It's Langbord Time,............... again.
SanctionII
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Yesterday the government filed papers in opposition to the recent Langbord motion for an order dismissing the "Claim" to the 10 double eagles filed by the governemt (while wearing it's "We own the double eagles hat") in response to the forfeiture proceeding filed by the government (while wearing it's "law enforcement hat") on 9-28-2009.
The government opposition papers are very good and provide insight into the strategy and tactics of the government at this stage in the case.
First, the government asserts that the applicable rules governing civil asset forfeiture practice allow only the government to bring a motion to dismiss a Claim filed in a forfeiture proceeding. It asserts that the Langbords, as a competing claimant, can not bring a motion for an order dismissing the claim filed by another claimant.
Second, the government disputes the assertion by the Langbords that the government can not sue itself (bringing the forfeiture proceeding and at that same time defending the forfeiture proceeding). It cites case law, including US Supreme Court case law, that supports the government being both a plaintiff and a defendant in the same case. (Since the government is so large, with so many different departments and agencies, I can see where a dispute arises between different departments lands in court with the government on both sides of the case, i.e. the Forest Service gets into a dispute with the Transportation Department over the location of a highway through a National Forest).
Third, the government states that if it is unable to win the forfeiture proceeding against the ten double eagles (it will win and thus the ten double eagles would be forfeited to the government if it can prove that the double eagles left the mint illegally, aka were stolen from the mint) the court in a forfeiture proceeding is required to return the ten double eagles to the claimant. However, if there are competing claimants to the ten double eagles (in this case the Langbords on the one hand and the government [while wearing it's "We own the double eagles hat"] on the other hand), the government states that the applicable law gives the court the authority to and in fact obligates the court to decide which of the competing claimants to the ten double eagles wins and which loses (More on this point below).
Fourth, the government states that its "Claim" to the ten double eagles is presented, along with its proposed three additional claims for replevin and declaratory relief, to give it mutliple legal bases upon which to assert that it (even if it fails to prove that the ten double eagles should be forfeited) is the owner of and the Langbords are not the owner. If the government wins its forfeiture proceeding, it will withdraw its "Claim". If it loses the forfeiture proceeding it will still assert ownership through its "Claim". If the court allows the government to add the three additional claims for replevin and declaratory relief into this case, it may consider withdrawing its "Claim" in response to the forfeiture proceeding. If the court does not allow it to add the three additional claims for replevin and declaratory relief, it will not withdraw its "Claim" in response to the forfeiture proceeding.
The government is being very creative and dogged in posturing this case in light of the 7-28-2009 ruling against it and in favor of the Langbords. The government is not willing to simply roll over on the case and voluntarily limit its scope to a single forfeiture proceeding where it seeks to forfeit the ten double eagles and the Langbords assert a single "Claim" to same.
Unless and until the district court judge issues rulings on the pending motions that limit the scope of the case to a single forfeiture proceeding, the government will keep on pushing for a more expansive case. Even if the district court rules against the government again, such rulings will simply give the government additional legal issues upon which to base an appeal if the government loses at the district court level.
Notwithstanding the government's posturing described above, I have a conceptual problem with what the government is asserting through its "Claim" in response to the forfeiture proceeding. Under CAFRA the government, to win the forfeiture proceeding, must prove that the ten double eagles left the mint illegally (aka they were stolen). Let's say that the government is unable to prove this. Thus the double eagles are not forfeited to the government. However, both the government and the Langbords have filed "Claims" to ownership of the ten double eagles (assuming the district court allows the goverment's "Claim" to stand). If (as the government states in the papers it filed yesterday) the court can and should determine which Claim to the ten double eagles wins and which loses, certain questions arise which are difficult to fully answer, to wit:
1. What is the basis of the government's "Claim" to the ten specific double eagles (is it not that these ten double eagles left the mint illegally [aka were stolen from the mint]; and did not the government fail in proving this in its attempt to have them forfeited)?;
2. What is the basis of the Langbords' "Claim" to the ten specific double eagles (is it not simply the fact that in 2004 they were found in a safe deposit box belonging to the Langbord family, aka the Langbords have "possession" of them [possession being 9/10ths of the law]?;
3. If, after losing its attempt to forfeit the ten double eagles the court is required to determine which "Claim" wins and which one loses, how is this to be determined? Does it all take place in one trial, or is the trial split into two phases [Phase 1 being the forfeiture issue and if the government loses Phase 1, then Phase 2 being about which "Claim" wins and which loses]. If one trial takes place, does the burden of proof lie with the government for the entire trial? If the trial is broken into two Phases, does the burden of proof shift from the government to the Langbords in Phase 2? (If so, why?; and if so, why does the government lose Phase 1 if it does not prove its case yet win Phase 2 with the same evidence, or lack of evidence) If the case is heard by a jury, does the same jury hear both Phase 1 and Phase 2? Or are there two juries?; and
4. What logical sense would there be if in a Phase 1 trial the government failed to prove its case (it can not prove that the ten double eagles illegally left the mint (aka were stolen); and if in a Phase 2 trial, with the Langbords having the burden of proof, they fail to meet their burden to prove that the ten double eagles left the mint legally (aka prove that they were not stolen) resulting in the government winning ownership of the ten double eagles?
