Let's say that Mr. Switt went to the Mint and asked if 1933 double eagles were available. They said yes, and he said, great, I have some 1928 double eagles to trade for them. So he makes the trade. Now later on we find a document that says the Mint was not supposed to release 1933 double eagles. I would contend and I think most people would agree with me that if this situation occurred, Mr. Switt's 1933 double eagles would be perfectly legal. The government can't jump in later and say we didn't mean to release the 1933 double eagles. Now, and here is the big point: How can you prove that this isn't exactly what happened? And, the answer is, you can't prove that it didn't happen that way. Therefore, Mr. Switt's 1933 double eagles are legal, absent any proof to the contrary.
Mr. Switt's 1933 double eagles would be perfectly legal in the scenario you describe.The problem is those cashier records from 1933 indicate that not a single 1933 double eagle was traded for at the Mint window prior to or after April 5,1933.The written record prevails in this case as it should.
But that's not proof that it didn't happen. There could have been an exchange/s that wasn't/weren't recorded. The relevant document/s would be the one/s that say that the coins were or were not approved for distribution. Where are they?
Let me provide an example. Jonathan Kern had I believe a 1975 proof set which was mistakenly issued in November 1974. Despite the fact that 1975 proof sets were not supposed to be issued until 1975, this set existed and was well-publicized as being issued in 1974. Was it legal? The Mint did not attempt to confiscate Mr. Kern's proof set. And I am certain that the Mint's records indicate that no 1975 proof sets were issued in 1974.
In short, the 1933 double eagles could have been distributed in the manner I described above, despite what the cashier records say. And, therefore, I believe Mr. Switt's 1933 double eagles are legal.
But the difference is that the 1975 coins passed muster for whatever was needed to 'monetize" them. So was there similar "muster" for the 1933 DEs? In 1932, DEs were struck, samples sent to Washington for assay, results received and title to the coins was transferred to the Fed thus completing the "monetization" process as I understand it. So where is similar documentation for the 1933s?
"Monetization" is a term invented in the 1990's by a government lawyer in order to justify the seizure of the Fenton coin. There was no such thing as monetization in 1933. If there was, then I would like to see use of the word during the 1930's, and I don't think you will find it.
Well here are a few thoughts. Even back then when people were striking coins and printing currency, they were engaged in monetization "the making of money" whether they actually realized it or used the term or not.
Let me provide an example. Jonathan Kern had I believe a 1975 proof set which was mistakenly issued in November 1974. Despite the fact that 1975 proof sets were not supposed to be issued until 1975, this set existed and was well-publicized as being issued in 1974. Was it legal? The Mint did not attempt to confiscate Mr. Kern's proof set. And I am certain that the Mint's records indicate that no 1975 proof sets were issued in 1974.
In short, the 1933 double eagles could have been distributed in the manner I described above, despite what the cashier records say. And, therefore, I believe Mr. Switt's 1933 double eagles are legal.
1933 double eagles could not have been legally issued until March 29,1933 at the earliest.Wednesday,3/29/33 is when the first special assay results came back from Washington. Gold coins could not legally be distributed until special assay was passed.Were the Mint's shiny new 1933 double eagles available for exchange at the Mint window though? If so,the window of opportunity for a member of the public like Israel Switt to acquire a 1933 double legally would have closed forever on April 5,1933.
In your example,the Mint probably took a "so what?" attitude. After all,the Mint knew that they would be stamping a few million 1975 proof sets later.If Mr. Kern managed to sell his mistakenly issued proof set to a collector for a handsome premium,more power to him. Did Mr. Kern discover his November,1974 issued 1975 proof set in the family safe deposit box?
Great spirits have always encountered violent opposition from mediocre minds.-Albert Einstein
"Monetization" is a term invented in the 1990's by a government lawyer in order to justify the seizure of the Fenton coin. There was no such thing as monetization in 1933. If there was, then I would like to see use of the word during the 1930's, and I don't think you will find it. The buyer of the ex farouk ex Fenton piece had to pay an extra $20 for an ornate certificate of monetization.The Mint had to do something to legitimize the auction for the ex Farouk 1933 double,an auction in which the government shared in the proceeds.Why all the concern about what "monetization" represents? Justify seizure of the Fenton coin? This notion is too absurd for refutation.
Great spirits have always encountered violent opposition from mediocre minds.-Albert Einstein
Melting nickels only became illegal a couple of years ago, the 1913 Nickels are over 100 years old and went out the back door of the Mint like so many other coins, i.e. 1804 dollars. If you confiscate the 1933 DEs, it is not logical to leave the others free.
Retired United States Mint guy, now working on an Everyman Type Set.
According to US Attorney Jane Levine,the monetization of the ex Farouk 1933 double eagle is the last monetization of a 1933 double eagle the government will ever do.The ex Farouk certificate of monetization (cost to buyer,$20) is unique. No more certificates of monetization for 1933 double eagles will ever be issued if you believe Ms. Levine.
Great spirits have always encountered violent opposition from mediocre minds.-Albert Einstein
Back to the bogus monetization again. That is a concept that came into being when we shifted out of precious metal in our coins. Did NOT exist in 1933. A coin is monetized when sold to the Fed by the Mint, for example a quarter which costs about 12 cents, becomes 25 cents when moved from one cage to another at the Mint. Before that is is WIP and valued at 12 cents or whatever the cost is at that point in time.
Before 1964 the coins had sufficient metal content that a quarter was worth a quarter in precious metal, more or less. Moving to base metals created the monetization.
FYI, there are NO certificates of monetization for any coins made besides the 1933 DE that I know of. Certainly none were used during my years working at the Mint.
Retired United States Mint guy, now working on an Everyman Type Set.
Ex post facto law. You cannot take something you legitimately allowed by the executive order , itself. The president allowed for the acquisition, and the collecting of any U.S. Gold coins minted to date of the said order.
I cannot change the way I see it. No proof exists that the coins are stolen. Hence the burden of proof is the existence and possession of no more than $200 in aggregate. I thought the chapter was already over. Why is this case on the books ?
FYI, there are NO certificates of monetization for any coins made besides the 1933 DE that I know of. The certificate of monetization,as certificates of monetization go,for the ex Farouk 1933 double eagle, is unique AFAIK. Now,where is that export license? Did King Farouk throw it away after the 1933 double eagle that he paid for was delivered to him? The Mint should have retained a copy of the 1944 export license.Where is it?
Great spirits have always encountered violent opposition from mediocre minds.-Albert Einstein
But that's not proof that it didn't happen. There could have been an exchange/s that wasn't/weren't recorded. The relevant document/s would be the one/s that say that the coins were or were not approved for distribution. Where are they?
That there could have been an exchange is anecdotal evidence.The cashier records tracking 1933 double eagles is written evidence. In this dispute between the Langbords and The Government it has come to light that the Mint's own written records show that not a single 1933 double eagle was traded to a member of the public.Which evidence should the Court accept? The anecdotal evidence or the written evidence?
Great spirits have always encountered violent opposition from mediocre minds.-Albert Einstein
The export license was not issued by the Mint. They do not have that authority.
Maybe not anymore but in 1944 they did. See Illegal Tender,"A Double Eagle Flies to Cairo," p.81:
"Fahim completed the paperwork,surrendered the 1933 double eagle,and took his leave. He would await the government's decision. The Bureau of the Mint had the authority to issue the export license,but no one there had the necessary expertise to pass judgement on whether or not the coin qualified. Mint Director Ross ,who had developed the vetting process and whose office was directly responsible for approving all gold coin export licenses,knew this and she dictated a letter to Theodore Belote,the Curator of History at the Smithsonian Institution, asking for his opinion."
Great spirits have always encountered violent opposition from mediocre minds.-Albert Einstein
But that's not proof that it didn't happen. There could have been an exchange/s that wasn't/weren't recorded. The relevant document/s would be the one/s that say that the coins were or were not approved for distribution. Where are they?
That there could have been an exchange is anecdotal evidence.The cashier records tracking 1933 double eagles is written evidence. In this dispute between the Langbords and The Government it has come to light that the Mint's own written records show that not a single 1933 double eagle was traded to a member of the public.Which evidence should the Court accept? The anecdotal evidence or the written evidence?
The court may accept the written record, but it isn't absolute proof positive that no unrecorded exchanges took place.
The Court did accept the cashier records from 1933-34 and you, BAJJERFAN,are correct that the written record is not proof positive that no unrecorded exchanges took place. Judge Davis surmised that a number of 1933 Eagles ($10) "went out the back door" even though,unlike double eagles of the same year, there are a few entries in the cashier record about exchanges for new 1933 eagles. The number of entries for 1933 eagles in the cashier records is considerably less than the number of 1933 Eagles known to exist. 1933 eagles were produced in the early months of 1933 and have always been legal to own.The Court, however,must go by the tangible or "substantially real" evidence. Judge Davis would be laughed off the bench if the written cashier records in his court took a back seat to the anectdotal evidence about Mint tradition and such that Langbord/Berke presented to the jury.
