U.S. v. One 18th Century Colombian Monstrance, 85-2643
| Decision Date | 27 August 1986 |
| Docket Number | No. 85-2643,85-2643 |
| Citation | 797 F.2d 1370 |
| Parties | 1 UCC Rep.Serv.2d 1492 UNITED STATES of America, Plaintiff-Appellee, v. ONE 18TH CENTURY COLOMBIAN MONSTRANCE Known as the Keeper of the Host of Santa Clara, 11.3 Troy Pounds of Gold with Approximately 1,500 Precious and Semi- Precious Stones and Pearls, Defendant, James W. Newton, Claimant-Appellant. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Seagal V. Wheatley, Oppenheimer, Rosenberg, Kelleher & Wheatley, Leo O. Bacher, Jr., San Antonio, Tex., for James W. Newton.
James F. Fitzpatrick, Arnold & Porter, Edward L. Wolf, Washington, D.C., for amicus curiae-American Ass'n of Dealers in Ancient, Oriental and Primitive Art.
Pamela Ann Mathy, Asst. U.S. Atty., Helen M. Eversberg, U.S. Atty., John F. Paniszczyn, Asst. U.S. Atty., San Antonio, Tex., for U.S.
Robert E. Goodfriend, Dallas, Tex., William T. McCue, New York City, A. Lauren Carpenter, Dallas, Tex., Donald R. Taylor, San Antonio, Tex., for Republic of Columbia.
Appeal from the United States District Court for the Western District of Texas.
Before RUBIN, POLITZ, and JOHNSON, Circuit Judges.
The United States seeks to forfeit property allegedly imported fraudulently by a person who has since become a fugitive from justice. The property was left in the possession of a dealer under a contract giving the dealer the right to sell the property and to retain it until the dealer had been repaid a sum deposited with the owner for that right. The issue in this case is whether the dealer has standing to contest the forfeiture. Because we find that, under the law of Texas, the state in which the contract was made and the property is situated, the dealer is neither the legal nor equitable owner of the property and because the dealer has alleged no other property interest, we affirm the judgment of the district court dismissing his claim and forfeiting the property to the United States.
A long time ago, in the eighteenth century, Don Nicolas de Burgos, a master goldsmith and jeweler to the Royal Court of Spain, traveled to Colombia where, from gold and jewels given by the devout, he made a Monstrance to be used during Mass to display the host for the religious Convent of the Sisters of Santa Clara in Tunja, Colombia. His holy work stands three feet high and is made of 11.3 troy pounds of gold (melted from 813 gold coins) and 1,500 jewels, including emeralds, pearls, amethysts, diamonds, topaz, and rubies. Its value, fixed by at least one appraisal at $3 million, is enhanced by the fact that the Sisters of Santa Clara and Don Nicholas maintained detailed records recounting how the work was commissioned, the donations collected, and the piece manufactured during the two-year period of its construction.
The Monstrance remained in the possession of the Sisters of Santa Clara for more than 200 years until, in 1978, the Sisters were forced to seek permission from their Archbishop to sell the Monstrance in order to obtain money to repair the roof of the Convent. After the Archbishop authorized the sale, the Sisters offered the Monstrance to the Colombian National Gold Museum in Bogota. Their offer was declined, however, because that museum collects only pre-Columbian Indian art.
What happened thereafter is disputed. The parties to the dispute are Newton, a San Antonio art dealer who claims an interest in the Monstrance, and the governments of the Republic of Colombia and the United States. The two governments contend that, in October, 1978, the nuns sold the Monstrance to Carlos Manzur Aulestia, a Colombian antique dealer, for $31,250 on the condition that the treasure remain in a Colombian museum. Newton contends that Manzur did not buy the Monstrance from the nuns but was retained only to act as their agent for its sale. All parties agree, however, that in 1980, Manzur, acting either for himself or on behalf of the Sisters, offered the Monstrance to Colombia's Gold Museum in Bogota a second time, but the museum again declined to buy it. The two governments contend that thereafter, in 1981, Manzur, acting as owner, sold the Monstrance to Mr. and Mrs. Joseph Atia for $47,125 and that the Atias resold it to Edward Uhart for $110,000 even before it was delivered to them. Manzur was, therefore, asked to deliver the Monstrance to Uhart directly.
