U.S. v. One Tintoretto Painting Entitled the Holy Family with Saint Catherine and Honored Donor

• Decision Date: 15 October 1982
• Docket Number: No. 1268,D,1268
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. ONE TINTORETTO PAINTING ENTITLED "THE HOLY FAMILY WITH SAINT CATHERINE AND HONORED DONOR," Defendant in Rem. Isaac Silberberg, Claimant-Appellant. ocket 82-6021.
• Court: U.S. Court of Appeals — Second Circuit

Page 603

691 F.2d 603

UNITED STATES of America, Plaintiff-Appellee, v. ONE TINTORETTO PAINTING ENTITLED "THE HOLY FAMILY WITH SAINT CATHERINE AND HONORED DONOR," Defendant in Rem Isaac Silberberg, Claimant-Appellant.

No. 1268, Docket 82-6021.

United States Court of Appeals Second Circuit.

Argued June 10, 1982.

Decided Oct. 15, 1982.

Susan Millington Campbell, Asst. U. S. Atty., New York City (John S. Martin, Jr., U. S. Atty., S.D.N.Y., Peter C. Salerno, Asst. U. S. Atty., New York City, of counsel), for plaintiff-appellee.

Allen Jay Bodner, New York City, for claimant-appellant.

Before FEINBERG, Chief Judge, CARDAMONE, Circuit Judge and SAND, District Judge. ^*

CARDAMONE, Circuit Judge:

We are called upon to decide a forfeiture case commenced by the United States of America against a painting entitled "The Holy Family with Saint Catherine and Honored Donor," as defendant in rem. Two hundred years or so before the plaintiff United States came into being, the defendant in rem was painted by the tempestuous Italian Renaissance painter Tintoretto. ¹ Claiming that this valuable masterpiece was smuggled into the United States, the government instituted the instant forfeiture proceeding as a civil action in rem for failure to pay customs duties. Initiated by seizure of the painting, the action was instituted under the provisions of 18 U.S.C. § 545 and the Tariff Act of 1930, 19 U.S.C. § 1592 (the latter claim was later dropped). The government sought to enforce the forfeiture in a proceeding which afforded the owner an opportunity to appear and be heard.

Once the painting was seized and a notice of attachment published, Issac Silberberg (claimant) asserted ownership of the Tintoretto painting and filed a verified answer. The government then moved pursuant to Rule 56 of the Federal Rules of Civil Procedure for summary judgment based upon the affidavits and statements filed. Relying on Calero-Toledo v. Pearson Yacht Leasing Co., 416 U.S. 663 (1974), Judge Morris E. Lasker, United States District Court Judge for the Southern District of New York, granted the motion. 527 F.Supp. 1071. We believe, however, that the claimant raised a genuine issue of fact regarding the purported forfeiture which precludes summary judgment and entitles claimant to his day in court.

Claimant Silberberg, an Israeli national, stated that he purchased the painting without being aware of its authorship in a second-hand shop in Moscow in 1948 after his discharge from duty as an officer in the Soviet Army. Suspecting that the painting was valuable, he paid the equivalent of $20,000 in rubles. Upon moving to Vienna in 1975 and then to Tel Aviv in 1978, he openly displayed the painting in his home. ² After owning the picture for over 30 years, Silberberg decided to sell it in 1979 due to financial needs. Finding there was no market in Israel, he entrusted the painting to Raymond Vinokur, a long-term social and business acquaintance. Vinokur dealt in objets d'art and told Silberberg that he was knowledgeable in the field of art. An arrangement was made between them for Vinokur to sell the picture in the United States on a commission basis.

Vinokur then engaged in the shady maneuvers that led to the arrest of the Tintoretto painting. Vinokur flew to New York on December 5, 1979 and falsely stated on his entry permit that he would be staying at the Barbizon Plaza Hotel in New York City, when in fact he intended to and did stay at the home of one Efin Nezhinsky in Queens, New York. On December 10, 1979 a package containing the Tintoretto arrived in the United States from Germany aboard a KLM flight which landed at John F. Kennedy International Airport (JFK) in New York.

During the preceding month of November 1979 the Federal Bureau of Investigation (FBI), acting on information from confidential sources, had begun an investigation regarding this painting. An FBI agent confirmed through experts the masterpiece's authenticity and the fact that it had been stolen from the Dresden Gallery of Art in East Germany at the close of World War II. The painting was thereafter reputed to have been taken to the Soviet Union in the possession of a Soviet General and later transported to Israel. On December 10 the agent was informed that Nezhinsky had picked up a package containing the Tintoretto at JFK. The customs forms which Nezhinsky completed and signed falsely stated that the Tintoretto was his personal property, for his own use, not for resale, and had a value of $500. Posing as an art dealer, the FBI agent subsequently met with Vinokur at a Madison Avenue Hotel, offered to purchase the painting, and asked Vinokur whether it could be resold. Upon informing the agent that the painting was marketable and that he would sell it to the agent for $250,000, Vinokur was arrested.