The above makes my head spin; yet when the spinning stops its leaves me back at the same place I was at back in early 2007 when I first posted about this case.
Specifically, the loser of this case (at least at the district court level) will be the side upon which the district court assigns the burden of proof and the winner will be the side upon which the district court does not assign the burden of proof.
Pretrial rulings that determine the exact scope of the case that goes to trial; and once the scope of the case is set, pretrial rulings that determine who has the burden of proof are yet to be issued. Absent settlement they will be issued and the case will finally proceed to towards a trial.
This case is really an interesting study in litigation strategy and tactics, all designed to advance the goal of both sides to the dispute of avoiding having the district court place the burden of proof on them. The government lost the 7-28-2009 ruling on the summary judgments, but it is not rolling over and caving in. It is still fighting tooth and nail to posture this case in a manner where even if it fails to prove the ten double eagles should be forfeited, such a loss on its part will not result in an automatic win for the Langbords. It still wants the Langbords to be forced to prove that they lawfully own the double eagles for reasons more than mere "possession".
I expect that the Langbords will file papers in reply to the government's 12-2-2009 opposition papers and that once the reply papers are filed the court will be in a position to rule on all of the pending motions.
I wonder what the judge will do?
The government opposition papers are very good and provide insight into the strategy and tactics of the government at this stage in the case.
First, the government asserts that the applicable rules governing civil asset forfeiture practice allow only the government to bring a motion to dismiss a Claim filed in a forfeiture proceeding. It asserts that the Langbords, as a competing claimant, can not bring a motion for an order dismissing the claim filed by another claimant.
Second, the government disputes the assertion by the Langbords that the government can not sue itself (bringing the forfeiture proceeding and at that same time defending the forfeiture proceeding). It cites case law, including US Supreme Court case law, that supports the government being both a plaintiff and a defendant in the same case. (Since the government is so large, with so many different departments and agencies, I can see where a dispute arises between different departments lands in court with the government on both sides of the case, i.e. the Forest Service gets into a dispute with the Transportation Department over the location of a highway through a National Forest).
Third, the government states that if it is unable to win the forfeiture proceeding against the ten double eagles (it will win and thus the ten double eagles would be forfeited to the government if it can prove that the double eagles left the mint illegally, aka were stolen from the mint) the court in a forfeiture proceeding is required to return the ten double eagles to the claimant. However, if there are competing claimants to the ten double eagles (in this case the Langbords on the one hand and the government [while wearing it's "We own the double eagles hat"] on the other hand), the government states that the applicable law gives the court the authority to and in fact obligates the court to decide which of the competing claimants to the ten double eagles wins and which loses (More on this point below).
Fourth, the government states that its "Claim" to the ten double eagles is presented, along with its proposed three additional claims for replevin and declaratory relief, to give it mutliple legal bases upon which to assert that it (even if it fails to prove that the ten double eagles should be forfeited) is the owner of and the Langbords are not the owner. If the government wins its forfeiture proceeding, it will withdraw its "Claim". If it loses the forfeiture proceeding it will still assert ownership through its "Claim". If the court allows the government to add the three additional claims for replevin and declaratory relief into this case, it may consider withdrawing its "Claim" in response to the forfeiture proceeding. If the court does not allow it to add the three additional claims for replevin and declaratory relief, it will not withdraw its "Claim" in response to the forfeiture proceeding.
The government is being very creative and dogged in posturing this case in light of the 7-28-2009 ruling against it and in favor of the Langbords. The government is not willing to simply roll over on the case and voluntarily limit its scope to a single forfeiture proceeding where it seeks to forfeit the ten double eagles and the Langbords assert a single "Claim" to same.
Unless and until the district court judge issues rulings on the pending motions that limit the scope of the case to a single forfeiture proceeding, the government will keep on pushing for a more expansive case. Even if the district court rules against the government again, such rulings will simply give the government additional legal issues upon which to base an appeal if the government loses at the district court level.