Great spirits have always encountered violent opposition from mediocre minds.-Albert Einstein
The Court did accept the cashier records from 1933-34 and you, BAJJERFAN,are correct that the written record is not proof positive that no unrecorded exchanges took place. Judge Davis surmised that a number of 1933 Eagles ($10) "went out the back door" even though,unlike double eagles of the same year, there are a few entries in the cashier record about exchanges for new 1933 eagles. The number of entries for 1933 eagles in the cashier records is considerably less than the number of 1933 Eagles known to exist. 1933 eagles were produced in the early months of 1933 and have always been legal to own.The Court,
however,must go by the tangible or "substantially real" evidence. Judge Davis would be laughed off the bench if the written cashier records in his court took a back seat to the anectdotal evidence about Mint tradition and such that Langbord/Berke presented to the jury.
Where is the documentation/records that says that the 1933 DEs are NOT to be released? Were they placed in a "production hold" pending possible reversal of FDR's order or was some other final disposition issued?
I would add that Langbord/Berke presented the jury with the idea "it was business as usual at the Mint in 1933." This is not a credible argument and the jury didn't buy it. Was it business as usual for the cashiers at the Mint to track 1933 gold coins by date? Yet that's what they did. Why did the cashiers track the 1933 double eagles by date? Something to do with their time while on the clock? I think head cashier at the time,Robert Powell and assistant Hibberd Ott were doing the CYA thing.These two had their ears to the ground and suspected that one or more of the "Four Horsemen," specifically horseman George McCann,who became head cashier in 1934,would be trying to spirit 1933 doubles out of the Mint unlawfully. McCann's spiriting (by concealment of '33 doubles in his baggy pants pockets ) was successful but the written records,the cashier records from 1933-34, are convincing proof that the 1933 double eagles known to have existed or still exist, all of which have been traced to I. Switt, were acquired by Mr. Switt unlawfully.I would be in favor of our government giving posthumous recognition to Mr. Powell and Mr. Ott for excellent service that went well above and beyond the call of duty.
Great spirits have always encountered violent opposition from mediocre minds.-Albert Einstein
You do know it only became illegal to melt nickels in the past couple of years. So what about the first 100 years or so after the 1913 V Nickels went out the back door at the Mint? That is more of a film sarcastic answer than an "Easy" one. I get the joke. This is a post more designed to keep the thread current than anything else ;-)
Retired United States Mint guy, now working on an Everyman Type Set.
You do know it only became illegal to melt nickels in the past couple of years. So what about the first 100 years or so after the 1913 V Nickels went out the back door at the Mint? That is more of a film sarcastic answer than an "Easy" one. I get the joke. This is a post more designed to keep the thread current than anything else ;-)
And in "keeping the thread current" I report that it is now 70 (seventy) DAYS since the rehearing by the 3rd circuit court and we still all wait for the court's decision. Since I assume the members of the court are all on "holiday recess", I look forward to hearing their decision in mid January, 2016. HAPPY NEW YEAR! Steve
For those interested in the 1913 Liberty nickel story why doesn't someone start a thread about it? Both were inside jobs but that's where the similarity of the 1913 nickel story to the 1933 double eagle story ends.
Great spirits have always encountered violent opposition from mediocre minds.-Albert Einstein
The right thing for the court to do is send the case back to jury,in my opinion.Exclude the Secret Service hearsay evidence.Whoever wins the second jury trial gets "the Coins." No appeals to higher court from the loser after jury verdict is stipulated by the Court.A judge other than Judge Davis presides over the second jury trial.CAFRA has been made a non-issue by the Court.The case now rests on its merits. Can the government prove,by preponderance of the allowable evidence, that the ten 1933 double eagles discovered by the Langbords in their safe deposit box are not the property of the Langbords but are,as established by the facts, the property of the government of the United States and have always been the property of the government of the United States?
Great spirits have always encountered violent opposition from mediocre minds.-Albert Einstein
Back to the bogus monetization again. That is a concept that came into being when we shifted out of precious metal in our coins. Did NOT exist in 1933. A coin is monetized when sold to the Fed by the Mint, for example a quarter which costs about 12 cents, becomes 25 cents when moved from one cage to another at the Mint. Before that is is WIP and valued at 12 cents or whatever the cost is at that point in time.
Before 1964 the coins had sufficient metal content that a quarter was worth a quarter in precious metal, more or less. Moving to base metals created the monetization.
FYI, there are NO certificates of monetization for any coins made besides the 1933 DE that I know of. Certainly none were used during my years working at the Mint.
It was only prior to 1853 that coins were converted from depositor's bullion. The silver in coins were at time less than half the face value (in the 1930's). In the government's view, silver was just the metal of choice for the coins and as it became too expensive, they changed to copper-nickel clad coins. Monetization had nothing to do with it.
Again, monetization as it refers to the 1933 double eagles was created by a government lawyer to justify seizure of the Fenton coin. Despite the fact that double eagles issued from 1850 thru 1932 had no such "monetization" certificates, the monetization argument was that the 1933 double eagles couldn't be coins and therefore couldn't be legally issued because they hadn't been "monetized". Now, what about the 1933 eagles, which are legal. Were they monetized? Does every owner of a 1933 eagle have a certificate of monetization for that coin? I think not.
And I think it is too early to conclude that "CAFRA has been made a non-issue by the Court". Just as the government's argument is "the 1933 double eagles were stolen, because we say so", so also is the government's argument "CAFRA doesn't apply, because we say so". CAFRA was put into law to prevent the government from unlawfully seizing property from citizens. I don't know if the CAFRA statute includes an exemption from filing a CAFRA forfeiture action on the grounds of "CAFRA doesn't apply because we say so".
Now, except for the government, who doesn't think this case gone on long enough?
An authorized PCGS dealer, and a contributor to the Red Book.
Originally posted by: mr1874 For those interested in the 1913 Liberty nickel story why doesn't someone start a thread about it? Both were inside jobs but that's where the similarity of the 1913 nickel story to the 1933 double eagle story ends.
Yeah, and let's start a story about the Federal Reserve Act of 1913 being passed on Dec. 23rd with only four members of our representative government "at work".
Nevermind… let's get back to the power of the people.
You are right about the price of silver in the 30s being half the face. However, in the case of gold, which this is about, KITCO shows the price of gold at 26.33 for 1933. Thus, there was no need to "monetize" a DE as it already contained sufficient value in the gold to cover the $20 face.
Retired United States Mint guy, now working on an Everyman Type Set.
You are right about the price of silver in the 30s being half the face. However, in the case of gold, which this is about, KITCO shows the price of gold at 26.33 for 1933. Thus, there was no need to "monetize" a DE as it already contained sufficient value in the gold to cover the $20 face.
Gold was up in 1933. It was $20.69 in 1932 and $17.06 in 1931. Again, the gold in a DE was less than face value prior to 1933. It was not a bullion coin. It was $20 US currency made out of gold.
My understanding is that a DE coin blank is just a piece of gold and accounted for as bullion. Once it is struck with the government imprint, it is currency and accounted for as currency. No further monetization is needed.
Again, monetization as it refers to the 1933 double eagles was created by a government lawyer to justify seizure of the Fenton coin.
Where do the seizures of 1933 double eagles in the 1940's fit into your seizure justification theory? Our government tried in vain to get the Fenton coin, aka ex Farouk coin, returned to the US in the '40's after realizing the export license for it was issued by mistake. The issuance of an ornate certificate of monetization for the buyer of the Fenton coin was a nice service provided by our government. I mean,you spend almost $7M on a coin what's another $20 for a nicely executed "unique" certificate to accompany the coin ? I suggest another word, that I just created, will serve to replace the confusing word "monetize." The word I have in mind is "uniquesize." What do you all think of my new word for "monetize," staying in the context of 1933 double eagles of course?
Great spirits have always encountered violent opposition from mediocre minds.-Albert Einstein
My understanding is that a DE coin blank is just a piece of gold and accounted for as bullion. Once it is struck with the government imprint, it is currency and accounted for as currency. No further monetization is needed.
How did the government distinguish between patterns with the correct metal composition and official designs? Are patterns legal tender without any further requirements for monetization or did they have to be struck with an approved imprint? In which case, would the 1933 DE imprint have been approved at that point?
Again, monetization as it refers to the 1933 double eagles was created by a government lawyer to justify seizure of the Fenton coin.
Where do the seizures of 1933 double eagles in the 1940's fit into your seizure justification theory? Our government tried in vain to get the Fenton coin, aka ex Farouk coin, returned to the US in the '40's after realizing the export license for it was issued by mistake. The issuance of an ornate certificate of monetization for the buyer of the Fenton coin was a nice service provided by our government. I mean,you spend almost $7M on a coin what's another $20 for a nicely executed "unique" certificate to accompany the coin ? I suggest another word, that I just created, will serve to replace the confusing word "monetize." The word I have in mind is "uniquesize." What do you all think of my new word for "monetize," staying in the context of 1933 double eagles of course?
You raise a good question, Mr1874. I believe the seizures of the 1933 double eagles in the 1940's was much more an administrative exercise than a legal battle. I believe the government demanded the coins be given to them, which generally occurred. Except for Mr. Barnard, who lost in court. At that time, the value of a 1933 double eagle was around $900 or so. I am guessing Mr. Barnard looked at the cost of an appeal vs. the value of the coin, and evaluated the possibility of winning, and decided not to appeal. Now that the coins are worth maybe $2.5 - $3 million each, the Langbords' cost/benefit analysis is much different than Mr. Barnard's. It comes down to how hard and long would someone fight over a legal matter involving $1,000 vs. how long and hard would someone fight over a legal matter involving $25 - $30 million?
