACQUELINE ROMERO
NANCY RUE
Assistant United States Attorneys
Case: 12-4574 Document: 003112024829 Page: 2 Date Filed: 07/22/2015
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:
Barry H. Berke, Esq.
Eric A. Tirschwell, Esq.
Kramer Levin Naftalis & Frankel LLP
1177 Avenue of the Americas
New York, NY 10036
/s Robert A. Zauzmer
ROBERT A. ZAUZMER
Assistant United States Attorney
DATED: July 22, 2015.
Case: 12-4574 Document: 003112024829 Page: 3 Date Filed: 07/22/2015
IN THE UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
ROY LANGBORD, et al. :
v. : No. 12-4574
UNITED STATES DEPARTMENT :
OF THE TREASURY, et al.
APPELLEE’S REPLY IN SUPPORT OF
PETITION FOR REHEARING
The government presents this brief reply solely to address important
misstatements made by the Langbords in their opposition to the government’s
petition for rehearing.
1. A key basis for the government’s request for rehearing of the panel
majority’s erroneous decision is the need to correct the unfair and devastating
elimination, applicable only to the government, of a declaratory judgment as a
remedy to recover stolen property. The Langbords’ reply largely makes no effort to
defend the panel majority’s reasoning on this point, citing no provision of CAFRA
that precludes a separate declaratory judgment, and offering no defense of the panel
majority’s unsupportable ruling that forfeiture is a “special statutory proceeding”
that precludes a declaratory judgment, other than to say that “no court has ruled to
the contrary,” Opp. 7. Instead, the gravamen of the Langbords’ current position is
that the government must lose any civil remedy for the recovery of its property
because it acted unconstitutionally in seizing the property without affording more
Case: 12-4574 Document: 003112024829 Page: 4 Date Filed: 07/22/2015
- 2 -
process. In this regard, the Langbords accuse the government of ignoring the district
court’s finding of unconstitutional action. See Opp. 1-2.
That is wrong. The government in fact acknowledged in its petition the district
court’s holding that it “should have afforded more process once the Langbords
demanded the return of the coins,” and explained that “[a]s a remedy, the court
directed the government to present a judicial forfeiture claim, thus shifting the
burden of proof to the government.” Pet. 3.
The government did not further challenge this remedy. Indeed, although the
Langbords do not mention it, this was an “alternative” remedy that the Langbords
themselves suggested and requested in their original complaint in the district court.
See JA 271. The district court obliged the Langbords, stating:
Our holding does not imply that the Government will be required to return the
coins immediately. Indeed Plaintiffs concede that return is not required if the
Government promptly initiates a judicial forfeiture proceeding. (Pls.’ Mot.
Summ. J. Due Process & Illegal Seizure 24 [Docket 77]). Also, it is well
established that “illegal seizure of property does not immunize it from
forfeiture as long as the government can sustain the forfeiture claim with
independent evidence.” United States v. Pierre, 484 F.3d 75, 87 (1st Cir.
2007); see United States v. 47 West 644 Route 38, 190 F.3d 781, 782 (3d Cir.
1999). For the reasons explained in the next section, we will require the
Government to promptly initiate a forfeiture action.
JA 157 (emphasis added).
The Langbords’ present claim, that they were entitled to outright return of the
government’s property because of the constitutional error, does not conceivably
follow. Once the government complied with the court’s order and the Langbords’
suggestion, there was no further basis to deny the government all means to recover
the property that had been stolen from it. The government, like all other property
Case: 12-4574 Document: 003112024829 Page: 5 Date Filed: 07/22/2015
- 3 -
owners, is surely entitled to quiet title to property through a declaratory judgment.
28 U.S.C. § 2201. Nor does CAFRA purport to displace that remedy for the
government alone: in a provision the Langbords and the panel majority do not
address, CAFRA explicitly states that the only consequence of failing to file a timely
judicial forfeiture action in response to a seized asset claim is that the government
“may not take any further action to effect the civil forfeiture of such property in
connection with the underlying offense.” 18 U.S.C. § 983(a)(3)(B).
In this light, the panel majority’s refusal to allow the government as property
owner a timely declaratory judgment action that is available to any other property
owner is incorrect. It is that refusal which would produce a miscarriage of justice in
this case, and harm the government’s ability to defend its property rights in future
cases. The Langbords do not cite any Constitutional, statutory, or judicial rule that
would require such a result. Instead, they belittle the denial of a declaratory
judgment establishing the government’s title in its own property as “rul[ing] out only
one non-forfeiture remedy in this case,” Opp. 5, as if denying one valid statutory
remedy is no big deal.1
Of course, it is a very big deal. In this case, the panel
majority’s erroneous ruling regarding declaratory relief represents the difference
1 In a related passage, the Langbords chide the government for not seeking a
replevin remedy. Id. But the government did present a replevin claim after the
district court ordered it to commence a judicial forfeiture proceeding. And the
Langbords opposed that claim, successfully asserting that replevin did not lie
because the coins were no longer in their possession. See JA 1203 (Langbords’
argument); JA 126 (district court ruling). The district court found that a declaratory
judgment action, on which the government bore the burden of proof, was proper
instead.
