Porter v. United States

• Citation: 473 F.2d 1329
• Decision Date: 12 March 1973
• Docket Number: No. 72-1426.,72-1426.
• Court: U.S. Court of Appeals — Fifth Circuit
• Parties: Marina N. Oswald PORTER, Individually, etc., et al., Plaintiffs-Appellants, v. UNITED STATES of America, Defendant-Appellee.

473 F.2d 1329 (1973)

Marina N. Oswald PORTER, Individually, etc., et al., Plaintiffs-Appellants, v. UNITED STATES of America, Defendant-Appellee.

No. 72-1426.

United States Court of Appeals, Fifth Circuit.

February 26, 1973.

Rehearing Denied March 12, 1973.

COPYRIGHT MATERIAL OMITTED

Erich F. Klein, Jr., Dallas, Tex., for plaintiffs-appellants.

Eldon B. Mahon, U. S. Atty., Fort Worth, Tex., Kenneth J. Mighell, Asst. U. S. Atty., Dallas, Tex., Irwin Goldbloom, Gen. Litigation Section, Morton Hollander, Civ. Div., Dept. of Justice, Washington, D. C., for defendant-appellee.

Before TUTTLE, WISDOM and SIMPSON, Circuit Judges.

TUTTLE, Circuit Judge:

This action was brought by Marina Oswald Porter, widow of Lee Harvey Oswald, to recover just compensation for certain of Oswald's personal effects taken by the United States pursuant to a special act of Congress. The district court, 335 F.Supp. 498, concluded that the compensation to which Mrs. Porter was entitled was the sum of $3000, which amount represents the stipulated market value of property similar in kind to the items involved in this proceeding. Judgment was entered accordingly and Mrs. Porter appeals. We reverse.

Stated in chronological order, these are the pertinent facts: Following the assassination of President John F. Kennedy on November 22, 1963, government agents seized, for investigatory purposes, certain items of personal property belonging to Lee Harvey Oswald, who was suspected of having shot the president.¹ The property thus seized consisted mainly of Oswald's personal effects such as personal letters, a diary, family photographs, a marriage license, the contents of his wallet, and the like. This property was apparently in relatively good condition when seized, but during the course of investigation, some of the items were stained, discolored, or otherwise damaged as a result of chemical treatment and analysis by the Federal Bureau of Investigation (hereinafter FBI).

Subsequently, on September 24, 1964, the Warren Commission, which had been appointed for the purpose of conducting a plenary investigation into the assassination, submitted to President Lyndon Johnson its conclusions and final report, which thereafter was released to the public. The report concluded that Oswald, who by then was himself dead from an assassin's bullet, had killed the president. It contained copies of many of Oswald's writings which had been seized by the FBI immediately after the assassination.

Following submission of the report, Congress determined that it would be advisable to preserve certain of the items of evidence which the Warren Commission had considered. To that end Public Law 89-318² was enacted on November 2, 1965. It provides:

". . . It is hereby declared that the national interest requires that the United States acquire all right, title, and interest, in and to, certain items of evidence, to be designated by the Attorney General pursuant to section 2 of this Act, which were considered by the President\'s Commission on the Assassination of President Kennedy (hereinafter referred to as `items\'), and requires that those items be preserved by the United States.

"Sec. 2. (a) The Attorney General is authorized to determine, from time to time, which items should, in conformity with the declaration contained in the first section of this Act, be acquired and preserved by the United States. Each such determination shall be published in the Federal Register.

"(b) Whenever the Attorney General determines that an item should be acquired and preserved by the United States, all right, title, and interest in and to, that item shall be vested in the United States upon the publication of that determination in the Federal Register.

* * * * * *

"Sec. 3. The United States Court of Claims or the United States district court for the judicial district wherein the claimant resides shall have jurisdiction, without regard to the amount in controversy, to hear, determine, and render judgment upon any claim for just compensation for any item or interest therein acquired by the United States pursuant to section 2 of this Act; and where such claim is filed in the district court the claimant may request a trial by jury: Provided, That the claim is filed within one year from the date of publication in the Federal Register of the determination by the Attorney General with respect to such items."