Let's hope with the new year that the court will come out with a decision, sooner rather than later.
An authorized PCGS dealer, and a contributor to the Red Book.
Test to see if paragraphs are mine now that we are in a new year. Here's some interesting reading,the opinion of Judge Boyd who presided in US v. Barnard:
UNITED STATES v. BARNARD
72 F. Supp. 531 (W.D.Tenn. 1947).
BOYD, District Judge.
This action, in the nature of a replevin, was brought by the United States of America to recover from the defendant a $20 Gold Piece of the United States, commonly called a "Double Eagle", bearing date of the year 1933.
The coin in question was purchased in the year 1944 for $900, by the defendant, a member of the American Numismatic Association, from one Bell, who was also a collector of rare and unusual coins.
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.
The defendant denies plaintiff is entitled to have the coin returned to it, asserting that he is a collector of rare and unusual coins and, as such, purchased this one from another collector in good faith, in due course of trade and without knowledge that it had been stolen or surreptitiously taken from the Mint if it had, in fact, been so stolen, or taken. He claims the coin in controversy was lawfully minted as United States money, or currency, was issued as such, and is not a chattel, or an article of virtu; further, that regardless of the manner in which the coin left the Philadelphia Mint, it was complete on its face, negotiable and transferable by delivery, and his right, title and interest in same is superior to any claim or title of the plaintiff.
On these issues the decisive question, in the Court's opinion, is whether the coin in dispute, after having been minted, was issued as money or currency of the United States, or whether the status of the same was that of a chattel, or an article of virtu.
The proof is that the United States Government minted 445,500 Double Eagle coins at its Philadelphia Mint during the period between March 15, 1933, and May 19, 1933; that such coin could only be issued and circulated legally by the Philadelphia Mint, upon receipt by said Mint of an order from the Treasurer of the United States; that the Mint did not, at any time, receive such an order except one to deliver two of these coins to the Smithsonian Institute. In addition to the two coins sent to the Smithsonian Institute, twenty-nine others were destroyed by testing and by the Assay Commission, leaving 445,469 Double Eagle coins for the year 1933 on hand at the Philadelphia Mint when they were later ordered melted into bullion. The remaining Double Eagle coins were carefully and meticulously weighed before and after they were melted and the weight of same, following the melting process at the Mint, equalled the weight of these coins prior thereto.
Restrictions on all gold became operative in the early part of 1933, when, on March 6, 1933, the President of the United States proclaimed a "Bank Holiday" during which all banks were prohibited from paying out gold coin. On the same date, the Secretary of the Treasury, with Presidential approval, issued instructions to the Director of the Mint and the Treasurer of the United states to make payments in gold coin only under license issued by the Secretary of the Treasury. On April 5, 1933, the President of the United States issued Executive Order No. 6102 requiring the delivery to the United States of all gold coin with the exception of gold coin and gold certificates in an amount not exceeding, in the aggregate, $100, and gold coin having a recognized special value to collectors of rare and unusual coins. The President of the United states, on August 28, 1933, issued Executive Order No. 6260, 12 U.S.C.A. I 95a, which prohibited the issue of gold coin as currency but permitted the acquisition of gold coin having a recognized special value to collectors of rare and unusual coins. The Secretary of the Treasury, on December 28, 1933, issued an order requiring the delivery to the United States of all gold coin other than that of recognized special value to collectors of rare and unusual coins. The Gold Reserve Act, approved January 30, 1934, 48 Stat. 337, prohibited the coinage and payment of gold coin by the United States. Under this Act and the regulations pursuant thereto, gold coin may only be acquired and held when such gold coin is of special recognized value to collectors of rare and unusual coins. These restrictions, generally, are still in full force and effect at this time.
In view of these undisputed facts, it is clear that the gold piece which is the basis of this lawsuit did not leave the Mint as regularly and lawfully issued money, or currency, therefore, the rule under the law merchant that title to money passes with delivery to a person who acquires it in good faith and for a valuable consideration, and which was adopted to insure the ready acceptability of money as currency in normal channels of trade, is not applicable here. Brown v. Perera. Sup., 176 N.Y.S. 215; Land Oberoesterreich v. Gude. 2 Cir., 86 F.2d 621. The coin here involved was not, at any time, money or currency, but was a chattel, or an article of virtu. In re Gay's Gold, 80 U.S. 358, 20 L.Ed. 606; Moss v. Han*****, 2 Q.B. 3; Brown v. Perera, supra. It is virtually impossible, under the existing laws and careful methods in vogue at the Mint, for gold to be issued or released for circulation. It is a fair inference, from the proof in this case, that the Double Eagle here involved was taken out of the Mint in an unlawful manner; and, further, it is entirely reasonable to say, considering the customs and strict practices at the Mint, that it was abstracted by some one who substituted a similar coin for it before the coins were reduced to bullion. It is the Court's opinion this coin was abstracted by some one who had in mind that it would have a special value as a rare and unusual coin and that it could be disposed of from that standpoint. Since this gold piece was stolen or, through fraudulent breach of trust, taken from the Philadelphia Mint, the defendant, as the purchaser, took the same subject to the defects in its title and this is true, even though the property was acquired in good faith, for a valuable consideration and without notice of any infirmity of title. He cannot maintain ownership in such property against one who has been deprived of it by theft or other illegal act. This principle of law is so well settled that it is only necessary to cite a few cases. Ventress v. Smith, 10 Pet. 161, 9 L.Ed. 382; Dows v. National Exchange Bank, 91 U.S. 618, 23 L.Ed. 214; In re Ketchum. D.C., 1 F. 815; Parham v. Riley 44 Tenn. 5; Godwin v. Taenzer, 122 Tenn. 101, 119 S.W. 1133; Cowan v. Thompsonf 25 Tenn.App. 130, 152 S.W.2d 1036, cert, denied by Sup.Ct.
It follows that title to the coin in litigation is in the plaintiff, United States of America, and plaintiff is entitled to its restoration.
Great spirits have always encountered violent opposition from mediocre minds.-Albert Einstein
Test to see if paragraphs are mine now that we are in a new year.
No...
Originally posted by: mr1874
Test to see if paragraphs are mine now that we are in a new year. Here's some interesting reading,the opinion of Judge Boyd who presided in US v. Barnard:
UNITED STATES v. BARNARD
72 F. Supp. 531 (W.D.Tenn. 1947).
BOYD, District Judge.
This action, in the nature of a replevin, was brought by the United States of America to recover from the defendant a $20 Gold Piece of the United States, commonly called a "Double Eagle", bearing date of the year 1933.
The coin in question was purchased in the year 1944 for $900, by the defendant, a member of the American Numismatic Association, from one Bell, who was also a collector of rare and unusual coins.
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.
The defendant denies plaintiff is entitled to have the coin returned to it, asserting that he is a collector of rare and unusual coins and, as such, purchased this one from another collector in good faith, in due course of trade and without knowledge that it had been stolen or surreptitiously taken from the Mint if it had, in fact, been so stolen, or taken. He claims the coin in controversy was lawfully minted as United States money, or currency, was issued as such, and is not a chattel, or an article of virtu; further, that regardless of the manner in which the coin left the Philadelphia Mint, it was complete on its face, negotiable and transferable by delivery, and his right, title and interest in same is superior to any claim or title of the plaintiff.
On these issues the decisive question, in the Court's opinion, is whether the coin in dispute, after having been minted, was issued as money or currency of the United States, or whether the status of the same was that of a chattel, or an article of virtu.
The proof is that the United States Government minted 445,500 Double Eagle coins at its Philadelphia Mint during the period between March 15, 1933, and May 19, 1933; that such coin could only be issued and circulated legally by the Philadelphia Mint, upon receipt by said Mint of an order from the Treasurer of the United States; that the Mint did not, at any time, receive such an order except one to deliver two of these coins to the Smithsonian Institute. In addition to the two coins sent to the Smithsonian Institute, twenty-nine others were destroyed by testing and by the Assay Commission, leaving 445,469 Double Eagle coins for the year 1933 on hand at the Philadelphia Mint when they were later ordered melted into bullion. The remaining Double Eagle coins were carefully and meticulously weighed before and after they were melted and the weight of same, following the melting process at the Mint, equalled the weight of these coins prior thereto.
Restrictions on all gold became operative in the early part of 1933, when, on March 6, 1933, the President of the United States proclaimed a "Bank Holiday" during which all banks were prohibited from paying out gold coin. On the same date, the Secretary of the Treasury, with Presidential approval, issued instructions to the Director of the Mint and the Treasurer of the United states to make payments in gold coin only under license issued by the Secretary of the Treasury. On April 5, 1933, the President of the United States issued Executive Order No. 6102 requiring the delivery to the United States of all gold coin with the exception of gold coin and gold certificates in an amount not exceeding, in the aggregate, $100, and gold coin having a recognized special value to collectors of rare and unusual coins. The President of the United states, on August 28, 1933, issued Executive Order No. 6260, 12 U.S.C.A. I 95a, which prohibited the issue of gold coin as currency but permitted the acquisition of gold coin having a recognized special value to collectors of rare and unusual coins. The Secretary of the Treasury, on December 28, 1933, issued an order requiring the delivery to the United States of all gold coin other than that of recognized special value to collectors of rare and unusual coins. The Gold Reserve Act, approved January 30, 1934, 48 Stat. 337, prohibited the coinage and payment of gold coin by the United States. Under this Act and the regulations pursuant thereto, gold coin may only be acquired and held when such gold coin is of special recognized value to collectors of rare and unusual coins. These restrictions, generally, are still in full force and effect at this time.
