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 do worry that the third circuit has seen a way around the entire CAFRA issue, but is concerned that it was not properly addressed. >>
I think the whole CAFRA issue is a red herring to begin with. There is plenty of case law concerning forfeiture that recognizes the obvious: You cannot legally forfeit something for which you never held legal title to or otherwise legally acquired a possessory interest in. In other words, if the Langboards never acquired a possessory interest in the pieces as the jury found, then there is nothing to forfeit and the application of forfeiture laws is absurd. The decision should truly come down (in my opinion to) whether the jury verdict is valid and whether the trial court erred in admitting prejudicial double hearsay that is subject to error. I think the Langboards should win on the latter, but should lose on the CAFRA issue.
Best wishes to the Langbords for a proper and fair result.
I hope the case is resolved in my lifetime.
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 do worry that the third circuit has seen a way around the entire CAFRA issue, but is concerned that it was not properly addressed. >>
I think the whole CAFRA issue is a red herring to begin with. There is plenty of case law concerning forfeiture that recognizes the obvious: You cannot legally forfeit something for which you never held legal title to or otherwise legally acquired a possessory interest in. In other words, if the Langboards never acquired a possessory interest in the pieces as the jury found, then there is nothing to forfeit and the application of forfeiture laws is absurd. The decision should truly come down (in my opinion to) whether the jury verdict is valid and whether the trial court erred in admitting prejudicial double hearsay that is subject to error. I think the Langboards should win on the latter, but should lose on the CAFRA issue. >>
One thing to remember is that the CAFRA was written in 2000, and the CAFRA part of this case will come down to how the judges interpret the law. The "plenty of case law concerning forfeiture" may be less relevant than you think.
I am anxious to see the results. I would not be at all surprised if the courts overturn the CAFRA "death penalty" in this case (I hope they don't), but I would be surprised and disappointed if they did not at least order a new trial based on the hearsay evidence issues.
I want to see the tab of how much taxpayer money has been spent chasing 1933 double eagles.
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 have not posted to this thread recently. I have read the recent posts with interest. Looking forward to being able to hear the audio of the 10-14-2015 hearing.
One thing that my 6th sense tells me is that the regardless of which side wins or loses this current round of this litigation, the loser will seek US Supreme Court review. Even though it is statistically remote that the US Supreme Court would agree to hear the case, there is absolutely no reason why the losing side would not file a petition asking for the highest court in the land to hear the case.
I wonder how long it will be before the En Banc panel of the 3rd District Court Of Appeal issues its decision. Do any of you federal practicioners have any information on the timing of issuing the decision?
Actually, not all that much cost to the government in that the Mint has or at least had 5 full time attorneys on staff for all their needs. There were no additional hires specifically for the Langford case. Now expert witness, etc, are a different matter, but the big number is typically attorney hours and that is a sunk cost so the incremental cost to the taxpayer for that service is effectively zero.
Retired United States Mint guy, now working on an Everyman Type Set.
<< <i>Actually, not all that much cost to the government in that the Mint has or at least had 5 full time attorneys on staff for all their needs. There were no additional hires specifically for the Langford case. Now expert witness, etc, are a different matter, but the big number is typically attorney hours and that is a sunk cost so the incremental cost to the taxpayer for that service is effectively zero. >>
So all these people would have been sitting around doing nothing all these years without the Langbord Makework Project?
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>Actually, not all that much cost to the government in that the Mint has or at least had 5 full time attorneys on staff for all their needs. There were no additional hires specifically for the Langford case. Now expert witness, etc, are a different matter, but the big number is typically attorney hours and that is a sunk cost so the incremental cost to the taxpayer for that service is effectively zero. >>
So all these people would have been sitting around doing nothing all these years without the Langbord Makework Project? >>
I also thought I saw a fee shifting provision in CAFRA, so the government could be on the hook for the Langbords attorney fees, depending on the final outcome of the case.
<< <i>Actually, not all that much cost to the government in that the Mint has or at least had 5 full time attorneys on staff for all their needs. There were no additional hires specifically for the Langford case. Now expert witness, etc, are a different matter, but the big number is typically attorney hours and that is a sunk cost so the incremental cost to the taxpayer for that service is effectively zero. >>
So all these people would have been sitting around doing nothing all these years without the Langbord Makework Project? >>
<< <i>Actually, not all that much cost to the government in that the Mint has or at least had 5 full time attorneys on staff for all their needs. There were no additional hires specifically for the Langford case. Now expert witness, etc, are a different matter, but the big number is typically attorney hours and that is a sunk cost so the incremental cost to the taxpayer for that service is effectively zero. >>
So all these people would have been sitting around doing nothing all these years without the Langbord Makework Project? >>
I do worry that the third circuit has seen a way around the entire CAFRA issue, but is concerned that it was not properly addressed. >>
I think the whole CAFRA issue is a red herring to begin with. There is plenty of case law concerning forfeiture that recognizes the obvious: You cannot legally forfeit something for which you never held legal title to or otherwise legally acquired a possessory interest in. In other words, if the Langboards never acquired a possessory interest in the pieces as the jury found, then there is nothing to forfeit and the application of forfeiture laws is absurd. The decision should truly come down (in my opinion to) whether the jury verdict is valid and whether the trial court erred in admitting prejudicial double hearsay that is subject to error. I think the Langboards should win on the latter, but should lose on the CAFRA issue. >>
Doesn't CAFRA require that the Government file a formal forfeiture request EVEN if the items to be forfeited were/are stolen?
Let's hope the PCGS tech guys have a VERY successful upgrade on Saturday and we all return to this thread on the upgraded program with ALL old threads intact. The message boards are scheduled to be down from 12 noon to 6PM PST on Saturday. That is from 3PM to 9PM EST on Saturday, 2PM to 8PM CST and 1PM to 7PM MST. Thanks. Steve
<< <i>The audio is now up - here. It's downloading slowly, I have not started to listen to it... >>
I have only listened to the first half. It is the Langbords that are arguing that the 1933 are "monetary instruments" not the Government like I first thought. It sounds like if they are classified as "merchandise" then the death penalty for CAFRA may not apply. It is very possible that the CAFRA portion of the case could come down to whether or not the 1933 are coins, since the definition in the law says that "coins" are considered Monetary instruments.
