Boggs v. Rubin

• Citation: 161 F.3d 37
• Decision Date: 03 February 1999
• Docket Number: No. 97-5313,97-5313
• Parties: J.S.G. BOGGS, Appellant, v. Robert E. RUBIN, Secretary of the Treasury, et al., Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (District of Columbia)

Page 37

161 F.3d 37

333 U.S.App.D.C. 138

J.S.G. BOGGS, Appellant, v. Robert E. RUBIN, Secretary of the Treasury, et al., Appellees.

No. 97-5313.

United States Court of Appeals District of Columbia Circuit.

Argued Sept. 8, 1998.

Decided Nov. 6, 1998.

Rehearing and Suggestion for Rehearing En Banc Denied Feb. 3, 1999. ^*

Kent A. Yalowitz argued the cause for appellant. With him on the briefs were Dennis G. Lyons and Stephen Sacks. Philip W. Horton entered an appearance.

Scott S. Harris, Assistant U.S. Attorney, argued the cause for appellees. With him on the brief were Wilma A. Lewis, U.S. Attorney, and R. Craig Lawrence, Assistant U.S. Attorney.

Before: GINSBURG, SENTELLE and ROGERS, Circuit Judges.

Opinion for the Court filed by Circuit Judge SENTELLE.

Separate opinion, concurring in part and dissenting in part, filed by Circuit Judge ROGERS.

SENTELLE, Circuit Judge:

Appellant J.S.G. Boggs, who describes himself as an internationally-recognized artist, creates images of currency which he uses in transactions designed to explore the meaning and value of money. He appeals from a district court grant of summary judgment ruling that his reproductions of United States currency violate federal counterfeiting statutes, making them contraband per se and forfeit as a result. Boggs raises three claims of error before this court. First, he argues that his "Boggs Bills" are protected by the First Amendment, and that this case is controlled by the line of cases creating increased preseizure procedural safeguards for expressive materials. Because those safeguards were not observed, he argues, it was improper for the district court to reach a judgment on the merits. Second, he argues that the district court erred by conducting an in camera, ex parte examination of his work when ruling on cross-motions for summary judgment. Finally, he contends that the court below applied the wrong standard in determining that the bills are counterfeit. Boggs argues that these errors require us to order the government to return his artwork, or grant him an adversarial hearing in open court. We disagree. The district court correctly stated and, so far as we can tell from the record before us, correctly applied the appropriate standards in this case. We affirm for the reasons stated below.

I. Background

The extensive factual background has been discussed in detail in Boggs v. Bowron, 842 F.Supp. 542, 544-46 (D.D.C.1993), aff'd, 67 F.3d 972 (D.C.Cir.1995) (unpublished table decision), and Boggs v. Merletti, 987 F.Supp. 1, 3-6 (D.D.C.1997), and we need not reiterate it here. We supply only the detail necessary to explain our decision. Art is supposed to imitate life, but when the subject matter is money, if it imitates life too closely it becomes counterfeiting. Boggs creates trompe l'oeil (so lifelike as to fool the eye) images of U.S. currency with alterations such as substituted names or pictures, or non-existent denominations, but generally with the same size, shape, layout and color as legal tender. Boggs then barters his drawings in return for goods and services. He has spent thousands of his pictures as currency since he began this project. No one contends that Boggs intends to defraud his customers. Boggs explains to the people receiving his bills that he is an artist and that the bills are not real cash. He then engages them in a discussion on the value of money and the social and political institutions that underlie the system of exchange. But the transactions do not end there. Boggs's ultimate customers come to him to purchase the entire transaction. Boggs gives them a receipt for the goods he purchased, the change he received, and the name of the person who accepted his "Boggs Bills" as payment. The buyer goes to the holder of the Boggs Bill and negotiates a purchase price. Boggs then works with the buyer, putting together a display including the art work, the receipt and the change.

Because of the nature of his work, Boggs has drawn the attention of the counterfeiting investigators of the Secret Service on many occasions, although he has never been criminally prosecuted. This case arose because in two separate events, in Cheyenne, Wyoming, in 1991 and Pittsburgh, Pennsylvania, in 1993, Secret Service agents seized Boggs's artwork as contraband counterfeit bills violating the requirements of 18 U.S.C. § 474.

In Cheyenne, Secret Service agents were told that Boggs had tried to buy goods at a local Kmart, explaining that he wanted to get face value for a $100 Boggs Bill. A Secret Service agent and the U.S. Attorney for the District of Wyoming visited his hotel room without a warrant and, after what Boggs characterized as tense negotiations conducted under the threat of arrest, fifteen Boggs Bills were taken from his hotel room. Boggs was never criminally prosecuted.