Notwithstanding the government's posturing described above, I have a conceptual problem with what the government is asserting through its "Claim" in response to the forfeiture proceeding. Under CAFRA the government, to win the forfeiture proceeding, must prove that the ten double eagles left the mint illegally (aka they were stolen). Let's say that the government is unable to prove this. Thus the double eagles are not forfeited to the government. However, both the government and the Langbords have filed "Claims" to ownership of the ten double eagles (assuming the district court allows the goverment's "Claim" to stand). If (as the government states in the papers it filed yesterday) the court can and should determine which Claim to the ten double eagles wins and which loses, certain questions arise which are difficult to fully answer, to wit:
1. What is the basis of the government's "Claim" to the ten specific double eagles (is it not that these ten double eagles left the mint illegally [aka were stolen from the mint]; and did not the government fail in proving this in its attempt to have them forfeited)?;
2. What is the basis of the Langbords' "Claim" to the ten specific double eagles (is it not simply the fact that in 2004 they were found in a safe deposit box belonging to the Langbord family, aka the Langbords have "possession" of them [possession being 9/10ths of the law]?;
3. If, after losing its attempt to forfeit the ten double eagles the court is required to determine which "Claim" wins and which one loses, how is this to be determined? Does it all take place in one trial, or is the trial split into two phases [Phase 1 being the forfeiture issue and if the government loses Phase 1, then Phase 2 being about which "Claim" wins and which loses]. If one trial takes place, does the burden of proof lie with the government for the entire trial? If the trial is broken into two Phases, does the burden of proof shift from the government to the Langbords in Phase 2? (If so, why?; and if so, why does the government lose Phase 1 if it does not prove its case yet win Phase 2 with the same evidence, or lack of evidence) If the case is heard by a jury, does the same jury hear both Phase 1 and Phase 2? Or are there two juries?; and
4. What logical sense would there be if in a Phase 1 trial the government failed to prove its case (it can not prove that the ten double eagles illegally left the mint (aka were stolen); and if in a Phase 2 trial, with the Langbords having the burden of proof, they fail to meet their burden to prove that the ten double eagles left the mint legally (aka prove that they were not stolen) resulting in the government winning ownership of the ten double eagles?
The above makes my head spin; yet when the spinning stops its leaves me back at the same place I was at back in early 2007 when I first posted about this case.
Specifically, the loser of this case (at least at the district court level) will be the side upon which the district court assigns the burden of proof and the winner will be the side upon which the district court does not assign the burden of proof.
Pretrial rulings that determine the exact scope of the case that goes to trial; and once the scope of the case is set, pretrial rulings that determine who has the burden of proof are yet to be issued. Absent settlement they will be issued and the case will finally proceed to towards a trial.
This case is really an interesting study in litigation strategy and tactics, all designed to advance the goal of both sides to the dispute of avoiding having the district court place the burden of proof on them. The government lost the 7-28-2009 ruling on the summary judgments, but it is not rolling over and caving in. It is still fighting tooth and nail to posture this case in a manner where even if it fails to prove the ten double eagles should be forfeited, such a loss on its part will not result in an automatic win for the Langbords. It still wants the Langbords to be forced to prove that they lawfully own the double eagles for reasons more than mere "possession".
I expect that the Langbords will file papers in reply to the government's 12-2-2009 opposition papers and that once the reply papers are filed the court will be in a position to rule on all of the pending motions.
I wonder what the judge will do?
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Comments
I cannot believe that the time for motions has not been reached, so that the court can rule.
This dispute could be papered to death.
I am sure that at least one person will have died that was interested in this before it ever gets resolved. I hope that it isn't me.
Many thanx for your posts!!
I firmly believe in numismatics as the world's greatest hobby, but recognize that this is a luxury and without collectors, we can all spend/melt our collections/inventories.
eBaystore
I just looked at the OP. Did not realize it is so long winded.
Maybe I should charge by the word
<< <i>I think the legal bills on this case are going to be higher than the value of the coins. >>
That's why you can't fight City Hall.....they can just keep on spending OUR MONEY until they win.......
TD
<< <i>
<< <i>I think the legal bills on this case are going to be higher than the value of the coins. >>
That's why you can't fight City Hall.....they can just keep on spending OUR MONEY until they win.......
TD >>
Actually, there are people who can. When I was working on my Ph.D. years ago at UCSB, Santa Barbara was one of only 2 communities (the other being San Francisco) that Highway 101 passed through that Highway 101 was NOT (per se) a Highway. It was in essence a glorified city street with stop lights on it. One woman kept suing the Govt. (I believe starting in the '50's or early '60's) to tie up any plans for developing the highway to become a fully fledged Highway with entrance/exit ramps etc. She didn't like how Highways destroyed neighborhoods and changed the ambiance of a town. After holding it up for about 10 years the Govt. lawyers approached her and said that they were never going to give up attempting to transform the highway and that all she would accomplish was to waste a lot of money. Her answer to them was, "I have a lot of money to waste... and you will never build that highway in my lifetime". She was of course correct, the highway was only transformed into a Highway in the early '90's, several years after she had died.