If "the Coins" are not deemed to be coins the government wins? "The Coins" need to be deemed by the judges to be actual coins for the Langbords to prevail?
In United States v. Barnard (1947), The plaintiff contends the coin in dispute was lawfully minted by the United States Mint at Philadelphia, but was never lawfully issued or put in circulation as money, and never became currency or legal tender of the United States; that said coin, never having been lawfully issued as money, or currency, was a chattel, or an article of virtu, at the time it left the Mint .and thereafter, and the defendant, though a bona fide purchaser, acquired no title in the purchase of same against the United States Government, the rightful owner. Plaintiff alleges the coin was illegally taken from the Mint upon substitution of a like coin of another year. http://www2.onu.edu/~s-veltri/NL/barnard.html
Using Judge Boyd's reasoning in the Barnard case and applying it here in the Langbord case,the Langbord pieces would be ten "articles of virtu." Apparently to make flat,round articles of virtu into actual coins the articles need to be monetized. The only entity that can legally make articles of virtu into money is the government.
Great spirits have always encountered violent opposition from mediocre minds.-Albert Einstein
OK--I listened to the oral argument on Saturday with much enjoyment. I'll recount my views and opinions on how it went.
First, the presentation format allowed Langbord (Berke) to go first, with 5 minutes of uninterrupted time, and a total of 30 minutes (of which 5 minutes was reserved for rebuttal). The government then got 5 minutes of uninterrupted time and a total of 30 minutes. Timekeeping is pretty strict. It was a "hot" bench. For both parties, as soon as the 5 minutes of uninterrupted time elapsed, the third circuit judges were all over the orators with questions, and mostly good questions.
Second, for the trial lawyers in the group, and for others interested, it did seem that, at a minimum, the case is headed back for a re-trial, at least from my standpoint. This is because of the conflict between FRE 805 (hearsay) and FRE 803-16 (ancient documents) which began at Minute 40, or so, of the argument. The government argued that the ancient documents rule overcomes all other hearsay issues, and that, in any event, the error, if it occurred, was harmless, since there was a great deal of other tangible evidence. That argument didn't seem to carry the day, and it seems that the panel knew mistakes were made and that those mistakes needed to be corrected through a new trial. Maybe I'm biased, and a few judges seemed either not to understand the issue or not to care much, but this part seemed clear to me.
Third, as to the big issue which encompassed most of the argument, CAFRA, I sensed a divided panel, and one that was struggling with what one judge described as a "Rubic's Cube" type of case. In the end, I sensed a struggle within the panel to make sense of some clear statutory language to avoid a very draconian result. My "guess," and it is only a guess, is that a majority of the panel will find its way around CAFRA, one way or another, and send it back for a new trial.
Fourth, Mr. Berke started his presentation with a powerful 5 minute argument on the government's abuse of power and the statutes that are in place to protect against that abuse or potential abuse. He, and certain judges, also focused on what they saw as the clear statutory language of CAFRA. Mr. Berke might have argued a bit too strenuously as one judge offered a hypothetical that resonated well with the panel. He posited that if a group of people went down to the docks and seized the USS Constitution, hypothetically, was the government required to file a "forfeiture" action? And upon seizing it back, if they received a notice of claim and didn't act, did they lose the USS Constitution? (I think I got that mostly right.) That led to an interesting discussion and the agreement by all parties that the government cannot abandon its own property. In other words, some stated, if its stolen, it's not a forfeiture. Stated another way, while the plain language of the statute appears to cover this action, it doesn't matter if the property was always the government's. This also led to an interesting discussion of the difference between "title" and "possession" and an argument that just because you don't lose "title" it doesn't mean that you may re-take by subterfuge and the argument that the purpose of CAFRA is to assure that the government cannot exercise too much power. Still, panel members were very concerned that the result was too harsh.
Fifth, there was a discussion by both parties also about monetary instruments and the value of the coins, and whether they were coins at all, and it's implications on the applicability of CAFRA. The argument was all over the place, and a bit tough to follow. Perhaps others can offer their thoughts. A valid concern here is how the court will view the exceptions to CAFRA and whether the court will, in an effort to avoid a draconian result, look to these exceptions to interpret this case as a non-CAFRA case. That could easily happen as this issue was the subject of the court's question to both parties in the week before the argument.
Sixth, Mr. Zauzmer also argued well for the government. While I have been a fan of Berke, and particularly his writing, Zauzmer was very calm and persuasive. Most of his argument was pretty simple: Berke argues the exclusivity of CAFRA, but there is no exclusivity to items to which the government has title. To require exclusivity would deprive the government of its basic property ownership rights. This simple argument made sense and still makes sense and while I don't know how the court will rule, Zauzmer delivered it well. Much of the remainder of the argument on this issue addressed the unique nature of the government and whether that standing afforded the government more rights or its citizens more protections. Zauzmer's "evidence" argument was also delivered smoothly, and I thought that argument was flat wrong, so we will see how this goes, but the government's argument on non-exclusivity of the remedy was persuasive.
That is it. Comments and thoughts of others welcome.
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 was thinking Mr. Berke's remarks about government abuse of power were out of place,ie. inappropriate in this hearing.
Berke clearly struggled with the USS Constitution hypothetical. Ignore the question as best you can as a legal strategy did not work out very well for Berke this time.
Retrial? The SS hearsay evidence is not necessary for government to present.I really don't see anything but government prevailing again should this case go back to trial.
CAFRA does not apply? Why does it take ten years to figure this out?
The government has those pesky meticulous and well-detailed mint records.Those records win this case in a slam-dunk for the government in my opinion.
Great spirits have always encountered violent opposition from mediocre minds.-Albert Einstein
Compare those 1933 Cashier records maintained by Hibberd Ott to leaving one's blood at a murder scene.
It is a tall order for an attorney to explain to jurors why his client's blood was found at a murder scene.
In a perfect world,the Langbords should absolutely lose their case because of those meticulous,well-maintained Cashier records and not win "the Coins" in spite of them.