Newton contends that the Sisters had not sold the treasure either to Manzur or to the Atias but that they sold it directly to Uhart. Because Newton has not been heard on the merits, we take his version of events, although it appears to be immaterial how Uhart came to be in possession, and to claim ownership, of the Monstrance, for all agree that eventually he did buy it and, without obtaining the export permit required by Colombian law, flew with it to New York City in February 1981.
When Uhart arrived in New York, a customs broker acting on his behalf filed a Consumption Entry Packet with the United States Customs Service. The packet, which contained a "bill of sale" from Manzur to Uhart and a certification made by the Sisters of Santa Clara, represented that:
1. The bill of sale was authentic;
2. The bill of sale was a commercial invoice;
3. The information contained in the bill of sale (the date of the sale, the price, and the names of the seller and the buyer) was true and correct and represented an actual transaction;
4. The information contained in the "certification" of the Sisters of Santa Clara (the date of the sale, the names of the seller and buyer, the presentation to and refusal of purchase by Museum of Gold) was true and correct and represented an actual transaction;
5. The article had been exported from Spain and that the port of lading was Bogota, Spain (rather than Bogota, Colombia); and
6. The article being imported was a "chalice used in religious ceremonies."
Contending that these representations were fraudulent and misleading the United States later filed this forfeiture proceeding.
About one month after he arrived in New York, Uhart telephoned Newton, described the Monstrance, and offered to take it to San Antonio so that Newton might seek a buyer. At first Newton was not interested, but he eventually agreed to locate potential buyers. Newton, in turn, described the Monstrance to several prominent San Antonio art patrons and suggested that they buy the piece and donate it to the San Antonio Art Museum. Uhart then came to San Antonio and showed the Monstrance to prospective buyers, but no sale agreement was reached at that time.
Shortly thereafter, Uhart left San Antonio with the Monstrance and showed it to collectors in other U.S. cities. Unable to find a buyer, Uhart returned to San Antonio in the summer of 1982 and made a deal with Newton on October 29, 1982. That contract was commemorated in a writing prepared by Newton. The agreement recited that, in exchange for a "confidence deposit" of $200,000 paid to Uhart by Newton or his financial backers, Uhart would place the Monstrance in a San Antonio bank vault and Newton would be given one year within which to sell the Monstrance in Uhart's behalf for $1 million. For successfully completing the sale, Newhart would be paid "twenty percent of sale price with balance to be paid to Edward Uhart." If, at the end of one year, no sale had been made, the Monstrance was to be returned to Uhart in exchange for the return of the $200,000 deposit. If Uhart failed to return the deposit within 60 days after the end of the year, "the Monstrance (was to) become the property of the parties originally extending the two hundred thousand dollars." The agreement also required Uhart to produce "all original documents pertaining to the Monstrance, including those showing proof of purchase, and the legal export import into this country." In compliance with this provision, Uhart produced documentation facially appearing to satisfy these demands.
Newton hoped to obtain the $200,000 security deposit from a new group of prospective buyers, the Guthrie Group, who intended to donate the Monstrance to the San Antonio Art Museum. Due to anticipated unfavorable changes in the tax laws, however, that group abandoned its plans, leaving Newton without a prospective buyer. Newton then decided to pay up the $200,000 security deposit himself and, with the aid of guarantees from three associates, borrowed the required amount and delivered the deposit to Uhart.
On December 16, 1982, Uhart and Newton signed a "contract agreement extension," which reiterated Newton's "exclusive right to sell or place" the Monstrance. The extension agreement referred expressly to the October 29, 1982, agreement, and gave Newton the right to extend that contract for an additional year if he paid--at an unspecified time--an additional $150,000 "confidence deposit."
In mid-November, 1982, Newton showed the Monstrance to Dr. Nancy L. Kelker, Curator of Pre-Columbian and Spanish Colonial Art at the San Antonio Museum of Art, and assured her that Colombian Customs had approved the export of the Monstrance. He also advised her that, although the export requirements were "all taken care of," she should not make any inquiries on Colombia regarding the piece and should avoid giving it widespread publicity. This warning aroused Kelker's concern about the legality of the export of the Monstrance, so she made inquiries about the work both to George Syage, the Customs broker who had handled the import of the Monstrance into the United States, and to Colombia. Syage told her that the United States Customs office had no copies of any Colombian export documents. The Colombian Museum of Gold later told her that the Monstrance was taken out of Colombia clandestinely. Her concerns thus reinforced, she reported her findings to the United States Customs Service.
Acting on Kelker's report, U.S. Customs agents met Newton at the San Antonio Museum of Art, posing as potential...
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