Case: 12-4574 Document: 003112024829 Page: 6 Date Filed: 07/22/2015
- 4 -
between the government recovering gold pieces which a jury unanimously found
were stolen from the Mint, and an illicit windfall to the descendants of the person
who stole them. The panel’s decision to erase the declaratory judgment establishing
the government’s ownership of its property should be reconsidered.
2. The Langbords are also wrong to oppose rehearing of the erroneous CAFRA
ruling on the ground that it is a case-specific determination tied to the particular
seizure in this case. The Langbords insist that the “majority opinion is not
reasonably read to hold . . . that every seizure in every case . . . is a nonjudicial
forfeiture proceeding triggering the time limits in [18 U.S.C.] § 983.” Opp. 13. Yet
that is exactly what the panel said – over and over again. Maj. Op. 22 (“[A]
‘nonjudicial civil forfeiture proceeding’ commences when the Government has seized
property.”); ibid. (“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).”); ibid. (“It
is only when a seizure occurs that there is a ‘nonjudicial civil forfeiture proceeding’
and thus the Government must respond.”); id. at 22-23 (“Here, the Government
unquestionably committed a seizure . . . so it was required to respond to the
Langbords’ seized asset claim”). By attempting to rewrite the panel opinion, the
Langbords apparently realize that the majority’s decision threatens to vastly extend
Case: 12-4574 Document: 003112024829 Page: 7 Date Filed: 07/22/2015
- 5 -
CAFRA’s stringent time limits to circumstances never intended by Congress.
Rehearing en banc of the CAFRA issue is warranted.2
3. To the Langbords, “this case is about an unconstitutional abuse of power
and holding the government accountable for its unlawful acts.” Opp. 1. But the
government was held accountable for the mistake identified by the district court:
The court afforded the Langbords the process they demanded by imposing on the
government the burden of proof before a jury in establishing its ownership of the
stolen Double Eagle coins. There is nothing in the Constitution or any statute
providing that the government could not do even this, and indeed abundant
statutory authority, starting with the Declaratory Judgment Act, holding otherwise.
The government seeks rehearing en banc in order to correct the wrongful result in
2 With regard to the forfeiture issues, the government does not respond
further at this time, other than to observe that the Langbords’ opposition brief
misapplies the forfeiture statutes, citing statutory language, cases, and treatises out
of context, while never refuting the government’s contentions that not every seizure
begins a forfeiture, and even when there is a forfeiture the government may always
forego an administrative forfeiture and proceed later by judicial forfeiture only, an
option that the majority opinion erases. For instance, the Langbords argue at length
that a claimant may file a seized asset claim under § 983(a)(2)(A) – and so put the
government on a 90-day clock – any time after a seizure, without waiting for notice.
Opp. 8-11. But that argument ignores the statutory mandate that the property be
“seized in a nonjudicial forfeiture proceeding.” 18 U.S.C. § 983(a)(2)(A) (emphasis
added). A central issue in this case is whether the government’s seizure of its own
property, which had been stolen from it, followed by the decision not to commence
an administrative forfeiture, constituted “a nonjudicial forfeiture proceeding” in the
first place. The Langbords claim that the government acted only in a law
enforcement capacity, not as the owner of property, Opp. 6, a claim which is
specious given that the Mint is not a law enforcement agency and has no power to
begin an administrative forfeiture proceeding. The government prays that the Court
rehear this case and permit the government the opportunity to explain further the
significant errors of the panel majority and the Langbords in rewriting the longestablished
rules of forfeiture.
Case: 12-4574 Document: 003112024829 Page: 8 Date Filed: 07/22/2015
- 6 -
this case and to preserve the government’s full rights in future cases to recover stolen
government property.
Respectfully yours,
ZANE DAVID MEMEGER
United States Attorney
/s Robert A. Zauzmer
ROBERT A. ZAUZMER
JACQUELINE ROMERO
NANCY RUE
Assistant United States Attorneys
Case: 12-4574 Document: 003112024829 Page: 9 Date Filed: 07/22/2015
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:
Barry H. Berke, Esq.
Eric A. Tirschwell, Esq.
Kramer Levin Naftalis & Frankel LLP
1177 Avenue of the Americas
New York, NY 10036
/s Robert A. Zauzmer
ROBERT A. ZAUZMER
Assistant United States Attorney
DATED: July 22, 2015.
Case: 12-4574 Document: 003112024829 Page: 10 Date Filed: 07/22/2015
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
OPPOSITION TO GOVERNMENT’S MOTION TO FILE A REPLY
ON REHEARING EN BANC
BARRY H. BERKE, ESQ.
ERIC A. TIRSCHWELL, ESQ.