How can one reasonably conclude that 1933 double eagles that found their way into private hands were lawfully removed from the Mint given the existence of those Mint records?
Great spirits have always encountered violent opposition from mediocre minds.-Albert Einstein
Doesn't CAFRA require that the Government file a formal forfeiture request EVEN if the items to be forfeited were/are stolen?
No. CAFRA applies only to non-judicial forfeitures. If you never legally acquired a possessory interest in an item, then you have nothing you can legally forfeit. That is, there is no forfeiture and the appication of forfeiture statutes is bizarre at best. This is the only point that I think the government is correct on.
My prediction is that the court will avoid CAFRA all together or find it inapplicable to the case at bar, and that it will reverse on the hearsay stuff and remand for a new trial. This would be the legally correct result IMHO. I think the Langboards should win, but not on CAFRA.
Originally posted by: mr1874 Compare those 1933 Cashier records maintained by Ott and Hibberd to leaving one's blood at a murder scene. It is a tall order for an attorney to explain to jurors why his client's blood was found at a murder scene. In a perfect world,the Langbords should absolutely lose their case because of those meticulous,well-maintained Cashier records and not win "the Coins" in spite of them. How can one reasonably conclude that 1933 double eagles that found their way into private hands were lawfully removed from the Mint given the existence of those Mint records?
Do they still have the original records or just copies of them? If only copies, what are the odds they will be disallowed?
I still don't understand why the government has NEVER made an attempt to confiscate the FIVE 1913 dated liberty head nickels which were made illegally at the US Mint and were never issued as money by the government. Weren't THOSE five so called coins STOLEN from the government too?
And there were many other so called coins allowed to be owned by coin collectors which were NOT officially issued by the government. What makes these gold double eagles of 1933 so different? Steven, can you or someone else please explain this to me. Thanks. Steve
And if they were exchanged for other $20 gold pieces before the stop order was issued? Which would have made the 'count' accurate.... Plausible point. Cheers, RickO
The problem with your theory RickO is that the records maintained by Hibberd Ott tracked 1933 double eagles by date even though there was no legal requirement to do so. Each and every 1933 double eagle,all 445,500, are accounted for in the Mint records. The accountability of 1933 double eagles by date while the pieces were still behind Mint walls is hard to argue with. See Illegal Tender for more information.
It's almost as if head cashier Harry Powell and his assistant,Hibberd Ott,could see the huge potential for gold coin theft at the Mint while America reached the depths of the Great Depression in the early months of 1933.
Hibberd Ott and Harry Powell deserve to be honored for their efforts which was most likely done to cover their own and other innocent backsides in the corrupt 1933 Philadelphia Mint.
Great spirits have always encountered violent opposition from mediocre minds.-Albert Einstein
AFAIK the 1933 Mint Cashier records are original,having somehow escaped the wholesale destruction of government records during the Carter administration.
Great spirits have always encountered violent opposition from mediocre minds.-Albert Einstein
The 1913 Liberty nickels are not made of gold is the only explanation I can think of at this time why government did not go after them.
My thought is that the Mint thieves in 1933 would have gotten away with spiriting a few '33 doubles out of the Mint if they had not been so greedy.
The discovery in 1937 of the theft of an entire bag (250 pieces,$5000 face value) of non-1933 double eagles caused a 'tude' with the government is my theory.
It was all downhill for the 1933 double eagle thieves after the Secret Service was turned loose on them.
Great spirits have always encountered violent opposition from mediocre minds.-Albert Einstein
The 1913 Liberty nickels are not made of gold is the only explanation I can think of at this time why government did not go after them.
My thought is that the Mint thieves in 1933 would have gotten away with spiriting a few '33 doubles out of the Mint if they had not been so greedy.
The discovery in 1937 of the theft of an entire bag (250 pieces,$5000 face value) of non-1933 double eagles caused a 'tude' with the government is my theory.
It was all downhill for the 1933 double eagle thieves after the Secret Service was turned loose on them.
I suppose that means that the government can still go after them, correct? I am not saying it is likely or that it will happen, but it seems at least theoretically possible.
I suppose that means that the government can still go after them, correct? I am not saying it is likely or that it will happen, but it seems at least theoretically possible.
those with tax dollars, politicians and large armies can do as they please on this planet and even those are not always prerequisits. fwiw.
obviously a deep subject but little research supports the point.
tyvm for the years of updates sanction.
gawd what an awful waste of our money in these times.
The 1913 nickel scenario is vastly dissimilar from the 1933 Double Eagle scenario.
Agreed,a crime was committed in 1913 at the Mint with the clandestine striking of five cupro-nickel pieces in the design of Barber.
However,two outrageous crimes of theft were committed at the Mint in 1933, (1) unlawful removal of a bag of non-1933 double eagles and (2) unlawful removal of a small number of double eagle coins dated 1933.
The magnitude of the two crimes in 1933 is greater than the magnitude of the 1913 crime?
It's been pointed out that the Mint has a long and storied history of criminal activity. It comes down to government picking its battles as I see it. The battle for double eagle gold coins dated 1933 is one the government chose not to walk away from.
Theoretically,our government could go after the 1913 Liberty Nickels in 2015 but won't because of the uproar it would cause in numismatic circles across the land.I mean why stop with 1913 Nickels? To be consistent,government should go after ALL pattern pieces. No pattern piece was ever struck explicitely for coin collectors and should be considered US government property to the end of time.
Great spirits have always encountered violent opposition from mediocre minds.-Albert Einstein
Originally posted by: mr1874 The 1913 nickel scenario is vastly dissimilar from the 1933 Double Eagle scenario.
Agreed,a crime was committed in 1913 at the Mint with the clandestine striking of five cupro-nickel pieces in the design of Barber.
However,two outrageous crimes of theft were committed at the Mint in 1933, (1) unlawful removal of a bag of non-1933 double eagles and (2) unlawful removal of a small number of double eagle coins dated 1933.
The magnitude of the two crimes in 1933 is greater than the magnitude of the 1913 crime?