In view of these undisputed facts, it is clear that the gold piece which is the basis of this lawsuit did not leave the Mint as regularly and lawfully issued money, or currency, therefore, the rule under the law merchant that title to money passes with delivery to a person who acquires it in good faith and for a valuable consideration, and which was adopted to insure the ready acceptability of money as currency in normal channels of trade, is not applicable here. Brown v. Perera. Sup., 176 N.Y.S. 215; Land Oberoesterreich v. Gude. 2 Cir., 86 F.2d 621. The coin here involved was not, at any time, money or currency, but was a chattel, or an article of virtu. In re Gay's Gold, 80 U.S. 358, 20 L.Ed. 606; Moss v. Han*****, 2 Q.B. 3; Brown v. Perera, supra. It is virtually impossible, under the existing laws and careful methods in vogue at the Mint, for gold to be issued or released for circulation. It is a fair inference, from the proof in this case, that the Double Eagle here involved was taken out of the Mint in an unlawful manner; and, further, it is entirely reasonable to say, considering the customs and strict practices at the Mint, that it was abstracted by some one who substituted a similar coin for it before the coins were reduced to bullion. It is the Court's opinion this coin was abstracted by some one who had in mind that it would have a special value as a rare and unusual coin and that it could be disposed of from that standpoint. Since this gold piece was stolen or, through fraudulent breach of trust, taken from the Philadelphia Mint, the defendant, as the purchaser, took the same subject to the defects in its title and this is true, even though the property was acquired in good faith, for a valuable consideration and without notice of any infirmity of title. He cannot maintain ownership in such property against one who has been deprived of it by theft or other illegal act. This principle of law is so well settled that it is only necessary to cite a few cases. Ventress v. Smith, 10 Pet. 161, 9 L.Ed. 382; Dows v. National Exchange Bank, 91 U.S. 618, 23 L.Ed. 214; In re Ketchum. D.C., 1 F. 815; Parham v. Riley 44 Tenn. 5; Godwin v. Taenzer, 122 Tenn. 101, 119 S.W. 1133; Cowan v. Thompsonf 25 Tenn.App. 130, 152 S.W.2d 1036, cert, denied by Sup.Ct.
It follows that title to the coin in litigation is in the plaintiff, United States of America, and plaintiff is entitled to its restoration.
"...such coin could only be issued and circulated legally by the Philadelphia Mint, upon receipt by said Mint of an order from the Treasurer of the United States; that the Mint did not, at any time, receive such an order except one to deliver two of these coins to the Smithsonian Institute." An order to the Mint from the Treasurer of the United States then must have been made for the legal issuance of 1933 Eagle ($10) coins,all of which were manufactured in the early months of 1933. An expert on the 1930's Philadelphia Mint might be able to answer the question about an order from the Treasurer being necessary before issuance of new gold coin could legally be made. Judge Boyd is clear in his 1947 opinion re US v. Barnard about an order being needed or did he just make this up? Sorry,Judge Boyd, about entertaining the possibility that you have done some "making it up." This is an important question to answer. In the absence of a written order to the Mint from the Treasurer the 1933 D.E.'s must never have been intended to be legally issued.
Now,where is that written order (smoking gun?) from the Treasurer to the Mint for the legal issuance of 1933 Eagle ($10) coins? If the written order for issuance of 1933 $10 coins exists and the written order for issuance of 1933 $20 does not exist what is this telling us?
Great spirits have always encountered violent opposition from mediocre minds.-Albert Einstein
"...such coin could only be issued and circulated legally by the Philadelphia Mint, upon receipt by said Mint of an order from the Treasurer of the United States; that the Mint did not, at any time, receive such an order except one to deliver two of these coins to the Smithsonian Institute."
An order to the Mint from the Treasurer of the United States then must have been made for the legal issuance of 1933 Eagle ($10) coins,all of which were manufactured in the early months of 1933.
Are there any copies of these orders available for any year 1933 or prior? What does such an order look like?
Are there any copies of these orders available for any year 1933 or prior? What does such an order look like? Two good questions.Judge Boyd is suggesting that the order from the Treasurer to the Mint would be a written order. I don't know what such an order would look like. I have not read anywhere,other than Judge Boyd's opinion,that an order of issuance from the Treasurer to the Mint would be made once the first batch of 25,000 coins passed special assay. To my knowledge,neither Tripp nor Frankel in their books on the 1933 double eagle mention such a thing as an issuance order from the Treasurer to the Cashier.It does stand to reason that even having passed special assay,the Cashier would need a formal "nod," a writing from the Treasurer to the Cashier, before the Cashier could legally release new gold coins to members of the public at the Mint window. Sans the nod,Izzy would hear from the Cashier,"Sorry,we have '33 doubles but we can't release them yet." In any event,on April 5,1933,when Roosevelt's EO 6102 came down,the tiny window of opportunity (about seven days,March 29-April 5) was forever closed for a member of the public to acquire 1933 double eagles lawfully from the Mint.
Great spirits have always encountered violent opposition from mediocre minds.-Albert Einstein
Welcome to 2016 everyone! This is the YEAR that I have confidence the Circuit court WILL issue its ruling in the Langbord/US Government case. Perhaps as soon as ten or eleven days from now. Any guesses out there? Steve
I have zero confidence anything will get decided this year.
THAT would surprise me. I certainly do NOT think the case will FINALLY be decided this year, but certainly a decision by the 3rd circuit regarding the hearing that was held on October 14th of last year should be announced shortly in my opinion. Steve
"...such coin could only be issued and circulated legally by the Philadelphia Mint, upon receipt by said Mint of an order from the Treasurer of the United States; that the Mint did not, at any time, receive such an order except one to deliver two of these coins to the Smithsonian Institute."
An order to the Mint from the Treasurer of the United States then must have been made for the legal issuance of 1933 Eagle ($10) coins,all of which were manufactured in the early months of 1933.
Were the two sent to the Smithsonian ever monetized? Are they even legal tender or legal to own? Could a Congressperson introduce a bill to monetize them and/or the Langbord 10 or any that may be out there but remain hidden?
The easiest way to end this farce would be for Congress to pass a bill/law making them legal to own. Anyone got a favor coming from their man in Congress who could get it added as a rider to a "must" pass bill?
Were the two sent to the Smithsonian ever monetized?
No.
Are they even legal tender or legal to own?
No.
Could a Congressperson introduce a bill to monetize them and/or the Langbord 10 or any that may be out there but remain hidden?
It would likely take an Act of Congress to make 1933 D.E.'s legal to own but why would,why should, Congress do this?
Because they could if the right person or persons wanted them to. Why continue to tie up Government and court resources on an issue that provides NO TANGIBLE BENEFIT to the American people?
Were the two sent to the Smithsonian ever monetized?
No.
Are they even legal tender or legal to own?
No.
Could a Congressperson introduce a bill to monetize them and/or the Langbord 10 or any that may be out there but remain hidden?
It would likely take an Act of Congress to make 1933 D.E.'s legal to own but why would,why should, Congress do this?
Because they could if the right person or persons wanted them to. Why continue to tie up Government and court resources on an issue that provides NO TANGIBLE BENEFIT to the American people?
This "game" is in the hands of the court right now. It is also being played by two sides with lots of money (ie) the government and the Langbords, both of which also have lots of pride and determination to WIN THE GAME! Let's let the "game" play out and we all will see "what happens". By year end I now predict this case will be in the hands of the Supreme Court of the USA or it will be settled assuming I am wrong about the above comments and the loser of the Court of Appeals decision decides to NOT proceed further. We shall see.... Steve
Time to TTT again. It looks more and more likely we will have to wait until 2016 for the court to render a decision. One week short of two MONTHS since the hearing and no word yet. Steve
TTT again! Two months since the rehearing now. With the holidays upon us, I figure we MIGHT have a shot at a decision on Friday, January 15, 2016. How's that for a prediction! Steve
Well, I blew that date! You'd think the 3rd circuit court is back from their "holiday vacation" by now. You'd also think they formed their opinion. So let's hear it this coming week. OK? Thanks.
Time to TTT again. It looks more and more likely we will have to wait until 2016 for the court to render a decision. One week short of two MONTHS since the hearing and no word yet. Steve
TTT again! Two months since the rehearing now. With the holidays upon us, I figure we MIGHT have a shot at a decision on Friday, January 15, 2016. How's that for a prediction! Steve
Well, I blew that date! You'd think the 3rd circuit court is back from their "holiday vacation" by now. You'd also think they formed their opinion. So let's hear it this coming week. OK? Thanks.