On January 22, 1980, Vinokur pled guilty to making false statements in a Customs Bureau document in violation of 18 U.S.C. § 542. As a result of Vinokur's conviction, the government obtained possession of the picture and, later in 1980, instituted this action.

II

Forfeiture statutes, which derive from English common law principles, embody the concept that a forfeiture is absolute. Thus, an owner's interest in the article may be forfeited even though the owner was not a participant in and had no knowledge of the illegal acts which brought about the forfeiture. See Various Items of Personal Property v. United States, 282 U.S. 577, 580-81, 51 S.Ct. 282, 283, 75 L.Ed. 558 (1931). At early common law the right of forfeiture normally did not arise until the offender had been convicted. The Palmyra, 25 U.S. (12 Wheat.) 1, 9, 6 L.Ed. 531 (1827). This doctrine was discarded in an early Supreme Court case which pointed out that the "doctrine never was applied to seizures and forfeitures created by statute, in rem, cognisable on the revenue side of the exchequer. The thing is here primarily considered as the offender, or rather the offence is primarily attached to the thing ...." Id. Once the offense attaches to the inanimate thing, it is without regard to the personal misconduct of its owner. See J. W. Goldsmith, Jr.-Grant Co. v. United States, 254 U.S. 505, 510-13, 41 S.Ct. 189, 190-91, 65 L.Ed. 376 (1921). The underlying rationale for this principle is a legal fiction dating back several thousand years based on the apocryphal notion that "it" is the inanimate object, not its possessor or owner, which offends against the law. ³ While this action may be one that is quasi-criminal, One 1958 Plymouth Sedan v. Pennsylvania, 380 U.S. 693, 700, 85 S.Ct. 1246, 1250, 14 L.Ed.2d 170 (1965), it is a separate and distinct proceeding from the criminal proceeding against the offending person (here Vinokur) and forfeiture is "no part of the punishment for the criminal offense," Various Items of Personal Property, 282 U.S. at 581, 51 S.Ct. at 283 (citation omitted).

III

The sole issue before us is whether there was a proper award of summary judgment for the government based upon its complaint seeking a forfeiture of the subject painting.

The standard under which a summary judgment motion is tested requires a showing "that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). The burden rests on the moving party to demonstrate the lack of genuine fact issue. Adickes v. S. H. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 1608, 26 L.Ed.2d 142 (1970). In its search of the record the court should resolve all ambiguities and inferences to be drawn from the underlying facts in the light most favorable to the party opposing the motion. United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 994, 8 L.Ed.2d 176 (1962); Quinn v. Syracuse Model Neighborhood Corp., 613 F.2d 438, 445 (2d Cir. 1980). The possibility that a factual issue may exist will not defeat the motion, rather the party opposing summary judgment must indicate that a genuine dispute as to a material fact does exist. Uncertainty as to the true state of any material fact defeats the motion. Quinn, 613 F.2d at 445.

In passing upon a Rule 56 motion the district court must determine whether there are issues of fact to be tried. Jaroslawicz v. Seedman, 528 F.2d 727, 731 (2d Cir. 1975); Heyman v. Commerce and Industry Insurance Co., 524 F.2d 1317, 1319-20 (2d Cir. 1975). It cannot try such issues by opposing affidavits, id., because it is impossible to foresee how the facts may evolve at trial. Stated another way, the key is issue-finding, not issue-resolution.

IV

The government argues that it has long been the rule that the owner's innocence is no defense to a claim of forfeiture, Goldsmith-Grant, 254 U.S. at 510-13, 41 S.Ct. at 190-91. An exception may exist-the only exception says the government-where the object is stolen or taken from the owner without his consent. See Van Oster v. Kansas, 272 U.S. 465, 467, 47 S.Ct. 133, 134, 71 L.Ed. 354 (1926). Thus, the government contends that since this painting was freely transferred from claimant Silberberg to Vinokur, a forfeiture works no deprivation of Silberberg's due process rights under the Fifth Amendment. See id. at 467-68, 47 S.Ct. at 134. We disagree.

In our view the claimant arguably fits within a second exception which the Supreme Court voiced in dicta in Calero-Toledo v. Pearson Yacht Leasing Company, 416 U.S. 663, 94 S.Ct. 2080, 40 L.Ed.2d 452. In Calero police found marijuana aboard a yacht that had been leased by its owners. Although the owners had no involvement in or knowledge of the lessee's wrongful use of the boat, the vessel was forfeited. In sustaining that determination the Supreme Court noted the one exception upon which all parties agree: "it would be difficult to reject the constitutional claim of an owner whose property subjected to forfeiture had been taken from him without his privity or consent." Id. at 689, 94 S.Ct. at 2094 (citations omitted). Immediately thereafter, ...