It's been pointed out that the Mint has a long and storied history of criminal activity. It comes down to government picking its battles as I see it. The battle for double eagle gold coins dated 1933 is one the government chose not to walk away from.
Theoretically,our government could go after the 1913 Liberty Nickels in 2015 but won't because of the uproar it would cause in numismatic circles across the land.I mean why stop with 1913 Nickels? To be consistent,government should go after ALL pattern pieces. No pattern piece was ever struck explicitly for coin collectors and should be considered US government property to the end of time.
...and the USS Constitution hypothetical used by the court in the argument is vastly dissimilar from 1933 Double Eagles scenario...still it appears to apply and that is a bit scary.....the possibility that we who own patterns or a 1913 nickel (no, not me), may be subject to government intervention or abuse of power, or even legal use of power so vast. Indeed, why stop at the 1913 Liberty Nickels? Just let the government pick and choose whose stuff to take. I think that this is exactly what resonates on this Board among those in favor of the Langbords.
I'm not saying it's right, but a part of me wants the Langbords to prevail simply because the government needs to be put in check and needs to act better than it did in this case.
Indeed, why stop at the 1913 Liberty Nickels? Just let the government pick and choose whose stuff to take.
Do you mean whose stuff to take or what stuff to take?
I suppose if you really mean whose stuff to take,the government is guilty of taking its own stuff,the ten articles of virtu also known as 1933 double eagles from the Langbords, who have no property rights to same.
What's bad is that it has taken ten years to figure out that CAFRA does not apply in this case. Is there such a thing as a hearing in the early days of a civil action to specifically determine applicability of a specific law to a case?
I've been in favor of government rewarding the Langbords significant money (up to $1M) for finding and surrendering to the government its known-to-be-stolen property.I can imagine that the Langbord's legal bill exceeds that amount by now.
Great spirits have always encountered violent opposition from mediocre minds.-Albert Einstein
Mr. 1874, no attack intended, just an observation. And your suggested solution of a reward seems a reasonable one. But the panel was troubled by what they or Berke referred to as a subterfuge and what the government referred to as self-help, and they even chided the government about the use of that term (self-help) during the argument. It does seem that the panel was bothered by the method used. Zauzmer explained it pretty well, I thought. I don't know if it matters, and I guess that is the USD 60 million dollar question.
I do think a basic concern and skepticism is that the government can simply take something, without process, by saying it is the property of the government, and then require the person who possessed the stuff before the government took it to prove that it was really the person's in the first instance. That is what the government did or appeared to try to do in this case. That seems wrong. It was corrected in large part before the trial, but that is what the government did and that seems egregious.
I do think a basic concern and skepticism is that the government can simply take something, without process, by saying it is the property of the government, and then require the person who possessed the stuff before the government took it to prove that it was theirs.
Izzy should have made a bogus receipt for "the Coins" and put it with them in the SDB. Noone on this planet would have been able to prove that such a receipt was bogus given the right paper and ink was used by a master forger.
It could easily have been a perfect crime if Izzy had put on his thinking cap. Also,he would have spared his heirs the heartache of chasing of their good money after bad (bad as in no guarantee of win of "the Coins," while attorney fees pile up) in a court proceeding.
If Izzy had acquired the Coins lawfully he would list them in his will?
Make a bogus receipt and write "the Coins" disposition into the will. Langbords win.
Great spirits have always encountered violent opposition from mediocre minds.-Albert Einstein
Originally posted by: mr1874 The 1913 nickel scenario is vastly dissimilar from the 1933 Double Eagle scenario. Agreed,a crime was committed in 1913 at the Mint with the clandestine striking of five cupro-nickel pieces in the design of Barber.
tdn:There is absolutely no evidence that a crime was committed nor that the striking was clandestine.
My Redbook says "these (1913 Liberty nickels) were not a regular issue and were never placed in circulation."
tdn,do you know why these coins were produced then other than for one or more Mint insiders seizing the opportunity to make some money off collectors using the boss's equipment and nickel blanks?
cameonut2011itto for the 1933 Double Eagles.
The hand-written 1933 Mint records clearly demonstrate that not a single 1933 Double Eagle was lawfully issued to a member of the public. A criminal got those pieces out of the Mint building and into another's criminal hands.Does evidence ever get more compelling than this that a crime (theft) was committed?
Izzy should have gotten a receipt if he really did avail himself of a small window of opportunity (a few days in early April 1933) to acquire 1933 doubles lawfully.Or he could have had a bogus receipt made.Either way,Langbords would win.
Great spirits have always encountered violent opposition from mediocre minds.-Albert Einstein
The summary by TPRC of the oral argument at the recent hearing is very good and much appreciated.
The portion of the hearing that focused on CAFRA and how it applies is what really has significance to society at large [far beyond the dispute over the 1933 double eagles present in this case].
As I have said before, this case presents to the federal courts (Trial Court, Court Of Appeal and most likely the US Supreme Court since the loser of this round will likely seek Supreme Court review) a dispute which at its core deals with the nature of the relationship between the government and its citizens (the governed) with respect to the ownership, possession and use of property.
When and how can government take property from its citizens?
Asset forfeiture laws have been around at the local, state and national level for many years. Pursuant to these laws government has taken property from its citizens in a variety of different factual scenarios, both criminal and civil in nature. Takings of property have occurred in circumstances where a disinterested third party observer would be shocked and appalled. Takings of property have occurred under shaky circumstances simply because government procedures have been enacted with the goal of raising and generating revenue for government.
Congress responded to governmental abuses of asset forfeiture laws then in place by passing CAFRA (Civil Asset Forfeiture Reform Act). President Clinton signed CAFRA into law. Congress changed asset forfeiture laws by giving stronger protections to citizens, by placing the burden of proof on the government to establish its entitlement to forfeiture, by placing deadlines on the government to act and by establishing strict consequences for failing to meet the deadlines.
Constitutional guarantees against illegal seizures of property by the government, Constitutional guarantees of due process, Congressional bills passed and signed into statutory law by the Executive branch (President) and legal protections built into the Federal Judiciary all come into play in the Langbord case. Constitutional rights violations by the government have been established and are not being appealed. CAFRA's deadlines were not complied with (and the government failing to comply with CAFRA was intentional, not inadvertent).