U.S. Type Set
Well I guess that means if the Govt takes over a bank they could make everyone that wants the contents of their safe deposit box prove that the items in it belong to them?
"What is the basis of the government's "Claim" to the ten specific double eagles (is it not that these ten double eagles left the mint illegally [aka were stolen from the mint]; and did not the government fail in proving this in its attempt to have them forfeited)?"
If the government loses on its forfeiture claim, it would do lose because it couldn't show the coins were stolen. If it can't show that, then it's not a competing claimant (because there is no other conceivable basis for its claim to ownership), and its second claim will almost certainly fail as well.
The government may be litigating aggressively, but that doesn't mean it's likely to win the case. If anything, it's likely to P.O. the judge.
Thank you for being dedicated enough to keep us informed on the back and forth posturing in this particular court.
I have a feeling that neither side will accept the decision and ask for an appeal to a higher court.
This case is 55 years old already, and I for one would like to see it come to an end.
Go Langbord attorney's!
<< <i> Her answer to them was, "I have a lot of money to waste... and you will never build that highway in my lifetime". She was of course correct, the highway was only transformed into a Highway in the early '90's, several years after she had died. >>
did gub'ment put a 'hit" on her?
This is the longest joke I ever read.
``https://ebay.us/m/KxolR5
Mercury
edited to add... Thanks for the update......................again
Thanks so much for the update, I really do look forward to these. Sounds like the case isn't going the government's way from what I am reading. Which is nice to see.
<< <i>You are welcome folks.
I just looked at the OP. Did not realize it is so long winded.
Maybe I should charge by the word
I understood about two paragraphs. That's how you'se guys keep your billing hours up.
I think the Langbords better sell SOMETHING now because theor bill is gonna be as much as one of these coins is hypotheticall worth IF they win. They won't. I still believe the government will keep these coins.
I started my career as a policy analyst for the US Civil Service Commission in Washington, DC, (now called the Office of Personnel Management), and you have reminded me of why, at the time, I concluded that the phrase "legal logic" is in fact an oxymoron.
"Question your assumptions."
"Intelligence is an evolutionary adaptation."
<< <i>I still believe the government will keep these coins. >>
It is sad because this will prevent other coins from appearing - the owners will not want them to be stolen from them. Of course on the other hand the Langbords should have known better.
Do you think they were smart enought to keep some back for themselves? I.e. give up 10 and keep 10 stashed away?
<< <i>
<< <i>
<< <i>I think the legal bills on this case are going to be higher than the value of the coins. >>
That's why you can't fight City Hall.....they can just keep on spending OUR MONEY until they win.......
TD >>
Actually, there are people who can. When I was working on my Ph.D. years ago at UCSB, Santa Barbara was one of only 2 communities (the other being San Francisco) that Highway 101 passed through that Highway 101 was NOT (per se) a Highway. It was in essence a glorified city street with stop lights on it. One woman kept suing the Govt. (I believe starting in the '50's or early '60's) to tie up any plans for developing the highway to become a fully fledged Highway with entrance/exit ramps etc. She didn't like how Highways destroyed neighborhoods and changed the ambiance of a town. After holding it up for about 10 years the Govt. lawyers approached her and said that they were never going to give up attempting to transform the highway and that all she would accomplish was to waste a lot of money. Her answer to them was, "I have a lot of money to waste... and you will never build that highway in my lifetime". She was of course correct, the highway was only transformed into a Highway in the early '90's, several years after she had died. >>
I lived near Lompoc in the late 70s and remember 101 going through Santa Barbara with stoplights. Did they just plow the freeway through, or did they build a by-pass?
<< <i>
<< <i>I still believe the government will keep these coins. >>
It is sad because this will prevent other coins from appearing - the owners will not want them to be stolen from them. Of course on the other hand the Langbords should have known better.
Do you think they were smart enought to keep some back for themselves? I.e. give up 10 and keep 10 stashed away? >>
No chance. Stupidity in this case was PURE.
I am certain the Langbord's were advised by their attorney before they initially announced the coins and "gave" them to the mint. Do you think that their attorney has been surprised by how the suit is evolving or is it your read that he expected something similar to the government's strategy?
Also, a HUGE THANKS for your posts!
I suspect that the Langbord's attorney is not at all surprised at how hard fought the lawsuit has been. Their attorney represented Mr. Fenton in the government's forfeiture lawsuit filed in 1996 against the Fenton 1933 double eagle. That case settled in January, 2001, days before trial.