In Pittsburgh, Boggs planned to proceed on a much grander scale. He conceived and publicized "Project Pittsburgh," his plan to spend $1 million in Boggs Bills in the Pittsburgh area, asking each recipient to pass the bill 5 times before taking it out of circulation. In November 1992, officials from the United States Attorney's office and the Secret Service met and discussed Boggs's plans. The group decided that Boggs could not be allowed to distribute $1 million in Boggs Bills. Secret Service agents acting pursuant to warrants seized more than 1,300 items from Boggs's home and studio.

Boggs requested the return of all of his property, exhausted his administrative remedies and began this action.

II. Proceedings in the District Court

Boggs filed an action in the district court on September 3, 1993, seeking an injunction against prosecution and the return of the Boggs Bills seized in Cheyenne and Pittsburgh. On December 9, 1993, the district court denied the preliminary injunction and refused to enjoin future prosecution. See Bowron, 842 F.Supp. at 562-63. The district court also ruled that 18 U.S.C. §§ 474 and 504 are constitutional on their face and as applied. Boggs filed an interlocutory appeal with this court on the First Amendment issue, seeking a ruling that the First Amendment prevented the counterfeiting sections from applying to his work. In October, 1995, on interlocutory appeal we upheld the district court's decision that the statute was constitutional. We affirmed the district court's denial of injunctive relief and remanded. See Boggs v. Bowron, 67 F.3d 972 (D.C.Cir.1995) (unpublished table decision).

Following remand, both parties made cross-motions for summary judgment. Boggs argued that the warrantless seizure in Cheyenne and the seizure without a prior hearing in Pittsburgh violated heightened First Amendment procedural guarantees for presumptively expressive materials, and that the appropriate remedy was return of the seized goods. Boggs also argued that the heightened standards previously applied in obscenity cases, including the right to a pre-seizure adversarial hearing, should have been applied in this case. The government argued that the First Amendment's heightened standards do not apply, and that a judicial hearing is not constitutionally required after the seizure of counterfeit currency. The government also argued that it could not be required to return the Boggs Bills because they are contraband prohibited by 18 U.S.C. §§ 474 and 481.

Boggs moved for a hearing in open court to determine if the bills were contraband per se and was denied one by the district court. On October 23, 1997, the district court inspected in camera all of the Boggs Bills seized in Pittsburgh. The court agreed with the Secret Service that certain bills were contraband within the meaning of sections 474 and 481 of the criminal code, and that they could not be returned to Boggs. The district court therefore granted the government's motion for summary judgment and dismissed the case with prejudice.

III. Analysis

A. Contraband per se

We need not determine whether the Cheyenne seizure was legal under the Fourth Amendment because Boggs does not challenge the premise that if the seized bills violate the likeness or similitude standards in 18 U.S.C. § 474, they are contraband per se and cannot be returned. Contraband per se comprises objects which are inherently unlawful to possess, regardless of how they are used. As we explain below, the Boggs Bills in this case fall within that category. The district court properly noted that "[i]ndividuals have no property right in contraband materials and contraband materials may not be returned to them." Merletti, 987 F.Supp. at 10. This Circuit addressed the issue in United States v. Farrell, 606 F.2d 1341, 1344 (D.C.Cir.1979):

Decisional law recognizes two kinds of contraband. Traditional or per se contraband is defined as "objects the possession of which, without more, constitutes a crime." One 1958 Plymouth Sedan v. Pennsylvania, 380 U.S. 693, 699, 85 S.Ct. 1246, 1250, 14 L.Ed.2d 170 (1965). It is well established that a claimant has no right "to have [per se contraband] returned to him." United States v. Jeffers, 342 U.S. 48, 54, 72 S.Ct. 93, 96, 96 L.Ed. 59 (1951); Trupiano v. United States, 334 U.S. 699, 710, 68 S.Ct. 1229, 92 L.Ed. 1663 (1948).

We now turn to whether the District Court correctly found that the Boggs Bills were contraband per se.

B. First Amendment Considerations

The main thrust of Boggs's argument is not that the district court erred in its determination that the Boggs Bills violate the statutory requirements, but rather that the district court erred in looking at the bills at all. Boggs argues that special procedures established by the Supreme Court under the First Amendment protecting books and films in obscenity cases apply with equal force to his artwork. The Supreme Court has indeed held law enforcement officers to a higher standard when presumptively expressive materials are involved because of the risk of prior restraint and censorship. See, e.g., Fort Wayne Books, Inc. v. Indiana, ...