If CAFRA applies (A BIG IF, WHICH MAY END UP BEING DECIDED BY THE US SUPREME COURT) then what is the consequence of the government violating same? Does the death penalty apply to give the Langbords free and clear title to and possession of the ten double eagles? If not, what should the penalty be?
If the case ends up being one where it is decided that the CAFRA does not apply, or that it does apply but the CAFRA death penalty does not apply, then the case would likely be sent back to the trial court for a new trial to be held in conformance with the appellate court's ruling on other issues (particularly the ruling on the admissibility or inadmissibility of old records and the testimony of Mr. Tripp). If the ruling of the appellate court limits the evidence the government can admit at a new trial, then will the government be able to prove its case? If not, do the Langbords get the 10 double eagles.
Looking forward to seeing the decision of the EN BANC panel, especially on the CAFRA issue.
Thanks to all for making the continued coverage of this case enjoyable.
Comments
Still the best system in the world!
Tom
<< <i>Langbord's win >>
did you hear this or just guessing?
BHNC #203
<< <i>
I do worry that the third circuit has seen a way around the entire CAFRA issue, but is concerned that it was not properly addressed. >>
I think the whole CAFRA issue is a red herring to begin with. There is plenty of case law concerning forfeiture that recognizes the obvious: You cannot legally forfeit something for which you never held legal title to or otherwise legally acquired a possessory interest in. In other words, if the Langboards never acquired a possessory interest in the pieces as the jury found, then there is nothing to forfeit and the application of forfeiture laws is absurd. The decision should truly come down (in my opinion to) whether the jury verdict is valid and whether the trial court erred in admitting prejudicial double hearsay that is subject to error. I think the Langboards should win on the latter, but should lose on the CAFRA issue.
I hope the case is resolved in my lifetime.
<< <i>
<< <i>
I do worry that the third circuit has seen a way around the entire CAFRA issue, but is concerned that it was not properly addressed. >>
I think the whole CAFRA issue is a red herring to begin with. There is plenty of case law concerning forfeiture that recognizes the obvious: You cannot legally forfeit something for which you never held legal title to or otherwise legally acquired a possessory interest in. In other words, if the Langboards never acquired a possessory interest in the pieces as the jury found, then there is nothing to forfeit and the application of forfeiture laws is absurd. The decision should truly come down (in my opinion to) whether the jury verdict is valid and whether the trial court erred in admitting prejudicial double hearsay that is subject to error. I think the Langboards should win on the latter, but should lose on the CAFRA issue. >>
One thing to remember is that the CAFRA was written in 2000, and the CAFRA part of this case will come down to how the judges interpret the law. The "plenty of case law concerning forfeiture" may be less relevant than you think.
I am anxious to see the results. I would not be at all surprised if the courts overturn the CAFRA "death penalty" in this case (I hope they don't), but I would be surprised and disappointed if they did not at least order a new trial based on the hearsay evidence issues.
Join the fight against Minnesota's unjust coin dealer tax law.
<< <i>I want to see the tab of how much taxpayer money has been spent chasing 1933 double eagles. >>
That would just start another congressional investigation.
One thing that my 6th sense tells me is that the regardless of which side wins or loses this current round of this litigation, the loser will seek US Supreme Court review. Even though it is statistically remote that the US Supreme Court would agree to hear the case, there is absolutely no reason why the losing side would not file a petition asking for the highest court in the land to hear the case.
I wonder how long it will be before the En Banc panel of the 3rd District Court Of Appeal issues its decision. Do any of you federal practicioners have any information on the timing of issuing the decision?
<< <i>Actually, not all that much cost to the government in that the Mint has or at least had 5 full time attorneys on staff for all their needs. There were no additional hires specifically for the Langford case. Now expert witness, etc, are a different matter, but the big number is typically attorney hours and that is a sunk cost so the incremental cost to the taxpayer for that service is effectively zero. >>
So all these people would have been sitting around doing nothing all these years without the Langbord Makework Project?
<< <i>
<< <i>Actually, not all that much cost to the government in that the Mint has or at least had 5 full time attorneys on staff for all their needs. There were no additional hires specifically for the Langford case. Now expert witness, etc, are a different matter, but the big number is typically attorney hours and that is a sunk cost so the incremental cost to the taxpayer for that service is effectively zero. >>
So all these people would have been sitting around doing nothing all these years without the Langbord Makework Project? >>
funny
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<< <i>
<< <i>Actually, not all that much cost to the government in that the Mint has or at least had 5 full time attorneys on staff for all their needs. There were no additional hires specifically for the Langford case. Now expert witness, etc, are a different matter, but the big number is typically attorney hours and that is a sunk cost so the incremental cost to the taxpayer for that service is effectively zero. >>
So all these people would have been sitting around doing nothing all these years without the Langbord Makework Project? >>
Computer Solitaire sir!
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<< <i>
<< <i>
<< <i>Actually, not all that much cost to the government in that the Mint has or at least had 5 full time attorneys on staff for all their needs. There were no additional hires specifically for the Langford case. Now expert witness, etc, are a different matter, but the big number is typically attorney hours and that is a sunk cost so the incremental cost to the taxpayer for that service is effectively zero. >>
So all these people would have been sitting around doing nothing all these years without the Langbord Makework Project? >>
Computer Solitaire sir! >>
Or posting on message boards.
Join the fight against Minnesota's unjust coin dealer tax law.
<< <i>
<< <i>
I do worry that the third circuit has seen a way around the entire CAFRA issue, but is concerned that it was not properly addressed. >>
I think the whole CAFRA issue is a red herring to begin with. There is plenty of case law concerning forfeiture that recognizes the obvious: You cannot legally forfeit something for which you never held legal title to or otherwise legally acquired a possessory interest in. In other words, if the Langboards never acquired a possessory interest in the pieces as the jury found, then there is nothing to forfeit and the application of forfeiture laws is absurd. The decision should truly come down (in my opinion to) whether the jury verdict is valid and whether the trial court erred in admitting prejudicial double hearsay that is subject to error. I think the Langboards should win on the latter, but should lose on the CAFRA issue. >>
Doesn't CAFRA require that the Government file a formal forfeiture request EVEN if the items to be forfeited were/are stolen?