Steve
TTT again after nine more days. We just can't let this thread get lost with almost 300 replies, can we? Someday, someone will check the court database and let us all know what the decision is. Sooner rather than later I hope. Steve
Nothing new on the docket as of 26Jan2016, last item is the argument on 14Oct2015
10/14/2015 ARGUED on Wednesday, October 14, 2015. Panel: McKEE, Chief Judge, AMBRO, FUENTES, SMITH, FISHER, CHAGARES, JORDAN, HARDIMAN, VANASKIE, SHWARTZ, KRAUSE, SLOVITER and RENDELL, Circuit Judges. Barry H. Berke arguing for Appellants David Langbord and Joan Langbord; Robert A. Zauzmer arguing for Appellee United States of America. (TLG)
(I have a pacer account and am not afraid to use it :-))
Because I can never find the case#, here's the summary:
Court of Appeals Docket #: 12-4574 Docketed: 12/28/2012
Nature of Suit: 2890 Other Statutory Actions
Roy Langbord, et al v. US Dept of the Treasury, et al
Appeal From: United States District Court for the Eastern District of Pennsylvania
-----Burton ANA 50 year/Life Member (now "Emeritus")
Just saw this thread pushed to the top again. Thought I would post a meaningless reply to keep it going.
I have no idea when the En Banc Panel will issue its decision.
The 3 Justice Panel heard oral argument on the appeal in mid November, 2014 (if I recall correctly) and issued its decision in mid April. 2015 (about 5 months after the hearing). It would not surprise me to see that the En Banc Panel takes at least 5 months to issue its decision (probably longer since so many additional justices are involved and each probably has there own view on things).
The opinions voiced on the forums during the life of the Langbord cover a broad spectrum ranging from:
1. The government should be declared the owner of the coins and all of the Langbords should be sent to federal prison for their crimes; to
2. The Langbords should be declared owner of the coins, should get immediate possession of the coins returned to them and should recover damages, costs and attorney fees against the government [no one has yet opined that a federal prison sentence for Mint employees].
The actual outcome of this case (unlike most cases where what is in dispute is whether or not someone is entitled to money damages from someone else) will likely actually result in a complete victory (with respect to the determination of ownership and possession of the 10 double eagles) for either the Langbords (if CAFRA's death penalty applies) or for the government (if CAFRA death penalty does not apply, if evidentiary issues are resolved in favor of the government and if a jury decision and/or court decision awards the coins to the government).
The end of this litigation is still over the edge of the horizon and out of sight. A Petition to the US Supreme Court will be forthcoming from whichever side loses the En Banc panel's decision. It would be very surprising if the Supreme Court agreed to take the case (and I am surprised the En Banc panel granted the Government's request for it to hear the case).
The end of this litigation is still over the edge of the horizon and out of sight. A Petition to the US Supreme Court will be forthcoming from whichever side loses the En Banc panel's decision. It would be very surprising if the Supreme Court agreed to take the case (and I am surprised the En Banc panel granted the Government's request for it to hear the case).
I agree, whichever side loses will probably appeal to the Supreme Court, and I would be surprised if the Supreme Court took the case.
I am not surprised the En Banc panel granted the Government's request to hear the case, since the Government lost in the 3 Justice panel. If the Langbords had lost the 3 Justice panel, then I would have been very surprised to have the En Banc panel grant the Langbords' appeal.
It seems obvious to me that when the Government is fighting this kind of issue in a court run by the Government, that the Government has a built-in advantage. I think if it were XYZ Corp. vs. the Langbords, the Langbords would have a better chance of winning.
An authorized PCGS dealer, and a contributor to the Red Book.
Comments
Let's say that Mr. Switt went to the Mint and asked if 1933 double eagles were available. They said yes, and he said, great, I have some 1928 double eagles to trade for them. So he makes the trade. Now later on we find a document that says the Mint was not supposed to release 1933 double eagles. I would contend and I think most people would agree with me that if this situation occurred, Mr. Switt's 1933 double eagles would be perfectly legal. The government can't jump in later and say we didn't mean to release the 1933 double eagles. Now, and here is the big point: How can you prove that this isn't exactly what happened? And, the answer is, you can't prove that it didn't happen that way. Therefore, Mr. Switt's 1933 double eagles are legal, absent any proof to the contrary.
Mr. Switt's 1933 double eagles would be perfectly legal in the scenario you describe.The problem is those cashier records from 1933 indicate that not a single 1933 double eagle was traded for at the Mint window prior to or after April 5,1933.The written record prevails in this case as it should.
But that's not proof that it didn't happen. There could have been an exchange/s that wasn't/weren't recorded. The relevant document/s would be the one/s that say that the coins were or were not approved for distribution. Where are they?
Let me provide an example. Jonathan Kern had I believe a 1975 proof set which was mistakenly issued in November 1974. Despite the fact that 1975 proof sets were not supposed to be issued until 1975, this set existed and was well-publicized as being issued in 1974. Was it legal? The Mint did not attempt to confiscate Mr. Kern's proof set. And I am certain that the Mint's records indicate that no 1975 proof sets were issued in 1974.
In short, the 1933 double eagles could have been distributed in the manner I described above, despite what the cashier records say. And, therefore, I believe Mr. Switt's 1933 double eagles are legal.
But the difference is that the 1975 coins passed muster for whatever was needed to 'monetize" them. So was there similar "muster" for the 1933 DEs? In 1932, DEs were struck, samples sent to Washington for assay, results received and title to the coins was transferred to the Fed thus completing the "monetization" process as I understand it. So where is similar documentation for the 1933s?
"Monetization" is a term invented in the 1990's by a government lawyer in order to justify the seizure of the Fenton coin. There was no such thing as monetization in 1933. If there was, then I would like to see use of the word during the 1930's, and I don't think you will find it.
Well here are a few thoughts. Even back then when people were striking coins and printing currency, they were engaged in monetization "the making of money" whether they actually realized it or used the term or not.
here
again
repeat
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In short, the 1933 double eagles could have been distributed in the manner I described above, despite what the cashier records say. And, therefore, I believe Mr. Switt's 1933 double eagles are legal.
1933 double eagles could not have been legally issued until March 29,1933 at the earliest.Wednesday,3/29/33 is when the first special assay results came back from Washington. Gold coins could not legally be distributed until special assay was passed.Were the Mint's shiny new 1933 double eagles available for exchange at the Mint window though? If so,the window of opportunity for a member of the public like Israel Switt to acquire a 1933 double legally would have closed forever on April 5,1933.
In your example,the Mint probably took a "so what?" attitude. After all,the Mint knew that they would be stamping a few million 1975 proof sets later.If Mr. Kern managed to sell his mistakenly issued proof set to a collector for a handsome premium,more power to him. Did Mr. Kern discover his November,1974 issued 1975 proof set in the family safe deposit box?
Great spirits have always encountered violent opposition from mediocre minds.-Albert Einstein
Great spirits have always encountered violent opposition from mediocre minds.-Albert Einstein
Great spirits have always encountered violent opposition from mediocre minds.-Albert Einstein
Before 1964 the coins had sufficient metal content that a quarter was worth a quarter in precious metal, more or less. Moving to base metals created the monetization.
FYI, there are NO certificates of monetization for any coins made besides the 1933 DE that I know of. Certainly none were used during my years working at the Mint.
I cannot change the way I see it. No proof exists that the coins are stolen. Hence the burden of proof is the existence and possession of no more than $200 in aggregate. I thought the chapter was already over. Why is this case on the books ?
Great spirits have always encountered violent opposition from mediocre minds.-Albert Einstein
That there could have been an exchange is anecdotal evidence.The cashier records tracking 1933 double eagles is written evidence. In this dispute between the Langbords and The Government it has come to light that the Mint's own written records show that not a single 1933 double eagle was traded to a member of the public.Which evidence should the Court accept? The anecdotal evidence or the written evidence?
Great spirits have always encountered violent opposition from mediocre minds.-Albert Einstein
Maybe not anymore but in 1944 they did. See Illegal Tender,"A Double Eagle Flies to Cairo," p.81:
"Fahim completed the paperwork,surrendered the 1933 double eagle,and took his leave. He would await the government's decision. The Bureau of the Mint had the authority to issue the export license,but no one there had the necessary expertise to pass judgement on whether or not the coin qualified. Mint Director Ross ,who had developed the vetting process and whose office was directly responsible for approving all gold coin export licenses,knew this and she dictated a letter to Theodore Belote,the Curator of History at the Smithsonian Institution,
asking for his opinion."
Great spirits have always encountered violent opposition from mediocre minds.-Albert Einstein
But that's not proof that it didn't happen. There could have been an exchange/s that wasn't/weren't recorded. The relevant document/s would be the one/s that say that the coins were or were not approved for distribution. Where are they?
That there could have been an exchange is anecdotal evidence.The cashier records tracking 1933 double eagles is written evidence. In this dispute between the Langbords and The Government it has come to light that the Mint's own written records show that not a single 1933 double eagle was traded to a member of the public.Which evidence should the Court accept? The anecdotal evidence or the written evidence?
The court may accept the written record, but it isn't absolute proof positive that no unrecorded exchanges took place.
MY COINS FOR SALE AT https://www.pcgs.com/setregistry/collectors-showcase/other/bajjerfans-coins-sale/3876
however,must go by the tangible or "substantially real" evidence. Judge Davis would be laughed off the bench if the written cashier records in his court took a back seat to the anectdotal evidence about Mint tradition and such that Langbord/Berke presented to the jury.