ROBIN WILCOX, 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: 003112025940 Page: 1 Date Filed: 07/23/2015
The Langbords oppose the government’s motion for leave to file a reply. Nothing
in the Federal Rules of Appellate Procedure or this Court’s Local Appellate Rules
contemplate such a filing.
The government claims its purpose is “solely to address important misstatements
made by the Langbords in their opposition.” In fact, the government’s proposed reply
consists almost entirely of reargument of points already discussed at length in the
merits and rehearing briefs.
In addition, the government’s proposed reply further misstates, rather than
corrects, the record. As just one example, the government argues that the filing of a
judicial forfeiture claim was an alternative “remedy that the Langbords themselves
suggested and requested.” (Emphasis in original.) This is misleading. The Langbords
moved in the District Court for relief under CAFRA, specifically requesting “an order (1)
directing that defendants return these Coins to plaintiffs; and (2) barring defendants
from instituting any future civil forfeiture proceedings against these Coins.” (JA788).
In the alternative, to the extent that remedy was not granted, the Langbords separately
requested relief on their Fourth and Fifth Amendment claims requiring that the
government either return the Coins or commence a judicial forfeiture action. (See
JA211, Doc. 77 (requesting the District Court to “direct that defendants either return
these Coins to the plaintiffs or, to the extent plaintiffs’ claims for relief under CAFRA do
not preclude such an action, promptly commence a civil forfeiture proceeding”)
(emphasis added)). Of course, the Panel majority has now held that the government’s
violations of CAFRA did preclude such a forfeiture complaint.
For these reasons, the Langbords oppose the government’s motion for
permission to file a reply on the issue of rehearing.
Case: 12-4574 Document: 003112025940 Page: 2 Date Filed: 07/23/2015
- 2 -
Dated: July 23, 2015 Respectfully submitted,
/s/ Barry H. Berke
Barry H. Berke
Eric A. Tirschwell
Robin Wilcox
Kramer Levin Naftalis & Frankel LLP
1177 Avenue of the Americas
New York, NY 10036
(212) 715-9100
Case: 12-4574 Document: 003112025940 Page: 3 Date Filed: 07/23/2015
- 3 -
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 23, 2015.
Case: 12-4574 Document: 003112025940 Page: 4 Date Filed: 07/23/2015
It probably would have taken an act of Congress to accomplish this but look at the savings to both sides.Gov could have argued before Congress that "We don't know how many of these things are still out there.Obviously,they didn't all get melted as we intended to happen in 1937.Paying $1M to Langbords is the most cost effective way to settle this dispute."
Look what's happening now.We are all getting buried under a mountain of words and both sides are equally culpable.Langbords may not even get the historic holders the ten '33 doubles are housed in if gov is forced to give the coins back to them.The holders are definitely government property if gov paid for them which I suspect they did.Yes,i'm sensing a lot of gov bitterness.For all its foibles,government is made of people too,sports fans.
"Bring your own holders,Langbords.We are keeping the ten recloseable,museum quality holders WE THE PEOPLE paid for."
Litigation: A machine which you go into as a pig and come out of as a sausage.
Ambrose Bierce
Great spirits have always encountered violent opposition from mediocre minds.-Albert Einstein
My Complete PROOF Lincoln Cent with Major Varieties(1909-2015)Set Registry
<< <i>It probably would have taken an act of Congress to accomplish this but look at the savings to both sides. >>
The last time Congress got involved in something like that they got burned. They legislated a tax deduction to the Lilly estate based on a donation of gold coins to the Smithsonian, some of which later turned out to be fakes.
Anything less than a billion dollars I don't think Congress is much interested in anyway. The only expense to the government here is for their attorneys who are all salaried, sunk cost. I suspect Berke, et al will make a ton more than the government attorneys.
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I've wondered why the Langbords didn't take it upon themselves to have a TPG do the authenticating.
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Because the Langbords would then have been at the mercy of whatever the TPG decided to do with them? A TPG encapsulation would not have helped the Langbords establish ownership.
http://www.shieldnickels.net
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I've wondered why the Langbords didn't take it upon themselves to have a TPG do the authenticating.
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Because the Langbords would then have been at the mercy of whatever the TPG decided to do with them? A TPG encapsulation would not have helped the Langbords establish ownership. >>
Plus they would have shown up in the POP reports and raised eyebrows among other things.
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I've wondered why the Langbords didn't take it upon themselves to have a TPG do the authenticating.
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Because the Langbords would then have been at the mercy of whatever the TPG decided to do with them? A TPG encapsulation would not have helped the Langbords establish ownership. >>
I wonder if the TPG would have a duty to notify the Secret Service?
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I've wondered why the Langbords didn't take it upon themselves to have a TPG do the authenticating.
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Because the Langbords would then have been at the mercy of whatever the TPG decided to do with them? A TPG encapsulation would not have helped the Langbords establish ownership. >>
I wonder if the TPG would have a duty to notify the Secret Service? >>
Why? The coins were never reported as stolen. PCGS has said that they would grade them and stuff like a 1964 Peace dollar and return them to their owner/submitter.