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<< <i>The audio is now up - here. It's downloading slowly, I have not started to listen to it... >>
I have only listened to the first half. It is the Langbords that are arguing that the 1933 are "monetary instruments" not the Government like I first thought. It sounds like if they are classified as "merchandise" then the death penalty for CAFRA may not apply. It is very possible that the CAFRA portion of the case could come down to whether or not the 1933 are coins, since the definition in the law says that "coins" are considered Monetary instruments.
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If "the Coins" are not deemed to be coins the government wins? "The Coins" need to be deemed by the judges to be actual coins for the Langbords to prevail?
In United States v. Barnard (1947),
The plaintiff contends the coin in dispute was lawfully minted by the United States Mint at Philadelphia, but was never lawfully issued or put in circulation as money, and never became currency or legal tender of the United States; that said coin, never having been lawfully issued as money, or currency, was a chattel, or an article of virtu, at the time it left the Mint .and thereafter, and the defendant, though a bona fide purchaser, acquired no title in the purchase of same against the United States Government, the rightful owner. Plaintiff alleges the coin was illegally taken from the Mint upon substitution of a like coin of another year.
http://www2.onu.edu/~s-veltri/NL/barnard.html
Using Judge Boyd's reasoning in the Barnard case and applying it here in the Langbord case,the Langbord pieces would be ten "articles of virtu." Apparently to make flat,round articles of virtu into actual coins the articles need to be monetized. The only entity that can legally make articles of virtu into money is the government.
Great spirits have always encountered violent opposition from mediocre minds.-Albert Einstein
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OK--I listened to the oral argument on Saturday with much enjoyment. I'll recount my views and opinions on how it went.
First, the presentation format allowed Langbord (Berke) to go first, with 5 minutes of uninterrupted time, and a total of 30 minutes (of which 5 minutes was reserved for rebuttal). The government then got 5 minutes of uninterrupted time and a total of 30 minutes. Timekeeping is pretty strict. It was a "hot" bench. For both parties, as soon as the 5 minutes of uninterrupted time elapsed, the third circuit judges were all over the orators with questions, and mostly good questions.
Second, for the trial lawyers in the group, and for others interested, it did seem that, at a minimum, the case is headed back for a re-trial, at least from my standpoint. This is because of the conflict between FRE 805 (hearsay) and FRE 803-16 (ancient documents) which began at Minute 40, or so, of the argument. The government argued that the ancient documents rule overcomes all other hearsay issues, and that, in any event, the error, if it occurred, was harmless, since there was a great deal of other tangible evidence. That argument didn't seem to carry the day, and it seems that the panel knew mistakes were made and that those mistakes needed to be corrected through a new trial. Maybe I'm biased, and a few judges seemed either not to understand the issue or not to care much, but this part seemed clear to me.
Third, as to the big issue which encompassed most of the argument, CAFRA, I sensed a divided panel, and one that was struggling with what one judge described as a "Rubic's Cube" type of case. In the end, I sensed a struggle within the panel to make sense of some clear statutory language to avoid a very draconian result. My "guess," and it is only a guess, is that a majority of the panel will find its way around CAFRA, one way or another, and send it back for a new trial.
Fourth, Mr. Berke started his presentation with a powerful 5 minute argument on the government's abuse of power and the statutes that are in place to protect against that abuse or potential abuse. He, and certain judges, also focused on what they saw as the clear statutory language of CAFRA. Mr. Berke might have argued a bit too strenuously as one judge offered a hypothetical that resonated well with the panel. He posited that if a group of people went down to the docks and seized the USS Constitution, hypothetically, was the government required to file a "forfeiture" action? And upon seizing it back, if they received a notice of claim and didn't act, did they lose the USS Constitution? (I think I got that mostly right.) That led to an interesting discussion and the agreement by all parties that the government cannot abandon its own property. In other words, some stated, if its stolen, it's not a forfeiture. Stated another way, while the plain language of the statute appears to cover this action, it doesn't matter if the property was always the government's. This also led to an interesting discussion of the difference between "title" and "possession" and an argument that just because you don't lose "title" it doesn't mean that you may re-take by subterfuge and the argument that the purpose of CAFRA is to assure that the government cannot exercise too much power. Still, panel members were very concerned that the result was too harsh.
Fifth, there was a discussion by both parties also about monetary instruments and the value of the coins, and whether they were coins at all, and it's implications on the applicability of CAFRA. The argument was all over the place, and a bit tough to follow. Perhaps others can offer their thoughts. A valid concern here is how the court will view the exceptions to CAFRA and whether the court will, in an effort to avoid a draconian result, look to these exceptions to interpret this case as a non-CAFRA case. That could easily happen as this issue was the subject of the court's question to both parties in the week before the argument.
Sixth, Mr. Zauzmer also argued well for the government. While I have been a fan of Berke, and particularly his writing, Zauzmer was very calm and persuasive. Most of his argument was pretty simple: Berke argues the exclusivity of CAFRA, but there is no exclusivity to items to which the government has title. To require exclusivity would deprive the government of its basic property ownership rights. This simple argument made sense and still makes sense and while I don't know how the court will rule, Zauzmer delivered it well. Much of the remainder of the argument on this issue addressed the unique nature of the government and whether that standing afforded the government more rights or its citizens more protections. Zauzmer's "evidence" argument was also delivered smoothly, and I thought that argument was flat wrong, so we will see how this goes, but the government's argument on non-exclusivity of the remedy was persuasive.
That is it. Comments and thoughts of others welcome.
Tom
Duplicate post
Tom
Thank you for an excellent summary!
TD
Thank you for your comments. It will be very interesting to see how the court will rule. Steve
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I was thinking Mr. Berke's remarks about government abuse of power were out of place,ie. inappropriate in this hearing.
Berke clearly struggled with the USS Constitution hypothetical. Ignore the question as best you can as a legal strategy did not work out very well for Berke this time.