Great spirits have always encountered violent opposition from mediocre minds.-Albert Einstein
The Court did accept the cashier records from 1933-34 and you, BAJJERFAN,are correct that the written record is not proof positive that no unrecorded exchanges took place. Judge Davis surmised that a number of 1933 Eagles ($10) "went out the back door" even though,unlike double eagles of the same year, there are a few entries in the cashier record about exchanges for new 1933 eagles. The number of entries for 1933 eagles in the cashier records is considerably less than the number of 1933 Eagles known to exist. 1933 eagles were produced in the early months of 1933 and have always been legal to own.The Court,
however,must go by the tangible or "substantially real" evidence. Judge Davis would be laughed off the bench if the written cashier records in his court took a back seat to the anectdotal evidence about Mint tradition and such that Langbord/Berke presented to the jury.
Where is the documentation/records that says that the 1933 DEs are NOT to be released? Were they placed in a "production hold" pending possible reversal of FDR's order or was some other final disposition issued?
MY COINS FOR SALE AT https://www.pcgs.com/setregistry/collectors-showcase/other/bajjerfans-coins-sale/3876
Great spirits have always encountered violent opposition from mediocre minds.-Albert Einstein
You do know it only became illegal to melt nickels in the past couple of years. So what about the first 100 years or so after the 1913 V Nickels went out the back door at the Mint? That is more of a film sarcastic answer than an "Easy" one. I get the joke. This is a post more designed to keep the thread current than anything else ;-)
And in "keeping the thread current" I report that it is now 70 (seventy) DAYS since the rehearing by the 3rd circuit court and we still all wait for the court's decision. Since I assume the members of the court are all on "holiday recess", I look forward to hearing their decision in mid January, 2016. HAPPY NEW YEAR! Steve
My Complete PROOF Lincoln Cent with Major Varieties(1909-2015)Set Registry
Great spirits have always encountered violent opposition from mediocre minds.-Albert Einstein
The right thing for the court to do is send the case back to jury,in my opinion.Exclude the Secret Service hearsay evidence.Whoever wins the second jury trial gets "the Coins." No appeals to higher court from the loser after jury verdict is stipulated by the Court.A judge other than Judge Davis presides over the second jury trial.CAFRA has been made a non-issue by the Court.The case now rests on its merits. Can the government prove,by preponderance of the allowable evidence, that the ten 1933 double eagles discovered by the Langbords in their safe deposit box are not the property of the Langbords but are,as established by the facts, the property of the government of the United States and have always been the property of the government of the United States?
Great spirits have always encountered violent opposition from mediocre minds.-Albert Einstein
Back to the bogus monetization again. That is a concept that came into being when we shifted out of precious metal in our coins. Did NOT exist in 1933. A coin is monetized when sold to the Fed by the Mint, for example a quarter which costs about 12 cents, becomes 25 cents when moved from one cage to another at the Mint. Before that is is WIP and valued at 12 cents or whatever the cost is at that point in time.
Before 1964 the coins had sufficient metal content that a quarter was worth a quarter in precious metal, more or less. Moving to base metals created the monetization.
FYI, there are NO certificates of monetization for any coins made besides the 1933 DE that I know of. Certainly none were used during my years working at the Mint.
It was only prior to 1853 that coins were converted from depositor's bullion. The silver in coins were at time less than half the face value (in the 1930's). In the government's view, silver was just the metal of choice for the coins and as it became too expensive, they changed to copper-nickel clad coins. Monetization had nothing to do with it.
And I think it is too early to conclude that "CAFRA has been made a non-issue by the Court". Just as the government's argument is "the 1933 double eagles were stolen, because we say so", so also is the government's argument "CAFRA doesn't apply, because we say so". CAFRA was put into law to prevent the government from unlawfully seizing property from citizens. I don't know if the CAFRA statute includes an exemption from filing a CAFRA forfeiture action on the grounds of "CAFRA doesn't apply because we say so".
Now, except for the government, who doesn't think this case gone on long enough?
An authorized PCGS dealer, and a contributor to the Red Book.
For those interested in the 1913 Liberty nickel story why doesn't someone start a thread about it? Both were inside jobs but that's where the similarity of the 1913 nickel story to the 1933 double eagle story ends.
Yeah, and let's start a story about the Federal Reserve Act of 1913 being passed on Dec. 23rd with only four members of our representative government "at work".
Nevermind… let's get back to the power of the people.
You are right about the price of silver in the 30s being half the face. However, in the case of gold, which this is about, KITCO shows the price of gold at 26.33 for 1933. Thus, there was no need to "monetize" a DE as it already contained sufficient value in the gold to cover the $20 face.
Gold was up in 1933. It was $20.69 in 1932 and $17.06 in 1931. Again, the gold in a DE was less than face value prior to 1933. It was not a bullion coin. It was $20 US currency made out of gold.
My understanding is that a DE coin blank is just a piece of gold and accounted for as bullion. Once it is struck with the government imprint, it is currency and accounted for as currency. No further monetization is needed.
Link
Where do the seizures of 1933 double eagles in the 1940's fit into your seizure justification theory? Our government tried in vain to get the Fenton coin, aka ex Farouk coin, returned to the US in the '40's after realizing the export license for it was issued by mistake. The issuance of an ornate certificate of monetization for the buyer of the Fenton coin was a nice service provided by our government. I mean,you spend almost $7M on a coin what's another $20 for a nicely executed "unique" certificate to accompany the coin ? I suggest another word, that I just created, will serve to replace the confusing word "monetize." The word I have in mind is "uniquesize." What do you all think of my new word for "monetize," staying in the context of 1933 double eagles of course?
Great spirits have always encountered violent opposition from mediocre minds.-Albert Einstein
My understanding is that a DE coin blank is just a piece of gold and accounted for as bullion. Once it is struck with the government imprint, it is currency and accounted for as currency. No further monetization is needed.
How did the government distinguish between patterns with the correct metal composition and official designs? Are patterns legal tender without any further requirements for monetization or did they have to be struck with an approved imprint? In which case, would the 1933 DE imprint have been approved at that point?
Again, monetization as it refers to the 1933 double eagles was created by a government lawyer to justify seizure of the Fenton coin.
Where do the seizures of 1933 double eagles in the 1940's fit into your seizure justification theory? Our government tried in vain to get the Fenton coin, aka ex Farouk coin, returned to the US in the '40's after realizing the export license for it was issued by mistake. The issuance of an ornate certificate of monetization for the buyer of the Fenton coin was a nice service provided by our government. I mean,you spend almost $7M on a coin what's another $20 for a nicely executed "unique" certificate to accompany the coin ? I suggest another word, that I just created, will serve to replace the confusing word "monetize." The word I have in mind is "uniquesize." What do you all think of my new word for "monetize," staying in the context of 1933 double eagles of course?
You raise a good question, Mr1874. I believe the seizures of the 1933 double eagles in the 1940's was much more an administrative exercise than a legal battle. I believe the government demanded the coins be given to them, which generally occurred. Except for Mr. Barnard, who lost in court. At that time, the value of a 1933 double eagle was around $900 or so. I am guessing Mr. Barnard looked at the cost of an appeal vs. the value of the coin, and evaluated the possibility of winning, and decided not to appeal. Now that the coins are worth maybe $2.5 - $3 million each, the Langbords' cost/benefit analysis is much different than Mr. Barnard's. It comes down to how hard and long would someone fight over a legal matter involving $1,000 vs. how long and hard would someone fight over a legal matter involving $25 - $30 million?
Let's hope with the new year that the court will come out with a decision, sooner rather than later.
An authorized PCGS dealer, and a contributor to the Red Book.
UNITED STATES v. BARNARD
72 F. Supp. 531 (W.D.Tenn. 1947).
BOYD, District Judge.
This action, in the nature of a replevin, was brought by the United States of America to recover from the defendant a $20 Gold Piece of the United States, commonly called a "Double Eagle", bearing date of the year 1933.
The coin in question was purchased in the year 1944 for $900, by the defendant, a member of the American Numismatic Association, from one Bell, who was also a collector of rare and unusual coins.
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.
The defendant denies plaintiff is entitled to have the coin returned to it, asserting that he is a collector of rare and unusual coins and, as such, purchased this one from another collector in good faith, in due course of trade and without knowledge that it had been stolen or surreptitiously taken from the Mint if it had, in fact, been so stolen, or taken. He claims the coin in controversy was lawfully minted as United States money, or currency, was issued as such, and is not a chattel, or an article of virtu; further, that regardless of the manner in which the coin left the Philadelphia Mint, it was complete on its face, negotiable and transferable by delivery, and his right, title and interest in same is superior to any claim or title of the plaintiff.
On these issues the decisive question, in the Court's opinion, is whether the coin in dispute, after having been minted, was issued as money or currency of the United States, or whether the status of the same was that of a chattel, or an article of virtu.
The proof is that the United States Government minted 445,500 Double Eagle coins at its Philadelphia Mint during the period between March 15, 1933, and May 19, 1933; that such coin could only be issued and circulated legally by the Philadelphia Mint, upon receipt by said Mint of an order from the Treasurer of the United States; that the Mint did not, at any time, receive such an order except one to deliver two of these coins to the Smithsonian Institute. In addition to the two coins sent to the Smithsonian Institute, twenty-nine others were destroyed by testing and by the Assay Commission, leaving 445,469 Double Eagle coins for the year 1933 on hand at the Philadelphia Mint when they were later ordered melted into bullion. The remaining Double Eagle coins were carefully and meticulously weighed before and after they were melted and the weight of same, following the melting process at the Mint, equalled the weight of these coins prior thereto.