On November 1, 1966, in accordance with the procedures set forth in Section 2 of the Act, the United States took the steps prescribed to acquire title to the items of Oswald's personal property which are the subject of this appeal. This action was brought under Section 3 of the Act by Oswald's widow in the District Court for the Northern District of Texas to recover "just compensation," as provided in the Act, for the items taken.

In pre-trial proceedings the parties stipulated that the market value of items of personal property similar in kind to the items involved here would have a value of $3000. The court, however, denied the government's motion to limit the claimant's recovery to that amount, and appointed a Special Master, pursuant to Rule 53 F.R.Civ.P., for the purpose of hearing evidence and making findings as to the value of the property. Upon hearing, each party offered the testimony of an expert witness concerning such value. Although their valuations differed to a considerable extent, both agreed that there existed what might be called a "collector's" market for the property created by the public's belief that Oswald had assassinated President Kennedy.³ Thereafter, the Special Master adjourned the hearing and requested instructions from the court with regard to the date at which the property should be valued.

The court, in turn, ordered 1) that the subject property be valued in its condition as of November 1, 1966 (the date upon which the list of items to be acquired by the United States was published in the Federal Register); 2) that the date of "taking" was November 1, 1966; 3) that any change in the property's condition between the time of its seizure in November, 1963 and November, 1, 1966 did not constitute a compensable "taking"; and 4) that the items were, therefore, to be valued in their damaged and published condition. Following a further hearing and in accordance with these instructions the Special Master concluded that the property, as of November 1, 1966, was worth $17,729.37.

Thereupon the government renewed its motion to limit plaintiff's recovery to $3000, and the court this time granted the motion and entered judgment accordingly. Mrs. Porter appeals from that determination.

She contends that it was error for the court to award compensation without regard to the souvenir or collector's value of the items taken and, further, that in order properly to compensate her for her loss, the property should have been valued in its undamaged and unpublished condition as of the time of its seizure by agents of the FBI in 1963.

We consider first whether, under the peculiar circumstances of this case, the collector's value of what can only be considered as entirely common-place items of personal property ought to be the measure of compensation to which the claimant is entitled. In this respect the evidence is clear that but for the enhancement in value attributable solely to public demand created by virtue of association in the public mind with the assassination of President Kennedy, the items in question would be practically worthless.⁴ We are nonetheless of the view that, under established concepts of "just compensation," Oswald's widow should be compensated for precisely that which was taken, in this instance, items of personal property having an historical significance and, therefore, a realizable value quite apart from intrinsic value.

Though the measure of just compensation has never, and rightfully so, been reduced to a formula, United States v. Cors, 337 U.S. 325, 69 S.Ct. 1086, 93 L.Ed. 1392 (1948), it is fair to say that the most frequently-applied standard is that of "fair market value," assuming, of course, that a viable market exists. See, e. g., United States v. Miller, 317 U.S. 369, 374, 63 S.Ct. 276, 87 L.Ed. 336 (1942). Otherwise put, just compensation means the full monetary equivalent of the property taken, United States v. Reynolds, 397 U.S. 14, 90 S.Ct. 803, 25 L.Ed.2d 12 (1970), or indemnity, measured in money, for the owner's loss. United States v. Certain Property in Borough of Manhattan, etc. . . . , 403 F.2d 800 (CA 2, 1968). Significantly, the test is invariably applied with specific regard to the value of what the owner has lost, rather than the value of what the taker has gained. Thus, it is said that the owner is entitled to be put in as good a position pecuniarily as if his property had not been taken. E. g., United States v. Virginia Electric Co., 365 U.S. 624, 633, 81 S.Ct. 784, 5 L.Ed.2d 838 (1960).

Applying these general rules to the facts of the case before us, United States v. Lee, 360 F.2d 449 (CA 5, 1966), we note that were it not for the government's exercise of its powers of eminent domain here, Oswald's widow would have been able to realize, through sales to the public, the collector's value of the items in question. It is particularly significant, we think that both expert witnesses at the proceedings in the district court testified that there was a viable market, albeit a collector's market, for the items for which Mrs. Porter here seeks compensation. This market, an unfortunate byproduct of the assassination of President Kennedy, existed independently of the government's need of the property for investigatory purposes, and thus it is apparent that, even absent governmental intervention, Oswald's personal effects would have had a very real value, in excess of their intrinsic value, which might have been realized by his widow, the owner thereof. Therefore, in order to put her in the same position monetarily as she...