Retrial? The SS hearsay evidence is not necessary for government to present.I really don't see anything but government prevailing again should this case go back to trial.
CAFRA does not apply? Why does it take ten years to figure this out?
The government has those pesky meticulous and well-detailed mint records.Those records win this case in a slam-dunk for the government in my opinion.
Great spirits have always encountered violent opposition from mediocre minds.-Albert Einstein
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It is a tall order for an attorney to explain to jurors why his client's blood was found at a murder scene.
In a perfect world,the Langbords should absolutely lose their case because of those meticulous,well-maintained Cashier records and not win "the Coins" in spite of them.
How can one reasonably conclude that 1933 double eagles that found their way into private hands were lawfully removed from the Mint given the existence of those Mint records?
Great spirits have always encountered violent opposition from mediocre minds.-Albert Einstein
issued? Which would have made the 'count' accurate.... Plausible point.
Cheers, RickO
No. CAFRA applies only to non-judicial forfeitures. If you never legally acquired a possessory interest in an item, then you have nothing you can legally forfeit. That is, there is no forfeiture and the appication of forfeiture statutes is bizarre at best. This is the only point that I think the government is correct on.
My prediction is that the court will avoid CAFRA all together or find it inapplicable to the case at bar, and that it will reverse on the hearsay stuff and remand for a new trial. This would be the legally correct result IMHO. I think the Langboards should win, but not on CAFRA.
Do they still have the original records or just copies of them? If only copies, what are the odds they will be disallowed?
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And there were many other so called coins allowed to be owned by coin collectors which were NOT officially issued by the government. What makes these gold double eagles of 1933 so different? Steven, can you or someone else please explain this to me. Thanks. Steve
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issued? Which would have made the 'count' accurate.... Plausible point.
Cheers, RickO
The problem with your theory RickO is that the records maintained by Hibberd Ott tracked 1933 double eagles by date even though there was no legal requirement to do so. Each and every 1933 double eagle,all 445,500, are accounted for in the Mint records. The accountability of 1933 double eagles by date while the pieces were still behind Mint walls is hard to argue with. See Illegal Tender for more information.
It's almost as if head cashier Harry Powell and his assistant,Hibberd Ott,could see the huge potential for gold coin theft at the Mint while America reached the depths of the Great Depression in the early months of 1933.
Hibberd Ott and Harry Powell deserve to be honored for their efforts which was most likely done to cover their own and other innocent backsides in the corrupt 1933 Philadelphia Mint.
Great spirits have always encountered violent opposition from mediocre minds.-Albert Einstein
AFAIK the 1933 Mint Cashier records are original,having somehow escaped the wholesale destruction of government records during the Carter administration.
Great spirits have always encountered violent opposition from mediocre minds.-Albert Einstein
The 1913 Liberty nickels are not made of gold is the only explanation I can think of at this time why government did not go after them.
My thought is that the Mint thieves in 1933 would have gotten away with spiriting a few '33 doubles out of the Mint if they had not been so greedy.
The discovery in 1937 of the theft of an entire bag (250 pieces,$5000 face value) of non-1933 double eagles caused a 'tude' with the government is my theory.
It was all downhill for the 1933 double eagle thieves after the Secret Service was turned loose on them.
Great spirits have always encountered violent opposition from mediocre minds.-Albert Einstein
The 1913 Liberty nickels are not made of gold is the only explanation I can think of at this time why government did not go after them.
My thought is that the Mint thieves in 1933 would have gotten away with spiriting a few '33 doubles out of the Mint if they had not been so greedy.
The discovery in 1937 of the theft of an entire bag (250 pieces,$5000 face value) of non-1933 double eagles caused a 'tude' with the government is my theory.
It was all downhill for the 1933 double eagle thieves after the Secret Service was turned loose on them.
I suppose that means that the government can still go after them, correct? I am not saying it is likely or that it will happen, but it seems at least theoretically possible.
Tom
those with tax dollars, politicians and large armies can do as they please on this planet and even those are not always prerequisits. fwiw.
obviously a deep subject but little research supports the point.
tyvm for the years of updates sanction.
gawd what an awful waste of our money in these times.
.
Agreed,a crime was committed in 1913 at the Mint with the clandestine striking of five cupro-nickel pieces in the design of Barber.
However,two outrageous crimes of theft were committed at the Mint in 1933, (1) unlawful removal of a bag of non-1933 double eagles and (2) unlawful removal of a small number of double eagle coins dated 1933.
The magnitude of the two crimes in 1933 is greater than the magnitude of the 1913 crime?
It's been pointed out that the Mint has a long and storied history of criminal activity. It comes down to government picking its battles as I see it. The battle for double eagle gold coins dated 1933 is one the government chose not to walk away from.
Theoretically,our government could go after the 1913 Liberty Nickels in 2015 but won't because of the uproar it would cause in numismatic circles across the land.I mean why stop with 1913 Nickels? To be consistent,government should go after ALL pattern pieces. No pattern piece was ever struck explicitely for coin collectors and should be considered US government property to the end of time.
Great spirits have always encountered violent opposition from mediocre minds.-Albert Einstein
The 1913 nickel scenario is vastly dissimilar from the 1933 Double Eagle scenario.
Agreed,a crime was committed in 1913 at the Mint with the clandestine striking of five cupro-nickel pieces in the design of Barber.
However,two outrageous crimes of theft were committed at the Mint in 1933, (1) unlawful removal of a bag of non-1933 double eagles and (2) unlawful removal of a small number of double eagle coins dated 1933.
The magnitude of the two crimes in 1933 is greater than the magnitude of the 1913 crime?
It's been pointed out that the Mint has a long and storied history of criminal activity. It comes down to government picking its battles as I see it. The battle for double eagle gold coins dated 1933 is one the government chose not to walk away from.
Theoretically,our government could go after the 1913 Liberty Nickels in 2015 but won't because of the uproar it would cause in numismatic circles across the land.I mean why stop with 1913 Nickels? To be consistent,government should go after ALL pattern pieces. No pattern piece was ever struck explicitly for coin collectors and should be considered US government property to the end of time.
