United States v. 3 Knife-Shaped Coins

• Court: U.S. District Court — District of Maryland
• Writing for the Court: Catherine C. Blake, United States District Judge
• Citation: United States v. 3 Knife-Shaped Coins, 246 F.Supp.3d 1102 (D. Md. 2017)
• Decision Date: 31 March 2017
• Docket Number: Civil No. CCB–13–1183
• Parties: UNITED STATES v. 3 KNIFE–SHAPED COINS, et al.

246 F.Supp.3d 1102

UNITED STATES

v.3 KNIFE–SHAPED COINS, et al.

Civil No. CCB–13–1183

United States District Court, D. Maryland.

Signed March 31, 2017

Molissa Heather Farber, US Attorney's Office, Baltimore, MD, Stefan Dante Cassella, Asset Forfeiture Law, LLC, Laurel, MD, for United States.

MEMORANDUM

Catherine C. Blake, United States District Judge

This action is a civil forfeiture proceeding brought by the United States (the "government") under the Convention on Cultural Property Implementation Act ("CPIA"), 19 U.S.C. § 2601 et seq. The defendant property consists of three knife-shaped Chinese coins, 12 other Chinese coins, and seven Cypriot coins. The Ancient Coin Collectors Guild (the "Guild") has filed a claim of interest in the property. Now pending are the Guild's motion for summary judgment as to the coins numbered 1–22 on the stipulated coin documentation list,¹ (ECF No. 72), and the government's cross-motion for summary judgment as to the coins numbered 1–6, 12–13, and 16–22, (ECF No. 76). The motions have been fully briefed, and no hearing is necessary to their resolution. See Local Rule 105.6. For the reasons explained below, the Guild's motion will be granted as to coins 7–11 and 14–15 and denied as to coins 1–6, 12–13, and 16–22. The government's cross-motion will be granted as to coins 1–6, 12–13, and 16–22.

BACKGROUND

In 1970, the United States became a signatory to the Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property (the "Convention"). Nov. 14, 1970, 823 U.N.T.S. 231. The purpose of the Convention was to protect cultural property from "the dangers of theft, clandestine excavation, and illicit export." Id. pmbl. The Convention defines the term "cultural property" to mean "property which ... is specifically designated by each State as being of importance for archaeology, pre-history, history, literature, art or science."Id. art. 1. Under Article 9 of the Convention, any signatory to the Convention ("State Party") can request that another State Party take measures to protect its cultural property "from pillage," including by imposing import and export controls. Id. art. 9.

Congress enacted the CPIA to implement the Convention, which was not self-executing. Convention on Cultural Property Implementation Act, Pub. L. 97–446, tit. III, 96 Stat. 2350 (1983) (codified at 19 U.S.C. §§ 2601 – 2613 ). The CPIA authorizes the president to impose import restrictions on certain items of cultural property at the request of a State Party. 19 U.S.C. § 2602. When a State Party makes a request, the president must "publish notification of the request ... in the Federal Register" and submit information regarding the request to the Cultural Property Advisory Committee ("CPAC").² Id. § 2602(f). CPAC is an 11–person committee, appointed by the president, whose members include "experts in the fields of archaeology, anthropology, ethnology, or related areas"; "experts in the international sale of archaeological, ethnological, and other cultural property"; representatives of the interests of museums; and representatives of "the interest of the general public." Id. § 2605(b)(1).

After CPAC receives notice of a request from the president, it is responsible for conducting an investigation and review to determine whether import restrictions are warranted. Id. § 2605(f)(1); see id. § 2602(a)(1). CPAC then issues a report to Congress and the president that contains the results of this investigation and review, along with certain other findings and its recommendation regarding whether the United States should enter into an agreement or memorandum of understanding to implement Article 9 ("Article 9 agreement") with the State Party. Id. § 2605(f)(1). When CPAC recommends entering into an Article 9 agreement, its report also sets forth the types of material that should be covered. Id. § 2605(f)(4). After receiving this report, the president determines whether to enter into such an agreement. Id. §§ 2602(a),(f). The existence of an Article 9 agreement is a prerequisite to the imposition of import restrictions under the CPIA. See id. § 2604.

The United States has Article 9 agreements with both Cyprus and China. It entered into an agreement with Cyprus in 2002, 67 Fed. Reg. 47,447, following a period of emergency import restrictions, 64 Fed. Reg. 17,529. This agreement was amended in 2006, 71 Fed. Reg. 51,724 –25, and extended in 2007, 72 Fed. Reg. 38,470 –71. After the 2007 extension, CBP promulgated an amended list of material subject to the import restrictions ("designated list"). Id. at 38,471 –73. This list included the following:

D. Coins of Cypriot Types

Coins of Cypriot types made of gold, silver, and bronze including but not limited to:

1. Issues of the ancient kingdoms of Amathus, Kition, Kourion, Idalion, Lapethos, Marion, Paphos, Soli, and Salamis dating from the end of the 6th century B.C. to 332 B.C.

