United States v. Ancient Coin Collectors Guild

• Decision Date: 07 August 2018
• Docket Number: No. 17-1625,17-1625
• Parties: UNITED STATES of America, Plaintiff–Appellee v. ANCIENT COIN COLLECTORS GUILD, Claimant–Appellant, v. 3 Knife-Shaped Coins; 7 Cypriot Coins; 5 Other Chinese Coins, Defendants. Professional Numismatists Guild, Inc; American Numismatic Association; International Association of Professional Numismatists; Association of Dealers and Collectors of Ancient and Ethnographic Art; Committee for Cultural Policy, Inc.; Global Heritage Alliance, Amici Supporting Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

899 F.3d 295

UNITED STATES of America, Plaintiff–Appellee

v.ANCIENT COIN COLLECTORS GUILD, Claimant–Appellant,

v.3 Knife-Shaped Coins; 7 Cypriot Coins; 5 Other Chinese Coins, Defendants.

Professional Numismatists Guild, Inc; American Numismatic Association; International Association of Professional Numismatists; Association of Dealers and Collectors of Ancient and Ethnographic Art; Committee for Cultural Policy, Inc.; Global Heritage Alliance, Amici Supporting Appellant.

No. 17-1625

United States Court of Appeals, Fourth Circuit.

Argued: March 22, 2018

Decided: August 7, 2018

ARGUED: Peter Karl Tompa, Bailey & Ehrenberg, PLLC, Washington, D.C., for Appellant. Molissa Heather Farber, Office of the United States Attorney, Baltimore, Maryland, for Appellee. ON BRIEF: Jason H. Ehrenberg, Bailey & Ehrenberg, PLLC, Washington, D.C., for Appellant. Stephen M. Schenning, Acting United States Attorney, Office of the United States Attorney, Baltimore, Maryland, for Appellee. Armen R. Vartian, Law Offices of Armen R. Vartian, Manhattan Beach, California, for Amici Professional Numismatists Guild, Inc., American Numismatic Association, and International Association of Professional Numismatists. Michael McCullough, Michael McCullough LLC, Brooklyn, New York, for Amici Association of Dealers and Collectors of Ancient and Ethnographic Art, Committee for Cultural Policy, Inc., and Global Heritage Alliance.

Before KING, AGEE, and THACKER, Circuit Judges.

Judge King wrote the opinion, in which Judge Agee and Judge Thacker joined.

Affirmed by published opinion.

KING, Circuit Judge:

This appeal is pursued by the Ancient Coin Collectors Guild (the "Guild") from the judgment in the District of Maryland ordering forfeiture to the United States of seven ancient Cypriot coins and eight ancient Chinese coins, which were imported into this country by the Guild. Incorporated within its challenge to the propriety of the district court's summary judgment decision, the Guild contests the court's treatment of the Guild's expert evidence, the striking of one of its pleadings, and the denial of its requests for additional discovery. As explained below, we reject each of the contentions of error, including several that are foreclosed by our previous decision in Ancient Coin Collectors Guild v. U.S. Customs and Border Protection, 698 F.3d 171 (4th Cir. 2012) (" Ancient Coin I "). Accordingly, we affirm the judgment.

I.

A.

1.

On November 14, 1970, the United States became a signatory, i.e., a State Party, to an international treaty developed primarily by the United Nations—the Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership and Cultural Property (the "Treaty"). See 823 U.N.T.S. 231. The Treaty was designed to eradicate the clandestine excavation and illicit trade of "cultural property," that is, property "specifically designated by each State [Party] as being of importance for archaeology, prehistory, history, literature, art or science." Id. art. 1(e). Cultural property includes "antiquities more than one hundred years old, such as ... coins." Id. Article 9 of the Treaty provides that when a State Party determines that its "cultural patrimony is in jeopardy," it may call upon other State Parties to take action, including through the imposition of import restrictions. Id. art. 9.

In 1983, Congress enacted a public law entitled the Convention on Cultural Property Implementation Act (the "CPIA"), which formally implemented the Treaty. See Pub. L. No. 97-446, 96 Stat. 2350 (1983) (codified at 19 U.S.C. §§ 2601 - 2613 ). Pursuant thereto, if another State Party wants the United States to impose import restrictions on its cultural property, that State Party first must make a formal written request. See 19 U.S.C. § 2602(a)(3). By that request, the State Party must claim, inter alia, that its cultural patrimony is in jeopardy, that the imposition of import restrictions would deter "a serious situation of pillage," and that "less dramatic" alternatives are unavailable. Id. § 2602(a)(1)(A)-(C). After publishing notice of the request but prior to any further action, the CPIA requires the President to forward the State Party's request to a statutory committee—the Cultural Property Advisory Committee ("CPAC" or the "Committee")—for review and recommendations. Id. § 2602(f)(1)-(2).¹

CPAC is an eleven-member Committee appointed by the President and comprised of experts and stakeholders in "the international exchange of archaeological and ethnological materials." See 19 U.S.C. § 2605(b)(2)(A). Upon receiving notice of a State Party's request to impose import restrictions, the Committee is required to conduct an investigation and prepare a report detailing whether import restrictions are warranted. Id. § 2605(f)(1). The report must be detailed, specifying by type or classification the materials that should be subjected to import restrictions. Id. § 2605(f)(4)(B).