...and the USS Constitution hypothetical used by the court in the argument is vastly dissimilar from 1933 Double Eagles scenario...still it appears to apply and that is a bit scary.....the possibility that we who own patterns or a 1913 nickel (no, not me), may be subject to government intervention or abuse of power, or even legal use of power so vast. Indeed, why stop at the 1913 Liberty Nickels? Just let the government pick and choose whose stuff to take. I think that this is exactly what resonates on this Board among those in favor of the Langbords.
I'm not saying it's right, but a part of me wants the Langbords to prevail simply because the government needs to be put in check and needs to act better than it did in this case.
Tom
Do you mean whose stuff to take or what stuff to take?
I suppose if you really mean whose stuff to take,the government is guilty of taking its own stuff,the ten articles of virtu also known as 1933 double eagles from the Langbords, who have no property rights to same.
What's bad is that it has taken ten years to figure out that CAFRA does not apply in this case.
Is there such a thing as a hearing in the early days of a civil action to specifically determine applicability of a specific law to a case?
I've been in favor of government rewarding the Langbords significant money (up to $1M) for finding and surrendering to the government its known-to-be-stolen property.I can imagine that the Langbord's legal bill exceeds that amount by now.
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I do think a basic concern and skepticism is that the government can simply take something, without process, by saying it is the property of the government, and then require the person who possessed the stuff before the government took it to prove that it was really the person's in the first instance. That is what the government did or appeared to try to do in this case. That seems wrong. It was corrected in large part before the trial, but that is what the government did and that seems egregious.
Tom
Izzy should have made a bogus receipt for "the Coins" and put it with them in the SDB.
Noone on this planet would have been able to prove that such a receipt was bogus given the right paper and ink was used by a master forger.
It could easily have been a perfect crime if Izzy had put on his thinking cap. Also,he would have spared his heirs the heartache of chasing of their good money after bad (bad as in no guarantee of win of "the Coins," while attorney fees pile up) in a court proceeding.
If Izzy had acquired the Coins lawfully he would list them in his will?
Make a bogus receipt and write "the Coins" disposition into the will. Langbords win.
Great spirits have always encountered violent opposition from mediocre minds.-Albert Einstein
The 1913 nickel scenario is vastly dissimilar from the 1933 Double Eagle scenario.
Agreed,a crime was committed in 1913 at the Mint with the clandestine striking of five cupro-nickel pieces in the design of Barber
There is absolutely no evidence that a crime was committed nor that the striking was clandestine.
The 1913 nickel scenario is vastly dissimilar from the 1933 Double Eagle scenario.
Agreed,a crime was committed in 1913 at the Mint with the clandestine striking of five cupro-nickel pieces in the design of Barber
There is absolutely no evidence that a crime was committed nor that the striking was clandestine.
Ditto for the 1933 Double Eagles.
tdn:There is absolutely no evidence that a crime was committed nor that the striking was clandestine.
My Redbook says "these (1913 Liberty nickels) were not a regular issue and were never placed in circulation."
tdn,do you know why these coins were produced then other than for one or more Mint insiders seizing the opportunity to make some money off collectors using the boss's equipment and nickel blanks?
cameonut2011
The hand-written 1933 Mint records clearly demonstrate that not a single 1933 Double Eagle was lawfully issued to a member of the public. A criminal got those pieces out of the Mint building and into another's criminal hands.Does evidence ever get more compelling than this that a crime (theft) was committed?
Izzy should have gotten a receipt if he really did avail himself of a small window of opportunity (a few days in early April 1933) to acquire 1933 doubles lawfully.Or he could have had a bogus receipt made.Either way,Langbords would win.
Great spirits have always encountered violent opposition from mediocre minds.-Albert Einstein
The portion of the hearing that focused on CAFRA and how it applies is what really has significance to society at large [far beyond the dispute over the 1933 double eagles present in this case].
As I have said before, this case presents to the federal courts (Trial Court, Court Of Appeal and most likely the US Supreme Court since the loser of this round will likely seek Supreme Court review) a dispute which at its core deals with the nature of the relationship between the government and its citizens (the governed) with respect to the ownership, possession and use of property.
When and how can government take property from its citizens?
Asset forfeiture laws have been around at the local, state and national level for many years. Pursuant to these laws government has taken property from its citizens in a variety of different factual scenarios, both criminal and civil in nature. Takings of property have occurred in circumstances where a disinterested third party observer would be shocked and appalled. Takings of property have occurred under shaky circumstances simply because government procedures have been enacted with the goal of raising and generating revenue for government.
Congress responded to governmental abuses of asset forfeiture laws then in place by passing CAFRA (Civil Asset Forfeiture Reform Act). President Clinton signed CAFRA into law. Congress changed asset forfeiture laws by giving stronger protections to citizens, by placing the burden of proof on the government to establish its entitlement to forfeiture, by placing deadlines on the government to act and by establishing strict consequences for failing to meet the deadlines.
Constitutional guarantees against illegal seizures of property by the government, Constitutional guarantees of due process, Congressional bills passed and signed into statutory law by the Executive branch (President) and legal protections built into the Federal Judiciary all come into play in the Langbord case. Constitutional rights violations by the government have been established and are not being appealed. CAFRA's deadlines were not complied with (and the government failing to comply with CAFRA was intentional, not inadvertent).
If CAFRA applies (A BIG IF, WHICH MAY END UP BEING DECIDED BY THE US SUPREME COURT) then what is the consequence of the government violating same? Does the death penalty apply to give the Langbords free and clear title to and possession of the ten double eagles? If not, what should the penalty be?
If the case ends up being one where it is decided that the CAFRA does not apply, or that it does apply but the CAFRA death penalty does not apply, then the case would likely be sent back to the trial court for a new trial to be held in conformance with the appellate court's ruling on other issues (particularly the ruling on the admissibility or inadmissibility of old records and the testimony of Mr. Tripp). If the ruling of the appellate court limits the evidence the government can admit at a new trial, then will the government be able to prove its case? If not, do the Langbords get the 10 double eagles.
Looking forward to seeing the decision of the EN BANC panel, especially on the CAFRA issue.
Thanks to all for making the continued coverage of this case enjoyable.