Restrictions on all gold became operative in the early part of 1933, when, on March 6, 1933, the President of the United States proclaimed a "Bank Holiday" during which all banks were prohibited from paying out gold coin. On the same date, the Secretary of the Treasury, with Presidential approval, issued instructions to the Director of the Mint and the Treasurer of the United states to make payments in gold coin only under license issued by the Secretary of the Treasury. On April 5, 1933, the President of the United States issued Executive Order No. 6102 requiring the delivery to the United States of all gold coin with the exception of gold coin and gold certificates in an amount not exceeding, in the aggregate, $100, and gold coin having a recognized special value to collectors of rare and unusual coins. The President of the United states, on August 28, 1933, issued Executive Order No. 6260, 12 U.S.C.A. I 95a, which prohibited the issue of gold coin as currency but permitted the acquisition of gold coin having a recognized special value to collectors of rare and unusual coins. The Secretary of the Treasury, on December 28, 1933, issued an order requiring the delivery to the United States of all gold coin other than that of recognized special value to collectors of rare and unusual coins. The Gold Reserve Act, approved January 30, 1934, 48 Stat. 337, prohibited the coinage and payment of gold coin by the United States. Under this Act and the regulations pursuant thereto, gold coin may only be acquired and held when such gold coin is of special recognized value to collectors of rare and unusual coins. These restrictions, generally, are still in full force and effect at this time.
In view of these undisputed facts, it is clear that the gold piece which is the basis of this lawsuit did not leave the Mint as regularly and lawfully issued money, or currency, therefore, the rule under the law merchant that title to money passes with delivery to a person who acquires it in good faith and for a valuable consideration, and which was adopted to insure the ready acceptability of money as currency in normal channels of trade, is not applicable here. Brown v. Perera. Sup., 176 N.Y.S. 215; Land Oberoesterreich v. Gude. 2 Cir., 86 F.2d 621. The coin here involved was not, at any time, money or currency, but was a chattel, or an article of virtu. In re Gay's Gold, 80 U.S. 358, 20 L.Ed. 606; Moss v. Han*****, 2 Q.B. 3; Brown v. Perera, supra. It is virtually impossible, under the existing laws and careful methods in vogue at the Mint, for gold to be issued or released for circulation. It is a fair inference, from the proof in this case, that the Double Eagle here involved was taken out of the Mint in an unlawful manner; and, further, it is entirely reasonable to say, considering the customs and strict practices at the Mint, that it was abstracted by some one who substituted a similar coin for it before the coins were reduced to bullion. It is the Court's opinion this coin was abstracted by some one who had in mind that it would have a special value as a rare and unusual coin and that it could be disposed of from that standpoint. Since this gold piece was stolen or, through fraudulent breach of trust, taken from the Philadelphia Mint, the defendant, as the purchaser, took the same subject to the defects in its title and this is true, even though the property was acquired in good faith, for a valuable consideration and without notice of any infirmity of title. He cannot maintain ownership in such property against one who has been deprived of it by theft or other illegal act. This principle of law is so well settled that it is only necessary to cite a few cases. Ventress v. Smith, 10 Pet. 161, 9 L.Ed. 382; Dows v. National Exchange Bank, 91 U.S. 618, 23 L.Ed. 214; In re Ketchum. D.C., 1 F. 815; Parham v. Riley 44 Tenn. 5; Godwin v. Taenzer, 122 Tenn. 101, 119 S.W. 1133; Cowan v. Thompsonf 25 Tenn.App. 130, 152 S.W.2d 1036, cert, denied by Sup.Ct.
It follows that title to the coin in litigation is in the plaintiff, United States of America, and plaintiff is entitled to its restoration.
Great spirits have always encountered violent opposition from mediocre minds.-Albert Einstein
Test to see if paragraphs are mine now that we are in a new year.
No...
Test to see if paragraphs are mine now that we are in a new year. Here's some interesting reading,the opinion of Judge Boyd who presided in US v. Barnard:
UNITED STATES v. BARNARD
72 F. Supp. 531 (W.D.Tenn. 1947).
BOYD, District Judge.
This action, in the nature of a replevin, was brought by the United States of America to recover from the defendant a $20 Gold Piece of the United States, commonly called a "Double Eagle", bearing date of the year 1933.
The coin in question was purchased in the year 1944 for $900, by the defendant, a member of the American Numismatic Association, from one Bell, who was also a collector of rare and unusual coins.
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.
The defendant denies plaintiff is entitled to have the coin returned to it, asserting that he is a collector of rare and unusual coins and, as such, purchased this one from another collector in good faith, in due course of trade and without knowledge that it had been stolen or surreptitiously taken from the Mint if it had, in fact, been so stolen, or taken. He claims the coin in controversy was lawfully minted as United States money, or currency, was issued as such, and is not a chattel, or an article of virtu; further, that regardless of the manner in which the coin left the Philadelphia Mint, it was complete on its face, negotiable and transferable by delivery, and his right, title and interest in same is superior to any claim or title of the plaintiff.
On these issues the decisive question, in the Court's opinion, is whether the coin in dispute, after having been minted, was issued as money or currency of the United States, or whether the status of the same was that of a chattel, or an article of virtu.
The proof is that the United States Government minted 445,500 Double Eagle coins at its Philadelphia Mint during the period between March 15, 1933, and May 19, 1933; that such coin could only be issued and circulated legally by the Philadelphia Mint, upon receipt by said Mint of an order from the Treasurer of the United States; that the Mint did not, at any time, receive such an order except one to deliver two of these coins to the Smithsonian Institute. In addition to the two coins sent to the Smithsonian Institute, twenty-nine others were destroyed by testing and by the Assay Commission, leaving 445,469 Double Eagle coins for the year 1933 on hand at the Philadelphia Mint when they were later ordered melted into bullion. The remaining Double Eagle coins were carefully and meticulously weighed before and after they were melted and the weight of same, following the melting process at the Mint, equalled the weight of these coins prior thereto.
Restrictions on all gold became operative in the early part of 1933, when, on March 6, 1933, the President of the United States proclaimed a "Bank Holiday" during which all banks were prohibited from paying out gold coin. On the same date, the Secretary of the Treasury, with Presidential approval, issued instructions to the Director of the Mint and the Treasurer of the United states to make payments in gold coin only under license issued by the Secretary of the Treasury. On April 5, 1933, the President of the United States issued Executive Order No. 6102 requiring the delivery to the United States of all gold coin with the exception of gold coin and gold certificates in an amount not exceeding, in the aggregate, $100, and gold coin having a recognized special value to collectors of rare and unusual coins. The President of the United states, on August 28, 1933, issued Executive Order No. 6260, 12 U.S.C.A. I 95a, which prohibited the issue of gold coin as currency but permitted the acquisition of gold coin having a recognized special value to collectors of rare and unusual coins. The Secretary of the Treasury, on December 28, 1933, issued an order requiring the delivery to the United States of all gold coin other than that of recognized special value to collectors of rare and unusual coins. The Gold Reserve Act, approved January 30, 1934, 48 Stat. 337, prohibited the coinage and payment of gold coin by the United States. Under this Act and the regulations pursuant thereto, gold coin may only be acquired and held when such gold coin is of special recognized value to collectors of rare and unusual coins. These restrictions, generally, are still in full force and effect at this time.
In view of these undisputed facts, it is clear that the gold piece which is the basis of this lawsuit did not leave the Mint as regularly and lawfully issued money, or currency, therefore, the rule under the law merchant that title to money passes with delivery to a person who acquires it in good faith and for a valuable consideration, and which was adopted to insure the ready acceptability of money as currency in normal channels of trade, is not applicable here. Brown v. Perera. Sup., 176 N.Y.S. 215; Land Oberoesterreich v. Gude. 2 Cir., 86 F.2d 621. The coin here involved was not, at any time, money or currency, but was a chattel, or an article of virtu. In re Gay's Gold, 80 U.S. 358, 20 L.Ed. 606; Moss v. Han*****, 2 Q.B. 3; Brown v. Perera, supra. It is virtually impossible, under the existing laws and careful methods in vogue at the Mint, for gold to be issued or released for circulation. It is a fair inference, from the proof in this case, that the Double Eagle here involved was taken out of the Mint in an unlawful manner; and, further, it is entirely reasonable to say, considering the customs and strict practices at the Mint, that it was abstracted by some one who substituted a similar coin for it before the coins were reduced to bullion. It is the Court's opinion this coin was abstracted by some one who had in mind that it would have a special value as a rare and unusual coin and that it could be disposed of from that standpoint. Since this gold piece was stolen or, through fraudulent breach of trust, taken from the Philadelphia Mint, the defendant, as the purchaser, took the same subject to the defects in its title and this is true, even though the property was acquired in good faith, for a valuable consideration and without notice of any infirmity of title. He cannot maintain ownership in such property against one who has been deprived of it by theft or other illegal act. This principle of law is so well settled that it is only necessary to cite a few cases. Ventress v. Smith, 10 Pet. 161, 9 L.Ed. 382; Dows v. National Exchange Bank, 91 U.S. 618, 23 L.Ed. 214; In re Ketchum. D.C., 1 F. 815; Parham v. Riley 44 Tenn. 5; Godwin v. Taenzer, 122 Tenn. 101, 119 S.W. 1133; Cowan v. Thompsonf 25 Tenn.App. 130, 152 S.W.2d 1036, cert, denied by Sup.Ct.