The President is required to consider the CPAC report before taking any action on a State Party's request. See 19 U.S.C. § 2602(f)(3). If the President is then convinced that import restrictions are warranted, he can enter into an agreement—called a Memorandum of Understanding (an "MOU")—restricting the importation of "archaeological or ethnological materials of the State Party." Id. § 2602(a) - (b). As relevant here, the CPIA defines the term "archaeological or ethnological material of the State Party" as an object of archaeological or ethnological interest, or any fragment or part thereof, "which was first discovered within, and is subject to export control by, the State Party." Id. § 2601(2).

After entering into an MOU, the CPIA requires the President to report to Congress, notifying it of the President's action. See 19 U.S.C. § 2602(g)(1)-(2). The President's report to Congress should explain "the differences (if any) between such action and the views and recommendations contained in any [CPAC] report," and provide "the reasons for any such difference." Id. § 2602(g)(2).

2.

Upon the President's agreement to an MOU, the Secretary of Homeland Security, in consultation with the Secretary of State, is obliged to promulgate a regulation—or "designated list"—identifying the archaeological or ethnological materials covered by the MOU. See 19 U.S.C. § 2604.² Restricted materials may be listed therein "by type or other appropriate classification." Id. Each designated list, however, must be "sufficiently specific and precise" to ensure that (1) "the import restrictions ... are applied only to the archaeological and ethnological material covered by the [MOU]" and (2) "fair notice is given to importers ... as to what material is subject to such restrictions." Id.

Section 2606 of Title 19 governs the enforcement of the import restrictions contained in the designated lists that have been promulgated. Pursuant thereto, it is unlawful to import "designated archaeological or ethnological material that is exported (whether or not such exportation is to the United States) from the State Party after the designation of such material under section 2604." See 19 U.S.C. § 2606(a). "Designated archaeological or ethnological material" is a term of art in the CPIA, and is not to be confused with the term "archaeological or ethnological material of the State Party." Compare 19 U.S.C. § 2601(2) (defining "archaeological or ethnological material"), with 19 U.S.C. § 2601(7) (defining "designated archaeological or ethnological material"). As relevant here, designated archaeological or ethnological material includes "any archaeological ... material of the State Party" which is "covered by an [MOU]" and "listed by regulation under section 2604." Id. § 2601(7).

The CPIA authorizes the importation of designated archaeological or ethnological material into the United States, but only when the importer can satisfy—at the time of entry—at least one of three evidentiary requirements. See 19 U.S.C. § 2606(b). First, under § 2606(b)(1), the importer can present to Customs and Border Protection ("Customs") a "certificate or other documentation" from the State Party that requested the restrictions, certifying that the designated material was exported in compliance with that State Party's laws.³ Second, pursuant to § 2606(b)(2)(A), the importer can present Customs with "satisfactory evidence" demonstrating that the designated material was exported from the State Party at least ten years before it arrived in the United States.⁴ Third, under § 2606(b)(2)(B), the importer can present "satisfactory evidence" to Customs proving that the designated material was exported from the State Party "on or before the date" the material became subject to import restrictions. Under the second and third requirements, that is, pursuant to § 2606(b)(2)(A) and § 2606(b)(2)(B), the term "satisfactory evidence" means a declaration from the importer, plus a statement from the seller, attesting that the designated material was imported in compliance with one of those two provisions. Id. § 2606(c)(1)-(2).⁵

If an importer fails to submit any of the documentation specified in § 2606 when designated material enters the United States, Customs officials are directed to "refuse to release the material from customs custody." See 19 U.S.C. § 2606(b). The importer then has ninety days to file with Customs either the required certificate or satisfactory evidence demonstrating that the designated material was lawfully exported from the State Party. Id. If the importer fails to do so, the designated material is subject to seizure and forfeiture to the United States. Id. § 2609(b).

B.

1.

The Guild is a non-profit organization dedicated to protecting the interests of numismatists, particularly those individuals who specialize in the collection of ancient coins.⁶ The Guild's director, Wayne Sayles, founded the organization in 2004 in an effort to preempt the imposition of CPIA restrictions on ancient coins. Sayles and the Guild opposed such...