2. Issues of the Hellenistic period, such as those of Paphos, Salamis, and Kition from 332 B.C. to c. 30 B.C.

3. Provincial and local issues of the Roman period from c. 30 B.C. to 235 A.D. Often these have a bust or head on one side and the image of a temple (the Temple of Aphrodite at Palaipaphos) or statue (statue of Zeus Salaminios) on the other.

Id. at 38,473.

The United States and China entered into an Article 9 agreement in January 2009. 74 Fed. Reg. 2,839. CBP then promulgated a list of articles subject to CPIA restrictions, which included the following:

3. Coins.

a. Zhou Media of Exchange and Toolshaped Coins: Early media of exchange include bronze spades, bronze knives, and cowrie shells. During the 6th century BC, flat, simplified, and standardized cast bronze versions of spades appear and these constitute China's first coins. Other coin shapes appear in bronze including knives and cowrie shells. These early coins may bear inscriptions.

b. Later, tool-shaped coins began to be replaced by disc-shaped ones which are also cast in bronze and marked with inscriptions. These coins have a central round or square hole.

c. Qin: In the reign of Qin Shi Huangdi (221–210 BC) the square-holed round coins become the norm. The new Qin coin is inscribed simply with its weight, expressed in two Chinese characters ban liang. These are written in small seal script and are placed symmetrically to the right and left of the central hole.

d. Han through Sui: Inscriptions become longer, and may indicate that inscribed object is a coin, its value in relation to other coins, or its size. Later, the period of issue, name of the mint, and numerals representing dates may also appear on obverse or reverse. A new script, clerical (lishu), comes into use in the Jin.

e. Tang: The clerical script becomes the norm until 959, when coins with regular script (kaishu) also begin to be issued.

Id. at 2,842.

In April 2009, the Guild purchased 23 ancient Chinese and Cypriot coins from Spink, a numismatic dealer in London. (See Mot. Summary Judgment, Ex. 5, ECF No. 72–5 ("Tompa Dec."), Ex. N (Spink invoice).)³ According to the Spink invoice, each coin was minted in Cyprus or China, had "[n]o recorded provenance," and had a "[f]ind spot" that was "unknown." ( Id. ) Pursuant to the parties' stipulation, the Chinese coins are numbered 1–15, and the Cypriot coins are numbered 16–22. (Coin Documentation Materials at 2.)

Later that month, the Guild imported the coins to the United States via a commercial flight from London to Baltimore. (See Tompa Dec., Ex. S (shipping and entry documents).) CBP detained the property at the time of entry for alleged violations of the CPIA and its implementing regulations. (See id. , Exs. P–R (CBP notices of detention and seizure).)

After months passed without the initiation of forfeiture proceedings, the Guild brought an action against, inter alia, the U.S. Department of State and CBP. See Ancient Coin Collectors Guild v. U.S. Customs and Border Protection , Civil No. CCB–10–322 ("declaratory judgment action"). The Guild alleged that the actions of both defendants violated the Administrative Procedure Act ("APA"), were ultra vires , and violated the First and Fifth Amendments to the United States Constitution. Ancient Coin Collectors Guild v. U.S. Customs and Border Protection , 801 F.Supp.2d 383, 399 (D. Md. 2011). The government filed a motion to dismiss, which this court granted. Id. at 418. Regarding the APA claims, the court held that the actions of the State Department were not reviewable under the APA. Id. at 404. Regarding the ultra vires claims, the court concluded that "the import restrictions on Chinese and Cypriot coins, which have the effect of barring the importation of coins with unknown find spots, do not exceed the State Department's authority under the CPIA." Id. at 409. The court also dismissed the APA and ultra viresclaims against CBP, reasoning that CBP had merely carried out its statutory duty to promulgate and enforce regulations under the CPIA. Id. at 413–414. Finally, the court held that none of the constitutional claims had merit. Id. at 411–12, 414.

The Guild appealed, and the Fourth Circuit affirmed in October 2012. Ancient Coin Collectors Guild v. U.S. Customs and Border Protection , 698 F.3d 171, 175 (4th Cir. 2012) ("Fourth Circuit opinion"). As relevant here, the Fourth Circuit held that the State Department and CBP had not "acted ultra vires by placing import restrictions on all coins of certain types without demonstrating that all coins of those types were ‘first discovered within’ China or Cyprus." Id. at 181–82. The opinion explained:

As an initial matter, the CPIA is clear that defendants may designate items by "type or other appropriate classification" when establishing import restrictions. 19 U.S.C. § 2604. State and CBP are under no obligation to list restricted items with more specificity than the statute commands, and they are certainly not required to impose restrictions on a coin-by-coin basis. Such a requirement would make the

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