It follows that title to the coin in litigation is in the plaintiff, United States of America, and plaintiff is entitled to its restoration.
An order to the Mint from the Treasurer of the United States then must have been made for the legal issuance of 1933 Eagle ($10) coins,all of which were manufactured in the early months of 1933.
An expert on the 1930's Philadelphia Mint might be able to answer the question about an order from the Treasurer being necessary before issuance of new gold coin could legally be made.
Judge Boyd is clear in his 1947 opinion re US v. Barnard about an order being needed or did he just make this up?
Sorry,Judge Boyd, about entertaining the possibility that you have done some "making it up." This is an important question to answer.
In the absence of a written order to the Mint from the Treasurer the 1933 D.E.'s must never have been intended to be legally issued.
Now,where is that written order (smoking gun?) from the Treasurer to the Mint for the legal issuance of 1933 Eagle ($10) coins?
If the written order for issuance of 1933 $10 coins exists and the written order for issuance of 1933 $20 does not exist what is this telling us?
Great spirits have always encountered violent opposition from mediocre minds.-Albert Einstein
"...such coin could only be issued and circulated legally by the Philadelphia Mint, upon receipt by said Mint of an order from the Treasurer of the United States; that the Mint did not, at any time, receive such an order except one to deliver two of these coins to the Smithsonian Institute."
An order to the Mint from the Treasurer of the United States then must have been made for the legal issuance of 1933 Eagle ($10) coins,all of which were manufactured in the early months of 1933.
Are there any copies of these orders available for any year 1933 or prior? What does such an order look like?
Great spirits have always encountered violent opposition from mediocre minds.-Albert Einstein
My Complete PROOF Lincoln Cent with Major Varieties(1909-2015)Set Registry
Great spirits have always encountered violent opposition from mediocre minds.-Albert Einstein
I have zero confidence anything will get decided this year.
THAT would surprise me. I certainly do NOT think the case will FINALLY be decided this year, but certainly a decision by the 3rd circuit regarding the hearing that was held on October 14th of last year should be announced shortly in my opinion. Steve
My Complete PROOF Lincoln Cent with Major Varieties(1909-2015)Set Registry
paragraph
paragraph
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thanks Overdate
Great spirits have always encountered violent opposition from mediocre minds.-Albert Einstein
"...such coin could only be issued and circulated legally by the Philadelphia Mint, upon receipt by said Mint of an order from the Treasurer of the United States; that the Mint did not, at any time, receive such an order except one to deliver two of these coins to the Smithsonian Institute."
An order to the Mint from the Treasurer of the United States then must have been made for the legal issuance of 1933 Eagle ($10) coins,all of which were manufactured in the early months of 1933.
Were the two sent to the Smithsonian ever monetized? Are they even legal tender or legal to own? Could a Congressperson introduce a bill to monetize them and/or the Langbord 10 or any that may be out there but remain hidden?
MY COINS FOR SALE AT https://www.pcgs.com/setregistry/collectors-showcase/other/bajjerfans-coins-sale/3876
MY COINS FOR SALE AT https://www.pcgs.com/setregistry/collectors-showcase/other/bajjerfans-coins-sale/3876
No.
Are they even legal tender or legal to own?
No.
Could a Congressperson introduce a bill to monetize them and/or the Langbord 10 or any that may be out there but remain hidden?
It would likely take an Act of Congress to make 1933 D.E.'s legal to own but why would,why should, Congress do this?
Great spirits have always encountered violent opposition from mediocre minds.-Albert Einstein
Were the two sent to the Smithsonian ever monetized?
No.
Are they even legal tender or legal to own?
No.
Could a Congressperson introduce a bill to monetize them and/or the Langbord 10 or any that may be out there but remain hidden?
It would likely take an Act of Congress to make 1933 D.E.'s legal to own but why would,why should, Congress do this?
Because they could if the right person or persons wanted them to. Why continue to tie up Government and court resources on an issue that provides NO TANGIBLE BENEFIT to the American people?
MY COINS FOR SALE AT https://www.pcgs.com/setregistry/collectors-showcase/other/bajjerfans-coins-sale/3876
Were the two sent to the Smithsonian ever monetized?
No.
Are they even legal tender or legal to own?
No.
Could a Congressperson introduce a bill to monetize them and/or the Langbord 10 or any that may be out there but remain hidden?
It would likely take an Act of Congress to make 1933 D.E.'s legal to own but why would,why should, Congress do this?
Because they could if the right person or persons wanted them to. Why continue to tie up Government and court resources on an issue that provides NO TANGIBLE BENEFIT to the American people?
This "game" is in the hands of the court right now. It is also being played by two sides with lots of money (ie) the government and the Langbords, both of which also have lots of pride and determination to WIN THE GAME! Let's let the "game" play out and we all will see "what happens". By year end I now predict this case will be in the hands of the Supreme Court of the USA or it will be settled assuming I am wrong about the above comments and the loser of the Court of Appeals decision decides to NOT proceed further. We shall see.... Steve
My Complete PROOF Lincoln Cent with Major Varieties(1909-2015)Set Registry
Time to TTT again. It looks more and more likely we will have to wait until 2016 for the court to render a decision. One week short of two MONTHS since the hearing and no word yet. Steve
TTT again! Two months since the rehearing now. With the holidays upon us, I figure we MIGHT have a shot at a decision on Friday, January 15, 2016. How's that for a prediction! Steve
Well, I blew that date! You'd think the 3rd circuit court is back from their "holiday vacation" by now. You'd also think they formed their opinion. So let's hear it this coming week. OK? Thanks.
Steve
My Complete PROOF Lincoln Cent with Major Varieties(1909-2015)Set Registry
Time to TTT again. It looks more and more likely we will have to wait until 2016 for the court to render a decision. One week short of two MONTHS since the hearing and no word yet. Steve
TTT again! Two months since the rehearing now. With the holidays upon us, I figure we MIGHT have a shot at a decision on Friday, January 15, 2016. How's that for a prediction! Steve
Well, I blew that date! You'd think the 3rd circuit court is back from their "holiday vacation" by now. You'd also think they formed their opinion. So let's hear it this coming week. OK? Thanks.
Steve
TTT again after nine more days. We just can't let this thread get lost with almost 300 replies, can we? Someday, someone will check the court database and let us all know what the decision is. Sooner rather than later I hope. Steve
My Complete PROOF Lincoln Cent with Major Varieties(1909-2015)Set Registry
10/14/2015 ARGUED on Wednesday, October 14, 2015. Panel: McKEE, Chief Judge, AMBRO, FUENTES, SMITH, FISHER, CHAGARES, JORDAN, HARDIMAN, VANASKIE, SHWARTZ, KRAUSE, SLOVITER and RENDELL, Circuit Judges. Barry H. Berke arguing for Appellants David Langbord and Joan Langbord; Robert A. Zauzmer arguing for Appellee United States of America. (TLG)
(I have a pacer account and am not afraid to use it :-))
Because I can never find the case#, here's the summary:
Court of Appeals Docket #: 12-4574 Docketed: 12/28/2012
Nature of Suit: 2890 Other Statutory Actions
Roy Langbord, et al v. US Dept of the Treasury, et al
Appeal From: United States District Court for the Eastern District of Pennsylvania
ANA 50 year/Life Member (now "Emeritus")
I have no idea when the En Banc Panel will issue its decision.
The 3 Justice Panel heard oral argument on the appeal in mid November, 2014 (if I recall correctly) and issued its decision in mid April. 2015 (about 5 months after the hearing). It would not surprise me to see that the En Banc Panel takes at least 5 months to issue its decision (probably longer since so many additional justices are involved and each probably has there own view on things).
The opinions voiced on the forums during the life of the Langbord cover a broad spectrum ranging from:
1. The government should be declared the owner of the coins and all of the Langbords should be sent to federal prison for their crimes; to
2. The Langbords should be declared owner of the coins, should get immediate possession of the coins returned to them and should recover damages, costs and attorney fees against the government [no one has yet opined that a federal prison sentence for Mint employees].
The actual outcome of this case (unlike most cases where what is in dispute is whether or not someone is entitled to money damages from someone else) will likely actually result in a complete victory (with respect to the determination of ownership and possession of the 10 double eagles) for either the Langbords (if CAFRA's death penalty applies) or for the government (if CAFRA death penalty does not apply, if evidentiary issues are resolved in favor of the government and if a jury decision and/or court decision awards the coins to the government).
The end of this litigation is still over the edge of the horizon and out of sight. A Petition to the US Supreme Court will be forthcoming from whichever side loses the En Banc panel's decision. It would be very surprising if the Supreme Court agreed to take the case (and I am surprised the En Banc panel granted the Government's request for it to hear the case).
I agree, whichever side loses will probably appeal to the Supreme Court, and I would be surprised if the Supreme Court took the case.
I am not surprised the En Banc panel granted the Government's request to hear the case, since the Government lost in the 3 Justice panel. If the Langbords had lost the 3 Justice panel, then I would have been very surprised to have the En Banc panel grant the Langbords' appeal.
It seems obvious to me that when the Government is fighting this kind of issue in a court run by the Government, that the Government has a built-in advantage. I think if it were XYZ Corp. vs. the Langbords, the Langbords would have a better chance of winning.
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